R. v. Pardy, 2017 NLCA 49

Trevor Pardy (appellant) v. Her Majesty the Queen as Represented by the Attorney General (respondent) (15/88) Indexed As: R. v. Pardy 2017 NLCA 49 2 C.A.N.L.R. 150 Court of Appeal of Newfoundland and Labrador Welsh, White and Harrington JJ.A. August 4, 2017

Summary: The appellant appealed his conviction for first degree murder, arguing that the trial judge had erred in instructing the jury on the defense of accident. The appellant fatally shot the deceased, his ex-girlfriend Ms. Wadman, after an argument on a street in a neighbourhood cul-de-sac where the two met for the purpose of the appellant paying $350 that he owed to the deceased. At the trial, the appellant advanced two theories of accident: first, that the gun discharged during and as a result of a struggle; and, second, that Ms. Wadman was pulling the gun away from him.

The appellant argued that the trial judge erred in the manner in which he instructed the jury on the defence of accident by his reference to the “air of reality”, when he stated that the jury was to “consider all the evidence and whether the points raised by the Defence point to an accident in a manner that is more than speculation or conjecture and whether it has an air of reality.” The trial judge subsequently explained that if the jury were to accept that there was evidence of an accidental discharge of the gun which raised a reasonable doubt, then the jury would have to determine whether it related to whether the shooting was planned and deliberate or whether it related to the second element that the appellant had the state of mind for murder.

He confirmed that the Defence does not have to prove that it was an accident, but the Crown must prove beyond a reasonable doubt that it was not. Held: Appeal dismissed. Welsh J.A. (White and Harrington JJ.A. concurring): The appellant argued that whether the evidence has an “air of reality” is a question of law to be determined by the trial judge, not the jury. He also argued that there was evidence sufficient to meet the test for putting the defence of accident in issue. Reading the instructions as a whole made clear that the judge was not using the phrase, “air of reality” as a term of art.

In this case, the phrase, “air of reality”, would, in the absence of a specific instruction, be understood in its ordinary sense by members of the jury. Had the judge intended to use “air of reality” as a term of art, it would have been inappropriate to tell the jury that the defence had an air of reality because such an instruction would have the effect of interfering with the role of the jurors to assess the evidence and determine the facts. The judge’s language in stating that the jury was to consider “whether [the defense of accident] has an air of reality” was unhelpful.

However, in the circumstances, the sentence and phrase at issue do not render the instructions to the jury problematic for these reasons: the phrase, air of reality, has a commonly understood meaning which could be applied by the jury; if anything, as set out above, the sentence would have worked to Mr. Pardy’s advantage in relying on the defence of accident; the sentence must be read within the context of the instructions as a whole; and, the

summary of the evidence that followed was comprehensive and accepted by the appellant as a fair representation.

The appellant argued that the instruction as to how the jurors should apply the defence of accident was confusing when the judge stated that the jury had to determine “whether it related to whether the shooting was planned and deliberate or whether it related to the second element that the appellant had the state of mind for murder.” However, considered as a whole and in context, the jury would have understood how the defence of accident should be assessed in relation to the offence of murder. The instructions were not lengthy and the jurors had an edited written copy including a decision tree.

The difference between first and second degree murder and the elements of the offences had been clearly stated with relevant references to the issue of accident, followed by instructions on the defence. The judge concluded those instructions by reminding the jury of the relevance of accident to the mental state required for murder and to the element of planning and deliberation for first degree murder. The instructions to the jury were adequate. The appellant did not demonstrate a basis on which to set aside the jury’s verdict. The appeal was dismissed. Cases cited: R. v.

Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3 Counsel: Bob Buckingham and John Brooks Q.C., for the appellant; Iain Hollett, for the respondent. This appeal was heard on April 5, 2017 before Welsh, White and Harrington JJ.A. The following judgment was delivered on August 4, 2017 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] Trevor Pardy was convicted of the first degree murder of Tryphena Wadman following a jury trial. He appeals his conviction submitting that the trial judge erred in his instructions to the jury regarding the defence of accident.

BACKGROUND [ 2 ] It is not in dispute that, in the early morning hours of October 1, 2011, Mr. Pardy fatally shot Ms. Wadman. Mr. Pardy argued at trial that it was an accident. [ 3 ] The incident occurred when Mr. Pardy met Ms. Wadman on a street in a neighbourhood cul-de-sac for the purpose of paying $350 owed to her. Earlier in the evening, Mr. Pardy had sent text messages to a friend saying he was going to kill Ms. Wadman. He carried a loaded, ready-to-discharge handgun to the meeting, where they quarreled. [ 4 ] After Ms. Wadman had been shot, she was able to call 911 on her cellphone to seek help.

A few seconds later, after she apparently dropped the phone, Mr. Pardy picked it up and spoke with the 911 operator. He said the shooting was an accident, but he would not give the address to the operator. Fortunately, several other calls were placed by persons in the vicinity, and the police and ambulance arrived quickly. In particular, having received the call at 1:10 a.m., the ambulance was at the scene at 1:13 a.m. [ 5 ] However, Mr. Pardy refused to comply with police demands to put down his gun or to move away from Ms. Wadman.

It was not until 1:30 a.m. that he moved away from the victim and took up a position by a truck. At that point, a police officer was able to pull Ms. Wadman to cover behind a police vehicle. Seconds later the paramedics were tending to her. The ambulance left the scene at 1:40 a.m. and arrived at the hospital at 1:43 a.m. Despite emergency treatment, Ms. Wadman was pronounced dead at 2:10 a.m. Mr. Pardy was taken into custody at 5:30 a.m. after police successfully negotiated an end to the standoff. [ 6 ] Dr.

Avis, the chief forensic pathologist for the Province testified as to the victim’s bullet wounds and inferences that may be drawn, including his expert opinion that the evidence suggested that Mr. Pardy and Ms. Wadman were not sufficiently close to be holding onto each other when the shot that hit her was fired. However, he conceded it was possible that a struggle, followed by an individual falling back, may result in the gun discharging. [ 7 ] It was Dr. Avis’ testimony that a bullet entered and passed through the victim’s left arm which was probably held close to her chest.

The bullet then entered her left upper chest and exited through her back, fracturing two ribs and perforating the left upper lobe of

the lung. [ 8 ] Dr. Avis testified that the wounds were not immediately fatal and that Ms. Wadman died because of blood loss. He was not able to conclude that she would have survived had she received medical attention sooner, but he testified that there may have been a chance. He also testified that, with a delay in medical attention, once there had been sufficient blood loss, there was no chance of survival. [ 9 ] Two spent shell casings were found at the scene. Seven live rounds of ammunition were found in the firearm, one in the chamber and six in the magazine.

A forensic expert testified that cartridges have to be loaded into the magazine which is then loaded into the grip of the handgun. When the slide is pulled back, a cartridge moves from the magazine into the chamber. Once the gun is fired, the spent shell is automatically ejected and a new cartridge is moved into the chamber. [ 10 ] Several residents who heard the gunshots and teenagers who had been at a nearby shed party testified about what they had seen and heard. [ 11 ] At the trial, Mr.

Pardy advanced two theories of accident: first, that the gun discharged during and as a result of a struggle; and, second, that Ms. Wadman was pulling the gun away from him. ISSUE [ 12 ] At issue is whether the trial judge erred in his instructions regarding the defence of accident, in particular, in his use of the phrase “air of reality” and in his instruction as to application of the defence of accident to elements of the offence of murder. ANALYSIS [ 13 ] Mr.

Pardy submits that the trial judge erred in the manner in which he instructed the jury on the defence of accident by his reference to the “air of reality”. In explaining the defence, the judge began his instruction: Now, before leaving my discussion on the law on this offence I want to spend some time dealing with the defence that has been raised. One of the key issues in this case is whether the Crown’s allegation of first degree murder – that is a murder which is planned and deliberate – is supported by the evidence. It is the position of the Defence, and you heard Mr.

Buckingham speak to this yesterday, that what happened to Ms. Wadman was an accident. To be more specific, he points to evidence which suggests there was a struggle and an accidental discharge of the gun which killed Ms. Wadman. In raising the defence of accident it is important to remember that Mr. Pardy, as the Accused, does not have to prove that the death of Ms. Wadman was accidental. If a person does not intend to do something, the criminal law does not hold someone responsible for that conduct. It’s up to Crown counsel to satisfy you beyond a reasonable doubt that her death was not an accident.

In respect of this defence, consider all the evidence and whether the points raised by the Defence point to an accident in a manner that is more than speculation or conjecture and whether it has an air of reality . (Emphasis added.) [ 14 ] The judge then proceeded to a discussion of the evidence relevant to the defence of accident. Mr. Pardy does not challenge that part of the instructions, conceding that the judge gave a fair representation of the evidence.

This was followed by a final instruction on the defence: If you accept the submission of the Defence that there’s evidence of an accidental discharge of the gun which raises a reasonable doubt, then you will have to determine whether it relates to the third element, that is, whether the shooting was planned and deliberate or whether it relates to the second element that Mr. Pardy had the state of mind for murder. Your answer to either of these questions will be guided by your determination of the existence of evidence of an accident.

Remember, the Defence does not have to prove that it was an accident, but the Crown must prove beyond a reasonable doubt that it was not. That’s all I will have to say on the first count in the Indictment – that of first degree murder. The judge had previously discussed the elements of the included offences of second degree murder and manslaughter. The other charge against Mr. Pardy alleged using a firearm in the commission of an offence. [ 15 ] Mr. Pardy submits that whether the evidence has an “air of reality” is a question of law to be determined by the trial judge, not the jury.

The phrase is discussed in R. v. Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3 . When used as a term of art, that is, having a special legal meaning, air of reality refers to the analysis to be applied by a trial judge in deciding whether a jury should be instructed regarding a defence to the charge. McLachlin C.J.C. and Bastarache J., for the majority, explained: [84] The whole edifice of air of reality analysis is built upon the premise that putting outlandish defences to the jury would be confusing and would invite unreasonable verdicts.

This is the practical basis of the trial judge’s duty to keep from the jury defences that are fanciful or far-fetched in relation to the evidence adduced at trial. … … [86] The approach to be followed by a trial judge in ensuring that only defences arising on the facts are put to the jury is well established. The question is whether there is evidence upon which a properly instructed jury acting reasonably could acquit if it accepted it as true.

We have seen that this question requires the trial judge to consider whether the inferences required to be established for the defence to succeed can reasonably be supported by the evidence. Where evidence does not permit a reasonable inference raising a reasonable doubt on the basis of the defence, the defence must be kept from the jury. … [ 16 ] In this case, neither the Crown nor Mr. Pardy submits that the judge erred by instructing the jury on the defence of accident. There was evidence sufficient to meet the test for putting the defence in issue.

The question is whether the judge erred by using the phrase “air of reality” as quoted above.

[ 17 ] It is clear from reading the instructions as a whole that the judge was not using the phrase, air of reality, which he referred to only once, as a term of art. The fact that a phrase has a special legal meaning does not preclude its use as it would commonly be understood. A word or phrase intended to be used as a term of art would be explained as such by a trial judge. In this case, the phrase, air of reality, would, in the absence of a specific instruction, be understood in its ordinary sense by members of the jury. [ 18 ] To describe that ordinary sense, I refer to dictionary

definitions of “air” and “reality” used as suggested by the phrase. The Compact Oxford English Dictionary , new edition, provides: “Air” … 13. Outward appearance, apparent character … Esp. in phrases like ‘an air of absurdity’. “Reality” … 3.a. Real existence; what is real … . 3.b. In reality, really, actually, in fact. 4. A real thing, fact, or state of things.

I would infer that the phrase, air of reality, would be understood in this way by members of the jury unless they were instructed to apply a different meaning, which was not the case here. [ 19 ] I would add here that, had the judge intended to use “air of reality” as a term of art to be applied in accordance with the analysis in Cinous , it would have been inappropriate to tell the jury that the defence had an air of reality because such an instruction would have the effect of interfering with the role of the jurors to assess the evidence and determine the facts. [ 20 ] It is necessary, next, to review the phrase within the context of the whole sentence which I reproduce here for ease of reference: In respect of this defence, consider all the evidence and whether the points raised by the Defence point to an accident in a manner that is more than speculation or conjecture and whether it has an air of reality. [ 21 ] This sentence was unhelpful, but, if anything, it would have worked to Mr.

Pardy’s advantage in respect of achieving a favourable determination that the shooting was accidental. That is, read alone, it suggests that, if the evidence of accident amounts to more than speculation or conjecture, if it has an air of reality as that phrase is ordinarily understood, then it follows that the Crown has not satisfied the burden of proving that the shooting was not an accident. [ 22 ] The difficulty with this is that reasonable doubt is not the same as an absence of speculation or conjecture. The judge had already explained the concept of reasonable doubt to the jury.

What the Crown was required to prove was that the evidence established beyond a reasonable doubt, that is, a doubt based on reason and common sense, that the shooting was not an accident. “Speculation” and “conjecture” are relevant only to assist in demonstrating what does not amount to a reasonable doubt. As explained earlier in the judge’s instructions: … A reasonable doubt is not an imaginary, a speculative or a frivolous doubt. It must not be based on sympathy or prejudice. Rather, it has to be based on reason and common sense. It must logically come from the evidence or the lack of evidence.

Even if you believe that Mr. Pardy is probably guilty, that is not sufficient. … [ 23 ] In the circumstances, I am satisfied that the sentence and phrase at issue do not render the instructions to the jury problematic for these reasons: the phrase, air of reality, has a commonly understood meaning which could be applied by the jury; if anything, as set out above, the sentence would have worked to Mr. Pardy’s advantage in relying on the defence of accident; the sentence must be read within the context of the instructions as a whole; and, the

summary of the evidence that followed was comprehensive and accepted by Mr. Pardy as a fair representation. [ 24 ] Mr. Pardy also submits that the instruction as to how the jurors should apply the defence of accident was confusing. The judge told the jury that, if they accepted that the gun had been fired accidentally, they would need to decide “whether it relates to the third element, that is, whether the shooting was planned and deliberate or whether it relates to the second element that Mr. Pardy had the state of mind for murder”.

Again, this statement must be considered in context. [ 25 ] Just before addressing the defence of accident, the judge had instructed the jury on the difference between first and second degree murder, referring to the three elements necessary to prove first degree murder and the elements required for the included offences of second degree murder and manslaughter. [ 26 ] In

summary, the jury was instructed that, if Trevor Pardy unlawfully caused Ms. Wadman’s death, he would, at a minimum, be guilty of manslaughter. The judge then discussed the second element, the required state of mind for murder. He instructed the jury that, if they were satisfied that the Crown had proven this element beyond a reasonable doubt, they must find Mr. Pardy guilty, at a minimum, of second degree murder. Finally, if the Crown had proven beyond a reasonable doubt the third element, that the murder was both planned and deliberate, Mr. Pardy would be guilty of first degree murder.

In addition to stipulating the elements of first and second degree murder, the judge had described the difference between “planned” and “deliberate”, and that both are required for a finding of first degree murder. [ 27 ] The judge dealt in detail with the defence of accident after he had given his instructions on the offence of murder. However, while addressing the elements and evidence relevant to murder, the judge included references to the defence of accident. He specifically

told the jury that the defence of accident may be relevant to their consideration of the required state of mind: … For an unlawful killing to be murder, Crown counsel must prove beyond a reasonable doubt that Trevor Pardy either meant to kill Tryphena Wadman or meant to cause her bodily harm that Trevor Pardy knew was likely to kill her and was reckless as to whether she died or not. … … You may consider the contents of the text messages between Trevor and Nathan Pardy a few hours before these events took place.

You may also consider whether he made preparations for the meeting with Tryphena Wadman, including having a gun with ammunition available. You may consider evidence that two shots were fired and whether it was likely either or both were accidental. You may also consider his behaviour and comportment during the standoff. This will include evidence that he refused to surrender his weapon. Police say that this meant that medical attention could not be provided in a timely manner.

You may consider evidence, also, that he was quite distraught during the standoff and his statements that it was an accident and he did not mean to shoot her. You must also consider evidence that the Defence suggests which means that this was an accident and that the struggle between Mr. Pardy and Ms. Wadman caused the firearm to discharge unintentionally. In considering this issue you may take into account his emotional state following the shooting, his statements that it was an accident and that he did not mean to kill her.

If you’re not satisfied beyond a reasonable doubt that Trevor Pardy had the state of mind required to make his unlawful killing of Tryphena Wadman murder, in other words, if you answer “no” to the second question, then you must find Trevor Pardy not guilty of murder but guilty of manslaughter. … This instruction, followed by the instruction on first degree murder, was immediately followed by the instruction on the defence of accident. [ 28 ] Similarly, in his instructions on first degree murder, the judge told the jury that the defence of accident may be relevant.

During his review of the evidence the judge included: Against this is evidence that there was a struggle and the argument of the Defence that the gun went off by accident. I will have more to say about the Defence of accident in a moment. Remember that Mr. Pardy does not have to prove that it was an accident. The Crown must satisfy you beyond a reasonable doubt that the death of Ms. Wadman was not an accident. You must consider whether the evidence of a struggle and Mr.

Pardy’s comments after the shooting that it was an accident raise a reasonable doubt. [ 29 ] After some final directions regarding first degree murder, the judge proceeded to instruct the jury as set out above regarding the defence of accident. [ 30 ] Considering the instructions as a whole and in context, I am satisfied that the jury would have understood how the defence of accident should be assessed in relation to the offence of murder. The instructions were not lengthy and the jurors had an edited written copy including a decision tree.

The difference between first and second degree murder and the elements of the offences had been clearly stated with relevant references to the issue of accident, followed by instructions on the defence.

The judge concluded those instructions by reminding the jury of the relevance of accident to the mental state required for murder and to the element of planning and deliberation for first degree murder. [ 31 ] In the result, I am satisfied that the judge’s instructions to the jury, read as a whole, were adequate to ensure that the jury understood the difference between first and second degree murder and the relevance of the defence of accident. The instructions were also adequate to ensure that the jury knew that the Crown had the onus of proving Ms. Wadman’s death was not due to an accident.

SUMMARY AND DISPOSITION [ 32 ] In

summary, the instructions to the jury were adequate. Mr. Pardy has not demonstrated a basis on which to set aside the jury’s verdict. Accordingly, I would dismiss the appeal. Appeal dismissed .