2010 NBCA 85, 2010 NBCA 85

COURT OF APPEAL OF NEW BRUNSWICK 55-09-CA KENNETH LARRY SHEEHAN APPELLANT KENNETH LARRY SHEEHAN APPELANT - and - - et - HER MAJESTY THE QUEEN RESPONDENT SA MAJESTÉ LA REINE INTIMÉE Sheehan v. R., 2010 NBCA 85 Sheehan c.

R., 2010 NBCA 85 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’s Bench: July 10, 2008 Appel d’une décision de la Cour du Banc de la Reine : Le 10 juillet 2008 History of Case: Historique de la cause : Decision under appeal: 2008 NBQB 234 Décision frappée d’appel : 2008 NBQB 234 (CanLII) , 2008 NBBR 234 Preliminary or incidental proceedings: Court of Queen’s Bench 2008 NBQB 268 Procédures préliminaires ou accessoires : Cour du Banc de la Reine 2008 NBQB 268 (CanLII) , 2008 NBBR 268 Appeal heard: March 17, 2010 and April 13, 2010 Appel entendu : Les 17 mars et 13 avril 2010

Judgment rendered: December 2, 2010 Jugement rendu : Le 2 décembre 2010 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: Allen G. Doyle For the respondent: Lucie Mathurin-Ring Avocats à l’audience : Pour l’appelant : Allen G. Doyle Pour l’intimée : Lucie Mathurin-Ring THE COURT The appeal is dismissed. LA COUR L’appel est rejeté.

The judgment of the Court was delivered by GREEN J.A. I. Introduction [ 1 ] At his trial before a judge of the Court of Queen’s Bench, sitting without a jury, Kenneth Larry Sheehan was convicted on a charge of second degree murder in the death of William Dean. He was sentenced to life in prison with no eligibility for parole for fourteen years. Mr. Sheehan, the appellant, asks that the conviction be reduced to manslaughter, or that “the matter be remitted” for a new trial. For the reasons which follow, I would dismiss the appeal. II.

Background [ 2 ] On Friday, December 21, 2007, the appellant spent several hours in Mr. Dean’s apartment in Saint John. Throughout the day, the appellant and Mr. Dean consumed a considerable amount of alcohol, specifically high alcohol content beer. This consumption was witnessed by others who were visiting Mr. Dean’s residence that day.

[ 3 ] At some point in the day, Mr. Dean made disparaging remarks about the woman who was the appellant’s partner, to which the appellant took exception. Late that afternoon, the appellant left Mr. Dean’s home. He went to his apartment, approximately one block away, and, in the company of another individual, continued consuming beer. [ 4 ] The trial judge concluded the appellant returned to Mr. Dean’s home approximately one hour after he left. He attacked and killed Mr. Dean, and left the scene with Mr. Dean’s wallet and some prescription medication.

At approximately 7:00 p.m., the appellant arrived at the apartment of one of his brothers, who lived in the same neighbourhood. The appellant was covered in blood, and told his brother he had stabbed someone. [ 5 ] The appellant then went back to his own apartment. With some assistance, he cleaned himself up, changed his clothes, and either passed out or went to sleep. At 9:50 p.m., the appellant’s brother called 911, identified himself to the operator, and stated he had received information suggesting that someone had been stabbed at Mr.

Dean’s address. [ 6 ] An expert in forensic pathology testified at the trial. On December 21, 2007, he attended at the scene of the death, and the next day performed an autopsy on the body of Mr. Dean. The doctor’s testimony was summarized by the trial judge in R. v. Sheehan (K.L.) , 2008 NBQB 234 , 332 N.B.R. (2d) 264: [The doctor] found 18 sharp force injuries on Mr. Dean’s body which he described as stab wounds and cuts. Sixteen of those injuries were in the chest, neck and face area while two of them were to Mr. Dean’s hands. Three of these wounds penetrated Mr.

Dean’s chest cavity and any one of those three could have been lethal. [The doctor] described the two wounds to his hands as defensive wounds. […] He concluded that the cause of death was multiple sharp force injuries to the chest and the manner of death was homicide. I accept [the doctor’s] evidence and find that William Dean was murdered and that he died as a result of multiple sharp force injuries to the chest. [paras. 7 and 10] [ 7 ] At noon the day following Mr. Dean’s death, knowing the authorities were looking for him, the appellant contacted the police and arranged to be picked up.

He gave two videotaped statements to the police, both of which were admitted by consent at the trial. In the statements, the appellant confessed to stabbing Mr. Dean. The appellant did not testify. [ 8 ] The trial commenced with the appellant pleading guilty to the included offence of manslaughter. The Crown refused to accept his plea. The appellant subsequently pled not guilty to the charge of second degree murder, proceeded to trial, and was convicted on that charge. III.

Issues [ 9 ] The issues underpinning the appeal have evolved significantly since the appellant, as a self-represented litigant, first filed his Notice of Appeal. He subsequently retained counsel, who filed an Appellant’s Submission in which certain grounds of appeal were abandoned, and others elaborated upon. By the time the appeal was heard, the issues had coalesced into two distinct arguments: 1. The reasons given by the trial judge for his findings were not sufficient to allow for meaningful appellate review, calling into question the reasonableness of the decision, and; 2.

The trial judge erred in failing to consider the defences of provocation and intoxication together or “cumulatively”, and instead “compartmentalized” the defences.

IV. Law and Analysis A. Sufficiency of Reasons [ 10 ] It is well established that a trial judge must provide reasons for his or her decisions. Drapeau J.A., as he then was, addressed the critical importance of this principle in Scott v. Renton et al. (1999), 1999 CanLII 13123 (NB CA) , 215 N.B.R. (2d) 263, [1999] N.B.J. No. 306 (C.A.) (QL): It is important that a trial judge leave no doubt in the minds of the litigants and any reviewing court as to the facts found by him or her. See this Court's comment in Bluenose Fisheries Limited. v.

Tabusintac Fish Market Ltd . (1987), 1987 CanLII 7270 (NB CA) , 77 N.B.R. (2d) 285 , at p. 289 . The disclosure of the basis for the court's decision is an important part of the judicial function.

Surely the parties are entitled to have a decision based upon the judge's consideration of the evidence and findings based on that evidence; a reasoned judgment is not only desirable, it is essential if the parties are to be satisfied that the result is other than arbitrary, and if a reviewing court is to be given the means of exercising its function. [para. 36] For a listing of recent considerations of the principle, see Robertson J.A.’s decision in 835637 Alberta Ltd. v. Moonraker Realty Inc. , 2010 NBCA 72 , [2010] N.B.J.

No. 305 (QL), at paragraph 2 . [ 11 ] The Supreme Court of Canada provided a detailed analysis of the obligation placed on trial judges to provide sufficient reasons in R. v. R.E.M. , 2008 SCC 51 , [2008] 3 S.C.R. 3. The Court set out the rationale behind the obligation, explaining that reasons tell the parties why the decision was made, provide accountability of the judicial decision, permit effective appellate review, help ensure fair and accurate decision making, and provide a means of developing the law uniformly.

The Court also confirmed “a functional context-specific approach to the adequacy of reasons in a criminal case,” making it clear that “reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review”. (para. 15) [ 12 ] The approach to be used in determining a ground of appeal that raises sufficiency of reasons as the basis for appellate intervention was explained in R.E.M. : It follows that courts of appeal considering the sufficiency of reasons should read them as a whole, in the context of the evidence, the arguments and the trial, with an appreciation of the purposes or functions for which they are delivered (see Sheppard , at paras. 46 and 50; R. v.

Morrissey (1995), 1995 CanLII 3498 (ON CA) , 22 O.R. (3d) 514 (C.A.) , at p. 524) . These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard . But the description in Morrissey of the object of a trial judge's reasons is apt.

Doherty J.A. in Morrissey , at p. 525, puts it this way: "In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision" (emphasis added). What is required is a logical connection between the "what" - the verdict - and the "why" - the basis for the verdict.

The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded. [paras. 16-17] […] The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial.

If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue.

If the answers to these questions are affirmative, the reasons are not deficient, notwithstanding lack of detail and notwithstanding the fact that they are less than ideal. The trial judge should not be found to have erred in law for failing to describe every consideration leading to a finding of credibility, or to the conclusion of guilt or innocence. Nor should error of law be found because the trial judge has failed to reconcile every frailty in the evidence or allude to every relevant principle of law. Reasonable inferences need not be spelled out.

For example if, in a case that turns on credibility, a trial judge explains that he or she has rejected the accused's evidence, but fails to state that he or she has a reasonable doubt, this does not constitute an error of law; in such a case the conviction itself raises an inference that the accused's evidence failed to raise a reasonable doubt. Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons. As was established in Harper v.

The Queen , 1982 CanLII 11 (SCC) , [1982] 1 S.C.R. 2, at p. 14, "[a]n appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. ...

Where the record, including the reasons for judgment, discloses a lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede." Appellate courts must ask themselves the critical question set out in Sheppard : do the trial judge's reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?

To conduct meaningful appellate review, the court must be able to discern the foundation of the conviction. Essential findings of credibility must have been made, and critical issues of law must have been resolved.

If the appellate court concludes that the trial judge on the record as a whole did not deal with the substance of the critical issues on the case (as was the case in Sheppard and Dinardo ), then, and then only, is it entitled to conclude that the deficiency of the reasons constitute error in law. [paras. 55-57] [Emphasis in original.] [ 13 ] The appellant maintains that the test set out in Sheppard has not been met in the present case.

While acknowledging the trial judge did not fail to provide any reasons, he argues a reading of the decision discloses “no logical path” followed by the judge to “get from point A to point B”.

With respect, I cannot agree. [ 14 ] As an appellate court, we are directed to ask ourselves the “critical question” set out above: “do the trial judge's reasons, considered in the context of the evidentiary record, the live issues as they emerged at trial and the submissions of counsel, deprive the appellant of the right to meaningful appellate review?” In my opinion, the trial judge competently discharged his responsibilities in his reasons for decision.

He sets out in detail the evidentiary foundation of the case, makes the necessary findings of credibility, carefully outlines the live issues that were before him, explains the appropriate legal tests to be applied, and rules accordingly. The reasons provided are thorough, thoughtful, and robust. I am satisfied the principles enunciated by the Supreme Court in R.E.M. and Sheppard are more than met by the trial judge in this case, and that this ground of appeal should be dismissed. B. Defences of Provocation and Intoxication [ 15 ] The trial judge set out the defences advanced by the appellant as follows: Mr.

Sheehan submits that the Crown has not proven the essential element of intent because he was provoked and/or he was intoxicated or under the influence of drugs to the extent that he was unable to form the requisite intent. [para. 40] [ 16 ] In his decision, the trial judge proceeded to consider provocation first, and then intoxication. The relevant

section of the Criminal Code , R.S.C. 1985 c-46 with respect to provocation reads:

Murder reduced to manslaughter 232.

(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. What is provocation

(2) A wrongful act or insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this

section if the accused acted on it on the sudden and before there was time for his passion to cool. Questions of fact

(3) For the purposes of this section, the questions (

a) whether a particular wrongful act or insult amounted to provocation, and (

b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being. Death during illegal arrest (4) …N/A Meurtre réduit à un homicide involontaire coupable 232.

(1) Un homicide coupable qui autrement serait un meurtre peut être réduit à un homicide involontaire coupable si la personne qui l’a commis a ainsi agi dans un accès de colère causé par une provocation soudaine. Ce qu’est la provocation

(2) Une action injuste ou une insulte de telle nature qu’elle suffise à priver une personne ordinaire du pouvoir de se maîtriser, est une provocation pour l’application du présent article, si l’accusé a agi sous l’impulsion du moment et avant d’avoir eu le temps de reprendre son sang-froid. Questions de fait

(3) Pour l’application du présent article, les questions de savoir :

a) si une action injuste ou une insulte déterminée équivalait à une provocation;

b) si l’accusé a été privé du pouvoir de se maîtriser par la provocation qu’il allègue avoir reçue, sont des questions de fait, mais nul n’est censé avoir provoqué un autre individu en faisant quelque chose qu’il avait un droit légal de faire, ou en faisant une chose que l’accusé l’a incité à faire afin de fournir à l’accusé une excuse pour causer la mort ou des lésions corporelles à un être humain. Mort au cours d’une arrestation illégale (4) […] S.O. [ 17 ] The trial judge framed the test and applied the jurisprudence as follows:

Because of this section, the Crown must prove beyond a reasonable doubt that Mr. Sheehan was not acting under provocation when he committed culpable homicide on William Dean. If they cannot, then they will have failed to establish that Mr. Sheehan had the necessary intent to support a conviction of second-degree murder and he would be convicted on the reduced charge of manslaughter. In the case of R. v. Thibert , 1996 CanLII 249 (S.C.C.) Cory J. stated at para. 4: The

section specifies that there is both an objective and a subjective element to the defence. Both must be satisfied if the defence is to be invoked. First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool. [paras. 42-43] [ 18 ] The appellant maintains the trial judge failed to apply the test of “a reasonable person going through the same things Mr.

Sheehan was going through” at the time of the attack. He further maintains that the “ordinary person” employed by the trial judge in his analysis “has to have all the characteristics of Mr. Sheehan”. With respect, I cannot accept either assertion. The law requires that the trier of fact, be it a judge sitting alone or a properly instructed jury, apply two separate tests, the first objective, the second subjective.

The approach advanced by the appellant seems to urge upon us a single, subjective test, and a highly subjective one at that: a “reasonable person” having “all the characteristics” of the appellant. [ 19 ] To illustrate the proper steps to be followed in the decision making process when considering the defence of provocation, I turn to the Ontario Specimen Jury Instructions (Criminal) , “Final 75 – Provocation” (Toronto: Carswell, 2005) adeptly crafted by Watt, J.A. of the Court of Appeal for Ontario, which I accept sets out the state of the law on the issue of provocation.

He explains, in clear and logical terms, the two tests: 4. Everything a deceased person says or does to an accused does not amount to provocation and reduce what otherwise would be murder to manslaughter. We have two separate tests or standards for you to apply. The first is the “ordinary person” test. The second is the “accused person” test. 5. The purpose of the ordinary person test is to set a standard that everyone is expected to observe. The standard reflects the degree of self-control and restraint that we expect from all members of our society.

You go on to consider the second (the accused person) test or standard only if you have a reasonable doubt about whether what (NOC) [Name of Complainant, i.e. the victim] said or did would provoke an ordinary person to lose the power of self-control. 6. The second ( accused person ) test recognizes that it is appropriate to consider the individual characteristics and reactions of the person charged in cases where what the deceased said or did would provoke an ordinary person to lose the power of self-control.

This test, which leaves it to you to decide whether (NOA) [Name Of Accused] murdered (NOC) while actually acting under sudden provocation, requires you to consider (NOA) ’s individual characteristics and personal reactions. 7. These two tests, (the ordinary person test and the accused person test), may be broken down into a series of questions for you to consider carefully and answer. 8. Was there a wrongful act or insult? A wrongful act is

an act that is contrary to law in the circumstances in which it occurred, or conduct that is wrong according to the ordinary moral standards of reasonable members of society. An insult is injuriously contemptuous speech or behaviour; a scornful utterance; an action intended to insult another person’s self-respect; an affront or indignity. […]

If you are satisfied beyond a reasonable doubt that there was no wrongful act or insult, you do not go on to consider any other questions about provocation. Your deliberations on the issue of provocation would be over. If you find or have a reasonable doubt about whether there was a wrongful act or insult, then you must go on to the next question. 9. Was the wrongful act or insult sufficient to deprive an ordinary person of the power of self-control? This question concerns the ordinary person’s reaction to the wrongful act or insult.

In answering this question, you do not consider any factors or features that are peculiar or unique to (NOA) , for example, temperament, attitude, or lack of sobriety. In this case, an ordinary person would be someone of the same age and sex as (NOA), who shares with him/her those other characteristics that would give the wrongful act or insult a special significance in the circumstances. The ordinary person would also be one who has experienced the same series of acts or insults as (NOA) and shares the past history and relationship between (NOA) and (NOC) .

An ordinary person is not exceptionally excitable or disposed to fight and has and exercises those powers of self-control that all of us expect our fellow citizens to exercise in our society today. The question for you to answer concerning the ordinary person is whether that ordinary person, with the characteristics I have described, would lose his/her self-control because of (NOC) ’s wrongful act or insult. The question is not whether the ordinary person would have lost his/her self-control and end up doing exactly what (NOA) did in this case.

In other words, what is important is the loss of self-control, not the precise form it took. […] If you are satisfied beyond a reasonable doubt that (NOC) ’s wrongful act was not sufficient to deprive an ordinary person of the power of self-control, you do not go on to consider any other questions about provocation. Your deliberations on the issue of provocation would be over.

If you find or have a reasonable doubt about whether (NOC) ’s wrongful act or insult was sufficient to deprive an ordinary person of the power of self-control, you must go on to the next question. [paras. 4-9] [Emphasis added.] [ 20 ] The objective test to be applied requires the trier of fact to view the situation through the eyes of an ordinary or reasonable person. It has nothing to do with conjuring up a so-called ordinary or reasonable person who shares the same characteristics as the appellant.

As specifically pointed out by Watt, J.A., the trier of fact is not to consider the accused’s “lack of sobriety” when considering the reaction of an ordinary person. In the fact situation before us, this means that the trial judge was not to employ as a reasonable person someone who had consumed the same amount of alcohol as the appellant. [ 21 ] The trial judge applied the proper test in this case.

In considering the evidence before him, he found that the appellant failed to meet the appropriate standard: This, however, does not, in my opinion, meet the test of an insult that would deprive an ordinary person of the power of self-control. What Mr. Dean is alleged to have said was certainly crude but in my view an ordinary person would find a better way to deal with such a situation and would not be likely to lose the power of self control if confronted with such a remark. [para. 44] [ 22 ] The trial judge made no reversible error. Again, he applied the proper test, and the conclusions drawn are reasonable

given the evidentiary foundation. The second ground of appeal is premised on the notion that intoxication and provocation must be considered jointly, and that the reasonable person must share the characteristics of the appellant. As outlined above, this approach is not supported in law. I would dismiss this ground. It is therefore not necessary to review the manner in which the trial judge considered and ruled upon the defence of intoxication, but I will state parenthetically that I find no reversible error in this regard either. V.

Disposition [ 23 ] Neither of the two issues advanced call for appellate intervention. I would dismiss the appeal. ____________________________ BRADLEY V. GREEN, J.A. WE CONCUR: _______________________________ J. C. MARC RICHARD, J.A. _______________________________ B. RICHARD BELL, J.A.