Docket: 1691 -CR Russell Clifford Paddy Appellant - v. -, 2011 SKCA 12

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 12 Date: 20110201 Between: Docket: 1691 -CR Russell Clifford Paddy Appellant - and - Her Majesty the Queen Respondent Coram: Klebuc C. J.S., Smith and Caldwell JJ.A. Counsel: Donald L. MacKinnon for the Appellant W. Dean Sinclair for the Crown

Appeal: From: QBJ 33 of 2008, J.C. of Battleford Heard: September 10, 2010 Disposition: Appeal dismissed Written Reasons: February 1, 2011 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Caldwell Smith J.A. Introduction [ 1 ] The appellant Russell Paddy was charged with first degree murder in relation to the death of Anthony Wapass. He was convicted by a jury of the included offence of second degree murder contrary to s. 235(1) of the Criminal Code . He was sentenced to life imprisonment with no possibility of parole for 14 years.

He appeals both the conviction and the sentence. [ 2 ] In relation to the appeal from conviction, the appellant argues that the jury verdict was unreasonable and cannot be supported by the evidence. Further, he says that the trial judge erred in failing to adequately instruct the jury of the dangers of accepting the evidence of a co-accused, one Jamie Paddy, who had also been charged with first degree murder in relation to the death of Mr. Wapass, but had pled guilty to manslaughter prior to the appellant’s trial.

He also argues that the trial judge erred in failing to adequately warn the jury about the frailties in the testimony of two other lay witnesses. The imposition of a 14 year parole ineligibility period is said to not be in accordance with sentences imposed on similar offenders for similar offences.

Summary of the Evidence at Trial Testimony of the Victim’s Friends and Relatives [ 3 ] Several of the friends and relatives of Anthony Wapass testified at the trial. The gist of their evidence was that Mr. Wapass was a friendly, nice person, 47 years old, who occasionally drank alcohol to excess. These witnesses last saw Mr. Wapass alive on Thursday, June 14, 2007. It was “welfare day” (i.e., the day that social assistance payments were received), and Mr. Wapass was drinking. He was last seen around 11:00 in the evening walking toward his brother’s home on the Thunderchild First Nation Reserve.

He never arrived at his brother’s house and was reported as missing to the police the next day. The family continued to look for him and his body was found by volunteer searchers a week later, on June 21. The victim’s body was lying face down in a low lying area of swamp water in some bush across a gravel road behind the Roman Catholic Church. His head and most of his torso were partially submerged in six to twelve inches of water. Forensic evidence [ 4 ] An autopsy on the victim’s body was conducted by Dr. Shaun Ladham. Dr. Ladham concluded that Mr.

Wapass had drowned, but noted several serious external injuries to his head and body that were a contributory cause of death. He believed it likely that Mr. Wapass had been dragged over a gravel surface while he was comatose. He described repeated blunt force injuries to the victim’s head causing serious swelling around the victim’s eyes, and lacerations on his forehead, cheek, lips and left ear, tearing the ear cartilage. Some of the lacerations were very deep.

There was a large area of bruising on the victim’s chest and left side as well as bruises on his upper arms, suggesting that he had been grabbed or pulled by the arms. Internal examination revealed 26 rib fractures and massive haemorrhaging. The victim’s sternum was fractured and his chest lining was torn. Blood vessels in his lungs were broken and his liver was damaged. Blows to his head had caused massive brain haemorrhaging and significant brain injury. Dr. Ladham was of the opinion that most of the

injuries were likely caused by kicking or stomping the victim. Many of the injuries would have impeded his ability to breathe. He believed that the victim was still alive when he was placed in the marsh because he found plant material in his airway and lungs. It was his opinion that most, if not all, of the other injuries were caused when the victim was still alive. He considered that the beating injuries were so severe that the victim would not have lived even if he had not drowned. [ 5 ] The defence called another forensic pathologist, Dr. Peter Markesteyn, who opined that Dr.

Ladham had not done enough testing to be certain that the victim had drowned. He believed that death could have been caused by the blunt force injuries and that the victim might have been dead before he was put in the water. He also thought that many of the injuries might have been caused immediately before death or as the victim was in the process of dying, because of lack of extensive bleeding from those injuries. The testimony of the appellant, Russell Paddy [ 6 ] Russell Paddy testified at trial.

His story was that on the night of June 14, 2007, he, his nephew, Jamie Paddy, and Evan Paddy, a cousin and co-worker of the appellant, were drinking together at the home of Kelly Paddy, Jamie Paddy’s mother, on the Thunderchild Reserve. During the evening there was discussion about Jamie Paddy wanting to train for a “Tough Man” competition, involving wrestling in North Battleford. Sometime around midnight Russell and Jamie Paddy left together to go to a party. They were walking toward the old town site on the reserve when they came across Anthony Wapass, on the road next to the Catholic Church. Mr.

Wapass was very intoxicated, with a blood alcohol level approaching 300 mg. per cent, as was later shown on the autopsy. [ 7 ] According to the appellant, Jamie Paddy said to him that he was going to hit Mr. Wapass. The appellant told him to leave Mr. Wapass alone. Jamie then told the appellant to relax, that he was just going to ask Mr. Wapass for a smoke. Jamie ran over to Mr. Wapass and then signalled for the appellant to come over. The appellant then asked Mr. Wapass for a cigarette, but Wapass told them he did not have any. The appellant then offered Mr.

Wapass a beer and was just reaching into his jacket to retrieve one when Jamie Paddy hit Mr. Wapass, knocking him to the ground. Jamie and Russell Paddy then dragged Mr. Wapass off the road, to the side of the road. Jamie grabbed the victim’s arms and dragged him further into the ditch, and then started kicking him and jumping and stomping on him. The appellant said he was worried that Jamie was going to get them both into trouble, so he walked forward and grabbed Jamie’s arm, trying to pull him away. Jamie pushed the appellant away and continued the assault on the head, chest and stomach area of the victim.

The appellant testified that as he was trying to pull Jamie off the victim, Jamie said that he always wondered how it would feel to kill someone. The appellant started walking away. Jamie then urinated on the victim, and then joined the appellant and they continued walking towards the old town site, leaving the victim lying on his side in a ditch beside the road. [ 8 ] The appellant testified that he and Jamie Paddy then went to a party in the old town site. They continued to drink. Sometime later in the evening, he left the party with Jamie.

They then ran into three other individuals: Joe Thunderchild, Fatima Wapass and Misty Awasis. This group all climbed into the Thunderchild car and Thunderchild offered them some marijuana. The appellant testified that he only pretended to smoke the joint, but the others accepted the offer. Jamie was sitting in the front passenger seat, the appellant directly behind the driver and the two women in the back seat with the appellant. The appellant said there was some joking and laughing in the car and then Jaime began to talk about having knocked someone out.

The appellant’s evidence is that he was not paying much attention to this and was only vaguely agreeing when Jamie asked him to confirm that he had knocked the man out with one punch. As they approached the Roman Catholic Church, Jamie told Thunderchild to stop the car and shine the lights into the ditch. Jamie then got out, followed by the two women, saying he wanted to check on the person he was boasting about having knocked out with one punch. The appellant got out of the car and stood beside it. He observed Jamie kneel beside the victim and put his fist on to his face in a pose.

The others then returned to the car. [ 9 ] Thunderchild drove about 100 yards and then let the two men out. The appellant testified that they went to the home of the appellant’s sister, and the appellant then went to bed with his common law wife, who was present. He testified that Jamie was still up watching videos when he went to bed. The next thing he remembers is getting up to go to work the next morning. He had to be at work by 9:00 a.m. Jamie was asleep on the couch. On the way to work, he looked at the place where they had left the victim beside the road, but he was no longer there.

He assumed the victim had gone home or someone had picked him up. [ 10 ] The appellant went to work, shingling a roof, on the morning of June 15. According to his testimony, he quit at 12:15 because his boss said he only wanted them to work three hours that day. His boss returned to pay him for his work around 5:30 p.m. The appellant gave half his pay packet to his common law wife and then he and his spouse and children got a ride with Katherine Paddy into Turtleford, where his mother lived.

When his spouse and children returned home to the Thunderchild First Nations, the appellant decided to stay at his mother’s house overnight. He discussed with her finding another job, because he was not satisfied with his current employment. Again, he hired Katherine Paddy to drive him to Lloydminster. She arrived with his spouse and child in the car, as well as her own child. He then left the group in Lloydminster and hitchhiked to Edmonton. [ 11 ] On Saturday, June 23, he telephoned his sister and learned that the RCMP wanted to talk to him. He returned to Lloydminster and contacted the RCMP.

He was then arrested and charged with the murder of Anthony Wapass.

Testimony of Jamie Paddy [ 12 ] Jamie Paddy claimed a vague memory of many of the events of June 14, saying that he had “blocked most of it out.” (Transcript p. 303) However, while he confirmed the appellant’s account of the early part of the evening, he gave a very different account of the events after he and the appellant met up with Anthony Wapass. According to Jamie, when they saw Mr. Wapass on the road, the appellant told him to punch Mr. Wapass. Jamie refused. They then walked up to Mr. Wapass and the appellant suddenly elbowed Mr. Wapass in the face, knocking him unconscious.

Although Jamie first said there was only one blow at this time, after being reminded of his earlier statement to the police, he added that the appellant also at this time kicked Mr. Wapass in the torso a few times and punched him a couple of times more before Jamie pulled the victim off the road into the ditch and rolled him on his side so he would not choke. Jamie denied that he had punched or kicked Mr.

Wapass that night, “not to the knowledge that I can remember…”. (Transcript p. 373) [ 13 ] Jamie agreed that they then went on to a party and, when leaving the party, ran into Joe Thunderchild, Fatima Wapass and Misty Awasis. Jamie admitted that he told this group that he had beat up Anthony Wapass, because he wanted to impress them, as he was planning to enter the Tough Man competition. Later in his testimony he said that it was Russell Paddy who told the group that he, Jamie, had punched out a person because Russell was training Jamie for a Tough Man competition, and Jamie simply went along with the story.

Jamie agreed that he and some of the others got out of the car and went up to look at the victim lying beside the road. The victim was alive and snoring at that time. [ 14 ] However, Jamie’s story diverges more significantly after they returned home for the night. According to Jamie, he went to sleep on the couch. A short while later Russell Paddy came and woke him up, saying “let’s go for a walk.” (Transcript p. 306) They returned to the victim and he was kicked and punched some more. Jamie does not recall whether he was doing any of the kicking and punching at this time, but does recall that Russell Paddy was.

Russell Paddy then instructed Jamie Paddy to help him drag Mr. Wapass. Jamie began to suspect that Russell was going to kill the victim, and said he could not do it. He asked if they could call an ambulance or the police. The appellant said no. Then, according to Jamie, the appellant said “he went so far so might as well go all the way.” (Transcript p. 328) The victim was dragged to the marsh and placed face-down in the water. [ 15 ] After the victim’s body was found, Jamie was arrested and charged with first degree murder.

He eventually implicated his uncle, the appellant, in the matter and Jamie pled guilty to manslaughter. The testimony of Fatima Wapass, Misty Awasis and Joe Thunderchild [ 16 ] Fatima Wapass, Misty Awasis and Joe Thunderchild all testified about meeting up with Russell and Jamie Paddy late the night of June 14-15 and being shown the unconscious Anthony Wapass lying in a ditch. There is some variation in their accounts of the conversation that took place in the car. [ 17 ] Misty Awasis was 19. She testified that she was sober at the time.

She was with Fatima Wapass outside the party house when the two men approached them, each carrying a can of beer. Ms Awasis says that Jamie Paddy started to tell the women about how they had met a drunk man and had started to fight him. Russell was standing listening to the story. The story was interrupted when Joe Thunderchild drove up. Joe Thunderchild asked the group if they wanted to go for a ride and smoke a joint. They all got in the car. Jamie Paddy was in the front passenger seat. The two women and Russell Paddy were in the back, Misty in the middle and Russell on her left.

Jamie Paddy then again started to tell about a man he and the appellant had met on the road. He said they realized the man was drunk and, although they had no reason to do so, they went up and started to beat him. She testified, “And I remember Jamie specifically saying that they literally just walked up and punched him in the face.” (Transcript p. 154) Later she indicated that Jamie had used the word “I”, rather than “we” when telling the story. She also said, however, that Jamie told the story “like they took turns, kind of thing. Like, they both had a

part in what happened.” (Transcript p. 158) Russell Paddy was, according to Misty, agreeing with Jamie’s account and both seemed to be bragging about what had happened. [ 18 ] Misty Awasis believed that it was Fatima Wapass who asked to go see the man who had been beaten up, and they drove to the new town site near the Catholic Church. She testified that she and Fatima, Jamie and the appellant, all got out of the vehicle and that Fatima, the appellant and Jamie were the first to go toward the victim. She followed right behind them. Jamie pulled Mr.

Wapass over and she saw his face “all red and swollen.” He was moaning and groaning, kind of telling them to go away, to get away from him. She was frightened and immediately returned to the car. Fatima Wapass seemed very upset, and asked whether they could take the victim home. The others then tried to rouse the victim, asking him where he lived. He just kept pushing them away, telling them to leave him alone. The group finally decided to leave.

Although Jamie and Russell Paddy wanted to party some more, the women insisted on going home. [ 19 ] When they reached home, Misty Awasis and Fatima Wapass decided to call the police. They telephoned and left a message that the police should go and check on a man passed out in the ditch, describing the location. Two days later, they heard from a friend that her uncle was missing and told her what they had seen.

[20] We know from the testimony of Cst. J.P. Martin that a call was received at the R.C.M.P. dispatch centre around 3:00 a.m. on June15 from an anonymous caller who reported an individual passed out in the vicinity of the Catholic Church on the Thunderchild Reserve.Cst. Martin drove to Thunderchild, arriving there around 3:23 a.m., and searched the area around the church, but failed to find Mr.Wapass. [21] Fatima Wapass was also sober that night. Her account is similar to that of Misty Awasis.

She said that Jamie had talked abouthaving knocked out a man with one blow, and the appellant had agreed with Jamie as he told the story. She agreed on cross-examinationthat the appellant did not say that he was involved in the beating and was not boasting about the matter, as Jamie was. She said that itwas Jamie’s idea to go back to the scene to check on the victim’s condition. She described the victim as having puffy lips, and agreedthat he was moaning and groaning and trying to say something. [22] Joe Thunderchild’s account of this encounter differed significantly from that of the other witnesses.

He testified that it had occurredon a Sunday, at mid-day. He alone of the witnesses testified that the appellant sat in the front passenger seat and that Jamie Paddy satbehind the driver in the back. He testified that when they stopped near the church, only the appellant got out and had a look at someoneand then came back and said, “he’s still sleeping, he’s still passed out.” (Transcript p. 790) Thunderchild then testified that it was theappellant who said, “I beat him up”, and that he was surprised, because he did not think of the appellant as a fighter.

He assumed that theappellant wanted to check up on the person he had had a fight with to be sure he was all right. Testimony of Kathy Paddy [23] Ms Paddy is a niece of the appellant. She testified that on Friday, June 15, 2007, she had driven the appellant from the reserve to his mother’s (her grandmother’

s) house in Turtleford. In addition, on the next day, the 16th of June 2007, she had driven the appellant fromhis mother’s house in Turtleford to Lloydminster. The appellant said he was going to Edmonton to look for a job. On cross-examinationshe agreed that it was not unusual for the appellant to go to Edmonton for work. [24] Kathy Paddy testified that on the drive in to Turtleford from the reserve the appellant said he had gotten into a fight with a big guy,and that he may have said that Jamie Paddy was involved.

Testimony of Mathew Kormish [25] Finally of importance on this appeal is the testimony of Mathew Kormish. Mr. Kormish was also a resident on the ThunderchildReserve. He was in a common law relationship with Kathy Paddy, a niece of the appellant and, although he did not know the appellantwell, he had seen him a few times before at the appellant’s mother’s house. He testified that he saw Russell Paddy out and about between4:00 a.m. and 5:00 a.m. on Friday morning, June 15. Mr. Kormish had been hunting and was skinning a deer outside his mother-in-law’s home, when he saw the appellant walking by with two other men.

Although he knew Jamie Paddy, he did not recognize JamiePaddy as one of the men. He could not describe the clothes that Russell Paddy was wearing because, he testified, he was too far from theroad. He testified that he was about a two minute walk from where he saw the appellant and also estimated the distance to be about 50yards.

He conceded on cross-examination that he might be mistaken in his identification of the appellant, indicating that he had only methim approximately three times before and that he was not 100 percent certain that the person on the road was Russell Paddy. [26] The location of the house where Mr. Kormish was skinning the deer was about a 15 minute walk from the Catholic Church and thelocation where Mr. Wapass’ body was found. Issues on the appeal of from conviction [27] The key issues on this appeal arise from the testimony of Jamie Paddy.

The appellant says, first, that the trial judge failed to give anadequate warning to the jury about accepting the evidence of Jamie Paddy, who had pled guilty to manslaughter in relation to the deathof Anthony Wapass, and was therefore essentially a co-accused, as required by the decision of the Supreme Court of Canada in R. v.Vetrovec, (SCC), [1982] 1 S.C.R. 811. In this regard, the trial judge is also said to have erred in indicating to the jurythat they might consider the testimony of Joe Thunderchild or the testimony of Mathew Kormish as corroborative of Jamie Paddy’s

evidence. The appellant also points to a number of other frailties in relation to the testimony of Jamie Paddy and contends that the trial judge failed to give an adequate warning to the jury in relation to those matters. [ 28 ] Alternatively, the appellant argues that even if the trial judge did not err in his warning, the jury could not reasonably have returned a verdict of second degree murder without relying on the evidence of Jamie Paddy and that, in light of the many frailties in that evidence, it was unreasonable for them to have accepted it.

The jury verdict is said, for that reason, to be unreasonable. [ 29 ] The position of the Crown is that the trial judge in his charge to the jury properly warned of the dangers of relying on Jamie Paddy’s testimony. The respondent also argues that there was sufficient evidence to support the verdict of the jury without relying on Jamie Paddy’s testimony and, further, that, in any case, it was open to the jury to accept all or part of Jamie Paddy’s evidence in coming to their verdict.

The verdict of the jury therefore cannot be said to be unreasonable. [ 30 ] In arguing that there was sufficient evidence to support the jury’s verdict without relying on the evidence of Jamie Paddy, the Crown relies on the testimony of Misty Awasis, Fatima Wapass, Joe Thunderchild, Kathy Paddy and Mathew Kormish who, it is argued, all provided direct and circumstantial evidence implicating the appellant in the crime.

The Crown points to the evidence that despite the appellant’s testimony that he was worried that Jamie was going to get him into trouble, he did not disassociate himself from Jamie or the beating for the rest of the evening. Nor did he appear to be troubled about what had happened to Mr. Wapass. In addition, the appellant appears to have abruptly quit his job and left the reserve the day after the beating. Finally, the testimony of Mr.

Kormish puts the appellant out and about in the reserve at a time he claims to have been in bed and sleeping, roughly corresponding with the time that Jamie Paddy says a final beating was inflicted on Mr. Wapass and his body was dragged into the slough. [ 31 ] The appellant’s position is that (apart from the evidence of Mr. Kormish) this evidence at best implicates the appellant in the initial beating of the victim, but is not sufficient to link him with his death. The Crown argues that it was open to the jury to find that Mr.

Wapass died of injuries inflicted in the initial beating. [ 32 ] It is my conclusion, as I will set out more fully below, that, although there were very significant frailties in the incriminating evidence of Jamie Paddy, Joe Thunderchild and Mathew Kormish, the trial judge adequately warned the jury of these matters and it was open to the jury to rely on this evidence, or part of it, to come to their verdict. Accordingly, the appeal from conviction must be denied.

Analysis [ 33 ] The analysis must begin with a more careful look at the testimony of Jamie Paddy, for there are, indeed, significant concerns, in relation to this witness. [ 34 ] First, there is no doubt that Jamie Paddy must be considered an accomplice in relation to the beating and death of Mr. Wapass, and that a strong Vetrovec warning was required. He had been charged with first degree murder.

He testified that when he was first interviewed by the police he was told, a number of times, that all of the evidence led to him. (Transcript pp. 413, l. 5 – 414, l. 9) He had a strong motive to lay the principal blame on the appellant and to play down his own role in the death of Mr. Wapass. [ 35 ] Second, on June 21, 2008, while he was in custody, after implicating the appellant, Jamie wrote the following letter, which he arranged to have delivered to the appellant: Rusty, I don’t even know where to begin. I’m sorry for what I said. I was forced into it. But my mental state of mind isn’t all there.

My mind has been playing tricks on me for a long time. And I’m easily pressured into saying stuff, even if it’s not true. So what ever I said is gonna get throwen [ sic ] out at the pre-trial. I don’t blame you if you hate me. I deserve it. I cry every day about turning on blood. I spent the last 6 months on suicide watch. I tried several times to commit suicide. Even in the med cells. That’s how hurt I am for doing what I did. So please forgive me. I pray for you every day. I don’t even remember that night. I popped some adivans [ sic ]. All the shit I said was put in my head from the cops.

I have scitsophrenia [ sic ]. I hear, and imagine shit that isn’t there, or wasn’t said. I love you uncle. Write back to aunty Claudine, get her to give my mom the letter to mail me and I’ll get my mom to give Claudine the letter to mail to you. It’s the only way to comunicate [ sic ]. Later. Jesse James. (Exhibit D-1 at trial)

[ 36 ] This letter clearly calls into question whether what Jamie Paddy told the police implicating his uncle was the truth. [ 37 ] On the stand, Jamie Paddy elaborated on his mental condition, referred to in the letter. He indicated that he was currently residing at the Regional Psychiatric Centre because he has a history of suicide attempts and schizophrenia. When cross-examined about the contents of the letter, and specifically the suggestion that the whole story implicating the appellant was put in his head by the police, he testified as follows: A. That’s what I thought at the time.

That’s what schizophrenia is all about. Q. I see. So that’s what you thought at the time in June when you wrote this letter? A. Yeah. Q. So if we were to wait another six months, you might tell something completely different than what you told the court today? A. Who knows?

Anything’s possible. [Transcript p. 359] [ 38 ] He said he had paranoid and delusional schizophrenia and feared and imagined things that were not there or not said. (Transcript p. 360) When asked if it was possible that what he had described to the court in his examination-in-chief was something he had heard or seen in his head, but was not real, he replied: It could have been, but to the best of my knowledge that is in my mind, that’s what happened. [Transcript p. 361] [ 39 ] This testimony about his mental capacity, if accepted, would call into question this witness’ competence to testify. [ 40 ] In addition to these concerns, there were factors which called Jamie Paddy’s general veracity into question.

He has been convicted of offences of dishonesty, including fraud and theft. More significantly, he admitted on cross-examination that he tells a lot of lies and does not consider that “a big deal”. (Transcript pp. 394-5) On his own testimony, the story he told to Misty Awasis and Fatima Wapass was a lie. [ 41 ] However, there is reason to be satisfied that the jury was fully aware of these frailties. They had been explored at length on cross- examination of Jamie Paddy. Defence counsel further reviewed and analyzed these factors at length in his closing address to the jury.

Finally, and most importantly, the trial judge, in addition to instructing the jury generally about tools it might use in assessing the credibility of a witness, twice cautioned the jury to be careful about accepting Jamie Paddy’s testimony. Before he summarized Jamie Paddy’s evidence, he warned the jury to be cautious about his testimony, as follows: Jamie Paddy was the next witness to testify. I want to give you special caution about his testimony. You’ll recall I spoke to you earlier about the credibility of witnesses.

You should consider those things that I’ve told you before you decide whether or not to believe Jamie’s evidence. I, as well, want to warn you that you should be cautious about accepting his evidence. It’s unsafe to rely upon his evidence alone because Jamie was basing his evidence as an active participant in the killing of Anthony Wapass. He might have some motive in giving his testimony, other than the truth. In that context, I will summarize Jamie’s evidence as I have heard it.

I must emphasize that it is for you, the jury, to determine what evidence of Jamie Paddy that you find truthful and are prepared to accept and what evidence you may or may not accept. You do not have to accept any of his evidence, you do not have to accept all of his evidence, or you may choose to accept all of his evidence. [Transcript pp. 1372-3] [ 42 ] He concluded his

summary of Jamie’s testimony by telling the jury that he would return, later in his charge, with more specific comments about the care and caution the jury must exercise when considering this witness’s testimony. He then did so, in these words: Jamie Paddy testified for the Crown. I’m going to give you special instructions in regard to his evidence because there are a number of serious issues you will have to consider about Jamie Paddy when you are assessing the credibility of his evidence. These issues are as follows:

(1) He was initially charged with first degree murder in the death of Anthony Wapass and pled guilty to manslaughter.

(2) That he has a criminal record involving matters of honesty and integrity. That record is in Exhibit D-2.

(3) You have heard him testify on his philosophy on the issue of lying.

(4) He has, in this matter, given statements that are inconsistent involving the death of Anthony Wapass, particularly the letter he wrote for Russell Paddy, D-1, and his explanation under cross-examination about the letters and their contents.

(5) He testifies that he has mental health issues and has had them since he was a young person and is currently in a psychiatric facility. Testimony from a witness with these kinds of issues must be approached with the greatest care and caution because experience tells us that evidence from witnesses with these characteristics tends to be suspect and unreliable. It is dangerous to base a conviction on unconfirmed evidence of this sort. You should consider whether Jamie Paddy’s testimony is confirmed by other evidence in deciding whether the Crown has proved Russell Paddy’s guilt beyond a reasonable doubt.

You should look for independent evidence tending to show that Jamie Paddy’s testimony implicating Russell Paddy is true. By independent, I mean from a source unconnected to Jamie Paddy. You may find that there is some independent evidence that confirms or supports parts of Jamie’s testimony. It is for you to say whether it does or does not. Consider, as well, whether any independent evidence is of a material

point or deals with less important factors. It is also for you to say whether the evidence affects how much or how little of the witness’ testimony you will believe or rely on in deciding this case. I must remind you, as well, that it is Jamie Paddy’s evidence that your decision in this case revolves around. I now want to illustrate the kind of evidence from this evidence you might find confirmatory by giving you some examples. I emphasize that these are only examples.

You may not find the evidence I am about to mention helpful in confirming Jamie Paddy’s testimony, or you may find confirmation in other evidence that I do not mention. It is up to you to decide.

Two examples of confirmatory evidence would be the evidence of Matthew Kormish saying he saw Russell Paddy and two other people on the road by Claudia Wapass’ around 5:00 a.m. or the evidence of Joe Thunderchild, where he says that Russell said, “I beat him up.” [Transcript pp. 1410-12] [ 43 ] At trial, the defence made no objection to this aspect of the charge. [ 44 ] The purpose of a Vetrovec warning is to clearly alert the jury to the dangers of relying on the unsupported testimony of an unsavory witness with a motive to lie.

The warning must draw attention to the testimony requiring special caution, explain why it requires special scrutiny and caution the jury that it is dangerous to convict on unconfirmed evidence of this type. The jury must be instructed to look for evidence from an independent source tending to confirm the veracity of the witness. [ 45 ] It is my view that the careful warning given by Maher J. in this case meets these requirements and, moreover, that it is highly unlikely that the jury failed to understand the frailties of Jamie Paddy’s evidence.

He did not err in describing the Kormish and Thunderchild testimony as potentially confirmative, for Mr. Kormish, if believed, contradicted the appellant’s testimony that he was in bed asleep at the time that Jamie Paddy says he was committing a final assault on Mr. Wapass and dragging him into the slough, while Mr.

Thunderchild’s testimony goes to discredit the appellant’s claim that he did not assault the victim at all and is relevant to a possible motive for the final assault. [ 46 ] It is true, in my view, that there were inconsistencies and frailties in the evidence of both of these witnesses, and that the trial judge did not single these out for mention. Joe Thunderchild’s account of the trip to view the victim diverges considerably from the testimony of the others involved. He believed this had occurred in broad daylight, around noon.

He believed it was the appellant, rather than Jamie Paddy, who was sitting in the front passenger seat. He does not recall any of the bragging by Jamie Paddy of having knocked the victim out, although this was the evidence of all of the others, including Jamie Paddy. There is evidence that Joe Thunderchild was consuming marihuana at the time. In the case of Mathew Kormish, this witness admitted he did not have a clear view of the person he identified as the appellant and that he was not 100% certain that he was correct.

In addition, the fact that he saw two other persons with the appellant and the location of the sighting do not fit with any part of Jamie Paddy’s account and, in fact, could be said to be inconsistent with it. [ 47 ] Nonetheless, these points, as well, were fully explored on cross- examination of these witnesses and in the closing address by defence counsel the inconsistencies in the testimony of Joe Thunderchild were fully reviewed. In my view, the trial judge was not obliged to comment further on these frailties or to warn the jury about accepting this evidence.

It is not incumbent on the trial judge to give the jury specific and pointed warnings in relation to the frailties or inconsistencies in the testimony of each witness. While the evidence of Mr. Kormish did, in a sense, constitute eye-witness identification of an individual, the appellant was an individual known to Mr. Kormish, even though he was not a close acquaintance, and his testimony therefore does not suffer from the traditional frailties of such evidence.

The primary frailty of the evidence in this case related to the distance from him at which the figures appeared and this issue was fully canvassed on cross-examination. The trial judge was careful to leave to the jury the question of whether and how much of the testimony of these witnesses it accepted and whether it found that evidence to be corroborative of the testimony of Jamie Paddy.

Again, defence counsel did not object at trial to this aspect of the charge. [ 48 ] This brings us, then, to the related question of whether the verdict of the jury was unreasonable in light of the frailties of the evidence upon which it must have relied. The appellant is entitled to argue that the jury verdict was unreasonable pursuant to s. 686(1)(a) (i).

Whether the verdict is unreasonable is a question of law and the test is whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered. [ 49 ] Although the Crown argued that the jury need not have accepted the evidence given by Jamie Paddy in order to convict the appellant, I cannot see how the appellant could be convicted of causing the death of Mr. Wapass in the absence of evidence linking him with the assault that occurred shortly before the victim’s death, and dragging him to lie face down in water.

This could only have occurred sometime after the appellant and Jamie Paddy led Misty Awasis, Fatima Wapass and Joe Thunderchild to see the victim lying in a ditch near the church. Relying only on the testimony of the appellant himself, Misty Awasis and Fatima Wapass it is only reasonably possible to conclude that the appellant was guilty, at most, of an earlier assault on the victim. To assume, as the Crown argues, that injuries inflicted at that time contributed to the victim’s death would be highly speculative, in light of the forensic evidence.

Similarly, the testimony of Joe Thunderchild and Kathy Paddy of statements made by the appellant that he had been in a fight with the victim go no further than this.

[ 50 ] Nonetheless, I am unable to conclude that the jury could not, acting judicially, have reasonably accepted Jamie Paddy’s account of the appellant’s involvement in the subsequent assault and moving the victim to the slough, despite the caution with which they were obliged to assess this witness’s testimony. The jury had the advantage of hearing and assessing both Jamie Paddy and the appellant. It was open to them to accept part of Jamie Paddy’s evidence even if they doubted other parts and to be satisfied beyond a reasonable doubt that the appellant caused the death of Mr. Wapass.

The circumstances in this case are in this respect similar to those in R. v. MacDonald , 2008 ONCA 778 , 242 O.A.C. 244. In that case, an unsavory witness gave testimony that was described as being “fraught with lies, contradictions and inconsistencies with other evidence led by the Crown.” (at para. 4) Nonetheless, the Court rejected the argument that the verdict in reliance on this testimony was unreasonable, stating: [5] In my view, there is no merit to this submission. There is no question that Gurnsey’s evidence was problematic from a variety of perspectives.

Those problems were very much the focus of this trial. Gurnsey was subjected to vigorous cross-examination and her lies and inconsistencies were probed in great detail by both defence counsel and in their closing addresses. The trial judge reviewed those positions in his instructions and the jury was given a strong Vetrovec warning. [6] I am not persuaded there is any principled basis to distinguish this case from countless others that turn on the credibility and reliability of a disreputable witness.

It was up to the twelve ordinary men and women on the jury who sat through the trial to assess her evidence and to decide whether the Crown had proven its case beyond a reasonable doubt. [ 51 ] I would dismiss the appeal from the conviction for second degree murder. The Sentence Appeal [ 52 ] A sentence of life imprisonment is mandatory for a conviction for second degree murder. The sentence appeal relates only to the imposition of a 14 year period of ineligibility for parole. Two grounds for appeal are raised.

The first is that the trial judge failed to ask the appellant, prior to sentencing, and after having heard from counsel, whether he had anything to say, as is required by s. 726 of the Criminal Code . The second ground is that the trial judge failed to apply the principle of parity in imposing the sentence. [ 53 ] While it is an error not to ask a convicted person if he or she has anything to say prior to imposing a sentence, where an offender is represented by counsel at the sentencing hearing, this omission does not on its own invalidate the sentence imposed. [ 54 ]

Section 745.4 of the Criminal Code confers a discretion on a trial judge to order that an offender convicted of second degree murder be ineligible for parole for the first 10 to 25 years of the mandatory life sentence. The judge is to have regard to the character of the offender, the nature of the offence and the circumstances surrounding its commission, and to the recommendation, if any, of the jury in this regard. The judge must also consider the general purposes of sentencing set out in s. 718. In the instant case, the jury made no recommendation in regard to sentence.

The appellant had a record of 20 previous criminal convictions. Of these, five were for violent conduct including assault causing bodily harm, aggravated assault, assault with a weapon and common assault. The trial judge took into account a number of aggravating features of the offence. The victim was vulnerable and the attack on him was totally unprovoked.

He was brutally beaten on two separate occasions and then left to die with his face down in water. [ 55 ] While the cases cited to the Court by counsel in relation to the issue of parity in sentencing are all potentially distinguishable in relation to the facts and circumstances of the offence, the sentencing judge in this case relied on the majority decision in R. v. Lenius , 2007 SKCA 65 , 221 C.C.C. (3d) 368, as support for his decision.

In that case, the Court referred to cases involving prolonged and brutal violence, upholding parole ineligibility orders of 14 years or more even for offenders who did not have a previous criminal record. I am unable to conclude that the sentencing judge erred in principle or that this order was demonstrably unreasonable. [ 56 ] I would dismiss the appeal from sentence. DATED at the City of Regina, in the Province of Saskatchewan, this 1 st day of February, A.D. 2011. ___ “Smith J.A.” ____________________ SMITH J.A.

I concur. “Klebuc C.J.S.” KLEBUC C.J.S. I concur. “Caldwell J.A.” CALDWELL J.A.