R. v. Monro, 2023 MBKB 96

Date: 20230628 Docket: CR 22-01-39034 (Winnipeg Centre) Indexed as: R. v. Monro Cited as: 2023 MBKB 96 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: ) HIS MAJESTY THE KING ) Ari Millo ) for the Crown - and - ) ) JUSTIN PATRICK MONRO, ) Andrew McKelvey-Gunson ) Myles Davis accused. ) for the accused ) ) Judgment Delivered : ) June 28, 2023 TOEWS J. Introduction [ 1 ] The accused, Justin Patrick Monro, stands charged with the second degree murder of Derek Scott Sutton (Mr. Sutton). After an initial election of judge and jury, Mr.

Monro re-elected to have this matter proceed to trial by way of judge alone. [ 2 ] There is no dispute that the accused killed Mr. Sutton. The evidence is conclusive in that respect. However, the accused takes the position that he should be acquitted of the killing as it was

an act of self-defence.

In the alternative, the accused argues that the defence of provocation is applicable here, which, if applicable, would reduce the culpability of the accused from second degree murder to manslaughter. [ 3 ] In addition, the accused relies on the so-called “rolled-up” defence, again in the alternative, stating that based on all of the facts, even if self-defence and provocation are not applicable, the evidence does not demonstrate beyond a reasonable doubt that the accused had the necessary intent to be found guilty of second degree murder. [ 4 ] I will review the relevant evidence in the course of these reasons, but a brief synopsis of the evidence is that in the early morning hours of May 19, 2021, the accused and his girlfriend Jannay Bear (Ms.

Bear), were at Mr. Sutton’s residence at 479 Beverley Street (the “residence”). The accused and Mr. Sutton became involved in an argument which resulted in a physical altercation between the two. In the course of the altercation, the accused struck Mr. Sutton with a two-by-four across the face and head at least seven times according to the pathologist’s evidence, the cumulative effect of which resulted in the death of Mr. Sutton. [ 5 ] The accused was seen with Ms. Bear on video surveillance shortly after the killing.

He was walking through a parking lot heading towards Toronto Street, after having walked south down the Beverley Street back lane behind Mr. Sutton’s residence. He was carrying what the evidence establishes is the same two-by-four with which Mr. Sutton was killed. He then went behind a shed and

placed the two-by-four in a narrow space between the shed and a fence and behind a garbage can near the back lane not far from Mr. Sutton’s residence. It was recovered in that location by police. [ 6 ] Mr. Sutton’s DNA (blood) was found on the two-by-four and Mr. Sutton’s DNA (blood) was found on the accused’s pants when he was arrested by police later the same evening. These were the same pants which he was wearing during the killing. [ 7 ] There is no substantive, if any, dispute by counsel for the accused in respect of the admissibility of the evidence that the Crown sought to introduce at trial.

The accused admits jurisdiction, the date and time of the offence, the continuity of all exhibits and the identification of Mr. Sutton as well as the accused. [ 8 ] There is no dispute as to the qualifications of Christine Downs, the forensic specialist and reporting scientist who gave evidence at the trial. Her qualifications include the

interpretation of body fluid test results,

interpretation and comparison of forensic DNA typing profiles and the forensic application of statistics to DNSA matches. (Her professional curriculum vitae was tendered as Exhibit 8 at trial) [ 9 ] Furthermore, there is no dispute as to the qualifications of the pathologist, Dr. Petra Rahaman, who testified at trial as well. Her qualifications include expertise in respect of the identification and categorization of injuries and natural diseases, as well as determining the manner and cause of death. (Her professional curriculum vitae was tendered as Exhibit 14 at trial). She determined Mr.

Sutton’s cause of death as being blunt force injuries to the head. [ 10 ] The accused also admits that the statement he provided to the police on May 19, 2021 was voluntary and is admissible in evidence. The video statement of the accused to the Winnipeg City Police is found at trial Exhibit 12 while the transcript of that video statement is found at trial Exhibit 12A (the “transcript”). The accused did not call any evidence at trial. Both counsel relied upon various statements of the accused found in Exhibit 12 to advance their respective positions. The Evidence [ 11 ] The Crown called Dr.

Gabriel Schnerch, a psychology professor at the University of Manitoba, who testified that just before 2:00 a.m. on May 19, 2021, he was driving west along Ellice Avenue when traffic was diverted north onto Beverley Street as a result of road cleaning vehicles blocking the progress of traffic along Ellice Avenue. He was travelling behind another vehicle which slowed down ahead of him, but then continued on. When he passed the spot where the prior vehicle slowed down, he noticed someone, later identified to be Mr. Sutton, lying on the boulevard. He proceeded northward and then turned around, drove past Mr.

Sutton again and parked his vehicle further south and closer to Ellice Avenue. [ 12 ] After parking his vehicle, he got out and went over to Mr. Sutton, but did not come closer than about six feet to Mr. Sutton. He noticed that there was blood around Mr. Sutton and that he appeared to have a very serious head injury. He contacted 911 and after obtaining the street address as requested by the operator, police were dispatched and attended while he was at the scene. The police arrived before the medical personnel did and they were administering chest compressions to Mr. Sutton while he was lying on the boulevard.

He noticed that blood was coming out of Mr. Sutton’s mouth. [ 13 ] There was some evidence of another person standing in the shadows of a nearby house having a cigarette. However, other than providing Dr. Schnerch with the street address he was having difficulty finding due to the darkness, there is no suggestion that this person was in some way involved in the injuries suffered by Mr. Sutton. [ 14 ] A team of forensic officers attended at the scene and conducted an investigation, including taking photographs and seizing various exhibits. It became apparent to the officers that Mr.

Sutton had been at his residence before his death. Mr. Sutton was lying in a diagonal direction to the northwest on the boulevard about 13 feet from the gate to the fence at the sidewalk in front of the property of his residence. [ 15 ] When it was determined that Mr. Sutton lived at the residence, the police conducted an examination primarily of the area between where Mr. Sutton’s body was found and the entrance to the residence. Apart from the saturation stain of blood underneath Mr.

Sutton’s head where he had been lying, blood stains were found in various locations between the way from the entrance to the residence and where Mr. Sutton was found, including, on the swinging gate on the fence and blood stains on the porch and the door. [ 16 ] In addition, the police carried out an examination of the interior of the residence. The entire interior was in a state of absolute chaos and filth, including human excrement in the non-functional toilet and bathtub. The main living area was full of broken and overturned furniture and other articles, including electrical and computer equipment.

Drug paraphernalia, although no drugs, were found in various locations, but primarily in the living room area. On the basis of articles found in it, one of the bedrooms appeared to be have been occupied by the accused and Ms. Bear. [ 17 ] Blood swabs were taken from various places in the residence, but primarily from the living room area.

A search of the residence also located an improvised weapon underneath a mattress in another bedroom as well as a baseball bat in the kitchen. [ 18 ] A door in the northeast corner of the house, while badly damaged, had two brackets on either side of the door at the top and at the bottom which were used to slide a two-by-four across the door and through the brackets in order to secure the door. The blood- stained two-by-four bearing Mr. Sutton’s DNA (blood) hidden by the accused beside the parking lot after the assault on Mr.

Sutton was very similar to the remaining two-by-four at that door and both fit the brackets on the sides of the door. There is no dispute that the bloodstained two-by-four that the accused hid outside was almost certainly used to brace the door and I have no difficulty in concluding that this was its original purpose in the house. [ 19 ] Some blood samples from an unidentified female were taken from the clothing and shoes of Ms. Bear and matched a blood sample on an exterior window sill. No known sample of blood was obtained from Ms.

Bear, but there is no indication from the evidence nor did either counsel suggest that Ms. Bear may have been involved in the assault that eventually claimed Mr. Sutton’s life. [ 20 ] When the accused was arrested and taken to the Central Processing Unit at the Winnipeg City Police Station approximately 18

hours after the assault on Mr. Sutton, the officer taking the photographs of the accused and conducting a cursory physical examination of the accused, noted that there were no defensive injuries on the accused and that he had only a very minor skin injury. The only fresh injury was a bite mark on his arm which the accused stated was made by Ms. Bear during the course of a dispute between the two prior to his altercation with Mr. Sutton. [ 21 ] The photographs and the forensic evidence disclose that Ms.

Bear had relatively fresh self-inflicted injuries on her inner left arm, and similar injuries beneath those fresh injuries that were older and formed scars on her wrist. [ 22 ] The DNA evidence is not controversial. Mr. Sutton’s DNA (blood) was the only identifiable DNA found on the two-by-four hidden by the accused. In addition to Mr. Sutton’s DNA (blood) being found on the accused’s pants that he was wearing at the time of the assault and at the time of his arrest, Mr.

Sutton’s DNA (blood) was found in various locations inside the residence as well as outside of the residence from the doorway to the point where Mr. Sutton was found, his head covering a large saturation stain of blood on the boulevard. [ 23 ] The pathologist, Dr. Petra Rahaman, testified that Mr. Sutton died of blunt force head injuries caused by a solid or hard object. There were extensive fractures to all of the facial bones, with the face being separated from the skull. Her testimony describes in detail the severity of these injuries, including the central face area being markedly sunken.

The nasal bones, the cheek bones and the bones behind the eyes were broken. The upper jaw was detached from the skull. She stated these injuries were consistent with being caused by the use of a long rectangular edged object consistent with a two-by-four. [ 24 ] There were 13 lacerations on Mr. Sutton’s head including two on the back of the scalp. There were 11 on the face, including the lips. The injuries inflicted led to the brain bleeding, that is, cerebral contusions on the brain itself. The brain was swollen and herniated. [ 25 ] The pathologist opined that Mr.

Sutton had been struck in the head at least seven times, but more likely more than seven blows, with more than one of the 13 lacerations possibly having been caused by one blow. After the injuries were inflicted, the heart would still have been beating and Mr. Sutton could have continued to breathe for some time. As it was, he was pronounced dead at 2:37 a.m. at the Health Sciences Centre. [ 26 ] There were other blunt force injuries to his body, including fractures at both elbows. The elbow wounds could have been defensive wounds or occurring if he had fallen backwards on his elbows.

Furthermore, there was a stab or pointed wound in Mr. Sutton’s neck 3.8 centimetres deep and was described as a tissue injury which could have been caused by a pen or a pencil or a dagger with a curve. This injury did not contribute to his death. [ 27 ] Dr. Rahaman could provide no opinion as to the sequence of the injuries, but could state that all of the injuries occurred before death as the heart was still pumping. She stated that after some of the injuries, he could have been walking or talking, but he would not have been conscious following the cumulative application of the blows.

His injuries were of the severity of the type of injuries a person might suffer in a high-speed motor vehicle crash or a fall from a multi-story building. [ 28 ] In respect of the toxicological evidence, it appears that that there were low concentrations of alcohol, fentanyl, pseudoephedrine (probably cold medication), and cocaine in Mr. Sutton’s body. There was a greater concentration of methamphetamine in his body, but she could offer no opinion on how this concentration of what is a so-called recreational drug would have affected his behaviour.

She did state methamphetamine can leave the user anxious, agitated and aggressive and result in risk taking behaviour. She could state that the drugs in his system did not contribute to his brain injuries or his death. [ 29 ] The accused did not contest the admissibility of the statement he gave to the police after his arrest. Both the Crown and the accused rely on at least portions of the statement in order to advance their positions in respect of the culpability of the accused in the death of Mr. Sutton.

I agree that there is no basis to contest its admissibility on the basis of voluntariness or Charter violations, and therefore I will consider that statement in the context of all of the evidence in determining this matter.

The DVD recording of the statement is found at Exhibit 12 in the trial of this matter, while the written transcript of the statement provided orally is found at Exhibit 12A. [ 30 ] It is noted that with the exception of a bite mark on the upper part of his right arm, there were no evident fresh injuries to the body and hands of the accused upon examination by a police officer prior to the taking of his statement. [ 31 ] In respect of the altercation there are a number of comments that may be relevant to this proceeding found in the transcript. Prior to detailing the altercation with Mr.

Sutton, the accused stated: “I was attacked. I defended myself.” (Transcript p. 34 lines 14, 15). Following certain comments by the officer conducting the interview, the accused offered: “It’s all kind of just a blur” (Transcript p. 35 line 8) and “ … I can’t even begin to think of how this started. Just sort of rough night, that’s for sure.” (Transcript p. 35 lines 12 – 14). [ 32 ] While initially being vague about whether he had been living there, later in the interview he admits that “I’ve been living there for a little while.” (Transcript p. 59 lines 23 and 24) [ 33 ] He stated that both he and Ms.

Bear were drug users, and that she had been living at the residence for a month or two. He described Mr. Sutton as a “kind guy” and smart, stating “[h]e used to buy and fix stuff … but sometimes he would just snap … [l]ike he would start screaming … like just have like a episode kind of thing.” (Transcript p. 38 lines 13-25, and p. 39 line 1) [ 34 ] The accused related that in the evening or early morning prior to Mr. Sutton’s death, while Mr. Sutton was not at the residence, an unidentified person came in and just smashed everything before he left. When Mr.

Sutton came back to his residence and saw that his property had been destroyed, he “started freaking out” and blamed the accused for not defending “his stuff”. The accused stated that he tried to calm Mr. Sutton down, but Mr. Sutton started attacking him verbally and physically, including throwing things at him. At this point the accused said that the altercation was going on inside the residence but “then it carried out to the outside”. While this was going on, Ms.

Bear was locked or somehow confined to her bedroom because the accused stated she had been trying to kill herself “trying to grab a knife” and he would not let her out of her room. (Transcript pp. 39 - 42). According to the accused, Ms. Bear remained in her room throughout the course of the altercation and did not see anything that went on, but he notes she “… might have looked out the

window and see what happened, but I don’t think that’s possible, you know.” (Transcript pp. 47, 48) [ 35 ] At pp. 44 - 45 of the transcript when asked about defending himself, the accused states that Mr. Sutton was throwing things at him and that “… I was talking to him and basically then I had to take a two by four out of his hand … ‘cause he was swinging it at me” and “… then I started swinging it back.” He stated that “… we hit each other a few times.

He didn’t really get me very well because … I’m just lucky I guess”. [ 36 ] At pp. 46 - 47 of the transcript the accused states that he was not “exactly sure” where Mr. Sutton got the two-by-four from, but states that he thinks “it might have been just something he used to like brace the back door …” and agreed with the officer’s suggestion that Mr. Sutton “brought it to the fight”. He states he could not remember how many times he hit Mr. Sutton but that it was “[a]ll in the face.” He states that Mr.

Sutton was high at the time of the altercation and that although the accused admits he had been high that day, he was not high during the course of the fight, or as the accused states “not at that moment”. [ 37 ] The accused denied that this situation had been building for the whole day, and stated that “Me and him, we get along. Honest.” He stated that “People come though [sic] there all the time” but that in respect of “dealing”, his response was “Not that I know of” and that “I’m not dealing. No.” He also stated that Mr.

Sutton was “not a drug dealer … [h]e’s someone who just fixes electronics or buys used phones”. (Transcript pp. 52-53) [ 38 ] The accused states that the fight began inside the residence, but “then we went outside after like I got the two by four from him, I hit him in the head a few times and then he ran outside. Then I grabbed [Ms. Bear] and we ran out the back”. (Transcript p. 55) The position of the Crown [ 39 ] The Crown submits that the evidence clearly shows that the accused assaulted Mr. Sutton with a two-by-four causing his death.

There is no evidence that the accused was intoxicated by alcohol or drugs at the time of the assault. The assault, the Crown argues, is culpable homicide and the court should find that the accused had the requisite intent necessary to convict him of second degree murder. [ 40 ] The Crown states there is no evidence of provocation. The Crown relies on the decision of R. v. Barrett , 2022 ONCA 355 , 162 O.R. (3d) 425 (QL), which holds: [57] There are four prerequisites to provocation: (

i) a wrongful act or insult; (ii) the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control; (iii) the accused must have acted in response to the wrongful act or insult that was sufficient to deprive an ordinary person of self-control; and (iv) the accused must have acted “on the sudden”, before there was time for the accused’s passion to cool. The first two elements are objective and the latter two are subjective: s. 232 of the Criminal Code , R.S.C. 1985, C-46 and R. v.

Tran , 2010 SCC 58 , [2010] 3 S.C.R. 350 , at paras. 25 and 36 . [58] Since July 17, 2015, when the provision was amended, the “wrongful act or insult” must constitute an indictable offence punishable by at least five years of imprisonment: s. 232(2). However, that requirement does not apply in this case because the charged conduct occurred before July 17, 2015: R. v.

McRae , 2021 ONCA 525 , at para. 19 . [59] Provocation reduces “culpable homicide that otherwise would be murder” to manslaughter: s. 232(1) of the Criminal Code . [60] The requirement of suddenness “before there was time for his passion to cool” distinguishes a response taken in vengeance from one that was provoked: Tran , at para. 38 . [61] The “air of reality” test is not intended to assess whether the defence is likely or unlikely to succeed. Nor is it an onerous test to be met. The question is whether a properly instructed jury acting reasonably could be left with a reasonable doubt as to whether there was (

i) a wrongful act or insult (ii) that would deprive an ordinary person of the power of self-control, (iii) which wrongful act or insult deprived the accused of self-control, and (iv) to which the accused reacted “on the sudden” before there was time for his passion to cool: R. v. Pappas , 2013 SCC 56 , [2013] 3 S.C.R. 452 , at paras. 21 , 27-28, 34. The trial judge must find that there is an air of reality on each element: Pappas , at para. 21 . [62] Where there is an air of reality to the defence of provocation, the instruction must be given to the jury. It is an error of law not to do so: R. v.

Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3 , at paras. 55 . [63] In deciding whether there is an air of reality, the trial judge must consider both direct and circumstantial evidence capable of supporting an inference that there was provocation. If the evidence of provocation is direct, provocation should go to the jury. If the evidence is circumstantial (as in this case), an inference must be drawn and, “the trial judge may engage in a limited weighing to determine whether the elements of the defence can reasonably be inferred from the evidence”: Pappas , at para. 25 .

But in this limited weighing exercise, the judge must not make findings of credibility or reliability, or findings of fact: Cinous , at paras. 53-54, 87-91 ; Pappas , at paras. 22-25 .

[41] I would note parenthetically that the accused also relies on this decision in its argument and based on the arguments presented,takes no issue with the

summary of the defence of provocation set out in Barrett. [42] The accused is also advancing self-defence in respect of this matter. The self-defence provisions are set out at s. 34 of theCriminal Code of Canada (the “Code”) which provides: Defence – use or threat of force 34

(1) A person is not guilty of an offence if (

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being madeagainst them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances. Factors

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances ofthe person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [43] In respect of self-defence, the Crown relies on the decision of R. v. Khill, 2021 SCC 37, 462 D.L.R. (4th) 389 (QL), which in itsopening paragraphs sets out its importance in the criminal law and in society, as well as the general parameters of the law of self-defenceitself. The court held: 1 The law of self-defence plays an important

part in the criminal law and in society. At the core of the defence is the sanctity ofhuman life and physical inviolability of the person. Preserving life and limb operates to explain both why the law allows individuals toresist external threats and why the law imposes limits on the responsive action taken against others in its name. Life is precious. Anylegal basis for taking it must be defined with care and circumspection (R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686, atpara. 82). 2 The contours of our law of self-defence are tied to our notions of culpability, moral blameworthiness and acceptable humanbehaviour.

To the extent self-defence morally justifies or excuses an accused’s otherwise criminal conduct and renders it non-culpable, itcannot rest exclusively on the accused’s perception of the need to act. Put another way, killing or injuring another cannot be lawfulsimply because the accused believed it was necessary. Self-defence demands a broader societal perspective. Consequently, one of theimportant conditions limiting the availability of self-defence is that the act committed must be reasonable in the circumstances.

A factfinder is obliged to consider a wide range of factors to determine what a reasonable person would have done in a comparable situation.

[44] At para. 37 of Khill, the court summarizes the three fundamental questions that must be addressed under s. 34(1) of the Code inall cases where self-defence is raised as well as the significance of s. 34(2) of the Code when considering if the accused’s act wasreasonable in the circumstances: 37 The structure of s. 34 is simplified and unified in that the same three basic components or questions arise in all cases of self-defence: first, under s. 34(1)(a), the accused must reasonably believe that force or a threat of force is being used against them or someoneelse; second, under s. 34(1)(b), the subjective purpose for responding to the threat must be to protect oneself or others; and third, under s.34(1)(c), the accused’s act must be reasonable in the circumstances.

Section 34(2) sets out nine non-exhaustive factors that shall be takeninto account when considering if the accused’s act was reasonable in the circumstances under s. 34(1)(c). [45] In R. v. King, 2023 MBCA 37, [2023] M.J.

No. 122 (QL), the court reviewed the analysis of self-defence found in Khill, notingas follows: 20 When self-defence is raised, the Crown has the onus to prove beyond a reasonable doubt that the conduct of the accused, whichwould otherwise be criminal in nature, was not done in self-defence or in defence of another. [46] In respect of the analysis by the court in Khill of the substantive self-defence provisions themselves the court in King stated: 23 Martin J goes on to describe the inquiry under section 34(1)(

a) as the “catalyst” (at para 51) and explains that, for this

section toapply, an accused’s actual subjective belief that force or a threat of force was being used must be held on reasonable grounds (see para53). This is a “blended or modified objective standard” (at para 54). In other words, the accused’s subjectively honest belief must accordwith “what a reasonable person with those relevant characteristics and experiences would perceive” (at para 57). 24 Turning to the inquiry under section 34(1)(b), Martin J refers to this as the “motive” (ibid at para 51) which assesses the accused’s“personal purpose in committing the act that constitutes the offence” (at para 59).

In order for this provision to apply, an accused’ssubjective personal purpose for their act must be defensive rather than for “vigilantism, vengeance or some other personal motivation”(ibid). 25 Finally, the inquiry under section 34(1)(c), referred to by Martin J as the “response” (ibid at para 51), looks at the nature of anaccused’s response to the use or threat of force to determine if it is “reasonable in the circumstances” (at para 62). This examines whetherthe actions of the accused accord with “the conduct expected of a reasonable person in the circumstances” (ibid).

Martin J observes thatsection 34(1)(c) “is primarily concerned with the reasonableness of the accused’s actions, not their mental state” (at para 66). As a result,she warns that “[c]ourts must therefore avoid treating the assessment of the reasonableness of the act under s. 34(1)(

c) as equivalent toreasonable belief under s. 34(1)(a)” (at para 67). This aspect of the self-defence assessment is examined on a modified objective standardin that it “should not reflect the perspective of the accused, but rather the perspective of a reasonable person with some of the accused’squalities and experiences” (ibid). 26 Section 34(2) of the Code provides structure and guidance for the inquiry under section 34(1)(

c) in respect of the reasonableness ofthe accused’s actions by setting out a non-exhaustive list of nine factors to be considered. The consideration of the factors under section34(2) is not optional. As noted by Martin J, “the fact finder ‘shall’ consider all factors set out in paragraphs (

a) to (

h) of s. 34(2) that arerelevant in the circumstances of the case” (at para 68). The judge is to “decide which factors in s. 34(2) are relevant, applicable, and/orworthy of consideration based on the evidence actually adduced in the particular trial” (at para 127). If there is no factual basis to informa factor, it need not be considered. 27 Importantly, for the purposes of the present case, the tests under each of the three inquiries in section 34(1) differ: section 34(1)(a)has both a subjective aspect and a modified objective aspect; section 34(1)(

b) is solely subjective; and section 34(1)(

c) has a modifiedobjective test of “reasonable in the circumstances” with mandatory factors that must be considered. [47] The Crown takes the position that the evidence of the accused as found in the transcript does not withstand the analysis under R.v. W. (D.), (SCC), [1991] 1 S.C.R. 742. His position that he was acting in self-defence is not believable either on itsown or in the context of the other evidence, in particular the evidence provided by the pathologist.

In particular, the Crown relies on theevidence of the accused at pp. 44 and 45 of the transcript which I have summarized earlier in these reasons and in which the accusedpurports to set out how the physical confrontation between the two men commenced and how the accused responded to that perceived

threat. [48] Furthermore, the Crown takes the position that a finding of second degree murder is warranted in that a cumulative considerationof the evidence establishes beyond a reasonable doubt that the accused had the requisite intent to commit second degree murder. The position of the accused [49] The accused advances various positions in favour of a verdict that would result in either a conviction of the lesser includedoffence of manslaughter or an outright acquittal. A finding that the Crown did not prove beyond a reasonable doubt that the accused didnot act in self-defence would result in an acquittal.

In the alternative, if the defence of provocation is made out, it would reduce theaccused’s culpability to that of manslaughter if the other elements of the charge are made out. The accused states that if the evidencefalls short of establishing a stand-alone defence of provocation, the cumulative effect of the evidence must still be considered as towhether the court is satisfied beyond a reasonable doubt that the accused had the necessary intent for second degree murder. [50] The accused relies upon the decision of the court in R. v. Harris, 2023 ABCA 90, [2023 A.J.

No. 275 (QL), where the courtdiscussed the importance of considering the cumulative effect of the evidence even where the stand-alone defences of provocation andself-defence are rejected by the court. In that case the court held at paras. 41-45: 41 … in our view, the trial judge did not properly instruct himself with respect to what has become known as the “rolled up charge”,which “requires the trier of fact to consider the cumulative effect of the evidence.

Where the evidence relating to certain defences such asprovocation, intoxication, and mental disorder falls short of establishing the stand-alone defence, the cumulative effect of the evidence isstill considered in deciding whether the accused formed the requisite intent”: R v Newborn, 2020 ABCA 120 at para 72, 390 CCC (3d)86.

The same can be said when the evidence falls short of establishing that an accused’s proven act of self-defence was reasonable in thecircumstances: Khill at para 121. 42 As stated in R v Fraser (2001), (ON CA), 159 CCC (3d) 540 at para 25, 151 OAC 137 [Fraser] in the contextof a jury charge: . . . Ordinarily, evidence that has a bearing on the issue of intent will already have been raised by way of a justification defence such asself-defence, or there may be evidence of provocation directed towards the accused. See e.g. Robinson, supra; Schell, supra; R. v.Allegretti, [1994] O.J. No. 172 (C.A.); R. v.

Clow (1985), (ON CA), 44 C.R. (3d) 228 (Ont. C.A.); R. v. Bob (1990), (ON CA), 78 C.R. (3d) 102, 40 O.A.C. 184 (C.A.); R. v. Nealy (1986), (ON CA), 30 C.C.C. (3d)460, 17 O.A.C. 164 (C.A.); R. v. Desveaux (1986), (ON CA), 26 C.C.C. (3d) 88, 13 O.A.C. 1 (C.A.). While the jurymay have rejected each individual defence, they may still have a reasonable doubt about the accused's intent to commit murder havingregard to the cumulative effect of the evidence as a whole.

The purpose of a rolled-up charge is to prevent the jury fromcompartmentalizing the evidence and to draw to the jury's attention those pieces of evidence that have a bearing on intent so that theymay assess its cumulative effect.

The cumulative effect of the evidence bearing on intent may result in the verdict being one ofmanslaughter as opposed to murder. [Emphasis added] 43 Having found that self-defence was only disproven at the last stage of the test, the trial judge did not return to that factual and legalcontext in determining whether he had a “reasonable doubt about the accused's intent to commit murder having regard to the cumulativeeffect of the evidence as a whole”: Fraser at para 25.

Further, the reasons do not properly consider the fact that the entire confrontationbetween Mr Rock and the appellant outside the pub happened in a matter of seconds. The trial judge both compartmentalized his earlierfact findings on self-defence and the events which occurred during the confrontation. 44 This was a material error warranting appellate intervention.

On any view of the record, the trial judge failed to assess whether theCrown had proven the requisite intent to murder on the whole of the evidence and factual findings. 45 In addition, the trial judge failed to consider whether the cumulative effect of the evidence might be more in keeping with theintent for second degree murder or manslaughter: Fraser at para 25 …. [51] The accused points out that the only version of the evidence before the court is the version set out by the accused in hisstatement. The accused states that this evidence clearly establishes that Mr.

Sutton flew into a rage over the destruction of his propertyby an unnamed party in his absence from the residence and the failure of the accused to defend his property against the actions of theunnamed third party. He states that the attack on him began with a verbal attack by Mr. Sutton and progressed into a physical assault,with Mr. Sutton throwing articles at him and according to the accused, apparently resulted in Mr. Sutton attacking him with a length oftwo-by-four. He said Mr. Sutton was using it against him before he took it away from him.

[52] As recounted earlier in these reasons, his version of the events is that: “… I was talking to him and basically then I had to take atwo by four out of his hand … cause he was swinging it at me” and “… then I started swinging it back.” He states “… we hit each othera few times. He didn’t really get me very well because … I’m just lucky I guess”. (Transcript pp. 44-45) [53] The accused argues that given the circumstantial nature of the evidence in respect of what happened from at least the time theaccused took the two-by-four from Mr.

Sutton, until the time he was found on the boulevard outside of the residence by Dr. Schnerch,the principles in respect of the consideration of circumstantial evidence set out in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000(QL), are applicable. The court held at paras. 35 -37: 35 … The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it.

If there arereasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt. 36 I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by themere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, a reasonable doubt “is a doubt based on reason andcommon sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in theevidence may result in inferences other than guilt.

But those inferences must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. 37 When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonablepossibilities” which are inconsistent with guilt: R. v. Comba, (ON CA), [1938] O.R. 200 (C.A.), at pp. 205 and 211, perMiddleton J.A., aff’d (SCC), [1938] S.C.R. 396; R. v. Baigent, 2013 BCCA 28, 335 B.C.A.C. 11, at para. 20; R. v.Mitchell, [2008] QCA 394 (AustLII), at para. 35.

I agree with the appellant that the Crown thus may need to negative these reasonablepossibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might beconsistent with the innocence of the accused”: R. v.

Bagshaw, (SCC), [1972] S.C.R. 2, at p. 8. “Other plausible theories”or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not onspeculation. [54] The accused argues that a consideration of all of the evidence, and guided by the principles set out in Villaroman and W. (D.),leads to the conclusion that the Crown has not met its obligation to prove beyond a reasonable doubt that the accused did not act in self-defence or, in the alternative, that it has not proven the intent necessary to establish second degree murder.

Decision [55] The mens rea for murder has a precise and technical meaning and is defined in s. 229(

a) of the Code as follows: Murder 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensuesor not. [56] In order to find the accused guilty of second degree murder, the Crown must prove each of the following essential elements ofthe crime beyond a reasonable doubt:

i) That the accused caused Mr. Sutton’s death; ii) That he caused Mr. Sutton’s death unlawfully; and iii) That he had the state of mind required for murder. [57] The evidence, both circumstantial and direct, leads inexorably to the conclusion that the accused caused Mr. Sutton’s death. It isthe other two elements that are in dispute. [58] In respect of the second element, the accused advances the position that because the accused acted in self-defence, the death ofMr. Sutton was not unlawful.

If the Crown has failed to prove beyond a reasonable doubt that the accused did not act in self-defence, theaccused is entitled to a complete acquittal on the charge. If the Crown establishes beyond a reasonable doubt that he did not act in self-

defence, the Crown must then prove beyond a reasonable doubt that he had the requisite intent for second degree murder. [ 59 ] The intent that must be established by the Crown in this case is found at s. 229 of the Code and requires the Crown to prove beyond a reasonable doubt that the accused either meant to kill Mr. Sutton or meant to cause bodily harm that he knew was likely to cause death to Mr. Sutton, and was reckless whether Mr. Sutton died or not. In other words, to prove that the accused committed second degree murder, Crown counsel must prove beyond a reasonable doubt either that he meant to kill Mr.

Sutton or that he meant to cause Mr. Sutton bodily harm that he knew was so serious and dangerous that it would likely kill him and proceeded despite his knowledge that Mr. Sutton would likely die as a result of that bodily harm. Crown counsel does not have to prove both. One is enough. [ 60 ] I should again point out that there is no evidence of intoxication by drugs or alcohol, nor is this defence being raised by the accused. In fact, the only evidence on the issue of the accused being intoxicated is that he admitted being high on the day of the killing, but that he was not high during his altercation with Mr.

Sutton. (Transcript p. 46, lines 4 – 18) [ 61 ] In this case, the accused raises both self-defence and in the alternative, the defence of provocation. In the further alternative, the accused argues that if neither self-defence nor the defence of provocation are successful, he argues that the “rolled up” defence is applicable in that the Crown has failed to prove the requisite intent for second degree murder beyond a reasonable doubt.

The defence of provocation or the “rolled-up” defence result in the reduction of the culpability of the accused to that of manslaughter from murder while the failure of the Crown to prove beyond a reasonable doubt that the accused did not act in self-defence results in a complete acquittal. I will deal first with the defence of provocation and then self-defence. It is only necessary to consider the “rolled up” defence if one of the other defences is not successful. [ 62 ] In my opinion, the defence of provocation raised by the accused does not have an air of reality.

Before this defence can be considered by the trier of fact, there must be an air of reality to each of the four elements of this defence. I accept the following comments from Barrett as instructive in this respect: 61 The “air of reality” test is not intended to assess whether the defence is likely or unlikely to succeed. Nor is it an onerous test to be met. The question is whether a properly instructed jury acting reasonably could be left with a reasonable doubt as to whether there was (

i) a wrongful act or insult (ii) that would deprive an ordinary person of the power of self-control, (iii) which wrongful act or insult deprived the accused of self-control, and (iv) to which the accused reacted “on the sudden” before there was time for his passion to cool: R. v. Pappas , 2013 SCC 56 , [2013] 3 S.C.R. 452 , at paras. 21 , 27-28, 34. The trial judge must find that there is an air of reality on each element: Pappas , at para. 21 . 62 Where there is an air of reality to the defence of provocation, the instruction must be given to the jury. It is an error of law not to do so: R. v.

Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3 , at paras. 55 . [ 63 ] In this case, even if there is a basis to conclude that there is evidence of a wrongful act or insult perpetrated by Mr. Sutton as alleged by the accused in his statement to the police, there is no evidence or “air of reality” in respect of other elements of the defence. My consideration of the evidence leads me to the conclusion that the accused did not lose self-control.

When asked by the officer during the course of his statement whether “this thing is more about drugs and being high or just shit got out of control or … ?” he responded with: “No, I was totally being in control.” (Transcript p. 34 lines 3-7) [ 64 ] Furthermore, as the Crown points out, in response to Mr. Sutton allegedly attacking him, the accused states he was “[t]rying to calm him down.” (Transcript p. 40 lines 6-14).

The evidence of the accused is clear that he did not lose self-control and that he did not act “on the sudden” before he had time for his passion to cool. [ 65 ] In this case, I believe the evidence of the accused that he did not lose self-control and that when considering the evidence, circumstantial and direct, as a whole, there is no basis to consider and accept the defence of provocation. [ 66 ] In respect of self-defence, a

summary of some of the relevant evidence from the accused’s statement is that when Mr. Sutton “snapped” on coming home and finding his property destroyed, he blamed the accused for not protecting his property and then began to throw things at him. The accused said Mr. Sutton was “attacking me in lots of different ways …. verbally, physically.” (Transcript p. 40, lines 9-10, p. 41, line 8 -15) [ 67 ] The accused states that he “just defended himself” (Transcript p. 41 line 23) and that the altercation started inside the residence and “then it carried out to the outside.” (Transcript p. 42, lines 4-5).

He states that he had to take the two-by-four from Mr. Sutton “cause he was swinging it at me”. (Transcript p. 45, lines 5-6) [ 68 ] After the accused took the two-by-four from Mr. Sutton because “he was swinging it at me”, he states that he “started swinging it back” after which he states: “… we hit each other a few times. He didn’t get me very well …” (Transcript p. 45, lines 5-21). He states that he could not remember how many times he hit Mr. Sutton, but that it was “All in the face.” (Transcript p. 47, lines 14-20) [ 69 ] It appears from his statement that the accused was hitting Mr.

Sutton outside of the residence, because when he was asked who else would have seen this altercation after stating he was hitting Mr. Sutton in the face, he stated that no one else would have seen what happened, and “[Ms. Bear] might have looked out the window and seen what happened, but I don’t think that’s possible …” (Transcript p. 48, lines 6-9) [ 70 ] In considering the three elements of self-defence, the evidence of the accused is that it was Mr. Sutton who first attacked him in a rage, verbally and then physically throwing objects at him. This was followed by Mr.

Sutton swinging one of the two-by-four’s used as a brace for the back door of the residence at the accused before the accused took it away from him.

[ 71 ] On the basis of the accused’s statement, I am prepared to accept that the accused believed on reasonable grounds that force or the threat of force was being used against him and that at least initially some of the force used by the accused on Mr. Sutton was committed for the purpose of defending himself from the use of force or the threat of force.

However, in respect of the third element of self- defence, I do not accept that the force used by the accused was reasonable in the circumstances. [ 72 ] I come to this conclusion not only on the basis of the statement made by the accused, but in the context of the entire evidence including the examination of the accused’s body by the police prior to him making his statement while in custody and the evidence of the pathologist in respect of the injuries suffered by Mr.

Sutton. [ 73 ] In determining whether the force used by the accused was reasonable in the circumstances, s. 34(2) of the Code requires that, without limiting my analysis to the factors specified in s. 34(2) of the Code , I consider the factors specified in s. 34(2) of the Code as well as “the relevant circumstances of the [the accused] person, the other parties and the act [that constitutes the offence].” [ 74 ] The evidence is that while the attack on the accused culminated with Mr. Sutton swinging the two-by-four at him and the accused taking the two-by-four from him.

It is clear both from his statement and an examination of his body at the time of his statement, that, in the words of the accused, Mr. Sutton “didn’t really get me very well”. In fact, there is no substantive evidence that the accused suffered any injury as a result of Mr. Sutton using the two-by-four as a weapon against the accused.

The accused’s explanation is that he was “just lucky I guess.” (Transcript p. 45 lines 15-16) [ 75 ] In considering all of the factors specified in s. 34(2) of the Code as well as any other relevant circumstances, I accept the accused’s version of the commencement of the altercation or incident resulting in Mr. Sutton’s death. There was no lawful threat or use of force by Mr. Sutton nor does the Crown suggest there was. It is apparent that the use of force or the threat to use force by Mr. Sutton in brandishing and swinging the two-by-four was imminent and that taking the two-by-four from Mr.

Sutton was in the circumstances an appropriate response to the potential, if not actual, use of force. [ 76 ] There are no significant distinctions between the accused and Mr. Sutton in respect of size, age, and gender, but that in considering the physical capabilities of each, I note that the accused by his own admission is an experienced fighter, who in his words, has defended himself “many, many, many, many, many, many times before”, including in an incident where he was stabbed in the back seven or eight times. (Transcript p. 43, lines 11-23).

However, in noting his experience in fighting, I do not consider this to be relevant in respect of whether he was acting in self-defence at the time of the alleged assault on him by Mr. Sutton. Whether he was an experienced fighter or not, he was entitled to take reasonable steps to defend himself against the use of force or the threat of use of force in the circumstances he describes. [ 77 ] In respect of the nature, duration and history of the relationship between the accused and Mr. Sutton, the accused states that he was aware of Mr.

Sutton’s bad temper in the two or so months that they had known each other, but stated that: “Me and him, we get along. Honest.” (Transcript p. 52, lines 7-8). Apparently, there was no earlier use or threat of force against him. [ 78 ] My review of the evidence leads me to the conclusion that once the accused took the two-by-four from Mr. Sutton, there is no other weapon that Mr. Sutton then used or attempted to use against the accused despite the availability of other potential weapons including knives and a baseball bat. The accused admits that after he took the two-by-four from Mr.

Sutton, the accused “hit him in the head a few times” and “then [Mr. Sutton] ran outside.” He states that after Mr. Sutton ran outside “he grabbed [Ms. Bear] and we ran out the back.” (Transcript p. 55, lines 17-20) [ 79 ] In my opinion, the accused’s statement does not correspond with the other objective evidence and indeed is inconsistent with another version he offers earlier in his statement. The pathologist testified that Mr.

Sutton was hit at a minimum seven times across the face and “more likely more than seven”, suffering 11 lacerations to the face, as well as suffering two lacerations at the back of the skull. It is also her evidence that Mr. Sutton would not be conscious after the cumulative impact of the blows although he was alive from several minutes to an hour or more. All of his injuries were before death as his heart was pumping at the time of the injuries. [ 80 ] The assertion that Mr. Sutton would have run out of the residence after the accused hit him “a few times” and that he did not pursue Mr.

Sutton as he ran out of the front door, but rather got Ms. Bear out of the bedroom where she was during the incident and ran out the back is not believable. His earlier admission in the statement that the incident commenced inside the residence and continued outside is much more plausible. Mr. Sutton, according to the forensic evidence would not have been able to move as a result of all of the blows which the accused inflicted upon him . As the pathologist stated, the injuries suffered by Mr.

Sutton were consistent with those suffered by victims in a high-speed automobile crash or a fall from a multi-storey building. [ 81 ] In my opinion, both direct and circumstantial evidence leads me to the conclusion that the accused finished beating Mr. Sutton when Mr. Sutton was on the public boulevard some 13 feet from the fence separating the residence from the public walkway. [ 82 ] Without question, the accused played a significant role in the incident once he started defending himself. While he was entitled to use reasonable force against Mr.

Sutton in the circumstances when confronted with the use of force or the threat of force, and even though by his own admission he was calm, there was a needless escalation and the continued use of significant and unwarranted force by the accused after he took the two-by-four from Mr. Sutton. [ 83 ] This is unlike the situation in King , where it was only after the deceased was stabbed and slashed multiple times that the deceased finally backed off, dropped the weapon and stopped attacking.

As the court observed in that case at para. 52 “the ‘tide did not turn’ until the last knife strike; and, once the deceased backed away, the accused and co-accused immediately disengaged and left the scene.” [ 84 ] In my opinion, the evidence here is markedly different. The deceased here was disarmed by the accused very early in the altercation and, after being disarmed, was brutally struck numerous times breaking every facial bone, caving in his face and separating his upper jaw from his skull. The two fractured elbows suffered by Mr.

Sutton are consistent with defensive wounds, although as the pathologist stated they could also have occurred if Mr. Sutton fell on his elbows. Accordingly, I make no inference in respect of the cause of the elbow injuries other than they clearly occurred in the course of the fight, given that he apparently had full use of his arms

prior to the accused taking the two-by-four from him. [85] By the accused’s own admission, although Mr. Sutton may have had access to various weapons in the residence, includingknives and a baseball bat, Mr. Sutton did not use either the baseball bat or his knives or any other weapon in the fight after the accusedtook possession of the two-by-four. As the accused stated, the only weapon used in the fight was the two-by-four “and that’s it”.(Transcript p. 59 lines 3-24) [86] There was a clear opportunity to disengage from the altercation when, by the accused’s own admission, Mr. Sutton ran out of thefront door.

Instead, it is apparent from the forensic evidence that the accused continued to beat Mr. Sutton outside of the residence. Based on the forensic evidence as to the nature of the injuries and the cumulative effect of the blows struck by the accused with the two-by-four, Mr. Sutton would have been immobile and unconscious after the accused finished delivering the blows.

He could not have runanywhere, much less out of the house to the front of the yard, through the front fence gate and then another 13 feet further. [87] It is my opinion, that following a consideration of the relevant circumstances here, including the mandatory factors specified at s.34(2) of the Code and considering the cumulative number of blows both inside and outside the residence, the force used by the accusedwas not reasonable in all of the circumstances. In my opinion, the Crown has proven beyond a reasonable doubt that the accused did notact in self-defence when he beat Mr.

Sutton until he was unconscious with the two-by-four. [88] As noted by the court in Khill, a life sentence for murder does not automatically flow from the Crown defeating an accused’sclaim for self-defence. It is still incumbent for the trier of fact to then consider whether the accused acted with the requisite level ofintent to murder rather than manslaughter. At para. 121 of its decision, the court in Khill held in this respect: 121 … a life sentence for murder does not automatically flow from the Crown defeating an accused’s claim of self-defence.

As the trialjudge explained at length, if self-defence is not made out, the jury then had to consider whether Mr. Khill acted with the requisite level ofintent for murder rather than manslaughter. Where the trier of fact is satisfied the accused acted with intent to kill or was reckless to thatprobability, then the burden for murder will have been met. It will not, however, be met based on merely negligent or careless behaviour— and a failure to instruct the jury otherwise would be a clear error open to appellate review.

Instead, the jury must consider thecumulative effect of all the relevant evidence to decide if the requisite level of fault has been established beyond a reasonable doubt (R. v.Flores, 2011 ONCA 155, 274 O.A.C. 314, at paras 73-75; R. v. Levy, 2016 NSCA 45, 374 N.S.R. (2d) 251, at para. 148). [89] This approach is commonly referred to as the “rolled up defence” and needs to be considered where the specific defences such asself-defence and provocation are not accepted by the trier of fact.

Accordingly, having rejected both the defence of provocation and thatof self-defence, it is incumbent upon me as the trier of fact to satisfy myself that the accused had the requisite level of intent for murder. If I am not satisfied that the Crown has met its burden to prove the intent for murder beyond a reasonable doubt, then the accused canonly be convicted of manslaughter. [90] In my opinion, the accused had the requisite intent for second degree murder.

To reiterate, in order to convict the accused ofsecond degree murder, the Crown must prove beyond a reasonable doubt that the accused either meant to kill Mr. Sutton or meant tocause bodily harm that he knew was likely to cause death to Mr. Sutton, and was reckless whether Mr. Sutton died or not. It need notprove both. [91] In this case, I am satisfied that the Crown has demonstrated that the accused had the mental intent required for murder as set outin s. 229(a)(ii) of the Code, that is he meant to cause bodily harm that he knew was likely to cause death to Mr. Sutton and was recklesswhether Mr.

Sutton died or not. In R. v Williams, 2023 MBCA 11, [2023] M.J. No. 30 (QL), the court considered this aspect of theintent to commit murder and noted as follows: 35 Of particular relevance in the present case is

section 229(a)(ii) of the Code which “includes elements of intention and subjectiveforesight” (Daley at para 51). 36 In Daley, the Supreme Court of Canada noted that “the inquiry under s. 229(a)(ii) is whether the accused possessed the ability toforesee the consequences of his action” (at para 53). Indeed, the Supreme Court previously referred to

section 229(a)(ii) as the“foreseeability prong” of the test for murder mens rea and noted that, “[i]n most murder cases, the focus for the trier of fact will be onthe foreseeability prong . . ., that is, on determining whether the accused foresaw that his or her actions were likely to cause the death ofthe victim” (R v Robinson, (SCC), [1996] 1 SCR 683 at para 49). 37 In conducting the inquiry into the foreseeability prong, triers of fact consider whether they can draw the so-called “common senseinference” which was described by Cory J in R v Seymour, (SCC), [1996] 2 SCR 252, as follows (at para 19): . . . [I]n determining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane andsober persons intend the natural and probable consequences of their actions.

Common sense dictates that people are usually able toforesee the consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result it generallywill be reasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as toproduce certain predictable consequences, it may be inferred that the person intended those consequences.

38 The common sense inference regarding foreseeability is always relevant to specific intent crimes, including murder. Judges sittingwith a jury must instruct the jury on the common sense inference for specific intent offences.

Where there is evidence of intoxication, thejudge must also draw a direct link for the jury between the effect of intoxication and whether or not to draw the common sense inference,and failure to do so will constitute a reversible error (see Daley at paras 50, 52). 39 As further noted in Daley, “the main determination in cases involving a defence of intoxication to a second degree murder chargewill be whether the accused’s degree of intoxication affected” the ability to foresee the consequences of their action (at para 53).

In ajury trial where intoxication is raised, the charge must convey to the jury that “the relevant question [is] whether intoxication preventedthe accused from foreseeing the consequences of his acts” (at para 67; see also R v Cassan (ER), 2012 MBCA 46 at para 23). 40 As Bastarache J observed in Daley, “for certain types of homicides, where death is the obvious consequence of the accused’s act,an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of anintoxication defence of this type” (at para 42; see also Cassan at para 69). 41 As occurred in the present case, it is not uncommon for expert opinion evidence to be proffered to assist the trier of fact inassessing how issues such as intoxication or mental health conditions could affect the ability of an accused to foresee the consequencesof their actions.

However, experts should not “be permitted to usurp the functions of the trier of fact” (R v Mohan, (SCC), [1994] 2 SCR 9 at 24). [92] There is no evidence that the accused was impaired by alcohol or drugs at the time of Mr. Sutton’s killing. Indeed, the accusedis not advancing a defence based on impairment by alcohol or drugs. By the accused’s own admission, while he had been high earlier inthe day, he was not high at the time of the altercation with Mr. Sutton. Furthermore, he states that during the incident he was in controland trying to calm Mr. Sutton.

He was not in a rage, nor did he act “on a sudden” as the result of Mr. Sutton losing his temper, andverbally abusing him and physically attempting to assault him. [93] In this case, considering the severity of the injuries inflicted by the accused on Mr. Sutton, the manner in which those injureswere inflicted, and given that the accused was not impaired by a drug or alcohol, it is a matter of common sense that he knew what thepredictable consequences of his actions were, and meant to bring them about.

As directed by the court in Khill, I have considered thecumulative effect of all the relevant evidence to decide that the accused has the requisite level of fault in order to establish the mentalintent for second degree murder beyond a reasonable doubt. On that basis, I have no hesitation in concluding that the accused had therequisite intent for second degree murder. [94] I wish to address two further issues which I have referred to but did not deal with in any great detail in these reasons.

The first isthe W. (D.) analysis and the second is the consideration of circumstantial evidence in accordance with the principles established inVillaroman. [95] First, although the accused chose not to take the stand in this matter, he nevertheless relied on a statement he made as a result ofhis interview by the police. Accordingly the governing framework of analysis in W. (D.) applies. [96] The Court of Appeal R. v.

Menow, 2013 MBCA 72, 294 Man.R. (2d) 236 (QL), summarized and applied the principles set out inW. (D.) in the following fashion: 16 Every person is presumed to be innocent until the Crown has proven his or her guilt beyond a reasonable doubt. In W.(D.), theSupreme Court warned that verdicts of guilt should not be based on “whether [triers of fact] believe the defence evidence or the Crown’sevidence” (at p. 757). Rather, the paramount question is whether, on the whole of the evidence, the trier of fact is left with a reasonabledoubt about the guilt of the accused.

To ensure the trier of fact remains focussed on the principle of reasonable doubt, the courtsuggested that the following analysis be undertaken (at p. 758): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[97] In the course of producing these reasons, I have been mindful of that framework. However, as stated by Edmond J. in R. v.Mousseau, 2023 MBKB 7, [2023] M.J. No. 9 (QL), it is important to note that the framework of the W. (D.) analysis applies with somemodification when dealing with self-defence. At paras. 76 and 77 of that decision, Edmond J. held: 76 Since Mr. Mousseau testified the governing framework of analysis in R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742,at pp. 757-58 applies.

It is important to note that the framework of analysis applies with some modification when dealing with self-defence. 77 The first branch of the standard W. (D.) instruction, in which triers of fact are directed that “if you believe the evidence of theaccused, obviously you must acquit”, must be modified where self-defence is at issue because the essential elements of this defence arepartly objective. Even if I believe Mr. Mousseau’s account of what occurred or it raises a reasonable doubt about what transpired, I maystill reject that he acted in self-defence on the ground that Mr.

Mousseau’s use of force was not reasonable in all the circumstances. [98] Similarly, I believe the accused’s account that Mr. Sutton did at least attempt to assault the accused. I also believe on the basisof the evidence, that the accused believed on reasonable grounds that force was being used against him or that a threat of force was beingmade against him which constituted an offence, and therefore there were some actions that were committed for the purpose of defendingor protecting himself.

Nevertheless I rejected that he acted in self-defence on the basis that his use of force was not reasonable in all ofthe circumstances. [99] Furthermore, I believe that even though the accused minimized the nature and amount of force which he utilized against Mr.Sutton, there were some actions that were committed for the purpose of defending or protecting himself. Nevertheless, I rejected that heacted in self-defence on the basis that his use of force was not reasonable in all of the circumstances.

In particular, the following factorslead me to the conclusion that the force used was not reasonable in all of the circumstances. [100] The accused states that while Mr. Sutton threw various articles at him at the commencement of the argument, he admits that theonly weapon used in the altercation with Mr. Sutton was the two-by-four. He states: “So I was talking to [Mr.

Sutton] and basically thenI had to take a two by four out of his hand … ’cause he was swinging it at me. … And then I started swinging it back.” (Transcript p.45 lines 1-9) He agrees with the officer conducting the interview that the two-by-four was something Mr. Sutton “brought it to the fightbasically”. (Transcript p. 47 line 1 – 12) [101] The accused admits that Mr. Sutton “didn’t really get me very well …” (Transcript p. 45 line lines 11-12). This is supported bythe fact that apart from the bite mark caused by Ms.

Bear earlier in the evening and a “couple scrapes” on his leg (Transcript p. 11 lines 5-8), there were no injuries noted by the police in their examination of the accused that appear to be caused by Mr. Sutton. He did notrequire any medical attention. [102] After taking the two-by-four from Mr. Sutton, the accused admits to hitting Mr. Sutton, “All in the face”, and nowhere else thathe could remember. (Transcript p. 47 lines 14-20) [103] In respect of other weapons, the accused acknowledged that while there were other weapons that Mr.

Sutton kept in the residencesuch as a baseball bat and knives, he acknowledges that Mr. Sutton did not try to use any other weapons. As he stated in respect of theuse of weapons during the altercation, there were no other weapons that were used, “… not during the fight. No. Just two by four andthat’s it. I don’t know why, but I think it was just the closest thing to him when he started reacting.” (Transcript pp. 58 line 16 throughto p. 59 line 19) [104] I accept the accused stating that he “hit [Mr. Sutton] in the head a few times and then he ran outside.” I do not accept that he then“grabbed [Ms.

Bear] and we ran out the back.” (Transcript p. 55 line 17-20) The evidence is clear that Mr. Sutton was hit at least seventimes with the two-by-four and probably more. The evidence of the pathologist is that the cumulative effect of the total number of blowsthat he inflicted upon Mr. Sutton would have rendered Mr. Sutton unconscious and incapable of movement. Mr. Sutton would not havebeen able to run out of the residence after the accused struck the last blow. [105] In my opinion, the evidence leads to the inescapable conclusion that the accused continued to hit Mr.

Sutton with the two-by-foureven after he fled the residence. The only weapon used by either party was the two-by-four and that the articles which might have beenthrown at the accused by Mr. Sutton before Mr. Sutton picked up the two-by-four “when [Mr. Sutton] started reacting”, did not appear tocause much if any concern to the accused. The final blow or blows that would have rendered Mr.

Sutton unconscious and incapable ofmovement would have occurred outside at the place he was found on the boulevard near the street itself, and not inside the residence oreven inside the fenced in area of the yard on which the residence stood. [106] In applying the test in W. (D.), our court of appeal has made it clear that the statements or the testimony or statements of theaccused are not to be considered in a vacuum. As the court held in Menow: 23 ….

To assess the evidence of the accused in a vacuum ignores the fact that the whole purpose of the trial is to determine whetheror not the accused is guilty of the offence for which he or she is charged. It is impossible for an accused’s evidence to be consideredwithout a factual or contextual backdrop for the charge itself. Furthermore, such a method of analysis would effectively prevent the courtfrom considering evidence favourable to the accused when deciding whether or not to believe him or her. To ignore evidence favourable

to an accused person in assessing his or her credibility is contrary to principles of fundamental justice. 24 The accused maintains that the trial judge also fell into error by analyzing his evidence and finding him unbelievable in the firststage of her analysis. He says that this order of analysis caused her to conflate the first and second prongs of the W.(D.) test in that,having already found him unbelievable, there was nothing left for her to consider in respect of the other evidence called in the trial. 25 In the recent case of R. v.

Vuradin, 2013 SCC 38 (released after the oral hearing of this matter) Karakatsanis J. writing on behalf ofa unanimous court, clearly rejected such a notion when she stated (at para. 21): ….

The order in which a trial judge makes credibility findings of witnesses is inconsequential as long as the principle of reasonabledoubt remains the central consideration. …. 26 Moreover, contrary to the accused’s assertion that the trial judge conflated the first and second stages of the W.(D.) analysis,failure by the trial judge to specifically analyze the second prong of W.(D.) does not necessarily constitute an error in law. See R. v.D.K.B., 2012 MBCA 114 at paras. 5-6, and R. v.

Gagnon, 2006 SCC 17 at para. 11, [2006] 1 S.C.R. 621. 27 In Vuradin, this concept was reinforced by Karakatsanis J. when she stated (at para 27): In the result, the trial judge rejected the appellant’s testimony. In Boucher [2005 SCC 72, [2005] 3 S.C.R. 499], Charron J. (dissenting inpart) stated that when a trial judge rejects an accused’s testimony, “it can generally be concluded that the testimony failed to raise areasonable doubt in the judge’s mind” (para. 59).

Similarly, in R.E.M. [2008 SCC 51, [2008] 3 S.C.R. 3], McLachlin C.J. stated that “theconvictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt” (para. 66). 28 In this case, it is clear that the trial judge rejected the testimony of the accused to such an extent that she was left with noreasonable doubt after conducting the first two stages of the W.(D.) analysis.

Therefore, the accused’s argument with respect to themanner in which the trial judge undertook the W.(D.) assessment cannot be sustained. [107] As the accused has admitted, he was “in control” and not high at the time of the altercation. [108] Accordingly, an application of the three step test in W. (D.), as modified in the context of self-defence, the evidence found in thestatements of the accused as well as the other evidence, does not lead to a reasonable doubt in my mind that the accused not only causedthe death of Mr.

Sutton, but on the evidence that I do accept, I am satisfied beyond a reasonable doubt that the accused had the requisitemental intent to commit second degree murder at the time he killed Mr. Sutton.

The evidence demonstrates that the Crown has provenall elements of the crime of second degree murder beyond a reasonable doubt including the intent that the accused meant to cause Mr.Sutton bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not. [109] I come to this conclusion bearing in mind the principle established in the Villaroman case and the use of circumstantial evidence.

In this case, all of my conclusions on the evidence, with perhaps my conclusion as to where the last blows were struck that rendered Mr.Sutton unconscious and incapable of movement being the possible exception, are based on direct evidence. The direct evidence is foundin the statement of the accused in which he admits, inter alia, he struck Mr. Sutton “a few times” with the two-by-four before Mr.

Suttonran out of the residence. [110] In Villaroman, the court held at para. 55 in respect of circumstantial evidence: Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, couldreasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence: Yebes, at p.186; R. v. Mars (2006), (ON CA), 205 C.C.C. (3d) 376 (Ont. C.A.), at para. 4; R. v. Liu (1989), 1989 ABCA 95, 95 A.R. 201 (C.A.), at para. 13; R. v. S.L.R., 2003 ABCA 148 ; R. v.

Cardinal (1990), 1990 ABCA 115 , 106A.R. 91 (C.A.); R. v. Kaysaywaysemat (1992), (SK CA), 97 Sask. R. 66 (C.A.), at paras. 28 and 31. [111] If the principle established in Villaroman related to the consideration of circumstantial evidence is applicable here, in applying it,I have no hesitation in concluding that I am satisfied that the accused’s guilt in respect of the essential elements of the crime of seconddegree murder, including the requisite mental intent, is the only reasonable conclusion available on the totality of the evidence. This

applies to my finding that the accused admittedly not only struck Mr. Sutton “a few times” with the two-by-four inside the residence, but that he continued to strike Mr. Sutton with that two-by-four after he followed Mr. Sutton out of the residence after Mr. Sutton fled the residence, striking him with that two-by-four until he was unconscious and unable to move, dying in the location where Dr. Schnerch found him. [ 112 ] Accordingly, for the reasons set out herein, I find the accused guilty of second degree murder as alleged in the indictment. J.