R. v. Cansanay (J.H.), 2012 MBCA 103

Citation: R. v. Cansanay (J.H.), 2012 MBCA 103 Date: 20121024 Docket: AR 10-30-07395 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin Mr. Justice Alan D. MacInnes BETWEEN : ) HER MAJESTY THE QUEEN ) G. G. Brodsky, Q.C. ) for the Appellant Respondent ) ) N. M. Cutler - and - ) for the Respondent ) JEFFREY HERNANDEZ CANSANAY ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) October 24, 2012 ) CHARTIER J.A. (for the Court): 1 The accused appeals his convictions for second degree murder and three counts of discharging a firearm with intent to wound.

The principal issues are whether the trial judge erred: 1) by refusing to grant a mistrial; 2) by admitting two out-of-court statements of Corey Amyotte (Amyotte) for the truth of their contents; 3) by finding there was no air of reality to the claim of self- defence; and 4) by failing to charge on provocation. 2 On the mistrial issue, the decision to grant or refuse is an exercise in judicial discretion and, unless there was misdirection on the part of the judge or the decision is so clearly wrong as to amount to an injustice, appellate intervention would be unwarranted (see R. v.

Grant (I.M.) , 2009 MBCA 9 at para. 69 , 236 Man.R. (2d) 54 , leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 94 (QL)). 3 The mistrial request came about near the very end of a multi-week trial, when Crown counsel was questioning, on re- examination, its last witness (Amyotte) on a topic first raised by defence counsel during cross. Amyotte was asked a question about a phone call he had made to the host of a live radio program .

Crown counsel was referencing a question the host had asked him: “Gharib Abdullah did identify Jeff Cansanay and the other youth who can’t be named who was just convicted the other day.” Defence counsel objected immediately and the question was never answered. 4 The accused requested a mistrial, arguing that the information disclosed in the impugned question was prejudicial to the accused because the jury would fall into the “guilt by association” reasoning on the basis that a co-accused, who arguably had been less involved than the accused, had already been convicted. 5 The trial judge denied the request for a mistrial noting that the question had not been answered and that it did not relate to the accused’s involvement in the offences.

We also note that the question did not specify that “the other youth” was a co- accused, nor did it indicate the offence(

s) for which he had been convicted. 6 The trial judge was, however, of the view that a remedy was required. She opted to remedy any potential prejudice to the accused by giving a specific direction to the jury as part of her final instructions. We have reviewed her direction and we consider it quite appropriate in the circumstances. Moreover, we are all of the view that the accused has been unable to demonstrate that the trial

judge misdirected herself or that her refusal to grant the mistrial was wrong, let alone so clearly wrong as to amount to an injustice. To quote from a case from the Ontario Court of Appeal referred to by the trial judge in her reasons denying the request for a mistrial ( 2010 MBQB 86 at para. 16 , 257 Man.R. (2d) 188 ): … I explicitly endorse the application judge’s statement that “[t]he declaration of a mistrial … should be granted only as a last resort, in the clearest of cases and where no remedy short of that relief will adequately redress the actual harm occasioned”. [ R. v.

Toutissani , 2007 ONCA 773 (QL) at para. 9] 7 The second issue is whether the trial judge erred in admitting both of Amyotte’s out-of-court statements for the truth of their contents. A little background is required. At the accused’s first trial, both Amyotte and another key witness refused to testify. The Crown applied to have their statements admitted for their truth. The trial judge ruled that they were inadmissible and the accused was acquitted.

On appeal, this court concluded that the trial judge had misapplied the law on his consideration of whether to admit the statements and a new trial (this trial) was ordered. 8 A co-accused was also tried separately from this accused, but on the same charges. Again, both key witnesses had refused to testify. In this second case against the co-accused, a different trial judge admitted both statements and the co-accused was convicted.

On appeal, this court upheld the decision to admit the hearsay statements, as well as the convictions. 9 The accused contends that on this second trial, the trial judge’s reasons show that she erroneously founded her decision to admit the statements on the basis of the earlier appellate court decisions involving this accused and the co-accused. He points to her reasons when she said ( 2010 MBQB 79 at para. 13 , 257 Man.R. (2d) 164 ): ….

As I explain below, in my view, in the absence of distinguishing facts in the case as presented before me, I am bound by the decisions of the Court of Appeal. …. 10 We are all of the view that the accused’s contention must be rejected. As was made clear in R. v. Blackman , 2008 SCC 37 at paras. 36 , 52, [2008] 2 S.C.R. 298, provided the trial judge applied the correct principles of law, the ruling on a hearsay admissibility inquiry will be entitled to deference if it is reasonable and supported by the evidence. In the case at hand, t he trial judge gave full and comprehensive reasons.

She correctly stated and applied the law. A fair reading of the whole of her decision clearly shows that she conducted her own independent analysis. Moreover, her decision is reasonable and supported by the evidence. 11 The third issue was whether the trial judge erred when she found that there was no air of reality to the accused’s claim of self-defence. This issue raises a question of law and is to be reviewed on the correctness standard (see R. v.

Cinous , 2002 SCC 29 at para. 55 , [2002] 2 S.C.R. 3). 12 The accused contends that in making her finding the trial judge improperly introduced the concept of “proportionate force” in her consideration of s. 34(2) of the Criminal Code (the Code ) when she said “in my view, no jury acting reasonably could find that his continued shooting at the backs of his retreating adversaries was the use of proportionate force” ( 2010 MBQB 92 at para. 19 , 257 Man.R. (2d) 192).

While the accused is right that “proportionate force” is not a requirement under s. 34(2) , it does however play a role when considering ss. 34(1), 37 and 41. Again, a fair reading of the whole of the trial judge’s decision has led us to conclude that the impugned passage was in reference to ss. 34(1) , 37 and 41 of the Code , not s. 34(2) . Her reasons also demonstrate that she was keenly aware of the applicable law, for example, where she said (at paras. 13-14): Before determining if there is an air of reality to self-defence, it is necessary to identify which sections of the Criminal Code are in issue.

Defence counsel indicated he is relying upon ss. 34(2) and 37 , but pointed out that the trial judge has an obligation to put all sections to the jury which arise from the evidence even when the defence fails to raise them …. In my view, assuming the evidence to which I have referred is true, the potentially applicable sections are ss. 34(1) , 34(2) , 37 and 41 .

I will address ss. 34(1), 37 and 41 together, as all require that the accused use proportionate force in repelling an assault or threatened assault. 13 The thrust of the accused’s argument on this issue at the hearing of the appeal is that there was an air of reality to the self-defence claim under s. 34(2). We disagree.

In our view the trial judge was correct in finding that, while there was an air of reality to the first two essential elements of the claim of self-defence under s. 34(2) and, more specifically, that there was an air of reality to the accused having a reasonable apprehension of a risk of death or grievous bodily harm, there was no air of reality to the third essential element: that the accused believed he had no alternative but to shoot his way out of the situation. 14 Finally, the accused argues that the trial judge erred by failing to charge on provocation. At trial, the position of

counsel for the accused was that he was not going to raise provocation or mention it in his closing address to the jury. We are of the view that there is no merit to this ground. T he subjective element required for provocation lacked the necessary evidentiary foundation for it to have been left with the jury. As the accused d id not testify, the subjective element had to be established by circumstantial evidence. We agree with the Crown that such evidence was simply absent. 15 With respect to the other grounds raised by the accused, we are all of the view that they are without merit. 16 In the result, the appeal is dismissed. J.A. J.A. J.A.