R. v. Boissonneault (M.J.), 2012 MBCA 40

Citation: R. v. Boissonneault (M.J.), 2012 MBCA 40 Date: 20120508 Docket: AR 11-30-07591 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Barbara M. Hamilton Mr. Justice Martin H. Freedman BETWEEN : HER MAJESTY THE QUEEN ) S. G. Paler ) for the Appellant Respondent ) ) C. A. Vanderhooft ) for the Respondent - and - ) ) Appeal heard: ) April 3, 2012 MARK JOSEPH BOISSONNEAULT ) ) Judgment delivered: (Accused) Appellant ) May 8, 2012 MONNIN J.A. 1 This is an appeal from a conviction of attempt murder.

In addition, the accused appeals the sentence of 17 years in total imposed as a result of that conviction along with convictions of possessing a firearm contrary to a prohibition order and of possessing a restricted or prohibited firearm with ammunition. 2 The attempt murder charge was laid following the shooting of Terry McLeod on August 6, 2008.

The trial of the matter proceeded before a judge alone. 3 The Crown alleged that the accused intentionally shot the victim while the accused testified that although he was holding the firearm that shot the victim, the shooting had been an accident. 4 The accused’s appeal as to conviction is on the basis that the judge erred in concluding that the Crown had established that he had the requisite intent to justify a finding of attempt murder.

Facts 5 On August 6, 2008, in the late afternoon, the victim, who was a taxi driver, was sitting in the driver’s seat of his taxi, in a back lane in Winnipeg, along with Edward Gordon, the owner of the taxi, who was sitting in the rear seat of the taxi. The accused, the victim and Gordon all knew one another. 6 The victim testified that as he and Gordon were talking, he felt something on his side which he thought might be a finger. He did not think it was a gun until it went off. He further testified that the gun went off less than five seconds after he felt the thing on his side.

He did not see the face of the person who shot him, but he was able to see his hair, which “[h]e ‘pretty well’ knew … was [that of the accused’s] from his braids.” 7 Gordon testified that he saw the shot fired. While he did not see the person’s face, he saw the gun inside the door- frame about six to ten inches from the victim’s side. He heard the person carrying the gun say a couple of words, but did not know what they were. He recognized the voice as the accused’s. 8 The accused testified on his own behalf.

The judge summarized his evidence as follows in his reasons (at para. 6): … In the days leading up to the shooting he had been living a pretty wild lifestyle. He was drinking, smoking crack cocaine and

marihuana, and not sleeping very much. On the day in question, his friend Ernie Blackburn picked him up at his home. Mr. Blackburnasked him to do him a favour. Mr. Blackburn wanted him to get rid of one of his handguns, a black revolver style 357 Smith andWesson. He wanted him to either sell it for cash or trade it for crack cocaine. He decided to go to Jason Thiessen’s place to see if hewas interested in purchasing the gun. Mr. Thiessen lived at 548 William Avenue in the same house as Mr. Gordon. He got his girlfriendYolonda and her grandfather to drive him there. They dropped him off and left.

When he arrived he noticed the taxi parked in the backlane. He thought either Mr. Gordon or Mr. McLeod would be in the taxi. He decided to approach Mr. Gordon to see if he was interestedin purchasing the handgun. He had it in his waistband. As he walked toward the taxi, he saw both Mr. McLeod and Mr. Gordon in it. He pulled the gun out and placed his hand on the trigger “like a moron” and said, “Hey, check this out”. He was wearing summersandals which caused him to trip and hit the edge of the door-frame. As he tried to prevent himself from falling, the gun went off. Hetook off. He didn’t know he had shot Mr.

McLeod. He called Mr. Blackburn and asked him to pick him up. He told Mr. Blackburnwhat had happened. They went and tossed the gun into the river. The gun probably had had six rounds in it. Mr. Blackburn had loadedit before he gave it to him. Mr. Thiessen later told him he had shot Mr. McLeod. He did not intend to shoot Mr.

McLeod. 9 Following the shooting, the accused fled the scene and threw the gun into a river. 10 In a statement to the police following his arrest, which statement was admitted into evidence, the accused stated that heknew the victim and that he had a strong dislike for him. 11 The judge was well aware of the test that had to be met in order to ground a conviction. After setting out the test in R.v. W.(D.), (SCC), [1991] 1 S.C.R. 742, in text-book fashion, he went on to state (at paras. 9-14): I do not believe Mr.

Boissonneault’s evidence that the shooting was accidental nor does his evidence when considered in the context ofthe evidence as a whole leave me with a reasonable doubt as to whether the shooting was accidental. I do not believe Mr. Boissonneault’s evidence that Yolonda and her grandfather left after they dropped him off at Mr. Gordon’s home. Itseems unlikely if his purpose in coming to Mr. Gordon’s home was simply to try to sell or trade the gun that they would have left himthere without a ride home. Moreover, his evidence is inconsistent with the evidence of Mr. Gordon. Mr.

Gordon testified he sawYolonda at the scene moments after the shooting and heard her say, “Are you okay?” His evidence in this regard is supported byMr. McLeod’s evidence that he heard a woman’s voice in the vicinity following the shooting. I also do not believe Mr. Boissonneault’s claim that he tripped and hit the edge of the door-frame of the vehicle causing the gun to gooff. If Mr. Boissonneault had hit the edge of the door-frame in the manner he described, I would have expected Mr. McLeod andMr. Gordon to hear some noise and likely feel some jolting of the vehicle. The first thing Mr.

McLeod noticed was feeling somethingpoking him in the ribs. Mr. Gordon saw the gun inside the door-frame about six to ten inches from Mr. McLeod’s side. The bulletwound Mr. McLeod sustained is consistent with the evidence given by Mr. McLeod and Mr. Gordon. On the other hand, it isimpossible for me to understand how Mr. McLeod would have sustained the injury he did without the gun being inside the vehicle at thetime of the shot. Indeed, I find Mr. Boissonneault’s version of what happened that day to be totally implausible. Why if his plan was to simply sell ortrade the gun would it have been loaded?

Why would he have had his hand on the trigger as he approached the vehicle? I accept the evidence of Mr. McLeod and Mr. Gordon. Their accounts of what happened were consistent with each other and with thelocation of the bullet wound. In fact, many of the details of their evidence such as where they were seated and what they were doingwere confirmed by Mr. Boissonneault. The only reasonable inference from the totality of the evidence is that Mr. Boissonneault deliberately shot Mr. McLeod.

It follows that Iam satisfied beyond a reasonable doubt of his guilt on counts 2, 3 and 9. 12 The judge then went on to deal specifically with the issue of attempt murder (at paras. 15-16, 19-21): This leaves the attempted murder charge for me to consider. The Crown referred me to R. v. Ancio, (SCC), [1984] 1S.C.R. 225; 52 N.R. 161; 2 O.A.C. 124. According to Ancio, in order for the Crown to obtain a conviction for attempted murder, it mustestablish Mr. Boissonneault had the specific intent to kill. The Crown also referred me to the comments of Cory, J.A. (as he then was), in R. v.

Bains and Grewal (1985), 7 O.A.C. 67; 1985CarswellOnt 1590 (C.A.), at para. 27: All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at closerange, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portionof the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gunwas fired with the intention of killing the victim.

No other reasonable conclusion can be reached: a deadly weapon was used in the verymanner for which it was designed - to cause death. It is appropriate to conclude that in these circumstances the gun was fired in orderthat it might fulfil its design function and kill. An element of surprise arises only if death does not occur.

I am satisfied the only reasonable inference I can draw from the totality of the evidence is that Mr. Boissonneault intended to killMr. McLeod when he shot him. While Mr. Boissonneault may have been using drugs and alcohol and getting little sleep in the days leading up to the incident, he knewwhat he was doing. He has a clear recollection of the events before, during and following the shooting. He went to Mr. Gordon’s homewith a handgun which he knew was loaded. There is no question, based on his own evidence and what he told the police following hisarrest, that he harboured an intense hatred of Mr. McLeod.

While he may not have known that Mr. McLeod would be at Mr. Gordon’sresidence, he realized Mr. McLeod and Mr. Gordon were both in the vehicle as he approached it. He deliberately fired the handgun atclose range at a vital portion of Mr. McLeod’s body - Mr. McLeod’s upper left abdomen. When he was speaking to the police, followinghis arrest, he never expressed any concern about Mr. McLeod’s welfare. To the contrary, he repeatedly ranted to them about what aterrible person Mr. McLeod was. There was clearly no indication of any remorse on his part when he was speaking to the policefollowing his arrest.

Nor was there any genuine indication of remorse during his testimony at trial. The comments of Cory, J.A., in Bains which I referred to earlier are equally applicable to this case. As the only reasonable conclusion Ican draw from the totality of the evidence is that Mr. Boissonneault intended to kill Mr. McLeod, I am finding him guilty on all tencounts in the indictment.

Conviction appeal 13 Although not raised as a ground of appeal, and in spite of the fact that counsel for the accused advised the court that hewas not putting into issue the credibility findings made by the judge, he nonetheless argued that the factors that the judge consideredwhen making his findings were suspect. He went on to suggest that some of those were either speculative or based on incorrectinferences. 14 It is only in rare circumstances that an appellate court will overturn credibility findings of a trial judge, as this courtconfirmed in R. v.

Rocha (S.), 2009 MBCA 26, 236 Man.R. (2d) 213 (at para. 35): This deferential stance is even more pronounced when the case turns on credibility. It has been stated repeatedly and recently, that rarelywill deficiencies in the trial judge’s credibility analysis warrant appellate intervention. See R. v. R.E.M. [2008 SCC 51, [2008] 3 S.C.R.3], where McLachlin, C.J.C., indicates, while referring to R. v. Dinardo (J.), 2008 SCC 24 , [2008] 1 S.C.R. 788; 374 N.R.198; 2008 SCC 24 (at paras. 31-32): More recently, in R. v. Dinardo, ... the court, per Charron, J., rejected a formalistic approach.

The case turned on credibility. The trialjudge’s reasons failed to articulate the alternatives to be considered in determining reasonable doubt as set out in R. v. D.W., (SCC), [1991] 1 S.C.R. 742.

Charron, J., stated that only the substance, not the form, of D.W. need be captured by the trialjudge, then went on to say: In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether theaccused’s evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. [para. 23] Charron, J., went on to state that where credibility is a determinative issue, deference is in order and intervention will be rare (para. 26).

While the reasons must explain why the evidence raised no reasonable doubt, “there is no general requirement that reasons be sodetailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to andconsidered all of the evidence, or answer each and every argument of counsel” (para. 30). (Emphasis added) 15 This is not such a rare case. The judge properly considered the evidence that was before him and drew inferences thatwere available to him based on that evidence.

The judge committed no error in arriving at the credibility findings that he did. There isno merit to this ground of appeal. 16 The accused argued another ground of appeal that again had not been set out in his notice of appeal and this was that,the reasons of the judge were insufficient. 17 This court addressed the question of sufficiency of reasons in R. v. Oddleifson (J.N.), 2010 MBCA 44, 255 Man.R. (2d)68, in these terms (at para. 30):

The standard of review with respect to the insufficiency of reasons is the standard of adequacy. Reasons will not be inadequate if, whenread in their entire context, they fulfill the threefold purpose of informing the parties of the basis of the verdict, providing publicaccountability and permitting meaningful appeal (see R. v. R.E.M., 2008 SCC 51 , [2008] 3 S.C.R. 3; 380 N.R. 47; 260B.C.A.C. 40; 439 W.A.C. 40; 2008 SCC 51). 18 There is also no merit to this ground of appeal. When read in their entire context, the reasons of the judge meet thethree-pronged test set out above.

The sufficiency of those reasons, in my view, becomes especially unassailable when, after rejecting theaccused’s evidence, the judge goes on to refer to and rely on the comments set out in R. v. Bains and Grewal (1985), 7 O.A.C. 67. 19 I finally deal with the accused’s stated ground of appeal that the judge erred in finding that the accused had the specificintent to kill. As soon as the judge rejected the accused’s accident theory, which he did in clear and strong terms, it then became open tohim to deal with the issue of intent in the manner that he did.

There was ample evidence on which to support the conviction and thejudge was clear in his explanation as to why he was convicting the accused. 20 There was direct evidence that the judge could and did rely on to infer that the accused had the specific intent to kill thevictim. There were no inferences drawn that were plainly contradicted by or incompatible with the evidence and the findings of fact. The judge committed no error in law in coming to the finding that the accused had the specific intent to kill the victim and, accordingly, Iwould dismiss the appeal as to conviction.

Sentence appeal 21 This court cannot intervene on a sentence appeal unless the judge erred in principle or the sentence is unfit. 22 With respect to the global sentence imposed, the accused argues that the judge did not pay sufficient attention to theprinciple of totality and that, in that context, the sentences imposed for the possession charges should have been made concurrent and notconsecutive to the attempt murder sentence. 23 In reply, the Crown argues that it was open to the judge to impose consecutive sentences for the possession offencesand that the judge considered the issue of totality when he gave the accused a two-for-one credit for time served prior to his sentencing. 24 I do not disagree with the Crown that it was open to the judge to impose consecutive sentences, but I do not understandwhy he made those sentences consecutive as opposed to concurrent because he provides no explanation for doing so.

As a result, I amunable to consider why the sentences were made to be consecutive as opposed to concurrent. This dearth of explanation is, in my view,an error in principle, as set out in Oddleifson. This lack of reasons is magnified in a case such as this one when the sentences are beingmade consecutive to what is an already substantial sentence. In addition, there appears to have been no consideration of the totalityprinciple, as referred to in s. 718.2(

c) of the Criminal Code, which provides: Other sentencing principles 718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . . . (

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; . . . . . 25 Furthermore, I do not accept the Crown’s submission that the totality of the sentence imposed was addressed by takinginto consideration the credit being given to the accused for his pre-trial detention. In appearing to do so, the judge erred. The credit fortime served, whatever it might be, has no place in the consideration of what the sentence should be. It is immaterial to what is a fit andproper sentence.

It is simply a credit to be applied against what a judge otherwise considers to be a fit and proper sentence. 26 The comments of Steel J.A. in R. v. Draper (T.G.), 2010 MBCA 35, 251 Man.R. (2d) 267, set out clearly the steps thatare to be taken by a judge when imposing a sentence for multiple offences (at para. 30): That procedure is for the sentencing judge to first determine whether the offences in question are to be served consecutively or not. Second, if they are to be served consecutively, then an appropriate sentence for each offence should be determined.

Third, the totalityprinciple should be applied to the total sentence thereby arrived at to ensure that the total sentence is not excessive for this offender as anindividual. In effect, the sentence must be given a “last look”. Fourth, if the judge decides that it is excessive, then the sentence must beadjusted appropriately. In some cases that might require a significant adjustment.

27 I am well aware that appellate courts owe deference to a judge’s decision to impose a consecutive sentence as opposed to a concurrent one, but, in my view, that deference is lessened, as in this case, when there is no obvious reason to do so and no reasons are provided by way of explanation. Had the offences for which the consecutive sentences were imposed arisen from separate events or transactions, I might understand the need to impose consecutive sentences with little explanation, but that is not the situation. The possession offences are part and parcel of the attempt murder. See D.I.D.B. c.

R. , 2006 QCCA 459 at para. 17 (QL) , and R. v. Tettersell , 2012 ABCA 57 (QL) . 28 I do not question the appropriateness of the sentence of 14 years imposed on the attempt murder charge. It is well within the range of an acceptable sentence for that offence. I do, however, believe that the total sentence of 17 years was excessive when I take that “last look” in accordance with the totality principle and consider the accused’s background. Although he has a significant criminal record, the majority of his convictions are drug related and very few are crimes of violence.

Also, although he has been involved with the justice system on numerous occasions, his longest period of incarceration prior to these offences was no more than 17 months. 29 Therefore, because of the error associated with the lack of reasons for imposing consecutive sentences for the possession offences and because there appears to have been no consideration of the totality principle, it is open to this court to interfere with the sentences imposed.

I would not vary the time periods imposed for each offence, but I would make the sentences imposed on the two possession counts concurrent to the sentence for attempt murder, thereby reducing the total sentence imposed from 17 years to 14. I would not interfere with the credit allowed for time served prior to sentencing. 30 Therefore, in

summary, I would dismiss the conviction appeal and grant leave to appeal the sentences imposed and vary the sentence to the extent explained. J.A. I agree: J.A. I agree: J.A.