R. v. Cassan (E.R.), 2012 MBCA 46

Citation: R. v. Cassan (E.R.), 2012 MBCA 46 Date: 20120529 Docket: AR 11-30-07495 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Mr. Justice Martin H. Freedman Madam Justice Holly C. Beard B E T W E E N : HER MAJESTY THE QUEEN ) S. B. Simmonds and ) D. A. Ireland Respondent ) for the Appellant ) - and - ) E. A. Thomson ) for the Respondent ERIK RYAN CASSAN ) ) Appeal heard: (Accused) Appellant ) January 19, 2012 ) ) Judgment delivered: ) May 29, 2012 FREEDMAN J.A. OVERVIEW 1 While fighting with another man (John Lane), the appellant stabbed him 22 times.

Lane died and the appellant was convicted after a trial before a judge, sitting without a jury, of second degree murder. He appeals the conviction based on alleged errors by the judge regarding the defences of intoxication and provocation. He does not seek a new trial or an acquittal, but asks for a substituted verdict of manslaughter. In my opinion, his appeal of the conviction should be dismissed. 2 He was sentenced by the judge to life imprisonment with a parole ineligibility period of 12 years, which he seeks to have reduced to the minimum ten years.

In my opinion, his appeal of the sentence should also be dismissed. BACKGROUND 3 On the evening of March 17, 2007, a group of people were at a bar in Winnipeg. The composition of the group changed over the course of a few hours, but the appellant was there for a considerable time. Almost all were drinking. One participant said that the appellant was “drunk and stupid.” The appellant got into a scuffle with another patron at the bar and he was cut off from further drinks.

Nevertheless, he continued to drink. 4 Some time later, several members of the group, including the appellant, left the bar for Lane’s apartment. The appellant arrived with Carlie Buxton, a female member of the group at the bar. 5 Soon after he arrived, Lane and the appellant began to argue. Carlie Buxton testified that the appellant said to Lane that Lane had taken money from him on an earlier occasion, which Lane denied. The appellant was sitting in a chair and Lane was across the room from him, standing behind a bar. 6 The Crown and the appellant disagree, to some extent, on what happened next.

The appellant’s factum states that events then transpired as follows. The argument (which had been started by Lane picking a fight with the appellant) had created an atmosphere

of hostility. Cody Gross, who was standing with Lane, threatened to beat up the appellant if he did not stop arguing with Lane, and theappellant calmed down somewhat. Lane had a butcher’s knife in his hand and said to Gross, “self defence.” He lifted the knife and saidto the appellant: “Get the fuck out of here.” The fight started in the middle of the room, with Lane grabbing the appellant’s shirt andpunching him in the face. It was Lane who moved towards the appellant in an aggressive manner and began the fight. Lane waspunching the appellant, who began to bleed from the nose.

Lane continued to fight until he fell to the ground. He had received 22 stabwounds to his body. 7 The Crown’s factum states that events transpired this way. The appellant was calling or texting people on his phone. Lane told him no one else could come to the house as it was his son’s home, to which the appellant responded: “Fuck you and yourkid.” Lane then told the appellant to leave, and one witness saw Lane pointing a knife towards the door. The appellant did not leave,whereupon Lane put the knife down and approached the appellant to get him to leave. The appellant stood up and they started fighting.

Both threw punches and eventually Lane fell down. The autopsy showed that he had been stabbed 22 times in his upper body. A knifewas found in the living room, which the appellant said was similar to the knife he used at work. Lane’s blood was on the knife. 8 Both the Crown and the appellant agree that, after the fight, a friend of Lane struck the appellant with a beer bottle and astool, as he was attempting to leave. Two of the males prevented him from leaving and assaulted him severely. He was injured andbleeding, but managed to leave. 9 Two police officers arrived at 2:40 a.m.

One saw the appellant standing with no shirt on and covered in blood. He ran andthe officers were unable to catch him. Soon after, the police went to his house and they saw him run out the back door. They gavechase. He ran through snow and climbed over a four and one-half foot high fence. He continued to run in the area until he wascaptured.

The officers chasing him testified that he never stumbled or fell even though two of them slipped and had difficulty in thesnow. 10 The appellant was arrested and taken to a hospital, where he was noted to have lacerations to the top and back of his head,swelling and bruising to an eye and dried blood on his nose. When not being treated, he slept. The triage nurse had noted he wasintoxicated and medical staff said he smelled of alcohol. He was then taken to the Public Safety Building.

Police witnesses did notdetect an odour of alcohol and considered his state of sobriety to be “fine.” 11 The appellant testified that he could not recall much of that night. He said he had been drinking at a friend’s, where he hadsix beer. He went to another house, where he continued to drink. He didn’t remember much at the bar. He couldn’t remember, he said,arriving at Lane’s apartment, or who was present. He recalled that Lane had a knife and came at him from across the room, and hethought he was going to die.

He felt a “shot” in the head and couldn’t say whether he stabbed or punched Lane or if Lane stabbed orpunched him. He testified that he had no recollection of any confrontation with others in the room or of being struck with a bottle or astool. He had no recollection of a police chase. THE TRIAL AND THE DECISION 12 The appellant was charged with one count of second degree murder and elected to be tried by a judge alone.

The trial tookplace over several days, with the Crown adducing evidence from 15 witnesses, including police officers, a pathologist and nine personswho had been at the apartment or the bar (or both places). The appellant testified in his own defence. 13 In his lengthy decision, the judge reviewed extensively the evidence of the witnesses, and no objection is taken by theappellant to that review (although the appellant says the judge erred in his analysis of the facts on the issues of intent and intoxication).

He summarized the evidence of each of the witnesses who had commented upon the appellant’s state of intoxication during the eveningand at the apartment. 14 The judge had doubts about the credibility and reliability of the witness Katlyn Vanachte and accorded her evidence little, ifany, weight. Further, regarding the evidence of William “Cody” McGimpsey, he gave himself a “Vetrovec” caution (Vetrovec v. TheQueen, (SCC), [1982] 1 S.C.R. 811) in light of McGimpsey’s “significant criminal record” (at para. 152), and hisattempts to obtain some consideration for his testimony.

The judge considered his evidence “with great care and caution”, saying that itwould be dangerous (but not forbidden) for him to rely on that witness’s evidence if it was unconfirmed by other evidence (at para.154). He set out several examples of confirmatory evidence which restored his faith in parts of McGimpsey’s evidence and said he was“comfortable” in relying upon it with respect to most details of what happened (at para. 157).

McGimpsey had the least to drink of any ofthe persons at the apartment who testified. 15 The judge noted that the appellant was unable to remember a number of things about the evening in question. Theappellant said he did not know whether he stabbed Lane, or whether he punched him, or whether Lane punched or stabbed him. Theappellant could not say how he received the injuries he suffered, as shown on a series of photos. 16 The judge was struck by how much the appellant said he did not know, yet, coincidentally, he did clearly recall certainmatters.

The judge expressed “concern and some incredulity” about this, saying “in an ocean of amnesia, there appear to be islands ofrecall” (at para. 241). He expressed in detail the reasons for his skepticism. He concluded that it was all “too convenient,” and he foundthe supposed amnesia and selective memory not credible (at para. 246). Nevertheless, the judge did accept the appellant’s recollection ofthe alcohol he remembered having consumed. 17 He then undertook a detailed analysis, concluding that the appellant had caused Lane’s death unlawfully. As indicated, thisconclusion is not under appeal.

The judge then turned to the two issues that are before us, namely, whether the appellant had the state ofmind required for murder, and whether he had been provoked. 18 The judge accurately set out the legal elements applicable to whether the Crown had proven that the appellant had the stateof mind required for murder. He said that he had to consider all of the evidence including “what [the appellant] and the deceased did ordid not do; how [the appellant] and the deceased did or did not do it; and what [the appellant] and the deceased said or did not say” (atpara. 284).

He examined the appellant’s words and conduct before, at the time of and after the unlawful act that caused the victim’s

death, since they might shed light on his state of mind. 19 There was evidence about the appellant’s consumption of alcohol emanating from the appellant and from the persons at theapartment, as well as from a lab report prepared by a member of the R.C.M.P. The report said that, based on certain assumptions and ablood-alcohol reading taken at 5:05 a.m., the blood-alcohol level at about 3:00 a.m. would have been “between 179 and 221 mg.%,” andthat at about 2:30 a.m. “the estimate would be higher by 5 to 10 mg.%.” Also filed, by consent, was a report from Dr. A.

Kraut, whichstated that, based on the same assumptions, he estimated the blood-alcohol level at 2:30 a.m. as between 184 to 231 milligrams per cent. 20 The judge observed that intoxication does not excuse

an act where the person had the requisite state of mind or intent, as a“drunken intent is nonetheless an intent” (at para. 339). 21 The judge referred to R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, where, among other matters, the majority of theSupreme Court of Canada noted that there were “three legally relevant degrees of intoxication” (at para. 41). In Daley, the majorityquoted that court’s earlier decision in R. v.

Robinson, (SCC), [1996] 1 S.C.R. 683, that “in cases where the onlyquestion is whether the accused intended to kill the victim … intoxication short of incapacity will in most cases rarely raise a reasonabledoubt in the minds of jurors” (at para. 52). 22 The judge quoted at para. 343 of his decision the following from Daley (at para. 42): ….

Although I would hesitate to use the language of capacity to form intent, for fear that this may detract from the ultimate issue (namely,actual intent), the point of this passage, it seems to me, is that, for certain types of homicides, where death is the obvious consequence ofthe accused’s act, an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself orherself of an intoxication defence of this type.

And at para. 344 he again quoted from Daley (at para. 85): It is questionable whether loss of the capacity to form judgments and judge the appropriateness of one’s action equates with loss of theability to foresee the consequences of one’s actions. As discussed at para. 42 dealing with the Robinson case, it is hard to accept that aperson, here stabbing someone in the side, would not be able to realize such an action could kill. …. 23 He then considered the evidence of intoxication, accepting the appellant’s evidence on what he had consumed. The judgetook into account the evidence relating to blood-alcohol levels.

He decided that the appellant was intoxicated when he caused thevictim’s death. That led him to the essential question of whether the Crown had proved that the level of intoxication had not reached thepoint where the appellant lacked the intent required for murder; that is, that intoxication had not impaired his foresight of theconsequences of his act of stabbing the victim sufficiently to raise a reasonable doubt about the requisite mens rea (at para. 350). 24 The judge said he examined all the evidence, but especially what the appellant did shortly before, during and after his fightwith Lane.

He noted that the appellant was able to walk and talk on his arrival at the apartment. He was able to engage with Lane. 25 The judge then said (at para. 352): During the physical altercation between the deceased and the accused, the accused would have stabbed the deceased at least 22 times. Frankly, it is difficult to conceive how an individual inflicting so many stab wounds in the areas in which they were inflicted, would nothave the foresight with respect to the consequences of such

an act. Arguably, the fact of the 22 stab wounds alone constitutes thestrongest evidence that the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death orserious bodily harm. Put simply, I do not accept that the accused was so intoxicated that he could not foresee that stabbing the deceased22 times would result in his death. …. [emphasis added] 26 He found additional evidence to support this conclusion.

He noted the appellant had the presence of mind to try to leave theapartment, which was a “coherent and lucid reaction” to the hostility in the apartment (at para. 354).

He ultimately left the apartmentand the building. 27 The judge made it clear that he was taking into account the appellant’s actions after the fight only as indicators of a rational,logical and coherent reaction to perceived fears he may have had. 28 Similarly, the fact that the appellant went to his residence, about 1.4 kilometers in distance, took a shower and attempted apartial change of clothing indicated a lucid and logical reaction to the situation. Those actions, said the judge, like the others noted, and

like his evasion of the police without slipping and falling, shed light on the appellant’s intoxication and his state of mind. 29 The judge concluded that the Crown had proven beyond a reasonable doubt that, despite the evidence of intoxication, the appellant had the requisite state of mind for murder. 30 He then turned to the issue of provocation, referring to s. 232(1) of the Criminal Code , which reduces a killing that would otherwise be murder to manslaughter if the person who committed the act “did so in the heat of passion caused by sudden provocation.” He said (at para. 374): An accused must be acquitted of murder, but found guilty of manslaughter on the basis of provocation, only if all of the following four conditions are present: 1. there was a wrongful act or insult that was sufficient to deprive an ordinary person of the power of self control; 2. when the accused killed the deceased, he had lost the power of self control as a result of the wrongful act or insult; 3. the wrongful act or insult was sudden; and 4. the accused’s acts that caused the deceased’s death were committed suddenly and before there was time for his passion to cool. 31 He noted that the burden was on the Crown to prove that the defence of provocation did not apply, and if the Crown had proved that any one of the four conditions was not present, the defence of provocation would fail. 32 The judge decided that the Crown had established that there had been no wrongful act or insult by Lane directed towards the appellant sufficient to deprive an ordinary person of the power of self-control.

That is, the Crown had proved that the first of the four conditions was not present, so the defence of provocation failed. He reached that conclusion recognizing that he had earlier found that Lane’s initial application of force constituted an assault. He noted that the perspective was that of the ordinary person, thus not taking into account features peculiar to the appellant, such as his lack of sobriety. 33 The question, he said, was whether, in the face of the assault by Lane, an ordinary person would lose his self-control.

He said (at paras. 385-86): … I have re-examined the testimony of the civilian witnesses with respect to the details of the verbal argument and the respective actions of both the deceased and the accused leading up to the initial application of force by the deceased.

Keeping in mind that I have already rejected the accused’s version of what he said occurred seconds before being approached by the deceased and given that that version does not leave me with a reasonable doubt, I am left with evidence (coming from the civilian witnesses that I accept) of an assault, which even in the context of the original and heated argument that was taking place between the deceased and the accused, was not a wrongful act which would cause an ordinary person to lose his power of self-control.

Given that I have determined the Crown has proved beyond a reasonable doubt that there was no wrongful act sufficient to deprive an ordinary person of the power of self-control, the defence of provocation fails. It is thus not necessary to consider the remaining questions. 34 He found the appellant guilty of second degree murder. GROUNDS OF THE CONVICTION APPEAL 35 The appellant advances two grounds. He says the judge erred in finding that the defence of provocation did not apply, and erred in his analysis of the facts relating to intent and intoxication.

STANDARD OF REVIEW ON THE CONVICTION APPEAL 36 The issue relating to provocation is whether the judge erred in finding that the Crown had proved that the objective element in the defence of provocation was not satisfied, and thus erred in not considering any other elements in the defence, leading to the error in finding that the defence did not apply. Sections 232(2) and (3) of the Criminal Code provide:

What is provocation 232(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control isprovocation for the purposes of this

section if the accused acted on it on the sudden and before there was time for his passion to cool. Questions of fact 232(3) For the purposes of this section, the questions (

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

b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact …. 37 The question of whether Lane’s acts or insults were sufficient in the circumstances to deprive an ordinary person of thepower of self-control, and thereby amounted to provocation is, according to s. 232(3)(a), a question of fact. Such questions are answeredby the jury in a jury trial (see R. v. Thibert, (SCC), [1996] 1 S.C.R. 37 at para. 11) and by the judge in a trial before ajudge alone.

The judge’s finding on such a question, being a finding of fact, is reviewable by this court on a standard of palpable andoverriding error; see R. v. Grant, 2009 SCC 32 at para. 129, [2009] 2 S.C.R. 353, and R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6 (atpara. 9): …. Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they areclearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified.

And itmust be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm …. 38 On the issue of intent and intoxication, the appellant argues that the judge erred in his analysis of the facts. He asserts thatthe judge overlooked or under-weighed evidence and that he did not properly analyze the evidence. He complains, essentially, that thejudge found him to be less intoxicated than the evidence showed him to be. This argument also raises, in my view, a question of fact.

Asthe Supreme Court said in Daley (at para. 41): .… … “[A]dvanced” intoxication … occurs where there is intoxication to the point where the accused lacks specific intent, to the extentof an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisitemens rea.

The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials…. [emphasis added] 39 The question of whether the appellant had the degree of intoxication required to negate specific intent is a question for thefinder of fact, in this case, the judge, and the judge’s decision on that question is reviewable by this court on the standard of palpable andoverriding error. 40 Leave to appeal is required on both these grounds as they involve questions of fact; s. 675(1)(a)(ii) of the Criminal Code. 41 Headings in the appellant’s factum suggested that there was an issue with the judge’s analysis of the facts “and law” relatingto intent and intoxication, but the appellant’s objection, as argued both in the factum and orally, is only on the factual analysis and thejudge’s factual and inferential conclusions.

There was no argument that the judge had erred in his legal analysis, or in his application ofthe facts to the law (which would be reviewable on the standard of correctness; see R. v. Shepherd, 2009 SCC 35 at para. 20, [2009] 2S.C.R. 527). 42 The appellant also argues that this court should set aside the verdict on grounds that it was unreasonable or not supported bythe evidence, although unreasonable verdict was not raised as a ground of appeal.

That question is answered by deciding whether, on aconsideration of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered; see R.

v. Yebes, (SCC), [1987] 2 S.C.R. 168, R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, and R. v. Sinclair, 2011 SCC40, [2011] 3 S.C.R. 3. ANALYSIS AND DECISION 1.

PROVOCATION 43 The appellant argues that the evidence showed that he had lost control of his actions after he was set upon by Lane and, atthe least, there existed a reasonable doubt on that matter. 44 He says that the judge erred in finding that the attack “was not sufficient for the … Appellant to lose control in the heat ofthe moment,” and that the judge gave “no reasons for his decision that the actions of the deceased are insufficient to have the …Appellant lose control.” On my reading of the reasons, it is clear that the judge did not make such a finding or decision.

His analysisnever reached the stage where the appellant’s loss of self-control had to be considered. Rather, once the judge considered the objectiveelement in the

section and determined that there was no wrongful act by Lane that would cause an ordinary person to lose self-control, hedid not need to consider whether, in fact, the appellant had lost self-control. As Charron J. said in R. v.

Tran, 2010 SCC 58, [2010] 3S.C.R. 350 (at para. 22): “The provision incorporates an objective standard … that which may be expected of the ‘ordinary person’ inlike circumstances.” The court in Thibert said (at para. 14): “… [T]he objective element of the test exists to ensure that the criminal lawencourages reasonable and responsible behaviour.” 45 The judge, correctly in my view, considered the relevant evidence on the objective question without regard to factorspeculiar to the appellant; see Thibert.

He said (at para. 384): The question that I must answer concerning the ordinary person is whether that ordinary person, with the characteristics I have described,would lose his self-control because of the deceased’s initial assault of him.

The question is not whether the ordinary person would havereacted by killing the deceased or, more specific to the present case, the question is not whether the ordinary person would have lost hisor her self-control and ended up doing up exactly what the accused did (inflicting 22 stab wounds). 46 Nevertheless, the context of the particular provocation is clearly relevant when considering the objective element.

CharronJ. explained in Tran that (at para. 35): … [T]he particular circumstances in which the accused finds himself will also be relevant in determining the appropriate standard againstwhich to measure the accused’s conduct. This is also a matter of common sense, as it would be impossible to conceptualize how theordinary person might be expected to react without considering the relevant context.

Again here, however, care must be taken not to“subver[t] the logic of the objective [inquiry]” and assimilate circumstances that are peculiar to the individual accused into the objectivestandard (Hill [ (SCC), [1986] 1 S.C.R. 313], at p. 331). For example, in determining the appropriate objective standard,it will be relevant for the trier of fact to know that the alleged provocation occurred in circumstances where the deceased was wrongfullyfiring the accused from his long-term employment. This context is necessary to set the appropriate standard.

But the standard does notvary depending on the accused’s peculiar relationship or particular feelings about his employer or his employment. Personalcircumstances may be relevant to determining whether the accused was in fact provoked — the subjective element of the defence — butthey do not shift the ordinary person standard to suit the individual accused. In other words, there is an important distinction betweencontextualizing the objective standard, which is necessary and proper, and individualizing it, which only serves to defeat its purpose. [emphasis added] 47 The judge expressly considered the context.

He also considered the situation in which the appellant found himself, saying(at para. 382): In this case, an ordinary person would be someone of the same age and sex as the accused, who shares with him those othercharacteristics that would give the wrongful act a special significance in the circumstances. The ordinary person would also be one whohas experienced the same series of acts or insults as the accused and shares the same past history and relationship between the accusedand the deceased (to the extent that such a relationship has been explained in or is discernable on the evidence). See R. v.

Thibert(N.E.), (SCC), [1996] 1 S.C.R. 37; 192 N.R. 1; 178 A.R. 321; 110 W.A.C. 321. 48 He had before him evidence of an assault which, in the context of the argument, he concluded was not such a wrongful actas would cause an ordinary person to lose self-control. Implicit in this finding is that the assault by Lane was not at the higher end of thespectrum of assaults. That is a finding supported by the evidence.

Lane had lifted the knife and said to the appellant: “Get the fuck outof here.” But he then put the knife down, and the appellant conceded in cross-examination that “I never seen a knife when he wasrunning at me.” The fight started in the middle of the room. It was Lane who moved towards the appellant in an aggressive manner andbegan the fight by grabbing the appellant’s shirt and punching him in the face.

49 The judge concluded that such acts would not deprive an ordinary person of self-control. Such a person, he said, would notbe exceptionally excitable or combative or disposed to fight and would exercise the self-control that citizens are expected to exercise. Such a person would not be intoxicated. 50 The Crown refers to the decision of the Supreme Court in R. v. Squire, (SCC), [1977] 2 S.C.R. 13, asproviding an apt comparison of the circumstances in which the appellant found himself. In Squire, the drunken accused was in a fightand was kicked by the person he was fighting with.

The accused drew his gun and fired five shots at the person, killing him. The courtsaid (at p. 21): … [I]t is the duty of this Court to come to a decision whether those circumstances amount to any evidence that a reasonable jury actingjudicially could find a wrongful act or insult sufficient to deprive an ordinary person of the power of self-control (s. 215(2)), and I amstrongly of the view … that no jury acting judicially could come to such a conclusion. …. 51 See also R. v.

Gibson (J.T.), 2001 BCCA 297, 153 B.C.A.C. 61, where the British Columbia Court of Appeal said (at para.86): …. … [T]he sequelae of a lost match (as in Squire, the not unexpected blows exchanged during a consensual fight) are not such as todeprive the ordinary person of his power of self-control. As mentioned earlier, the ordinary person standard is adopted to fix the degreeof self-control and restraint expected of all in society. It recognizes human frailty when the threshold test is passed and a person isprovoked beyond the level of tolerance of the ordinary person.

Based on the evidence in this case no jury could find that under the samecircumstances an ordinary young man in the appellant’s place would have been provoked by the actions, words and gestures of thedeceased so as to cause him to lose his power of self-control. The nature of the alleged provocation in this case is not one recognized asfalling within the boundaries of s. 232 of the Criminal Code. 52 The appellant argues that the judge failed to provide reasons for his conclusion that the objective element had not beensatisfied.

In my view, the judge’s conclusion must be considered in the context of the entire judgment, where much of the evidence wasdiscussed. For example, the judge had earlier noted that the appellant accused Lane of stealing money from him, that he said to Lane, inresponse to being told by Lane not to invite people to his young son’s home, “Fuck you and your kid” and that Lane attempted to removethe recalcitrant appellant by approaching him and then by punching him. 53 On a review of the evidence, I am satisfied that the judge’s conclusion on the objective element in provocation issupportable.

When considering the reasons given by the judge for his conclusion, we are to consider the record as a whole and, even ifthe judge did not spell out in detail the precise basis for his conclusion, so long as the record supports it, which it does, we should notintervene; see R. v. Sheppard, 2002 SCC 26 at para. 46, [2002] 1 S.C.R. 869. 54 The judge concluded that, considering the evidence, the context, and the situation in which the appellant found himself, theCrown had proved that the objective component of the provocation defence failed.

An ordinary person might react, and might beprovoked into responding to the assault, but Lane’s wrongful act was not such as would cause that ordinary person to be deprived of thepower of self-control. On the evidence, the judge was entitled to conclude as he did. He made no palpable and overriding error inrelation to factual matters. He was correct in his analysis and application of s. 232. I would not give effect to this ground of appeal. 2.

INTENT AND INTOXICATION 55 The appellant argues that the judge placed undue weight on post-offence conduct, namely, the actions of the appellant infleeing the scene, and that he erred in finding that such conduct was of probative value on the issue of the necessary mens rea formurder. He says that “the weight of [the] evidence of intoxication far outweighed the probative value of the evidence of capacity of the… appellant to flee the scene of the crime.” 56 Further, he argues that the judge relied on the appellant’s capacity to flee the scene as evidence of his intention to kill Lane,and this was an error.

The judge, he argues, confused capacity to commit murder with intent to commit murder. The appellant’s actionsafter the fight, he says, evidence no more than the drunken capacity to flee from a beating, and are of no probative value on the centralquestion of whether he had formed the intent to murder Lane. He argues that the judge erred when he inferred that the appellant’sdecision to leave the hostile environment, which the judge had described as a “coherent and lucid reaction” (at para. 354), somehowconstituted evidence of an intention to kill Lane.

He acknowledges that there was some evidence of capacity after the fact, but says thatevidence adds nothing to the question of mens rea. 57 It was acceptable, the appellant says, for the judge to look at his words and conduct, but the conclusions the judge drew onintent were unsupported by any evidence. Moreover, he says that the evidence of his conduct immediately after Lane fell down wasequivocal.

For example, one witness (McGimpsey) who was more sober than Carlie Buxton or Allison Fogg, said that the appellantheaded towards him, not towards the door, and that is why he struck the appellant with a beer bottle and a stool. 58 The appellant says that “the vast majority of reasons” given by the judge on the issue of intent focus on the appellant’sactions after the fight, and not before or during, which would be far more relevant to determining intent.

The issue, argues the appellant,was whether the evidence showed that he actually formed the intent to kill Lane, and he relied on this from Daley (at para. 40): “Theultimate inquiry is always whether the accused possessed actual intent.”

59 He argues that, at the material time, he was in what Daley had described as a state of “advanced” intoxication, regarding which the Supreme Court said (at para. 41): …. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea .

The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials: In most murder cases, the focus for the trier of fact will be on the foreseeability prong of s. 229 ( a )(ii) of the Criminal Code , R.S.C., 1985, c. C-46, that is, on determining whether the accused foresaw that his or her actions were likely to cause the death of the victim. For example, consider the case where an accused and another individual engage in a fight outside a bar.

During the fight, the accused pins the other individual to the ground and delivers a kick to the head, which kills that person. In that type of a case, the jury will likely struggle, assuming they reject any self-defence or provocation claim, with the question of whether that accused foresaw that his or her actions would likely cause the death of the other individual. [para. 49] A defence based on this level of intoxication applies only to specific intent offences. 60 He says that the judge failed to refer to the report of Dr.

Kraut, filed with the Crown’s consent, which extrapolated from the actual blood-alcohol levels of the appellant taken some time after the incident to what they might have been at the time of the incident. The report filed by the Crown, from the R.C.M.P., had been expressly commented upon in the reasons. 61 The appellant argues that the evidence shows clearly that he was in an advanced state of intoxication at least until the fight, and subsequent evidence tending to show capacity to flee cannot negate the evidence suggesting a lack of intent to kill.

Moreover, after he was apprehended, he continually fell asleep, and the hospital staff noted that he appeared to be intoxicated.

He cites numerous other instances from the evidence showing his advanced degree of intoxication. 62 In my opinion, having reviewed the evidence and the judge’s reasons, the judge did not make any palpable and overriding error in his analysis of the facts relating to intent and intoxication. 63 In coming to a conclusion on the issue of intent and the related issue of intoxication, and on whether the appellant’s degree of intoxication negated the required specific intent for murder, the judge properly took into account the evidence of the appellant’s conduct before, during and after the incident.

As he said, those circumstances “may shed light” on the appellant’s state of mind “at the time he caused the deceased’s death” (at para. 337).

The evidence of post-offence conduct was only one piece of the evidence which the judge considered. 64 The judge referred to the evidence in exhibit 7, the R.C.M.P. report, stating that (at para. 338): …. … [T]he opinion provided in Exhibit 7 stipulates that based upon a brief history received for the purposes of the blood-alcohol concentration estimate, and based upon the assumption that drinking concluded at 2:00 a.m. (or earlier) and that the blood-alcohol level at 5:05 a.m. was 158 to 179 mg. %, the blood-alcohol concentration at approximately 3:00 on the morning in question would have been between 179 and 221 mg. %.

I note that Exhibit 7 further stipulated that if the incident had occurred earlier in time, the resulting estimate would be higher, considering similar parameters. For example, if the incident had occurred at 2:30 a.m., the estimate would be higher by 5 to 10 mg. %. 65 While at that point in his judgment he made no reference to the report of Dr. Kraut, he had earlier (in para. 25) made note of it. Dr. Kraut’s report (exhibit 10) stated that if the incident occurred at 2:30 a.m., the appellant’s blood-alcohol concentration would be between 184 to 231 milligrams per cent. These numbers are the same (at least on one

interpretation of the report) as would be the result of the estimate for that same time contained in the last sentence of the R.C.M.P. report. As the appellant’s counsel correctly indicated when he tendered Dr.

Kraut’s report: “It doesn’t make a huge difference to the calculations ….” In my view, the fact that the judge made no express reference to it when he dealt with intent is not a factor to be considered, and nothing turns on it. 66 He accepted that the evidence established that the appellant was intoxicated at the time of the offence, but said that an intoxicated person may nevertheless have the requisite state of mind.

He stated that he considered “all of the other evidence and facts which throw light on his intent” (at para. 346), and in particular he focussed on the evidence of what the appellant did “shortly before, during and after” the fight (at para. 350). 67 In my view, it was entirely proper for the judge to focus on the evidence of that conduct, as it constituted the important factual context in which Lane’s death occurred.

There is nothing in the reasons to suggest that the judge was assessing capacity for its own sake; any reference to capacity was only for the purpose of its relevance to the ultimate question of intent. 68 The judge was strongly, and probably decisively, influenced on the question of intent by the conduct of the appellant in stabbing Lane 22 times, saying (at para. 352):

…. Arguably, the fact of the 22 stab wounds alone constitutes the strongest evidence that the accused intended to kill or cause bodilyharm with the foresight that the likely consequence was death or serious bodily harm. …. 69 He quoted para. 42 of Daley (see para. 22 above) to the effect that if death is the obvious consequence of

an act, there mustbe a “particularly advanced degree of intoxication” to negate intent. He expressly rejected the argument that the appellant had thatdegree of intoxication (at para. 352): …. … I do not accept that the accused was so intoxicated that he could not foresee that stabbing the deceased 22 times would result inhis death. …. 70 As stated above, it was proper for the judge to consider, as he did, the evidence of post-offence conduct in determining theappellant’s level of intoxication. That level of intoxication was relevant to the ultimate question of intent.

While the appellant arguesthat such conduct casts no light on his intent, but speaks only to capacity, that is an unreasonably narrow perspective from which to viewthe matter. 71 The judge expressly stated that the appellant’s conduct might mean only that he feared the hostile situation he was in afterthe fight. But he rejected that unidimensional

interpretation, preferring the view that the conduct should be seen as rational and coherent,and thus indicative of a rational and coherent mind, one which could be expected to foresee the likely consequence of stabbing someone22 times. 72 As the Crown correctly argues, the conduct of the appellant “suggest[s] a physical and manual dexterity that belies therequisite level of intoxication to negate intent for murder.” From that perspective, the judge found the post-offence conduct “shed lighton the extent of the accused’s intoxication and on his state of mind” (at para. 357), and he was justified in so finding. 73 In my view, the judge did not err as asserted.

He committed no palpable and overriding error in relation to factual matterson the issue of intent and intoxication. His conclusion based on the fact of the 22 stab wounds was not an error. 74 As to whether the verdict was unreasonable, based on my review and consideration of the evidence, some of which reviewis included in these reasons, I am satisfied that the verdict reached by the judge is one that a properly instructed jury, acting judicially,could reasonably have rendered. 75 I would grant leave to appeal, but would dismiss the conviction appeal.

GROUNDS OF THE SENTENCE APPEAL 76 The appellant says that, in light of his “minimal criminal record and significant remorse,” his time in pre-trial custody, hisintoxication, the “fact that the accused was not the initial aggressor” and having regard to the sentences imposed in other cases, the 12-year parole ineligibility period set by the judge was excessive and should be reduced to the minimum ten years. STANDARD OF REVIEW ON THE SENTENCE APPEAL 77 It is well settled that considerable deference is owed to a sentencing judge. The standard of review was recentlysummarized by Chartier J.A. in R. v.

Ruizfuentes (H.S.), 2010 MBCA 90, 258 Man.R. (2d) 220 (at para. 7): As was stated in R. v. L.M., 2008 SCC 31 , [2008] 2 S.C.R. 163; 374 N.R. 351; 2008 SCC 31, at para. 14, an appellate courtmust show “great deference” when reviewing a sentencing decision. Upon the granting of leave, an appellate court can only interferewith a sentence in two circumstances: when the sentence is “demonstrably unfit”, “demonstrably inadequate or excessive”, or “clearlyunreasonable”, or when it has been arrived at as a result of an error in principle.

An error in principle includes failing to consider arelevant factor, taking into account an irrelevant factor, failing to give sufficient weight to a relevant factor or overemphasizing anappropriate factor. …. ANALYSIS AND DECISION 78 Before the judge, the appellant had sought a period of parole ineligibility of ten years and the Crown had sought 13. In hissentencing decision, the judge noted the relevant provisions in the Criminal Code and also noted the holding by the Supreme Court in R.v.

Shropshire, (SCC), [1995] 4 S.C.R. 227, that an increase above the minimum, in second degree murder cases, does notrequire unusual circumstances. 79 He considered the character of the appellant and his acknowledgment of responsibility for Lane’s death. He noted hisrelative youth, his potential for eventual rehabilitation and letters of character reference. He said that his record contained aggravatingconvictions and disentitled him to leniency.

80 Considering the offence itself, the judge said that the appellant had brought a knife to a house party and goaded Lane with provocative comments. The sole motivation for the stabbing appeared to be that the appellant was losing the fight. 81 He considered the consequences of Lane’s death, including that his young son was being raised by his grandparents.

He observed that an increase in the minimum period would give meaning to certain sentencing principles such as deterrence and denunciation. 82 A number of authorities had been given to the judge by the appellant, and he stated that, in considering them, he observed factors suggesting both similarities and differences. He set the period at 12 years. 83 Before us the appellant cites a number of cases suggesting, he says, that in circumstances more aggravating than the present, the period had been set at ten years. The various factors outlined above (see para. 76) all suggested, he argues, the minimum period.

He asserts that the similarities in the authorities given to the judge where the minimum period was imposed far outweighed the differences and says that the judge simply disregarded the principle of parity in sentencing; see s. 718.2 (

b) of the Criminal Code . 84 In my view, the judge committed no error in principle. His reasons show an appropriate application of the provisions of s. 745.4 of the Criminal Code . He considered what was relevant, and I see no consideration of anything irrelevant. The weight he gave to the various factors was not inappropriate in all the circumstances.

As was made clear in Shropshire , the determination of parole ineligibility is fact-based and subject to considerable deference on appeal. 85 The cases cited by the appellant did not compel the judge to impose a lesser period, although he could have relied on them had he decided to exercise his discretion not to increase the minimum. It is trite to observe that no two cases are alike, and the judge was entitled to place emphasis on the factors in this case which prompted him to increase the period.

Doing so does not, in my view, offend the principle of parity, mainly because it is not possible to engage in a precise comparison of cases for sentencing purposes. 86 In Hon. Gilles Renaud, The Sentencing Code of Canada: Principles and Objectives (Markham: LexisNexis Canada Inc., 2009), the author expresses that difficulty by stating that to satisfy the legislative mandate, both the present offender and the offender in the case held up as a comparable must be “(

a) similar offenders in terms of degree of responsibility and prior record of offending; and (

b) similar in offending in terms of the misconduct engaged in” (at p. 451). A review of the cases put forward by the appellant shows that this is indeed a difficult standard to satisfy. It is, obviously, usually much less complicated where a judge is sentencing co-accused for their participation in the same act.

See Renaud at p. 453. 87 Thus, it was open for the judge to assess the circumstances of the case before him and to find that those circumstances were sufficiently dissimilar to those in the cases cited so as to entitle him to increase the ineligibility period. 88 The judge was clearly influenced here by his findings that the appellant brought a knife to a house party, that he goaded Lane with provocative comments, including some about his young son, that he stabbed Lane over 20 times, that the sole motivation was that he was losing the fight, that the consequences to Lane’s family were tragic and that denunciation could be clearly expressed by an increase in the ineligibility period. 89 The increased period of ineligibility is neither harsh nor excessive, given all the circumstances, and even if it is not one which this court would necessarily impose were we sentencing the appellant afresh, we are mandated to defer to the judge’s decision, barring factors which I have concluded are not present here.

I would grant leave to appeal the sentence, but would dismiss the sentence appeal. CONCLUSION 90 I would grant leave to appeal both the conviction and the sentence, and would dismiss both appeals. J.A. I agree: J.A. I agree: J.A.