R. v. Nodrick, 2012 MBCA 61

Citation: R. v. Nodrick, 2012 MBCA 61 Date: 20120604 Docket: AR 10-30-07483 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Scott Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin BETWEEN : ) A. Y. Kotler HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) M. Wasyliw ) for the Respondent - and - ) ) Appeal heard: SHAUN DENNIS NODRICK ) September 16, 2011 ) (Accused) Respondent ) Judgment delivered: ) June 4, 2012 CHARTIER J.A. Introduction and Facts 1 This is a Crown appeal from an acquittal on a charge of second degree murder. 2 The facts are straightforward.

In June of 2003, the accused befriended the frail, diabetic 65-year-old victim. Using the victim’s car, the accused drove him down a major highway to the outskirts of the city. He then turned down a secondary road for four and one-half kilometres until he reached a country road. A farmhouse and a number of residences are near this intersection. A golf course is also nearby.

The accused continued down the country road, driving through an open field for approximately 300 to 400 metres and stopping near a line of bushes. 3 At that point, the accused made the victim remove his shoes and clothes, save for his underwear. He left the victim there, telling him not to move and that he would be back. The accused then drove to a nearby gas station and attempted to withdraw funds from an ATM using the victim’s bank PIN, which the victim had freely provided to the accused several days previously. Having forgotten the PIN, the accused returned to where he had left the victim.

He told the victim that if he wanted his clothes and shoes, he would have to give him the PIN. The victim complied. The accused then threw him his shoes and drove off. 4 Over the course of the following days, the accused was detained by police for different reasons and was asked why he was driving the victim’s car and had the victim’s identification in his possession. He was also questioned on the victim’s whereabouts. On every occasion he lied about the victim’s state of affairs, until approximately a week later, when he admitted to his actions.

He then directed the police to the location in the bush where he had last left the victim. 5 The victim’s body was found near the location where the accused had left him; approximately 500 metres from the farmhouse and the golf course. The evidence showed that the victim had wandered aimlessly around the place where he had been left. The autopsy report indicated that he had died of hypothermia following exposure to the elements. The time of death was determined to be within a couple of days to a week. The weather for that time period ranged from highs of 15.9°C to 29.4°C to lows of 6.7°C to 17.2°C.

Issues and the Crown’s Limited Right of Appeal from an Acquittal 6 The Crown appeals against the acquittal on two grounds. First, that the judge erred by failing to adequately instructthe jury on causation and, second, that the judge erred by improperly circumscribing the actus reus of the offence. The Crown submitsthat these questions raise questions of law and are to be reviewed on the standard of correctness. The accused takes no issue with thischaracterization. 7 The Crown has no right of appeal from an acquittal except on a ground that involves a question of law alone (see s.676(1)(

a) of the Criminal Code (the Code)). Even when it is accepted that the question raised is one of law and that an error in law iscommitted, the Crown must still overcome the “nexus hurdle”: there must be a link between the error in law and the acquittal. As thiscourt recently explained in R. v. R.G.B., 2012 MBCA 5, 275 Man.R. (2d) 119 (at para. 19): …. The alleged error must be directly and concretely related to the acquittal (see R. v. Huot, (MB CA), [1969] 1C.C.C. 256 (Man. C.A.)).

If the legal error has no bearing on the acquittal, appellate intervention would be unwarranted (see R. v.Barros (R.) (2011), 2011 SCC 51 , 421 N.R. 270; 513 A.R. 1; 530 W.A.C. 1; 2011 SCC 51, at para. 79; R. v. Graveline (R.),2006 SCC 16 , [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, at paras. 13-16; Sutton [2000 SCC 50, [2000] 2 S.C.R. 595],at para. 2; and R. v. Vezeau, (SCC), [1977] 2 S.C.R. 277; 8 N.R. 235 at 291-92). Moreover, the degree of certaintyrequired with respect to the nexus hurdle is relatively high.

As was stated very recently in Barros, the Crown must satisfy the appellatecourt with “a reasonable degree of certainty” “that had the [legal] errors not occurred, there would not necessarily have been an acquittal”(at para. 79). See also Graveline at para. 14. 8 The Ontario Court of Appeal has also recently affirmed that “even if a trial judge commits a legal error in instructinga jury, the Crown bears a heavy onus to overturn an acquittal” (R. v. Samuels (J.K.), 2009 ONCA 614 at para. 19, 265 O.A.C. 214). These hurdles find their source in the courts’ high regard for jury acquittal verdicts.

This was explained by Cory J., for the majority, inR. v. Evans, (SCC), [1993] 2 S.C.R. 629, where, after confirming at p. 645 the “very heavy onus” on the Crown, hestated (at p. 646): Among appellate courts there has always been a great deal of healthy respect for and deference to a jury verdict of acquittal. Thisdeferential approach is appropriate and correct. The special significance of a verdict of acquittal by a jury has also been recognized bythis Court in R. v. Kirkness, (SCC), [1990] 3 S.C.R. 74.

There on behalf of the majority it was said at p. 83: The verdict of the jury constitutes, in a very real way, the verdict of the community. Trial by jury in criminal cases is a process thatfunctions exceedingly well and constitutes a fundamentally important aspect of our democratic society. It is not members of thejudiciary, but rather the members of the jury, sitting as members of the community, who make decisions as to guilt or innocence which isso vitally important both to the individual accused and the community. …. 9 As a result of these hurdles, acquittals are not lightly overturned (see R. v.

Sutton, 2000 SCC 50 at para. 2, [2000] 2S.C.R. 595). Analysis Issue 1: Failed to adequately instruct the jury on the principle of joint or shared causation 10 Prior to reviewing in detail the evidence relating to the cause of death, the trial judge charged the jury as follows withrespect to the standard of causation: For

an act to cause someone’s death, it must be a significant contributing cause, one that is beyond something that is trifling or minor innature. To answer this question you must consider all the evidence. Do not limit your consideration only to the opinions of the expertsabout what caused [the victim]’s death. Use your good common sense. 11 At trial, the Crown did not raise any concerns with this aspect of the charge. It now argues that, while the trial judge’sjury charge on causation is correct in law, it is incomplete in two ways.

First, it failed to explain that it was not necessary that theaccused’s actions be the sole cause, or even the main cause, of the victim’s death. Second, it did not explain the thin-skull rule: anoffender takes the victim as he or she is found. The Crown submits that the jury should have been told that, if it concluded the victimhad died as a result of both his failure to walk to safety and the accused’s actions, causation would have been made out. It says thecharge should, at the very least, have included a reference similar to that found in Smithers v. The Queen, (SCC), [1978] 1S.C.R. 506 (at p. 522):

…. Even if the unlawful act, alone, would not have caused the death, it was still a legal cause so long as it contributed in some way tothe death. …. 12 The accused asserts that the trial judge’s charge on causation followed the direction given by the Supreme Court in R.v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, and was therefore correct in law. He submits that the rest of the wording used by the trialjudge was an exercise in judicial discretion and was not so clearly wrong as to warrant appellate intervention.

He again points to Nette(at para. 72): In deciding how the applicable standard of causation should be articulated to the jury, trial judges have a discretion in choosing theterminology they wish to use to explain the standard. Causation issues are case-specific and fact-driven. For that reason, it is importantto afford a trial judge with the flexibility to put issues of causation to the jury in an intelligible fashion that is relevant to thecircumstances of the case, including whether or not there are multiple accused persons or parties. ….

To similar effect see the recent decision of the Supreme Court of Canada in R. v. Maybin, 2012 SCC 24 at para. 17. 13 The first question to be answered on this ground is whether the Crown has overcome the s. 676(1)(

a) hurdles statedabove.

For the reasons that follow, I am of the view that it has not. 14 There can be no doubt that the charge on causation would have been more complete had the following words, takenfrom the Canadian Judicial Council Model Jury Instructions, been added after the first sentence of the trial judge’s charge on causation: “A person’s conduct may contribute significantly to another person’s death even though that conduct is not the sole or main cause ofdeath.” Given the facts of this case and the position of the defence at trial (namely, that it was not the accused’s actions, but rather thevictim’s own failure to leave the area and walk to nearby safety, that caused the death), I will assume, without deciding, that there was anerror in law on the causation instruction. 15 The next question is whether there is a nexus between the assumed causation legal error and the acquittal and, if thereis, whether there is a reasonable degree of certainty that, had the judge been correct in her explanation of the law, there would notnecessarily have been an acquittal. 16 Although it may be said that it is possible that the acquittal outcome may have been affected by the assumed error, inmy opinion, it cannot be said that the Crown has met the very heavy onus of showing that there is a “reasonable degree of certainty,” thatthe error on causation affected the verdict. 17 In my view, it is unlikely, even with the assumed misdirection in the causation charge, that the jury would have hadmuch difficulty in answering, in the affirmative, the first question posed to the jury: did the accused cause the victim’s death?

It mustbe remembered that the jury was told that, in order to find the accused guilty of second degree murder, the Crown had to prove the threeessential elements of the offence beyond a reasonable doubt. These essential elements were made into questions for the jury. They wereput to the jury in the following sequence: did the accused cause the victim’s death; did the accused cause the victim’s death unlawfully;and did the accused have the state of mind required for murder? 18 The trial judge was certainly of the view that the jury would have answered the first question in the affirmative.

Whenshe was discussing the content of her charge with counsel, she stated: ….

It certainly seems that by putting him in that position and death ensuing, the jury could easily find that leaving him in that field wasa significant contributing cause to his death, whether or not he lapsed into a diabetic coma or whether it was a combination of that andexposure. …. [emphasis added] 19 While impossible to know with certainty, in my view, the jury would not have had any doubt, in light of the fact that thevictim did die, that the accused’s actions of taking him to a field and abandoning him there were a significant contributing cause ofdeath.

Clearly, “but for” the accused’s actions, the victim would not have died (see Maybin at paras. 20-21). Common sense alonedictates that this had to be so. The authorities are clear that appellate courts must have faith that a jury will “bring to the legal process ahealthy measure of common sense” (R. v. Corbett, (SCC), [1988] 1 S.C.R. 670 at 692). 20 In my opinion, it is much more likely that the jury was not convinced beyond a reasonable doubt on the objective orreasonable foreseeability component of the second question of causing the death unlawfully. With respect to that element, the jury wastold: ….

The unlawful act must also be one that any reasonable person in the circumstances would think would likely put another person atrisk of some harm or injury that is more than brief or minor in nature.

21 In this case, the unlawful act was hitting the victim, forcibly removing him from the car and then leaving him in thefield. It must be remembered that there was no evidence before the jury that the victim was unable to leave that location when he wasleft alone.

Quite the contrary, the trial judge instructed that when he was left in the field “[t]here is evidence that [the victim] was aliveand able to move when [the accused] left him.” The trial judge’s review of the evidence on the reasonable foreseeabilty question was asfollows: To decide this question, you should consider all the circumstances of [the accused]’s conduct. Take into account not only the nature ofthe act alleged, but also anything said at or about the same time.

According to [the accused] in his final interviews with the homicide detectives, he left [the victim] in the field not far from a farmhouse,golf course and the highway. The sun was still up as it was the evening of a hot June day. [The victim] had suffered some blunt traumaincluding a cut on his head that would have required stitches, but none of the abrasions contributed to his death. However, he was also afrail person, suffering from diabetes who was left in the field in his underwear. He had no medication with him. His glasses were foundnearby and his shoes but he was not wearing them.

Would a reasonable person believe that this would likely put a person like [thevictim] at the risk of some harm or injury that is more than brief or minor in nature? [The accused] told police that [the victim] was alive when he left him, that he threw his shoes out to him and thought he would walk outof the area. If you are not satisfied beyond a reasonable doubt that [the accused] unlawfully caused the death of [the victim], you willfind him not guilty. Your deliberations would be over.

If you are satisfied beyond a reasonable doubt that [the accused] unlawfullycaused the death of [the victim], you must go on to the next question. 22 The Crown did not allege an error in this part of the charge; indeed, it is obvious that the trial judge instructedcorrectly.

In my view, it seems apparent from the above that the jury acquitted the accused not because it had a doubt that the accused’sactions were a significant contributing cause of the death, but rather because it had a doubt on the question of whether any reasonableperson in the circumstances would think that leaving this victim in the way he was left, on a warm, sunny day, near a farmhouse and golfcourse, would likely have put him at risk of some harm or injury that was more than brief or minor in nature.

In light of the evidencebefore the jury, it was a finding that was most certainly open to it. 23 To be clear, whether the jury’s doubt on the objective foreseeabilty question was reasonable is of no moment on aCrown appeal against an acquittal, as any jury error on this question would be one of fact or mixed law and fact, not one of law alone. Unlike an accused who has a right of appeal against an unreasonable verdict of guilt, as a matter of law, there is no such thing as a rightof appeal against an “unreasonable acquittal” (see R. v. Biniaris, 2000 SCC 15 at para. 33, [2000] 1 S.C.R. 381, and s. 676(1)(

a) of theCode). 24 In addition, I note that the Crown failed to raise any concerns with the trial judge about the causation charge. As wasmade clear by Fish J. in R. v. Khela, 2009 SCC 4 at para. 49, [2009] 1 S.C.R. 104, counsel has a duty to assist the trial judge to ensurethat a jury is properly instructed. See also R. v.

Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, where Bastarache J. not only explained thisduty, but also said that, while not determinative of the ground of appeal, any failure to identify a concern will be a proper considerationon appeal (at para. 58): .… … [I]t is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’sinstructions to the jury. While not decisive, failure of counsel to object is a factor in appellate review.

The failure to register a complaintabout the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation. …. 25 See also R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314 at paras. 37-38, where the Supreme Court heldthat, while a lack of objection is neither fatal nor decisive and while the ultimate responsibility for a jury charge rests with the trial judge,“counsel’s failure to object to the charge says something about the overall accuracy of the jury instructions and the seriousness of thealleged misdirection.” Finally, see R. v.

Phillips (C.) et al. (2001), (ON CA), 139 O.A.C. 282, where Moldaver J.A.,as he then was, offered the useful analogy that the failure to object is an indication that counsel was satisfied that the jury fullyappreciated their role and “it serves as a yardstick against which to measure the contrary position now advanced for the first time onappeal” (at para. 41). 26 It would be trite to say that the weight to be assigned to any failure to object varies with the circumstances in each case. In R. v. Paquette (J.) (2001), (ON CA), 153 O.A.C. 149, and later in R. v.

Polimac (M.), 2010 ONCA 346, 262 O.A.C.91, the Ontario Court of Appeal held that a failure to raise an objection at first instance may be viewed as more significant when counselare asked to review and comment upon the charge in advance of its delivery to the jury. This is done to give counsel the opportunity toreview the instructions and identify any concerns with respect to the law, the evidence, the issues and the positions of the parties. Onappellate review, there is a strong presumption that counsel was diligent and reviewed the charge carefully.

Anything less would renderthe pre-charge conference exercise unproductive, even pointless. As Doherty J.A. explained in Polimac (at para. 96), when counsel failto raise a concern about a charge after having been given the opportunity to review the charge in advance, appellate courts will generallyassign more weight to that lack of objection than they would have had the charge not been provided before its delivery to the jury.

27 In this case, the Crown had three different occasions to make known to the trial judge any issues it might have with respect to the jury charge: during the pre-charge conference, when the written charge was given to counsel for review, and, finally, after the charge was read to the jury. The record shows that counsel were given the draft charge four days before it was read to the jury. The Crown did not raise any concerns with respect to the causation charge.

It argues on appeal that this part of the charge contains two errors of law, which it now describes as “significant omissions.” 28 As already stated, the jury would not have had any difficulty in concluding that “but for” the accused’s actions, the victim would not have died. In my opinion, the Crown saw things the same way. The fact that it did not raise any concerns on this part of the charge is indicative of where the Crown thought the jury’s preoccupations might lie.

Like the trial judge, the Crown probably thought the jury would easily answer the first question in the affirmative and move to the second question. Had it not thought so, it would have insisted that the charge be modified in the fashion it now argues on appeal. 29 As I mentioned, in my view, the jury would have answered the causation question in the affirmative even without the Crown’s suggested wording in the charge. In the result, the Crown has failed to satisfy me that there is a reasonable degree of certainty the alleged error had a material bearing on the verdict of acquittal.

Issue 2: I mproperly circumscribing the actus reus of the offence 30 The second ground of appeal raised by the Crown is that the trial judge erred by improperly circumscribing the actus reus of the offence. It says it was an error in law not to have included the accused’s lies to the police in the part of the charge that dealt with the actus reus . It will be recalled that the accused only told the police of the victim’s whereabouts seven days after he was first questioned by them.

While the trial judge did mention the lies in the instructions, they were presented in the context of post-offence conduct, not part of the unlawful act which would have contributed to the victim’s death. 31 I would not give effect to this ground of appeal. 32 Appellate courts are to review jury instructions on a standard of adequacy, not perfection, using a functional approach that takes into account the nature of the evidence before the trial court, the live issues that are raised, the positions of the parties on those issues, and the addresses of counsel (see Jacquard ). 33 The accused’s lies could be viewed either as part of the unlawful act which contributed to the victim’s death (the actus reus ) or as post-offence conduct evidence.

The difference is important because, if the fabrication of the lies is post-offence conduct evidence, it necessarily cannot form part of the actus reus since such conduct would only have occurred “after the commission of the offence.” See R. v. White , 2011 SCC 13 , [2011] 1 S.C.R. 433 (at para. 21 ): The category of “ post-offence conduct ” evidence is much broader as it refers to anything done by the accused after the commission of the offence . … . [emphasis added] 34 The trial judge needed to make sure that she had correctly understood the Crown’s submission.

After a number of exchanges, it became clear that the trial judge took the Crown’s position to be that the fabrication of the lies formed part of the post- offence conduct. This is not unusual. The authorities state that actions taken by an accused after an offence has been committed, such as the fabrication of lies, may at times provide circumstantial evidence of culpability ( see White at para. 17 ). 35 The trial judge prepared her draft charge accordingly. Counsel were given a copy of the draft jury instructions.

The trial judge’s draft charge with respect to the lies read as follows: The Crown led extensive evidence of lies by [the accused] to various police officers over the course of several days about the whereabouts of [the victim]. If you are at this stage in your deliberations, you will already have found that [the accused] caused [the victim]’s death and that he did so unlawfully. I instruct you that the evidence of his ongoing lies to police does not help you decide whether [the accused] had the state of intention necessary for murder rather than manslaughter.

His lies are equally consistent with consciousness of having unintentionally caused [the victim]’s death as intentionally. 36 At the Thursday pre-charge conference, the Crown took issue with this part of the instructions.

It did so not because the instructions stated that if the jury was considering the lies it was because it had already accepted that it was the accused that “caused [the victim]’s death and that he did so unlawfully,” but rather because it strongly disagreed with the statement that the “lies [were] equally consistent with consciousness of having unintentionally caused [the victim]’s death as intentionally.” The Crown argued that the accused’s lies provided circumstantial evidence of intention and that it should be left to the jury to weigh that evidence.

The trial judge did not accept the Crown’s submission and refused to alter that portion of the charge. 37 The trial was adjourned until Monday, when the jury was to receive its final instructions. When court reconvened on Monday, the Crown reiterated its position by referencing R. v. Hall (C.) , 2010 ONCA 724 at paras. 136-38 , 269 O.A.C. 199 . Hall is a case that deals with post-offence conduct jury instructions. Again, the Crown ’ s concern lay with the last sentence of that part of the charge, and once again the trial judge declined to change it.

38 After the jury had received its final instructions, the Crown advised the trial judge that it had only then realized that the position of the Crown, while correct, was incomplete.

It asked the trial judge to tell the jury that the accused’s “intent doesn’t end when [he] leaves, that the intent [could] be inferred as attributable to [the accused] by reason of his lies over those seven days.” The trial judge declined to recharge on that point, viewing it as another attempt by the Crown to revisit her ruling that the lies were equally consistent with consciousness of having unintentionally caused the victim’s death as intentionally. 39 What is clear is that the Crown certainly did not ask the trial judge to modify the charge to include the lies as part of the actus reus of the offence.

In my view, had it been the Crown’s submission that the lies were part of the actus reus and not part of the post-offence conduct, it would have insisted that the trial judge incorporate the lies in the description of the unlawful act. It did not. Rather, it submitted case law to her that the lies formed part of the post-offence conduct, which necessarily meant that they could not be viewed as part of the actus reus (again, see White at para. 21 ). 40 For the above reasons, I would not accede to this second ground of appeal. Conclusion 41 In the result, I would dismiss the appeal. J.A. I agree: C.J.M.

I agree: J.A.