R. v. Pruden (D.J.), 2012 MBCA 62

Citation: R. v. Pruden (D.J.), 2012 MBCA 62 Date: 20120604 Docket: AR 11-30-07521 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin BETWEEN: ) G. F. WiebeHER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) E. A.

Thomson ) for the Respondent- and - ) ) Appeal heard and ) Decision pronounced:DAVID JERRY PRUDEN ) May 30, 2012 ) (Accused) Appellant ) Written reasons: ) June 4, 2012 STEEL J.A. 1 The accused was convicted of second degree murder by a judge sitting without a jury. 2 He appeals that conviction on several grounds, but all essentially focus on the ground that the trial judge erred infinding that the accused had the requisite intent for murder. Specifically, he argues that the judge misapplied the law to the facts withrespect to the evidence of the accused’s intoxication.

The accused submits that the judge applied the common sense inference that aperson intends the natural consequences of his or her actions before assessing the evidence of intoxication. In effect, the accused argueswhat the trial judge did was come to the conclusion that, in this case, the common sense inference was that a sober person would haveknown that an assault of this brutality by three assailants upon one person would have been likely to cause death and was reckless as towhether death ensued or not.

Having come to that conclusion, it is argued, the judge then reversed the onus by requiring the accused todisprove intent by reason of intoxication. 3 The structure of certain phrases in the judge’s reasons may be taken as supportive of the accused’s argument if read inisolation. However, that is not the test. It is trite law that a judge’s reasons should not be judged line-by-line, or word-by-word. Rather,those reasons must be read as a whole when determining whether an error has occurred. 4 Reading the reasons as a whole, we find no error as argued by the accused.

The trial judge properly outlined the twomethods of proof of intent for murder and stated that he had to “consider all of the evidence” in deciding the issue (at para. 67). Heobserved that one may find intent by inferring that a person intends the natural consequences of his act, but further observed that is justone way to find intent. He clearly stated that the Crown had to prove beyond a reasonable doubt that the accused had the requisite intentfor murder. The trial judge properly instructed himself as to the law of intoxication as found in R. v. Daley, 2007 SCC 53, [2007] 3S.C.R. 523.

He then considered all the evidence, and, in particular, the limited and equivocal evidence of intoxication, and stated (atpara. 84): “I arrive at my ultimate conclusion relying on the common sense inference after assessing all of the evidence.” 5 Thus, on a functional reading of the trial judge’s reasons, it was clear that he approached the issue correctly and onlyfound the requisite intent after a review of all the evidence. 6 We agree with the Crown that the common sense inference is not a final conclusion.

It is an inference that may berebutted by evidence of intoxication – all the while keeping in mind that, in the end, it is the Crown that must prove intent beyond areasonable doubt. The trial judge was aware of this as was obvious from the fact that he quoted the reference in the case of R. v.Seymour, (SCC), [1996] 2 S.C.R. 252 at para. 23, to the effect that “the jury is specifically instructed that evidence of

intoxication may rebut that inference” (at para. 75). 7 The appeal is dismissed. J.A. I agree: J.A. I agree: J.A.