R. v. Bushie, 2012 MBCA 67

Citation: R. v. Bushie, 2012 MBCA 67 Date: 20120614 Docket: AR 10-30-07458 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Mr. Justice Alan D. MacInnes BETWEEN: ) HER MAJESTY THE QUEEN ) G. F. Wiebe ) for the Appellant Respondent ) ) E. A. Thomson- and - ) for the Respondent ) ) CORY OWEN BUSHIE ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) June 14, 2012 ) CHARTIER J.A. (for the Court): 1 Following a jury trial, the accused was convicted of second degree murder. The accused appeals, raising four maingrounds of appeal.

He argues that the verdict was unreasonable; that the trial judge failed to give a Vetrovec ( (SCC),[1982] 1 S.C.R. 811) warning; that he made various errors with respect to his instructions on provocation; and that his charge is deficientbecause he failed to give a “rolled-up” instruction for the issue of intent. 2 The first two grounds are intertwined. The accused argues that the verdict is unreasonable on the basis that thetestimony of the Crown’s two main witnesses was suspect and could not support a verdict of second degree murder.

He also submits thatthe trial judge should have given a Vetrovec warning for these two witnesses because they had occasion to collude and motive tofabricate. He also says that one of these two witnesses had a minor record, which included crimes of dishonesty, while the other wasinvolved in the drug subculture. 3 We will deal first with the Vetrovec warning. A trial judge’s decision on whether to give a Vetrovec warning is anexercise in judicial discretion. That warning should not be given as a matter of course.

It need only be issued in regard to testimonydeserving of “special” scrutiny and is reserved for witnesses “who are ‘unsavoury’, ‘untrustworthy’, ‘unreliable’, or ‘tainted’” (see R. v.Khela, 2009 SCC 4 at paras. 3, 37, [2009] 1 S.C.R. 104). In this case, despite allegations of fabrication and collusion, in the end therewas no evidentiary basis for the trial judge to view the witnesses’ evidence as being inherently unreliable. This is likely why counsel forthe accused did not ask for a Vetrovec warning.

Having reviewed the matter on appeal, we see no error in the trial judge’s exercise ofjudicial discretion. 4 On the unreasonable verdict ground, the Crown’s case was strong. Its case rested on the jury’s assessment of thecredibility of the two main witnesses who knew both the accused and the victim and who testified they saw the accused pull out a gunand shoot the victim. Any inconsistencies in their testimony and how their level of intoxication may have tainted what they saw on thenight of the murder were matters for the jury to assess.

In the end, the jury was entitled to find the two main witnesses credible and, ifso, it was open for the jury to return the verdict of guilt. 5 The accused also claims various errors with respect to the provocation instructions. The issue of provocation wasnever raised by the accused. Indeed, counsel for the accused had not even mentioned provocation in his closing address to the jury. Itwas raised by the trial judge at the pre-charge conference. In our opinion, the subjective element required for the provocation defence

lacked the necessary evidentiary foundation for it to have been left with the jury. The accused did not testify, so the subjective element had to be established by inference. We agree with the Crown that evidence of a shooting occurring after the two alleged insults (the victim’s slap as well as his threat “to organize a gang”) does not provide the proper basis on which the jury could infer that the accused lost control because of either one of those insults.

Simply put, we are all of the view that there was no air of reality to that defence. 6 Finally, the accused argues that even if his provocation ground of appeal is not accepted by this court, the charge was deficient in that the trial judge did not give a proper “rolled-up” instruction; namely, that he did not direct the jury to include provocation and/or anger in its consideration of intent. The accused points to R. v. Cudjoe (R.) , 2009 ONCA 543 , 251 O.A.C. 163, and R. v. Flores (M.R.) , 2011 ONCA 155 , 274 O.A.C. 314, as his authorities.

There appears to be conflicting law across the country in regard to the alleged “rolled-up” instruction error. For instance see R. v. Kent (P.S.) , 2005 BCCA 238 at paras. 32-34 , 212 B.C.A.C. 98, and R. v. Azzam , 2008 ONCA 467 at paras. 64-69 , 91 O.R. (3d) 335. In our view, it is not necessary to address this because the trial judge, after an extensive review of the evidence, adequately instructed the jury to consider all of the evidence that threw light on the state of mind of the accused at the time of the offence. 7 For these reasons the appeal is dismissed. J.A. J.A. J.A.