R. v. Kines, 2012 MBCA 97

Citation: R. v. Kines, 2012 MBCA 97 Date: 20121017 Docket: AR 12-30-07772 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin BETWEEN : ) A. Y. Kotler HER MAJESTY THE QUEEN ) for the Appellant ) Appellant ) J. L.

Ostapiw ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: JASON ALLEN KINES ) October 11, 2012 ) (Accused) Respondent ) Written reasons: ) October 17, 2012 CHARTIER J.A. 1 Following a motion for a directed verdict, the judge directed acquittals with respect to the accused’s charges of first degree murder, aggravated sexual assault and sexual interference against the three-year-old daughter of the accused’s girlfriend (the victim). The Crown appeals. 2 After the hearing we allowed the appeal, set aside the acquittals and ordered a new trial, with brief reasons to follow.

These are those reasons. 3 The autopsy revealed that the cause of death was multiple blunt force injuries resulting from non-accidental trauma. The victim had a combination of lacerations, bruises and human bite marks all over her body. Her vagina had been torn and bite marks were found just above her vagina. A forensic odontologist testified that the accused had a “very highly unusual” dentition that lined up with most of the bite marks on the body. He definitively excluded the other members of the household as being the biter for all but one bite mark.

The expert testified that the accused was “most likely” the biter.

He also said that he was “very confident” in his identification of the accused and explained that “probable” identification was as definite a designation as his discipline allowed, except in rare circumstances. 4 The principal reason the judge withdrew the case from the jury was his conclusion that the evidence identifying the accused as the biter did “not give rise at law to proof beyond a reasonable doubt.” He held that the bite-mark identification was only “probable” and that there was insufficient evidence to support a conviction. 5 The Crown’s principal argument was that the judge not only failed to consider the circumstantial evidence, including the evidence of the odontologist, in its totality, he was wrong to measure the sufficiency of the evidence against the ultimate threshold of proof beyond a reasonable doubt.

The accused argued that whether the standard of proof beyond a reasonable doubt had been met is still part of the “limited weighing” for determining whether a case should go to the jury. 6 T his court recently had occasion to review the law on directed verdict motions. See R. v. O’Kane; R. v. Zebrun , 2012 MBCA 82 , and R. v. Henderson (W.E.) , 2012 MBCA 93 . In Henderson , this court said (at paras. 126-27): It must be remembered that a judge’s assessment of the evidence on a directed verdict motion carries with it a number of features which

are unique to the Shephard [ (SCC), [1977] 2 S.C.R. 1067] test. At this stage of the proceedings, the principal role of thejudge is to make determinations as to the admissibility of the evidence. Since the weighing of the evidence will, as a rule, only occurafter all of the evidence has been heard, and, given that only the Crown has presented its evidence, the judge is not to assess credibility,draw inferences or determine innocence or guilt. With respect to the direct evidence, the judge is to accept it as being true (see R. v.Arcuri, 2001 SCC 54 at para. 22, [2001] 2 S.C.R. 828).

With respect to the circumstantial evidence, the judge must engage in a “limitedweighing” of the evidence to assess “the reasonableness of the inferences” the Crown will be asking the trier of fact to ultimately draw(Arcuri at paras. 23, 30). The judge must also bear in mind that “where more than one inference can be drawn from the evidence, onlythe inferences that favour the Crown are to be considered” (see R. v. Sazant, 2004 SCC 77 at para. 18, [2004] 3 S.C.R. 635). It is with these unique evidentiary features in mind that the judge will decide the directed verdict motion. As stated by McIntyre J. in R.v.

Monteleone, (SCC), [1987] 2 S.C.R. 154, “[i]t is not the function of the trial judge to weigh the evidence, to test itsquality or reliability once a determination of its admissibility has been made” (at p. 161). At this stage, whether the admissible evidencewould lead a trier of fact to conclude that an accused is guilty or not of first degree murder, whether it is likely or unlikely to lead to averdict of guilty or not guilty, or whether it is “conclusive or even persuasive,” are questions that must be left to the jury (see Monteleoneat p. 167).

The judge need only to ask whether, taking the evidence as a whole, there is any admissible evidence, whether direct orcircumstantial, which, if believed by a properly charged jury acting reasonably, could justify a conviction. If this threshold is met, thejudge must leave the decision to the jury. [emphasis added] 7 The judge in this case appears to have failed to differentiate the question of whether the Crown met its burden on adirected verdict test (the evidentiary burden) with whether the Crown met its burden of proof beyond a reasonable doubt (the burden ofproof).

As was stated by the Supreme Court of Canada in R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 (at para. 11): “[Theevidentiary burden] determines whether an issue should be left to the trier of fact,” while the burden of proof “determines how the issueshould be decided.” The first is for the judge; the second is for the jury. Moreover, the “proof beyond a reasonable doubt” standard hasno direct application on a judge’s consideration of a directed verdict motion. See R. v.

Litchfield, (SCC), [1993] 4 S.C.R.333, where Iacobucci J. writes “proof beyond a reasonable doubt is not an element of the test for a directed verdict; the proper test issome evidence” (at p. 362). 8 The judge’s conflation of the evidentiary burden with the ultimate burden of proof caused him to engage, to animpermissible degree, in a weighing of the evidence, to the point of determining questions which fell within the jury’s purview. We alsoagree with the Crown that the judge failed to consider the circumstantial evidence in its totality.

Given that we are ordering a new trial,we will simply state that there was other contextual evidence which the judge did not seem to consider. In our view, the Crown’ssuggested inferences fall with a range of inferences a jury could reasonably draw. As such, there was some evidence that the personaccused of the offences was the perpetrator of the offences. 9 Counsel for the accused appropriately conceded that if we were to agree with the Crown that the judge erred on theidentity question, the remedy was to set aside the acquittals and order a new trial.

In the end, the judge’s conclusion that theidentification evidence in this case does not meet the test on a directed verdict motion cannot be allowed to stand. Whether the evidenceadduced by the Crown will ultimately be sufficient to meet the burden of proof beyond a reasonable doubt will be for a jury to decide. 10 In light of our decision, we need not and have not considered the Crown’s “alternative route to conviction” argument. 11 For these reasons, the appeal was allowed, the acquittals were set aside and a new trial was ordered. J.A. I agree: J.A. I agree: J.A.