R. v. Head, 2014 MBCA 59

Citation: R. v. Head, 2014 MBCA 59 Date: 20140606 Docket: AR 13-30-07963 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : ) G. G. Brodsky, Q.C. HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) A. Y. Kotler ) for the Respondent - and - ) ) ) Appeal heard: JOSEPH BURNELL HEAD ) April 25, 2014 ) (Accused) Appellant ) Judgment delivered: ) June 6, 2014 MAINELLA J.A. Introduction and Issues [ 1 ] The appellant was convicted of second degree murder before a judge and jury.

He admits to shooting and killing Shawn Beauchamp (the deceased) at point-blank range in what he claimed was self-defence. [ 2 ] While the appellant has raised many grounds in his conviction appeal, only three merit discussion: the admissibility of the deceased’s criminal record; the admissibility of a hearsay statement by the appellant to Michael Spence (Spence) soon after the shooting; and the adequacy of the judge’s charge to the jury on post-offence conduct.

Facts [ 3 ] In the early morning hours of January 11, 2009, ill fate brought together two rival gangs, the Indian Posse and the Bloodz, at the corner of St. John’s Avenue and Charles Street in Winnipeg’s North End. [ 4 ] The Indian Posse group (the appellant, Spence, Johnny Smith-Patchinose (Smith-Patchinose) and Sean Fiddler (Fiddler)) were walking west on St. John’s Avenue, to the apartment of a friend at the corner of Aikins Street (the apartment), after selling crack cocaine.

The appellant was carrying a handgun in his front waistband for the purpose of protection. [ 5 ] The Bloodz group (the deceased, Shelton Fontaine (Fontaine) and Taylor Letander) were walking north on Charles Street heading to the residence of the deceased’s girlfriend, after a night of drinking rum, smoking marihuana and playing video games. The deceased was drunk and agitated as he had been having problems with his girlfriend. [ 6 ] When the two groups met at the street corner, the Bloodz initiated a confrontation with the Indian Posse. Fontaine exchanged words with Fiddler and began pushing him.

The deceased joined the altercation by threatening words and actions that would amount to an assault within the meaning of s. 265(1) (

b) of the Criminal Code (the Code ). [ 7 ] As the deceased moved towards the Indian Posse group to assist Fontaine, Spence sprayed him in the face with bear spray. The deceased covered his face, and turned away. The appellant, who was standing about six feet away, then fired one shot into

the deceased’s back, which killed him. [8] The jury heard conflicting versions of the shooting.

The three key factual disputes were: (1) what the deceased said ashe approached the Indian Posse group; was it just “Bloodz” or something more to the effect of “Bloodz, you want to die?”; (2) whether,as the appellant and Spence testified, the deceased put his right hand into his jacket suggesting he was reaching for a gun, as opposed toother witnesses’ evidence that the deceased’s hands were visible; and (3) whether the bear spraying and the shooting were simultaneous,or there was a sufficient pause for the appellant to know he was shooting an incapacitated person. [9] The appellant explained firing the gun as follows: Q.

So why did you shoot it? A. Because I was really scared, and I thought, I thought he was going to shoot me. [10] The appellant denied he had other alternatives to using his gun, such as running away. He said he believed he had toshoot first or be shot. [11] The witnesses for the Crown all said that the Bloodz group was unarmed at the scene of the shooting, which wasconfirmed by police examination of the body of the deceased and the rest of the crime scene. [12] After the first shot, the parties scattered. The appellant fired a second shot at the Bloodz group, which missed.

TheIndian Posse group ran to the apartment, which was one block away. The appellant took a shower, told the others to keep their mouthsshut and, later, fled to Saskatchewan. Discussion Admissibility of the Deceased’s Criminal Record Background [13] Although the appellant did not know the deceased, he sought to tender his criminal record to assist in proving that heacted in self-defence.

The deceased had 27 convictions (1994-2005), including eight convictions for violent offences: two utteringthreats (1995), possession of a weapon for a purpose dangerous to the public peace (1996), robbery (1999), assault with a weapon(2000), two assaults (2002) and break enter and commit robbery (2005).

The appellant says the deceased was a lawless individual andhis record would put in context for the jury that anyone being threatened by such a person would have good reason to be afraid. [14] The judge refused to admit the evidence because, in his view, its probative value was substantially outweighed by itsprejudicial effect. He assessed its probative value as low because the Crown had admitted the deceased was the aggressor, and many ofthe deceased’s convictions were either dated, or were for non-violent offences.

The judge considered the evidence to be significantlyprejudicial as it was “likely to rouse feelings of hostility against the deceased.” Analysis and Decision [15] The deceased’s convictions for non-violent offences had no probative value to the issue of self-defence. Admitting suchevidence, based on the theory about dangers posed by the spectre of a lawless individual, is a not-so-subtle invitation for prohibitedreasoning from the jury that the deceased’s “demise was a civic improvement” (R. v. Varga (R.L.) (2001), (ON CA),150 O.A.C. 358 at para. 71, leave to appeal to S.C.C. ref’d, [2002] S.C.C.A.

No. 278 (QL)). [16] The deceased’s convictions for violent offences had probative value, but, in the circumstances, very little. As theappellant did not know the deceased, or his past, the relevance of convictions for violence to the issue of self-defence was limited to “theprobability of the deceased having been the aggressor and to support the accused’s evidence that he was attacked by the deceased” (R. v.Scopelliti (1981), (ON CA), 34 O.R. (2d) 524 at 535 (C.A.)).

This was not a case where the deceased’s criminalrecord proved he had a violent disposition to carry or use weapons in altercations which may have increased the likelihood of theappellant’s evidence that the deceased was reaching for what might have been a gun, before he was shot (R. v. Sims (1994), (BC CA), 87 C.C.C. (3d) 402 at 421-26 (B.C. C.A.)). [17] The jury did not have to decide whether the deceased was the aggressor; the Crown formally admitted he was (R. v.Korski (C.T.), 2009 MBCA 37 at paras. 121-22, 236 Man.R. (2d) 259).

The judge confirmed that formal admission in his jury chargeregarding self-defence. The admission also supported the appellant’s testimony, in part, as to the sequence of events. [18] Given the dated nature of the deceased’s convictions for violent offences and the favourable effect of the Crown’sadmission on the appellant’s defence of self-defence, I am satisfied that there is no reason to interfere with the judge’s exercise ofdiscretion to not admit the evidence. Admissibility of Appellant’s Post-Shooting Statement Background

[19] During the trial, Spence testified before the appellant did. Spence testified about a post-shooting conversation with theappellant (the “gat” conversation): Q. Okay. And why do you say that? A. Because, because when we got to that girl’s house, he asked me, he said that: Did that guy have a gat; he had a gat, eh? And, and Isaid: I think so, yeah. Q. What’s a gat? A. Gun. [20] The Crown objected to the admissibility of the “gat” conversation as being hearsay.

The appellant argued it wasadmissible because it was contemporaneous with the shooting and it occurred before the two could “sit down and chit-chat.” The judgeupheld the Crown’s objection and later instructed the jury to disregard the evidence. His explanation for doing so (outside the presenceof the jury) was: Mr.

Brodsky said the comments were contemporaneous with the event but in my view they were not, they were, they occurred after thewitness and the accused had fled the scene of the shooting and were in an apartment. …. [21] The appellant argues the evidence should have been admitted as an exception to the hearsay rule because the statementwas made contemporaneous to the shooting. [22] He also raises two alternative arguments for its admissibility: proof of state of mind (R. v. Simpson, (SCC), [1988] 1 S.C.R. 3 at 22), and its exculpatory nature (R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161).

Given my decision onthe appellant’s first argument, it is unnecessary to address or comment on his alternative submissions. Analysis and Decision [23] The appellant’s subjective perception of the situation when the deceased assaulted him by his threats and actions was afact in issue in relation to his claim of self-defence (R. v. Cinous, 2002 SCC 29 at paras. 93-94, [2002] 2 S.C.R. 3). The purpose oftendering the “gat” conversation was to prove what the appellant said to Spence was true; the appellant’s subjective belief of the situationwas that the deceased had a gun.

Such a use of an out-of-court statement of the appellant for the truth of its contents, without anopportunity for contemporaneous cross-examination of the declarant, made it hearsay (R. v. Evans, (SCC), [1993] 3S.C.R. 653 at 661-64; R. v. Starr, 2000 SCC 40 at paras. 162-63, [2000] 2 S.C.R. 144; and R. v. Khelawon, 2006 SCC 57 at para. 35,[2006] 2 S.C.R. 787). The evidence was, therefore, presumptively inadmissible (R. v.

Mapara, 2005 SCC 23 at para. 15, [2005] 1 S.C.R.358). [24] Appellate deference is owed to a determination as to the admissibility of hearsay evidence absent an error in principle orunless the decision cannot be reasonably supported by the evidence (R. v. Couture, 2007 SCC 28 at para. 81, [2007] 2 S.C.R. 517; and R.v. Blackman, 2008 SCC 37 at para. 52, [2008] 2 S.C.R. 298). [25] The res gestae categories of spontaneous (or excited) utterances and statements explaining acts are both traditionallyrecognized exceptions to the hearsay rule (see Hodge M.

Malek et al., eds., Phipson on Evidence, 18th ed. (London: Sweet & Maxwell,2013) at paras. 31-01–31-04; and Hon. Mr. Justice S. Casey Hill, David M. Tanovich & Louis P. Strezos, eds. McWilliams’ CanadianCriminal Evidence, 4th ed., looseleaf (Toronto: Thomson Reuters Canada Limited, 2012) vol. 1, at para. 7:120:10).

In my view, theestablished hearsay exception best suited to the admissibility of the “gat” conversation is that of spontaneous (or excited) utterances. [26] According to the testimony of Fiddler, Smith-Patchinose and a female witness who was inside the apartment (who’sevidence was an agreed fact: Exhibit 19) nobody heard the “gat” conversation between Spence and the appellant inside the apartmentafter the shooting.

The “gat” conversation, if it occurred at all, (which I will comment on later in my reasons) would have had to havetaken place before the appellant and Spence were within earshot of Fiddler, Smith-Patchinose and the female. According to Spence,which was the only direct evidence on the timing of the statement before the judge, the “gat” conversion occurred on arrival at the near-by apartment. [27] The timeline between the appellant firing the first shot that killed the deceased and the “gat” conversation with Spenceon arrival at the apartment was short, perhaps a minute or two.

The only intervening acts were the appellant firing a second shot at theBloodz and then fleeing the scene by running to the apartment. [28] The evidence before the judge was that the mood inside the apartment right after the shooting was one of surprise andshock because the Indian Posse group had unexpectedly found themselves in a gang altercation at a location that was considered their

“turf,” and it had escalated rapidly to a shooting. The drama was continuing as the occupants of the apartment could see the policeswarming into the neighbourhood to investigate the shooting. [29] The traditional common-law test for the admission of a spontaneous (or excited) utterance as an exception to the hearsayrule was stated as follows by Lord Wilberforce in Ratten v.

The Queen, [1972] A.C. 378 (P.C.) (at p. 391): … [H]earsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate butnot exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of themaker or the disadvantage of the accused. (See R. v. Khan, (SCC), [1990] 2 S.C.R. 531 at 540.) [30] In my view, the judge erred in principle by focussing on the fact that the “gat” conversation was not exactlycontemporaneous to the shooting.

While the location and timing of the declarant’s statement are relevant factors, they are notdeterminative (Ratten at p. 389). A statement can be sufficiently contemporaneous even if made shortly after a declarant flees the sceneof a crime (R. v. Grand-Pierre (1998), (QC CA), 124 C.C.C. (3d) 236 at 242-43 (Que. C.A.)). [31] The analysis as to whether a declarant’s statement is sufficiently contemporaneous is functional.

A circumstantialguarantee of trustworthiness comes from the declarant being under such stress or pressure from the triggering event that the possibility ofconcoction or distortion when making the statement can safely be disregarded (R. v. Clark (1983), (ON CA), 42 O.R.(2d) 609 at 622 (C.A.), leave to appeal to S.C.C. ref’d, [1983] S.C.C.A. No. 253 (QL)). [32] The judge should have weighed all of the surrounding circumstances of the “gat” conversation before deciding whetherthe possibility of concoction or distortion could be disregarded.

As a result of his error in principle, no deference is owed to his decisionon this issue. [33] I am satisfied, based on the record that was before the judge at the time of his decision, that the “gat” conversation wasmade sufficiently contemporaneous to a shocking and dramatic event: the unanticipated shooting of a rival gang member. Thepossibility of concoction or distortion can safely be excluded in such a short period of time where the intervening events do notundermine the statement’s circumstantial guarantee of trustworthiness.

In my view, the “gat” conversation was admissible under therecognized hearsay exception of spontaneous (or excited) utterances. [34] When hearsay evidence satisfies a traditional recognized exception to the hearsay rule, it is admissible unless it is a rarecase where it does not satisfy the indicia of necessity and reliability required by the principled approach to the hearsay rule (Mapara atpara. 15).

I do not see this as a rare case where there would be reason to not admit potentially exculpatory evidence that satisfied atraditional exception to the hearsay rule. [35] Whether Spence was actually telling the truth about the “gat” conversation when he testified was an issue for the jury todecide. The Crown did not seek a voir dire to cross-examine Spence before the judge ruled on the statement’s admissibility, nor did itsuggest that the out-of-court statement lacked threshold reliability. [36] In

summary, I am satisfied the judge made a wrong decision on a question of law by not allowing Spence to testify aboutthe appellant’s statement to him right after the shooting when they arrived at the apartment. Application of the Curative Proviso (s. 686(1)(b)(iii) of the Code) [37] In R. v.

Sekhon, 2014 SCC 15, Moldaver J. restated the principles of when the curative proviso can be applied by a courtof appeal in a conviction appeal in the following manner (at para. 53): As this Court has repeatedly asserted, the curative proviso can only be applied where there is no “reasonable possibility that the verdictwould have been different had the error . . . not been made” (R. v. Bevan, (SCC), [1993] 2 S.C.R. 599, at p. 617, aff’din R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28).

Flowing from this principle, this Court affirmed in Khan that there aretwo situations where the use of s. 686(1)(b)(iii) is appropriate: 1) where the error is harmless or trivial; or 2) where the evidence is sooverwhelming that, notwithstanding that the error is not minor, the trier of fact would inevitably convict (paras. 29-31). [38] In my view, the nature of the error committed by the judge can be described as harmless for the purposes of s. 686(1)(b)(iii) of the Code; it had no impact on the verdict for the following reasons. [39] Before the issue regarding the admissibility of the “gat” conversation arose, Spence had already testified that thedeceased had his right hand inside his jacket which made Spence believe he had a gun.

Later, the appellant gave similar evidence. Asnoted previously, the appellant testified that he believed that he was going to be shot. Both witnesses were vigorously cross-examined bythe Crown on their version of events and their credibility in light of what the record discloses to be many shortcomings. The appellantdoes not challenge the reasonableness of the verdict or that the judge properly instructed the jury on the application of reasonable doubtto the issue of credibility (R. v. W. (D.), (SCC), [1991] 1 S.C.R. 742).

It is evident that after proper instruction, the jurydid not have a reasonable doubt based on all of the evidence, including the testimony of the appellant as confirmed by Spence, that thedeceased may have done some motion with his right hand that could be perceived to be reaching for a weapon.

[40] In my view, the judge’s error related to an issue “the jury was otherwise necessarily aware of” (R. v. Khan, 2001 SCC 86at para. 30, [2001] 3 S.C.R. 823). When the nature of the judge’s error is examined in the context of the trial, I am satisfied that nosubstantial wrong or miscarriage of justice occurred and that this is an appropriate situation to apply the curative proviso.

Adequacy of the Judge’s Charge on Post-Offence Conduct Background [41] The three pieces of post-offence conduct evidence relating to the appellant before the jury were: (1) flight from thescene of the shooting; (2) an immediate shower at the apartment (suggested by the Crown to be an attempt to wash away gun-shotresidue); and (3) flight to Saskatchewan for the admitted purpose, in part, of evading the police. [42] In its closing address, the Crown relied on this post-offence conduct evidence for two purposes: to prove the appellanthad knowledge he had committed an unlawful killing as opposed to this being truly self-defence and also to impugn the appellant’scredibility generally as to what happened. [43] Counsel for the appellant submitted to the jury that, although the appellant caused the deceased’s death, he was justifiedin doing so because it was self-defence.

He argued for an outright acquittal and did not invite the jury, as an alternative if they rejectedthe plea of self-defence, to convict on the lesser included offence of manslaughter. [44] The judge cautioned the jury to be careful with using the appellant’s post-offence conduct and that there may be one ormore explanations for it. The adequacy of the judge’s caution is not at issue. [45] The appellant concedes that the evidence of his post-offence conduct was properly admissible and was relevant to theissue of self-defence; it could support the inference he knew he had committed a culpable act.

The error, he argues, is the judge shouldhave gone farther than merely cautioning the jury about using post-offence conduct evidence. He says that the judge should have givena “no probative value” limiting instruction to the jury in determining his level of culpability: murder or manslaughter (R. v. Arcangioli, (SCC), [1994] 1 S.C.R. 129 at 145). Analysis and Decision [46] While there is a risk that post-offence conduct evidence will be misused or misinterpreted by a jury, a special warning bya trial judge to the jury regarding it, is not required every time it is admitted (R. v.

White, 2011 SCC 13 at paras. 21-23, 105, 137-39,[2011] 1 S.C.R. 433 (White (2011)). The general rule is, it is the role of the jury to decide both whether an accused’s post-offenceconduct is related to the commission of the offence as opposed to something else, and the weight to ascribe to it in reaching a verdict. Judges should not usurp the fact-finding function of the jury except in limited circumstances (White (2011) at paras. 54, 105, 137; and R.v.

White, (SCC), [1998] 2 S.C.R. 72 at para. 27 (White (1998)). [47] While dissenting in the result, the opinion of Binnie J. in White (2011) is the authoritative discussion of the lawregarding post-offence conduct evidence (Charron J. at para. 104, noted her approval of his analysis making Binnie J.’s opinion a 5:4majority on any dispute as to the relevant legal principles).

Binnie J. explained in the following manner when a “no probative value”limiting instruction to the jury is required when post-offence conduct evidence is relevant to one live issue but not another (White (2011),at para. 169): … [I]f the evidence is not capable of (or cannot as a matter of law be used for the purpose of) justifying the inference sought by theprosecution, the evidence should be excluded or, if already in the record, effectively withdrawn from the jury with a “no probative value”instruction. [emphasis added] [48] In my view, a limiting instruction on the jury’s use of the appellant’s post-offence conduct was not required for the twoinferences the Crown asked the jury to draw from it. [49] As mentioned previously, it is conceded that such evidence was relevant to challenge the appellant’s plea of self-defence(White (1998) at para. 32).

The post-conduct evidence was also relevant to undermine the testimony of the appellant’s credibilitygenerally as to what happened at the street-corner ((White (1998) at para. 26; R. v. Jaw, 2009 SCC 42 at para. 39, [2009] 3 S.C.R. 26).

For example, the Crown suggested to the jury, if the appellant was able to flee quickly to the safety of the apartment after the shooting,that undermined his credibility that he could not have done the same before the shooting, particularly once the deceased had been bearsprayed. [50] Part of the judge’s charge on the appellant’s state of mind as to his level of culpability could be construed as aninvitation to the jury to consider the appellant’s post-offence conduct on the issue of his state of mind even though the Crown did not askthem to draw such an inference. The judge stated:

To determine [the appellant’s] state of mind, what he meant to do, you should consider all the evidence. You should consider what hedid or did not do; how he did or did not do it; and what he said or did not say. You should look at [the appellant’s] words and conduct before, at the time and after the unlawful act that cause[d] [the deceased’s]death. All of these things, and the circumstances in which they happened, may shed light on [the appellant’s] state of mind at the time. They may help you decide what he meant or did not mean to do.

In considering all the evidence, use your good common sense. [emphasis added] [51] The wording used by the judge comes from a specimen jury instruction as to state of mind for second degree murder(Final 229-A of the Ontario Specimen Jury Instructions (Criminal) (2005)). In Jaw, the Supreme Court of Canada confirmed that suchwording is nothing more than a “general guideline that encourages jurors to consider the actions of an accused person in their totality” (atpara. 25).

Such wording is not a misdirection inviting the jury to look at post-offence conduct evidence for all purposes in a trial (R. v.Hartling (B.F.), 2013 NSCA 51 at paras. 124-27, 329 N.S.R. (2d) 161). [52] When the judge summarized the relevant evidence as to the appellant’s state of mind for the purposes of his level ofculpability he made no mention of the post-offence conduct evidence, and did not, as was the case in Jaw at paras. 16, 26, link thatevidence to the issue of the appellant’s state of mind.

The judge stated: With respect to [the appellant’s] state of mind, you may want to consider the following evidence: [the appellant] shot [the deceased] atclose range, three to six feet; [the appellant] fired two shots -- one of the bullets struck [the deceased] in the lower back area; [theappellant] said he was not aiming and did not know where he was aiming when he shot [the deceased].

He fired the second shot in thedirection of the other two in [the deceased’s] group; he said he did not intend to kill [the deceased]. [53] A functional review of the judge’s charge, in light of the features of this trial, satisfies me that the jury was adequatelyinstructed on the issue of post-offence conduct (R. v. Jacquard, (SCC), [1997] 1 S.C.R. 314 at para. 32). [54] The nature of the post-offence conduct evidence was objective in nature and not an

interpretation or opinion of theappellant’s demeanour, which creates particular risks for jury misuse or misunderstanding without a clear instruction (White (2011) atparas. 180-85). [55] The trial was about self-defence. The appellant denied any culpability for murder or manslaughter, distinguishing thissituation from Arcangioli (at p. 133) where responsibility for the lesser offence was admitted. Also, the appellant was not advancing analternative defence to self-defence, unlike the situation in R. v.

Marinaro, (SCC), [1996] 1 S.C.R. 462, where theaccused asked for a conviction for manslaughter as opposed to murder, based on provocation, if the jury rejected his plea of self-defence.Counsel for the appellant conceded at the pre-charge conference that he didn’t want to argue a “compromise” verdict to the jury. [56] Most significantly, the Crown did not ask the jury to use the post-offence conduct evidence to draw an inference on theissue of state of mind, as between murder or manslaughter (White (2011) at para. 169). [57] In the facts of this specific case, the combination of a proper caution by the judge to the jury on use of post-offenceconduct evidence, the post-offence conduct evidence not relating to the appellant’s demeanour, the appellant not admitting culpability toany offence included in the indictment and the Crown not requesting the jury to use the evidence on the issue of his level of culpability,satisfies me that the judge was not required to give a limiting instruction to the jury about their use of post-offence conduct on the issueof the appellant’s level of culpability between murder and manslaughter. [58] In my view, the jury instructions, read as a whole and in the context of the issues at trial and the positions of the parties,were balanced, fair and free of error.

Disposition [59] I would dismiss the appeal. J.A. I agree: J.A.

I agree: J.A.