Citation: R v Bushie, 2015 MBCA 87 Date: 20150921 Docket: AR14-30-08172 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre BETWEEN: HER MAJESTY THE QUEEN ) K. L. Jones ) for the Appellant Respondent ) ) N. M.

Cutler- and - ) for the Respondent ) BYRON CHARLIE BUSHIE ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) September 21, 2015 BURNETT JA (for the Court): [1] The accused appeals his conviction for second degree murder contrary to section 235(1) of the Criminal Code. [2] The accused raises two grounds of appeal, namely that: 1. the trial judge erred in finding that he had the requisite mens rea when there was no evidence to support that finding, thus renderingan unreasonable verdict; and 2. the trial judge materially misapprehended the evidence by preferring one version of events told by the accused to the police, overthe videotaped record of the incident. [3] As to the first ground, we are satisfied, on the whole of the evidence, that the verdict is one that a properly instructedjury, acting judicially, could reasonably have rendered (R v Yebes, (SCC), [1987] 2 SCR 168).

The trial judge appliedthe appropriate test pursuant to

section 229(a)(ii) of the Criminal Code regarding the three components which must be established: intention to cause bodily harm; knowledge that the bodily harm will probably be fatal; and recklessness whether the victim dies or lives(R v Moo (KS), 2009 ONCA 645, 253 OAC 106).

In particular, the trial judge said that he inferred subjective intent from the accused’sactions, and in our view, he was clearly entitled to do so on the basis of the evidence before him. [4] As to the second ground, we agree with the Crown’s submission that it was for the trial judge, as the finder of fact, todecide which portions of the evidence he would accept and which portions he would reject.

In particular, the trial judge was entitled toinfer from the evidence before him that the accused saw or perceived that the co-accused was trying to hit the victim with an axe beforehe became involved in the altercation or during the altercation. We have not been persuaded that the trial judge misapprehended theevidence, and his findings of fact and the inferences he drew are entitled to deference. [5] The appeal is therefore dismissed. JA JA