R v Owens (TJ), 2015 MBCA 96

Citation: R v Owens (TJ), 2015 MBCA 96 Date: 20151005 Docket: AR15-30-08341 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Marc M. Monnin Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) W. F. Armstrong ) for the Appellant Respondent ) ) N. M. Cutler and - and - ) C. T. St. Croix ) for the Respondent ) TREVOR JOHN OWENS ) Appeal heard and ) Decision Pronounced: (Accused) Appellant ) October 5, 2015 Appeal from 2014 MBQB 95 , 305 ManR (2d) 187 HAMILTON JA (for the Court) [ 1 ] The accused appealed his conviction for second degree murder by a judge alone.

He asserted that, given his level of intoxication and errors made by the trial judge with respect to the evidence, the verdict is unreasonable; it should be set aside and substituted with a conviction for manslaughter. [ 2 ] After hearing submissions at the appeal hearing, we announced that the appeal was dismissed and that our brief reasons would follow. These are those reasons. [ 3 ] The deceased was the accused’s father. He was killed by the accused after a drinking party with some friends and family, including the deceased and the accused’s brother Julian.

During the party, the deceased attempted to stop the accused and Julian from fighting. Eventually, everyone left the house except for the accused and the deceased. [ 4 ] In his warned statement to the police, the accused admitted that he then repeatedly assaulted the deceased, dragged him to the bathroom, placed him in the bathtub to attempt to revive him, then stabbed the deceased with forks and scissors.

The deceased died from a stab wound to his abdomen. [ 5 ] The trial judge was keenly aware of the accused’s intoxication and that the fundamental issue was whether the Crown had proved beyond a reasonable doubt that the accused had the specific intent for second degree murder. She stated that, “These are difficult determinations to make in the circumstances of cases such as this one” (at para 45).

After considering the accused’s “advanced” intoxication (at para 35) and all the other evidence, she was satisfied beyond a reasonable doubt that the accused intended to cause bodily harm to the deceased “that he knew was likely to cause his death and was reckless whether death ensued or not” (at para 48).

In her reasons, she noted in particular the following evidence in support of her conclusion (at para 47): ▪ the number of blows inflicted to [the deceased]’s body – at least 30 to 40; ▪ the flurry in which the blows were administered and over a prolonged period; ▪ the nature of the instruments utilized to stab [the deceased] and, particularly, the potentially lethal nature of the scissors;

▪ generally good recall of the events of the day and the circumstances of this incident; ▪ the police evidence as regards his level of impairment which included no overt signs, the ability to walk, talk, and followinstructions, acknowledging Constable Sherwood’s contrasting testimony as to some signs of drinking; ▪ aggressive behaviour towards Julian; ▪ admissions of punching and kicking, and that his arm was flying when stabbing [the deceased]; ▪ the statement that he was 50 to 75 percent intoxicated; ▪ his presence of mind to seek help for [the deceased]; ▪ hiding after advising Wesley Moar that [the deceased] required help; ▪ demonstrated dexterity in his ability to administer the blows and to move [the deceased] from the common room to the bathtub; ▪ his actions illustrating a progressive escalation of violence towards [the deceased]; ▪ his declared intention to kill [the deceased] as testified to by Julian. [6] The accused asserted that the trial judge erred when she relied on Julian’s evidence in any way because she stated thatshe did not give “significant weight” to his testimony (at para 51).

Therefore, according to the accused, she erred by relying on Julian’sevidence to establish that the accused threatened to kill the deceased and that the accused was responsible for all the blows inflicted onthe deceased.

In addition, he argued that the trial judge erred in concluding that there was a prolonged assault as opposed to twoindependent assaults separated by attempts to revive the deceased in the bathtub and in attributing to the accused the 30 to 40 blowssuffered by the deceased. [7] The accused did not demonstrate that, on the whole of the evidence, a properly instructed trier of fact could not havereasonably rendered the verdict of second degree murder.

R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381; R v Yebes, (SCC), [1987] 2 SCR 168. [8] Furthermore, the credibility and factual findings of the trial judge are entitled to deference unless the trial judge madepalpable and overriding errors that would entitle this Court to intervene. We see no such errors. The trial judge did not misapprehend theevidence, as argued by the accused.

She was entitled to make the findings of fact that she did based on the evidence before her. [9] In particular, the evidence demonstrates that the accused was responsible for all but perhaps six or seven of the blowssuffered by the deceased and that he was present for all of them. This evidence is pertinent to the accused’s knowledge of the jeopardythat his father faced. The trial judge was aware of this evidence and her reference to the number of blows should be read in that context.

As for Julian’s evidence, the trial judge was entitled to accept his unchallenged evidence that the accused threatened his father,notwithstanding that she expressed concerns about other aspects of his evidence. [10] For these reasons, the appeal was dismissed. J.A. J.A. J.A.