R v Cushnie (RL), 2016 MBCA 100

Citation: R v Cushnie (RL), 2016 MBCA 100 Date: 20161017 Docket: AR15-30-08490 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) M. P. Cook and ) E. Pollock ) for the Appellant Respondent ) ) N. M.

Cutler - and - ) for the Respondent ) RITA LOUISE CUSHNIE ) ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) October 17, 2016 On appeal from 2015 MBQB 151 , 321 ManR (2d) 8 MAINELLA JA (for the Court): [ 1 ] The accused appeals her convictions for first degree murder and conspiracy to commit murder following a trial by a judge alone. This was the second trial of the accused on the allegations (see R v Richard (DR) et al , 2013 MBCA 105 , 299 ManR (2d) 1 ).

The two issues on appeal are whether the judge misapprehended the theory of the defence and the reasonableness of the convictions. [ 2 ] The uncontested facts are that the accused’s friend Melody Sanford (Sanford) wanted her husband Ivan Radocaj (Radocaj) murdered. The accused’s son Donald Richard (Donald), together with his cousin Daniel Richard (Daniel) and Chris Houle (Houle), broke into Radocaj’s home in rural Manitoba while he was lured away to meet Sanford for coffee. On his return home he was ambushed by the three men and beaten to death.

Property from his home was also stolen. [ 3 ] Sanford, Donald, Daniel and Houle were all convicted of various offences in relation to the murder of Radocaj in proceedings completed prior to the retrial of the accused (see Richard at paras 3-6). [ 4 ] The accused was alleged to have agreed to the plan conceived by Sanford to kill Radocaj and also to have participated directly in his murder by encouraging her son Donald to murder Radocaj in return for him receiving some life insurance proceeds, acting as a conduit on the night of the murder by relaying messages between Sanford and Donald and by destroying evidence of the murder afterwards. [ 5 ] The judge rejected the evidence of the accused that she did not agree to the plot to kill Radocaj and played no

part in his murder.

In detailed reasons, she convicted the accused of the two offences based on evidence she accepted from Sanford, Timothy Richard (the driver of the men who ambushed Radocaj and who was given immunity for his testimony), a statement of Donald to police, implicating the accused in the murder plot, that was admitted for the truth of its contents after a Khelawon hearing ( see R v Khelawon , 2006 SCC 57 , [2006] 2 SCR 787 ) and phone records of the various parties on the night of the murder. [ 6 ] The accused argues that the evidence disclosed two conspiracies, one to murder Radocaj; the other only to burgle his home.

The accused says that, while she conceded there was a conspiracy to murder Radocaj at some unknown future date (which she was not a party to), the judge failed to consider the alternative theory that the plan of Donald and the others on the night in question was only to burgle Radocaj’s home, which was a separate conspiracy that the accused also says she was not party to. [ 7 ] We do not accept this submission. The indictment charged only one conspiracy, conspiracy to commit murder on the specified date on which Radocaj was killed.

The fact that some evidence disclosed more than one conspiracy is of no consequence. The issue for the judge to keep straight was whether the Crown proved the conspiracy alleged despite evidence of a second conspiracy ( see R

v Douglas, (SCC), [1991] 1 SCR 301 at 316). The judge’s reasons satisfy us she properly understood the theory of thedefence that there were multiple conspiracies. She was alive to the fact that there was evidence of two conspiracies, but she concludedthat there was sufficient evidence “that the intent and the plan was to kill Radocaj” (at para 73) on the night in question. [8] We also do not accede to the accused’s other argument that the verdicts are unreasonable because there wasinsufficient evidence of her knowledge or involvement in the plot to murder Radocaj.

In our view, the evidence the judge acceptedreasonably supported the convictions on both conspiracy to commit murder and first degree murder. The accused does not challenge thenegative credibility findings of the judge on her testimony or the judge’s approach to the frailties of the evidence given that the case forthe Crown relied almost entirely on Vetrovec witnesses (Vetrovec v The Queen, (SCC), [1982] 1 SCR 811).

In our view,it was open to the judge to accept the evidence of the various Vetrovec witnesses as being confirmatory of each other and we are satisfiedthat there is no concern as to the independence of the evidence from the Vetrovec witnesses (see R v Magno (J), 2015 ONCA 111 at para37, 329 OAC 294). [9] There is also no suggestion that the accused withdrew from the conspiracy to commit murder, which the judge foundthe accused was party to, prior to Radocaj being killed.

The accused could therefore be properly convicted of first degree murder as aparty on the evidence the judge accepted by virtue of either sections 21(1) or 21(2) of the Criminal Code. [10] In the result, the appeal is dismissed. JA JA JA