R v JJM, 2016 MBCA 101

Citation: R v JJM, 2016 MBCA 101 Date: 20161021 Docket: AY15-30-08430 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Madam Justice Diana M. Cameron BETWEEN : HER MAJESTY THE QUEEN ) ) W. F. Armstrong ) for the Appellant Respondent ) ) C. T. St. Croix - and - ) for the Respondent ) J. J. M. ) Appeal heard and ) Decision pronounced: ) October 21, 2016 (Young Person) Appellant ) NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act (see section 110(1)).

CAMERON JA (for the Court): [ 1 ] The young person appeals his conviction for second degree murder. He, along with a co-accused, attacked the deceased with a baseball bat and an air rifle. In his interview with police, the young person admitted to repeatedly kicking the deceased in the head. By all accounts, the beating was decisive and brutal. The young person was 15 years of age at the time of the incident. [ 2 ] The young person acknowledged that he caused the death of the deceased.

The main issue at trial was whether he had the requisite intent for murder or whether his level of intoxication negated his intent such that he should be convicted of the lesser offence of manslaughter. He appeals on the ground that the trial judge improperly interrupted his counsel during the course of closing remarks and prevented his counsel from referring to the social policy underlying the prohibition of the consumption of alcohol by those under the age of 18 years of age, found in The Liquor and Gaming Control Act , CCSM c L153 (the Act ).

This, he argues, prevented him from making full answer and defence. [ 3 ] During his submission, counsel for the young person referred to the Act and stated that people under the age of 18 were not yet mature enough to consume alcohol as it caused them to do “silly” and “grievous” things.

He said that this was the social policy underlying the prohibition and that the law recognized that there was a difference between an adult who was intoxicated by consuming alcohol and a young person under the same circumstance. [ 4 ] In response, the trial judge intervened and stated that there was no evidence regarding the social policy behind the Act and that the philosophy behind the Act was irrelevant absent such evidence.

This was the only time that the trial judge interrupted the submission made by the young person’s counsel, and there is no suggestion of bias or that the trial judge was overly interventionist. [ 5 ] A trial judge’s decision regarding whether or not to intervene or permit certain comments by the parties is a discretionary one. Absent a reversible error of fact or law, a discretionary decision is owed deference.

See R v Bellusci , 2012 SCC 44 at paras 17-18 , [2012] 2 SCR 509 . [ 6 ] In our view, the trial judge properly stated that there was no evidence of the social policy behind the Act or its relevance in the trial. The social policy underlying the Act is not a matter of common sense of which judicial notice should be taken. Evidence is required.

See R v Spence , 2005 SCC 71 , [2005] 3 SCR 458 . [ 7 ] In any event, when viewed as a whole, the closing submission of counsel clearly and repeatedly emphasized the youth of the young person in relation to his contention that the young person lacked intent based on his intoxication and the speed at which the

event unfolded. He also distinguished adult consumption of alcohol from that of a person under the age of 18, and he emphasized the effect of the young person’s immaturity together with the consumption of alcohol on his ability to form intent. In addition, the trial judge accurately summarized the young person’s position that his age and the circumstances of how the events unfolded must, in conjunction with intoxication, be considered by the jury in its determination of whether he had the requisite intent for murder. [ 8 ] Based on the above, we disagree that the young person was denied the right to make full answer and defence. Therefore, the appeal is dismissed. JA JA JA