R v Monias, 2016 MBCA 111

Citation: R v Monias, 2016 MBCA 111 Date: 20161124 Docket: AR15-30-08423 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Alan D. MacInnes Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) S. B. Simmonds and ) K. D. Minuk Respondent ) for the Appellant ) - and - ) N. M. Cutler ) for the Respondent ADAM KENT MONIAS ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) November 24, 2016 PER CURIAM [ 1 ] After hearing submissions, we dismissed the accused’s appeal against his second degree murder conviction, with brief reasons to follow.

These are those reasons. [ 2 ] The accused raised two grounds. First, he submitted that the trial judge erred when he found that there was no air of reality to his claim that he was simply assisting his brother who was being attacked by the now-deceased victim. His second ground of appeal was that the trial judge’s numerous interventions in the proceedings deprived him of a fair trial or the appearance thereof. [ 3 ] On the first ground, we all agree that there was no air of reality to the accused’s defence of another person claim under section 34(1) of the Criminal Code .

If any element of a defence lacks an air of reality, the defence is not to be put to the jury ( see R v Cinous , 2002 SCC 29 at para 97 , [2002] 2 SCR 3 ). In the instant case, we have not been satisfied that the trial judge erred in finding that there was no air of reality to the third essential element of the defence: that the accused’s conduct was reasonable in the circumstances. [ 4 ] The evidence before the trial judge was troubling. After arguing with the victim earlier in the evening, the accused made comments suggesting an intention to return and seek revenge.

Upon his return, the accused immediately joined the attack on the victim, just after an associate of the accused had stabbed the victim in the back. At that point, the victim was outnumbered three to one. Moreover, the accused and his associate were armed while the victim was not. Finally, the accused made comments immediately after attacking the victim, indicating an intention to kill the victim.

We see no basis upon which a properly instructed jury could have a reasonable doubt as to whether the accused reasonably believed that it was necessary for him to act as he did to stop the unarmed victim from continuing his assault on the accused’s brother. [ 5 ] The second ground of appeal asserts that the trial judge’s numerous interventions during the testimony of various witnesses deprived the accused of a fair trial or destroyed the appearance of a fair trial.

Subsumed in the accused’s second ground was his contention that the trial judge was much more critical and disapproving of the manner in which his counsel conducted the examination of witnesses than with other counsel. [ 6 ] While the trial judge did intervene on numerous occasions, it is our view that, for the most part, there was a valid purpose for the interventions. Some of the interventions were required because the trial judge sought clarification, or because the questions being posed were compound questions which could be and, as some of the transcripts show, were confusing to the witness.

Other times, the trial judge intervened to protect the jury from hearing evidence it was not entitled to hear. On the whole, when the trial judge’s interventions are viewed in their proper context and cumulatively, we are all of the view that they did not deprive the accused of a fair trial or the appearance thereof. [ 7 ] Notwithstanding this conclusion, the following must be said. We recognize that trial judges have the significant

responsibility to ensure the proper conduct of the trial. That is not a simple task. As well, the complexity of the trial and the presence of a jury increase the difficulty and sensitivity of the task (see R v Lynxleg (BJ) , 2002 MBCA 101 at paras 18-23 , 166 ManR (2d) 185 ). [ 8 ] Trial judges must firmly control the process, ensure that the trial proceeds expeditiously and act decisively as required by the issues that arise during the trial. [ 9 ] Still, trial judges must be alive to the power and prestige of their position which results in their words and demeanour having a special significance.

Above all, they should treat everyone before the court with proper courtesy. [ 10 ] We are of the view that some of the trial judge’s interventions and comments imparted a sense of undue impatience and discourtesy towards the accused’s counsel.

Such conduct is injudicious and should not be repeated. [ 11 ] In the end, while it cannot be said that the trial judge’s interventions deprived the accused of a fair trial, or would have led a reasonably-minded person to conclude that the accused did not receive a fair trial, it would have been better had the trial judge been more restrained. [ 12 ] For these reasons, the appeal against conviction was dismissed. CJM JA JA