R v Scott, 2016 MBCA 30

Citation: R v Scott, 2016 MBCA 30 Date: 20160314 Docket: AR15-30-08379 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : ) R. T. Amy HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) R. D.

Lagimodière ) for the Respondent - and - ) ) Appeal heard: ROY KELLY SCOTT ) February 26, 2016 ) (Accused) Appellant ) Judgment delivered: ) March 14, 2016 MAINELLA JA Introduction and Issues [ 1 ] After a trial by judge alone, the accused was convicted of second degree murder in the stabbing death of Arabella Garson (the victim). He appeals his conviction and advances, in essence, three grounds of appeal. He says his video-recorded statement to police was involuntary.

He also submits that the judge’s assessment of the credibility and reliability of the principal witness, the victim’s sister Fanny, was based on misapprehensions of the evidence. Finally, he argues that the verdict for second degree murder was unreasonable given the clear evidence of his intoxication and the vagaries of the evidence as to the stabbing. For the following reasons, I would dismiss the appeal. Background [ 2 ] The accused, the victim and Fanny spent an evening together in the accused’s residence in Split Lake, Manitoba.

After several hours of drinking, the victim was stabbed five times and bled to death. The two issues in dispute at trial were whether it was the accused who stabbed the victim and, if so, whether his level of intoxication had progressed to the point that he lacked the requisite specific intent required for murder and, thus, should be convicted of manslaughter ( R v Daley , 2007 SCC 53 at para 41 , [2007] 3 SCR 523 ). Discussion Voluntariness of the Accused’s Statement [ 3 ] The Crown successfully had the accused’s statement ruled voluntary, not as evidence, but for cross-examination purposes.

The accused, however, did not testify and, therefore, his statement was not used, or referred to, in the trial. Nevertheless, a voluntariness ruling is not moot in such circumstances. If the trial judge erred and there is a reasonable possibility that the verdict would have been different had the error not been made, appellate intervention is appropriate ( R v Borkowsky (H) , 2008 MBCA 2 at para 43 , 225 ManR (2d) 127 ; and section 686(1)(b)(iii) of the Criminal Code ). [ 4 ] The accused was interrogated after he was arrested, sobered up and had an opportunity to speak to counsel.

On 18 occasions during the 3.5-hour interrogation he refused to answer police questioning and invoked his right to remain silent. Nevertheless, the two officers persisted in questioning him with appeals to his conscience to explain what happened. [ 5 ] I am not persuaded by the accused’s argument that he made it clear that he wished to remain silent, the police ignored him, and as a result his ability to make a meaningful decision of whether or not to discuss what happened was improperly overpowered.

Police are not required to stop questioning a detainee merely because they invoke their right to silence.

Whether police use of“legitimate means of persuasion,” in the face of repeated assertions of the right to remain silent makes a statement involuntary is aquestion of fact that turns on the individual circumstances (R v Singh, 2007 SCC 48 at para 47, [2007] 3 SCR 405). [6] Here, the judge carefully considered all of the relevant circumstances around the taking of the statement and paidparticular attention to the officers’ efforts to persuade the accused to discuss what happened despite his repeated assertion of his right toremain silent.

He made no palpable and overriding error in his assessment of the situation and, therefore, I would not interfere with hisdetermination as to voluntariness (R v Spencer, 2007 SCC 11 at paras 16-17, [2007] 1 SCR 500). Assessment of Fanny’s Evidence [7] Fanny was the only witness to testify as to the events before and immediately after the stabbing. It is common groundthat the victim’s wounds were not self-inflicted. The only two people who could have stabbed her were the accused or Fanny.

Thejudge was satisfied beyond a reasonable doubt that Fanny was “truthful and correct that she did not stab her sister.” Implicit in hisreasoning is that based on that finding regarding Fanny, although there was an absence of proof of motive for the crime, the accused hadthe exclusive opportunity to commit it (see R v Yebes, (SCC), [1987] 2 SCR 168 at 188-89).

The judge found Fannycredible and reliable as to whether she stabbed her sister despite several shortcomings with her evidence. [8] As to the events prior to the stabbing, Fanny testified that she did not witness the stabbing and could not explain whythe accused may have stabbed her sister. Also, the judge rejected Fanny’s evidence that she was not intoxicated before the stabbing.

Hefound that she was intoxicated and was asleep on a couch until she heard her sister say “Fanny, help me.” She awoke, and then saw thather sister was alive, but bleeding from her stab wounds, the accused was standing behind her sister doing nothing and there was a knifeon a table nearby her sister that Fanny had not seen before. [9] As to the events after learning about the stabbing, Fanny was neither truthful with the police, nor in her evidence atthe preliminary inquiry, as to the nature of the relationship she had with the man she turned to for help after learning of the stabbing. [10] Finally, this was the third trial of the accused.

Fanny was testifying to events that had occurred seven years earlier. There were inconsistencies in her version of events with her prior testimony. [11] A trial judge’s assessment of the credibility or reliability of a witness will not lightly be interfered with on appeal (R vRAW, 2015 MBCA 69 at para 15, 319 ManR (2d) 228). A misapprehension of the evidence “is not to be confused with a differentinterpretation of the evidence than the one adopted by the trial judge” (R v BDTW, 2015 MBCA 24 at para 32, 315 ManR (2d) 237).

The judge’s reasons demonstrate that he evaluated the distinct issues of credibility and reliability in his assessment of Fanny’s evidencedespite its shortcomings. In my judgment, he made no obvious errors in coming to his assessment of Fanny’s evidence that requireappellate correction. Reasonableness of the Verdict—Intoxication [12] The judge correctly instructed himself as to when advanced intoxication negates the requisite intent required for murder.

He explained, in detailed reasons, why he was satisfied beyond a reasonable doubt that the accused had the requisite intent for murderlooking at all of the evidence before, during and after the incident, including the circumstances of the social gathering, how muchwhiskey was consumed, the nature of the stab wounds to the victim, Fanny’s observations about the accused’s ability to followinstructions to care for her sister while she went for help, the fact that the accused was able to wash himself and lock the door beforeFanny returned and the evidence from several independent witnesses who observed the accused’s post-offence conduct inside theresidence when they responded to the incident. [13] In my view, the accused has not demonstrated that the judge misapprehended the evidence as to the accused’sintoxication in any material way or otherwise made any palpable and overriding errors in drawing the inference of specific intent forsecond degree murder.

I am satisfied that a properly instructed trier of fact could have reasonably rendered the verdict of second degreemurder based on the evidence as to the accused’s level of intoxication (see R v Owens (TJ), 2015 MBCA 96). Disposition [14] In the result, I would dismiss the appeal. JA I agree: JA I agree: JA