R v Mustard (G), 2016 MBCA 40

Citation: R v Mustard (G), 2016 MBCA 40 Date: 20160419 Docket: AR15-30-08403 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Michel A. Monnin Madam Justice Freda M. Steel Mr. Justice Christopher J. Mainella BETWEEN : ) A. L. Sansregret and HER MAJESTY THE QUEEN ) K. I. Dowle ) for the Appellant Respondent ) ) N. P.

Steen - and - ) for the Respondent ) GERALD ARNOLD MUSTARD ) Appeal heard: ) March 11, 2016 (Accused) Appellant ) ) Judgment delivered: ) April 19, 2016 On appeal from 2015 MBQB 99 , 318 ManR (2d) 32 MAINELLA JA Introduction [ 1 ] The accused was tried by a judge and jury for second degree murder and convicted of the included offence of manslaughter for fatally stabbing Anthony Sorokowski (the deceased) in the neck on October 19, 2012.

He appeals his conviction on the grounds that the judge erred by refusing to instruct the jury on self-defence because she found that there was no air of reality to the claim and that she misapprehended the evidence in coming to that decision. For the following reasons, I would allow the appeal. Background [ 2 ] The accused was a casual acquaintance of the deceased’s housemate, Karla Petersen (Petersen). Petersen invited the accused to join her and the deceased at their Winnipeg residence after the two ran out of beer late in the evening. The accused and the deceased had never met before.

The accused picked up Petersen, they obtained more beer and then returned to the residence. For several hours the three socialized while consuming beer, as well as cocaine and marihuana. [ 3 ] When the deceased decided to go to bed, he asked the accused to leave and told him if he did not leave soon he would “physically” throw the accused out. Later, when the deceased returned to the living room and discovered that the accused had not left, the deceased became angry and said, “You’re still not gone, bud?” [ 4 ] The accused got up from the living room couch and moved quickly towards the deceased. A fight began.

The deceased was the larger man. He was highly intoxicated and unarmed. After some brief pushing and shoving, the two men separated and then Petersen saw the accused pull a pocket knife out of his pants and open the blade. She then saw what she described as the accused punching the deceased towards his face or neck. She could not say if the punch struck the deceased. In her words, “it happened very fast.” [ 5 ] A few moments later, the deceased got the accused to the ground and began to choke him with two hands. Petersen then saw the deceased grab his own neck which was bleeding.

At some point in the fight the accused stabbed the deceased, cutting the left jugular vein. Petersen called 911. While Petersen was talking to the 911 operator, the accused said, “I’m sorry. I didn’t mean to,” as well as, “He jumped me and I stabbed him.” The deceased was taken to hospital by paramedics, operated on, but later was taken off life

support after he was declared brain dead. [ 6 ] A pathologist testified that a person having their jugular vein cut could carry on for five to ten minutes before losing consciousness. He also explained that blood would have oozed out of the deceased’s jugular vein, as opposed to spraying, particularly if he was standing when he was stabbed. The pathologist also testified about one of the injuries found on the deceased’s body being a split right upper lip with surrounding bruising. He testified that the wound was the result of blunt force trauma such as a fall or being punched with a fist or an object.

In his opinion, the nature of that injury was such that it would not have been caused by the paramedics or doctors in their efforts to save the deceased’s life. [ 7 ] Petersen testified that her level of intoxication when the fight occurred was “drunk, but not intoxicated enough not to know what I was doing.” Several inconsistencies came out in Petersen’s evidence as to her recollection of events during the evening. The most significant one was the timing of when she took possession of the knife used to stab the deceased.

Petersen testified that she took the knife out of the accused’s hands while he and the deceased were standing up and threw it into the kitchen. Police later found a bloody pocket knife on the kitchen counter. Petersen acknowledged in her evidence that she gave a different version of events to police initially. In her police statement, she said that she took possession of the knife later in the fight when the accused was on the ground.

Petersen was confronted with the contradiction during cross-examination and was asked if it was possible that she took possession of the knife when the accused was on the ground, not when he was standing. She gave the following testimony: Q Do you agree that that’s possible? A No. Yeah, I agree it’s possible, but . . . Q And do you agree that that’s what it seems you told the police in your statement? A Yes, I was in shock. Q Not long after this happened. A When I was in shock still, yeah. Q You were in shock? A Still, yeah.

Q So if you[’re] wrong about that you would agree you might be wrong about a whole other number of things that happened? A No. [ 8 ] The accused did not testify. [ 9 ] The relevant self-defence provisions of the Criminal Code (the Code ) that were in force when this incident occurred (the “old” self-defence provisions, as it appeared in October 2012) were as follows: Self-defence against unprovoked assault 34

(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Extent of justification 34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if (

a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (

b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. Self-defence in case of aggression 35 Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if (

a) he uses the force (

i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (

b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and (

c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. Provocation 36 Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures. Prevention assault 37

(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. Extent of justification 37(2) Nothing in this

section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [ 10 ] The accused’s trial was held after March 11, 2013, the date on which the “new” self-defence provisions in the Code regarding defence of the person came into force (see Citizen’s Arrest and Self-defence Act , SC 2012, c 9): Defence — use or threat of force 34.

(1) A person is not guilty of an offence if

(

a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being madeagainst them or another person; (

b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from thatuse or threat of force; and (

c) the act committed is reasonable in the circumstances. Factors 34.

(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstancesof the person, the other parties and the act, including, but not limited to, the following factors: (

a) the nature of the force or threat; (

b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use offorce; (

c) the person’s role in the incident; (

d) whether any party to the incident used or threatened to use a weapon; (

e) the size, age, gender and physical capabilities of the parties to the incident; (

f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force andthe nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (

g) the nature and proportionality of the person’s response to the use or threat of force; and (

h) whether the act committed was in response to a use or threat of force that the person knew was lawful. [11] The parties proceeded by agreement that the “new” self-defence provisions applied retrospectively to the allegationhere.

That approach was in conformity with previous trial-level decisions in this jurisdiction (for example, see R v Atkinson (RK) et al,2013 MBQB 264 at paras 47-66, 297 ManR (2d) 298; and R v Knott (CL), 2014 MBQB 72 at para 46, 304 ManR (2d) 226). [12] Since the jury’s verdict, several appellate courts in other jurisdictions have decided that the “new” self-defenceprovisions do not apply retrospectively (see R v Evans (DJ), 2015 BCCA 46, 367 BCAC 148; R v Bengy (K), 2015 ONCA 397, 335OAC 268; R v Rogers (C), 2015 ONCA 399, 338 OAC 105, leave to appeal to SCC ref’d, [2015] SCCA No 448 (QL); and Green c R,2015 QCCA 2109 ).

To date, this Court has not had an opportunity to consider the issue of whether the “new” self-defenceprovisions are retrospective in effect, or merely prospective. This is not an appropriate case to do so because the issue was not litigatedat trial and, as will be explained, the issue has no bearing on the result of this appeal. The question is better left for another day with aproper record. [13] The accused requested that the judge put the defence of self-defence to the jury on two alternative bases. [14] First, he argued that Petersen was an unreliable witness.

He said the jury could reject her testimony and rely on her

earlier statement to police as to when she took possession of the knife, together with his comment in the 911 call that he was “jumped”, and infer that the accused still had the knife when he was on the ground and only stabbed the deceased after being choked by him. The judge determined that such an inference amounted to nothing more than “speculation” (at para 21). [ 15 ] Alternatively, the accused submitted that if the jury accepted that the deceased was stabbed while he and the accused were standing, the accused’s act of stabbing the deceased in the neck was nevertheless reasonable in the circumstances.

The judge accepted that there was evidence to give the alternative theory an air of reality on the first two requirements of the “new” self-defence provisions in subsections 34(1) (

a) and (

b) of the Code . However, in her view, there was insufficient evidence to give an air of reality that it was reasonable in the circumstances (subsection 34(1)(

c) of the Code ) to stab an unarmed man in the neck even if the deceased was larger than the accused. Discussion The Law Regarding the Air of Reality Test [ 16 ] The air of reality test is an important feature of a criminal jury trial. It affects the litigation strategies of the parties, it is one aspect of the important gatekeeper role that a trial judge plays and, critically, it is the method used to screen, based on the record, what defence(

s) the jury considers in reaching a verdict on an allegation. The judge’s decision that there was no air of reality to self- defence, in relation to either theory advanced by the accused, is a question of law and, therefore, is reviewable on a standard of correctness ( see R v Cinous , 2002 SCC 29 at paras 51 , 55, [2002] 2 SCR 3). [ 17 ] The burden to raise an air of reality is evidential, not persuasive ( see Cinous at para 52 ).

The standard a trial judge is to apply in screening in or out a defence for the jury is “whether there is . . . (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” ( Cinous at para 65 ). The test has several features. [ 18 ] To begin, a trial judge’s duty as to whether a defence is put to a jury is a mandatory one that is entirely evidence driven.

The importance of the responsibility was explained in the following manner by Clyde LJ in Von Starck v The Queen , [2000] UKPC 5 , [2000] 1 WLR 1270 (BAILII) : “It is the duty of the judge to secure that the overall interests of justice are served in the resolution of the matter and that the jury is enabled to reach a sound conclusion on the facts in light of a complete understanding of the law applicable to them” (at para 12). Accordingly, all defences that have an air of reality must be put to a jury, even if not raised by an accused.

The corollary to that is that no defence is to be put to the jury that lacks an air of reality even if that is an accused’s only chance at being acquitted ( Cinous at para 51 ). [ 19 ] An air of reality must exist to the whole of a defence; if any element of a defence lacks an air of reality, the defence is not put to the jury ( Cinous at paras 93, 97 ).

Defences, or an element thereof, supported only by bald assertions, or an agreement of counsel, without a sufficient evidentiary foundation, are not to be put to the jury ( R v Pappas , 2013 SCC 56 at para 26 , [2013] 3 SCR 452 ; and R v Pickton , 2010 SCC 32 at para 27 , [2010] 2 SCR 198 ). [ 20 ] The assessment of whether there is an air of reality is to be made on consideration of the entire record. The evidential foundation may arise from any “evidential source on the record. There is no requirement that the evidence be adduced by the accused” ( Cinous at para 53 ).

The trial judge assumes the version of the evidence most favourable to an accused to be true ( Cinous ibid ; and R v Grant , 2015 SCC 9 at para 20 , [2015] 1 SCR 475 ). [ 21 ] There are several actions of a trial judge in applying the air of reality test that, if taken, are errors of law for the purposes of section 686(1) (a)(ii) of the Code .

A trial judge cannot assess the quality, credibility or reliability of evidence, substantively weigh the probative value of evidence, make findings of fact or draw determinative inferences ( Cinous at paras 54, 87 ; Pappas at para 22 ; and Grant ibid ). [ 22 ] While a trial judge has no ability to weigh, in any way, direct evidence, if the evidence in whole or in part, is circumstantial, the trial judge is to engage in a “limited weighing” of the evidence for the purposes of deciding whether there is an air of reality ( Cinous at paras 88-91 ; and Pappas at paras 23-25 ). [ 23 ] The limited weighing of evidence for the air of reality test, while important, is also a modest and discrete exercise.

As is the case of a preliminary inquiry judge considering a committal based in whole or in part on circumstantial evidence, a trial judge assessing whether there is an air of reality to a defence weighs all of the evidence, but only to the extent of whether it is “reasonably capable of supporting the requisite inferences” ( Cinous at para 90 ; and see R v Arcuri , 2001 SCC 54 at para 23 , [2001] 2 SCR 828 ). [ 24 ] As Doherty JA explained in R v Hill (K) , 2015 ONCA 616 , 339 OAC 90 , a limited weighing focusses on whether the evidence viewed as a whole is reasonably capable of supporting a “credible narrative of events” (at para 68) that could allow a properly instructed jury to acquit based on the defence ( see also R v Cairney , 2013 SCC 55 at para 21 , [2013] 3 SCR 420 ).

He stated that, “A credible narrative does not exist where the only evidence of [the defence] consists of isolated shreds of evidence ripped from the context of the narrative as a whole” ( Hill ibid ; and see, for example, R v Bushie (CO) , 2012 MBCA 67 at para 5 , 280 ManR (2d) 236 ). [ 25 ] In a situation of inconsistent defences, assessment of the logic of the inconsistency is a question normally reserved for the jury to decide, not the trial judge.

The fact that a possible defence, or iteration of a defence, as is the case here with the two alternative theories of self-defence, may be logically incompatible with another defence does not necessarily mean that there is not an air of reality to one of the defences ( R v Gauthier , 2013 SCC 32 at paras 32-34 , [2013] 2 SCR 403 ; and R v Doucette (T) , 2015 ONCA 583 at para 31 , 337 OAC 109 ). [ 26 ] The trial judge also does not consider the merits of a defence in deciding whether it is put to the jury.

The air of reality test does not concern itself with whether “the defence is likely, unlikely, somewhat likely or very likely to succeed at the end of the day” ( Cinous at para 54 ). The air of reality test only decides whether a real legal issue exists for the jury to consider. [ 27 ] Finally, the trial judge should “resolve any doubts as to whether the air of reality threshold is met in favour of leaving

the defence to the jury” (Cairney at para 22; and see Pappas at para 26). Analysis of the Judge’s Refusal to Put Self-Defence to the Jury [28] There was no direct evidence as to exactly when the deceased was stabbed in the neck during the fight. The judgeaccepted that the evidence supported an inference that the accused stabbed the deceased when they were both standing. She stated (atpara 8): While Ms Petersen did not actually see the knife go into the deceased’s neck, the reasonable inference from her evidence is that he wasstabbed while he was still standing up.

As I said, she testified that the accused and deceased were pushing and shoving. They separatedfor a second during which time the accused pulled out a knife and then made a punching motion towards the area of the deceased’s face.

She did not veer from this version of events in spite of extensive cross-examination. [29] I agree that the evidence was reasonably capable of supporting the inference that the deceased was stabbed while he andthe accused were both standing. [30] The judge went on to conclude that, “I do not believe that there is circumstantial evidence in this case that leads to theinference that the accused stabbed the deceased while on the ground” (at para 14).

In her view, that scenario was nothing more than an“assertion” of the accused (at para 13). [31] The law recognises “a distinction between speculation and evidence” (see R v DC, 2012 SCC 48 at para 27, [2012] 2SCR 626). A proper inference can only be made where there are objective facts on the record to support it and logic reasonably allowsthe inference to be drawn from those objective facts (see Caswell v Powell Duffryn Associated Colleries, Ltd, [1940] AC 152 at 169-70(HL); and Cloutier v The Queen, (SCC), [1979] 2 SCR 709 at 731).

That said, the line between a proper inference andone that is nothing more than speculation or guess work is “neither clear nor sharp” (Colin Tapper, Cross and Tapper on Evidence, 10thed (London, UK: LexisNexis, 2004) at 31). [32] The starting point for appellate review of a decision as to what inferences the evidence can reasonably support is toidentify the context for the proposed inference based on the record. Separating a reasonable inference from an unreasonable orspeculative one cannot be done in a vacuum.

The pertinent context here is the timeline of when the stabbing could have occurred, whichrelied almost exclusively on the evidence of Petersen. [33] According to Petersen, the fight was a dynamic situation that quickly escalated. There was only a brief period of timebetween when the accused drew the knife and when the two men ended up on the ground. During that short interval, Petersen testified toonly one action of the accused that is reasonably capable of supporting the inference that the deceased was stabbed in the neck when heand the accused were both standing in the living room.

Also important is the fact that, according to the pathologist, the nature of thewound to the jugular vein was such that bleeding from the stab wound may not have been readily noticeable, particularly if it occurredwhile the deceased was standing when he was stabbed. [34] It is clear from her reasons that the judge was dissatisfied with the state of the evidence. She commented negativelythat Petersen was not asked in cross-examination about whether there were any punching or stabbing motions by the accused while onthe ground or what the accused was doing with his hands while the deceased was choking him.

I agree that there were important gaps inthe evidence. However, substantively weighing the circumstances of the fight was a task reserved for the jury. For the purposes of anair of reality to put self-defence to the jury, the judge was required to assume the truth of the evidence that tended to support that thedeceased was stabbed on the ground as opposed to standing.

In my view, she failed to do that. [35] Leaving aside the fact that Petersen did not see the accused’s punching motion connect with the deceased, there wasevidence that was not tenuous or uncertain, that reasonably allowed for the inference that the accused’s punching motion caused aninjury to the deceased, other than the perforated jugular vein, in the form of the split lip and bruising. As the accused put it in hisfactum, “It is reasonable that the punch was just that, a punch.” [36] There is also the problem of Petersen’s different versions of when she took possession of the knife.

If she took the knifefrom the accused while both men were standing, it would have been impossible for the accused to stab the deceased while he was lateron the ground being choked. However, the jury heard two versions of when Petersen gained possession of the knife as well as anexplanation from her as to why her first recollection of events to police was mistaken. [37] The Crown argues that there was no evidence that the accused had the knife on the ground because Petersen onlyaccepted the possibility that she may have taken possession of the knife when the accused was on the ground.

She did not admit that iswhat happened. [38] A question or suggestion put to a witness that is not adopted as true is not evidence and must be disregarded because itis only the answer that matters (R v Simpson, 2015 SCC 40 at para 37, [2015] 2 SCR 827). This is not a case where attempt was made totender the prior inconsistent statement of Petersen to police as proof of its contents (see R v B (KG), (SCC), [1993] 1SCR 740 at 782-83).

Accordingly, the only evidentiary value of Petersen’s prior inconsistent statement is that it may cast doubt on thecredibility and reliability of her testimony that she gained possession of the knife from the accused when he was standing (see Sydney N.Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 4th ed (Markham: LexisNexis, 2014) at 16.172). [39] It was not the function of the judge in her limited weighing of the evidence to assess the quality, credibility or reliability

of Petersen’s evidence (Cinous at para 87). A properly instructed jury could accept all, part or none of Petersen’s evidence as to whenshe took possession of the knife (R v François, (SCC), [1994] 2 SCR 827 at 837). While that is the case with anywitness’s evidence, here, importantly, there was a credible alternative to account for the results of the punching motion, other than astabbing in the neck, grounded in the pathologist’s evidence as to the injuries to the deceased’s lip.

Also, it is evident from the recordthat there were demonstrable frailties with Petersen’s evidence that the jury would have to weigh in assessing her narrative of events: shewas intoxicated at the relevant time; there were several inconsistencies in her evidence, of varying degrees of importance; and finally, shewas testifying to events that occurred in fleeting and stressful circumstances. [40] The reversible error of the judge was going too far in fact finding as to whether the punching motion Petersen testifiedshe saw was, in fact, the stabbing that caused death.

It was a question reserved for the jury as to whether that inference ought to bedrawn (Arcuri at para 24). The judge ruled out the inference that the stabbing occurred on the ground, as opposed to standing, in part, bysubstantively weighing the pathologist’s evidence to corroborate Petersen’s evidence. The judge stated that the pathologist’s evidencewas “consistent with the deceased being stabbed while standing, being able to wrestle the accused to the ground and realizing that hewas bleeding once on the ground” (at para 16).

The accused says the judge misapprehended the pathologist’s evidence in coming to thatconclusion. I see no need to consider that argument.

By substantively weighing the evidence and making findings of fact as to thecircumstances of the fight, the judge erred in law (see R v Brar (GS), 2009 BCCA 585 at para 42, 279 BCAC 94). [41] In my judgment, there were objective facts that existed on more than odds and ends in the record looked at in isolation,that, when viewed in the context of the timeline of the fight, could reasonably support an alternative narrative that the punching motionfrom the accused, while the two men were standing, did not result in the stabbing wound that caused the deceased to die.

Instructing thejury on self-defence would not have, in my view, confused the jury; quite the opposite. It was necessary for “a fair trial and true verdict”(Cinous at para 50). I say that because, by necessity, if the jury accepted that alternative inference regarding the punching motion, thepath they would have to follow to reach a true verdict would require deciding whether the choking of the accused by the deceased on theground precipitated the stabbing, thereby putting self-defence in play. [42] This is a case where there was a fine line as to whether the air of reality threshold had been met.

In such cases, the lawrequires such doubt be resolved in favour of the accused (see Cairney at para 22; and Pappas at para 26). [43] The state of affairs in this case is such that it would not be appropriate to dismiss the appeal, despite the error of thejudge going beyond a limited weighing of the evidence in deciding not to put self-defence to the jury, based on the curative proviso. Disposition [44] In the result, I would allow the appeal, quash the conviction and order a new trial on a charge of manslaughter. JA I agree: JA I agree: JA