R v Burnett (CD), 2017 MBCA 16

Citation: R v Burnett (CD), 2017 MBCA 16 Date: 20170130 Docket: AR16-30-08632 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) E. C. Pauls ) for the Appellant ) Respondent ) C. R. Savage ) for the Respondent - and - ) ) Chambers motion heard: CAMERON DOUGLAS BURNETT ) January 18, 2017 ) ) Decision pronounced: (Accused) Applicant ) January 30, 2017 BEARD JA I. THE ISSUE [ 1 ] This is a motion by the accused under section 678(2) of the Criminal Code to extend the time to file a notice of appeal regarding his conviction for second degree murder.

The Crown is opposed on the bases that the accused has not provided a reasonable explanation for the delay and there are no arguable grounds of appeal. II. THE TRIAL [ 2 ] The accused was tried by judge and jury. He testified at the trial, during which he admitted that he stabbed the deceased in the chest, thereby causing her death. His response to the charge of murder was that, while he committed an unlawful act that caused the death of the deceased, he did not have the requisite intent for murder; that he was acting in self defence and should, therefore, be acquitted; or, if not, that he was provoked.

The trial judge refused to put the partial defence of provocation to the jury and that decision is not being appealed.

The jury convicted the accused of second degree murder, thus finding that the Crown had proved beyond a reasonable doubt both that he had the intent for murder and that he was not acting in self defence. [ 3 ] In essence, the accused proposes to appeal on only one basis: That the learned trial judge erred by failing to adequately explain the lesser and included offence of manslaughter to the jury, and in particular, the mens rea requirement of the offence of manslaughter. [ 4 ] In his instructions, the trial judge directed the jury as follows: In this matter [the accused] admits he caused the death of [the deceased] by stabbing her by the garage near 310 Dennis Street on November 1st, 2011.

This admission constitutes proof beyond a reasonable doubt of the first two essential elements of second degree murder, that is to say the Crown has proven beyond a reasonable doubt that [the accused] caused the death of [the deceased] and that [the accused] caused the death of [the deceased] unlawfully. You may move on to the third essential element of the offence. Did [the accused] have the state of mind required for murder? The crime of murder requires proof of a particular state of mind.

For an unlawful killing to be murder Crown counsel must prove that [the accused] meant either to kill [the deceased] or meant to cause [the deceased] bodily harm that [the accused] knew was likely to kill [the deceased] and was reckless whether [the deceased] died or not. The Crown does not have to prove both. One of these is enough. All of you do not have to agree on the same state of mind as long as everyone is sure that one of the required states of mind has been

proven beyond a reasonable doubt. If [the accused] did not mean to do either, [the accused] committed manslaughter. There is much evidence for you to consider inorder for you to determine if [the accused] had the requisite state of mind for murder. [5] The trial judge did not instruct the jury on the state of mind required for manslaughter; rather, he told the jurors that,if they were not satisfied beyond a reasonable doubt that the accused had the state of mind for murder, then he was guilty ofmanslaughter.

Both the Crown and trial defence counsel were satisfied with this charge. [6] During the deliberations, the jurors asked the following question: In paragraph 122 under “Did [the accused] have the state of mind required for murder?” can you please clarify the two differentstatements that should be proved for state of mind? [7] The trial judge reviewed the question and his proposed reply with trial counsel. All were content, and there was nosuggestion that the charge should include an explanation of the state of mind for manslaughter.

In his reply to the question, the trialjudge first re-read the provision of his original charge and then gave an expanded explanation of the state of mind for second degreemurder. He said nothing about the state of mind for manslaughter. Neither the Crown nor the defence counsel voiced any objection atthe trial. [8] Several hours later, the jury returned with a verdict of guilty of second degree murder. III.

THE PARTIES’ POSITIONS [9] As noted above, the accused is now arguing that the trial judge erred in both his initial charge and in the answer to thejury’s question by not providing the jury with the requisite legal basis upon which it might find the accused not guilty of second degreemurder, but still find him guilty of manslaughter. [10] He summarized his position as follows: The [accused] respectfully submits that the jury could not have meaningfully considered the possibility of a manslaughter verdict, giventhe absence of an explanation as to the mens rea requirement, the absence of an explanation as to the distinction between the mens rearequirement for murder and the mens rea requirement for manslaughter, and the absence of an application of this distinction to theparticular facts of the case at bar. [11] The accused refers, in particular, to the decision of the Ontario Court of Appeal in R v Patterson (MA) (2006), (ON CA), 207 OAC 147, in support of his position. [12] The accused argued at the hearing that the trial judge also erred by not telling the jury, as part of his answer to thequestion, that it could ask further questions.

He argues that, by the words that he used, he left the message that there could be no furtherquestions. For this, he relies on the majority decision in R v Layton, 2009 SCC 36, [2009] 2 SCR 540. [13] The Crown’s position is that the motion should be dismissed for two reasons. It argues, firstly, that the accused has notadequately explained the delay in filing the notice of appeal and, secondly, that there are no arguable grounds of appeal.

It takes theposition that the charge in Patterson was found to be defective on a very narrow basis that is not present in this case and, thus, is not ofassistance to the accused. It argues that both the initial charge and the answer to the jury’s question were correct in law and adequate,and that the trial judge committed no errors. [14] The Crown also argues that the trial judge did not err by not telling the jury, as part of his answer to its question, that itcould ask further questions. IV.

ANALYSIS Extending the Time to Appeal [15] The principles to be applied in determining whether to extend the time for filing an appeal were set out by Scott CJM inR v Giesbrecht (EH), 2007 MBCA 112, 220 ManR (2d) 152 (at para 11): Much has been written on this subject. The leading Manitoba cases are R. v. Mohammed (F.) (1990), (MB CA),61 Man.R. (2d) 192; (MB KB), 60 C.C.C. (3d) 296 (C.A.), and R. v. D.B.R., [2005] Man.R. (2d) Uned. 3; 2005MBCA 21.

As noted by Hamilton, J.A., in D.B.R. (at para 6): “An order to extend time is a discretionary order, with the overriding objective that justice be done in the circumstances. The criteriathat are normally considered on such an application are: 1. there was a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2. there is a reasonable explanation for the delay; and

3. there are arguable grounds of appeal.” (See also R v Otte (T) , 2012 MBCA 88 at para 8 , 284 ManR (2d) 33 ; and R v Fraser (C) , 2016 MBCA 9 at para 10 , 326 ManR (2d) 32 .) Arguable Ground of Appeal – Instructions on Murder and Manslaughter [ 16 ] This application can be resolved on the basis of whether there are arguable grounds of appeal. [ 17 ] The standard for reviewing a jury charge for adequacy was summarized by this Court in R v Ponce , 2012 MBCA 87 , 288 ManR (2d) 1 , as follows (at para 39): As to the jury charge, assuming that the judge is applying the appropriate legal principles, an appellate court is to review the charge, not to a degree of perfection, but only to assess whether it had the effect of instructing the jury as to what was expected of them. ( See also R v Daley , 2007 SCC 53 at paras 30-31 , [2007] 3 SCR 523 ; and R v Brincheski (KD) , 2016 MBCA 73 at para 81 , 330 ManR (2d) 186 .) [ 18 ] The adequacy of the charge and the answer to the jury’s question that is raised by the defence in this case was dealt with by the Supreme Court of Canada in R v Miljevic , 2011 SCC 8 , [2011] 1 SCR 203 .

The issue on appeal in Miljevic was explained by Cromwell J, for the majority, as follows (at para 1): The appellant admitted that he unlawfully caused the death of the victim and was therefore guilty of manslaughter. The jury convicted on the charge of second degree murder.

The only live issue at trial was whether the appellant had the required mental state for murder, that is, whether he intended to cause death or intended to cause bodily harm that he knew was likely to cause death and was reckless as to whether death ensued. [ 19 ] The jury in Miljevic asked the following question ( R v Miljevic (M) , 2010 ABCA 115 , 482 AR 115 at para 42 ): In layman’s terms what is the difference between murder two and manslaughter? Examples? A specific definition of manslaughter? [ 20 ] The trial judge declined to provide that explanation.

Over the objections of defence counsel, he provided a further explanation of the state of mind required for murder and advised the jury that, if it was not satisfied beyond a reasonable doubt that the accused had that state of mind, it must convict of manslaughter.

The jury convicted of second degree murder and the accused appealed, one basis being that the judge erred in failing to instruct the jury on the definition of manslaughter. [ 21 ] In finding that the trial judge in Miljevic did not err by refusing to charge on the mens rea for manslaughter, Cromwell J stated (at para 3): In my view, there is no legal error as contended by the appellant in these instructions. There is no reasonable possibility that the jury could have misunderstood what had to be proved in order for them to return a guilty verdict on the charge of second degree murder.

There is similarly no reasonable possibility that they could have misunderstood that if murder was not proved, they should return a guilty verdict on the offence of manslaughter, as defence counsel had urged them to do. The instructions focussed the jury on the sole issue it had to decide and gave them the correct legal principles necessary for them to do so. [ 22 ] In Miljevic , the accused acknowledged that he was guilty of manslaughter; in the present case, the accused has not done so because he has also raised the issue of self defence.

This defence is only relevant if there has been a finding of guilt on one of the underlying offences. The accused in this case has admitted that he unlawfully killed the deceased and, on the question of whether this constituted murder or manslaughter, he took the position that he committed manslaughter.

Thus, to that point, the issues in the two cases are the same and it is of no moment that the accused in Miljevic offered to plead guilty to manslaughter, while the accused in this matter did not. [ 23 ] The jury in Miljevic specifically asked for an explanation of manslaughter, and the Supreme Court held that it was not an error to refuse to provide that explanation and that the explanation of the mental element for murder was sufficient.

It is hard to see how the same explanation could be an error in this case, when the jury’s question dealt specifically with the mental element for murder with no reference to manslaughter, such that the answer in this case was directly responsive to the jury’s question.

An answer that explained the mental element for manslaughter would not have been responsive to the jury’s question in this case. [ 24 ] I am satisfied that the answer to the proposed appeal in this case is found in the majority decision in Miljevic , with the result that both the original charge and the answer to the question were correct and did not constitute an error on the part of the trial judge. [ 25 ] The decision in Patterson does not assist the accused in this case. In Patterson , the trial judge had instructed the jury that, to be guilty of murder, an accused must foresee a “risk” of death.

The Ontario Court of Appeal found this to be an error, stating that the correct instruction was that the accused must foresee a “likelihood” of death, not just a “risk” of death. This error led the Court to grant the appeal and order a new trial. In this case, the trial judge used the correct wording in his instruction on the state of mind for murder, consistent with the decision in Patterson .

Did the Trial Judge Err by Failing to Tell the Jury That It Could Ask Further Questions? [ 26 ] The accused also argued at the hearing that the trial judge erred in his answer to the jury by leaving it with the impression that it could not ask any further questions about the law. The jury asked two questions, the second being that it be provided with a copy of the Criminal Code . The trial judge’s answer to that question was as follows: No, you cannot have a copy of the Criminal Code . You have two hundred and some paragraphs telling you what the evidence in this trial is and what the law is to apply.

You will recall I told you that I would tell you what the law is and advise you how to apply it – and that is it. I also told you: Do not research the law. I meant it. All right? I have been at this game for 30 years – this is what I do. I do not come to a carpenter and tell him how to build a house. You have the law. You have the law that you need and you have been told how to apply it – that is what you have. You are not getting a copy of the Criminal Code because we do not let juries go paging through the Criminal Code to see what they can find is in there. You have the law you require.

If you require other law counsel would have told me they feel you require that law or I would have told it to you because I think you require it. You do not. You have all the law in the Criminal Code that applies to this. It is not your job to go elsewhere to find out what other law applies. You have the law, so no, you do not get a copy of the Criminal Code . The law that you need is right here. [ 27 ] The trial judge’s initial instructions clearly and correctly explained the jury’s right to ask questions and the process to be followed.

The jury obviously understood those instructions, as it followed them in asking its initial two questions. [ 28 ] I am satisfied that the trial judge’s answer to the questions did not override his initial instructions, that is, his answer did not leave the jury with the impression that it could not ask any further questions regarding the law.

His comments here were clearly limited to the request for a copy of the Criminal Code and addressed the concern that the jurors may search out alternative sources of law. [ 29 ] While it might have been preferable if the trial judge had advised the jury that it could ask further questions, that is not a requirement for every answer. [ 30 ] The defence is relying on the majority decision in Layton , wherein Rothstein J, for the majority, stated that “it was imperative [for the trial judge] to leave the door open for the jury to come back with further, more precise, questions should it remain unclear on the concept of reasonable doubt” (at para 29). [ 31 ] In Layton , the jury had asked for a clarification on reasonable doubt.

The trial judge consulted with counsel, but she ultimately decided to answer the question by only re-reading her initial instruction with no further explanation, notwithstanding that the original charge had been provided to the jury in writing.

She then said, “there is really very little that I can add to clarify it because, as I said, it is, it is not, strictly speaking, a definition that I can give you that will help you” (quoted by Rothstein J at para 17) (emphasis omitted). [ 32 ] Rothstein J found that it was the combination of failing to provide any further explanation of her reasonable doubt instruction, together with the statement implying that there was no reason for the jury to return with another question or to try to clarify more precisely what was causing confusion, that led to the error. [ 33 ] In this case, the trial judge did not just re-read his initial charge; he provided an expanded explanation of the state of mind for murder as was requested by the jury.

He also did not tell the jury that it could not ask anything to clarify his explanation or that he could not provide any further assistance if needed. Thus, there is no reason to believe that the jury would have concluded that it could not ask further questions on this issue if required. Rothstein J’s comments in Layton must be read in the context of the facts of that case. [ 34 ] To find that the trial judge erred by not repeating his earlier instruction regarding jury questions would be unnecessarily formulaic and not in keeping with the standard set out in Ponce .

The trial judge’s answer responded to the jury’s questions and did not foreclose further questions on that, or any other, issue except a request for the Criminal Code . Thus, there is no air of reality to this as a ground of appeal. VI. CONCLUSION [ 35 ] For these reasons, I am satisfied that the accused has raised no arguable ground of appeal. Thus, his motion to extend the time to appeal is dismissed. JA