R v Ross, 2018 MBCA 7

Citation: R v Ross, 2018 MBCA 7 Date: 20180206 Docket: AR16-30-08682 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : HER MAJESTY THE QUEEN ) S. W. Brennan and ) J. E. Smith ) for the Appellant Respondent ) ) J. M.

Mann - and - ) for the Respondent ) ) Appeal heard: SWANSON ANNANIAS ROSS ) December 11, 2017 ) ) Judgment delivered: (Accused) Appellant ) February 6, 2018 PFUETZNER JA [ 1 ] The accused was convicted of second degree murder in connection with the death of Leroy Ross (the victim) after a trial before a judge and jury. He was sentenced to life in prison without parole eligibility for 15 years. Three co-accused were convicted of manslaughter in connection with the death of the victim. The accused appeals his conviction. [ 2 ] The Crown led evidence at trial of the events preceding the victim’s death.

The victim, the accused and the three co- accused were part of a group of individuals that was socializing and drinking intoxicants at a house in Winnipeg. The group included Dennis Kirkness (Kirkness) and his sister, Amy Kirkness. Kirkness is the uncle to both the accused and the victim. [ 3 ] A dispute apparently occurred between the victim and the three co-accused, resulting in the victim being beaten unconscious by all three co-accused. The three co-accused then dragged the victim out the back door of the house where they left him lying unconscious in the backyard.

Soon thereafter, the accused went up to the victim and kicked him at least three times in the head. When Kirkness tried to intervene, the accused told him, effectively, to go back inside or he would do the same to him. The victim was found in the backyard several hours later by police and taken to hospital where he died from head trauma. The Issues [ 4 ] The accused raises four grounds of appeal, all of which relate to the evidence of Kirkness, who provided the only evidence directly implicating the accused.

First, the accused says that the verdict is unreasonable and cannot be supported by the evidence, as Kirkness’s testimony was completely unreliable. Second, he argues that the trial judge erred in his charge to the jury by failing to give sufficient instruction on the dangers of convicting the accused based solely on the unconfirmed evidence of Kirkness. Third, the accused submits that the trial judge erred in his charge to the jury by failing to relate the evidence to the issue of the specific intent required for murder.

Finally, the accused argues that there was insufficient evidence of intent to commit murder and, on this basis, the verdict of second degree murder (as opposed to the lesser offence of manslaughter) was unreasonable. Analysis

Unreasonable Verdict [5] When reviewing the reasonableness of a jury’s verdict based on its assessment of a witness’s credibility, an appellatecourt must treat the verdict with great deference.

The test is whether “the jury’s verdict is supportable on any reasonable view of theevidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury” (R v WH, 2013SCC 22 at para 2). [6] The accused argues that the verdict was unreasonable because it was based on an unreasonable finding of credibilityin respect of Kirkness, the only witness who testified that he saw the accused assault the victim. The accused argues that no jury actingjudicially could have rendered this verdict because Kirkness’s evidence was so unreliable.

The accused points to the following majorareas of concern: Kirkness’s state of sobriety at the time of the incident; his inconsistent and vague accounts of the location and positionof the victim’s body; his inconsistent evidence regarding speaking with Amy Kirkness; and what the accused characterises as Kirkness’sadmission of perjury with respect to his evidence at the preliminary hearing. [7] The Crown concedes that Kirkness was a difficult and reluctant witness.

He was testifying against his nephew (theaccused) and his niece (one of the co-accused) in front of several other family members in connection with the death of another nephew(the victim). English was not his first language and he required assistance from a Cree interpreter at the trial. However, despite theproblems with Kirkness’s evidence, the Crown submits that the jury was not precluded from accepting the core of his evidence. [8] Kirkness was questioned several times about what he saw the accused do and what he heard the accused say.

Histestimony included the following: • When asked in direct examination what the accused did to the victim, Kirkness said: “He kicked him.

I think it was his head.” • When asked how many times he saw the accused kick the victim, Kirkness said: “About three.” • Kirkness testified that “I told [the accused] to stop” but the accused “told me to go inside” and said “I’ll do the same thing to you.” • Kirkness testified that, while the accused was kicking the victim in the head, the victim was doing “[n]othing”, “he wasn’tmoving” and he was “[l]aying down.” Kirkness said: “I just saw [the victim] laying there.” • Kirkness testified that he observed the accused and the victim for “about 20 seconds, 10, 20 seconds.” • Kirkness was asked several questions in direct examination about the nature of the kicks delivered by the accused.

He testified: “All I know is he was stomping him, but he can’t -- I can’t really describe, but I know he was stomping him.” • Kirkness was asked: “Were you worried for [the victim] when you saw him being stomped by [the accused]?” Kirknessresponded: “Yeah.” • In cross-examination by counsel for the accused, Kirkness confirmed that “[the accused] was kicking [the victim] in the head.” • Kirkness agreed with counsel for the accused that the kicks were like “a forward pushing of the foot” but “not all the way back.” • Kirkness, in cross-examination, confirmed the accused said to him, in Cree: “[G]et back inside or I’ll do the same thing to you.” • When asked in cross-examination if the accused was kicking the victim hard, Kirkness testified: “He was just kicking.

I don’tknow how hard he was kicking.” • When asked if he was scared for the victim because of how hard the accused was kicking the victim, Kirkness said: “I didn’t likewhat he did to him.” • Under further cross-examination, Kirkness agreed with the suggestion that “[the accused] [was] kicking [the victim] while he wason the ground”, that he saw “[the accused] kick [the victim] at least three times” and that he was “concerned enough to tell [the accused]to stop it.” [9] There is no question that, overall, Kirkness’s evidence contained several contradictions and inconsistencies.

However, despite rigorous cross-examination, his core evidence regarding his observations of the accused assaulting the victim wasconsistent. It was open to the jury to accept or reject all or any part of Kirkness’s evidence. By convicting the accused, it is clear thatthe jury accepted Kirkness’s evidence that he saw the accused deliver at least three kicks to the head of an already severely beatenvictim. In my view, none of the concerns raised by the accused relating to the honesty and reliability of Kirkness’s testimony, whetherconsidered separately or as a whole, precluded the jury from accepting his evidence.

I would dismiss this ground of appeal. Failure to Give a Vetrovec Warning [10] A Vetrovec warning is intended to alert the jury to the danger of relying on the evidence of certain witnesses (Vetrovec vThe Queen, (SCC), [1982] 1 SCR 811).

The warning should not be given routinely, but is reserved for witnesses whosetestimony requires particular scrutiny because they are “‘unsavoury’, ‘untrustworthy’, ‘unreliable’, or ‘tainted’” (R v Bushie, 2012MBCA 67 at para 3). [11] The underlying rationale is to warn a jury that unsavoury witnesses, such as jailhouse informants, “are prone to favourpersonal advantage over public duty” and “can be convincing liars” who can “effectively conceal their true motives for testifying” (R vKhela, 2009 SCC 4 at para 4).

Depending on the circumstances of a particular case, something less than a strict Vetrovec warning maybe sufficient, as was noted in R v Fatunmbi, 2014 MBCA 53 (at para 41):

In many cases, without a strict Vetrovec warning, a jury charge which highlights for the triers a witness’s motivation to lie or otherapparent flaw in the prosecution witness’s credibility will sufficiently apprise jurors of the care with which they should assess thewitness’s credibility. [12] A trial judge retains the discretion as to whether to give a Vetrovec warning, or some lesser warning, as well as todetermine the content of the warning.

Accordingly, these discretionary decisions are given deference on appeal and will not be disturbedunless a trial judge has misdirected himself or herself or the decision is so clearly wrong as to amount to an injustice (see R vRichard (DR) et al, 2013 MBCA 105 at para 85; Fatunmbi at para 15; and R v Ackman, 2017 MBCA 78 at para 78). [13] The accused concedes that Kirkness does not meet the “traditional” definition of an unsavoury witness.

However, theaccused argues that the numerous inconsistencies, contradictions and what the accused characterises as an admission of perjury in theevidence of Kirkness should have been the subject of a strong Vetrovec-type warning to the jury by the trial judge. [14] The Crown’s position is that the trial judge’s charge was sufficient, as he specifically told the jury that it shouldconsider all of the issues raised by the accused regarding Kirkness’s evidence and that the jury should carefully examine his evidence. [15] A review of the jury charge shows that the trial judge did alert the jury to many of the possible frailties in Kirkness’stestimony and did advise or warn the jury that: • It could “conclude that there are just too many problems with his evidence, that it would be dangerous for you to rely on anythinghe says.” • “[T]he fact that [Kirkness] has given different versions may be important in deciding whether or how much you believe of or relyupon [his] testimony.” • “Where the previous inconsistent statement of the witness was given under oath to tell the truth you should have additional concernabout accepting conflicting evidence in court unless you are satisfied with the explanation given by the witness.” • “The reliability of [Kirkness’s] evidence is a significant factor in this case.” • “[Counsel for the accused] submits that the evidence of [Kirkness] is incapable of proving anything beyond a reasonable doubt.

He says the evidence was fraught with inconsistencies, and is in direct contradiction with the evidence of Amy Kirkness on a number ofmaterial points.” • “As to the allegations of events in the backyard you must be satisfied that the evidence of [Kirkness] and Amy Kirkness is reliableenough for you to use. It is the only evidence that puts [the accused] in the backyard. And it has been challenged by [counsel for theaccused] as unreliable.

It’s for you to say whether it is or it is not unreliable.” • “In the case of [Kirkness] and Amy Kirkness it was suggested that they are using [the accused] as a scapegoat to protect [a co-accused]. Is there merit in that suggestion, or is it an unfair inference? You should consider any differences in their observations such asthe time of day or people who were present.

You should also consider whether the inconsistencies in what they say now and what theyhave said on earlier occasions have been sufficiently explained away, or are so material that you cannot believe what they say now.” [16] It may well have been preferable for the trial judge to have included a more traditional Vetrovec-type warning in thejury charge due to the critical nature of, and the issues relating to, Kirkness’s evidence. However, the trial judge reviewed Kirkness’sevidence in a balanced manner and his instructions drew the jury’s attention to the need to apply special scrutiny to the evidence ofKirkness.

He highlighted the importance of Kirkness’s evidence and why it may be dangerous for the jury to rely on it. I am satisfiedthat these instructions sufficiently alerted the jury to the potential frailties of his evidence (see Fatunmbi at para 41). [17] I have one final point to make in connection with this ground of appeal. Although the ultimate responsibility for thejury charge rests with the trial judge, counsel have a duty to assist a trial judge to ensure that a jury is properly instructed. Here, the trialjudge was not asked by counsel to provide a Vetrovec or Vetrovec-type warning to the jury.

While failure to object to the charge is notdeterminative, it is a relevant factor for an appellate court to consider in assessing the overall sufficiency of the jury instructions and themateriality of the alleged error. [18] The failure to object to the charge is perhaps even more relevant when obvious tactical considerations come into play,as they do in this case. Here, it was understandable why counsel for the accused would not have wanted the judge to recite the evidenceconfirmatory of Kirkness’s testimony, which he would have been required to do if he had given a Vetrovec warning.

Ultimately, the trialjudge was never asked to provide a stronger warning about Kirkness’s evidence and no objection was made to the fact that he did not doso. [19] In my view, this ground of appeal should be dismissed. Did the Jury Charge Fail to Relate the Evidence to the Issue of Specific Intent? [20] Appellate courts do not review jury charges against a standard of perfection. Rather, the accused is entitled to aproperly instructed jury (see R v Jacquard, (SCC), [1997] 1 SCR 314 at para 2).

In reviewing a jury charge, anappellate court is to use a functional approach and to review the charge as a whole in the context of the entire trial (see R v Daley, 2007SCC 53; R v Ponce; R v Tavares, 2012 MBCA 87; and R v Hay, 2013 SCC 61 at para 47). [21] In instructing a jury, a trial judge must relate the evidence to the issues in the trial. The duty of a trial judge wasdescribed by Lamer CJC in Jacquard (at p 326):

In many cases, a trial judge need only review relevant evidence once and has no duty to review the evidence in a case in relation to everyessential issue. See John v. The Queen, (SCC), [1971] S.C.R. 781, Cluett v. The Queen, (SCC), [1985]2 S.C.R. 216. As long as an appellate court, when looking at the trial judge’s charge to the jury as a whole, concludes that the jury wasleft with a sufficient understanding of the facts as they relate to the relevant issues, the charge is proper.

See Cluett, supra, at p. 231. [emphasis added] [22] The accused concedes that the evidence relevant to his state of mind was discussed at various points in the jury charge. However, the accused argues that the trial judge should have again listed all of this evidence at what the accused refers to as a “criticalpoint” in the jury charge.

Immediately after the trial judge instructed the jury on the legal test for intention to commit murder, the trialjudge said: To determine [the accused’s] state of mind what he meant to do, you should consider all the evidence, you should consider what he did ordid not do, how he did or did not do it, and what he said or did not say.

You should look at [the accused’s] words and conduct before, atthe time, and after the unlawful act that caused [the victim’s] death. [23] Although the accused says that the charge properly explained the law to the jury, the accused submits that the trialjudge failed in his obligation to “alert the jury to the particular parts of the evidence which are significant to particular issues” (R vPrince, 2007 MBCA 15 at para 57). [24] The Crown submits that the charge to the jury sufficiently linked the evidence to the issue of intention when the chargeis looked at as a whole, using the functional approach.

All of the relevant evidence was included at various points in the charge. TheCrown also points out that the jury charge was already lengthy and took approximately four hours to deliver. The Court, in Jacquard,warned trial judges against unnecessarily repeating evidence in charges. [25] The trial judge dealt with the evidence relevant to intention at various places in his charge to the jury.

This includedhim providing the following instructions to the jury: • The trial judge instructed the jury on the potential relevance of evidence of motive or lack of motive in determining intention,stating: “On the other hand, if you find that a person had no reason to do something you might have a doubt about whether she or he didthat thing, or did it intentionally.” • The trial judge summarized the evidence of Amy Kirkness, who said the accused told her “[the victim], ‘was gone’” prior to thepolice arriving at the scene. • The trial judge said: “The Crown also submits that after being dragged outside of the house while incapacitated [the victim] waskicked in the head multiple times by [the accused].

The Crown submits [the accused] meant to cause his death, or meant to cause [thevictim] bodily harm that he knew was likely to cause his death and was reckless whether death would result.

The Crown submits thathis actions amount to second degree murder.” • The trial judge stated: “[Counsel for the accused] also says that should you find that an assault did occur as described by[Kirkness] this assault is incapable of supporting a finding that [the accused] had the requisite intention to commit murder, or that deathwould have been a foreseeable consequence of this assault. [Counsel for the accused] submits further that [the accused] would havebeen incapable of forming the requisite intention to commit murder by reason of his own intoxication. [Counsel for the accused] submitstherefore that you should only conclude that any assault described by [Kirkness] is not capable of supporting the requisite intention for acharge of murder.” • The instruction above was followed nearly immediately by a

summary of Kirkness’s evidence of the accused’s assault on thevictim, including Kirkness’s description of the statement made to him by the accused to the effect that he would “be next”. • While instructing the jury on causation, the trial judge again summarized Kirkness’s evidence that “he saw [the accused] kicking[the victim] in the backyard”. • Immediately after the instruction on causation, the trial judge turned to instruct the jury on the state of mind required for murder,which included the “critical point” of the charge referred to at para 22 above. • The trial judge also instructed the jury on the effect of advanced intoxication on the ability to form the intention to commitmurder.

He then said: “Crown counsel must prove beyond a reasonable doubt that [the accused] intended to kill [the victim] or to cause[the victim] bodily harm that he knew was likely to kill [the victim] and was reckless whether [the victim] died or not. To decidewhether [the accused] had one or the other of these intents you should take into account the evidence about his consumption of alcohol,along with the rest of the evidence that throws light on his state of mind at the time the offence was allegedly committed.” [26] The context of the trial is important in determining the adequacy of the jury charge.

In this case, the evidence relatingto the accused’s actions and words was very straightforward. It consisted primarily of the evidence of Kirkness’s brief observations ofthe accused in the backyard and the evidence of Amy Kirkness, who placed the accused in the backyard and related that he told her laterthat the victim was “gone”.

On the other hand, the charge was very lengthy as the trial judge also had to instruct the jury on the chargesand evidence relating to the three co-accused. [27] In deciding to formulate the jury charge the way he did, the trial judge presumably balanced the need to relate the(relatively simple) evidence to the issue of intention against the need to keep the charge as brief and succinct as possible in the

circumstances. As previously mentioned, it is also relevant that counsel for the accused did not request that the trial judge summarizethe evidence relevant to intention at the “critical point” in the jury charge. [28] Using the functional approach to review the adequacy of the jury charge, I am satisfied that the trial judge sufficientlyrelated the relevant evidence to the issue of intention.

In my view, considered as a whole, the jury charge was sufficient to allow thejurors to understand what evidence they needed to consider in determining whether the Crown had proven beyond a reasonable doubt thatthe accused had the necessary intention for murder. I would dismiss this ground of appeal. Was There Sufficient Evidence of Intention to Commit Murder? [29] The issue raised by this ground of appeal is whether the verdict of second degree murder is unreasonable and cannot besupported by the evidence.

A verdict is unreasonable or not supported by the evidence if a properly instructed jury acting judiciallycould not have reasonably rendered the verdict (see R v Yebes, (SCC), [1987] 2 SCR 168; and Richard at para 73). [30] The accused argues that the evidence as a whole was incapable of supporting a conviction for second degree murder. He says that, even if the evidence of Kirkness was believed, it supported no more than a conviction for manslaughter.

In other words,the accused submits that there was no evidence capable of supporting a finding that, in assaulting the victim, the accused either meant tokill him or meant to cause the victim serious bodily harm that he knew would likely kill him, and he proceeded with the assault despitethat knowledge.

The accused argues that there was no evidence of prior animus between him and the victim and that the nature of thekicks described by Kirkness supports no more than an inference of an intention to commit an assault. [31] The Crown submits that it was not unreasonable for the jury to conclude, based on the evidence, that the accused hadthe requisite intention for murder, either under sections 229(a)(

i) or (ii) of the Criminal Code. [32] I agree with the position of the Crown on this ground of appeal. [33] There was evidence before the jury that the accused kicked the incapacitated victim in the head at least three timeswhile he was defenseless on the ground after already having been seriously assaulted. When Kirkness told him to stop, the accusedadvised him to get back inside or he would do the same to him. In addition, Amy Kirkness testified that the accused came into her room,put his arms around her and said “[the victim]’s gone”.

She said that this conversation happened “[b]efore the cops came” and “[b]eforethe ambulance came.” [34] These actions described by Kirkness, either alone or combined with the words spoken by the accused (the victim is“gone”), are capable of supporting an inference that the accused either intended to kill the victim or to cause him serious bodily harm thathe knew would likely kill the victim. I would not accede to this ground of appeal. Conclusion [35] I would dismiss the appeal. JA I agree: CJM I agree: JA