R v Beardy, 2018 MBCA 90

Citation: R v Beardy , 2018 MBCA 90 Date: 20180925 Docket: AR17-30-08868 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella BETWEEN : ) S. A. Inness and her majesty the queen ) A. J. Seib ) for the Appellant ) Respondent ) A. Y.

Kotler ) for the Respondent - and - ) ) Appeal heard and leonard morris beardy ) Decision pronounced: ) September 14 , 2018 ) (Accused) Appellant ) Written reasons: ) September 25 , 2018 MAINELLA JA (for the Court): Introduction [ 1 ] After a trial by judge and jury, the accused was convicted of second degree murder in the stabbing death of Jerrold Flett (Flett). The two grounds of appeal are that the judge misdirected the jury on the necessary intent for the offence and that he further erred by refusing to leave the defence of provocation with the jury.

Having considered the submissions of counsel, we dismissed the appeal with reasons to follow. These are our reasons. Factual Background [ 2 ] Early in the morning on the date in question, the accused and his brother got into an argument over the internet with Flett. The accused called Flett a “skinner” and a “rat”. The accused’s brother accused Flett of trying to get his girlfriend drunk to take advantage of her. Flett replied that the two brothers were taking turns having sex with the woman. These insults were publicly accessible to other users of the social media platform.

Because of the exchange, the three men agreed to fight at a nearby schoolyard in their community of Garden Hill, Manitoba. The accused and his brother armed themselves and told the accused’s brother’s girlfriend that they were going to “fuck up” Flett. A short time later, Flett came to the residence of the accused and his brother instead of going to the schoolyard. An altercation broke out in the doorway after Flett banged on the door. While the accused argues that an inference could be drawn that Flett may have tried to force his way into the residence, what actually occurred is unclear.

The only witness to the event who testified was the accused’s brother’s girlfriend; she did not see what happened and only heard a “commotion” from the upstairs of the residence. [ 3 ] Soon after the doorway altercation, Flett ran away. Eyewitnesses saw him being chased and attacked at two different outdoor locations by the accused and his brother. During these assaults, the accused’s brother was observed using a bat. The accused was seen making stabbing motions at Flett. One witness said that he saw the accused holding a steak knife.

The accused later told his brother’s girlfriend that he stabbed Flett three times in the back of the shoulder. According to the pathologist, the cause of death was a stab wound from a “powerful blow” to the upper back which perforated Flett’s right lung. Instruction on the Requisite Intent for Second Degree Murder [ 4 ] The accused concedes that the judge properly instructed the jury in his charge, and also in answering a question from the jury, on the requisite intent required for second degree murder as set out in sections 229 (a)(i)-(ii) of the Criminal Code (the Code ).

The alleged error was the possible confusion resulting from the judge using an abbreviated description of the form of intention described in

section 229(a)(ii) of the Code later in his charge, which he repeated again in answering the jury’s question, to explain to the jury that they did not have to be unanimous in how they reached a guilty verdict so long as each juror was satisfied beyond a reasonable doubt that

the accused possessed either form of the mental elements described in sections 229(a)(

i) or (ii).

It is noteworthy that counsel for theaccused at trial did not object to the wording the judge used in explaining the concept of jury unanimity on the question of intent (see R vDove, 2004 BCCA 338 at para 22; and R v Pearce (ML), 2014 MBCA 70 at para 143). [5] Taking a functional review of the charge when considered in its entirety, and in the context of the trial (the evidence,the issues in dispute and the submissions of counsel), we are satisfied that the overall effect of the charge was that the jury was properlyand fairly instructed as to the requisite intent required for second degree murder (see R v Jacquard, (SCC), [1997] 1SCR 314 at paras 32, 62; and R v Araya, 2015 SCC 11 at para 39). [6] One final comment on this ground of appeal.

We would discourage trial judges from using abbreviated descriptionsof the mental states set out in sections 229(a)(i)-(ii) after both states of mind have been properly explained to the jury. It is unnecessaryto use such abbreviations to explain the concept of jury unanimity on the question of intent. Provocation [7]

Section 232 of the Code prescribes a two-part test for the partial defence of provocation containing objective andsubjective components. If both requirements are satisfied, murder is reduced to manslaughter. The definition of provocation applicableto this case was the wording of

section 232, before its amendment by

section 7 of the Zero Tolerance for Barbaric Cultural PracticesAct, SC 2015, c 29. [8] The objective element of provocation applicable here required a wrongful act or insult and that the wrongful act orinsult was sufficient to deprive an ordinary person of the power of self-control.

The subjective element required that the accused musthave acted in response to the provocation and on the sudden before his passion had time to cool (see R v Tran, 2010 SCC 58 at paras 25,36; and R v Cairney, 2013 SCC 55 at paras 32-34). [9] The judge concluded there was no air of reality on either the objective or subjective components of provocation. Onthe objective element, he determined that the “contextual circumstances” were such that an ordinary person would not have beendeprived of the power of self-control because of the alleged insult or wrongful act of Flett.

As to the subjective element, in his view, thiswas not a situation of sudden provocation because the accused was already “worked up” to fight Flett before he came to the residence. [10] Whether or not there is an air of reality to a defence is a question of law for the purposes of appellate review (see R vCinous, 2002 SCC 29 at para 55). An air of reality must exist in relation to both the objective and subjective requirements of provocationbefore it is put to the jury (see R v Thibert, (SCC), [1996] 1 SCR 37 at para 6; R v Mustard (G), 2016 MBCA 40 atpara 19; and Tran at para 41).

Where a trial judge considers the correct legal principles regarding provocation, his or her limited weighing and assessment of the totality of the evidence will be afforded somedeference on appeal given the advantage he or she enjoys in seeing and hearing the evidence first hand (see Thibert at para 33; and R vDupe, 2016 ONCA 653 at para 79). [11] We disagree with the submission that this was a close case such that any doubt as to whether the air of reality thresholdhad been satisfied required the judge to err in favour of instructing the jury on provocation (see Cairney at para 22).

It is sufficient todispose of this appeal by noting that, in our view, there was an absence of the necessary evidentiary foundation for the subjectivecomponent of provocation (see Mustard at para 17; Tran at para 38; R v Le (TD), 2011 MBCA 83 at para 215; R v Bushie, 2012 MBCA67 at para 5; and R v Cansanay (JH), 2012 MBCA 103 at para 14).

We come to that conclusion for two reasons. [12] First, there was no evidence that the alleged insult or wrongful act of Flett actually caused the accused to lose his self-control (see Tran at paras 37, 46; R v Hill, (SCC), [1986] 1 SCR 313 at 336; and R v Florence, 2014 BCCA 288 at para73). The accused did not testify as to his state of mind. The eyewitness evidence sheds no insight as to his degree of anger orexcitement.

No evidence was led as to his temperament or historical relationship with Flett that would otherwise explain his state ofmind at the relevant time (see Hill at pp 332-33; and Thibert at para 20). Further, the evidence as to his degree of intoxication at the timewas cursory and unhelpful as to whether he actually lost self-control. [13] Second, there was insufficient evidence that the accused acted on the sudden before there was time for his passion tocool. The requirement of suddenness applies to both the wrongful act or insult and an accused’s reaction to it (see Thibert at para 20; and Tran at para 38).

Thiswas a case of self-induced provocation as the accused invited the alleged provocative act of Flett. Accordingly, the comments of McLachlin CJC in Cairney are important to bear in mind (at para 43): The subjective component is not met where the accused in fact subjectively expected the victim’s response and, as a result, did not act onthe sudden.

Depending on the circumstances, where the accused precipitated the provocation, there may be no basis in the evidence forany reasonable doubt as to whether the accused acted on the sudden. [14] While the exact location of the violent confrontation between the accused, his brother and Flett unexpectedly changed,the fact that such a confrontation occurred at roughly the time it did was entirely predictable. The accused and his brother had bothinsulted Flett. Flett knew where both men lived, having been to their residence earlier that evening to purchase alcohol.

The accusedand his brother had prepared for, discussed and intended to use violence against Flett before he came to the residence and banged on thedoor. In our view, such circumstances cannot reasonably support this being a situation of sudden provocation (see R v Lei, (1997) (MB CA), 120 CCC (3d) 441 at 454-55 (Man CA); and Cairney at paras 43, 56). [15] Because of our conclusion regarding the absence of the necessary evidentiary foundation to the subjective component ofprovocation, it is unnecessary to address the accused’s argument on the objective component of provocation.

Disposition [ 16 ] In the result, the appeal was dismissed. JA JA JA