R v McLeod, 2019 MBCA 124

Citation: R v McLeod, 2019 MBCA 124 Date: 20191218 Docket: AR18-30-09065 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen BETWEEN : HER MAJESTY THE QUEEN ) S. A. Inness and ) R. M. Wood ) for the Appellant Respondent ) ) R. D.

Lagimodière - and - ) for the Respondent ) DENNIS MITCHELL Mcleod ) Appeal heard: ) November 1, 2019 ) (Accused) Appellant ) Judgment delivered: ) December 18, 2019 Simonsen JA [ 1 ] This appeal raises the issue of whether a trial judge erred in answering two questions asked by a jury during the course of its deliberations. After receiving the trial judge’s answer to the questions, the jury convicted the accused of two counts of second degree murder. The accused appeals both convictions on the basis that the trial judge’s answer was not responsive, overcomplicated and erroneous in part.

Central to his position is that there is a reasonable possibility that the jury was left with the impression that it was sufficient for the Crown to prove the requisite intention for murder on an objective, rather than a subjective basis. [ 2 ] The circumstances of the offences are that on June 19, 2015, the accused had been drinking heavily when, together with two others, he attended a house party in Cross Lake, Manitoba, to confront one of the victims, Michael Apetagon. The accused had in his possession a double-edged knife.

When an argument that had started inside the residence moved outside, the accused stabbed Mr. Apetagon twice in the back. Robbie Settee intervened, and the accused stabbed him twice in the torso. Both Mr. Apetagon and Mr. Settee died as a result of their injuries. [ 3 ] At trial, following the conclusion of the Crown’s case, the accused offered a guilty plea to the charge of manslaughter in relation to both victims, which was not accepted by the Crown.

As a consequence of the accused’s acknowledgement that he stabbed and killed the two victims, the only question for the jury was whether the Crown had proven beyond a reasonable doubt that the accused had the requisite intention for murder. The primary issue was whether the accused’s intoxication raised a reasonable doubt as to whether intention had been proven. The Criminal Code –Intent for Murder [ 4 ]

Section 229 (

a) of the Criminal Code prescribes the intention that must be proven beyond a reasonable doubt in order to convict of murder: Murder 229 Culpable homicide is murder

(

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not. The Initial Charge and the Answer [ 5 ] In the trial judge’s initial charge, a copy of which was provided to the jury, he explained the two ways in which the Crown could prove that the accused had the intention for murder.

He also told the jurors about the possibility of their relying on the common sense inference that a sane and sober person intends the natural and probable consequences of his actions (the common sense inference), and indicated that they may choose not to rely on this inference if they had a reasonable doubt that intoxication affected the accused’s ability to foresee the natural and probable consequences of his actions. The relevant parts of the initial charge stated (starting at p 22): [T]o prove that [the accused] committed murder on each count, the Crown counsel must satisfy you either (

i) that [the accused] meant to kill Mr. Apetagon or Mr. Settee respectively, or (ii) that [the accused] meant to cause Mr. Apetagon or Mr. Settee, respectively, bodily harm that [the accused] knew was so serious and dangerous that it would likely kill Mr. Apetagon or Mr. Settee and he proceeded despite his knowledge that Mr. Apetagon or Mr. Settee would likely die as a result of that bodily harm. If [the accused] did not mean to do either, then he has committed manslaughter. The Crown does not have to prove both states of mind. One is enough. . . .

To help you determine whether the Crown has proven that [the accused] had one of those intents required to make the unlawful killing murder, you may conclude, as a matter of common sense, that a person usually knows what the predictable consequences of his conduct or actions are, and means to bring them about. This is simply one way for you to determine a person’s actual state of mind, what he actually meant to do. You may, but are not required to reach that conclusion or draw that inference about [the accused].

Indeed, you must not do so if, on the evidence as a whole, including but not only evidence of intoxication, you have a reasonable doubt whether [the accused] had one of the intents required to make the unlawful killing murder. Consider, in particular, whether this evidence causes you to have a reasonable doubt about whether [the accused]: meant to kill Mr. Apetagon or Mr. Settee, or; knew that Mr. Apetagon or Mr. Settee would likely die from any bodily harm that he caused and was reckless whether they died as a result. . . .

Intoxication is a defence to the offense of murder if [the accused] was so intoxicated at the time of the stabbing that he did not have the necessary intent, or state of mind, to commit the offense of murder. . . . To decide if the Crown has proven [the accused] had the state of mind required for murder look at all the evidence.

You should take into account evidence of his consumption of alcohol or drugs, what he drank, how much he drank and over what period of time, and what others observed of his state of intoxication near the time of the offence along with other facts that may throw light on his intent, or state of mind, at the time he stabbed Mr. Apetagon and then Mr. Settee. It is a matter of [the accused’s] state of sobriety or intoxication, the degree of intoxication and the effect on him, as shown by the evidence.

All of this may help you decide what [the accused] meant to do or didn’t mean to do, or knew or foresaw what would probably happen as a consequence of what he did, at the time he did it. [ 6 ] The jury began its deliberations at 2:33 p.m., and by 6:23 p.m. that same day, court reconvened to address the following questions the jury had submitted: 1. “If [the accused] wanted to do serious harm with the dagger but . . . was not thinking at the time that it would likely kill, even though under any other circumstance, it would be obvious to him, does this meet the standard of [second] degree murder?” 2. “Page 22 [referring to page 22 of the initial charge] ‘meant to cause . . . knew was likely to kill . . .’ [.] If we agree he ‘ should have known’ - is that acceptable for [second] degree?” [ 7 ] The trial judge discussed the questions with counsel.

The accused’s counsel suggested that what was required was a simple answer “no” to both. Crown counsel interpreted the first question as being about intoxication, and the second question as being

about whether “it’s a knew or ought to have known type of test.” [ 8 ] The trial judge expressed uncertainty about the exact intent of the questions but indicated that, because both inquiries seemed to relate to the second way in which the Crown could prove that the accused had the necessary state of mind for murder, he had prepared, for the consideration of counsel, a response that addressed

section 229 (a)(ii). [ 9 ] Crown counsel agreed to the proposed response, and expressed concern about providing simple “no” answers without knowing exactly what the jury was asking.

The accused’s counsel indicated that the proposed answer was overcomplicated and again suggested “no” answers as the jury seemed to be confused between a subjective and objective standard. [ 10 ] The trial judge thought that responding in the manner suggested by the accused’s counsel could result in confusion, as he believed it was not clear whether the jury’s reference to “should have known” related to objective or subjective foreseeability.

In the end, he decided to provide a lengthy answer which to some extent repeated, and also elaborated upon with different language, the initial charge regarding the second way in which the Crown could prove intention: So I’m going to give you an answer which perhaps is not as short as you may have been looking for but I think it’s an answer which is a full answer and hopefully one that makes sense to you. If you have further questions as a result of it, you’re most welcome to ask me further questions after you’ve had an opportunity to think about it.

The issue in part for me in terms of trying to respond appropriately with a short simple answer is that words like in question number 1, not thinking or question number 2, should have. Sometimes in part slightly different meaning, slightly different nuances. So I think it’s best if I try to do it for you this way and like I say if you have further questions as a result you can let me know and we’ll take it from there. Okay. So as you know from page 22 I said the crime of murder requires proof of a particular state of mind.

For unlawful killing to be murder the Crown must prove that [the accused] either meant to kill the person, or in other words intended to kill the person, or meant to cause the person bodily harm, in other words intended to cause the person bodily harm, that [the accused] knew was likely to kill the person and he was reckless whether death ensued or not. If [the accused] did not mean to do either, then he has committed manslaughter. I remind you that the Crown does not have to prove both states of mind, one is enough.

And all of you do not have to agree in the same state of mind as long as everyone is sure that the required states of mind have been proven beyond a reasonable doubt. So I think if I’m interpreting your question correctly, it has more to do with the second way a person may be found guilty of murder than the first way, in other words, meant to cause the person bodily harm that [the accused] knew was likely to kill the person and was reckless whether death ensued or not. As I read both questions it seems to be keying in on that particular part of the test.

So I’m going to reframe it for you a little bit in this way. This element, that second one, meant to cause the person bodily harm that [the accused] knew was likely to kill the person and was reckless whether death ensued really has three separate parts so I’ll deal with those parts. The first

part is that [the accused] intended to cause bodily harm to Mr. Apetagon or Mr. Settee depending of course on which count you’re dealing with. When you decide whether or not [the accused] intended to cause bodily harm to either you may, but are not required, to rely on the common sense inference that a sane and sober person intends the natural consequences of their conduct. If bodily harm was a natural consequence of [the accused’s] conduct, you are entitled to find the bodily harm was intended. However, you are not required to come to this conclusion.

In the end you should look at all of the surrounding circumstances in order to decide whether [the accused] actually intended to cause the bodily harm. One of the effects of intoxication is that it may interfere with a person’s ability to foresee or intend the natural consequences of their actions.

If you believe or have a reasonable doubt that intoxication affected [the accused’s] ability to foresee the natural and probable consequences of his actions then you must not rely upon the common sense inference that a sane and sober person intends the natural and probable consequences of his actions when you decide whether he had the intent to kill. The second

part is that [the accused] knew the bodily harm would likely cause Mr. Apetagon’s or Mr. Settee’s death, as the case may be. You must ask yourself whether [the accused] intended to cause bodily harm of such a grave and serious nature that he knew it was likely to result in either’s death. As you probably know knowledge is like intention, they are both states of mind. Therefore, you should decide what [the accused] knew the very same way you decide what he intended to do by looking at all of the surrounding circumstances including the effect of intoxication may have had on his ability to foresee or know that death was a likely consequence of his actions.

The third part of the test is that [the accused] was reckless about whether or not his conduct caused Mr. Apetagon’s or Mr. Settee’sdeath. If [the accused] knew at the time he committed the unlawful act that it would likely cause either’s death but [the accused]nonetheless persisted in committing that act despite his or her knowledge of the risk, then [the accused] has been reckless as to whetheror not death ensues. So that’s the test broken down into three separate parts. It talks about essentially what [the accused’s] intention is.

What his intentionwas in relation to whether he intended to cause the bodily harm and whether he knew that that bodily harm would cause death and thenwhether he was reckless. I slightly short-formed it. So I’m hoping that answers the question for you. You obviously have to take a look at all of the factual circumstances. I remind you ofboth Crown and defence’s submissions today. And I remind you as well in respect of law of intoxication that I gave you earlier on todayabout the degree of intoxication and things of that nature.

You haven’t asked specifically about intoxication so I’m not going to repeat that but I draw your attention again to the bottom of page 23and all of 24 which talks about the intoxication and then it goes over to the top of page 25 in terms of the law of intoxication and howthat may affect your view of someone’s intention to do a particular act and the consequences, the foreseeable consequences to him of thatparticular act. So I’m hoping with that little long-winded explanation that that helped. If it didn’t, please let me know and I’ll try to go at it in a slightlydifferent way again.

In the notes that I have here I’ve just typed up a few moments ago myself, if it’s a value to you I can send it into thejury room if you’d like, I just have to clean it up on a few little typos, so I’ll make that available to you. Okay? Thank you very much. [emphasis added] [11] The jury resumed its deliberations at 6:44 p.m., and returned its verdicts at 7:23 p.m.

Standard of Review [12] The applicable standard of review on the adequacy of an answer to a jury’s question requires an appellate court to applya functional test in determining whether there is a reasonable possibility that the jury was misled or misapprehended the law. In R vBrydon, (SCC), [1995] 4 SCR 253, the Court stated (at para 19): In assessing whether a trial judge’s recharge (or in some cases the main charge) on the burden of proof amounts to reversible error, acourt must consider: (

i) whether the impugned instruction is inconsistent with what was said in the initial charge or is simply erroneous standing byitself; and, (ii) whether, after placing the inconsistency or error in the context of the charge as a whole, there is a reasonable possibility that thejury might have been misled by those instructions into either applying a standard of proof less than proof beyond a reasonable doubt orimproperly applying the burden of proof or reasonable doubt standard in arriving at their verdict.

The Positions of the Parties [13] The accused contends that the trial judge’s answer was not responsive to what was a clear inquiry as to whether it wassufficient for the Crown to prove intention on an objective basis. By failing to respond “no” to both questions, his answer left areasonable possibility that the jury was misled into believing that the requisite intention for murder could be proven on an objectivebasis. As well, the accused says that the trial judge erred and confused the jury when he: • referred to “intent to kill” in describing how intention could be proven under

section 229(a)(ii), when he should havereferred to “intent to cause bodily harm”; and • failed to adequately explain the common sense inference in the context of “the second part” of

section 229(a)(ii), namelywhether the accused knew that the injury inflicted would likely cause death. To expect the jury to refer back to the previous explanationof the common sense inference, with its erroneous reference to “intent to kill”, did not provide the jury with the tools it needed in this

most important part of the instruction. [14] The Crown submits that the answer was correct and responsive and that there is no basis for this Court to intervene. Analysis and Decision [15] Questions from a jury are important. The Supreme Court of Canada has directed trial judges to be “correct andcomprehensive” and “accurate and complete” when responding to these questions (R v S (WD), (SCC), [1994] 3 SCR521 at 537). A trial judge must provide a “responsive answer” (R v Layton, 2009 SCC 36 at para 33). That said, a question need not beanswered literally.

Rather, “a trial judge should provide the necessary assistance to the jury for it to resolve its confusion; nothing moreand nothing less” (R v Willis (TAW), 2016 MBCA 113 at para 233). [16] In S (WD), the Court made clear that, “Even if the issue was covered in the original charge it must, in its essence, berepeated even if this seems to be repetitious” (at p 537).

However, a verbatim repetition of the original charge may not be sufficient tosatisfy a jury’s question, particularly when the jury has been given a copy of the original instruction and is not told that it can seekfurther clarification (see Layton at paras 23-24, 30).

Trial judges are to encourage the jury to return with further questions if therecontinues to be a concern once the question is answered (see Layton at paras 30-32). [17] In order to determine whether there is a reasonable possibility that the jury was misled or misapprehended the law inthis case, I must consider the initial charge and the answer as a whole. [18] First, the accused acknowledges that the initial charge was correct. [19] Turning to the answer, and whether it was responsive, the trial judge comprehensively explained what was required inorder for the Crown to prove intention for murder under

section 229(a)(ii), which the accused agrees was the part of

section 229addressed in the jury’s questions. Although the jury had a copy of the initial charge and the trial judge repeated relevant portions of it inhis answer, he also expanded on it significantly. His answer did not state or suggest that the requisite intent for murder could be provenon an objective basis. The answer as a whole indicated that subjective intention was required.

The trial judge instructed the jury that ithad to be satisfied that the accused “actually intended to cause the bodily harm” and that he “knew the bodily harm would likely cause[the deaths]”, and that he “was reckless about whether or not his conduct caused [the deaths].” The jury was also specifically told that,“If [the accused] did not mean to do either [of the ways in which intention could be proven], then he has committed manslaughter.” Thefocus at all times remained on the accused. [20] In terms of whether the answer was overcomplicated, it addressed the three components of

section 229(a)(ii), andfocussed squarely on intoxication. Had the trial judge answered the questions with a simple “no”, the critical issue of intoxication maynot have remained front and centre. [21] As for the trial judge’s comment about “intent to kill” made at the conclusion of an explanation about the commonsense inference, the accused has been unable to articulate how that may have misled or confused the jury. The initial charge and theanswer as a whole make clear how intent could be established under

section 229(a)(ii). [22] In addition, I am not persuaded by the argument that the answer lacked clarity or created confusion when dealing withthe common sense inference in the context of whether the Crown had proven that the accused knew that the bodily harm inflicted wouldlikely cause death.

The trial judge told the jury that it should “decide what [the accused] knew the very same way you decide what heintended to do by looking at all of the surrounding circumstances including the effect of intoxication may have had on his ability toforesee or know that death was a likely consequence of his actions.” He had already explained the common sense inference in both theinitial charge and the answer. He was not required to do so again in the answer, in order to adequately instruct the jury.

As well, at theend of the answer, he referred the jury to the part of the initial charge that related to the law of intoxication and “how that may affectyour view of someone’s intention to do a particular act and the consequences, the foreseeable consequences to him of that particular act.” [23] Furthermore, it was made clear to the jurors that they could ask for more assistance. The trial judge indicated twice atthe outset of his answer that if they had further questions as a result of the answer, they could let him know.

At the conclusion of hisanswer, he advised that if it had not helped, the jurors should let him know and he would “go at it in a slightly different way again” (seeWillis at para 237). However, the jury asked no further questions nor did it seek clarification before returning its verdicts. [24] Therefore, applying a functional test and taking the initial charge and the answer as a whole, I am not persuaded thatthere is a reasonable possibility that the jury was misled or misapprehended the law. [25] In the result, I would dismiss the appeal. JA I agree: JA

I agree: JA