R v Ponace, 2019 MBCA 99

Citation: R v Ponace, 2019 MBCA 99 Date: 20191007 Docket: AR18-30-08995 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : HER MAJESTY THE QUEEN ) S. B. Simmonds and ) L. C. Robinson ) for the Appellant Respondent ) ) R. D.

Lagimodière - and - ) for the Respondent ) CLARISSA DAWN PONACE ) Appeal heard: ) May 29, 2019 ) (Accused) Appellant ) Judgment delivered: ) October 7, 2019 LEMAISTRE JA Introduction [ 1 ] The accused appeals her conviction by a judge and jury for second degree murder and arson. [ 2 ] A.H. (the deceased) was found dead in his apartment by firefighters who were responding to an alarm triggered by a fire burning in his apartment. He had been beaten, stabbed and strangled to death. [ 3 ] The accused and R.D. (the co-accused) were jointly charged with second degree murder and arson.

At the time of her arrest, the co-accused made a statement admitting that she killed the deceased. At the trial, the co-accused pled guilty to manslaughter but denied that she was guilty of second degree murder and arson. The jury convicted both the accused and the co-accused of second degree murder and arson. [ 4 ] The case against the accused was circumstantial and relied on after-the-fact conduct.

In light of the co-accused’s admission that she killed the deceased, a key issue at the trial was whether the accused participated in the killing while knowing that the co-accused intended to kill. [ 5 ] The accused argues that the verdict was unreasonable and that the trial judge erred by dismissing her motion for a directed verdict and when instructing the jury. [ 6 ] For the reasons that follow, I would dismiss the appeal. Background [ 7 ] On the night he died, the deceased was drinking with the accused and the co-accused at a bar in downtown Winnipeg.

Video surveillance showed them together at 12:21 a.m. and 1:18 a.m., as well as between 1:29 a.m. and 1:31 a.m. when they left the bar. The three were also seen on video at 1:50 a.m. entering the deceased’s apartment building and getting on the elevator. There is no evidence regarding the time that either the accused or the co-accused left the apartment; however, they were no longer present at approximately 5:37 a.m. when the firefighters arrived in response to the fire alarm. [ 8 ] Upon their arrival at the deceased’s apartment, the firefighters found an active fire on the deceased’s stove causing

heavy smoke on the floor of the building where his apartment was located. They extinguished the fire and, while opening windows toclear the smoke, they found the deceased lying on the bedroom floor, naked. [9] The pathologist determined that the deceased died from strangulation by ligature before the fire started; that hesustained numerous injuries to his head, neck and body before he died; and that he was stabbed after or around the time of death. Heexplained that a person being strangled may lose consciousness in 30 seconds or less and die after four to six minutes.

He was of theview that the computer cord with the deceased’s blood found on the bedroom floor could have been the murder weapon. [10] In addition to the computer cord with the deceased’s blood, the police found the following evidence in his apartment: • An empty detergent bottle was located just behind a rolled-up bath mat in the bathroom. The lid for the bottle was on the floor inthe bathroom. • An empty bleach bottle with the accused’s fingerprints was on a computer desk in the deceased’s bedroom.

There was no lid onthe bottle. • A used condom with DNA belonging to the accused and the deceased was on the living room floor. • Toilet paper with the accused’s blood was inside the rolled-up bath mat in the bathroom. Also inside the bath mat was a toiletbrush, a squashed cardboard toilet-paper roll and glass fragments from a wine bottle. A candle was on top of the bath mat. • The computer cord with the deceased’s blood was found on the bedroom floor. [11] An expert in the cause and origin of fire (the fire expert) opined that someone placed the candle on the rolled-up bathmat in an attempt to ignite it.

He testified that there were a number of fire sites in the apartment, in addition to the rolled-up bath mat, asfollows: • a bundle of toilet paper with blue staining and burn marks was near the toilet in the bathroom; • what appeared to be paper towel and bed sheets had been on fire on the stove in the kitchen; and • toilet paper with burn marks was found on the kitchen floor. [12] The fire expert testified that a blue substance found in the bedroom and bathroom appeared to have been used in anattempt to accelerate the fire. [13] Upon her arrest, the co-accused made a statement to the police.

In her statement, she admitted killing the deceased andshe referred to what the accused did and said. The Crown tendered the co-accused’s statement as evidence in its case against her and,therefore, the trial judge instructed the jury that the co-accused’s statement could not be used as evidence against the accused. [14] At the conclusion of the Crown’s case, the accused made a motion for a directed verdict. The trial judge dismissed themotion with reasons to follow. She provided her reasons for dismissing the motion after the jury convicted the accused of second degreemurder and arson.

Grounds of Appeal [15] The accused lists three grounds of appeal in her amended notice of appeal: 1. the convictions were against the law, the evidence and the weight of the evidence; 2. the trial judge erred in law in dismissing the accused’s motion for a directed verdict; and 3. the trial judge erred in law when instructing the jury. [16] The accused argues that the verdict is unreasonable because the inferences that had to be drawn by the jury in order toconvict the accused of murder and arson were speculative and, therefore, the jurors must have used the co-accused’s statement to convictthe accused.

She alleges that the trial judge erred in the application of the test for a directed verdict, erred by dismissing the motion andcaused prejudice to the accused when she provided her reasons for dismissing the motion after the accused had been convicted. Finally,the accused submits that the jury was not properly instructed because the trial judge failed to correct erroneous statements made by theCrown in its closing submission, erred when instructing the jury on the intent for party liability and failed to instruct the jury onintoxication.

Analysis Issue 1—Was the Verdict Unreasonable? [17] Hamilton JA recently explained the standard of review for unreasonable verdict in R v Green, 2019 MBCA 53 (at paras49-50): The test for unreasonable verdict is well known: whether the verdict, based on the whole of the evidence, is one that a properlyinstructed jury, acting judicially, could reasonably have rendered (see R v Yebes, (SCC), [1987] 2 SCR 168 at 186). The reasonableness of the verdict is not a question of whether this Court would have convicted the accused, but whether the evidence,

viewed through the lens of judicial experience, was reasonably capable of supporting a finding of guilt.

This Court must ask itself “whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury” ( R v WH , 2013 SCC 22 at para 2 ; see also at paras 26-28). ( See also R v Calnen , 2019 SCC 6 at para 165 .) [ 18 ] In a circumstantial case, an appellate court must assess the reasonableness of the jury’s use of inferential reasoning and determine “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence” ( R v Villaroman , 2016 SCC 33 at para 55 ). [ 19 ] As explained by Mainella JA in R v Hall , 2018 MBCA 122 (at para 166 ): Deference plays an important

part in evaluating the inferential reasoning of the jury. The reviewing court does not draw its own inferences; rather, it considers whether the inferences drawn by the jury were “reasonably open” to it in light of the standard of proof ( Villaroman at para 67 ). Drawing the line between inferences that are speculative and those which give rise to a reasonable doubt is the responsibility of the jury alone ( see Villaroman at para 71 ). Were the Inferences Drawn by the Jury Reasonable? [ 20 ] The case against the accused on both charges was circumstantial.

In order to convict her of arson, the jury had to draw the inference that her presence in the apartment on the night of the fire and her fingerprints on the bleach bottle meant that she participated in setting a fire or multiple fires in the deceased’s apartment. In order to convict the accused of murder, it had to draw the further inference that the accused set or participated in setting the fire(

s) in order to cover up her own involvement in the murder. [ 21 ] The accused argues that the inferences that had to be drawn in order for the jury to convict her were highly speculative and, therefore, unreasonable.

She also argues that there are other reasonable inferences that could be drawn on the evidence that are inconsistent with her guilt. [ 22 ] The Crown contends that the inferences were open to the jury on the evidence and were reasonable, and the existence of competing inferences does not necessarily result in an unreasonable verdict. [ 23 ] The evidence demonstrated that the accused was in the deceased’s apartment on the night he was killed. The video surveillance showed her entering the building and getting on the elevator at 1:50 a.m. with the deceased and the co-accused.

In addition, the accused’s DNA was found on a used condom on the living room floor, her blood was found on tissue paper inside of the rolled-up bath mat in the bathroom and her fingerprints were found on the bleach bottle in the bedroom. [ 24 ] The fire expert testified that there were between two and four fires that were set intentionally in the apartment. The rolled-up bath mat in the bathroom that had the tissue with the accused’s blood was one of the fire sites. [ 25 ] Two police officers testified that there was blue liquid detergent on the bed in the bedroom and on the bathroom floor.

One of the officers said the blue liquid detergent smelled similar to Downy. The other officer described finding the blue liquid detergent on the floor in the bedroom near the deceased, as well as on the bathroom floor near the rolled-up bath mat. He also described yellow staining in the bedroom on the bed and on the carpet around the deceased’s body and was of the view that this staining was bleach from the empty bleach bottle found on the computer desk in the bedroom.

The fire expert testified that he believed the blue liquid was used in an attempt to accelerate the fire and that chlorine is an accelerant when used “in the proper way.” [ 26 ] While there is no evidence as to when the accused’s DNA, blood and fingerprints were left in the apartment, in my view, it was reasonably open to the jury on the totality of the evidence to conclude that the accused was in the apartment sometime between 1:50 a.m. and 5:37 a.m.; that she had sex with the deceased; that, after the deceased was killed, the accused poured bleach around his body and on the bed; that she was using the bleach with the intention of accelerating a fire; and that she was involved in attempting to start a fire with the bath mat. [ 27 ] The evidence which supports these conclusions includes the accused’s fingerprints on the bleach bottle, its location on the computer desk in the deceased’s bedroom, that the top had been removed from the bleach bottle and it was empty, and the yellow staining on the bed and around the body.

In light of the fire expert’s opinion about the use of detergent to accelerate the fire, the facts, in my view, reasonably support the inference that the accused poured the bleach in the bedroom in an effort to accelerate the fire. [ 28 ] After-the-fact conduct is circumstantial evidence that allows a fact-finder to draw particular inferences based on a person’s words or actions and may be relevant to the issue of intent ( see Calnen at paras 106, 111, 119 ). [ 29 ] Once the jury concluded that the accused participated in the arson, it was open to them to conclude that the arson was after-the-fact conduct that, in the context of the evidence as a whole, supported the inference that she participated in the arson because she was aware that she had committed a culpable act ( see Calnen at paras 127-29 ). [ 30 ] The extent of the deceased’s injuries also supported the conclusion that the accused knew she had committed murder ( see R v Rodgerson , 2015 SCC 38 at paras 18-23 ). [ 31 ] The pathologist testified that the deceased had blood all over his face and the back of his head from an injury below his eye and from his nose.

He had 11 areas of injury on his head and neck, including bruising, swelling and splitting of the skin due to blunt trauma; hemorrhages around and within his eyes, eyelids and lips; and marks all around his neck consistent with the application of a ligature such as a computer cord. The deceased also had four areas of injury on his body, including abrasions on his shoulders and back; a stab wound to his abdomen; and fractures to his ribs on the left side (additional fractures to the deceased’s breastbone and right-side ribs were likely caused by the firefighters’ efforts to resuscitate him).

Finally, he had bruising on the back of his hand, knee and shin, and a sharp-force injury on his left forearm caused by a blade.

[32] According to the pathologist, because there was no soot in his airway, the deceased was killed before the fire wasstarted in his apartment and the cause of his death was neck compression due to ligature strangulation lasting four to six minutes. [33] While the pathologist agreed on cross-examination that the attack on the deceased could have been committed by oneperson, in light of the extent of the injuries and the extensive efforts undertaken to set the apartment on fire, in my view, it was open tothe jury to conclude that both the accused and the co-accused were involved in the attack.

In addition, the efforts to destroy forensicevidence linking the accused to the crime scene found on the tissue in the rolled-up bath mat support the inference that she was involvedin the killing. [34] In her instructions to the jury, the trial judge explained circumstantial evidence and cautioned the jurors about the use ofinferential reasoning.

She told them that they could not convict the accused unless they were “satisfied beyond a reasonable doubt thatthe accused’s guilt . . . [was] the only reasonable inference that [they could] draw from the whole of the evidence” and that if theyconcluded “on the basis of the whole of the evidence admissible against [the] accused that there [was] another reasonable inference to bedrawn and [was] consistent with innocence, [they would] find [the] accused not guilty.” She also told them that they could “useevidence of after-the-fact conduct to support an inference of guilt only if [they] had rejected other explanations for that conduct.” [35] The trial judge not only instructed the jury on inferential reasoning, she also told them they had to be “satisfied that [theaccused’s] guilt [was] the only reasonable inference to be drawn by the totality of the evidence admissible against [her].” [36] In my view, the trial judge provided the jury with the proper tools to analyse the circumstantial evidence and todetermine whether the inferences required in order to convict the accused were speculative or reasonable. [37] Moreover, the accused did not testify.

Therefore, the jury did not have an innocent explanation from her regarding theevidence that linked her to the arson and the murder and there was no evidentiary foundation which could have precluded the impugnedinferences from being drawn (see R v Noble, (SCC), [1997] 1 SCR 874 at para 103; R v Oddleifson (JN), 2010 MBCA44 at paras 25-27, leave to appeal to SCC refused, 33756 (28 October 2010); R v Banayos and Banayos, 2018 MBCA 86 at paras 24, 40,leaves to appeal to SCC refused, 38296 (14 February 2019) and 38389 (14 February 2019); and Green at para 67). [38] Regarding the other inferences that the accused argues could reasonably be drawn on the evidence and that areinconsistent with her guilt, the jury’s verdict demonstrates that they rejected these competing inferences. [39] While I agree that the jury could have reached a different conclusion, circumstantial evidence does not have to totallyexclude other conceivable inferences and the verdict is not unreasonable simply because those alternatives did not raise a doubt in thejury’s mind (see Villaroman at para 56, quoting R v Dipnarine, 2014 ABCA 328 at para 22; see also Calnen at para 145). [40] In my opinion, taking into account the factual matrix of the case viewed through the lens of judicial experience, the jurywas entitled to conclude that the only reasonable conclusion was that the accused participated in the arson and the murder.

I am satisfiedthat the verdicts were ones that a properly instructed jury, acting judicially, could reasonably have rendered. Did the Jury Use the Co-Accused’s Statement to Convict the Accused? [41] The co-accused made a statement to the police in which she admitted killing the deceased. She also made commentsabout what the accused did or said and referred to the involvement of the accused by using the word “we” when describing some of herown actions. At the trial, she entered a guilty plea to manslaughter but contested that she was guilty of second degree murder on thebasis of provocation.

She denied committing the arson. [42] The co-accused’s statement was redacted in order to address the accused’s concern that the jury would use the statementimproperly as evidence against her. The Crown tendered the redacted statement at trial as evidence against the co-accused. [43] The accused argues that, based on the evidence as a whole, the only way in which the jury could have concluded thatshe was guilty of the offences was by using the co-accused’s statement in a prohibited fashion.

In my view, there is no merit to thisargument. [44] The jury was repeatedly told by counsel and, importantly, by the trial judge in both mid-trial and final instructions, thatthe co-accused’s statement could only be used as evidence against the co-accused and not against the accused. In her final instructions,the trial judge stated: I am also going to remind you of the limited use that you can make of [the co-accused’s] videotaped interview. It can only be used indeciding the case against her. It cannot be used in deciding the case against [the accused].

It is important for you to carefully keep thisin mind as [the co-accused] made many claims about what [the accused] did or said while they were at the apartment, as well as beforeand after. She made comments about [the accused]. She sometimes used the word “we” when she was describing things that weredone. Remember what I told you at the time, you can only take this to mean these things were done by [the co-accused] herself. In effect, members of the jury, you must banish anything [the co-accused] said in the videotaped statement from your mind completelywhen you decide the case against [the accused].

Put it in a ziploc bag and zip it up.

If you were to rely on anything [the co-accused] said in that videotaped statement to convict [the accused], not only would you fail tofollow my instructions and breach your duty as jurors, but you would wrongfully convict her. [45] In light of the trial judge’s careful instructions to the jury and my conclusion that the jury’s verdict that the accusedparticipated in the arson and the murder was reasonably open to them, I am not persuaded that the jury improperly relied on the co-accused’s statement in convicting the accused. [46] I am satisfied the verdict was not unreasonable within the meaning of section 686(1)(a)(

i) of the Criminal Code (the

Code ) and I would dismiss this ground of appeal. Issue 2—Did the Trial Judge Err by Dismissing the Motion for a Directed Verdict? [ 47 ] At the close of the Crown’s case, the accused brought a motion for a directed verdict of acquittal (the motion) on the basis that there was no direct evidence that the accused was involved in the arson and the murder, and that the evidence supported an inference that the accused had sex with the deceased in his apartment but nothing more. [ 48 ] The next day, the trial judge advised the parties that she was dismissing the motion and that her reasons would follow.

She provided those reasons seven days after the jury convicted the accused. [ 49 ] In her reasons, the trial judge concluded that “the evidence as a whole allows the jury to logically infer that [the accused] participated in the arson by pouring bleach as an intended accelerant and/or creating the fire site. Further, they could consider this as post-offence conduct evidencing participation in the murder.” [ 50 ] The accused argues that the trial judge erred in the application of the test for a directed verdict and by dismissing the motion.

She says that there was no reasonable inference available on the evidence that could have led to a conviction for murder or arson.

She also argues that the trial judge misconstrued the evidence when she concluded that the jury could find that the accused poured the bleach as an intended accelerant and, therefore, her dismissal of the motion resulted in a miscarriage of justice pursuant to section 686(1) (iii) of the Code . [ 51 ] Finally, the accused asserts that she was deprived of the opportunity to renew the motion regarding the murder charge because the trial judge’s reasons for dismissing it were not provided until after the accused was convicted.

She says that this was prejudicial, particularly in light of the fact that the trial judge rejected the Crown’s arguments that the fire constituted part of the killing and that the accused could be convicted of murder for participating in setting the fire in order to destroy evidence of the co-accused’s involvement in the murder. [ 52 ] The Crown submits that the trial judge applied the correct test and did not err when she dismissed the motion. It also argues that no prejudice resulted from the timing of the trial judge’s reasons on the motion.

It points out that, during the pre-charge meeting, the trial judge crystallised her intentions regarding the jury instructions. It says that the trial judge made her intentions known to counsel and her reasons were not unexpected.

I agree. [ 53 ] The standard to be applied on appellate review of a judge’s decision on a motion for a directed verdict is correctness ( see R v Barros , 2011 SCC 51 at para 48 ; R v O’Kane; R v Zebrun , 2012 MBCA 82 at para 42 ; and R v Richard (DR) et al , 2013 MBCA 105 at para 71 ). [ 54 ] As explained by Hamilton JA in O’Kane (at para 40 ): The test to be applied by a trial judge on a directed-verdict motion is whether “there is admissible evidence which could, if it were believed, result in a conviction” ( R. v. Arcuri , 2001 SCC 54 at para. 21 , [2001] 2 S.C.R. 828 ).

It is the same test that is applied by a preliminary inquiry judge when determining whether an accused should be committed to stand trial. [ 55 ] When the case against the accused is a circumstantial one, the trial judge must engage in a limited weighing of the evidence in order to determine whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw.

The trial judge does not, however, draw factual inferences or assess credibility ( see R v A rcuri , 2001 SCC 54 at paras 22-23 , 30). [ 56 ] In my view, the trial judge applied the correct test for the motion when she stated “[t]he question to be answered is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilt”.

She also understood her responsibilities in a circumstantial case and considered whether the whole of the evidence was reasonably capable of supporting the inferences necessary for the jury to convict. [ 57 ] In light of my conclusion that the verdict was not unreasonable, I am not persuaded that the trial judge erred when she dismissed the motion or that she misconstrued the evidence in doing so. [ 58 ] Nor am I persuaded that the accused suffered any prejudice from the timing of the trial judge’s reasons on the motion. [ 59 ] The day before she instructed the jury, the trial judge provided counsel with a draft of sections of her intended instructions and met with counsel to discuss the jury charge (the pre-charge meeting).

She made it clear that she was rejecting the Crown’s theory that the fire was set in order to complete the murder and that she would not instruct the jury that they could consider this theory of liability as a path to conviction. [ 60 ] The trial judge also made it clear at the pre-charge meeting that she was not convinced that it would be correct in law to instruct the jury that the accused could be found guilty of the murder if she assisted the co-accused by participating in setting the fire in order to destroy evidence of the co-accused’s involvement.

While she did say that she would think about the issue further, she stated that she was not inclined to accept the Crown’s argument on that point. [ 61 ] In my view, the accused had notice of the trial judge’s position regarding the Crown’s arguments prior to the jury being instructed and could have renewed the motion. Therefore, the provision of reasons for dismissing the motion after the conviction did not result in any prejudice to the accused. [ 62 ] I would dismiss this ground of appeal. Issue 3—Were the Jury Instructions Adequate?

[63] The accused argues that the jury was not properly instructed. She asserts that the trial judge ought to have corrected theCrown’s erroneous statement, made during its closing submission, that being a party to the arson and destroying evidence would makeher guilty of murder. She also asserts that the trial judge failed to instruct the jury that, in order to find the accused guilty of murder as aparty, they would have to be satisfied beyond a reasonable doubt that she intended to assist the co-accused commit the offence of murderwhile knowing the co-accused intended to kill.

Finally, she contends that the trial judge ought to have instructed the jury on intoxicationin the context of party liability. [64] While it was not argued by the accused, the panel raised the issue of whether the trial judge used the correct test whenshe declined to instruct the jury on intoxication. [65] The standard of review for jury instructions was succinctly explained by Mainella JA in Hall as follows (at para 143): Jury instructions are reviewed on a standard of adequacy, not perfection.

The question for the reviewing court is whether, taking afunctional approach to the instructions looked at in their entirety and in the context of the trial (i.e., the evidence, the live issues, thepositions of the parties and the submissions of counsel), the overall effect of the charge was that the jury was properly and fairlyinstructed (see R v Jacquard, (SCC), [1997] 1 SCR 314 at paras 32, 62; and R v Araya, 2015 SCC 11 at para 39). (See also Calnen at paras 8-9.) Did the Trial Judge Fail to Correct the Crown’s Misstatement? [66] In its closing submissions, the Crown made the following statements: [The co-accused] strangled [the deceased] to death. [The accused] was there, and helped by trying to destroy evidence or by making surethe deceased was dead by setting fires in the suite.

You know the deceased was dead before the fire started based on [the pathologist’s] examination of his lungs, and the fact that no sootwas found in his airways. So if you accept that [the accused] poured the bleach in the area of the deceased, and we say you should, youcan accept that he had already been struck, perhaps kicked, definitely strangled and stabbed at that point, perhaps twice. And that thiswas an effort by [the accused] to help [the co-accused] by destroying evidence, or making sure that [the deceased] was really and trulydead.

And that makes her just as guilty of murder as [the co-accused]. [67] As I have already explained, the trial judge refused to instruct the jury on the basis of the Crown’s theory that theaccused set the fire in order to complete the murder or to destroy evidence of the co-accused’s involvement. [68] The accused argues that the statements made by the Crown “erroneously presented an option to the jury to convict [theaccused] of the offence of second degree murder on the basis of simply finding her guilty of the arson” and that the trial judge failed tocorrect this erroneous statement when she instructed the jury. [69] The Crown submits that the trial judge addressed the Crown’s error in her charge and “[made] the basis of potentialliability perfectly clear.” [70] As explained by the majority in R v Rose, (SCC), [1998] 3 SCR 262, the trial judge has a duty tocorrect misstatements by counsel in their closing submissions to juries (at para 126): It cannot be forgotten that the trial judge is the last person to speak to the jury.

The trial judge is also in the best position to assess thesignificance of the remarks of counsel, to determine if they need to be corrected, and, if necessary, to correct inaccuracies and remedyany unfairness that may arise from the addresses of counsel. Indeed, from the point of view of counsel, it is a humbling experience tohave the trial judge point out errors in their addresses. It is this ability of the trial judge to correct addresses of counsel that provides anelement of control which helps to curb inaccuracies, exaggeration and unfair comments by counsel.

Moreover, it ensures that the trialprocess is fair which, after all, is one of the fundamentally important functions of the presiding judge. The judge should not hesitate tocorrect errors of counsel in order to preserve the fairness of the trial process. Taking this step will ensure fairness in the vast majority ofcases. On this issue we are in complete agreement with these comments of Dubin C.J.[O.], at p. 613: It is the duty of the trial judge to present the case for the defence as fully and fairly as the case for the Crown.

If there is unfairness inthe Crown’s address, a complaint can be brought to the attention of the trial judge who should correct any mistake by Crown counsel inoverstepping the bounds of propriety, resulting in an unfair trial. [71] The record demonstrates that the trial judge was alive to what the Crown had said in its closing submissions anddiscussed the comments with counsel at the pre-charge meeting. [72] While the trial judge did not specifically tell the jury that they could not convict the accused based on the Crown’stheory of liability and that they should disregard what it said in that respect, she cautioned them that, if they concluded that the accusedwas involved in setting the fire, they “must be careful not to jump to the conclusion that this was because she participated in killing [thedeceased].” She told them that, to reach the conclusion that the accused participated in the killing, they first had to “reject any otherexplanation for why [the accused] would do this.” [73] Moreover, the trial judge clearly instructed the jury that they could not convict the accused if her actions were intendedto help the co-accused by destroying evidence when she said:

You must not use this evidence in deciding or helping you decide that [the accused] participated in killing [the deceased] unless you reject any other explanation for why she would do this. For example, you might find another explanation could be that [the accused] could have done this to help cover up the fact that it was [the co-accused] that killed [the deceased]. There could be other inferences that you could draw. It is up to you.

Use your common sense. [ 74 ] The trial judge provided these instructions after counsel told the jury in their closing submissions that the trial judge would explain the law to them and that they were to rely on what she told them, not what counsel said. [ 75 ] In my view, the trial judge identified the improper remarks by the Crown and determined what remedial steps were necessary.

She clearly addressed the misstatement in her instructions to the jury with a proper instruction about the law without indicating that she was favouring the arguments of the one party over another or engaging in contentious argument with the Crown’s closing submission ( see Rose at paras 127-28 ). I am not persuaded that she erred or that any injustice resulted from the manner in which she addressed the Crown’s remarks (see R v Kociuk (RJ) , 2011 MBCA 85 at para 6 , aff’d 2012 SCC 15 ).

Did the Trial Judge Err when Instructing the Jury on the Intent for Party Liability? [ 76 ] The trial judge instructed the jury on the intent required in order for a person to be convicted as a party to an offence as follows: The aider must intend to help the principal commit the offence. Actual assistance by words or acts is necessary. If the aider knew that her words or acts were likely to assist the principal offender to commit that offence, it would be open to you to conclude that the aider intended to aid.

But a mere suspicion by the aider that the principal offender would rely on the aider’s words or act is not sufficient to prove an intention to aid. [ 77 ] The trial judge told the jury that, in order to convict the accused of murder, they had to conclude beyond a reasonable doubt “that [the accused] committed an unlawful act; that the unlawful act caused [the deceased’s] death; and that [the accused] had the state of mind required for murder.” She explained that the unlawful act was the assault of the deceased by strangulation with the computer cord and that this caused his death. [ 78 ] The trial judge also explained to the jury that the issue of intention to kill was non-contentious: As to the state of mind for murder, [the accused] does not really dispute that the nature of [the deceased’s] injuries, including the fact that he was strangled with the computer cord, indicates that [the co-accused] either meant to kill [the deceased] or meant to cause him bodily harm that she knew was likely to kill him, and she was reckless as to whether he died or not.

Thus, you will have no difficulty concluding that this element of the offence has been proved beyond a reasonable doubt. [ 79 ] The trial judge told the jury that the critical issue for them to decide was whether the accused was a party to the assault. She made it clear that “mere presence at a crime does not make a person a party to an offence” and explained that the Crown was relying on evidence of after-the-fact conduct to support its assertion that the accused was a party to the offence of murder.

She told them that evidence of the accused’s after-the-fact conduct may or may not assist them in deciding whether the accused was guilty and had “only an indirect bearing on the issue”. [ 80 ] The accused argues that the trial judge failed to explain to the jury that, in order to be a party to the murder, the accused would have had to have known that the co-accused intended to kill the deceased or cause him serious bodily harm that she knew would likely kill him and that the accused intended to assist the co-accused.

She submits that, because there is no evidence about what the accused may have done to assist the co-accused in the commission of the offence, the jury instruction was inadequate. [ 81 ] I disagree. In my view, the trial judge’s instructions provided clear direction that the accused required knowledge of what the co-accused intended. [ 82 ] Furthermore, the trial judge also cautioned the jury about the use of inferential reasoning regarding after-the-fact conduct ( see Calnen at paras 112, 115-17 ). [ 83 ] Finally, the nature of the assault in this case left little doubt about what was intended.

In addition to being beaten and stabbed, the deceased was strangled for four to six minutes. The amount of force applied in order to cause the deceased’s injuries and death, as well as the duration of the application of force and the effort to conceal the extent of the crime by setting a fire in the apartment, strongly supported an inference of an intention to kill ( see Rodgerson at paras 18-23 ; and Calnen at para 119 ). [ 84 ] I am not persuaded that the trial judge erred when instructing the jury on the intent required for the accused to be convicted as a party to the offences.

Was There an Air of Reality to the Intoxication Defence? [ 85 ] The night manager at the downtown bar where the accused was drinking with the deceased on the night of his death testified that she spoke to the accused and thought that she was drunk based on her “mannerisms”. She said that the accused was a happy drunk and agreed with the suggestion that she was very intoxicated. She testified that the accused kept asking for a brand of alcohol that the bar did not serve and that the accused was close to being “cut off.”

[86] During the pre-charge meeting, counsel for the accused asked the trial judge to instruct the jury on intoxication.

Specifically, she argued that the accused could not form the intention for murder due to her degree of intoxication and that the juryshould be told that, if they accepted this, then they could only convict her of manslaughter. [87] Notwithstanding the night manager’s testimony, the trial judge relied on the video surveillance in concluding that therewas no air of reality, on the evidence, to the accused’s assertion that she was too intoxicated to form the intention for murder and sherefused to charge the jury as requested.

In reaching this conclusion, she considered whether the accused had an operating mind andstated “losing your operating mind requires a very high degree of intoxication.” [88] On appeal, the accused argues that the trial judge ought to have included an instruction in her charge to the jury on theissue of intoxication.

She contends that, in light of the trial judge’s inadequate instruction regarding the intent required for party liability,the trial judge’s failure to instruct on intoxication resulted in a failure to address the knowledge and intention components required tofind the accused guilty as a party. [89] The accused relies on the testimony of the night manager and argues that this, along with the video surveillance, isevidence of advanced intoxication. [90] Whether there is an air of reality to a defence constitutes a question of law and is reviewable on a standard ofcorrectness (see R v Tran, 2010 SCC 58 at para 40).

The relevant question is whether the record contains a sufficient factual foundationfor a properly instructed jury to give effect to the defence (see R v Buzizi, 2013 SCC 27 at para 16; see also R v Mustard (G), 2016MBCA 40 at paras 19-27). [91] In R v Daley, 2007 SCC 53, Bastarache J explained the development of the defence of voluntary intoxication andconcluded, “Thus, on the current state of the law, for a murder charge, the defence of intoxication will only be available to negatespecific intent so as to reduce the charge to manslaughter” (at para 40). [92] He described the three legally relevant degrees of intoxication as mild intoxication, advanced intoxication and extremeintoxication akin to automatism.

He stated that advanced intoxication “occurs where there is intoxication to the point where the accusedlacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise areasonable doubt about the requisite mens rea” (at para 41). [93] Finally, Bastarache J explained when the trial judge must instruct on intoxication (at para 44): It is apparent that where there is evidence of a mild degree of intoxication, since this has never been held to be a defence, the trial judgeis not required to give any instruction on intoxication; there would be no air of reality to the defence.

The threshold for instructing jurieson intoxication was set out in Robinson [R v Robinson, (SCC), [1996] 1 SCR 683], at para. 48: “(B)efore a trial judgeis required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effectmight have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt” (emphasis deleted).

This is thethreshold for instructing juries on advanced drunkenness. [94] In my view, the trial judge misspoke when she used the term “operating mind” (see para 87 above) in concluding thatthere was no air of reality to the defence of intoxication. The concept of an operating mind arises in the context of the admissibility ofconfessions and whether a statement given by an accused to a person in a position of authority was voluntary.

The operating-mind testrequires that the accused possess a limited degree of cognitive ability to understand what he or she is saying and to comprehend that theevidence may be used in proceedings against the accused. It is about the capacity to make an active choice (see R v Whittle, (SCC), [1994] 2 SCR 914 at 939). [95] Notwithstanding her use of the term “operating mind”, the trial judge clearly understood that there must be an air ofreality to the claim that the accused was in an advanced state of intoxication before the jury should be instructed on the defence ofintoxication.

Her conclusion that “losing your operating mind requires a very high degree of intoxication” demonstrates her awarenessthat the test required evidence that the accused’s foresight of consequences was sufficiently impaired to raise a reasonable doubt that shehad the required intention. [96] The trial judge considered the evidence regarding the accused’s intoxication and concluded that the video surveillancedid not show her having any difficulty when walking or with other motor skills. [97] I am not persuaded that the trial judge erred when she found that there was no air of reality to the defence ofintoxication.

I agree that the video surveillance does not support the accused’s assertion that she was in an advanced state of intoxication. [98] There is no evidence as to how much alcohol the accused drank or over what period of time, nor is there any evidenceas to the effect of the alcohol on her state of mind.

As well, the nature of the assault on the deceased is consistent with a recklessdisregard for life, if not a clear intention to kill. [99] In my view, the factual foundation was insufficient to support a finding by the jury that the accused’s consumption ofalcohol might have impaired her foresight of consequences sufficiently to raise a reasonable doubt as to the mental element of the offenceas a party (see R v Arjun, 2015 BCCA 273 at para 42, leave to appeal to SCC refused, 36568 (17 December 2015)). [100] I am not persuaded that the trial judge erred when she refused to instruct the jury on intoxication. [101] When the jury instructions are considered in their entirety and in the context of the evidence, in my view, the instructionswere sufficient to allow the jury to determine whether the Crown had proven beyond a reasonable doubt that the accused had therequisite intention for murder. [102] I would dismiss this ground of appeal.

Conclusion [ 103 ] In my view, the jury was entitled to conclude on the evidence that the accused participated in both the arson and the murder, and the verdict was not unreasonable. I am not persuaded that the trial judge erred by dismissing the motion for a directed verdict or that the accused was prejudiced by the timing of the trial judge’s reasons. Finally, the trial judge’s instructions to the jury, when considered in their entirety and in the context of the trial, resulted in a jury that was properly and fairly instructed. [ 104 ] I see no basis for appellate intervention and, accordingly, I would dismiss the appeal. JA I agree: JA I agree: JA