R v Miles, 2020 MBCA 45

Citation: R v Miles, 2020 MBCA 45 Date: 20200504 Docket: AR18-30-09200 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre Madam Justice Lori T. Spivak BETWEEN : ) K. I. Dowle ) for the Appellant ) (via videoconference) HER MAJESTY THE QUEEN ) ) J. M. Mann and Respondent ) A. H.

Millo ) for the Respondent - and - ) (via videoconference) ) PHILIP FRANK MILES ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) April 27, 2020 ) ) Written reasons: ) May 4, 2020 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the Manitoba, Court of Appeal Rules , Man Reg 555/88R , all appeals are heard remotely by videoconferencing until further notice. On appeal from 2018 MBQB 95 SPIVAK JA (for the Court): [ 1 ] The accused was convicted of second degree murder in the death of his common-law partner. He appeals on the basis that the verdict was unreasonable.

He argues that the trial judge erred in assessing the evidence of a key witness, erred in the application of the law regarding inferences and the use of post-offence conduct, and erred in finding that the accused’s intoxication did not negate the intent to commit murder. [ 2 ] At the appeal hearing, we dismissed the appeal with brief reasons to follow. These are our reasons. [ 3 ] The deceased and the accused had a tumultuous relationship. She was discovered drowned in a river, having last been seen swimming with the accused and his cousin, Sharona Redhead.

Prior to that time, the three had been drinking for several hours. Sharona testified that she saw the accused push the deceased under the water. Sharona looked away and, when she turned back, she could no longer see the deceased. Upon being asked what happened, the accused replied, “She’s gone, I drowned her.” On two occasions, the accused told Sharona not to say anything.

Shortly after the incident, the accused attended a residence, drunk and wearing what appeared to be the deceased’s sweater, expressing that he did not know if he was “going to go to heaven or hell.” When interviewed by police, he denied knowing how the deceased died. [ 4 ] The trial judge carefully considered Sharona’s evidence and concluded that her testimony was credible, reliable and compelling. She found that it was corroborated by the physical evidence and the evidence of other witnesses.

The trial judge made no palpable and overriding error in her assessment and, in our view, her findings can be reasonably supported by the record and are entitled to deference ( see R v RP , 2012 SCC 22 ). [ 5 ] The trial judge properly reviewed the law relating to circumstantial evidence and post-offence conduct.

She recognised that she must be satisfied that guilt is the only reasonable inference to be drawn from the evidence and that she must consider other reasonable possibilities based on logic and experience applied to the evidence or absence of evidence, not on speculation ( see R v Villaroman , 2016 SCC 33 at para 37 ). She considered Sharona’s description of the incident; the accused’s statement that he drowned the deceased; his failure to make efforts to save the deceased or to seek out assistance at the scene; and his instruction to Sharona to remain

silent. She concluded that the only reasonable inference was that the accused pushed the deceased under the water; this was an unlawful act and not an accident as suggested by the defence. [ 6 ] We see no error in the trial judge’s treatment of the circumstantial evidence or post-offence conduct. It was for the trial judge to draw the line between speculative and reasonable inferences ( see R v Ong , 2020 MBCA 14 at para 7 ). We are satisfied that the inferences drawn by the trial judge having regard to the standard of proof were reasonably open to her.

The decision, that this was an unlawful act, is one that a properly instructed trier of fact could reasonably have rendered on the whole of the evidence ( see RP and Villaroman ). [ 7 ] In terms of intoxication, the trial judge correctly instructed herself on when advanced intoxication negates the requisite intent for murder as outlined in R v Daley , 2007 SCC 53 . She explained why she was satisfied beyond a reasonable doubt that the accused had the necessary intent for murder.

She considered all the evidence on the issue, including that, after the incident, the accused had no difficulty walking up the riverbank and was understood when he spoke. She found that the accused’s intoxication did not impair his foresight of the consequences of his act so as to raise a reasonable doubt about the requisite intent for murder. [ 8 ] We are all of the view that a properly instructed trier of fact could have reasonably rendered the verdict of second degree murder based on the evidence. [ 9 ] For these reasons the appeal was dismissed. JA JA JA