R v Contois, 2020 MBCA 89

Citation: R v Contois, 2020 MBCA 89 Date: 20200922 Docket: AR19-30-09301 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella BETWEEN : ) S. J. Soldier and HER MAJESTY THE QUEEN ) M. G. Enright ) for the Appellant Respondent ) ) R. D.

Lagimodière ) for the Respondent - and - ) ) Appeal heard and ) Decision pronounced: PIERRE DAVID CONTOIS ) September 8, 2020 ) (Accused) Appellant ) Written reasons: ) September 22, 2020 On appeal from 2019 MBQB 1 ; and 2019 MBQB 67 STEEL JA (for the Court) : [ 1 ] Following trial by judge alone, the accused was convicted of second degree murder and conspiracy to commit an indictable offence (robbery with a firearm).

He was sentenced to life imprisonment (with a period of parole ineligibility of 12 years) for the second degree murder offence and eight years’ imprisonment, concurrent, for the conspiracy offence. [ 2 ] The appeal was dismissed at the hearing, at which time brief reasons were given with expanded reasons to follow. These are those reasons. [ 3 ] The accused appeals his conviction on the second degree murder charge and seeks leave to appeal the sentence for that offence. He is not appealing the conspiracy conviction.

He argues that the verdict was unreasonable and that he should have been convicted of manslaughter. [ 4 ] The main issue on this appeal is a narrow one. The accused takes issue with the finding that, when he discharged the loaded firearm, he had the subjective knowledge that death was likely to result. Instead, he argues that he fired the gun in panic—by accident and only at the deceased’s dogs—and that a ricocheting bullet killed the deceased.

In these circumstances, the accused submits that the most rational inference available to the trial judge was that he did not have the requisite subjective foresight of likely death to trigger the application of

section 229 (

c) of the Criminal Code (the Code ). STANDARD OF REVIEW [ 5 ] This Court has the jurisdiction to hear this appeal and set aside the verdict if it is unreasonable or cannot be supported by the evidence (see section 686(1) (a)(

i) of the Code ). [ 6 ] To determine whether a verdict is unreasonable, an appellate court must determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. With respect to allegations of unreasonable verdict by a judge alone, the appellate court may find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or that is shown to

be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge (see R v Yebes, (SCC), [1987] 2 SCR 168; R v Biniaris, 2000 SCC 15 at para 36; R v RP, 2012 SCC 22 at para 9; and R v WAW, 2016 MBCA 26). ANALYSIS [7]

Section 229(

c) of the Code provides that an accused is guilty of murder where he or she, “for an unlawful object, doesanything that [he or she] know[s] is likely to cause death, and [thereby] causes the death of a human being, even if [he or she] desire[s] toeffect [his or her] object without causing death or bodily harm to any human being”. [8] The

section consists of three essential elements: (

i) an unlawful object; (ii) a dangerous act; and (iii) knowledge or foresight. See R v Roks, 2011 ONCA 526 at para 125; and R v Salah, 2015 ONCA 23 at para 180. [9] The “unlawful object” in

section 229(

c) refers to what an accused sets out to do, in other words, his or her purpose orgoal. The unlawful object must be an indictable offence requiring mens rea and must be distinct from the dangerous act (see R v Shand,2011 ONCA 5 at paras 127-31; and Roks at para 126). [10] While the dangerous act need not be an offence in itself, it must be clearly identified and done in furtherance of theunlawful object and it must be the act that results in the death of another person (see Shand at paras 136- 45; and Roks at paras 129-30). [11] The required knowledge or foresight is linked to the dangerous act.

When the dangerous act was committed, theaccused must have had subjective knowledge that death was likely to result (see R v Meiler (1999), (ON CA), 136CCC (3d) 11 at paras 58, 61 (Ont CA); Roks at para 131; and McKenna v R, 2018 NBCA 30 at para 12). Provided the accused “knewhis dangerous act was likely to cause death to any human being, it was of no moment that he wanted to achieve his unlawful objectwithout causing death or bodily harm to anybody” (Salah at para 194). [12] In

section 229(

c) of the Code, the term “likely” refers to the probability of the specific consequence following from thedangerous act. An accused must foresee the consequence—the death of a human being—as a probable, not merely possible,consequence of the dangerous act (see Shand at paras 153, 209; and Roks at para 134). [13] An assessment of the subjective knowledge of an accused is an intensely fact-specific inquiry that involves a carefulanalysis of all the circumstances in which the dangerous act occurred.

Like any issue of fact, knowledge of a likely consequence ofconduct may be proven by direct evidence, by circumstantial evidence, or by the two kinds of evidence in combination. Of evidentiaryvalue in proof of knowledge are prior, concurrent or subsequent words and conduct of the accused. Knowledge or foresight of the likelyconsequences of conduct can be inferred from the natural and probable consequences of that conduct (see Roks at paras 131-33, 37). [14] In this case, there was both direct and circumstantial evidence. Circumstantial evidence does not have to totally excludeother conceivable inferences.

It is still fundamentally for the trier of fact to decide if any proposed alternative way of looking at the caseis reasonable enough to raise a doubt (see R v Villaroman, 2016 SCC 33 at para 56). The accused does not have to foresee the precisemanner of death nor does he or she need the intention to cause death.

An accused must only have the subjective foresight of thelikelihood of death (see Meiler at para 58; and Shand at para 67). [15] In order for the trial judge to have found the accused guilty of second degree murder, he must have been satisfiedbeyond a reasonable doubt that the only rational inference available to him, based on the totality of the evidence, was that the accusedhad the specific intent to commit a dangerous act that he knew was likely to cause the deceased’s death, while committing a separate anddistinct but related unlawful act. [16] The accused argues that he panicked and that the shooting was accidental.

Indeed, it is submitted that one of thewitnesses testified that the accused told him it was an accident. First, while the witness may have used that term in the colloquial sense,it is not determinative of the legal conclusion.

Moreover, a judge may accept all, none or part of a witness’s evidence. [17] In his decision, the trial judge found that the dangerous act committed by the accused was using his gun in an attempt toregain control of a home invasion robbery after it had gone bad, that this act was done in furtherance of the unlawful object, being therobbery, and that the dangerous act caused the deceased’s death. [18] The trial judge rejected the suggestion that the shooting was accidental. He considered a number of facts to assist himin determining the accused’s subjective knowledge at the time.

He considered facts such as the accused bought meat to distract the dogs,he brought a loaded AK-47 rifle to the scene and he shot it multiple times in close proximity to other people in a narrow doorway. [19] The trial judge considered the argument that the shot was fired at a charging dog which then ricocheted upward into thedeceased’s body killing him, thus it would not be subjectively foreseeable that this act was likely to cause the deceased’s death.

The trialjudge rejected this argument, pointing out that there were three shots fired, not one, and the choice to shoot at the dog in close proximityto other people was a very dangerous act which, combined with the other factors, led to a reasonable inference that the accused had thesubjective foresight that death was likely to result. [20] As the trial judge stated in 2019 MBQB 1 (at para 85):

. . . The suggestion that the accused did not intend to kill the [deceased] or cause him bodily harm that would cause death, but rather suddenly reacted to the dogs coming out of the house similarly does not remove these facts from the ambit of s 229(

c) of the Code . It was [his] choice to use the gun in order to regain control of the robbery plan that caused the death. [ 21 ] Deference is owed to the trial judge’s factual finding that the accused’s choice to shoot the firearm was purposeful—it was to regain control of the situation. His decision was not unreasonable, given the cumulative effect of the evidence, and is supported based on a reasonable view of the evidence. [ 22 ] The appeal was dismissed. The application for leave to appeal sentence was abandoned. JA JA JA