R v McDonald, 2020 MBCA 92

Citation: R v McDonald, 2020 MBCA 92 Date: 20200922 Docket: AR19-30-09271 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Janice L. leMaistre Madam Justice Karen I. Simonsen BETWEEN: her majesty the queen ) G. F. Wiebe and ) R. M. McElhoes Respondent ) for the Appellant ) - and - ) J. M. Mann ) for the Respondentraymond jeremy mcdonald ) ) Appeal heard and (Accused) Appellant ) Decision pronounced: ) September 22, 2020 steel JA (for the Court): [1] The accused appeals his conviction for first degree murder after a trial by judge alone.

He is seeking a manslaughterverdict or, in the alternative, a new trial. [2] Four individuals were accused of brutally beating the victim and then dragging him into the bush and cutting histhroat. Two of the accused were youths at the time. They pleaded guilty to second degree murder and received youth sentences. Theother adult co-accused (Spence) was convicted of first degree murder and his appeal from conviction was dismissed (see R v Spence,2017 MBCA 26). [3] The trial judge convicted the accused via two separate routes to first degree murder.

First, he found that the accusedwas a party to Spence’s plan to murder the victim in the bush and assisted him with that plan. Second, he found that the victim waskilled during the course of being forcibly confined (see section 231(5)(

e) of the Criminal Code (the Code)). [4] The sole ground of appeal is that the verdict is unreasonable.

The accused argues that the trial judge’s decision wasbased on two key factual findings that were not supported by the evidence: 1. that Spence made it clear to the accused and the two youths that they would be taking the victim outside to kill him when,after one of the youths wanted to call an ambulance, Spence said that they were going to “finish him off”; and 2. that the victim was still alive when he was carried from the residence since he was making noises and struggling. [5] The accused points to the many inconsistencies and uncertainties in the evidence.

He argues that there was noevidence that the accused heard Spence say that they were going to “finish him off”. The accused maintains that the trial judge failed todeal with evidence that the victim was not moving and may have been dead before he was carried from the residence. Standard of Review [6] To decide whether a verdict is unreasonable, an appellate court must determine whether the verdict is one that aproperly instructed jury or a judge could reasonably have rendered (see R v Yebes, (SCC), [1987] 2 SCR 168; andR v Biniaris, 2000 SCC 15).

A verdict may be unreasonable if the trial judge draws an inference or makes a finding of fact essential tothe verdict that is contradicted by the evidence from which it was drawn or makes a finding of fact that is demonstrably incompatiblewith evidence that is neither contradicted by other evidence nor rejected by the trial judge. [7] An unreasonable verdict appeal requires an appellate court to “re-examine and to some extent reweigh and considerthe effect of the evidence.

This process will be the same whether the case is based on circumstantial or direct evidence” (R v Sinclair,2011 SCC 40 at para 79 quoting Yebes at p 186). In reviewing the reasonableness of a verdict, an appellate court must defer to the trial

judge’s evaluation of the evidence and findings of credibility (see R v W (R), (SCC), [1992] 2 SCR 122 at 131). Absenta palpable and overriding error by the trial judge, his or her factual findings should be respected (see R v Gagnon, 2006 SCC 17 at paras19-20). Analysis and Decision [8] Spence and the two youths were called as witnesses at the trial, as well as a friend of the accused who had acted as a“jailhouse informant” to the RCMP. It was obvious that they were reluctant to testify, to say the least, and gave contradictory evidence.

The trial judge treated all four witnesses as unsavoury and gave himself a strong Vetrovec caution (see Vetrovec v The Queen, (SCC), [1982] 1 SCR 811). [9] It is clear that the evidence of the witnesses was at times contradictory to each other. It is clear that the witnessestestified with reluctance. The trial judge was obviously alive to this and, we agree with the Crown, that he had good reason not to accepteverything that was said.

But what the trial judge did do was consider the entire context in which this series of events occurred. [10] The trial judge carefully reviewed the evidence of all of the witnesses. He delivered lengthy and extremely detailedreasons, accepting some of each of the co-accused’s evidence, but not all. He evaluated the evidence as a whole in a holistic andcumulative fashion rather than in the piecemeal basis the accused urges us to adopt. He explained why he accepted some of the evidenceof each of the witnesses (but not all of it) and the basis for his factual findings.

He was entitled to accept all, some or none of eachwitness’s evidence. [11] The trial judge found that Spence did not want the victim to go to the authorities and, when one of the co-accusedsuggested that an ambulance should be called, he told the group as a whole that, instead, they would “finish him off”. At that point, allfour of them committed to a plan to “finish him off” and carried the still-struggling victim into the bush where one of them cut histhroat.

Besides the struggling, there was evidence that the victim’s blood was “squirting” when his throat was cut, again confirming thathe was still alive when taken into the bush. [12] There was significant evidence to support the inferences that the accused was aware of the plan to take the victim intothe bush to kill him and that the victim was struggling while being carried to the bush. As the trial judge concluded: It was clear to all who were present that [the victim] was alive and [he] would be killed. [The accused and the two youth co-accused] allknew Spence was going to kill [the victim].

They assisted him in committing a planned and deliberate murder by dragging the strugglingvictim far from the home, deep into the woods so he could be killed under the cover of darkness. All of this evidence taken togetherconvinces me beyond a reasonable doubt that [the accused] is a party to the first-degree murder of [the victim]. [13] The verdict was supported by the evidence taken as a whole and was not plainly contradicted or demonstrablyincompatible with the evidence that he accepted. The trial judge’s decision is entitled to deference. [14] The appeal is dismissed. JA JA JA