R v Linklater, 2021 MBCA 65

Citation: R v Linklater, 2021 MBCA 65 Date: 20210624 Docket: AR19-30-09279 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice William J. Burnett Madam Justice Janice L. leMaistre BETWEEN : ) Z. M. Jones HER MAJESTY THE QUEEN ) for the Appellant ) (via videoconference) ) Respondent ) R. D.

Lagimodière ) for the Respondent - and - ) (via videoconference) ) BILLY JOE LINKLATER ) Appeal heard: ) January 18, 2021 ) (Accused) Appellant ) Judgment delivered: ) June 24, 2021 COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , this appeal was heard remotely by videoconference. LEMAISTRE JA Introduction [ 1 ] The accused and Lorie Knott (the co-accused) were jointly charged with second degree murder for stabbing David Sanderson (the victim) to death.

After a trial by a judge and jury, the accused was convicted and the co-accused was acquitted. The accused was sentenced to life imprisonment with no chance of parole for 12 years. [ 2 ] The accused appeals his conviction. He also appeals his 12-year period of parole ineligibility. [ 3 ] The accused argues that the trial was unfair because of errors made by the trial judge. Specifically, he says that the trial judge made errors regarding the admissibility of evidence, severance and whether the accused could be cross-examined on his criminal record, as well as in his jury instructions.

He seeks a new trial. [ 4 ] On the sentence appeal, the accused says that the trial judge failed to give him the opportunity to address the Court and imposed an unreasonable sentence. If his conviction appeal is dismissed, the accused seeks a reduction in his period of parole ineligibility from 12 years to 10. [ 5 ] For the reasons that follow, I would dismiss both the conviction and sentence appeals. Background [ 6 ] On June 22, 2016 at 3:34 a.m., the Winnipeg Fire Paramedic Service responded to a 911 call about a fire at the victim’s residence (the 911 call).

Firefighters found heavy smoke in the residence, but no active fire. They also found the victim’s body slumped in a chair. There was blood on the victim, the floor and the chair. No one else was in the residence. [ 7 ] The pathologist who performed the autopsy determined that the victim died prior to the fire as a result of significant

blood loss due to his injuries. His injuries included 33 sharp-force wounds to his face, back and arms, which were either “slash” or“stab” type injuries caused by a knife. [8] The police spoke to the victim’s neighbours and family members, and canvassed the area for video cameras in aneffort to retrace his steps and gather information about who he was with prior to his death. As a result of their investigation, theydiscovered videos of the victim from surveillance cameras at various locations prior to his death (the surveillance videos).

Thesurveillance videos showed the victim with two people, a male and a female, at the Northern Hotel approximately two to three hoursprior to the 911 call. The surveillance videos also showed these same two individuals in the vicinity of the victim’s residence after the911 call. [9] In an effort to identify the individuals with the victim in the surveillance videos, the police issued three bulletins (thebulletins). The bulletins included a brief description of the male and female and photographs taken from the surveillance videos.

One ofthe bulletins also included a video clip from the surveillance videos. [10] Two police officers who had seen the bulletins and attended shift briefings where they were discussed recognized theaccused walking down the street with the co-accused and detained them. While the accused was detained, the police obtained his name,date of birth and address.

After “a conclusive comparison” of the accused to the individuals in the bulletins and, as a result of additionalinformation linking them to the scene of the murder, both the accused and the co-accused were arrested for second degree murder. [11] After arresting the accused, the police obtained a search warrant for his residence where they discovered and seized,among other things, a plaid shirt and a baseball cap.

They also seized his glasses. [12] Prior to his trial, the accused brought a number of motions, including a motion for severance, and motions to excludethe surveillance videos and evidence seized pursuant to the search warrant. He also sought to exclude all evidence regarding the fire atthe victim’s residence (the fire evidence) because there was no evidence that he started it. During the trial, the accused brought motionsfor mistrials and an application to prohibit cross-examination on his criminal record (the Corbett application (see R v Corbett, (SCC), [1988] 1 SCR 670)).

He also renewed his motion for severance. The motions were all dismissed by the trial judge. [13] The co-accused testified in her own defence. She confirmed that the surveillance videos showed her and the accusedwith the victim prior to his death and near his residence after the 911 call. She said that the three of them drank together at the NorthernHotel, went walking and drinking, and then went to the victim’s residence. She said that, while they were at the victim’s residence, sheleft the room briefly to go to the bathroom and, when she returned, she found the victim slumped in a chair with blood on him.

She leftthe residence and the accused followed. She denied killing the victim. [14] The surveillance videos corroborated the co-accused’s testimony that she and the accused were together with the victimat the Northern Hotel; that they left together walking towards the victim’s residence; and that the accused and the co-accused were nearthe victim’s residence after the 911 call.

The surveillance videos also showed the accused wearing a plaid shirt and a baseball capsimilar to the items that were seized from his residence. [15] The jury convicted the accused of second degree murder and acquitted the co-accused. [16] At the sentencing hearing, the Crown sought to raise the period of parole ineligibility from the minimum of 10 years to20 years. The accused argued that his parole ineligibility should be set at 10 years. The trial judge sentenced the accused to lifeimprisonment with no parole for 12 years.

Grounds of Appeal [17] The accused raises six issues on the conviction appeal: 1) whether the trial judge erred by failing to find that the accused’s rights under

section 9 of the Canadian Charter of Rights andFreedoms (the Charter) were infringed; 2) whether the trial judge erred in his ruling on the admissibility of the surveillance videos; 3) whether the trial judge erred by admitting the fire evidence and not ordering a mistrial; 4) whether the trial judge erred by dismissing the severance motion; 5) whether the trial judge erred by dismissing the Corbett application and the renewed motion for severance; and 6) whether the trial judge erred in instructing the jury. [18] The accused’s grounds on the sentence appeal are that the trial judge erred by making findings about his lack ofremorse without giving him the opportunity to address the Court and that the sentence imposed was unreasonable.

Analysis Did the Trial Judge Err by Failing to Find That the Accused’s

Section 9 Charter Rights Were Infringed? [19] When the police officers recognized the accused and the co-accused as the “persons of interest” from the bulletins andbriefings, they immediately detained them for a “murder investigation” and provided them with their Charter rights and police caution. Two minutes later, the officers put the accused in the back of their cruiser car, requested back-up to assist with the co-accused andinformed their supervisor that they had detained both the accused and the co-accused. They asked the accused his name, date of birthand address, which he provided.

The officers’ supervisor sent a street supervisor to meet them. Shortly after arriving, the streetsupervisor contacted the homicide supervisor who instructed the officers to arrest both the accused and the co-accused. Twenty-five

minutes after his initial detention, the accused was arrested. [ 20 ] The police used the address provided by the accused to obtain a search warrant for his residence, where they found and seized the plaid shirt and the baseball cap. [ 21 ] On the voir dire , the accused argued that his address, the plaid shirt and the baseball cap were obtained following violations of his Charter rights. He asserted breaches of

section 8 (the right to be secure against unreasonable search or seizure),

section 9 (the right not to be arbitrarily detained),

section 10(a) (the right to be informed promptly of the reason for arrest or detention) and

section 10(b) (the right to retain and instruct counsel without delay) of the Charter . He argued that the police obtained his address during an unlawful detention and in response to questions asked before he had the opportunity to speak to a lawyer. He contended that, without the address, the search warrant would not have issued and, without the search warrant, the seizure of the plaid shirt and the baseball cap were unlawful. He sought exclusion of this evidence pursuant to section 24(2) of the Charter . [ 22 ] The trial judge concluded that the detention and the arrest were both lawful and did not breach the accused’s

section 9 Charter rights. He also concluded that there was no breach of the accused’s rights under sections 8 , 10(

a) and 10(

b) of the Charter . Nonetheless, the trial judge conducted an analysis pursuant to section 24(2) of the Charter and determined that, if there had been breaches of sections 8 , 9, 10(

a) and 10(b) , admitting the evidence would not have brought the administration of justice into disrepute. [ 23 ] The accused has not appealed the trial judge’s findings regarding sections 8 , 10(

a) and 10(

b) of the Charter and does not take issue with his factual findings. Rather, he argues that the trial judge incorrectly applied the law to the facts in finding that the detention and the arrest did not breach

section 9 of the Charter and, therefore, were lawful. Specifically, he argues that the police did not have the necessary grounds to detain or arrest him and that the intention of the police when they detained him, to ascertain his identity, was unlawful.

The accused also argues that the trial judge erred when he concluded that, in the event that he had found a breach of the accused’s Charter rights, he would not have excluded the evidence pursuant to a section 24(2) analysis. [ 24 ] The standard of review applicable to a Charter finding on an appeal by an accused was neatly summarized by Cameron JA in R v Richard (DR) et al , 2013 MBCA 105 (at para 48 ): . . . First, the court reviews the decision to ensure that the correct legal principles were stated and that there was no misdirection in their application. The standard of review is correctness.

Next, the evidentiary foundation forming the basis of the judge’s decision is reviewed to see if there was an error. At this stage, deference is applied and, absent palpable and overriding error, the facts as found by the judge should not be disturbed. The appellate court then examines the application of the legal principles to the facts of the case to see if the facts, as found by the judge, satisfy the legal test. In criminal law, the standard at this stage is correctness.

See also R v Farrah (D) , 2011 MBCA 49 at para 7 . [ 25 ] In R v Le , 2019 SCC 34 , Brown and Martin JJ explained the police power to detain for investigative purposes (at para 131): . . . This power allows the police to detain an individual for investigative purposes where, in the totality of circumstances, there are reasonable grounds to suspect a clear nexus between the individual and a recent or still unfolding crime ( Mann [ R v Mann , 2004 SCC 52 ], at paras. 34 and 45). . . . [ 26 ] I am not persuaded that the trial judge erred when he found that the detention was lawful.

The trial judge carefully reviewed the information known to the officers when they recognized the accused from the bulletins and briefings, as well as their personal observations and reasons for detaining him. He also considered whether the officers’ suspicions that the accused was one of the individuals sought in connection with the murder investigation were objectively reasonable.

The trial judge concluded that the officers had “more than a reasonable suspicion that [the accused and the co-accused] matched the information which had been given to them in the bulletins and at police briefings” and that “their detention of them was fully justified.” [ 27 ] In my view, the detention prior to the accused’s arrest was justified in the context of an investigation into a recent murder and the accused’s resemblance to a person of interest in the investigation. The police were investigating a serious offence.

The bulletins and briefings were clear that the police were attempting to identify the male and female who were with the victim in the surveillance videos and that they were “persons of interest in relation to the murder”. Anyone with information about the “persons of interest” was to notify the homicide unit. [ 28 ] As a result of the bulletins and briefings, two police officers recognized these “persons of interest” as they were walking down the street. The officers detained them on site for a relatively short duration until they determined that there were grounds for an arrest.

This is how police investigations are done. There was nothing unusual let alone inappropriate or unjustified with the detention and arrest. There is no merit to the accused’s argument that the police did not have the necessary grounds to detain or arrest him. [ 29 ] The accused’s address used by police in their information to obtain the search warrant was provided by the accused after he was lawfully detained, but before he was arrested. In this scenario, I fail to see the relevance of the lawfulness of the arrest to the admissibility of the items seized pursuant to the search warrant.

[30] In light of my conclusion that the detention was lawful, I need not address the accused’s argument regarding the trialjudge’s section 24(2) analysis. Regardless, I see no error warranting appellate intervention and, therefore, his determination is owedconsiderable deference (see R v Côté, 2011 SCC 46 at para 44; see also R v Grant, 2009 SCC 32 at para 86; and Farrah at para 7). [31] I would dismiss this ground of appeal.

Did the Trial Judge Err in His Ruling on the Admissibility of the Surveillance Videos? [32] The Crown sought to admit into evidence a video compilation containing excerpts from the surveillance videosgathered by the police during their investigation of the whereabouts of the victim prior to his death (the timeline video). The timelinevideo had been edited by the police to blur the faces of people unrelated to the investigation.

It also had “add-ons”, including narrativeabout the location of the surveillance videos and a description of what could be seen in it. [33] The accused opposed the admission of the timeline video on the basis that it created a distorted picture and that the“add-ons” and blurring of faces were inappropriate. The accused also opposed the admission of the surveillance videos. He argued thatthe quality of the surveillance videos and the timeline video was poor; that they excluded other people and events on the street at thetime; and that they were unreliable regarding the time they were recorded.

The Crown conceded that the add-ons and blurring of facesshould be removed from the timeline video. [34] In light of the Crown’s concession and the fast-approaching trial date, the trial judge focussed on “find[ing] amechanism which work[ed] for the Crown and [was] fair to the accused.” He concluded that the surveillance videos, not the timelinevideo, were “substantially an accurate and fair representation of the locations shown” and were admissible.

He also concluded that anysurveillance videos not tendered by the Crown could be tendered by the accused and that it would be up to the jury to interpret them anddecide if they “fairly represent[ed] the situation.” [35] On the appeal, the accused asserts that, while the trial judge was right to exclude the timeline video, he should not haveadmitted the surveillance videos. He raises the same arguments regarding the admissibility of the surveillance videos that were madeduring the voir dire regarding the timeline video.

Specifically, he asserts that the surveillance videos were more prejudicial thanprobative because their quality was insufficient to permit identification of the individuals shown. He also says that the Crown did nottender surveillance videos showing that there were other people in the area at the relevant time. [36] Absent an error in law or a misapprehension of material evidence, the trial judge’s decision regarding the admissibilityof evidence is entitled to deference (see R v Herntier, 2020 MBCA 95 at para 217; see also R v Tymchyshyn (

C) et al, 2016 MBCA 73 atpara 31). [37] Video evidence that has not been altered and depicts the scene of a crime is relevant evidence and, therefore, admissible,and is to be weighed by the trier of fact (see R v Nikolovski, (SCC), [1996] 3 SCR 1197 at paras 28-31). [38] I see no error warranting appellate intervention in the trial judge’s decision to admit the surveillance videos. Heacknowledged that the quality of the surveillance videos varied.

However, he also considered evidence from a police officer on the voirdire that “the video fairly depicted the area seen in the video.” Moreover, the quality of the recording is a matter of weight for the jury(see Nikolovski at paras 22-23, 28-29; see also R v Osman, 2021 ABCA 114 at para 24).

The trial judge also pointed out that theaccused’s lawyer (not counsel on the appeal) (trial lawyer) could place additional surveillance videos before the jury, as he did on thevoir dire, allowing the jury “the ability to decide on its own whether [the surveillance videos] submitted by the Crown fairlyrepresent[ed] the situation.” [39] In my view, the trial judge considered the appropriate law and was entitled to conclude on the evidence that thesurveillance videos were admissible. His decision is, therefore, entitled to deference.

I would dismiss this ground of appeal. [40] During oral argument on this ground of appeal at the appeal hearing, counsel for the accused alleged that the trial judgewrongly admitted recognition evidence from police officers identifying the accused in the surveillance videos. She did not point towhere in the record this evidence could be found. Not only have I been unable to find this testimony in the trial transcripts, but therecord is clear that the Crown was not seeking to tender recognition evidence.

Furthermore, when an officer gave recognition evidenceregarding the victim, the trial judge immediately instructed the jury to disregard his opinion. Did the Trial Judge Err by Allowing Testimony Regarding the Fire and Not Ordering a Mistrial? [41] The accused brought a pre-trial motion to exclude the fire evidence.

He argued that the fire evidence was irrelevant tothe second degree murder charge and that, because there was no evidence he started the fire, it was bad character evidence. [42] The trial judge found that the fire evidence was part of the narrative and that it would be difficult for witnesses to testifywithout referring to it.

However, in light of the Crown’s position that it could not prove the fire was set deliberately by the accused, thetrial judge directed the Crown not to “ask any of its witnesses whether they formed an opinion that the accused set the fire” and, in hisopening remarks, cautioned the jury that the fire evidence could not be used to determine the accused’s guilt on the second degreemurder charge. [43] After the co-accused indicated an intention to testify, it was agreed that her lawyer and the accused’s trial lawyer couldask her about the fire, but the Crown would need leave to do so.

The co-accused said nothing about the fire during direct examination. [44] After the accused’s trial lawyer elicited evidence from the co-accused that she saw the accused start the fire, he broughta motion for a mistrial. The trial judge concluded that a jury instruction regarding this evidence would suffice and refused to grant amistrial. He also revisited his earlier ruling and permitted the Crown to ask the co-accused questions about her testimony that she sawthe accused start the fire.

During cross-examination by the Crown, the co-accused said she did not see the fire start and was not in theresidence when it started burning.

[45] On the appeal, the accused argues that the trial judge erred by allowing the testimony about the fire and by not orderinga mistrial. The accused does not allege that the trial judge made any error in law or in fact regarding his ruling on the fire evidence. Rather, he argues that the co-accused’s testimony was prejudicial and rendered the trial unfair. He asserts that, despite the fact that histrial lawyer elicited the testimony, the trial judge had a duty to keep this evidence from the jury. [46] As already stated, the trial judge’s decision regarding the admissibility of evidence is entitled to deference.

His refusalto grant a mistrial is also a discretionary decision entitled to deference (see R v Henderson (WE), 2012 MBCA 93 at para 98, leave toappeal to SCC refused, 35125 (11 April 2013); see also Tymchyshyn at para 77). As explained by Chartier CJM in R v Clarke (KJ), 2013MBCA 98 (at para 3): The decision to grant a mistrial is an exercise in judicial discretion and is only to be given in the clearest of cases where no other remedyis reasonably available to prevent a miscarriage of justice (R. v. Burke, 2002 SCC 55 at para. 75, [2002] 2 S.C.R. 857).

Deference isowed to the trial judge’s decision to cure any potential prejudice by proper instructions to the jury (R. v. Grant (I.M.), 2009 MBCA 9 atpara. 69, 236 Man.R. (2d) 54). [47] I see no error warranting appellate intervention regarding the trial judge’s ruling on the fire evidence. Nor is this one ofthose clearest of cases requiring a mistrial. During cross-examination by the accused’s trial lawyer, the co-accused blurted out that shesaw the accused start the fire and then provided additional details upon further questioning by him.

In my view, the trial judge’sdecision to provide a specific jury instruction to disregard this evidence was a reasonable remedy to prevent a miscarriage of justice, inthe circumstances. When considered in light of his caution during his opening remarks that the fire evidence could not be used todetermine the accused’s guilt on the second degree murder charge, his additional clear and concise instructions to the jury cured anypotential prejudice.

His instructions were: . . . . . . [The accused] and [the co-accused] are not charged with causing this fire. [The co-accused] said in answer to a question by [theCrown] that she did not see the fire start. In the absence of strong evidence as to its origin, you are not allowed to speculate about thecircumstances of the fire, how it occurred, and whether or not it was accidental or otherwise.

That fire cannot be used by you against[the accused] or [the co-accused] when you consider whether or not either accused is guilty of second degree murder. . . . [48] I am not persuaded that the circumstances warranted a mistrial or that the trial judge’s failure to grant a mistrialrendered the proceedings unfair. I would dismiss this ground of appeal. Did the Trial Judge Err in Dismissing the Severance Motion? [49] The accused brought a pre-trial motion to sever his trial from that of the co-accused due to the prospect of antagonisticdefences. [50] The trial judge dismissed the accused’s motion.

In doing so, he cited the general rule that “those who are engaged in ajoint criminal venture should be tried together” and stated that antagonistic defences have “long been ruled out as a reason forseverance.” [51] The accused appeals the trial judge’s conclusion that the prospect of antagonistic defences did not warrant severance. He also asserts that the trial judge’s refusal to sever his trial from that of the co-accused resulted in an injustice. In particular, he saysthat the co-accused benefited from the admission of an agreed statement of facts which had the effect of bolstering her credibility.

Hecontends that he was disadvantaged at the trial because the only logical inference to be drawn from the co-accused’s testimony was thathe committed the murder. Finally, he argues that the failure to sever resulted in disparate outcomes. [52] Assuming the trial judge acted judicially, his ruling on severance is entitled to deference unless it resulted in aninjustice. Whether a trial judge acted judicially involves an inquiry into the circumstances prevailing at the time the ruling was made. Aruling on severance will be unjudicial if the trial judge erred on a question of law or made an unreasonable decision.

Whether a trialjudge’s ruling on severance resulted in an injustice involves an inquiry into the entire trial and the potential prejudicial effect of theseverance ruling on the accused (see R v Last, 2009 SCC 45 at paras 13-18, 21; see also R v JMB, 2019 MBCA 14 at para 21). [53] In R v Crawford, (SCC), [1995] 1 SCR 858, Sopinka J explained the policy reasons behind joint trials(at para 30): There exist, however, strong policy reasons for accused persons charged with offences arising out of the same event or series of events tobe tried jointly.

The policy reasons apply with equal or greater force when each accused blames the other or others, a situation which is

graphically labelled a “cut-throat defence”. Separate trials in these situations create a risk of inconsistent verdicts. The policy against separate trials is summarized by Elliott, [DW Elliot, “Cut Throat Tactics: The Freedom of an Accused to Prejudice a Co-Accused”

(1991) Crim L Rev 5], at p. 17, as follows: There is a dilemma here which could only be avoided by separate trials. But separate trials will not be countenanced because, quite apart from the extra cost and delay involved, it is undeniable that the full truth about an incident is much more likely to emerge if every alleged participant gives his account on one occasion. If each alleged participant is tried separately, there are obvious and severe difficulties in arranging for this to happen without granting one of them immunity.

In view of this, in all but exceptional cases, joint trial will be resorted to, despite the double bind inevitably involved. [emphasis added] Did the Trial Judge Act Judicially in Refusing Severance? [ 54 ] I am not persuaded that, when the trial judge refused severance based on the accused’s assertion that there was a possibility of antagonistic defences, he erred in law or his decision was unreasonable. He correctly noted that the general rule favours a joint trial and that the existence of antagonistic defences is not in itself a reason for severance (see R v Kematch (SD) et al , 2010 MBCA 18 at paras 22-23 ).

He also considered the fact that, at that point, there was no indication of antagonistic defences being raised. In my view, the trial judge appropriately considered and weighed the relevant factors and his decision was reasonable on the record. Did the Failure to Sever Result in an Injustice? [ 55 ] Nor am I persuaded that the trial judge’s decision resulted in an injustice. [ 56 ] At the end of its case, the Crown filed an agreed statement of facts in its case against the co-accused. The agreed statement of facts contained admissions from the co-accused’s police statement.

In her police statement, the co-accused denied that the accused committed the murder. When she testified at the trial, while she did not directly implicate him in the murder, her evidence raised this as a compelling inference. [ 57 ] The accused’s submission that the admission of the agreed statement of facts bolstered the co-accused’s credibility is unconvincing in the circumstances of this case. The accused’s trial lawyer cross-examined the co-accused on inconsistencies in her testimony, as well as inconsistencies between her testimony and her police statement.

In his closing address, he pointed out these inconsistencies and repeatedly called her a liar. The parties did not argue that the co-accused’s police statement was a prior consistent statement.

Furthermore, the trial judge provided the jury with clear instructions regarding credibility assessment and told the jury that they could accept all, some or none of what the co-accused said. [ 58 ] In light of the policy reasons favouring joint trials, in my view, the emergence of a cut-throat defence during the trial did not warrant severance. [ 59 ] Moreover, it was open to the jury, on the evidence, to find the accused guilty and the co-accused not guilty (see R v Pittiman , 2006 SCC 9 at para 10 ).

Conclusion [ 60 ] In my view, considering the trial in its entirety, the potential prejudicial effect of the severance ruling on the accused and the policy reasons favouring joint trials, the failure to sever did not result in an injustice. I would dismiss this ground of appeal. Did the Trial Judge Err by Dismissing the Corbett Application and the Renewed Motion for Severance? [ 61 ] The accused indicated an intention to testify at the trial. Before doing so, he brought the Corbett application to prevent cross-examination on his prior criminal record.

His prior record contains convictions for public mischief; break, enter and commit robbery; and robbery, as well as convictions as a youth for failing to comply with an undertaking (two counts), theft and mischief.

His most recent adult conviction is for carrying a concealed weapon from May 2016. [ 62 ] During his submissions, the accused’s trial lawyer stated that, if the Corbett application was dismissed, he would renew his motion for severance (the renewed severance motion). [ 63 ] Section 12(1) of the Canada Evidence Act , RSC 1985, c C-5 , permits the Crown to cross-examine accused persons on their criminal records. However, if the prejudicial effect of the prior convictions outweighs the probative value, a trial judge may limit the cross-examination.

Restrictions that apply to the Crown may not apply to a co-accused (see Crawford at para 27 ). [ 64 ] The trial judge considered the applicable legal principles in the context of a murder committed with a knife, including the following: • an accused’s criminal record is a factor in assessing the accused’s credibility “because the possession of a criminal record may be a symptom of a person’s trustworthiness”; • the criminal record should not be used to engage in propensity reasoning;

• where the danger of propensity reasoning outweighs the probative value of the criminal record, a trial judge has the discretionto prohibit reference to all or part of the record; and • the rights of the accused and the co-accused need to be balanced as both accused are entitled to a fair trial and have a right tomake full answer and defence. [65] The trial judge determined that the only conviction on the accused’s criminal record warranting “special consideration”was the conviction for carrying a concealed weapon. [66] Ultimately, he concluded that it would be unfair to “hide” the accused’s criminal record from the jury and that theaccused could be cross-examined on its entirety.

Importantly, the trial judge also concluded that the jury would be instructed that the“evidence of the criminal record may be used to raise a doubt in the case of [the co-accused], but [could not] be used to demonstratepropensity evidence in the case of [the accused].” [67] As for the renewed severance motion, the trial judge stated: . . . [Y]ou may have gathered, by some of the decisions that I have made, that I have a great deal of confidence in a jury, and that theirability to decide what use they can make of some evidence, and what use they can make of other evidence.

I agree that there should be aparticular instruction about the criminal record evidence, and I will -- on that basis, I’m prepared to carry on with the proceeding as it iscurrently constituted, with both accused remaining as charged parties.

The motion for severance is, again, dismissed. [68] After the Corbett application and the renewed severance motion were dismissed, the accused declined to call evidence. [69] The accused argues that permitting cross-examination on his criminal record created an injustice because the recordwas more prejudicial than probative and raised a danger that the jury would use propensity reasoning.

In particular, he says that the onlypossible use of the prior conviction for carrying a concealed weapon was to suggest that, since the accused carried a knife in the past, hewas more likely to have carried and used a knife on the night of the murder. [70] The accused also alleges that the trial judge curtailed his right to full answer and defence and favoured the co-accused’sright over his right.

Finally, he argues that the trial judge’s proposed instruction to the jury was insufficient to remedy the injustice doneby permitting cross-examination and, therefore, the renewed severance motion ought to have been granted. [71] The trial judge’s decision on the Corbett application is a discretionary decision owed deference absent an error in law orprinciple, or where the decision is so clearly wrong as to amount to an injustice (see R v Oigg, 2007 MBCA 34 at para 3, leave to appealto SCC refused, 32044 (23 August 2007)).

His decision that any potential prejudice could be cured by proper jury instructions is alsoowed deference (see R v Grant (IM), 2009 MBCA 9 at para 69, leave to appeal to SCC refused, 33065 (11 June 2009)). As I havealready stated, the trial judge’s decision on severance is entitled to deference as well. [72] In Corbett, Dickson CJC stated that, generally, the probative value of an accused’s prior criminal record outweighs theprejudicial effect and that juries should be trusted to decide cases as instructed by the judge on the basis of all relevant evidence. Heexplained this in the following way (at p 692): . . .

In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. Thisline of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt orinnocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthymeasure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge.

Jury directions are oftenlong and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard withgrave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with acareful explanation as to any limitations on the use to which they may put that information.

So long as the jury is given a clearinstruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross-examination, it can beargued that the risk of improper use is outweighed by the much more serious risk of error should the jury be forced to decide the issue inthe dark. [73] Factors to be considered when determining the probative value of a previous conviction include the nature of theprevious conviction; its similarity to the offence being prosecuted; its remoteness to the present offence; and the fairness of limitingcross-examination where the accused has attacked the credibility of a Crown witness and the case involves a credibility contest betweenthe accused and that witness (see Corbett at pp 740-44). [74] In cases involving a credibility contest, there is a distinction between attempts by the defence to meet the prosecution’sevidence that incidentally impact on the character of Crown witnesses and attacks on their character (see R v Batte (2000), (ON CA), 145 CCC (3d) 498 at para 46 (Ont CA)).

[75] In this case, the cross-examination of the co-accused by the accused’s trial lawyer was designed to suggest that shecommitted the murder and that she was lying about the accused’s involvement to cover up her involvement.

The trial judge commentedon the nature of the cross-examination and noted that the accused’s trial lawyer confronted the co-accused with “her previous policestatement, her private journal, and, to some extent, her lifestyle” and that he brought out “other personal facts about [her].” The trialjudge also noted that he questioned her about whether she “put a knife in her backpack.” [76] In addition, the accused’s trial lawyer questioned the co-accused about her lies, her addiction to drugs and her history of“cutt[ing].” He asked her whether she was “the type of person that’s going to [lie]”; whether she had been in a fight earlier that week;and whether she likes to carry a sharp knife in case of being attacked. [77] In my view, it was open to the trial judge to conclude that the accused attacked the co-accused’s credibility andcharacter and, therefore, it would have been appropriate to allow cross-examination on the accused’s criminal record, if he had testified.

The trial judge was alive to the potential for the jury to use propensity reasoning regarding the prior conviction for carrying a concealedweapon, but appropriately balanced this risk by concluding that an instruction to the jury would address any potential prejudice andensure a fair trial. [78] I am also of the view that the trial judge did not err in the exercise of his discretion when he dismissed the renewedseverance motion or in balancing the right to full answer and defence of the accused and the co-accused. [79] I would dismiss this ground of appeal.

Did the Trial Judge Err in Instructing the Jury? [80] The accused alleges that the trial judge erred when instructing the jury regarding the co-accused’s post-offence conduct,the absence of blood on the accused’s clothing and the co-accused’s failure to explain blood on her t-shirt. He also alleges that the trialjudge erred when instructing the jury on third-party suspects and credibility. His main complaint is that the trial judge’s charge to thejury was unfair to the accused because it favoured the co-accused. [81] Appellate review of jury instructions engages a functional approach.

The reviewing court considers the instructions intheir entirety and in the context of the trial to determine whether the overall effect of the charge is that the jury was properly and fairlyinstructed. The standard for review is adequacy, not perfection (see R v Hall, 2018 MBCA 122 at para 143; see also Herntier atparas 279-82). [82] In Hall, Mainella JA explained the law on jury instructions in the following way (at para 144): Jury instructions must be “comprehensive and comprehensible” (R v Rodgerson, 2015 SCC 38 at para 50).

The instructions should be in“plain, understandable language” as to the relevant law, the real issues, the positions of the parties and the material evidence for the juryto consider in resolving those issues (R v Jack (1993), (SCC), 90 CCC (3d) 353 at 362 (Man CA), aff’d [1994] 2 SCR310; see also Azoulay [Azoulay v The Queen, (SCC), [1952] 2 SCR 495] at p 497; R v Cooper, (SCC),[1993] 1 SCR 146 at 163; and R v Daley, 2007 SCC 53 at para 29).

Trial judges are to be afforded “considerable latitude” as to how bestthey should review and relate the evidence (R v PJB, 2012 ONCA 730 at para 46; see also R v Hay, 2013 SCC 61 at paras 47-48; andAraya [R v Araya, 2015 SCC 11] at para 39).

The Co-Accused’s Post-Offence Conduct, the Absence of Blood on the Accused’s Clothing and the Co-Accused’s Failure to ExplainBlood on Her T-Shirt [83] The accused’s first contention is that, in his instructions to the jury, the trial judge should have pointed out that the co-accused failed to call for help for the victim, the accused had no blood on his clothing and the co-accused did not explain how she gotblood on her t-shirt. He asserts that the trial judge’s failure to include these facts in his charge favoured the co-accused and was unfair tothe accused.

I disagree. [84] After the accused declined to call evidence, the trial judge held a pre-charge conference (the first pre-chargeconference) during which he discussed with the parties their closing submissions and the jury charge.

Before instructing the jury, thetrial judge provided a copy of his draft charge to counsel and held a second pre-charge conference during which he heard furthersubmissions regarding the jury instructions (the second pre-charge conference). [85] During the second pre-charge conference, the accused’s trial lawyer asked the trial judge to include in his instructionsto the jury the fact that the co-accused left the victim’s residence, when it was apparent the victim was injured, without calling for help. The trial judge declined to do so and explained why.

He pointed out that this omission was not raised at the first pre-charge conference,that the co-accused’s lawyer was unaware that this would be raised when he made his closing submissions and that this would be unfair. [86] The accused’s assertion that the trial judge failed to instruct the jury that the accused had no blood on his clothing issimply not supported by the record. On the night of the murder, the accused was wearing a plaid shirt, a baseball cap and glasses. In hischarge to the jury, the trial judge explained that the police sent certain items for DNA analysis.

He pointed out that the police “foundnothing on the plaid shirt, nor the baseball cap, nor the glasses which justified sending them for analysis.” [87] Moreover, the accused’s trial lawyer did not ask the trial judge to include in his instructions the absence of blood on theaccused’s clothing and the lack of any explanation from the co-accused about the blood on her t-shirt at the trial. While this is notdeterminative of the issue on appeal, when the jury instructions are read as a whole in the context of the issues raised, I am satisfied thatthe jury was properly and fairly instructed on post-offence conduct.

Third-Party Suspects [ 88 ] In her statement to police, the co-accused said that there were other people at the victim’s residence when she and the accused were there prior to his death. She resiled from this testimony at trial. Her evidence was that she and the accused were at the victim’s residence.

She went into the washroom briefly and, when she emerged, the victim was slumped over in a chair with blood on his face. [ 89 ] After the trial judge finished charging the jury, the accused’s trial lawyer complained that the jury instructions left out the possibility that someone else could have committed the murder, with the result being that the jury had been misled. [ 90 ] The trial judge declined to provide this additional instruction to the jury.

He found that the accused’s trial lawyer had raised “[t]he question of whether someone else may have committed [the murder] either with or without the assistance of either of the accused” in his submissions and that the jury instructions did not foreclose that suggestion. [ 91 ] A functional review of the jury instructions does not support the accused’s assertion that the jury was misled. The jury was never led to believe that the murder could only have been committed by one of the accused, and the accused’s theory that others were in the residence was explained to them.

In addition, the jury was told that, without the evidence of the co-accused, there was very little evidence that put the accused at the victim’s residence. Credibility of Witnesses [ 92 ] Finally, I disagree with the accused’s assertion that the jury was not “remind[ed]” to carefully scrutinize the co- accused’s credibility. [ 93 ] At the beginning of the trial, the trial judge provided the jury with general instructions regarding credibility.

During his charge, he reminded the jury about his earlier instructions and provided them with the following specific instructions regarding the co- accused’s credibility: . . . One of the first things that you need to do is determine whether you can rely on [the co-accused’s] evidence . . . Your assessment of [the co-accused’s] evidence is critical. . . . . . . . . . You should consider [the co-accused’s] testimony with particular care because there is a danger that she may have been more concerned about protecting herself than about telling you the truth. . . .

You should be careful to ensure that she is telling the truth. . . . . . . . . . On her cross-examination she was shown to have told a number of things to the police that were different from what she said at trial. . . . . . . There were also things that she told for the first time at trial . . . . . . [ 94 ] The trial judge told the jury to look for evidence that corroborated or contradicted the co-accused’s evidence and to consider her evidence in the context of all of the evidence.

The trial judge also explained how to assess the surveillance videos because of issues with the “veracity” of the co-accused’s evidence, as well as differences between her testimony and her police statement.

[95] In my view, the record demonstrates that the trial judge clearly instructed the jury about the need to carefully scrutinizethe co-accused’s credibility. Conclusion [96] I agree with the Crown that the jury instructions were “carefully crafted to instruct the jury on the relevant issues”. Inmy view, a functional approach, considering the jury instructions as a whole and in the context of the trial, demonstrates that the trialjudge was aware of the importance of balancing the rights of both the accused and the co-accused and that the jury was properly andfairly instructed.

I would dismiss this ground of appeal. Sentence Appeal [97] The penalty for second degree murder is life imprisonment without eligibility of parole for at least 10 years and nomore than 25 years (see the Criminal Code (the Code) at sections 235(1), 745(c)). [98] When determining the accused’s period of parole ineligibility pursuant to

section 745.4 of the Code, the trial judgeconsidered, in addition to other information, victim impact statements from the victim’s family; a psychological report; a current pre-sentence report detailing the accused’s background and circumstances; and a statement read by the accused’s trial lawyer referred to asthe “[a]utobiography of [the accused].” [99] The accused points out that he was not given the opportunity to address the Court prior to the sentence being imposed. He argues that, because of this, he did not get a chance to demonstrate remorse.

He argues that the lack of remorse was the absence of amitigating factor that might have reduced his 12-year period of parole ineligibility. The accused also argues that the period of paroleineligibility imposed was unreasonable and seeks to have it reduced to 10 years. [100] Absent a material error in principle or a sentence that is demonstrably unfit, the trial judge’s decision regarding paroleineligibility is entitled to deference (see R v Friesen, 2020 SCC 9 at para 26). [101]

Section 726 of the Code requires a judge to ask an offender, who is present, whether he or she has anything to say beforedetermining the sentence to be imposed.

However, the jurisprudence indicates that a trial judge’s failure to ask an offender if he or shewishes to make a statement prior to imposing sentence does not automatically vitiate the sentence (see R v Murphy, 2019 SKCA 8 atpara 51; see also paras 52-58; R v Senek (1998), (MB CA), 130 CCC (3d) 473 at paras 19-20 (Man CA); R v JAS,2019 ABCA 376 at para 16; and Desfossés c R, 2021 QCCA 235 at para 6). [102] In my view, the trial judge’s failure to ask the accused if he had anything he wished to say was inadvertent and did notresult in any unfairness.

At the sentencing hearing, the accused’s trial lawyer made full submissions. He also filed and read a statementprepared from information provided by the accused. There was no indication given by the accused’s trial lawyer that the accused hadanything further he wanted to say and no objection was raised before the trial judge imposed sentence. [103] At the appeal hearing, the accused advised the Court through his lawyer that he wanted to speak. In light of the trialjudge’s oversight, the accused was given the opportunity to do so. He chose to speak through his lawyer.

The accused’s lawyer statedthat the accused did not write the statement that was filed at his sentencing hearing; his trial lawyer asked him questions and wrote downwhat he said in response.

She said that he also had some comments about the lack of a voice of Indigenous peoples in the justicesystem. [104] Despite being given the opportunity to speak at the appeal hearing, the accused has provided nothing to this Court thatwould have affected the trial judge’s decision regarding parole ineligibility (see Senek at para 19). [105] When setting the accused’s period of parole ineligibility, the trial judge gave thoughtful reasons in which he consideredall of the criteria in

section 745.4 of the Code, including the character of the offender and his Gladue factors (see R v Gladue, (SCC), [1999] 1 SCR 688); the nature of the offence and the circumstances surrounding its commission; and therecommendations made by the jurors. I see no material error and, in my view, the sentence was not demonstrably unfit. I would dismissthe sentence appeal. Conclusion [106] In the result, I would dismiss both the conviction and sentence appeals. JA I agree: JA I agree: JA