R v Roulette, 2021 MBCA 95

Citation: R v Roulette, 2021 MBCA 95 Date: 20211109 Docket: AR21-30-09644 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Madam Justice Diana M. Cameron Madam Justice Janice L. leMaistre BETWEEN : ) S. N. Jack ) for the Appellant ) her majesty the queen ) R. N.

Malaviya ) for the Respondent Respondent ) ) Appeal under r 45 of the - and - ) Manitoba Criminal ) Appeal Rules, SI/92-106 ; ethan roulette ) and r 37.3 of the MB, ) Court of Appeal Rules , (Accused) Appellant ) MR 555/88R ) ) Judgment delivered: ) November 9, 2021 chartier cjm (for the Court) : [ 1 ] The accused was convicted at trial of aggravated assault and sentenced to 14 months of incarceration. [ 2 ] The accused appeals both the conviction and the sentence. [ 3 ] The principal issue on the conviction appeal is whether the trial judge unreasonably dismissed an available inference which should have led to reasonable doubt as to the accused’s culpability; namely, that it was an accident.

The Crown agrees with the accused that the evidence cannot disprove a reasonable inference that the stabbing was an accident and joins him in asking that an acquittal be entered. [ 4 ] Both parties agree that this appeal may be determined on the basis of written materials filed without an oral hearing being held (see r 37.3 of the MB, Court of Appeal Rules , MR 555/88R ). [ 5 ] After a night of heavy drinking, the police responded to a call related to a stabbing. The accused was charged with aggravated assault for the stabbing of his cousin, the complainant.

The Crown’s evidence consisted of medical evidence pertaining to the complainant’s injuries and the accused’s sworn statement. Neither other potential witnesses nor the complainant testified. In his statement, the accused provided a description of what occurred prior to and following the stabbing; however, he could not recall the details of the stabbing itself other than to say, “I know that I never did it on purpose or intentionally.

I never did, I would never do that to him.” [ 6 ] The trial record establishes that the accused had the knife when the altercation occurred; that he had no recollection of how the stabbing occurred; that the complainant did not cooperate with the police or prosecution or share his views of the incident; that there were no other eyewitnesses to the incident; and that the accused’s post-altercation actions and behaviour are arguably consistent with an accident and not solely consistent with an intentional stabbing. [ 7 ] After reviewing this record, we are satisfied that the trial judge erred in concluding that accident, which is a full defence, was not an available inference.

In the circumstances of this case, no reasonable view of the evidence excluded accident as a reasonable alternative to guilt. In the result, the trial judge unreasonably dismissed an available inference (that the stabbing was an accident), which should have led her to have had a reasonable doubt as to the accused’s culpability. In our view, the trial judge erred in finding the accused guilty of aggravated assault.

[ 8 ] Accordingly, the conviction appeal is allowed. The conviction is set aside and an acquittal is entered. The sentence appeal becomes moot. CJM JA JA