R v Beardy, 2022 MBCA 90

Citation: R v Beardy, 2022 MBCA 90 Date: 20221104 Docket: AR13-30-07929 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner Madam Justice Lori T. Spivak BETWEEN : ) S. A. Inness ) for the Appellant his majesty the king ) ) M. S.

Bright Respondent ) for the Respondent ) - and - ) Appeal heard and ) Decision pronounced: garvin raymond maurice beardy ) October 26, 2022 ) (Accused) Appellant ) Written reasons: ) November 4, 2022 On appeal from 2012 MBQB 67 mainella JA (for the Court) : Introduction [ 1 ] Following a judge-alone trial, the accused was convicted of second degree murder in relation to what the trial judge described as his participation in a “grotesque beating along with several others” (at para 27).

The thrust of his appeal is that his participation in the group attack should have resulted in a conviction for manslaughter only; he abandoned his sentence appeal (see 2013 MBQB 15 ). After hearing argument, we dismissed the appeal with reasons to follow. These are our reasons. Background [ 2 ] The tragic facts can be stated in brief. The 35-year-old victim was a diminutive male who was sleeping in a stairwell landing of a Winnipeg apartment building on a winter evening. The accused and two other men came upon the victim by chance. The victim was robbed and brutally beaten.

Although the group attack began on the fifth-floor landing of the stairwell, the victim was found dead about an hour later on the second floor of the stairwell. Bloodletting during the group attack resulted in a trail of the victim’s blood throughout the various floors of the stairwell. The victim suffered multiple serious injuries and died from blunt-force trauma to his head. [ 3 ] Bloody footprints led police to an apartment on the sixth floor where the accused was arrested. His clothing and footwear were covered in the victim’s blood. The accused gave a voluntary statement to the police.

After initially denying any involvement, he admitted that he joined the group attack, saying that he got a “rush” (at para 25) from throwing the victim on the stairs and kicking him so hard that the victim’s body was “twitching” (at para 26). He said, during the group attack, he went through the victim’s pockets and stole an MP3 player. [ 4 ] At trial, the accused testified to a different version of events. Instead of his description to police of the victim being defenceless the whole time, his testimony was that the victim was awake and combative.

He said a fight ensued between the victim and one of the co-accused after an argument. During the fight, the victim tried to pull the much larger man over a railing. The accused then intervened, kicking the victim once with minimal force to break up the fight. At that point, another assailant attacked the victim resulting in the victim hitting his head on the stairwell. He said he found the victim’s MP3 player on the ground and picked it up, not knowing who it belonged to. [ 5 ] The trial judge disbelieved the accused’s testimony and convicted him largely as a result of his confession to police of

participating in the group attack. Shortcomings in the evidence in the cases against the two co-accused resulted in the accused being the only alleged assailant convicted. Discussion [ 6 ] The accused argues that the trial judge’s negative credibility finding was based on misapprehensions of the evidence as to the narrative he provided in his police statement of when and where he assaulted the victim and the blood spatter evidence gathered from the crime scene. We are not satisfied that the trial judge made a readily obvious error with respect to material evidence.

The trial judge’s credibility finding was reasonably grounded in the evidence; no palpable and overriding error has been demonstrated. It would be inappropriate for this Court to interfere with her fact finding based on a different

interpretation of the evidence (see R v Jovel , 2019 MBCA 116 at paras 30-31 , 34-36). [ 7 ] We also reject the accused’s other submission that, given the circumstantial evidence, the verdict was unreasonable because of a lack of proof of subjective intent for murder.

Our role is not to retry the case but, rather, to determine whether it was unreasonable for the trial judge to have concluded that the evidence as a whole excluded all reasonable alternatives to guilt (see R v Villaroman , 2016 SCC 33 at paras 55-56 , 69). [ 8 ] The accused acted in concert with others in the group attack; he was therefore a joint principal regardless of who struck the fatal blow or whether the other assailants were successfully prosecuted (see section 21(1) (

a) of the Criminal Code (the Code ); R v H (L I) , 2003 MBCA 97 at paras 19-24 ; and R v Ball , 2011 BCCA 11 at para 33 ). [ 9 ] We are not persuaded by the accused’s argument that the trial judge erred in law by applying an objective test in determining that he had the intent for murder.

In our view, on the totality of the evidence, it was reasonably open to the trial judge to find that, by the time the accused joined the group attack, the only reasonable inference arising from kicking and throwing a vulnerable person in a stairwell was that the accused meant to cause the victim bodily harm that he knew was likely to cause the victim’s death and was reckless whether death ensued or not (see Villaroman at para 55 ; and

section 229 (a)(ii) of the Code ). Noteworthy is that, when a person decides to participate in a group assault, they “accept the consequences which flow from this group action”, not just their own actions ( R v Cabrera , 2019 ABCA 184 at para 79 ). [ 10 ] The victim never had a chance; he died a cruel death. Quite properly, the trial judge found this to be a “prolonged attack” (at para 25). There were 16 different injuries to the victim’s head alone according to the autopsy, resulting in a “large amount” (at para 3) of the victim’s blood throughout the stairwell.

According to the accused’s statement to police, the victim was outnumbered and outsized by the assailants who commenced the group attack while he was defenceless and sleeping on the fifth-floor landing, yet the victim’s body ended up three flights lower in the stairwell due to their brutality. The accused admitted to police to participating in the group attack in more than a minimal way to be one of the “guys”.

He also robbed the beaten victim. [ 11 ] The trial judge found that, within a few minutes of the end of the group attack, the accused “suffered remorse” (at para 27) when he realized the victim may be dead. He went so far as to gesture to a security camera in the apartment building, pointing to the stairwell, but he took no other steps to call for help despite the opportunity to do so.

The trial judge determined that this regret did not assist the accused because it was “too late” ( ibid ). [ 12 ] The probative value of post-offence conduct with respect to an accused’s level of culpability “depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial” ( R v White , 2011 SCC 13 at para 42 ). Drawing the line between reasonable doubt and speculation was the responsibility of the trial judge as the trier of fact (see Villaroman at para 71 ).

Deference must be afforded to her reasoning about the probative value of the accused’s post-offence conduct to his degree of culpability (see R v Hall , 2018 MBCA 122 at para 166 ). [ 13 ] Timing is everything in this case. What was important was the accused’s intent at the time of his common participation in the “vicious assault” (at para 3); not after it was over and the victim was already dead or about to die.

The trial judge’s finding as to the probative value of the post-offence conduct to the accused’s level of culpability is “reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense” ( Villaroman at para 36 ). The group attack was done before regret set into the mind of the accused at all.

And, when shame eventually did set in, the accused did little to help the victim; rather, he retired to an apartment to go to sleep, leaving the victim face down in a pool of blood on the stairwell. [ 14 ] In our view, we cannot look at the evidence in an alternative light when the trial judge’s conclusion about the significance of the accused’s remorse to his level of culpability was reasonably open to her (see Villaroman at para 56 ; and R v Fedyck , 2018 MBCA 74 at paras 25 , 31-32, aff’d 2019 SCC 3 ). [ 15 ] In

summary, we are satisfied that the trial judge’s finding as to the accused having the requisite intent for second degree murder, excluding any reasonable alternative to guilt, is not “itself unreasonable” ( R v Youssef , 2018 ONCA 16 at para 4 , aff’d 2018 SCC 49 ). Disposition [ 16 ] In the result, the appeal was dismissed. JA

JA JA