R. v. Ward, 2011 NSCA 78

NOVA SCOTIA COURT OF APPEAL Citation: R. v. Ward , 2011 NSCA 78 Date: 20110908 Docket: CAC 325820 Registry: Halifax Between: Shane Claude Ward Appellant v. Her Majesty the Queen Respondent Judge: The Honourable Mr. Justice Jamie W.S. Saunders Appeal Heard: April 7, 2011 Subject: Second Degree Murder. Standard of Review. Hearsay. Admissibility. Use of Narrative Evidence. Unreasonable Verdict. Provocation. Fitness of Sentence. Parole Ineligibility.

Summary: After trial by judge and jury the appellant was convicted of second degree murder after bludgeoning his friend with an aluminum baseball bat. He was sentenced to imprisonment for life and ordered to serve at least 16 years in penitentiary before being able to apply for parole. He appealed both his conviction and his sentence. Held: Appeal against conviction dismissed. Leave to appeal sentence granted and period of parole ineligibility reduced to 13½ years, following this Court’s recent decision in R. v.

Hawkins , 2011 NSCA 7 establishing the appropriate current range for parole ineligibility following conviction for second degree murder in cases of similar circumstances. In all other respects no error could be attributed to the trial judge’s careful conduct of the case, or to the jury’s verdict.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 29 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Ward , 2011 NSCA 78 Date: 20110908 Docket: CAC 325820

Registry: Halifax Between: Shane Claude Ward Appellant v. Her Majesty the Queen Respondent Judges: Saunders, Beveridge and Farrar, JJ.A. Appeal Heard: April 7, 2011, in Halifax, Nova Scotia Held: Appeal against conviction dismissed; leave to appeal sentence is granted and the appeal against sentence is allowed per reasons for judgment of Saunders, J.A.; Beveridge and Farrar, JJ.A. concurring. Counsel: Alfred A. Seaman, for the appellant James A. Gumpert, Q.C. and Eric Taylor, for the respondent Reasons for judgment : 1 .

Phillip Love died in hospital from injuries suffered during a fight among friends at his home. His skull was crushed by repeated blows from an aluminum baseball bat. The bludgeoning occurred during an argument over some perceived slight which then escalated into a full blown assault — fuelled by stupidity, testosterone and alcohol — always a dangerous mix. 2 . The appellant, Shane Ward and his brother Matthew Ward were jointly charged with second degree murder, together with various weapons offences. 3 .

After a 17-day trial, the jury found Shane Ward guilty as charged, but acquitted his brother Matthew of everything except the included offence of assault. 4 . Following his conviction, Shane Ward was sentenced to imprisonment for life and ordered to serve at least 16 years in penitentiary before being able to apply for parole. 5 . He now appeals both conviction and sentence. 6 . For the reasons that follow, I would dismiss the appeal against conviction, grant leave to appeal sentence, and allow the appeal against sentence by reducing the period of parole ineligibility to 13½ years. 7 .

I will begin these reasons by briefly describing the circumstances which led to the appellant’s arrest, and provide sufficient background information to establish a context for the issues and the analysis that follows. Further detail will be given when elaboration is required. i. Background 8 . Much of the

summary that follows is gleaned from counsels’ written submissions. I recognize that some of the “facts” may

not all be conceded. For example, the credibility of Bradley Martin was vigorously challenged by appellant’s counsel at trial (as well as on appeal), such that findings or inferences which may emerge from his testimony may invite a more pointed evaluation later in these reasons. What follows here is enough to provide a context for the reader. 9 . Phillip Love and Shane Ward (the appellant) moved from Ottawa to the Halifax area in October, 2006, so that they could work as drywallers with Shane’s brother Matt. Phillip Love, Matt Ward and Bradley Martin shared a duplex at 6A Byron Crescent in Dartmouth.

Shane Ward lived nearby with his common law partner and her daughter. 10 . January 8, 2007, was Matt Ward’s birthday. People gathered at 6A Byron Crescent to celebrate. Beer and wine were consumed. Despite the occasion, the mood was sour. People were described as appearing depressed or bad-tempered. 11 . At some point an argument arose over a perceived insult. Yelling was heard from upstairs. Phillip Love became loud- mouthed and aggressive. People asked him to calm down. He did not. He said he would fight all three: Bradley Martin, Matt Ward, and his brother Shane.

Love lunged at the appellant, such that the two men ended up wrestling on the floor, thrashing about, with Love trapping the appellant’s head in an arm lock. 12 . Bradley Martin heard the appellant scream out in pain “My eye ... he’s poking my eye out”. It appeared as though Love was choking the appellant in a headlock. Love yelled that he would kill him. 13 . Matt Ward jumped on top of the two men and swung at Love. Martin pulled at Love’s legs, trying to get the men apart. 14 . The appellant ran downstairs as his brother Matt managed to put Love in a headlock.

The appellant then ran back upstairs, bolted past Martin and jumped on top of Love, where he began striking Love in the head with a beer bottle he had grabbed, shattering the bottle in the process. 15 . Matt Ward released Love from the headlock. He testified that he saw the appellant strike Love with the beer bottle “less than three or four times” and that Love neither appeared to react when struck, nor seemed to be resisting or defending himself. Bradley Martin pulled the appellant off Love and pushed him towards the stairs.

The two men then went outdoors and sat in a car smoking cigarettes, leaving Matt Ward and Phillip Love alone upstairs. 16 . Bradley Martin testified that he and the appellant saw Matt Ward come out of the house and then go back inside. Yelling and loud noises could be heard from upstairs. Martin recognized the voice he heard as Love’s, suggesting that the man had regained consciousness. 17 . Matt Ward came back outside. He told his brother and Martin that he needed their help because “Love was going crazy in there”.

The three men armed themselves with a fire poker, a baseball bat, and a garden edger and went back inside the house. 18 . Martin saw a trail of blood leading to the kitchen sink and a pool of blood close by. He could hear the sound of voices from upstairs. Love was heard to say “I thought we were friends. What the fuck are you doing? Why are you guys doing this?” 19 . Martin said he heard the appellant yelling angrily back at Love “You tried to kill me. You tried to poke my eye out.” 20 . The appellant came back downstairs and grabbed the bat from Martin. He headed back upstairs, quickly.

A few seconds later Martin heard a voice that sounded like Love’s say “What do you think you are doing?” and followed by a loud metallic like crack and then a thud as if something had just hit the ground. 21 . The appellant and his brother Matt came running down the stairs. The appellant said something like “It’s over.” He dropped the baseball bat he was holding. He said “He’s dead. We got to get something to wrap him up in. We got to bury him. ...” . Bradley Martin went to look for a cover in the basement. A few minutes later he went back upstairs with a blanket and a tablecloth.

He said he was shocked to see Phillip Love laying on the floor, his face covered in blood, his legs twitching, and gurgling sounds coming from his mouth. 22 . Someone made an urgent telephone call to James Oickle, the appellant’s stepfather. When he arrived he saw the appellant holding a baseball bat with blood on it. Mr. Oickle observed blood on the back of the appellant’s right hand, and told the appellant to leave. 23 . In the hours following the incident, Shane Ward gave varying accounts of what happened. He told one individual “I hope the guy dies”. He told others “I’m in a lot of trouble.

I need a place to stay. Cops are looking for me for manslaughter.” At one point the appellant said “I had to do what I had to do, he was trying to kill me.” Friends urged him to turn himself into the police. Eventually the appellant was arrested when he showed up at a house on the Waverley Road. 24 . Shane Ward alleges a number of errors by the trial judge at his trial and sentence hearing. He asks that the appeal be allowed, his conviction quashed, and that he be acquitted or, at most, found guilty of the lesser offence of manslaughter. Alternatively, he asks that we order a new trial.

Failing that, he asks that his sentence be varied by reducing the period of parole ineligibility from 16 to 10 years. 25 . In response the Crown says there is no merit to any of the appellant’s submissions and that his appeals against conviction and sentence ought to be dismissed. i. Issues

26 . The appellant advances five grounds of appeal, claiming that: i. 1. the trial judge erred in admitting the contents of a telephone conversation on January 8, 2007, between Matthew Ward and James Oickle; ii. 2. the trial judge erred in failing to properly instruct the jury with respect to the use of narrative evidence; iii. 3. the verdict should be set aside as being unreasonable; iv. 4. the trial judge erred in failing to instruct the jury on provocation; and v. 5. the sentence he received is unfit and ought to be varied. 27 . These five grounds of appeal invoke different standards of appellate review.

I will describe the standard that applies to each, in the analysis that follows. i. Analysis ii. 1. The trial judge erred in admitting the contents of a telephone conversation on January 8, 2007, between Matthew Ward and James Oickle 28 . The admissibility of evidence is, generally, a matter of law. On the point raised by the appellant in this case, while the trial judge’s ruling on admissibility was informed by the application of correct principles of law, it nonetheless required the judge to weigh the prejudicial impact against probative value, and therefore is entitled to deference. See for example R. v.

Poulette , 2008 NSCA 95 at para. 16 ; and R. v. West , 2010 NSCA 16 at para. 155 . Applying that standard to this ground of appeal, I see no reason to intervene. 29 . James Oickle is the step-father of the Ward brothers. Mr. Oickle attended 6-A Byron Crescent on January 8, 2007. On direct examination Mr. Oickle was questioned as to how he came to be involved. He testified to having received a telephone call from Matthew Ward at approximately 6:50 p.m. on January 8. He described the content of the conversation.

Defence counsel made a timely objection on the grounds that the statements were largely hearsay and, therefore, not admissible and further, that even if the statements were not offered for their truth, their prejudicial effect far outweighed their probative value and so ought to be declared inadmissible. 30 . The jury retired so that arguments could be presented. After considering counsels’ submissions, the trial judge overruled the objection and permitted the questioning to continue for the purpose of narrative. What follows is Mr.

Oickle’s testimony in the presence of the jury concerning his conversation with Matthew Ward: a. Q. Okay. Mr. Oickle, I'm going to take you back to January 8th, 2007. On that date, do you recall being involved or come to be involved in the matter before the Court today? b. A. Yes, sir. c. Q. And would you indicate the circumstances in which you got involved in the matter? And we won't have you go too fast, okay? d. A. Okay. e. Q. Go ahead. f. A. That night, about ten to seven, I got a call from Mathew Ward. And he said ... g. Q. Don't go too fast, sir. So he said something. Yes? h. A.

He said, "Shane's killed Phil. You got to get in here." i. ... j. Q. Okay. k. A. He was quite upset. And ... l. Q. Did you respond ... did you say anything when he said that? Did you say anything to him? m. A. Yes, I said, "Call 9-1-1." He said, "I can't. Shane's still here." n. Q. Okay. And you say he was quite upset. How could you tell that? o. A. From his voice. He was half crying, quite upset. 31 . Looked at in isolation, the testimony elicited from Mr. Oickle during Crown counsel’s direct examination, is troublesome. However, context is always important. 32 . This was a joint trial.

In such trials it is common for one accused to be reported to have said something which implicates a

co-accused. Here, the appellant chose not to seek a severance of his trial. 33. Of course, such evidence is only admissible against the accused who made the statement. The jury must be instructedconcerning this rule of evidence and told that they must follow the judge’s directions on the law. 34. In this case, that is exactly what Justice Cacchione did. He gave the jury mid-trial instructions that the statement wasadmissible only against Matthew Ward. He told them it was not to be considered for the truth of its contents and that its limited purposewas to simply understand the unfolding of events. 35.

Cacchione, J. repeated the rule that anything said by one accused was only admissible against that accused in five additionalmid-trial instructions during the course of the trial. 36. He later repeated those instructions in his charge to the jury. 37. To say that a jury would not follow such clear directions is to say that juries cannot be trusted to accept and follow directionsfrom trial judges. Jurors ought to be given credit for the intelligence and good conscience they bring to fulfilling their responsibilities asjurors.

They have taken an oath to abide by the judge’s instructions on the law and to determine guilt based only upon the evidencepresented, and as admitted for such purposes as directed by the judge. In R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, theSupreme Court explained why our strong faith in a jury’s ability to follow a judge’s instructions is well-founded. To illustrate, the Courtused an example of an accused’s confession being admissible against that accused only, which has close parallels to the case here. TheCourt said at pp: 694-695: a.

In the joint trial of the co-accused, the confession of one accused is admissible against that accused only, and the jury mustbe instructed that such evidence cannot be taken into account in determining the guilt of the co-accused. See, e.g., Schmidt v. The King, (SCC), [1945] S.C.R. 438, at p. 439; R. v. Rudd (1948), 32 Cr. App. R. 138 (C.C.A.); and R. v. Lane and Ross (1969), (ON SC), 6 C.R.N.S. 273 (Ont. S.C.), where Addy J. stated as follows, at p. 279: b.

I feel that it is quite possible, as has been done in many cases in the past, to explain clearly to the jury, in such a way thatthey will govern themselves in accordance with the directions of the Judge, that the confession of one accused in a joint trial is notevidence against his co-accused.

The danger of a miscarriage of justice clearly exists and must be taken into account but, on the otherhand, I do not feel that, in deciding a question of this kind, one must proceed on the assumption that jurors are morons, completelydevoid of intelligence and totally incapable of understanding a rule of evidence of this type or of acting in accordance with it.

If suchwere the case there would be no justification at all for the existence of juries, and what has been regarded for centuries as a bulwark ofour democratic system and a guarantee of our basic freedoms under the law would in fact be nothing less than a delusion. 38. To the same effect Mr. Justice Doherty, writing for the Ontario Court of Appeal in R. v. Suzack, (ONCA), [2000] O.J. No. 100 (QL) observed at para. 128: a. 128 Some will say that a jury could not possibly follow the Committee's proposed instruction. I do not pretend that thereis no risk that the jury would not follow that instruction.

Like any limiting instruction, there is a risk that the jury will not abide by it. Aslong as we maintain trial by jury, however, courts must proceed on the basis that juries accept and follow the instructions given to themby the trial judge: R. v. Corbett, supra, at p. 401; R. v. Eng (1999), 1999 BCCA 425 , 138 C.C.C. (3d) 188 at 201-202(B.C.C.A.). That is not to say that in a specific case a trial judge could not decide that the risk of misuse of propensity evidence offeredby one co-accused could not be adequately addressed by a limiting instruction.

If a trial judge reaches that conclusion, he or she will haveno choice but to order severance. It would, however, be wrong for a trial judge to accept as a general proposition that a jury would not orcould not abide by a limiting instruction. 39. In this case, Cacchione, J. concluded that the statement was proper narrative and therefore admissible to understand theunfolding of events. His direction to the jury that the statement could not be used for the truth of its contents was plainly stated, andcorrect in law. 40. Even if I were to have found that Mr.

Oickle’s testimony concerning his telephone conversation with Matthew Ward shouldnot have been heard by the jury, I would excuse the misstep by applying the curative provision of s. 686(1)(b)(iii) of the CriminalCode. The evidence against the appellant was overwhelming when both the circumstantial evidence and his own various admissions areconsidered. i. 2. The trial judge erred in failing to properly instruct the jury with respect to the use of narrative evidence 41.

The standard of appellate review as to whether the trial judge properly instructed the jury on the use of narrative evidence, isone of correctness. 42. The appellant’s complaint is that the trial judge did not properly instruct the jury as to the use they could make of narrativeevidence. Two instances are cited. The first relates to Mr. Oickle’s testimony concerning his telephone conversation with MatthewWard on January 8, 2007. I have already referred to this exchange when addressing the appellant’s first ground of appeal. 43.

The appellant says the trial judge’s initial error (in admitting the testimony in the first place) “was aggravated” in his

subsequent instructions to the jury when he again referred “to the contents of the telephone conversation between Matthew Ward andMr. Oickle without then warning with respect to the proper use of narrative”. In his factum the appellant points to this extract from thetrial judge’s directions to the jury in which he underlines certain portions for emphasis: a. The Court: Thank you. Members of the jury, you heard an objection being raised to the evidence of this witness, inparticular, a statement that was made to him. I will give you an instruction as to the proper use you can make of that evidence. b.

Firstly, the evidence of what Matthew said about Shane or what Shane about Matthew is only evidence against the maker ofthe statement. So what Matthew said is only evidence against Matthew and cannot be used by you as evidence against Shane. c. Secondly, the comment here about "Shane killed Matthew" or "Shane killed Phillip" is not being offered for the truth of itscontents. Its not to say that the statement is true. The statement was made. You will have to decide whether the statement was made,regardless of who the witness is. d.

And you will also have to consider that the use of that statement or the purpose why it is offered is to explain to you whatthe witness did as a result of that statement. All right? e. It's not for the truth of its content, it's just for an understanding of the unfolding of the events. All right? So you can't acceptit as the truth of its contents. Did I make myself clear on that? Thank you very much. [Underlining by appellant in his factum] 44.

The appellant says that the judge’s words “And you will also have to consider ...” would have: a. ... likely confused a reasonable juror as to the proper use of the content of the telephone call. It is submitted that the plainmeaning of what was said by the Learned Trial Judge may properly be interpreted as to allow the jury to choose for what purpose theevidence will be used as opposed to its very limited purpose, as narrative. 45. With respect, I do not accept the appellant’s characterization as being an accurate reflection of the trial judge’s mid-trialinstructions.

The judge’s words should not be read in isolation, but rather, taken together with everything else he said in his mid-trialinstruction. 46. He began his mid-trial instruction with the general (and correct) comment that what one accused may say is only evidenceagainst the maker. He then went on to direct that the specific statement by Matthew Ward “Shane killed Phillip” was not being offeredfor the truth of its contents. He then explained it was offered to explain what the witness James Oickle did as a result of hearing thatstatement. 47.

Nothing the trial judge said could have confused the jury to suppose that the statement (assuming the jurors were satisfied itwas actually made) could be used against the appellant, or for anything other than narrative purposes. Rather than inviting the jury tochoose between two options, I am satisfied that the trial judge was merely giving the jury a direction for the statement’s use. Heconcluded his mid-trial instructions by emphasizing that the statement could not be used for the truth of its contents, and could only beused for the purpose of understanding the unfolding of events. 48.

In my opinion, it was not necessary for the judge to repeat this same instruction in his final charge to the jury. He gave aproper direction on the use of narrative evidence at the time that evidence was presented. When the judge concluded his charge to thejury, defence counsel did not raise any objection on this point or attempt to persuade the judge that he ought to recall the jury to offerfurther direction on the issue he now says should have been included. 49.

Given the trial judge’s clear instructions regarding the use to be made concerning narrative evidence, as well as a statementby a co-accused, I would dismiss this ground of appeal. i. 3. The verdict should be set aside as being unreasonable 50. Whenever the reasonableness of a jury’s verdict is challenged on appeal, the test is whether the verdict is one that a properlyinstructed jury, acting judicially, could reasonably have rendered. In applying that test on appeal, our task involves both an objective anda subjective assessment.

It obliges us to re-examine, and to some extent re-weigh the evidence and its effect. We do that through ajudicial lens, informed by our legal training, and with a perspective honed over the years by the knowledge and experience acquiredwhen evaluating the merits of criminal appeals. R. v. Yebes, (SCC), [1987] 2 S.C.R. 168; R. .v. Biniaris, 2000 SCC15, 1 S.C.R. 381; R. v. Hawkins, 2011 NSCA 6. 51. The analysis of a complaint that a jury’s verdict is unreasonable does not engage a question of law which would invite astandard of correctness.

Rather, we are obliged to undertake a re-examination of the evidence in order to decide whether the verdict isunreasonable, or cannot be supported by the evidence. 52. With a jury trial we do not have reasons to explain how the jury arrived at its conclusions. However, we do have the benefitof the trial judge’s recitation of the facts at the sentencing hearing pursuant to s. 724 of the Criminal Code. I am satisfied the judge’sreview of the facts is perfectly reasonable based upon the evidence heard by the jury. 53.

Here, the appellant’s complaint appears directed at the result: that he was convicted as charged on each of the counts ofsecond degree murder, possession of a weapon, and assault with a weapon whereas his brother and co-accused Matthew Ward was only

found guilty of the included offence of assault. 54 . To quote from his factum, the appellant says: a. ... it is submitted that the bulk of the evidence in the case at bar implicated both the Appellant and the co-accused .... Despite the fact that that Appellant had told witnesses that he had struck Mr. Love over the head with a bat, an experienced jurist would would have noticed the lack of evidence implicating the Appellant as the cause of Mr. Love's death. b. ... Along the same lines of Issue 1, the evidence, as summarized, was equally damaging to both the Appellant and Matthew Ward.

The evidence places both persons in close proximity to Mr. Love while the attack was taking place. There neither was conclusions (sic) as to which blow had caused Mr. Love's death, nor was there a conclusion as to who administered the blows, or how many they each had given. Furthermore, there were no conclusions as to the order of injuries sustained by Mr. Love. c. ... it is true that the Appellant had uttered to more than one individual on separate occasions that he had hit Mr. Love over the head with a bat.

However, there is no evidence or conclusion made by any witness that it was the Appellant's blow that substantially contributed to or caused the death of Mr. Love. The only evidence that unequivocally points to the Appellant are the utterances of Matthew Ward made to several witnesses. 55 . With respect, the appellant’s arguments ignore the substantial body of circumstantial and direct evidence implicating the appellant in the murder of Phillip Love. 56 . Evidence at trial confirmed that the victim suffered skull fractures and internal brain haemorrhaging. Despite the best efforts of the medical profession, Mr.

Love died several days later. Dr. Matthew Bowes, a pathologist and this province’s Chief Medical Examiner, performed the autopsy. He testified that the victim suffered blunt force trauma with a strong degree of force. Dr. Bowes gave the opinion that a reasonable estimate of the number of blows struck was between 8 and 14. Even a single blow of such magnitude would be a contributing cause that was hardly insignificant or trivial. 57 . There was strong circumstantial evidence that the appellant struck Phillip Love in the head with a baseball bat thereby causing the injuries which led to his death.

The Crown’s factum provides a useful and accurate

summary of the circumstantial evidence that implicated the appellant: a. 1. The Appellant had originally been bested in a fight where the victim had gouged the Appellant's eye. b. 2. The Appellant retaliated by smashing a beer bottle over the head of the already semi unconscious victim. The Appellant then slashed at the victim with the neck of the broken bottle. c. 3. The Appellant then left the house and sat in Bradley Martin's car for 5 to 10 minutes and smoked cigarettes and spoke to Mr. Martin about what had just happened. d. 4.

When Matt Ward suggested the Appellant should finish what he started the Appellant proceeded to do exactly that. e. 5. Mr. Martin overheard a conversation from upstairs where the victim was obviously in terror as to what was happening to him. f. 6. The Appellant then came downstairs and exchanged the fire poker he had for a baseball bat. g. 7. The Appellant carried the bat upstairs to where the victim was located. h. 8. The victim exclaimed "what do you think you are you doing" one more time. This exclamation was followed immediately by a loud metallic like ding, like a cracking type noise.

This was followed by a thud type noise, like something hitting the ground. i. 9. The Appellant then came downstairs carrying the baseball bat. The Appellant said that it was over, it was done. j. 10. The baseball bat had blood on it. The victim's DNA was on the bat. 58 . On such evidence, it was certainly open to the jury to conclude that Shane Ward used a baseball bat to strike Phillip Love’s head with a blow or series of blows, thereby fracturing his skull and inflicting serious injuries which ultimately caused or contributed to his death. 59 .

Further, all of the evidence pointed to the appellant as being the attacker. While there was some evidence that Matthew Ward encouraged the attack, there was no evidence that he actually struck the victim with the bat. To suggest that Matthew Ward struck Phillip Love in the head with the bat would be speculation. Even if he had, the appellant admitted to others that he had done so as well. On that basis alone, the appellant was directly implicated in the murder, whether as a party or as a principal. 60 . Of course the Crown’s case against the appellant was not based only on circumstantial evidence.

He admitted to others that he struck Phillip Love. For example: i. 1. He told Glen Oatway he struck the victim once with a bat. He also told Mr. Oatway that he hoped the victim would die.

ii. 2. He told David Carr that he beat the victim with a bat and when he left, the victim was not moving. He also told Mr.Carr “three strikes and you are out”, and then he laughed. iii. 3. He told Paul Bourgeois that he first hit the victim with a beer bottle and then with another object. 61. In addition to the circumstantial evidence and the appellant’s own admissions, the jury had before it evidence of ShaneWard’s post-offence conduct.

It has long been recognized that evidence of post-offence conduct may be admitted as a type ofcircumstantial evidence tending to show an accused person’s culpability for the alleged crime. R. v. White, (SCC),[1998] 2 S.C.R. 72; R. v. Arcangioli , (SCC), [1994] 1 S.C.R. 129; R. v. Turcotte, 2005 SCC 50; R. v. Hawkins,supra. Great care must be taken by trial judges when instructing a jury as to whether and how such circumstantial evidence may beconsidered, and the inferences that may, or may not, properly be drawn from it. 62.

In his pre-charge meeting with counsel, Cacchione, J. advised Crown and defence that he would be charging the jury onpost-offence conduct. There has never been any suggestion that his instructions on the law were flawed. On the contrary, I find hisdirections to be clearly expressed and correct. 63. The evidence at trial established that after the appellant left the scene he tried to find a place to stay and avoid arrest by thepolice. He made three attempts, first at his Uncle Roy’s residence and then at the residences of David Carr and Glen Oatway. He toldMr.

Carr that the police were looking for him for manslaughter. 64. In my respectful opinion, the jury was entitled to draw an inference of guilt from the appellant’s post-offence conduct ofattempting to hide from the police. 65. Besides this circumstantial evidence of post-offence conduct, the jury also heard from the Crown’s key witness, BradleyMartin. Not surprisingly, Martin was vigorously cross-examined by counsel for both co-accused at trial, each of whom went on to attackMartin’s credibility in their final arguments to the jury. At the time he testified, Mr.

Martin was awaiting his trial on a charge ofaccessory after the fact to the murder of Phillip Love. For this reason, Justice Cacchione warned the jury to approach Mr. Martin’sevidence with the utmost care. 66. Ultimately it was for the jury to decide what, if any weight to attach to parts or all of Martin’s testimony. No objection istaken to the admissibility of Martin’s evidence. The truthfulness and reliability of his testimony was for the jury to assess. Aftersubjecting his evidence, together with all of the other evidence, to the appropriate re-examination on appeal, I cannot see any basis tointervene. 67.

As the Crown notes in its factum, Mr. Martin’s evidence was corroborated by other evidence including: a. 1. Det./Cst. Hanson's evidence regarding the blood staining on walls in the house, the bathroom floor and the bathtub edge.Det./Cst. Hanson also noted a broken beer bottle on the 2 floor and beer bottle neck outside the house. This corroborates Mr. Martin'stestimony regarding the Appellant's use of a beer bottle as a weapon. b. 2. Various admissions by the Appellant made to David Carr, Glen Oatway and Paul Bourgeois described earlier in thisfactum. c. 3. Det./Cst.

Jeff Hawes' testimony that the baseball bat had the victim's DNA on it, that the beer bottle neck had the victim'sDNA on it, that a piece of beer bottle physically matched the beer bottle neck and that the Appellant's pants and left shoe had the victim'sblood on them. 68. At the conclusion of the Crown’s case, defence counsel for each of the co-accused announced on behalf of their respectiveclients that they would not be calling evidence. 69. We are entitled to consider, as a factor in determining whether the jury’s verdict was unreasonable, the appellant’s failure totestify. See for example, R. v.

Noble, (SCC), [1997] 1 S.C.R. 874, (Sopinka, J., for the majority) at para. 102; R. v.Clayton, 2001 NSCA 72; R. v. Joehnck, 2006 SKCA 68; R. v. Oddleifson, 2010 MBCA 44; R. v. West, 2010 NSCA 16. 70. As in Oddleifson, supra, the Crown’s case here “cried out for an explanation”. Shane Ward chose not to testify in the faceof strong evidence of guilt. Such a failure to testify in such circumstances seriously increased the risk of conviction. 71.

To conclude on this point, the jury heard considerable direct and circumstantial evidence which established a very strongcase against the appellant for causing the death of Phillip Love. The jury was not obliged to reconstruct exactly what had occurredupstairs when the appellant, his brother Matt and Phillip Love were alone together, and out of sight of others. The jury’s task was todecide whether the Crown had proven the essential elements of the offence beyond a reasonable doubt. See, for example, R. v.Pittiman, 2006 SCC 9; R. v. Mah, 2002 NSCA 99. 72.

The jury did not have to be unanimous with respect to its view of the evidence, as long as its ultimate verdict was unanimous. Moreover, the jury was not bound by the theories advanced by the Crown or the defence in determining the ultimate verdict. SeePittiman, supra; R. v. Groot, (ON CA), [1998] O.J. No. 3674 (Q.L.), aff’d (SCC), [1999] 3 S.C.R.664; and R. v. West, supra. 73. In this case, it was reasonable for the jury to conclude that all of the essential elements in the case against Shane Ward hadbeen established beyond a reasonable doubt.

His decision not to testify, in a case that “cried out for an explanation” heightened the risk

of conviction, dramatically. 74 . On this record, I am not at all persuaded that the jury’s verdict was unreasonable. Accordingly, I would dismiss this ground of appeal. i. 4. The trial judge erred in failing to instruct the jury on provocation 75 . During the pre-charge conference, Crown counsel announced all counsels’ “consensus” that self-defence was not applicable in the circumstances. 76 . Counsel representing the appellant, Shane Ward, asked the judge whether he would be charging on provocation. We see this exchange: a. MR.

SEAMAN: I’m just wondering, is ... were you not planning on instructing on provocation? b. THE COURT: No. c. . . . d. MR. SEAMAN: Okay. I guess I just have to say the same thing. It's ... we still don't know what happened. If we take Brad Martin's testimony to be reliable, and that the parties are back inside, we don't know exactly what happens. And I still think it should just be open for the jury to have the option of believing that there was further provocation after the initial provocation. e. THE COURT: But aren't you asking them to speculate at that stage, you know, that there was further provocation? f.

I mean, it may be an inference that they'll draw or that they could draw from the evidence, but. g. MR. SEAMAN: Isn't that enough that it's an inference they could draw from the evidence? h. THE COURT: Mr. Taylor? Mr. Feehan? i. MR. FEEHAN: In my sense that would be very speculative. That's my reaction, it would be very speculative on the evidence. j. . . . k. THE COURT: I didn't feel that there was, on the evidence, an air of reality. l. Because that unlawful assault on Shane, if one accepts Martin's evidence there is a gap there of ten minutes.

He said they were outside for quite a while and then Matthew comes out, he goes back in. He hears screaming or banging, depending on which day, and then they go back in. Two go upstairs, he says he stays downstairs, and then it hits the fan. m. . . . 77 . Whether there is “an air of reality” to a defence, is a matter of law. R. v. Cinous , 2002 SCC 29 . The standard of review on the question of whether Cacchione, J. should have charged on the defence of provocation is one of correctness. 78 .

The appellant says there was evidence by which this jury, properly instructed, could have found that he was provoked, such that the trial judge ought to have put the defence to the jury in his closing charge. 79 . Provocation is defined in the Criminal Code as follows: a. Murder reduced to manslaughter b. 232.

(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. c. What is provocation d.

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this

section if the accused acted on it on the sudden and before there was time for his passion to cool. e. Questions of fact f.

(3) For the purposes of this section, the questions g. (

a) whether a particular wrongful act or insult amounted to provocation, and

h. (

b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, i. are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being. 80 . In R. v. Tran , 2010 SCC 58 , Justice Charron described the objective and subjective elements which make up the defence.

She said: a. [23] In my view, the requirements of s. 232 are most usefully described as comprising two elements, one objective and the other subjective. As Cory J. for the majority of the Court put it in Thibert : b. First, there must be a wrongful act or insult of such a nature that it is sufficient to deprive an ordinary person of the power of self-control as the objective element. Second, the subjective element requires that the accused act upon that insult on the sudden and before there was time for his passion to cool. i. The objective element has two parts. First, there must be a wrongful act or insult.

Second, the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-control. Tran , supra , ¶ 25 . 81 . The appellant points to evidence at trial which he says satisfies both aspects of the test. He emphasizes Bradley Martin’s testimony in describing the wrestling and grappling on the floor between Phillip Love and the appellant and suddenly hearing the appellant scream out in pain “my eye, he’s poking my eye out”. The appellant says this account was corroborated by other witnesses. For example, James Oickle testified to hearing complaints from the appellant that Mr.

Love had stuck his thumb in his eye. David Carr described noticing a mark on the appellant’s eye which was quite visible and looked like a thumb print directly in his eye. Glen Oatway observed the appellant with a black eye and a cut below the eye. Paul Bourgeois, a cab driver, testified that he observed the appellant with blood on one eye. All of this the appellant says was enough to establish a wrongful act of such a nature as to deprive an ordinary person of the power of self-control. 82 .

Assuming, without deciding, that the evidence satisfied the objective element of provocation, it seems to me that the appellant faced an insurmountable hurdle when confronted by the significant delay between the apparent assault allegedly suffered at the hands of the victim, and the appellant’s vicious response to that assault. 83 . As the statutory definition makes clear, provocation will not be made out unless “the accused acted on it on the sudden and before there was time for his passion to cool.” 84 . In this the appellant is caught on the horns of a dilemma.

On the one hand he seeks to rely upon the testimony of Bradley Martin when Martin describes the fight between the appellant and Phillip Love, and the appellant’s obvious agony when his eye is poked and gouged by Love. Yet then the appellant chooses to downplay or virtually ignore Martin’s very detailed evidence describing the significant gap between that incident and what followed, when he and the appellant left the house, sat in a car and smoked cigarettes. 85 . On direct examination, Bradley Martin was asked to describe what happened after the appellant got loose from Phillip Love and went outdoors.

Martin said at first he could not find the appellant. He went looking for him in other parts of the house “... to find out where Shane was and just see if there was anything wrong with him, see how he was.” Not finding him indoors, Bradley Martin glanced outside. This is what the jury heard Martin describe in his testimony: a. ... And I make my way out of the house into the driveway and my car was parked out in the driveway. And I see that Shane is sitting in my car; he’s in the passenger seat of my car. ... So I see Shane sitting in the car, and I wanted to talk to him. ... So I got in the car too.

He was in the passenger seat. I got into the driver’s seat. ... Either he had a smoke going or I lit a cigarette and we were just smoking cigarettes, having a couple of smokes, sitting there talking. I just wanted to see if he was okay, because he was screaming about his eye and that he was in pain and stuff. ... So basically, it was just that ... he felt that Phil hurt him and that he wanted to inflict more injuries upon him. ... So we weren’t in the car that long; we were probably in the car for about five or ten minutes or so.

While we’re sitting in the car having ... having talks about how he feels and what was happening. ... 86 . After that interval concluded, the appellant’s co-accused Matthew Ward came outdoors, appeared to make a telephone call to somebody and was observed going back inside. Then, while Martin and the appellant were still seated in Martin’s automobile, they heard yelling and loud noises from inside. The appellant asked Martin “What is that?” to which Martin replied “I think it’s Phil ... It sounds a little bit like Phil ...

I think he’s in the house and I think he’s yelling.” Martin said the noises started at almost exactly the same time as when Matthew Ward re-entered the house. Another minute or two of yelling and screaming went by before Matthew came outside again, observed Martin and his brother and walked over to where they were seated in the vehicle. He knelt down next to the driver’s window and said to them “You guys got to finish this; you guys got to come in here and help me. ...” 87 .

Martin then “popped” the trunk of his car and the three of them, he and the Ward brothers examined the contents of his trunk which included golf clubs, a snow shovel, a baseball bat, garden tools, and a fire poker. Martin testified: a. I believe Matt reached in and grabbed the garden tool. I reached in and grabbed the fire poker ... Shane took that from me. And I reached in again and the baseball bat was there, I grabbed that out. 88 .

From all of this, it was open to the jury to conclude that a considerable amount of time had elapsed between the initial assault the appellant evidently suffered at the hands of his victim, and the subsequent bludgeoning that led to Phillip Love’s death.

89. Other actions ensued which undoubtedly caused more time to elapse. Martin described the three men re-entering the house. When asked by Crown counsel who had the baseball bat, Martin replied: a. I had the baseball bat in my hand ... while I’m standing here in the dining room ... The fire poker was in Shane’s hand, hewent up the stairs with it; and Matt had the edger in his hand and he went up the stairs with that. 90. Martin remained downstairs in the dining room. He recognized Phil Love’s voice saying “I thought we were friends, whatare you doing?

What the fuck are you doing?” He heard Shane Ward yelling back “You tried to kill me. You tried to poke my eye out.” 91. Suddenly Martin heard footsteps coming down the stairs. He said Shane Ward approached him, looked at the bat in hishand and said: a. “Give that to me.” Martin went on “... he like holds out the fire poker like for me ... and then I take that from him. Basically exchanged what we had in our hands .. I take that from his hand and he takes the bat from mine. And then like as fast as hecame over and did that, he goes just as fast right back and goes right back up the stairs.” 92.

When asked to describe what happened next after weapons were exchanged Martin said: a. A. So I remained standing in the dining room in the dark as he left with the bat in hand back ... going back up the stairs. Hewas out of my sight for a few seconds. I hear maybe one more time, What do you think you're doing? And then all ... then all I heardwas ... all I heard was like a loud metallic like ... like ding, like a cracking-type noise. I ... I heard a cracking-type noise and then I heard... and then I heard like a thud-type noise like something just hit the ground. 93.

Martin continued: a. ... the fire poker in my hand, and as soon as I heard that noise, I just dropped the fire poker... While I’m doing that, I witnessMatt and Shane coming back down the stairs .. like fast ... the two of them were kind of just like pacing back and forth in the living roomand Shane said something like, It’s done, it’s over, it’s done. ... he just drops the bat on the floor somewhere in the living room ... 94. When asked by Crown counsel how the appellant was holding the bat, Martin replied: a. Basically, the same way he had it when he went up the stairs.

The handle in his hand, the big part of it facing downwards tothe ground. 95. When asked to describe what was said, Martin testified that the appellant repeated “it was done, it’s over” whereas hisbrother, Matt, “was more in like a controlling state” saying: a. ... He’s dead and We got to bury him. ... We got to get something to wrap him up in. 96. Faced with this evidence, it was up to the trial judge to decide whether an air of reality attached to the defence of provocationsuch that he would be obliged to put it to the jury.

After considering counsels’ submissions in a pre-charge conference, JusticeCacchione advised counsel that in his opinion it would be wrong for him to charge the jury on provocation. 97. Just as it is an error in law to keep from a jury a defence that has an air of reality, so too is it is an error in law to put to a jurya defence which lacks an air of reality. Given the evidence in this case, which I have quoted at some length, I agree with the Crown thatit would have been an error for Justice Cacchione to have charged the jury on provocation. I would dismiss this ground of appeal. i. 5.

The sentence he received is unfit and ought to be varied 98. In this country the sentence following a conviction for murder is imprisonment for life. Parole may reduce the time behindbars. In R. v. Hawkins, 2011 NSCA 7, Justice Beveridge explained it this way: a. 2 Life imprisonment is the maximum sentence of incarceration in Canada. Since the abolition of capital punishment, theonly penalty for any accused convicted of murder is life imprisonment. Subject to a grant of clemency from the executive, the offenderwill always be subject to this sentence for the rest of his natural life. b. 3 Parole is a possibility.

For an offender convicted of first degree murder, there is no eligibility for parole prior to serving25 years incarceration. Offenders convicted of second degree murder must serve a minimum period of ten years before being eligible toapply for parole. However, a sentencing judge is required to consider whether that minimum period of ten years should be increased bysome number up to a maximum of 25 years. 99. In this case, the trial judge imposed a period of 16 years of parole ineligibility.

The appellant says he erred in principle in theapproach he took to choosing such a period and in so doing imposed a sentence that was unfit. I agree and for the reasons that followwould reduce that period to 13½ years. 100. The standard of review in sentencing appeals is well-known. Absent an error in principle, a failure to consider all relevant factsor an over emphasis of appropriate factors, we will not intervene to vary a sentence unless the sentence is demonstrably unfit. R. v. M.(C.A.), (SCC), [1996] 1 S.C.R. 500. 101.

Here the appellant says the trial judge erred in principle in the manner in which he chose to characterize the murder of Mr.

101. Here the appellant says the trial judge erred in principle in the manner in which he chose to characterize the murder of Mr.Love which, if I understand his arguments correctly, caused the judge to over emphasize the aggravating features of the case. To quotefrom his factum: a. 71. It is submitted that the Learned Trial Judge erred in setting parole ineligibility at sixteen (16) years. It is submitted thatthis constitutes an unfit sentence. The Learned Trial Judge's decision relied on characterizations made with respect to the nature of theoffence.

The Learned Trial Judge stated the following: b. …The nature of the attack in this case is another aggravating factor. This was not an offence committed at a distance with afirearm, which tends to support a less personal approach to the violence. Rather, it was an offence involving repeated blows with both abeer bottle and, as best can be determined, a baseball bat. To me that indicates a very personal type of violence. It indicates, contrary tothe expressions of friendship, a very personal dislike of the victim. c. ...

The number of blows struck and the location of these blows, primarily to the head, attest to the degree of anger and rageof which you are capable, Mr. Ward. This is not simply one or two blows by a bunch of drunken guys, but rather anywhere between nineand 13 blows according to Dr. Bowes, primarily to Philip Love's head. d. 72. The Learned Trial Judge concluded that he was not persuaded that a minimum period of parole ineligibility wasappropriate considering the character of the nature of the offence and the circumstances surrounding the commission of the offence. e. 73. Along the same lines of R. v.

Paterson, it is submitted that it was an error to characterize the killing of Mr. Love in themanner that the Learned Trial Judge did in coming to a conclusion on parole ineligibility. The Honourable Justice Lambert had thefollowing to say with respect to the nature of second degree murder: f. [30] The truth of the matter is that just about every second degree murder case is brutal and vicious. And in most of themdeath is more likely to be lingering and painful than it is to be instantaneous. g. R. v. Paterson, 2001 BCCA 11 , at paragraph 30. Tab R of Appellant's BOA h. 74.

Similar to the reasoning of the Honourable Justice Lambert, it is submitted that the method of Mr. Love's death is nomore aggravated than other forms of second-degree murder. As testified to by Mr. Bowes, the injuries sustained were likened to freefalls, or unrestrained passengers in car accidents. Likewise the anger and rage that the Learned Trial Judge refers to serves to make thekilling more understandable but not more aggravated. Therefore it is submitted that he trial judge erred in his assessment of the qualityof the killing.

It is submitted that the Learned Trial Judge relied more on his own subjective impressions rather than the essentialelement of objectivity required for a comparison of this killing with others. 102. While I would reduce the period of parole ineligibility, it would not be for the reasons expressed in the appellant’s factum. 103. First, although the appellant neglects to mention it, and while no one would question the accuracy of Justice Lambert’sobservations in Paterson, it is to be remembered that his comments were expressed in dissent.

While he would have allowed the appealin that case and reduced the sentence of life imprisonment without parole eligibility from 14 years down to 12 years, the majoritydeclined to interfere with the sentencing judge’s discretion and dismissed the appeal. 104. Second, I am not persuaded that the trial judge erred in either his characterization of this vicious attack, or the emphasis heplaced on those aggravating factors in crafting what he considered to be a proper sentence. 105.

Rather, I am of the view that in fixing the period of parole ineligibility at 16 years, the trial judge exceeded the acceptablerange of sentence for the offence of second degree murder in similar circumstances, such that it is demonstrably unfit and warrants ourintervention. 106. Mr. Ward appeared for sentencing on April 1, 2010. Justice Cacchione had the benefit of counsels’ written and oralsubmissions, various victim impact statements filed by family and friends of the late Phillip Love, and a pre-sentence report.

However,he would not have been aware of this Court’s sentencing decision in Hawkins, released January 17, 2011. 107. There, my colleague Justice Beveridge meticulously examined leading cases in this and other jurisdictions before stating whatthis Court sees as being the appropriate current range for parole ineligibility following conviction for second degree murder in caseswhere similar circumstances may be ascribed to both the offence and the offender.

In such cases as those, this Court has declared that theappropriate period of imprisonment before eligibility for parole can be considered ranges between 12 and 15 years. 108. While there will always be exceptional cases where judges might be persuaded that there is good reason to move below orbeyond that range, the judge will be obliged (as would be expected in any other type of sentencing decision) to articulate the reasons fordeparture, which might then form a basis for meaningful review on appeal. 109. After reaching its verdict the jury declined to make a recommendation concerning Mr.

Ward’s parole ineligibility date. TheCrown urged that the period of parole ineligibility be fixed at 15 years whereas counsel for the appellant asked for 10 (which counselargued would be the equivalent of 14 years if the trial judge were prepared to consider a 2 for 1 “credit” for time spent in pre-trialcustody). The trial judge fixed 16 years as being appropriate in the circumstances. 110. After carefully reviewing the record, I see nothing in the facts of this case which would take it outside the range.

While itmight seem distasteful to some to “compare” the features of one homicide against another, the reality is that such an analysis is requiredin order that proper, sensible and predictable “ranges” might be established. To the extent that one can ever “grade” the level of

viciousness or brutality associated with murder, such an analytical exercise is warranted if one’s objectives are to achieve proportionality and consistency in sentencing for similar crimes and similar offenders. 111 . At the time of sentencing Shane Ward was 35 years of age, single, with a Grade 12 education. He and his brother Matt left Nova Scotia “for greener pastures” and worked in Ontario for nine years before returning to Nova Scotia. He then entered a common law relationship which continues.

While in high school he was a wrestler who displayed sufficient skills to make it to the nationals and be asked to try out for the Canada Games team. Witnesses referred to the appellant as being a very capable and hard-working drywaller. He denied using drugs and said he rarely drank alcoholic beverages. His probation officer described him as an intelligent, pleasant and co-operative individual. Letters of support described Mr. Ward as kind, honest and non-violent, in many ways “a peacemaker” within his group of friends.

People said the offence was out of character and that the appellant was one who always put the interests of others ahead of his own. The appellant was also cited as the person responsible for saving the lives of several individuals whose house was on fire. Mr. Ward was able to raise the alarm and get people to safety before anyone was hurt. 112 . Such commendable qualities and mitigating factors must be contrasted with the aggravating features noted by the trial judge. The appellant told his probation officer that he could not remember the details of the offence.

He thought Phillip Love said “I’m going to kill you”, he felt scared and only recalled hitting Love with an unknown object. Mr. Ward had a somewhat dated criminal record, but which did include crimes of violence including assault, possession of a weapon, and assault causing bodily harm. Significantly these incidents involved assaults upon relatives and friends. This suggests that the appellant has a hair trigger temper or little capacity to control his emotions. 113 . There can be no question that Phillip Love was the victim of a brutal murder. He was virtually beaten to death in his own home.

He lingered on in the hospital for several days. However, given the nature of his severe skull and brain injuries, death was inevitable. 114 . Undoubtedly alcohol was a factor in these tragic circumstances. The trial judge found that the appellant was intoxicated but also appeared to be the least intoxicated of all of the persons who were in the residence that evening. 115 .

After taking into account all of these circumstances including the principles and objectives of sentencing; the appellant’s culpability in such a senseless and vicious assault; and a recognition that in his case the prospects for parole should not be so distant as to dash all hope for rehabilitation, I would fix the appellant’s period of parole ineligibility at 13½ years. 116 . In all other respects I would dismiss the appeal. i. Conclusion 117 . The appeal against conviction is dismissed.

Leave to appeal sentence is granted and the appeal against sentence is allowed by reducing the appellant’s period of parole ineligibility from 16 years to 13½ years. Saunders, J.A. Concurred in: Beveridge, J.A. Farrar, J.A.