R v Natewayes, 2015 SKCA 120

Court of Appeal for Saskatchewan Citation: R v Natewayes , 2015 SKCA 120 Date: 2015-11-18 Between: Docket: CACR2600 Her Majesty the Queen Appellant And Tasia M. Natewayes Respondent And Between: Docket: CACR2640 Tasia M. Natewayes Appellant And Her Majesty the Queen Respondent Before: Richards C.J.S., Caldwell and Whitmore JJ.A. Disposition: Crown appeal allowed; Ms. Natewayes’ appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Whitmore On Appeal From: C.R. 47 of 2013, J.C. of Prince Albert Heard: 30 October 2015 Counsel: W. Dean Sinclair, Q.C. for Her Majesty the Queen Peter A. Abrametz for Tasia M. Natewayes Richards C.J.S. I. Introduction [ 1 ] Tasia Natewayes was charged with manslaughter in connection with a stabbing death that occurred during the course of a home invasion. She had driven a group of men to the house where the fatal attack occurred so they could assault Cody Vandall. The trial judge acquitted Ms.

Natewayes of manslaughter but convicted her of break and enter for the purpose of committing an indictable offence. The judge entered the acquittal because she found that, although Ms. Natewayes had known the men intended to assault Mr. Vandall, she could not reasonably have foreseen the presence of the victim at the scene and the risk of harm to him. [ 2 ] The Court is faced with two appeals. First, the Crown argues the trial judge erred in holding that Ms. Natewayes’ liability on the manslaughter charge depended on her foreseeing a specific risk of harm to the victim. Second, Ms.

Natewayes submits the break and enter conviction was unreasonable and should be set aside. [ 3 ] As explained below, I conclude that the Crown’s appeal must be allowed and Ms. Natewayes’ appeal dismissed. II. background [ 4 ] The evidence at trial was largely undisputed. The Crown’s case was substantially presented in the form of an agreed statement of facts. [ 5 ] Kyle Goodrich was Ms. Natewayes’ boyfriend. He knew Cody Vandall. The two men did not like each other and were involved in an ongoing dispute over a drug transaction. [ 6 ] On September 15, 2012, Mr.

Vandall was in a Shoppers Drug Mart in Prince Albert with his aunt and spouse. Mr. Vandall spoke to Ms. Natewayes outside of the store and asked about Mr. Goodrich’s whereabouts. He told her to advise Mr. Goodrich that he would be waiting for him in the parking lot. Ms. Natewayes told Mr. Goodrich what Mr. Vandall had said. Mr. Goodrich then sent a text message to some friends asking for help. [ 7 ] Mr. Vandall waited in the parking lot for Mr. Goodrich to appear but was eventually convinced by his spouse to leave. [ 8 ] Meanwhile, two men (Leo Raine and Blake Norman) went to the Shoppers Drug Mart to assist Mr.

Goodrich. They left the store at approximately 11 p.m. with Mr. Goodrich and Ms. Natewayes but discovered Mr. Vandall was not waiting for them. They got into Ms. Natewayes’ car. She was driving. Mr. Goodrich told her to go by Mr. Vandall’s home to see if he was there. She drove past the house and they saw Mr. Vandall’s car parked outside. [ 9 ] Mr. Goodrich then asked Ms. Natewayes to drive to another house to pick up more people. He and his friends went into that house and returned with two more males, Michael Ward and a youth. One of the men was carrying a baseball bat when he got into the car.

[10] Ms. Natewayes took the group back to Mr. Vandall’s house and parked nearby. During the drive, Ms. Natewayes had seensome of the men covering their faces. The men got out of the car and forcibly entered Mr. Vandall’s home. She waited for their returnand, while doing so, heard screams coming from Mr. Vandall’s house. [11] Dakota Nayneecassum, Mr. Vandall’s cousin, was in the house along with some of Mr. Vandall’s other relatives. Mr. Vandallwas on the second floor. He said he heard banging downstairs and went to see what was happening. He saw three men whose faces weremasked and Mr.

Goodrich, who was not masked. The men attacked him but he managed to break away and run upstairs. He retrieved amachete to defend himself but the culprits fled before he could get back downstairs. He found Mr. Nayneecassum laying on the floorcovered in a yellow substance which Mr. Vandall described as “bear mace”. There was lots of blood. Mr. Nayneecassum had beenstabbed. [12] The men returned to Ms. Natewayes’ car and she drove away from the scene. [13] Ms. Natewayes smelled pepper spray in the car and told the men to get rid of it. Mr. Goodrich then threw the canister out ofthe window. Ms.

Natewayes dropped four of the men off near the house where she had picked up Mr. Ward and the youth. She thendrove Mr. Goodrich to her cousin’s home and washed his clothes. III. the trial decision [14] The trial judge reviewed the evidence and found that Ms. Natewayes knew Mr. Goodrich and his associates were going tobreak into Mr. Vandall’s home with the intent of assaulting him. She also found that Ms. Natewayes intended to assist the men in thisregard. [15] The judge then referred to s. 21 of the Criminal Code.

It creates party liability both where an accused person aids a principaland where the accused and the principal have a common purpose: 21.

(1) Every one is a party to an offence who (

a) actually commits it; (

b) does or omits to do anything for the purpose of aiding any person to commit it; or (

c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that thecommission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence. [16] The trial judge focussed on s. 21(2) and framed the issue concerning Ms. Natewayes’ liability as being whether a risk of harmto the victim had been reasonably foreseeable. She found that such harm was not foreseeable because Ms.

Natewayes did not knowMr. Nayneecassum was in the house. As a result, she found that Ms. Natewayes could not be a party to manslaughter. [17] The trial judge summed up her analysis on the manslaughter issue as follows: … The Crown must prove beyond a reasonable doubt that a reasonable person, in all the circumstances, would have foreseen a risk ofharm to Dakota and, if so, Natewayes would have the requisite mens rea to be guilty by operation of s. 21(2) of the Criminal Code. I must conclude that a reasonable person in all the circumstances would not have foreseen a risk of harm to Dakota.

Natewayes did notsee any knife or sharp object with the five perpetrators when they exited her car at Cody Vandall’s house. A reasonable person wouldcertainly have foreseen the risk of harm to Cody Vandall, should Cody have been the person killed by the force of so many assailants,armed with a metal baseball bat. But the fact is that one of the perpetrators stabbed Dakota in the back, puncturing his lung and heartwith a knife. Dakota was not the target of the assault. … IV. analysis A. The Crown’s Appeal [18] The Crown submits the trial judge erred in holding that Ms.

Natewayes could not be convicted of manslaughter as a partyunless she could reasonably have foreseen the specific prospect of harm to Mr. Nayneecassum. It contends Ms. Natewayes is guilty ofmanslaughter both on the basis of aiding Mr. Goodrich and his associates (s. 21(1)(

b) of the Code) and on the basis that she had formed acommon intention with them to carry out an unlawful purpose (s. 21(2) of the Code). [19] I accept the Crown’s argument that the trial judge erred by proceeding on the basis that Ms. Natewayes had to have foreseen arisk of harm to Mr. Nayneecassum, in particular, before she could be convicted of manslaughter in connection with his death. In relationto s. 21(1)(b), an aider must know that the principal plans to commit the crime, although he or she need not know precisely how it will becommitted.

The aider must also intend to assist the principal in the commission of the offence, although it is not required that he or shedesires that the offence be successfully executed. See: R v Briscoe, 2010 SCC 13 at paras 16–17, [2010] 1 SCR 411. A person may beconvicted of being a party to manslaughter when he or she aids another person in the commission of a dangerous unlawful act where areasonable person in all of the circumstances would have appreciated that bodily harm was the foreseeable consequence of the unlawfulact. See: R v Jackson, (SCC), [1993] 4 SCR 573 at pp 582–583 [Jackson].

[20] As for s. 21(2), if a common unlawful purpose has been proven, the mens rea for manslaughter is objective awareness ofharm. More specifically, a manslaughter conviction will be entered when a reasonable person, in all of the circumstances, would haveforeseen the risk of harm to another individual as a result of carrying out the common intention. See: Jackson at pp. 586–587. [21] Criminal liability as a party to an offence under ss. 21(1)(

b) and 21(2) does not require that the harm in issue be foreseeable inrelation to a specific identifiable individual. No such requirement exists with respect to the liability of a principal and it would thereforebe illogical to demand it with respect to a party. See, for example: R v DeSousa, (SCC), [1992] 2 SCR 944. [22] Ms. Natewayes agrees with this view and accepts that the trial judge erred in law by reasoning otherwise. She acknowledgesthat her liability for manslaughter should not have turned on the question of her advance knowledge of Mr.

Nayneecassum’s presence inthe house where the home invasion occurred or on her knowledge of a risk of harm to Mr. Nayneecassum in particular. Ms. Natewayesconcedes that, given the trial judge’s findings of fact, she should have been found guilty of manslaughter. [23] All of this said, Ms. Natewayes does not accept the trial judge’s findings of fact. She submits that proper factualdeterminations would have released her of all criminal liability. It is necessary, therefore, to turn to her appeal. B. Ms. Natewayes’ Appeal [24] Ms.

Natewayes submits the conviction entered by the trial judge for break and enter was unreasonable. As a result, so herargument goes, she should not be convicted of either break and enter with intent to commit an indictable offence or manslaughter. [25] Ms. Natewayes concedes the trial judge properly concluded that she knew Mr. Goodrich and his confederates were going toassault Mr. Vandall. However, she says the trial judge acted unreasonably in finding she also knew that the men were going to conduct abreak and enter. Because she had no advance knowledge of the break and enter, Ms.

Natewayes submits she cannot be convicted ofmanslaughter in connection with a death that occurred during the course of that crime. [26] In my opinion, the trial judge’s finding with respect to Ms. Natewayes’ knowledge in relation to the break and enter isunassailable. The evidence presented to the judge established the following: • Ms. Natewayes was aware that Mr. Goodrich and Mr. Vandall did not like each other; • After she saw Mr. Vandall at Shoppers Drug Mart and told Mr. Goodrich that he was waiting to fight, Mr. Goodrich sent textmessages for help and that help arrived; • Ms. Natewayes drove Mr.

Goodrich and his friends past Mr. Vandall’s house to see if Mr. Vandall’s car was there; • Seeing the car in place, Ms. Natewayes then drove the men to another house where two more men joined them; • Ms. Natewayes knew that one of the men was armed with a baseball bat; • Ms. Natewayes knew the men were going to fight with Mr. Vandall; • As Ms. Natewayes drove the men to Mr. Vandall’s house, she knew they were making efforts to cover their faces; • Mr. Goodrich told Ms. Natewayes not to park in front of Mr. Vandall’s home. [27] In light of all of this, it was clearly open to the trial judge to find that Ms.

Natewayes knew a home invasion was about tohappen. Indeed, it is difficult to see how any other conclusion was possible. Nobody had been outside Mr. Vandall’s house and the onlyway to get at Mr. Vandall was to force an entry. [28] Ms. Natewayes’ effort to demonstrate that the trial judge’s conclusion about her state of knowledge was unreasonable is basedon p. T136 of the transcript. There, the trial judge said this: … I find that Natewayes had the requisite knowledge that Goodrich and his four perpetrators were going to break into Cody’s home withthe intent to assault Cody.

She told the police that Goodrich had told her when they all got in her car at Roy’s house that they were goingto fight Cody. She knew that she was driving them back to Cody’s residence and was to wait down the street for them. She knew thatthey were going to commit a home invasion, because after she drove the five men away from the scene she wanted the four men in theback seat gone from her car as quickly as possible. She told the police that she knew they had committed a home invasion, but she did not that -- but she did not obtain that knowledge fromthe five men after the fact.

She testified that they did not speak about the offence they committed other than one in the back seat saying,quote, “That was crazy,” unquote. Natewayes knew what the five men intended to do, and she intended to assist them. She did what --she did what she did for the purpose of aiding them to commit the break and enter with the intent to assault Cody Vandall. … (Emphasis added) [29] Ms. Natewayes contends the highlighted portion of this passage reveals a fundamental error in reasoning. She says the fact sherealized after the men had left Mr.

Vandall’s home that there had been a home invasion cannot logically reveal anything about what sheknew before the attack happened. [30] I am not persuaded by this line of argument. As I read this passage, the trial judge (perhaps somewhat inelegantly butunderstandably so given that this was an oral decision) was attempting to explain how Ms. Natewayes’ conduct after the attackconfirmed her state of knowledge before the attack. In other words, the judge was observing that, even though none of the five men toldMs. Natewayes what they had done, she was nonetheless eager to get them out of her vehicle.

I take the judge to have been saying only

that this suggested Ms. Natewayes had known all along what the men had been planning to do. [ 31 ] In any event, the trial judge obviously drew her conclusion about Ms. Natewayes’ knowledge from the full background of the record before her. I do not read her decision as in any way meaning that the only reason for concluding Ms. Natewayes knew there was going to be a home invasion was because, after the fact, she wanted Mr. Goodrich’s friends gone from her car as soon as possible. [ 32 ] In the end, therefore, I conclude that the findings of fact made by the trial judge have not been impeached by Ms. Natewayes.

Given those findings, and as acknowledged by Ms. Natewayes, a conviction for manslaughter must follow. V. conclusion [ 33 ] The Crown’s appeal must be allowed and Ms. Natewayes’ appeal dismissed. [ 34 ] The verdict below with respect to break and enter is set aside and a verdict of guilty on the manslaughter charge is directed. This matter is remitted to the trial judge for sentencing. [ 35 ] Ms. Natewayes has been on interim release pending the outcome of this appeal.

In view of our decision, she must surrender herself to either the RCMP in Sandy Bay or the Saskatoon City Police in Saskatoon on or before 4:00 p.m. on Friday, November 20, 2015. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Whitmore J.A.” Whitmore J.A.