R v Naistus, 2019 SKCA 4

Court of Appeal for Saskatchewan Docket: CACR2958 Citation: R v Naistus , 2019 SKCA 4 Date: 2019-01-11 Between: Her Majesty the Queen Respondent And Alvin Patrick Naistus Appellant Before: Jackson, Caldwell and Leurer JJ.A. Disposition: Appeals dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Leurer On Appeal From: CRM 180 of 2016, Saskatoon Appeal Heard: November 9, 2018 and December 19, 2018 Counsel: Patrick M. McDougall for the Appellant Andrew S.

Davis for the Respondent Caldwell J.A. [ 1 ] Alvin Patrick Naistus appeals against his conviction by a jury on the charge of second degree murder ( Criminal Code , s. 235(1) ) and against the sentence imposed by the trial judge of life imprisonment with no eligibility for parole for ten years. For the reasons that follow, I would dismiss both appeals. [ 2 ] In his conviction appeal, Mr. Naistus raised several grounds that are predicated on the admission of fresh evidence. Mr.

Naistus suggested that some evidence, which has now become available to him but which he has not put before this Court, could have affected the jury’s deliberations and the determination of guilt it reached. He also suggested the evidence indicates a Crown witness (on whose evidence Mr. Naistus had also relied at trial) may have intentionally misled the jury, leading to an unfair trial or a miscarriage of justice. Mr. Naistus identified the source of the fresh evidence as his girlfriend, whom he said he was unable to find or subpoena to testify at his trial. Mr.

Naistus did not, however, provide the Court with an affidavit or anything else to indicate what his girlfriend might have to say about the homicide or its circumstances. That is, there is nothing before us from Mr. Naistus’ girlfriend to indicate what her evidence is or how it might undermine the credibility of the Crown witness or the reliability of that witness’s evidence. [ 3 ] In oral argument, Mr. Naistus identified a particular piece of the testimony of the Crown’s witness and said the evidence of Mr. Naistus’ girlfriend will show that the testimony is false. However, as I read it, the testimony Mr.

Naistus seeks to impugn already stands for the fact Mr. Naistus seeks to prove through his girlfriend’s evidence. Frankly, I do not see how Mr. Naistus interprets the testimony any differently. On its face, the impugned part of the Crown witness’s evidence is already favourable to Mr. Naistus in that it may be considered supportive of a conviction for manslaughter as opposed to second degree murder. [ 4 ] Nonetheless, to put a point on his first avenue of appeal, because Mr.

Naistus has not in fact obtained any fresh evidence and has not applied to adduce any evidence whatsoever before this Court, I am simply unable to see any merit to the grounds of appeal that are founded on fresh evidence. The appeal on those grounds must be dismissed. [ 5 ] Turning to the second avenue of appeal, in his notice of appeal and through his factum, Mr.

Naistus alleged the trial judge had failed to properly instruct the jury with respect to the availability of a conviction for manslaughter (s. 234) and with respect to the defence of self-defence under s. 34 of the Criminal Code in the circumstances of the homicide. However, at the outset of the appeal hearing on November 9, 2018, Mr. Naistus advised the Court that he was abandoning this avenue of his appeal. After a brief recess, we heard oral argument from the Crown on whether the Court was obliged to accept Mr. Naistus’ abandonment of this ground.

At the conclusion of argument on that question, we stepped down again, this time to consider whether we could or should pursue the ground of appeal, notwithstanding it had been abandoned ( see: R v Mian , 2014 SCC 54 , [2014] 2 SCR 689 ) . After deliberating on that question but without determining it, we returned to the hearing and advised counsel that we might later recall them to hear argument on the issue of the sufficiency of the jury charge if, upon further reflection, we determined it was necessary. We then proceeded to hear argument on Mr.

Naistus’ first avenue of appeal and reserved our decision in that regard. Subsequently, having seen some possible merit on the face of the record to the allegations of error in the jury charge, we reconvened the appeal hearing on December 19, 2018, to receive argument on the sufficiency of that charge. At the reconvened hearing, Mr. Naistus maintained his position that there was simply no merit to his allegations of error in the charge and he made no submissions on this ground of appeal.

For its part, the Crown addressed the Court fully on the sufficiency of the charge. [ 6 ] Having now received argument from the Crown, I am satisfied Mr. Naistus’ allegation that the trial judge erred by failing to “properly and fully” instruct the jury with respect to manslaughter and self-defence does not rise to a level that would permit this Court to intervene. [ 7 ] To begin, when reviewing the trial judge’s charge, it is important to recall that Mr. Naistus had argued at trial that self- defence was a complete defence to the charge of second degree murder. That is, Mr.

Naistus had argued almost exclusively for an acquittal on the charge of second degree murder and, by implication, the lesser included offence of manslaughter. The Crown, on the

other hand, had argued the evidence ought to lead the jury to convict for second degree murder. While both Mr. Naistus and the Crownacknowledged in their final submissions to the jury that manslaughter was a lesser included offence to second degree murder, neither hadadvanced much, if any, argument in that direction. [8] Nonetheless, the trial judge properly understood that manslaughter had to be put to the jury in the context of this case.

That isbecause an accused may be convicted of manslaughter where a jury has rejected the defence of self-defence under s. 34 on a charge ofsecond degree murder (R v Faid, (SCC), [1983] 1 SCR 265 at 271–272). However, this does not mean, where thedefence of self-defence is put to a jury and rejected (i.e., where the defence has an air of reality to it but it does not lead the jury to hold areasonable doubt about guilt) that culpable homicide is reduced necessarily from murder to manslaughter (R v Faid; Brisson v TheQueen, (SCC), [1982] 2 SCR 227, per Dickson J. (as he then was)).

This is so because the actus reus of a homicide iseither justifiable under s. 34 or it is not—there is no middle ground. If it is justified homicide, then an acquittal must follow. If it isculpable homicide, then a conviction must follow—either for murder or for manslaughter. The thing that determines which convictionfollows is the accused’s intent. If the jury is satisfied beyond a reasonable doubt that the accused had one of the two requisite intents forsecond degree murder, then they must convict for that offence.

If the jury is not satisfied beyond a reasonable doubt that the accused hada requisite intent for murder, then they must convict for manslaughter. [9] As noted, the trial judge understood this and framed his charge accordingly. Recognising that culpable homicide could bemanslaughter if the jury were not persuaded beyond a reasonable doubt that Mr. Naistus held the requisite intention to kill his victim, thetrial judge put the availability of a conviction for manslaughter to the jury. In particular terms, the trial judge told the jury that, if theywere satisfied Mr.

Naistus had committed an unlawful act that had caused the victim’s death, then they nevertheless had to consider (i)whether Mr. Naistus had intended to cause death or (ii) whether he had intended to cause bodily harm that he knew was likely to causedeath and was reckless as to whether death ensued. These are the two intents that satisfy the mens rea element of second degree murder.The trial judge then instructed the jury that, unless they were satisfied beyond a reasonable doubt that Mr. Naistus had either of those twointents, they had to acquit him of second degree murder but had to convict him of manslaughter.

As such, the trial judge properly andcorrectly instructed the jury on the availability of a conviction for manslaughter in the circumstances of this offence. [10] However, the prima facie concern with the jury charge in this case arises from the trial judge’s explanation of how therequisite intent to commit second degree murder may be negatived by evidence tending to support a rejected defence of self-defence. Toplace this concern in context, near the beginning of his charge, the trial judge identified the three essential elements of second degreemurder, namely: (

i) that Mr. Naistus had committed an unlawful act; (ii) that Mr. Naistus’ unlawful act had caused the victim’s death;and (iii) that Mr. Naistus had the intent required for murder. He then instructed the jury that unless they were satisfied beyond areasonable doubt that the Crown had proven all three of these elements beyond a reasonable doubt, and they had no reasonable doubtafter considering the defence of self-defence, then they had to find Mr.

Naistus guilty of second degree murder. [11] When referring to the first element of the offence, the trial judge outlined and explained the requirements of the defence ofself-defence under s. 34 of the Criminal Code and the onus on the Crown in that regard. The trial judge next reviewed, in considerabledetail, the evidence he had identified as relevant to that defence. He then instructed the jury to acquit Mr.

Naistus of second degreemurder if they found the conditions for self-defence were present, explaining several times that the Crown had the onus of provingbeyond a reasonable doubt one or more of three things: (

i) that Mr. Naistus did not believe, on reasonable grounds, that force or the threatof force was being used against him; (ii) that Mr. Naistus had not committed the act for the purpose of defending or protecting himselffrom the use of force or the threat of force; and (iii) that Mr. Naistus’ act was not reasonable in the circumstances. I see no error in thetrial judge’s charge in this respect. [12] The trial judge continued his charge by explaining that, if the jury rejected Mr. Naistus’ claim of self-defence, they had toconsider the second element of second degree murder.

In that regard, he instructed them to acquit unless they were satisfied beyond areasonable doubt that Mr. Naistus had caused the victim’s death. Again, I see no error in this. [13] When it came to the third element of second degree murder, namely, whether Mr. Naistus had the requisite intent for murder,the trial judge said: If you are satisfied beyond a reasonable doubt that Alvin Patrick Junior Naistus caused William Johnston’s death, you must go on to thenext question.

The third question in -- in considering the elements of second degree murder is: Did Alvin Patrick Junior Naistus have theintent required for murder? To prove that Alvin Patrick Junior Naistus had the intent required for murder, the Crown must prove beyonda reasonable doubt one of two things, either: One, that Alvin Patrick Junior Naistus meant to cause William Johnston’s death; or, two,that Alvin Patrick Junior Naistus meant to cause William Johnston bodily harm that he knew was likely to cause his death and wasreckless whether death ensued or not.

In other words, you must decide whether the Crown has proved beyond a reasonable doubt either that Alvin Patrick Junior Naistus meantto kill William Johnston, or that Alvin Patrick Junior Naistus meant to cause William Johnston bodily harm that he knew was sodangerous and serious that he knew it was likely to kill William Johnston and proceeded, despite his knowledge of that risk. The Crown does not have to prove both, nor do you all have to agree on the same intent, so long as each of you is satisfied that one orboth has been proven beyond a reasonable doubt.

To determine whether the Crown has proved that Alvin Patrick Junior Naistus has one of the intents required for murder, you mustconsider all of the evidence, including the nature of the harm inflicted and anything said or done in the circumstances. You may infer, asa matter of common sense, that a person usually knows what is -- the predictable consequences of his or her actions are and means tobring them about. However, you’re not required to draw that inference about Alvin Patrick Junior Naistus.

Indeed, you must not do so if,on the whole of the evidence, you had a reasonable doubt whether Alvin Patrick Junior Naistus had one of the elements -- or one of theintents required for murder. In particular, consider whether this evidence causes you to have a reasonable doubt whether Alvin PatrickJunior Naistus knew that William Johnston was likely to die. It’s for you to decide. In this case, you can consider that William Patrick (sic) -- William Johnston was stabbed in the chest with great force, as stated by Dr.

Elizabeth Brooks-Lim in her autopsy report, Exhibit P-14. It is for you to decide if that -- whether by stabbing him with such force, Alvin Patrick Junior Naistus intended to murder William Johnston or not. Unless you are satisfied beyond a reasonable doubt that Alvin Patrick Junior Naistus had the intent required for murder, you must find Alvin Patrick Junior Naistus not guilty of second degree murder, but guilty of the included offence of manslaughter.

If you are satisfied beyond a reasonable doubt that Alvin Patrick Junior Naistus had the intent required for murder and you have no reasonable doubt with respect to the defence of self-defence, you must find Alvin Patrick Junior Naistus guilty of second degree murder. [ 14 ] The trial judge then summarised the Crown and defence theories of the case, revisited the possible verdicts arising from the evidence, and advised the jury of the requirement for unanimity. The trial judge mentioned the possibility of a conviction for manslaughter, where appropriate, throughout his closing instructions.

He then concluded his charge by reminding the jury of the solemnity of their task and its importance in a democratic society, leaving them to their deliberations by saying: If at any time after you begin to deliberate you should encounter difficulty with respect to the law, just give a note to the Sheriff. He will deliver it to me. We will then reassemble, and I will try to help you by answering certain questions. Those are my instructions to you. And I am going to ask you to leave now and to wait, as I said, before commencing your deliberations for a few moments, to give us a time to -- to review my Charge.

And the Sheriff will advise you when those deliberations may commence. [ 15 ] The jury then retired, following which all counsel expressed their satisfaction with the charge. The trial judge then ordered that the jury be provided with a verdict sheet and the trial exhibits, but declined to act on the Crown’s suggestion that the jury might benefit from having a decision tree.

They were then permitted to commence their deliberations. [ 16 ] Early in their deliberations, the jury took the trial judge up on his offer to answer questions with respect to the law by seeking to obtain a breakdown of the three elements of second degree murder. The trial judge was reluctant to simply provide a breakdown to the jury. Mr. Naistus argued against that too. He and the Crown also argued against giving the jury a copy of the jury charge; Mr.

Naistus on the ground it merely contained an overview of the evidence relevant to the elements of the offence, not the totality of the evidence; the Crown on the grounds that the case was not complex and a decision tree would be more useful to the jury. Mr. Naistus then reiterated his objection to providing the jury with a decision tree because it would not include reference to the evidence.

In the end, the trial judge, with the agreement of counsel, gave the jury nothing further and waited to see if they could reach a decision with what they already had, saying: Ruling (Charge to the Jury) THE COURT: Well, I -- I -- I -- as I say, I -- I -- I considered doing that [i.e., giving the jury a decision tree], but I don’t think that you can draft one that covers all of the eventualities, that -- that are taken into account. And -- and then you’ve got to break it down into one, two, three for self-defence. And I -- I thought it was going to confuse the jury, actually.

So it’s -- it -- I’m satisfied -- I think we’ll -- we’ll leave the jury as it now sits, and tell them that they have to consider the charge that I made. And if they want further instructions on anything, they can come back. MR. MCDOUGALL: M-hm. THE COURT: And if they do, I’ll simply read them that part of my judgment (sic) that I gave them in respect to those issues. In other words, the -- all of the issues that I -- that I -- I gave -- gave them at the -- the decision tree -- or, I mean, I gave them the charge on. I don’t see any other way to do it.

I don’t want to -- I don’t want to confuse them by -- by giving them something else now. So it’s either all or nothing. After some further discussion on the merits of giving the jury a decision tree, the judge reiterated his ruling and closed the morning session of court: THE COURT: Well, I -- I guess -- I guess, we’ll -- we’ll see if they can come to a decision, based upon what they have at the present time. Tell them they can come back at any time, if they want further instructions on that. And if they do, I will repeat the instruction I have. THE SHERIFF: Okay, My Lord. THE COURT: Thank you.

THE COURT CLERK: Order, all rise. [ 17 ] At the start of the afternoon session, the jury posed three direct questions to the trial judge: THE COURT: The jury has come back with some questions. They -- the -- there are three questions: (as read) We need the letter of the law and underlying letter of the law concerning self-defence, second degree murder, and manslaughter. The second question is: (as read) Also, how does the state of mind play into application of these laws? And third: (as read) Is it up to the jury to determine the state of -- to determine state of mind?

So, obviously, they -- they want to hear that portion of the charge in relation to second degree murder, manslaughter, and self-defence. MR. MCDOUGALL: M-hm. THE COURT: And I think if I was to read that to them, it also answers questions two and three, which is: (as read) How does the state of mind play into the application of these laws? But I -- I wouldn’t mind if -- if you have any thoughts on it, if you can -- MR. MCDOUGALL: What page are you -- THE COURT: -- but -- MR. MCDOUGALL: -- what -- what’s -- portion are you talking about? Is it the portion that starts with: (as read) Number 4, the offence.

THE COURT: Yes. MR. MCDOUGALL: Okay. Thank you. THE COURT: It would go up to: (as read) The position of the parties. MR. MCDOUGALL: (as read) The position -- So all of the evidence, as well? THE COURT: Yes. MR. MCDOUGALL: Okay, then. Submissions by Ms. Claxton-Viczko (Charge to the Jury) MS. CLAXTON-VICZKO: It’s agreeable to the Crown, My Lord. Submissions by Mr. McDougall (Charge to the Jury) MR. MCDOUGALL: And there’s no issue with that. THE COURT: All right. Bring the jury in, please. As is evident, the three questions asked by the jury were directed to the very point raised under Mr.

Naistus’ second avenue of appeal.That is, the record indicates the jury was having at least some difficulty with the questions of mens rea and self-defence and how thoselegal concepts were interwoven with the evidence of second degree murder and of manslaughter.

However, the transcript also confirmsthat the trial judge, with the parties’ agreement, twice correctly instructed the jury on the law in that regard. [18] This Court’s prima facie concern about the sufficiency of the trial judge’s instructions arose not from his statements of thelaw, but from the way in which the trial judge related the applicable law to the evidence that was before the jury. In particular, while thetrial judge correctly instructed the jury that, to convict of murder, they had to be persuaded beyond a reasonable doubt Mr.

Naistus hadhad the intent to murder and that they had to reach that conclusion on all of the evidence of the homicide, the trial judge did not identifyall of the evidence that might have been relevant to that line of inquiry. [19] Considered in context, it is understandable that the trial judge did not dwell on this point or on the evidence relevant to itbecause manslaughter had not been part of either the Crown’s or Mr. Naistus’ theory of the case. Further, although certainly notdeterminative of the adequacy of the charge, Mr.

Naistus and the Crown had expressed their satisfaction with the approach taken by thetrial judge on this issue. Mr. Naistus had been specifically satisfied with the fact the approach involved revisiting all of the evidence ofself-defence, which was also relevant to the question of Mr. Naistus’ intent. Moreover, it is also material that Mr.

Naistus had nottestified in his trial, meaning there was no direct evidence as to his subjective state of mind to which the trial judge might have referredthe jury. [20] Therefore, at the end of the day, the trial judge twice reviewed the evidence pertaining to self-defence and twice instructedthe jury to consider all of that evidence and all other evidence in their deliberations on the question of whether Mr. Naistus had therequisite intent for second degree murder.

Nonetheless, the troubling aspect of the charge is that only one piece of relevant evidence hadbeen directly tied to the question of intent, namely, the force of the stab that had killed the victim. That is, when taken on its face and inisolation, this aspect of the charge could have left the jury with the impression that other evidence, including that of self-defence, was notrelevant to the question of intent.

However, I am satisfied this concern does not rise to a level that provokes appellate intervention. [21] To reach this conclusion, I start with the proposition that this Court must adopt a functional approach when reviewing a jurycharge, the purpose of which is to ensure that the jury was properly—not perfectly—instructed (R v Jacquard, (SCC),[1997] 1 SCR 314 at paras 32 and 62; R v Daley, 2007 SCC 53, [2007] 3 SCR 523). Acting on this foundational principle, appellate

courts must examine the whole of the jury’s instructions to assess whether they achieve their purpose, namely, to equip the trier of factwith the tools necessary to make the findings required in the case at hand. As this suggests, the Court cannot examine a single piece of ajury charge in isolation from the rest of the charge or from what has occurred in the trial.

Matters such as the evidence adduced by theparties, the theories and submissions of the parties, and the parties’ suggestions and objections, if any, about the content of the jurycharge are all material to the question of whether a jury charge functionally achieved its purpose (R v Jacquard at paras 33–36; R vDaley at para 58; Thériault v The Queen, (SCC), [1981] 1 SCR 336 at 343–344; R v Royz, 2009 SCC 13 at para 3,[2009] 1 SCR 423); so too are the language, style and format of the jury charge chosen by the trial judge to convey his or her instructionsto the jury (R v Daley at para 30). [22] While not arising in this case, the importance of trial context in determining the adequacy of a jury charge is easily observablein cases where a warning under R v Vetrovec, (SCC), [1982] 1 SCR 811, may be appropriate.

In such circumstances, thedefence may gain benefit from the trial judge warning the jury about the dangers of accomplice testimony; however, the case for theCrown may also be amplified by the trial judge repeating and drawing the jury’s attention to evidence that corroborates the accomplice’stestimony. On a risk-versus-reward analysis, the defence may tactically decide it is better for a trial judge not to have warned the juryabout the dangers of unsavoury witnesses.

Similarly, the defence or Crown may decide it is better not to have an included offence or adefence, justification or excuse left with the jury so as to avoid the possibility of a compromise verdict (R v Luciano, 2011 ONCA 89 atpara 76, 267 CCC (3d) 16).

Regardless, the point is that, because the parties are often called upon to make tactical decisions about thesufficiency of a jury charge based on the issues and evidence at play in the trial, appellate courts must take that fact into account in theirassessment of the sufficiency of the charge (R v Luciano at para 77; R v Royz at para 3). [23] When all of this is applied to the circumstances of this case, I find the jury charge was responsive to the issues put in play inthe trial by the Crown and by Mr. Naistus. It was consistent with their respective theories of the case.

The form and content of the chargewas twice reviewed by counsel, with no objections raised, at least none that are relevant to the issue before this Court. Importantly, Ihave no hesitation in concluding the jury received the law correctly and repeatedly. [24] This Court was initially troubled that the jury’s attention had not been drawn to the evidence of self-defence relevant to theelement of intent or how that evidence might have pertained to the availability of a conviction for manslaughter.

Nonetheless, I amsatisfied the charge left the jury with a strong impression that they had to consider all of the evidence when answering the question ofwhether Mr. Naistus had the requisite intent for murder. I further note that, while a judge is under a duty to review material evidencerelevant to the issues that are before the jury, a judge is under no duty to repeatedly review all the evidence as it relates to each particularissue in a trial (Azoulay v The Queen, (SCC), [1952] 2 SCR 495 at 497).

That is, the law does not require a trial judge togive the same instruction on the same evidence twice, even when it may relate to two different issues at trial (R v Jacquard at paras 13–14; R v Luciano at para 73). Furthermore, in the context at hand, where Mr.

Naistus’ subjective intention was a determining factor,revisiting all of the evidence relevant to mens rea would have highlighted for the jury the fact that most of that evidence, including twovideo recordings of the homicide (which this Court viewed in the appeal hearing), pointed towards a culpable intention. [25] As to the three questions asked by the jury, the trial judge and counsel concluded the questions indicated a need for furtherinstruction or a reminder on the law as it related to the requisite intent for second degree murder and whether it was up to the jury todetermine whether Mr.

Naistus had the requisite intent. They did not see the questions as being indicative of confusion on the part of thejury and, indeed, the trial judge sought to avoid creating any confusion on their part by repeating the relevant portions of the charge. Theparties also agreed the jury’s questions could be answered adequately by repeating the bulk of the jury charge. [26] In my own assessment, I do not interpret the jury’s questions as being indicative of confusion as to the law.

Rather, and inkeeping with their first request, the questions indicate that the jury sought an exposition of the law and confirmation of the decisions itrequired of them as the trier of fact. Material to this

interpretation is the fact the jury did not have access to a hardcopy of the jury charge,which addressed those questions; both the trial judge and Mr. Naistus being of the view it was not necessary.

On that basis, the trialjudge’s response to the jury’s questions was logical and reasonable as it re-instructed the jury in a consistent way about the lawpertaining to the questions they had raised and their obligations in that regard. [27] Perhaps most importantly, the trial judge had made it clear in his initial charge to the jury, and several times throughout thecourse of their deliberations, that the jury could, at any time, come back to him with questions if they needed further assistance. And,they twice availed themselves of that opportunity.

But, following the re-instruction, the jury returned with its verdict. Having beenimpressed with the importance of their task and with the ready availability of further assistance from the trial judge, the fact the juryreached a verdict without asking further questions must be taken as indicative of an understanding of their role as trier of fact and of thedecisions they had to make in that regard in the context of this trial.

I cannot conclude that 12 independent jurors, having received theinstructions they did, would render a verdict of guilt on a charge of second degree murder while harbouring any doubt as to what theyhad been asked to do or as to how to do it. [28] In short, having reviewed the jury charge and the trial judge’s response to the jury’s subsequent questions, I find theinstructions to the jury were proper and fair given the circumstances of this case. [29] As to sentence, although Mr.

Naistus has asked this Court to overturn his sentence of life imprisonment with no eligibility forparole for ten years, he provided us with no written or oral argument in that regard. Moreover, the sentence is the minimum sentenceavailable under the Criminal Code for a conviction on a charge of second degree murder. There is no merit to the sentence appeal. [30] I would, therefore, dismiss the conviction and sentence appeals in this case. “Caldwell J.A.” Caldwell J.A.I concur. “Leurer J.A.”forJackson J.A. per authorizationI concur. “Leurer J.A.” Leurer J.A.