R. v. Bushie (C.O.), (2012) 280 Man.R.(2d) 236 (CA)

• Judge: Hamilton, Chartier and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: June 14, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 280 Man.R.(2d) 236 (CA);2012 MBCA 67

R. v. Bushie (C.O.) (2012), 280 Man.R.(2d) 236 (CA);

      548 W.A.C. 236

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JN.030

Her Majesty The Queen (respondent) v. Cory Owen Bushie (accused/appellant)

(AR 10-30-07458; 2012 MBCA 67)

Indexed As: R. v. Bushie (C.O.)

Manitoba Court of Appeal

Hamilton, Chartier and MacInnes, JJ.A.

June 14, 2012.

Summary:

Following a jury trial, the accused was convicted of second degree murder. He appealed, asserting (1) that the verdict was unreasonable; (2) that the trial judge failed to give a Vetrovec warning; (3) that he made various errors with respect to his instructions on provocation; and (4) that his charge was deficient because he failed to give a "rolled-up" instruction for the issue of intent.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - Following a jury trial, the accused was convicted of second degree murder - He appealed, asserting that, inter alia, the trial judge made various errors with respect to his instructions on provocation - The Manitoba Court of Appeal dismissed the appeal - The issue of provocation was never raised by the accused - It was raised by the trial judge at the pre-charge conference - The subjective element required for the provocation defence lacked the necessary evidentiary foundation for it to have been left with the jury - The accused did not testify, so the subjective element had to be established by inference - The court was of the view that there was no air of reality to the defence of provocation - See paragraph 5.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - Following a jury trial, the accused was convicted of second degree murder - He appealed, asserting that, inter alia, the trial judge's charge was deficient because he failed to give a "rolled-up" instruction for the issue of intent - The accused argued that even if his provocation ground of appeal was not accepted by this court, the charge was deficient in that the trial judge did not give a proper "rolled-up" instruction; namely, that he did not direct the jury to include provocation and/or anger in its consideration of intent - The Manitoba Court of Appeal dismissed the appeal - It was not necessary to address this because the trial judge, after an extensive review of the evidence, adequately instructed the jury to consider all of the evidence that threw light on the state of mind of the accused at the time of the offence - See paragraph 6.

Criminal Law - Topic 4377

Procedure - Charge or directions - Jury or judge alone - Directions regarding credibility of witnesses - Following a jury trial, the accused was convicted of second degree murder - He appealed, asserting that, inter alia, the verdict was unreasonable and the trial judge failed to give a Vetrovec warning - The accused argued that the verdict was unreasonable on the basis that the testimony of the Crown's two main witnesses was suspect and could not support a verdict of second degree murder - He also submitted that the trial judge should have given a Vetrovec warning for these two witnesses because they had occasion to collude and motive to fabricate - He also said that one of these two witnesses had a minor record, which included crimes of dishonesty, while the other was involved in the drug subculture - The Manitoba Court of Appeal dismissed the appeal - "A trial judge's decision on whether to give a Vetrovec warning is an exercise in judicial discretion. That warning should not be given as a matter of course. It need only be issued in regard to testimony deserving of 'special' scrutiny and is reserved for witnesses 'who are "unsavoury", "untrustworthy", "unreliable", or "tainted"' ... In this case, despite allegations of fabrication and collusion, in the end there was no evidentiary basis for the trial judge to view the witnesses' evidence as being inherently unreliable." - On the unreasonable verdict ground, the Crown's case was strong - Its case rested on the jury's assessment of the credibility of the two main witnesses who knew both the accused and the victim and who testified they saw the accused pull out a gun and shoot the victim - Any inconsistencies in their testimony and how their level of intoxication might have tainted what they saw on the night of the murder were matters for the jury to assess - In the end, the jury was entitled to find the two main witnesses credible and, if so, it was open for the jury to return the verdict of guilt - See paragraphs 2 to 4.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 4377 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 1].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 3].

R. v. Cudjoe (R.) (2009), 251 O.A.C. 163; 2009 ONCA 543, refd to. [para. 6].

R. v. Flores (M.R.) (2011), 274 O.A.C. 314; 2011 ONCA 155, refd to. [para. 6].

R. v. Kent (P.S.) (2005), 212 B.C.A.C. 98; 350 W.A.C. 98; 2005 BCCA 238, refd to. [para. 6].

R. v. Azzam (D.) (2008), 237 O.A.C. 338; 91 O.R.(3d) 335; 2008 ONCA 467, refd to. [para. 6].

Counsel:

G.F. Wiebe, for the appellant;

E.A. Thomson, for the respondent.

This appeal was heard by Hamilton, Chartier and MacInnes, JJ.A., of the Manitoba Court of Appeal. The following decision of the Court of Appeal was delivered orally by Chartier, J.A., on June 14, 2012.