R. v. Cassan (E.R.), (2012) 280 Man.R.(2d) 182 (CA)

• Judge: Monnin, Freedman and Beard, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: January 19, 2012
• Jurisdiction: Manitoba
• Citations: (2012), 280 Man.R.(2d) 182 (CA);2012 MBCA 46

R. v. Cassan (E.R.) (2012), 280 Man.R.(2d) 182 (CA);

      548 W.A.C. 182

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JN.004

Her Majesty The Queen (respondent) v. Erik Ryan Cassan (accused/appellant)

(AR 11-30-07495; 2012 MBCA 46)

Indexed As: R. v. Cassan (E.R.)

Manitoba Court of Appeal

Monnin, Freedman and Beard, JJ.A.

May 29, 2012.

Summary:

While fighting with another man (Lane) at a house party, Cassan stabbed him some 22 times. Lane died. Cassan was charged with second degree murder. He argued self-defence, intoxication and provocation.

The Manitoba Court of Queen's Bench, by a judge alone, in a decision reported at 260 Man.R.(2d) 37, found Cassan guilty of second degree murder. He was sentenced to life imprisonment with a parole ineligibility period of 12 years. Cassan appealed the conviction based on alleged errors by the judge regarding the defences of intoxication and provocation. He asked for a substituted verdict of manslaughter. Cassan also appealed the sentence. He sought to have the parole ineligibility period reduced to the minimum 10 years.

The Manitoba Court of Appeal dismissed both appeals.

Criminal Law - Topic 1263

Murder - General principles - Intention - While fighting with another man at a house party, the accused stabbed him some 22 times - The man died - The accused was charged with second degree murder - He argued, inter alia, intoxication - The trial judge found the accused guilty of second degree murder - A ground of appeal was that the evidence showed that he was in an advanced state of intoxication and that subsequent evidence tending to show capacity to flee did not negate the evidence suggesting a lack of intent to kill - He asked for a substituted verdict of manslaughter - The Manitoba Court of Appeal held that the trial judge committed no palpable and overriding error in relation to factual matters relating to intent and intoxication - He accepted that the accused was intoxicated at the time of the offence, and properly took into account the evidence of the accused's conduct before, during and after the incident - "As he said, those circumstances 'may shed light' on the appellant's state of mind 'at the time he caused the deceased's death'" - The judge's conclusion based on the fact of the 22 stab wounds was not an error - See paragraphs 55 to 75.

Criminal Law - Topic 1280

Offences against person and reputation - Murder - Provocation - General principles - While fighting with another man (Lane) at a house party, the accused stabbed him some 22 times - Lane died - The accused was charged with second degree murder - He argued, inter alia, provocation - The trial judge found the accused guilty of second degree murder - A ground of appeal was that the judge erred in finding that the Crown had proved that the objective element in the defence of provocation was not satisfied - He asked for a substituted verdict of manslaughter - The Manitoba Court of Appeal held that the trial judge was correct in his analysis and application of s. 232 of the Criminal Code - "When considering the reasons given by the judge for his conclusion, we are to consider the record as a whole and, even if the judge did not spell out in detail the precise basis for his conclusion, so long as the record supports it, which it does, we should not intervene ... The judge concluded that, considering the evidence, the context, and the situation in which the appellant found himself, the Crown had proved that the objective component of the provocation defence failed. An ordinary person might react, and might be provoked into responding to the assault, but Lane's wrongful act was not such as would cause that ordinary person to be deprived of the power of self-control. On the evidence, the judge was entitled to conclude as he did. He made no palpable and overriding error in relation to factual matters" - See paragraphs 43 to 54.

Criminal Law - Topic 1281

Offences against person and reputation - Murder - Provocation - What constitutes "sudden provocation" - [See Criminal Law - Topic 1280 ].

Criminal Law - Topic 1284

Offences against person and reputation - Murder - Provocation - Ordinary person - What constitutes - [See Criminal Law - Topic 1280 ].

Criminal Law - Topic 4386

Procedure - Charge or directions - Jury or judge alone - Judge's duty to determine if defence available on evidence - [See Criminal Law - Topic 1263 and Criminal Law - Topic 1280 ].

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility - While fighting with another man (Lane) at a house party, the accused stabbed him some 22 times - Lane died - The trial judge found the accused guilty of second degree murder - The accused was sentenced to life imprisonment with a parole ineligibility period of 12 years - On appeal, the accused argued that, in light of his "minimal criminal record and significant remorse", his time in pre-trial custody, his intoxication, the "fact that the accused was not the initial aggressor" and having regard to the sentences imposed in other cases, the 12-year parole ineligibility period was excessive and should be reduced to the minimum 10 years - The Manitoba Court of Appeal dismissed the sentence appeal - The determination of parole ineligibility was fact-based and subject to considerable deference on appeal - "The judge was clearly influenced here by his findings that the appellant brought a knife to a house party, that he goaded Lane with provocative comments, including some about his young son, that he stabbed Lane over 20 times, that the sole motivation was that he was losing the fight, that the consequences to Lane's family were tragic and that denunciation could be clearly expressed by an increase in the ineligibility period. The increased period of ineligibility is neither harsh nor excessive, given all the circumstances" - See paragraphs 76 to 89.

Criminal Law - Topic 5881

Sentence - Murder (incl. attempts) - [See Criminal Law - Topic 5670 ].

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5670 ].

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 14].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4; 2007 SCC 53, refd to. [para. 21].

R. v. Daley (W.J.) - see R. v. W.J.D.

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 1; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 21].

R. v. Thibert (N.E.), [1996] 1 S.C.R. 37; 192 N.R. 1; 178 A.R. 321; 110 W.A.C. 321, refd to. [para. 37].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 37].

R. v. Clark (D.M.), [2005] 1 S.C.R. 6; 329 N.R. 10; 208 B.C.A.C. 6; 344 W.A.C. 6; 2005 SCC 2, refd to. [para. 37].

R. v. Shepherd (C.), [2009] 2 S.C.R. 527; 391 N.R. 132; 331 Sask.R. 306; 460 W.A.C. 306; 2009 SCC 35, refd to. [para. 41].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 42].

R. v. Biniaris (J.), [2000] 1 S.C.R. 381; 252 N.R. 204; 134 B.C.A.C. 161; 219 W.A.C. 161; 2000 SCC 15, refd to. [para. 42].

R. v. Sinclair (T.), [2011] 3 S.C.R. 3; 418 N.R. 282; 268 Man.R.(2d) 225; 520 W.A.C. 225; 2011 SCC 40, refd to. [para. 42].

R. v. Tran (T.K.), [2010] 3 S.C.R. 350; 409 N.R. 1; 493 A.R. 123; 502 W.A.C. 123; 2010 SCC 58, refd to. [para. 44].

R. v. Squire, [1977] 2 S.C.R. 13; 10 N.R. 25, refd to. [para. 50].

R. v. Gibson (J.T.) (2001), 153 B.C.A.C. 61; 251 W.A.C. 61; 41 C.R.(5th) 213; 2001 BCCA 297, refd to. [para. 51].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 53].

R. v. Ruizfuentes (H.S.) (2010), 258 Man.R.(2d) 220; 499 W.A.C. 220; 2010 MBCA 90, refd to. [para. 77].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 78].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 232(2), sect. 232(3) [para. 36].

Authors and Works Noticed:

Renaud, Gilles, The Sentencing Code of Canada: Principles and Objectives (2009), pp. 451, 453 [para. 86].

Counsel:

S.B. Simmonds and D.A. Ireland, for the appellant;

E.A. Thomson, for the respondent.

This appeal was heard on January 19, 2012, before Monnin, Freedman and Beard, JJ.A., of the Manitoba Court of Appeal. In reasons written by Freedman, J.A., the Court delivered the following judgment, dated May 29, 2012.