R. v. Hartling (B.F.), 2013 NSCA 51

• Judge: Oland, Beveridge and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 22, 2013
• Jurisdiction: Nova Scotia
• Citations: 2013 NSCA 51;(2013), 329 N.S.R.(2d) 161 (CA)

R. v. Hartling (B.F.) (2013), 329 N.S.R.(2d) 161 (CA);

    1042 A.P.R. 161

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. AP.036

Bernard Frederick Hartling (appellant) v. Her Majesty The Queen (respondent)

(CAC 372780; 2013 NSCA 51)

Indexed As: R. v. Hartling (B.F.)

Nova Scotia Court of Appeal

Oland, Beveridge and Farrar, JJ.A.

April 29, 2013.

Summary:

McNamara was killed by a single shot from a sawed-off shotgun. There was no dispute that the accused held the shotgun when it discharged. The accused was charged with first degree murder. Two issues predominated: self-defence and whether the discharge was accidental. The jury found the accused guilty of second degree murder. He was sentenced to life imprisonment without eligibility for parole for 13 years (see [2012] N.S.R.(2d) Uned. 43). The accused appealed. He submitted that the jury verdict was tainted by errors in the jury charge with respect to both what the trial judge told the jury and by things omitted. In addition, the accused complained about an evidentiary ruling, and no limiting instructions on evidence that was admitted.

The Nova Scotia Court of Appeal agreed that the trial judge made some errors in his charge and should have given a limiting instruction with respect to the bad character evidence heard by the jury. However, the court was satisfied that collectively the complained of errors caused no substantial wrong or miscarriage of justice. As a consequence, the court dismissed the appeal.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence (including preventing assault) - [See all Criminal Law - Topic 4370 ].

Criminal Law - Topic 1263

Murder - General principles - Intention - [See Criminal Law - Topic 1299 ].

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The accused was charged with first degree murder - Two issues predominated: self-defence and whether the discharge was accidental - The jury found the accused guilty of second degree murder - The accused appealed - He argued that the trial judge erred in allowing the pathologist (Dr. Bowes) to give inadmissible opinion evidence that the shooting was not accidental, and then failing to give any limiting instructions - During direct examination, Dr. Bowes had been asked to explain what he meant when he said the manner of death was a homicide - The accused argued that Dr. Bowes' evidence went beyond the scope of his expertise and the judge should have directed the jury to disregard it or given limiting instructions - The Nova Scotia Court of Appeal held that the trial judge did not err - The proper interpretation of Dr. Bowes' evidence was that this was neither suicide nor an accident in the sense of being self-inflicted - No one argued that Dr. Bowes' evidence had any bearing on the issues of self-defence or accidental discharge of the shotgun - No objection was taken to his evidence - He was not cross-examined on it, and no limiting instruction was sought - In addition, the trial judge told the jury that it was not always a crime to cause another person's death - The act that caused death had to be unlawful in order for the homicide to be a crime - See paragraphs 27 to 32.

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The accused was charged with first degree murder - Two issues predominated: self-defence and whether the discharge was accidental - The jury found the accused guilty of second degree murder - The accused appealed - He argued that the trial judge erred in allowing the firearms examiner (Mr. Pipes) to testify that the altered shotgun was a prohibited weapon, and that 12 gauge shot was used to hunt large animals and not birds, and then failing to give any limiting instructions - The Nova Scotia Court of Appeal was not persuaded that this evidence was inadmissible or that the failure to give a limiting instruction could have tainted the jury's verdict - Pipes' evidence about the buckshot and the characteristics of the shotgun and ammunition uses was relevant to challenging the accused's story of altering the gun for ease of transport through the bush in order to facilitate hunting birds and rabbits - Pipes' training and qualifications clearly implied expertise to speak to various types and sizes of ammunition and their intended uses - Defence counsel at trial did not object to the evidence - The evidence was admissible and did not upset the fairness of the trial - See paragraphs 33 to 47.

Criminal Law - Topic 1281

Murder - Provocation - What constitutes ''sudden provocation'' - [See Criminal Law - Topic 1285 ].

Criminal Law - Topic 1282

Murder - Provocation - Whether accused acted before his passion cooled - [See Criminal Law - Topic 1285 ].

Criminal Law - Topic 1285

Murder - Provocation - Jury charge - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The jury found the accused guilty of second degree murder - The accused appealed - He argued that the trial judge erred in failing to charge on provocation - The Nova Scotia Court of Appeal dismissed this ground of appeal - There was no air of reality to the requirements for the defence of provocation - The wrongful act that the accused said would deprive an ordinary person of the power of self-control was the reach by McNamara for an object he had earlier tucked into his rear waistband - The accused did not testify that he was deprived of self-control by the claimed provocative act - There was no basis for the jury to be able to judicially find a reasonable doubt that an ordinary person would be so deprived - With respect to the subjective element, the accused did not act on the claimed insult on the sudden - He said he did not shoot McNamara with any intent to kill or cause bodily harm that he knew was likely to cause death - Instead he described his calm, but clear decision to simply show McNamara the shotgun - The accused did not request a charge on provocation at trial - The defence of provocation would have been directly contrary to the main defences advanced at trial: self-defence and accident - See paragraphs 77 to 91.

Criminal Law - Topic 1293

Offences against person and reputation - Murder - Defences - Self-defence - General - [See all Criminal Law - Topic 4370 ].

Criminal Law - Topic 1299

Murder - Defences - Jury charge - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The accused was charged with first degree murder - Two issues predominated: self-defence and whether the discharge was accidental - The jury found the accused guilty of second degree murder - The accused appealed - He argued that the trial judge erred by not separately charging the jury with respect to the defences of self-defence and accident and, second, by failing to properly relate accident to the requirement of the Crown to prove murderous intent - The Nova Scotia Court of Appeal dismissed the appeal - The court stated, inter alia, "Aside from the slips in relation to first as opposed to second degree murder, the trial judge clearly instructed the jury on the intent they needed to find proved beyond a reasonable doubt to convict the appellant of murder; that is, they had to be satisfied beyond a reasonable doubt that the appellant meant to cause the death of Mr. McNamara, or bodily harm that he knew was likely to cause his death and was reckless as to whether death ensued. If they were not satisfied, manslaughter was the appropriate verdict. I see no error in these circumstances in how the jury was charged with respect to the interplay of accident and the intent necessary for murder" - See paragraphs 155 to 171.

Criminal Law - Topic 1300

Offences against person and reputation - Murder - Defences - Accident - [See Criminal Law - Topic 1299 ].

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - [See both Criminal Law - Topic 1265 ].

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The jury found the accused guilty of second degree murder - The accused appealed - The accused argued that the trial judge erred in his charge on self-defence in what he said to the jury about s. 34(1) of the Criminal Code - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge slipped in his language when he was attempting to follow the Model Jury Instructions published by the Canadian Judicial Council on self-defence - The trial judge had stated "First, has the Crown proven beyond a reasonable doubt that [the accused] did not assault Mr. McNamara or that [the accused] did not reasonably believe that Mr. McNamara assaulted him?" - The latter part of the sentence was the appropriate instruction - The first part of the sentence was in error - However, in two other areas of his charge, the trial judge's instructions on that aspect of self-defence were correct - The trial judge's summary of the evidence on this aspect, and on all aspects of the issue of self-defence, was fair, balanced and above reproach - The jury could not have been misled by the slip - Other than that one slip, the charge on s. 34(1) was correct - See paragraphs 134 to 138.

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The jury found the accused guilty of second degree murder - The accused appealed - The jury had been told that the defence of self-defence would fail if the Crown proved beyond a reasonable doubt that the accused had provoked assaultive behaviour by McNamara - The accused argued that to be legally correct, the jury needed to be told that any provocative conduct by the accused had to be with the intention of provoking assaultive behaviour by McNamara - The Nova Scotia Court of Appeal dismissed the appeal - The court stated that "The only conduct by the appellant prior to the fatal shot was his asking the deceased: 'What were you doing at my house?', followed by 'What the fuck were you doing at my house?'. The unchallenged evidence of the appellant was that in his world, which included his friend the deceased, the use of such language is common. The judge urged the jury to use their common sense and good judgment in considering if the use of the 'F' word would provoke a man such as the deceased. It is unrealistic to imagine an answer other than 'no'. The Crown did not argue to the jury that the actions or words of the appellant provoked what the appellant perceived to be assaultive behaviour by the deceased. The defence made no mention of this issue. The reason is obvious. It was not really a live issue. If the failure to explain to the jury that provocative conduct by the appellant had to be intended to provoke an assault amounts to legal error, I would invoke the proviso under s. 686(1)(b)(iii) [of the Criminal Code]" - See paragraphs 139 to 141.

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The jury found the accused guilty of second degree murder - The accused appealed - The accused argued that the defence of self-defence as found in s. 34(2) and s. 35 of the Criminal Code, should have been put to the jury - The Nova Scotia Court of Appeal disagreed - There was no air of reality to the availability of self-defence via those provisions - Under both s. 34(2) and s. 35, the accused had to subjectively have an apprehension of death or grievous bodily harm, and believe that it was not possible to preserve himself from harm except by killing McNamara - The accused's evidence was consistent - He had no fear that McNamara was about to hurt him - The accused just wanted to produce the shotgun to show McNamara that he also had a gun - The discharge of the shotgun was accidental, not because he believed he could not otherwise preserve himself from harm - Putting these provisions to the jury would involve telling the jury that it would be open to them to disbelieve the accused and to infer that he did subjectively apprehend death or grievous bodily harm, and that he had intentionally pulled the trigger because he believed he could not otherwise preserve himself - There was no evidence to support such inferences, nor to suggest such beliefs were reasonably held - In addition, such a direction would have seriously undermined the defence the accused advanced at trial - See paragraphs 144 to 145.

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The jury found the accused guilty of second degree murder - The accused appealed - He argued that the trial judge should not have put s. 37 of the Criminal Code to the jury but having chosen to do so, he erred in his instructions on that section - The Nova Scotia Court of Appeal dismissed the appeal - The criticism about the jury charge on s. 37 appeared to be twofold - First, the judge failed to direct the jury to the accused's perception that McNamara was reaching for a gun at the critical moment - Second, the jury should have been told that even if they found that the accused had intentionally shot McNamara, he was entitled to the protection of s. 37 if such an action was no more force than necessary to prevent the assault - The court was not persuaded the trial judge made those errors - The gist of the argument now made by the accused on appeal was that the intentional shooting of McNamara could be viewed by the jury as using no more force than necessary to prevent the perceived assault by McNamara - There was no evidence to support such a scenario - The accused denied being in fear that McNamara would shoot or even harm him and that he had intentionally discharged the shotgun to prevent any assault - There was no air of reality to the defence now being contended for - See paragraphs 146 to 154.

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - A jury found the accused guilty of second degree murder - The accused appealed - He argued that the trial judge erred in allowing the prosecution to lead evidence of the accused's bad character through other witnesses as well as through the cross-examination of the accused, without first conducting a voir dire pursuant to R. v. Handy (SCC), and then failing to give any limiting instructions - The Nova Scotia Court of Appeal dismissed the appeal - The accused rightly conceded that the so-called bad character evidence was admissible and much of it was introduced by the accused himself - While it was a legal error not to provide a limiting instruction, the failure to do so could be cured by the application of the proviso in s. 686(1)(b)(iii) of the Criminal Code where no substantial wrong or miscarriage of justice was caused by the error - The error in not specifically cautioning the jury as to the potential danger for their improper use of the bad character evidence did not impact on the reliability of the verdict - See paragraphs 48 to 67.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The accused was charged with first degree murder - Two issues predominated: self-defence and whether the discharge was accidental - The jury found the accused guilty of second degree murder - The accused appealed - He argued that the trial judge erred in his charge on post-offence conduct evidence - The accused complained that the trial judge: instructed the jury to engage in tautological reasoning (by requiring the jury to determine whether the accused was conscious of having committed the offence before they could use the post-offence conduct evidence to decide if he had in fact done so); misspoke on an important issue; and misdirected the jury that the post-offence conduct evidence could be used to assist them in determining the accused's culpability as between murder or manslaughter - The Nova Scotia Court of Appeal dismissed the appeal - The trial judge did not refer to the post-offence conduct as being relevant to the issue of whether the accused possessed the intent necessary for the offence of murder as opposed to manslaughter - While a more nuanced jury instruction could have been given, the impugned direction did not amount to reversible error - See paragraphs 92 to 127.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where directions or jury charge incomplete or in error - [See second Criminal Law - Topic 4370 and Criminal Law - Topic 4379 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See second Criminal Law - Topic 4370 and Criminal Law - Topic 4379 ].

Criminal Law - Topic 5208

Evidence and witnesses - Admissibility and relevancy - Facts relevant to the theory of the defence - McNamara was killed by a single shot from a sawed-off shotgun held by the accused - The accused was charged with first degree murder - Two issues predominated: self-defence and whether the discharge was accidental - The jury found the accused guilty of second degree murder - The accused appealed - He argued that the trial judge erred in refusing to allow the defence to call the proposed witnesses, Mr. Gamble and Cst. Quinn - The accused's complaint was that the evidence of Cst. Quinn and Mr. Gamble together would have demonstrated McNamara's recent possession of firearms and would assist on the issue of whether the accused had reason to believe that McNamara put a gun in his back waistband just prior to the shooting - The Nova Scotia Court of Appeal stated that "There was absolutely no evidence that the appellant was in any way aware that the deceased was recently in possession of firearms or could have ready access to firearms from the Gamble residence. Absent this link, the trial judge made no reversible error in his ruling. If the appellant was aware of the recent event described by Mr. Gamble, I am not sure it would assist his defence since it could also be used to show that the appellant knew the deceased had gotten rid of firearms in his possession" - See paragraphs 69 to 75.

Criminal Law - Topic 5449

Evidence and witnesses - Evidence respecting the accused - Character of accused (incl. discreditable conduct) - General - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 5450

Evidence and witnesses - Evidence respecting the accused - Character of accused - Jury charge - [See Criminal Law - Topic 4379 ].

Evidence - Topic 7000.4

Opinion evidence - Expert evidence - General - Admissibility - General - [See both Criminal Law - Topic 1265 ].

Cases Noticed:

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 50].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 53].

R. v. Van (D.), [2009] 1 S.C.R. 716; 388 N.R. 200; 251 O.A.C. 295; 2009 SCC 22, refd to. [para. 57].

R. v. West (W.F.) (2010), 288 N.S.R.(2d) 293; 914 A.P.R. 293; 252 C.C.C.(3d) 23; 2010 NSCA 16, refd to. [para. 57].

R. v. R.T.H. (2007), 251 N.S.R.(2d) 236; 802 A.P.R. 236; 2007 NSCA 18, refd to. [para. 65].

R. v. Farler - see R. v. T.C.F.

R. v. T.C.F. (2006), 243 N.S.R.(2d) 237; 772 A.P.R. 237 (C.A.), refd to. [para. 65].

R. v. Rarru (H.S.) (No. 3), [1996] 2 S.C.R. 165; 197 N.R. 310; 77 B.C.A.C. 14; 126 W.A.C. 14, refd to. [para. 65].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 65].

R. v. Jaw (S.G.), [2009] 3 S.C.R. 26; 393 N.R. 246; 464 A.R. 149; 467 W.A.C. 149; 2009 SCC 42, refd to. [para. 66].

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 66].

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. 78].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 80].

R. v. Olbey, [1980] 1 S.C.R. 1008; 30 N.R. 152, refd to. [para. 88].

R. v. Faid, [1983] 1 S.C.R. 265; 46 N.R. 461, refd to. [para. 89].

R. v. Angelis (D.) (2013), 300 O.A.C. 367; 2013 ONCA 70, refd to. [para. 90].

R. v. Pawliuk (R.S.); R. v. Brown (C.R.) (2001), 148 B.C.A.C. 165; 243 W.A.C. 165; 2001 BCCA 13, refd to. [para. 91].

R. v. Dagenais (C.A.) (2012), 399 Sask.R. 271; 552 W.A.C. 271; 2012 SKCA 103, refd to. [para. 91].

R. v. Mayuran (S.) (2012), 431 N.R. 232; 284 C.C.C.(3d) 1; 2012 SCC 31, refd to. [para. 91].

R. v. Peavoy (D.M.) (1997), 101 O.A.C. 304; 117 C.C.C.(3d) 226 (C.A.), refd to. [para. 92].

R. v. White (R.G.) and Côté (Y.), [1998] 2 S.C.R. 72; 227 N.R. 326; 112 O.A.C. 1, refd to. [para. 93].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 94].

R. v. Hall (C.) (2010), 269 O.A.C. 199; 2010 ONCA 724, leave to appeal refused (2011), 423 N.R. 393 (S.C.C.), refd to. [para. 98].

R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, reving. (1994), 76 O.A.C. 44 (C.A.), refd to. [para. 110].

R. v. Wiltse (J.W.) and Yarema (M.W.) (1994), 72 O.A.C. 226; 19 O.R.(3d) 379 (C.A.), refd to. [para. 111].

R. v. Allen (G.W.) (2009), 464 A.R. 208; 467 W.A.C. 208; 2009 ABCA 341, affd. (2010), 408 N.R. 136; 493 A.R. 153; 502 W.A.C. 153, refd to. [para. 115].

R. v. White (D.R.), [2011] 1 S.C.R. 433; 412 N.R. 305; 300 B.C.A.C. 165; 509 W.A.C. 165; 2011 SCC 13, consd. [para. 116].

R. v. Palmer (T.T.), [2010] O.A.C. Uned. 651; 2010 ONCA 804, refd to. [para. 125].

R. v. Stiers (K.) (2010), 264 O.A.C. 305; 2010 ONCA 382, leave to appeal refused (2011), 426 N.R. 384 (S.C.C.), refd to. [para. 126].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 129].

R. v. Pintar (J.) (1996), 93 O.A.C. 172; 110 C.C.C.(3d) 402 (C.A.), refd to. [para. 129].

R. v. Grandin (D.T.) (2001), 152 B.C.A.C. 228; 250 W.A.C. 228; 2001 BCCA 340, refd to. [para. 129].

R. v. Nelson (1992), 54 O.A.C. 14; 71 C.C.C.(3d) 449 (C.A.), refd to. [para. 139].

R. v. Pétel (C.), [1994] 1 S.C.R. 3; 162 N.R. 137; 59 Q.A.C. 81, refd to. [para. 144].

R. v. Hebert (D.M.), [1996] 2 S.C.R. 272; 197 N.R. 277; 77 B.C.A.C. 1; 126 W.A.C. 1, refd to. [para. 144].

R. v. Scotney (T.) (2011), 280 O.A.C. 262 (C.A.), refd to. [para. 151].

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. 161].

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

R. v. Bakos (A.) et al., [2008] O.A.C. Uned. 753; 2008 ONCA 712, refd to. [para. 161].

R. v. Gunning (J.J.), [2005] 1 S.C.R. 627; 333 N.R. 286; 211 B.C.A.C. 51; 349 W.A.C. 51; 2005 SCC 27, refd to. [para. 162].

R. v. Mulligan (C.D.) (2006), 211 O.A.C. 116; 80 O.R.(3d) 537 (C.A.), refd to. [para. 162].

R. v. Humphrey (K.) (2003), 169 O.A.C. 49 (C.A.), refd to. [para. 162].

R. v. Chan, [1997] A.J. No. 371 (C.A.), refd to. [para. 162].

R. v. Mathisen (P.J.) (2008), 242 O.A.C. 139; 2008 ONCA 747, refd to. [para. 163].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 5, sect. 34, sect. 37 [para. 132].

Authors and Works Noticed:

Watt, David, Ontario Specimen Jury Instructions (Criminal) (2005), pp. 72 [para. 104]; 229-A [para. 124].

Watt, David, Watt's Manual of Criminal Jury Instructions (2005), generally [para. 104]; pp. 424, 425 [para. 124]; 778 [para. 157].

Counsel:

John M. Rosen and Emily S. Beaton, for the appellant;

Mark Scott, for the respondent.

This appeal was heard on January 22, 2013, before Oland, Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Beveridge, J.A., on April 29, 2013.