R. v. Head (J.B.), 2014 MBCA 59

• Judge: Monnin, Burnett and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: April 25, 2014
• Jurisdiction: Manitoba
• Citations: 2014 MBCA 59;(2014), 306 Man.R.(2d) 186 (CA)

R. v. Head (J.B.) (2014), 306 Man.R.(2d) 186 (CA);

      604 W.A.C. 186

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JN.021

Her Majesty The Queen (respondent) v. Joseph Burnell Head (accused/appellant)

(AR 13-30-07963; 2014 MBCA 59)

Indexed As: R. v. Head (J.B.)

Manitoba Court of Appeal

Monnin, Burnett and Mainella, JJ.A.

June 6, 2014.

Summary:

The accused was convicted by a jury of second degree murder. He admitted to shooting and killing the victim, but argued that he had acted in self-defence. The accused appealed the conviction on the basis of (1) the admissibility of the victim's criminal record; (2) the admissibility of a hearsay statement the accused made to a fellow gang member soon after the shooting; and (3) the adequacy of the trial judge's charge to the jury on post-offence conduct.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 4399.9

Procedure - Charge or directions - Jury or judge alone - Directions re flight and other post-offence behaviour of accused - Head was charged with second degree murder after shooting and killing Beauchamp during an altercation between rival gangs - Head argued that he had acted in self-defence - The Crown relied on three pieces of post-offence conduct evidence to impugn Head's credibility and to prove that Head knew he had committed an unlawful killing and not acted in self-defence: (1) Head fled from the scene of the shooting; (2) he immediately took a shower; and (3) he fled to Saskatchewan partly to evade the police - The trial judge cautioned the jury respecting its use of the post-offence conduct - Head was convicted - He appealed, arguing that the trial judge should have given a "no probative value" limiting instruction to the jury in determining his level of culpability between murder and manslaughter - The Manitoba Court of Appeal dismissed the appeal - A limiting instruction was not required for the two inferences the Crown asked the jury to draw from the post-offence conduct - The trial judge was not required to give a limiting instruction on the issue of Head's level of culpability between murder and manslaughter given "the combination of a proper caution by the judge to the jury on use of post-offence conduct evidence, the post-offence conduct evidence not relating to the appellant's demeanour, the appellant not admitting culpability to any offence included in the indictment and the Crown not requesting the jury to use the evidence on the issue of his level of culpability" - See paragraphs 41 to 58.

Criminal Law - Topic 5037

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Evidentiary error - Head was charged with second degree murder after shooting and killing Beauchamp during an altercation between rival gangs - Head argued that he had acted in self-defence because he thought that Beauchamp had a gun - One of Head's fellow gang members (Spence) testified about a conversation with Head after they ran to a nearby apartment following the shooting - Spence stated that "he asked me, he said that: Did that guy have a gat [gun]; he had a gat, eh? And, and I said: I think so, yeah" - The trial judge ruled that Spence's testimony about this conversation was inadmissible hearsay - He found that the conversation was not contemporaneous with the event because it occurred after Spence and Head had fled the scene and were in an apartment - Head was convicted - He appealed - The Manitoba Court of Appeal held that the trial judge erred by focussing on the fact that the "gat" conversation was not exactly contemporaneous to the shooting - The location and timing of Head's statement were relevant but not determinative factors - The conversation was made sufficiently contemporaneous to a shocking and dramatic event and was admissible - However, the trial judge's error had no impact on the verdict - The jury was otherwise aware of the issue because Spence and Head each testified that they believed Beauchamp had a gun - This was an appropriate situation to apply the curative proviso in s. 686(1)(b)(iii) of the Criminal Code - See paragraphs 19 to 40.

Criminal Law - Topic 5528

Evidence and witnesses - Testimony respecting the victim - Character of victim - Head was charged with second degree murder after shooting and killing Beauchamp during an altercation between rival gangs - Head sought to tender Beauchamp's criminal record to assist in proving that he had acted in self-defence - The trial judge refused to admit the evidence - Head was convicted - He appealed, arguing that the trial judge erred in refusing to admit Beauchamp's criminal record - The Manitoba Court of Appeal dismissed the appeal - Beauchamp's convictions for non-violent offences had no probative value to the issue of self-defence - His convictions for violent offences were dated and had very little probative value because Head did not know about Beauchamp or his past - Therefore, their relevance was limited to the probability of Beauchamp having been the aggressor to support Head's evidence that he was attacked by Beauchamp - The jury did not have to decide whether Beauchamp was the aggressor because the Crown formally admitted that he was - See paragraphs 13 to 18.

Evidence - Topic 1721

Hearsay rule - Hearsay rule exceptions and exclusions - Res gestae - Utterances as part of the issue or event - Accused's statements - [See Criminal Law - Topic 5037 ].

Cases Noticed:

R. v. Varga (R.L.) (2001), 150 O.A.C. 358 (C.A.), leave to appeal refused (2002), 307 N.R. 192 (S.C.C.), refd to. [para. 15].

R. v. Scopelliti (1981), 34 O.R.(2d) 524 (C.A.), refd to. [para. 16].

R. v. Sims (1994), 87 C.C.C.(3d) 402 (B.C.C.A.), refd to. [para. 16].

R. v. Korski (C.T.) (2009), 236 Man.R.(2d) 259; 448 W.A.C. 259; 2009 MBCA 37, refd to. [para. 17].

R. v. Simpson and Ochs, [1988] 1 S.C.R. 3; 81 N.R. 267, refd to. [para. 22].

R. v. Edgar (D.J.) (2010), 269 O.A.C. 171; 101 O.R.(3d) 161; 2010 ONCA 529, refd to. [para. 22].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 23].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 23].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 23].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 23].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 23].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 24].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 24].

Ratten v. The Queen, [1972] A.C. 378 (P.C.), refd to. [para. 29].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 29].

R. v. Grand-Pierre (1998), 124 C.C.C.(3d) 236 (Que. C.A.), refd to. [para. 30].

R. v. Clark (1983), 42 O.R.(2d) 609 (C.A.), leave to appeal refused, [1983] S.C.C.A. No. 253, refd to. [para. 31].

R. v. Sekhon (A.S.) (2014), 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 37].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 39].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 40].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, dist. [para. 45].

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, refd to. [para. 46].

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. 46].

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. 49].

R. v. Hartling (B.F.) (2013), 329 N.S.R.(2d) 161; 1042 A.P.R. 161; 2013 NSCA 51, refd to. [para. 51].

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. 53].

R. v. Marinaro (G.), [1996] 1 S.C.R. 462; 197 N.R. 21; 91 O.A.C. 117, dist. [para. 55].

Authors and Works Noticed:

Hill, S. Casey, Tanovich, David M., and Strezos, Louis P., McWilliams' Canadian Criminal Evidence (4th Ed. 2012) (Looseleaf), vol. 1, para. 7:120:10 [para. 25].

Malek, Hodge M., et al., Phipson on Evidence (18th Ed. 2013), paras. 31-01 to 31-04 [para. 25].

Watt, David, Ontario Specimen Jury Instructions (Criminal) (2005), p. 229-A [para. 51].

Counsel:

G.G. Brodsky, Q.C., for the appellant;

A.Y. Kotler, for the respondent.

This appeal was heard on April 25, 2014, before Monnin, Burnett and Mainella, JJ.A., of the Manitoba Court of Appeal. Mainella, J.A., delivered the following judgment for the court on June 6, 2014.