R. v. Muise (C.A.), (2015) 360 N.S.R.(2d) 300 (CA)

• Judge: Saunders, Fichaud and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: June 03, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 360 N.S.R.(2d) 300 (CA);2015 NSCA 54

R. v. Muise (C.A.) (2015), 360 N.S.R.(2d) 300 (CA);

    1135 A.P.R. 300

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. JN.004

Cody Alexander Muise (appellant) v. Her Majesty the Queen (respondent)

(CAC 416537; 2015 NSCA 54)

Indexed As: R. v. Muise (C.A.)

Nova Scotia Court of Appeal

Saunders, Fichaud and Beveridge, JJ.A.

June 3, 2015.

Summary:

The accused was charged with first degree murder in the shooting death of Hatcher. The evidence suggested that Hatcher, a rival gang member, had shot the accused's girlfriend and best friend, and that the accused and others (including MacDougall) went looking for Hatcher armed with firearms. When Hatcher exited his residence armed with a shotgun, gunshots were fired. The accused intended to plead self-defence, as Hatcher fired first. The bullet that killed Hatcher came from the accused's rifle. The accused sought to cross-examine MacDougall on Hatcher's propensity for violence in the community.

The Nova Scotia Supreme Court, in a judgment reported (2013), 353 N.S.R.(2d) 35; 1115 A.P.R. 35, allowed the application in part. A jury convicted the accused of first degree murder. The accused appealed, arguing that the trial judge misdirected the jury on self-defence. Particularly, the accused argued that the trial judge's statement to the jury that the accused firing on Hatcher was "unlawful" predetermined or restricted the scope of self-defence.

The Nova Scotia Court of Appeal dismissed the appeal. The jury was clearly instructed that they had to acquit the accused if the Crown failed to prove beyond a reasonable doubt that the accused had not acted in self-defence. They would have understood that the "unlawful" act would have been justified if the accused acted in self-defence (i.e., justification rendered the unlawful act lawful).

Criminal Law - Topic 1299

Murder - Defences - Jury charge (incl. intent and drunkenness) - [See Criminal Law - Topic 4370 ].

Criminal Law - Topic 4370

Procedure - Charge or directions - Jury or judge alone - Directions regarding self-defence - The accused was charged with first degree murder in the shooting death of Hatcher - The evidence suggested that Hatcher, a rival gang member, had shot the accused's girlfriend and best friend, and that the accused and others (including MacDougall) went looking for Hatcher armed with firearms - When Hatcher exited his residence armed with a shotgun, gunshots were fired - The accused plead self-defence, as Hatcher fired first - The bullet that killed Hatcher came from the accused's rifle - In instructing the jury, the trial judge told them that the act of firing at Hatcher was an unlawful act - The jury was subsequently instructed that if the Crown failed to disprove self-defence beyond a reasonable doubt, the unlawful act of shooting was justified (rendered lawful) and the accused had to be acquitted - The jury convicted the accused of first degree murder - The accused appealed, arguing that the trial judge misdirected the jury on self-defence - Particularly, the accused argued that the trial judge's statement to the jury that the accused firing on Hatcher was "unlawful" predetermined or restricted the scope of self-defence - The Nova Scotia Court of Appeal dismissed the appeal - The jury was clearly instructed that they had to acquit the accused if the Crown failed to prove beyond a reasonable doubt that the accused had not acted in self-defence - They would have understood that the "unlawful" act would have been justified if the accused acted in self-defence (i.e., justification rendered the unlawful act lawful).

Cases Noticed:

R. v. Baker (1988), 45 C.C.C.(3d) 368 (B.C.C.A.), refd to. [para. 28].

R. v. Cinous (J.) (2000), 143 C.C.C.(3d) 397 (Que. C.A.), revd. [2002] 2 S.C.R. 3; 285 N.R. 1, refd to. [para. 28].

R. v. O'Brien (R.S.) (2003), 257 N.B.R.(2d) 243; 674 A.P.R. 243; 2003 NBCA 28, refd to. [para. 28].

R. v. Laverty (S.T.) (1995), 60 B.C.A.C. 280; 99 W.A.C. 280 (C.A.), affd. [1996] 3 S.C.R. 412; 203 N.R. 5; 81 B.C.A.C. 241; 132 W.A.C. 241, refd to. [para. 32].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1, refd to. [para. 33].

R. v. Ryan (N.P.), [2013] 1 S.C.R. 14; 438 N.R. 80; 324 N.S.R.(2d) 205; 1029 A.P.R. 205, refd to. [para. 33].

R. v. W.J.D., [2007] 3 S.C.R. 523; 369 N.R. 225; 302 Sask.R. 4; 411 W.A.C. 4, refd to. [para. 35].

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

R. v. Brydon (J.L.), [1995] 4 S.C.R. 253; 188 N.R. 321; 65 B.C.A.C. 81; 106 W.A.C. 81, refd to. [para. 36].

R. v. Gallie (G.A.), [2015] N.S.R.(2d) TBEd. MY.032; 2015 NSCA 50, refd to. [para. 36].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 37].

R. v. Ward (S.C.) (2011), 307 N.S.R.(2d) 216; 975 A.P.R. 216; 2011 NSCA 78, leave to appeal denied [2014] N.R. TBEd. Motion 305 (S.C.C.), refd to. [para. 37].

R. v. Greenwood (L.D.) (2014), 350 N.S.R.(2d) 315; 1105 A.P.R. 315; 2014 NSCA 80, refd to. [para. 37].

R. v. Elkins (M.R.) (1995), 86 O.A.C. 125 (C.A.), refd to. [para. 37].

R. v. Suzack (C.V.) et al. (2000), 128 O.A.C. 140 (C.A.), refd to. [para. 37].

R. v. Carrière (P.J.) (2001), 151 O.A.C. 115 (C.A.), refd to. [para. 37].

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, refd to. [para. 58].

Counsel:

Roger A. Burrill, for the appellant;

Mark Scott, for the respondent.

This appeal was heard on May 14, 2015, at Halifax, N.S., before Saunders, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal.

On June 3, 2015, Fichaud, J.A., delivered the following judgment for the Court of Appeal.