R. v. Mustard (G.A.)

• Jurisdiction: Manitoba
• Judge: Monnin, Steel and Mainella, JJ.A.
• Date: 11 March 2016
• Citation: 2016 MBCA 40,(2016), 326 Man.R.(2d) 282 (CA)
• Court: Court of Appeal (Manitoba)

R. v. Mustard (G.A.) (2016), 326 Man.R.(2d) 282 (CA);

      664 W.A.C. 282

MLB headnote and full text

Temp. Cite: [2016] Man.R.(2d) TBEd. AP.015

Her Majesty The Queen (respondent) v. Gerald Arnold Mustard (accused/appellant)

(AR 15-30-08403; 2016 MBCA 40)

Indexed As: R. v. Mustard (G.A.)

Manitoba Court of Appeal

Monnin, Steel and Mainella, JJ.A.

April 19, 2016.

Summary:

The accused was charged with murder. He sought to have the defence of self-defence put before the jury.

The Manitoba Court of Queen's Bench, in a decision reported at (2015), 318 Man.R.(2d) 32, refused to instruct the jury on self-defence, finding that there was no air of reality to the claim. The accused was found guilty. He appealed.

The Manitoba Court of Appeal allowed the appeal and ordered a new trial.

Criminal Law - Topic 239

General principles - Statutory defences or exceptions - Self-defence - Mustard was charged with murder - A witness (Petersen) testified that Mustard and the deceased began pushing each other - They separated briefly, at which point Mustard pulled out a knife and thrust his hand toward the deceased's face in a punching-type motion - The deceased then got Mustard on the floor and started choking him - The deceased stopped fighting when he realized that he was bleeding from his neck - Mustard sought to have self-defence put before the jury, arguing that the evidence supported the inference that he stabbed the deceased while he was on the ground being choked - The trial judge refused, finding that there was no air of reality to self-defence - The reasonable inference from Petersen's evidence was that the deceased was stabbed while he was still standing up - Mustard was found guilty - The Manitoba Court of Appeal allowed Mustard's appeal and ordered a new trial - The trial judge erred in law by substantively weighing the evidence and making findings of fact as to the circumstances of the fight - These were tasks reserved for the jury - There was a credible alternative to account for the results of the punching motion, other than a stabbing in the neck, grounded in the pathologist's evidence as to injuries to the deceased's lip - There were also demonstrable frailties with Petersen's evidence - The judge was required to assume the truth of the evidence that tended to support that the deceased was stabbed on the ground as opposed to standing up.

Criminal Law - Topic 1294

Murder - Defences - Self-defence - Evidence - [See Criminal Law - Topic 239 ].

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 239 ].

Cases Noticed:

R. v. Atkinson (R.K.) et al. (2013), 297 Man.R.(2d) 298; 2013 MBQB 264, refd to. [para. 11].

R. v. Knott (C.L.) (2014), 304 Man.R.(2d) 226; 2014 MBQB 72, refd to. [para. 11].

R. v. Evans (D.J.) (2015), 367 B.C.A.C. 148; 631 W.A.C. 148; 2015 BCCA 46, refd to. [para. 12].

R. v. Bengy (K.) (2015), 335 O.A.C. 268; 2015 ONCA 397, refd to. [para. 12].

R. v. Rogers (C.) (2015), 338 O.A.C. 105; 2015 ONCA 399, leave to appeal refused [2015] S.C.C.A. No. 448, refd to. [para. 12].

R. v. Green, 2015 QCCA 2109, refd to. [para. 12].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 16].

Von Starck v. The Queen, [2000] UKPC 5; [2000] 1 W.L.R. 1270, refd to. [para. 18].

R. v. Pappas (B.J.), [2013] 2 S.C.R. 452; 450 N.R. 37; 561 A.R. 228; 594 W.A.C. 228; 2013 SCC 56, refd to. [para. 19].

R. v. Pickton (R.W.), [2010] 2 S.C.R. 198; 404 N.R. 198; 290 B.C.A.C. 264; 491 W.A.C. 264; 2010 SCC 32, refd to. [para. 19].

R. v. Grant (M.E.), [2015] 1 S.C.R. 475; 468 N.R. 83; 315 Man.R.(2d) 259; 630 W.A.C. 259; 2015 SCC 9, refd to. [para. 20].

R. v. Arcuri (G.), [2001] 2 S.C.R. 828; 274 N.R. 274; 150 O.A.C. 126; 2001 SCC 54, refd to. [para. 23].

R. v. Hill (K.) (2015), 339 O.A.C. 90; 2015 ONCA 616, refd to. [para. 24].

R. v. Cairney (M.J.), [2013] 3 S.C.R. 420; 450 N.R. 1; 561 A.R. 192; 594 W.A.C. 192; 2013 SCC 55, refd to. [para. 24].

R. v. Bushie (C.O.) (2012), 280 Man.R.(2d) 236; 548 W.A.C. 236; 2012 MBCA 67, refd to. [para. 24].

R. v. Gauthier (C.), [2013] 2 S.C.R. 403; 445 N.R. 97; 2013 SCC 32, refd to. [para. 25].

R. v. Doucette (T.) (2015), 337 O.A.C. 109; 2015 ONCA 583, refd to. [para. 25].

R. v. D.C., [2012] 2 S.C.R. 626; 435 N.R. 118; 2012 SCC 48, refd to. [para. 31].

Caswell v. Powell Duffryn Associated Colleries, Ltd., [1940] A.C. 152 (H.L.), refd to. [para. 31].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 31].

R. v. Simpson (A.) et al., [2015] 2 S.C.R. 827; 473 N.R. 94; 2015 SCC 40, refd to. [para. 38].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 38].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 39].

R. v. Brar (G.S.) (2009), 279 B.C.A.C. 94; 473 W.A.C. 94; 2009 BCCA 585, refd to. [para. 40].

Counsel:

A.L. Sansregret and K.I. Dowle, for the appellant;

N.P. Steen, for the respondent.

This appeal was heard on March 11, 2016, before Monnin, Steel and Mainella, JJ.A., of the Manitoba Court of Appeal. Mainella, J.A., delivered the following judgment for the court on April 19, 2016.