R. v. Nodrick (S.D.), 2012 MBCA 61

• Jurisdiction: Manitoba
• Judge: Scott, C.J.M., Chartier and Monnin, JJ.A.
• Court: Court of Appeal (Manitoba)
• Citation: 2012 MBCA 61,(2012), 280 Man.R.(2d) 223 (CA)
• Date: 04 June 2012

R. v. Nodrick (S.D.) (2012), 280 Man.R.(2d) 223 (CA);

      548 W.A.C. 223

MLB headnote and full text

Temp. Cite: [2012] Man.R.(2d) TBEd. JN.024

Her Majesty The Queen (appellant) v. Shaun Dennis Nodrick (accused/respondent)

(AR 10-30-07483; 2012 MBCA 61)

Indexed As: R. v. Nodrick (S.D.)

Manitoba Court of Appeal

Scott, C.J.M., Chartier and Monnin, JJ.A.

June 4, 2012.

Summary:

In June 2003, the accused drove the victim's vehicle to a field adjacent to a country road. He took the victim's bank card and other identification, then abandoned him. The 65 year old victim was frail and a diabetic. Over the next week, the accused was questioned by police concerning the victim's whereabouts and why the accused had his vehicle and identification. One week after abandoning the victim, the accused admitted what he had done and directed police to the location where he left the victim. The victim had wandered aimlessly around the place where he had been left and died from exposure notwithstanding that he was only 500 metres from a farmhouse and a golf course. A jury acquitted the accused of second degree murder. The Crown appealed the acquittal on two grounds: (1) the judge's jury instructions on causation were incomplete and (2) the judge erred in improperly circumscribing the actus reus of the offence.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 1260.1

Offences against person and reputation - Murder - General principles - Causation - [See Criminal Law - Topic 4951 ].

Criminal Law - Topic 4393

Procedure - Charge or directions - Jury or judge alone - Failure by counsel to object - Effect of - [See Criminal Law - Topic 4951 ].

Criminal Law - Topic 4828

Appeals - Indictable offences - Right of appeal - By Crown - [See Criminal Law - Topic 4951 ].

Criminal Law - Topic 4951

Appeals - Indictable offences - New trials - Grounds - Misdirection by trial judge - Appeal by Crown from acquittal - A Crown appeal from a jury acquittal was limited to a question of law - Assuming an error of law, the appeal would succeed only if the Crown overcame the "nexus hurdle" by discharging the heavy onus of establishing a link between the error and the acquittal - A jury acquitted the accused of second degree murder after the 65 year old frail, diabetic victim was abandoned by the accused in a field 500 metres from a farmhouse and golf course - The victim wandered aimlessly where he was left and died of exposure (in June) sometime in the week before his body was found - The Crown appealed the acquittal on the ground that the judge's jury instructions on causation were incomplete - The Manitoba Court of Appeal dismissed the appeal - Assuming that the jury charge was in error, there was a reasonable degree of certainty that a correct instruction would not have affected the jury's decision to acquit, where it was clear that the jury found that the accused caused the victim's death - It was likely that the acquittal resulted from the jury having a reasonable doubt not on causation, but on the issue of objective or reasonable foreseeability of causing death unlawfully - The accused's failure to object to the jury charge (three opportunities to review and comment on it), while not determinative, was a proper consideration in determining the seriousness of any misdirection - See paragraphs 10 to 29.

Criminal Law - Topic 4975

Appeals - Indictable offences - Powers of Court of Appeal - Appeal from an acquittal - [See Criminal Law - Topic 4951 ].

Cases Noticed:

R. v. R.G.B. (2012), 275 Man.R.(2d) 119; 538 W.A.C. 119; 2012 MBCA 5, refd to. [para. 7].

R. v. Samuels (J.K.) (2009), 265 O.A.C. 214; 2009 ONCA 614, refd to. [para. 8].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81, refd to. [para. 8].

R. v. Sutton (K.M.), [2000] 2 S.C.R. 595; 262 N.R. 384; 230 N.B.R.(2d) 205; 593 A.P.R. 205; 2000 SCC 50, refd to. [para. 9].

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, refd to. [para. 11].

R. v. Nette (D.M.), [2001] 3 S.C.R. 488; 277 N.R. 301; 158 B.C.A.C. 98; 258 W.A.C. 98; 2001 SCC 78, refd to. [para. 12].

R. v. Maybin (M.L.) (2012), 430 N.R. 33; 321 B.C.A.C. 83; 547 W.A.C. 83; 2012 SCC 24, refd to. [para. 12].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 19].

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. 23].

R. v. Khela (G.S.), [2009] 1 S.C.R. 104; 383 N.R. 279; 265 B.C.A.C. 31; 446 W.A.C. 31; 2009 SCC 4, refd to. [para. 24].

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. 24].

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

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. 25].

R. v. Phillips (C.) et al. (2001), 139 O.A.C. 282 (C.A.), refd to. [para. 25].

R. v. Paquette (J.) (2001), 153 O.A.C. 149 (C.A.), refd to. [para. 26].

R. v. Polimac (M.) (2010), 262 O.A.C. 91; 2010 ONCA 346, refd to. [para. 26].

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. 33].

R. v. Hall (C.) (2010), 269 O.A.C. 199; 2010 ONCA 724, refd to. [para. 37].

Counsel:

A.Y. Kotler, for the appellant;

M. Wasyliw, for the respondent.

This appeal was heard on September 16, 2011, before Scott, C.J.M., Chartier and Monnin, JJ.A., of the Manitoba Court of Appeal.

On June 4, 2012, Chartier, J.A., delivered the following judgment for the Court of Appeal.