R. v. Sinclair (T.),

• Jurisdiction: Manitoba
• Judge: Monnin, Hamilton and Freedman, JJ.A.
• Neutral Citation: 2009 MBCA 71
• Citation: (2009), 240 Man.R.(2d) 135 (CA),2009 MBCA 71,[2009] 8 WWR 581,245 CCC (3d) 331,69 CR (6th) 163,[2009] CarswellMan 342,[2009] MJ No 252 (QL),240 Man R (2d) 135,456 WAC 135,[2009] M.J. No 252 (QL),456 W.A.C. 135,240 Man.R.(2d) 135,(2009), 240 ManR(2d) 135 (CA),240 ManR(2d) 135
• Date: 15 July 2009
• Court: Court of Appeal (Manitoba)

R. v. Sinclair (T.) (2009), 240 Man.R.(2d) 135 (CA);

      456 W.A.C. 135

MLB headnote and full text

Temp. Cite: [2009] Man.R.(2d) TBEd. JL.025

Her Majesty The Queen (respondent) v. Terrence Sinclair (accused/appellant)

(AR 08-30-06888)

Her Majesty The Queen (respondent) v. Dallas Pruden-Wilson (accused/appellant)

(AR 08-30-06898; 2009 MBCA 71)

Indexed As: R. v. Sinclair (T.)

Manitoba Court of Appeal

Monnin, Hamilton and Freedman, JJ.A.

July 15, 2009.

Summary:

The accused were charged with manslaughter and aggravated assault after a robbery victim was beaten and stabbed, then left motionless on the street at night, where he was killed 10 minutes later when run over by a car.

The Manitoba Court of Queen's Bench, in a judgment reported at (2007), 219 Man.R.(2d) 63, found the accused guilty of manslaughter. Convictions for aggravated assault were conditionally stayed under the Kienapple principle. The accused were sentenced to six years' imprisonment. Both accused appealed their convictions and sentences on the ground that the trial judge erred respecting causation. Sinclair also appealed on the ground that the evidence did not support the finding that he was one of the assailants.

The Manitoba Court of Appeal dismissed Pruden-Wilson's appeal. The trial judge did not err in finding that the victim being run over by a car was not an intervening act that broke the chain of causation. The court allowed Sinclair's appeal on the second ground (identity) and ordered a new trial. Pruden-Wilson's sentence appeal was dismissed.

Criminal Law - Topic 1312

Manslaughter - Causation - Three assailants robbed the victim in the early hours of the morning - The victim, who was beaten and stabbed, was left lying motionless on the street - Ten minutes later, a motorist struck and killed the victim - The victim was still alive when struck by the vehicle - The trial judge found that the accused (Pruden-Wilson and Sinclair) were two of the assailants and were guilty of manslaughter - The fact that the victim was struck by a vehicle was not an intervening act that broke the chain of causation - Causation was established where the accused beat the victim, leaving him injured and motionless in the middle of the road at night, a place of obvious danger - The assault on the victim was a significant contributing cause of his death - The accused appealed, submitting that the trial judge erred in finding that the chain of causation was not broken - The Manitoba Court of Appeal dismissed the appeal where the trial judge made no palpable and overriding error in his finding of mixed fact and law - The chain was not broken because the driver's vehicle was not roadworthy and he did not immediately see the victim on the road due to momentary inattention - The chain of causation was broken only if the intervening event was "extraordinary or unusual" - A vehicle running over a motionless victim left helpless on a road was not "extraordinary or unusual" - See paragraphs 26 to 53.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by evidence - [See Criminal Law - Topic 5020 ].

Criminal Law - Topic 4957

Appeals - Indictable offences - New trials - Grounds - Misapprehension of evidence - [See Criminal Law - Topic 5020 ].

Criminal Law - Topic 5020

Appeals - Indictable offences - Setting aside verdicts - Verdict unreasonable or unsupported by evidence - An accused was convicted of manslaughter partially on the basis of "evidence" identifying him as one of the victim's three assailants - The Manitoba Court of Appeal held that the trial judge mischaracterized or misapprehended the evidence, as the "evidence" relied on was not proven at trial - The court held that a verdict was unreasonable where the trial judge's findings were partially based on non-existent "evidence" - Where the non-existent evidence relied on was essential to the ultimate verdict, a new trial was required where, but for the error, there was evidence capable of supporting a conviction - See paragraphs 54 to 100.

Criminal Law - Topic 5882

Sentence - Manslaughter - The 21 year old accused was one of three assailants who robbed the victim in the early hours of the morning - The victim, who was beaten and stabbed, was left lying motionless on the street - Ten minutes later, a motorist struck and killed the victim - The victim was still alive when struck by the vehicle - The accused was convicted of manslaughter and sentenced to six years' imprisonment - The accused was aboriginal - He did not finish high school, did not have any significant employment record, was the father of a two year old child and hoped to return to school to become a mechanic - He was brought up in a home with no alcohol or substance abuse - He had no prior criminal record of any consequence and was assessed as a medium risk to re-offend - The Manitoba Court of Appeal dismissed the sentence appeal - Denunciation and deterrence were appropriate - The trial judge considered and balanced all the available evidence and the appropriate sentencing factors - Six years fell within the range of sentences for a brutal beating of an innocent victim who died because he was left helpless by his assailants on the road in harm's way - See paragraphs 102 to 124.

Cases Noticed:

R. v. Smithers, [1978] 1 S.C.R. 506; 15 N.R. 287, refd to. [para. 22].

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. 22].

R. v. Hallett, [1969] S.A.S.R. 141 (Aust. S.C.), refd to. [para. 23].

R. v. Samuelsen (E.) (1991), 120 N.B.R.(2d) 124; 302 A.P.R. 124 (T.D.), refd to. [para. 23].

R. v. Kienapple, [1975] 1 S.C.R. 729; 1 N.R. 322, refd to. [para. 25].

R. v. C.B., [1993] M.J. No. 96 (Prov. Ct.), refd to. [para. 30].

R. v. Cheshire, [1991] 3 All E.R. 670 (C.A.), refd to. [para. 31].

R. v. Menezes (C.), [2002] O.T.C. 118; 50 C.R.(5th) 343 (Sup. Ct.), refd to. [para. 33].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 34].

R. v. Buhay (M.A.), [2003] 1 S.C.R. 631; 305 N.R. 158; 177 Man.R.(2d) 72; 304 W.A.C. 72; 2003 SCC 30, refd to. [para. 34].

R. v. Talbot (T.) (2007), 220 O.A.C. 167; 217 C.C.C.(3d) 415; 2007 ONCA 81, refd to. [para. 38].

R. v. Trakas (2008), 241 O.A.C. 52; 233 C.C.C.(3d) 172; 2008 ONCA 410, refd to. [para. 40].

R. v. Pangowish (S.J.) et al. (2003), 177 B.C.A.C. 219; 291 W.A.C. 219; 171 C.C.C.(3d) 506; 2003 BCCA 62, refd to. [para. 40].

R. v. Thomas (E.T.) (2008), 228 Man.R.(2d) 289; 427 W.A.C. 289; 2008 MBCA 75, refd to. [para. 40].

R. v. Shilon (M.) (2006), 240 C.C.C.(3d) 401 (Ont. C.A.), refd to. [para. 41].

R. v. Tower (T.J.) (2008), 261 N.S.R.(2d) 135; 835 A.P.R. 135; 54 C.R.(6th) 338; 2008 NSCA 3, refd to. [para. 46].

R. v. K.T. (2005), 195 Man.R.(2d) 89; 351 W.A.C. 89; 2005 MBCA 78, refd to. [para. 50].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 75].

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. 75].

R. v. Corbett, [1975] 2 S.C.R. 275; 1 N.R. 258, refd to. [para. 76].

R. v. S.G.T. (2008), 314 Sask.R. 44; 435 W.A.C. 44; 237 C.C.C.(3d) 55; 2008 SKCA 119, refd to. [para. 76].

R. v. Beaudry (A.), [2007] 1 S.C.R. 190; 356 N.R. 323; 2007 SCC 5, refd to. [para. 76].

R. v. Abourached (N.) (2007), 259 N.S.R.(2d) 379; 828 A.P.R. 379; 2007 NSCA 109, refd to. [para. 90].

R. v. Jackson (M.A.), [2007] 3 S.C.R. 514; 369 N.R. 375; 2007 SCC 52, refd to. [para. 91].

R. v. Lohrer (A.W.), [2004] 3 S.C.R. 732; 329 N.R. 1; 208 B.C.A.C. 1; 344 W.A.C. 1; 2004 SCC 80, refd to. [para. 97].

R. v. Peers (R.W.) (2009), 266 B.C.A.C. 274; 449 W.A.C. 274; 2009 BCCA 74, refd to. [para. 99].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 103].

R. v. Gibson (1984), 4 O.A.C. 313 (C.A.), refd to. [para. 111].

R. v. Shanks (W.) (1996), 95 O.A.C. 348; 4 C.R.(5th) 79 (C.A.), refd to. [para. 111].

R. v. Capistrano (L.C.) (2001), 154 Man.R.(2d) 140; 2001 MBQB 60, refd to. [para. 116].

R. v. Stratton (M.) et al. (2002), 204 N.S.R.(2d) 372; 639 A.P.R. 372; 2002 NSSC 103, refd to. [para. 116].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81, refd to. [para. 118].

R. v. Csincsa (M.A.P.) (1993), 85 Man.R.(2d) 241; 41 W.A.C. 241 (C.A.), refd to. [para. 121].

Authors and Works Noticed:

Barry, Tricia K., What Happened in R. v. Beaudry? A Perspective on the "Reconsideration" of the Standard for Appellate Intervention under Section 686(1)(a)(i) (2008), 12 Can. Crim. L. Rev. 1, generally [para. 89].

Coughlan, Steven, Annotation to R. v. Beaudry (A.) (2006), 44 C.R.(6th) 57, p. 62 [para. 87].

Smith, Ian R., Developments in Criminal Law: Substantive Criminal Law The 2006-2007 Term (2007), 38 Sup. Ct. L. Rev.(2d) 355, pp. 367, 369 [para. 88].

Counsel:

R.J. Wolson, Q.C., for T. Sinclair;

C.L. Antila, for D. Pruden-Wilson;

E.A. Thomson, for the respondent.

These appeals were heard on December 4, 2008, before Monnin, Hamilton and Freedman, JJ.A., of the Manitoba Court of Appeal.

On July 15, 2009, Hamilton and Freedman, JJ.A., jointly delivered the following judgment for the Court of Appeal.