R. v. Will (J.B.E.), (2015) 451 Sask.R. 244 (CA)

• Judge: Jackson, Klebuc and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 21, 2014
• Jurisdiction: Saskatchewan
• Citations: (2015), 451 Sask.R. 244 (CA);2015 SKCA 11

R. v. Will (J.B.E.) (2015), 451 Sask.R. 244 (CA);

    628 W.A.C. 244

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. FE.005

Jason Brian Emil Will (appellant) v. Her Majesty the Queen (respondent)

(CACR2201)

Her Majesty the Queen (appellant) v. Jason Brian Emil Will (respondent)

(CACR2205; 2015 SKCA 11)

Indexed As: R. v. Will (J.B.E.)

Saskatchewan Court of Appeal

Jackson, Klebuc and Ottenbreit, JJ.A.

February 9, 2015.

Summary:

The accused was charged with manslaughter in the death of his partner's 18 month old son.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2012), 402 Sask.R. 252, convicted the accused.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2012), 403 Sask.R. 289, sentenced the accused to seven years' imprisonment. The court also imposed a lifetime firearms prohibition order under s. 109 of the Criminal Code and a DNA order under s. 487.052(1). The accused appealed from the conviction and sought leave to appeal from the sentence. The Crown also sought leave to appeal from the sentence. The accused sought bail pending the appeal. In a judgment reported at [2012] Sask.R. Uned. 114, a single Court of Appeal judge denied the accused denied bail pending the appeal. The accused applied under s. 680 of the Criminal Code for a panel of the court to review that decision.

The Saskatchewan Court of Appeal, per Klebuc, C.J.S., in a decision reported at (2013), 405 Sask.R. 270; 563 W.A.C. 270, dismissed the application.

The Saskatchewan Court of Appeal dismissed the accused's appeal from conviction. The court granted leave to appeal from the sentence to the accused and to the Crown and dismissed the appeals.

Criminal Law - Topic 1312

Offences against person and reputation - Manslaughter - Causation - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4300

Procedure - Trial judge - Duties and functions of - Respecting credibility of witnesses (incl. accused) - [See Criminal Law - Topic 4379 ].

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was convicted of manslaughter in the death of his girlfriend's 18 month old son - The trial judge concluded that the accused had smothered the child when he put his hand over the child's external airways - The accused appealed from the conviction, asserting, inter alia, that the trial judge had erred by not following the proper analysis to determine if there was an evidence-based reasonable doubt - The Saskatchewan Court of Appeal dismissed the appeal - To the extent that the details of smothering were apparent on the evidence, the trial judge was satisfied that the accused's actions prevented the child from breathing long enough to incapacitate him, that the child was not conscious when the accused ceased his action and that the accused's actions were a significant cause of the child's death - These were reasonable conclusions - There was no error in the application of the reasonable doubt principle as it concerned causation - See paragraphs 21 to 26.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Directions on evidence generally - The accused was convicted of manslaughter in the death of his girlfriend's 18 month old son - The trial judge concluded that the accused had smothered the child when he put his hand over the child's external airways - The accused appealed from the conviction, asserting, inter alia, that the trial judge had not examined the accused's testimony in light of the evidence as a whole - The Saskatchewan Court of Appeal dismissed the appeal - There was no merit to this argument - In the context of all the evidence, especially the medical evidence, the trial judge concluded that the multiple bruises on the child's head and torso occurred while he was in the accused's care and no one else could have caused the bruising - He concluded that the bruising occurred, at least in part, in conjunction with the smothering - In short, he concluded that he did not believe the accused's evidence that he did not smother or bruise the child in the context of all the other evidence of what transpired and the condition of the dead child - See paragraphs 36 to 39.

Criminal Law - Topic 4352.4

Procedure - Charge or directions - Jury or judge alone - Directions re causation - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - [See Criminal Law - Topic 4379 and Evidence - Topic 108 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions regarding character or credibility of accused - The accused was convicted of manslaughter in the death of his girlfriend's 18 month old son - The trial judge concluded that the accused had smothered the child when he put his hand over the child's external airways - The accused appealed from the conviction, asserting, inter alia, that the trial judge had failed to apply the standard of reasonable doubt to the credibility of witnesses and had preferred or ignored certain testimonies over others without explaining why - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge had properly applied the D.W. analysis to the accused's evidence and concluded that he disbelieved that the accused's actions had not smothered the child - This was based not only on the accused's testimony, but also on his statements to police - To the extent that the trial judge had preferred the Crown's expert's evidence over that of the defence, deference had to be accorded to the trial judge as the trier of fact - There was a reasonable basis for accepting the expert evidence as the trial judge had and he had adequately explained his reasons for doing so - See paragraphs 51 to 55.

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The accused was convicted of manslaughter in the death of his girlfriend's 18 month old son - The trial judge concluded that the accused had smothered the child when he put his hand over the child's external airways - The accused appealed from the conviction, asserting, inter alia, that the verdict was unreasonable because the trial judge had erred in making findings of fact and credibility - The Saskatchewan Court of Appeal dismissed the appeal - The test for assessing reasonableness of a verdict was the same in circumstantial evidence cases as it was in cases where the verdict was based on direct evidence - Here, the court could not say "that the findings of fact and credibility which the trial judge made were in error such that the verdict was unreasonable" - See paragraphs 56 to 61.

Criminal Law - Topic 5831.1

Sentencing - Considerations - Offences involving breach of trust - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5833.1

Sentencing - Considerations on imposing sentence - Child abuse - [See Criminal Law - Topic 5882 ].

Criminal Law - Topic 5847

Sentencing - Considerations on imposing sentence - Remorse of accused - The accused was sentenced to seven years' imprisonment for manslaughter in the smothering death of his girlfriend's 18 month old son - On appeal from the sentence, the accused asserted that the trial judge had erred in (a) interpreting the accused's insistence on his innocence as a lack of remorse and, therefore, aggravating; (b) using the evidence of multiple bruising as an aggravating factor although he could not come to a firm conclusion as to the age and origin of the bruises; and (c) failing to take into account the accused's lack of a criminal record - The Saskatchewan Court of Appeal dismissed the appeal - There was nothing inappropriate in the trial judge taking the accused's attitude into consideration - Further, the accused's assertion that the trial judge could not determine the origin of the bruises was simply incorrect - Finally, the trial judge had noted the accused's lack of a record and that it might favourably distinguish this case from similar cases - See paragraphs 62 to 67.

Criminal Law - Topic 5848.8

Sentencing - Considerations on imposing sentence - First offence - [See Criminal Law - Topic 5847 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - The accused was sentenced to seven years' imprisonment for manslaughter in the smothering death of his girlfriend's 18 month old son - The Crown appealed from the sentence on a number of grounds, including that it violated the principles of parity and proportionality and was demonstrably unfit - At trial, the Crown had sought a sentence of nine or 10 years - The Saskatchewan Court of Appeal dismissed the appeal - The court rejected the Crown's argument that the trial judge had treated the death as one of criminal neglect, rather than a criminal assault - There was no error in the findings that the accused had not intended nor foreseen the child's death - The trial judge took into account the child's age and that the accused had abused his position of trust and authority - The trial judge specifically stated that the overriding principles here were denunciation and deterrence - The trial judge correctly stated the range of sentence for these cases and the applicable sentencing principles - The sentence was not unfit - See paragraphs 68 to 76.

Criminal Law - Topic 6204

Sentencing - Appeals - Variation of sentence - Grounds for refusing to vary sentence - [See Criminal Law - Topic 5847 and Criminal Law - Topic 5882 ].

Evidence - Topic 108

Degree, standard or burden of proof - Standard or degree of proof - Conjecture or speculation - The accused was convicted of manslaughter in the death of his girlfriend's 18 month old son - The trial judge concluded that the accused had smothered the child when he put his hand over the child's external airways - The accused appealed from the conviction, asserting, inter alia, that certain findings of the trial judge were "mere conjecture rather than proper inference from accepted evidence" - The Saskatchewan Court of Appeal dismissed the appeal - The trial judge had clearly accepted the evidence of the Crown's expert witness, who had examined the dead child - The trial judge had not found that the defence expert's evidence differed substantially from that of the Crown's expert, except that the defence witness proposed ways that the child could have died from natural causes - There was clearly evidence that supported the conclusions that the accused challenged as conjecture - See paragraphs 40 to 50.

Evidence - Topic 200

Inferences and weight of evidence - Inferences - Whether reasonable inference or speculation - [See Evidence - Topic 108 ].

Evidence - Topic 7002

Opinion evidence - Expert evidence - General - Acceptance, rejection and weight to be given to expert opinion - [See Evidence - Topic 108 ].

Cases Noticed:

R. v. Thatcher, [1987] 1 S.C.R. 652; 75 N.R. 198; 57 Sask.R. 113, refd to. [para. 22].

R. v. Dagenais (C.A.) (2012), 399 Sask.R. 271; 552 W.A.C. 271; 2012 SKCA 103, refd to. [para. 22].

R. v. Creighton, [1993] 3 S.C.R. 3; 157 N.R. 1; 65 O.A.C. 321, refd to. [para. 45].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 52].

R. v. R.E.M., [2008] 3 S.C.R. 3; 380 N.R. 47; 260 B.C.A.C. 40; 439 W.A.C. 40, refd to. [para. 52].

Lapointe v. Chevrette, [1992] 1 S.C.R. 351; 133 N.R. 116; 45 Q.A.C. 262, refd to. [para. 54].

Lapointe v. Hôpital Le Gardeur - see Lapointe v. Chevrette.

Kolibab v. Tenneco Canada Inc., [2000] 1 W.W.R. 590; 180 Sask.R. 278; 205 W.A.C. 278 (C.A.), refd to. [para. 54].

Derdall v. Derdall Irrigation Farms Ltd., [2010] Sask.R. Uned. 87; [2010] 11 W.W.R. 607; 2010 SKCA 104, refd to. [para. 55].

R. v. R.P., [2012] 1 S.C.R. 746; 429 N.R. 361; 2012 SCC 22, refd to. [para. 57].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 58].

R. v. Wills (B.) (2014), 318 O.A.C. 99; 308 C.C.C.(3d) 109; 2014 ONCA 178, affd. (2014), 465 N.R. 301; 327 O.A.C. 4; 2014 SCC 73, refd to. [para. 59].

R. v. R.R.B. (2013), 414 Sask.R. 184; 575 W.A.C. 184; 2013 SKCA 52, refd to. [para. 60].

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. 62].

R. v. Bighead (G.) (2003), 232 Sask.R. 236; 294 W.A.C. 236; 2003 SKCA 44, refd to. [para. 75].

R. v. Shorting (C.C.) (2009), 337 Sask.R. 134; 464 W.A.C. 134; 2009 SKCA 102, refd to. [para. 75].

R. v. Whitehawk (D.W.) (2010), 359 Sask.R. 105; 494 W.A.C. 105; 2010 SKCA 94, refd to. [para. 75].

Counsel:

Bob Hrycan, for Jason Brian Emil Will;

Dean Sinclair, Q.C., for Her Majesty the Queen.

These appeals were heard on October 21, 2014, by Jackson, Klebuc and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal. On February 9, 2015, Ottenbreit, J.A., delivered the following judgment for the court.