R. v. Worm (J.) et al., 2014 SKCA 94

• Judge: Ottenbreit, Caldwell and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 15, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 94;(2014), 442 Sask.R. 228 (CA)

R. v. Worm (J.) (2014), 442 Sask.R. 228 (CA);

    616 W.A.C. 228

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. SE.038

Jacob Worm, Tyrone Worm and Denny Troy Jimmy (appellants) v. Her Majesty the Queen (respondent)

(1673-CR; 1675-CR; 1678-CR; 2014 SKCA 94)

Indexed As: R. v. Worm (J.) et al.

Saskatchewan Court of Appeal

Ottenbreit, Caldwell and Herauf, JJ.A.

September 15, 2014.

Summary:

A homeowner was shot and killed during a home invasion robbery by a number of persons, including the accused J. Worm, T. Worm and Jimmy. A jury found J. Worm guilty of second degree murder and T. Worm and Jimmy guilty of manslaughter as parties to the murder. J. Worm was sentenced to life imprisonment without eligibility for parole for 16 years (see 330 Sask.R. 298). Jimmy was sentenced to 12 years' imprisonment, less 46 months' credit for 23 months' pre-trial custody spent in 23.5 hours/day lock-down (see 330 Sask.R. 306). T. Worm was also sentenced to 12 years' imprisonment, less 46 months' credit for 23 months' pre-trial custody spent in 23.5 hours/day lock-down (see [2009] Sask.R. Uned. 35). All three accused appealed their convictions on the ground that the trial judge's Vetrovec warnings to the jury were inadequate and incomplete. T. Worm and J. Worm also appealed on the ground of incompetent representation by trial counsel. All three accused sought leave to appeal their sentences.

The Saskatchewan Court of Appeal dismissed the conviction appeals. The court granted T. Worm and J. Worm leave to appeal their sentences, but dismissed the appeals.

Civil Rights - Topic 3158

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to effective assistance by counsel - [See Civil Rights - Topic 4620.1 ].

Civil Rights - Topic 4620.1

Right to counsel - Right to effective assistance by counsel - The accused appealed their convictions on the ground that their trial counsel incompetently represented them, which gave rise to a miscarriage of justice - The Saskatchewan Court of Appeal dismissed this ground of appeal - The court stated that "the accused must demonstrate that, had trial counsel performed competently, there was a reasonable possibility that the verdict could have been different ... it is incumbent on each appellant to establish that his respective counsel was incompetent and, as a result, a miscarriage of justice has occurred in this matter. ... a threshold criterion for the admission of fresh evidence in cases where trial fairness is at issue due to allegations of incompetent counsel is that the new information must be clear and convincing, otherwise it will not be admitted. ... the appellants have proffered no evidence of the standard of competent trial counsel in similar circumstances against which to gauge the alleged incompetence or negligence on the part of their trial counsel. In my view, the appellants' 'evidence' regarding the Crown's alleged manipulation of the circumstances and their trial counsels' alleged incompetence is unsatisfactory, far from clear or convincing and, even though uncontradicted, is insufficient to justify the setting aside of their respective convictions. ... it fails to satisfy the required standard for its admission and I would dispose of this ground of appeal on that basis alone. ... the evidence proffered ... is insufficient to displace the strong presumption that the trial counsels' conduct fell within the wide range of reasonable, professional assistance" - See paragraphs 107 to 122.

Criminal Law - Topic 4302

Procedure - Trial judge - Duties and functions of - Respecting conduct of defence - [See Criminal Law - Topic 4418 ].

Criminal Law - Topic 4354

Procedure - Charge or directions - Jury or judge alone - Directions regarding pleas or evidence of witnesses, co-accused and accomplices - [See all Criminal Law - Topic 5510 ].

Criminal Law - Topic 4378

Procedure - Charge or directions - Jury or judge alone - Judicial review of - The Saskatchewan Court of Appeal stated that "the appellate role in reviewing a jury charge was set forth in R. v. Jacquard ... where the Court urged appellate courts to use a functional approach to avoid the danger of setting an impossible standard for trial judges. As such, appellate review calls for an assessment to determine whether the accused, based on a review of the whole charge to the jury, has had a fair trial, that it is not an examination to find minute error. ... the purpose of appellate review is to ensure that juries are properly instructed, not perfectly instructed." - See paragraph 19.

Criminal Law - Topic 4418

Procedure - Opening and closing addresses - Summing up - Counsel - Closing address - Respecting law - A trial judge, in giving a Vetrovec warning to the jury, corrected statements made by multiple defence counsel during their respective closing addresses to the jury - On appeal, the accused argued that the repeated corrections prejudiced their right to a fair trial - The Saskatchewan Court of Appeal stated that "The remarks of the trial judge were correct in law and, in context, were insufficient to impair the appearance of a fair trial. I cannot characterise her remarks as judicial discourtesy to counsel. She did not characterise defence counsel as incompetent or less than honest and did not disparage the defences they presented. ... Interventions by a trial judge to clear up ambiguities or errors of law are perfectly justifiable provided, as was the case here, they do not convey the impression the judge is placing her authority on the side of the Crown, or make it impossible for defence counsel to do his or her duty in presenting the defence, or prevent the accused from doing himself justice or telling his story in his own way. ... Here, the trial judge's comments were capable of conveying to the jury that defence counsel at trial were wrong on the law in one respect, but she did not convey the impression to the jury that counsel were endeavouring to deceive the jury and the comments did not reflect on the integrity of the appellants' defence. Regardless, even if these comments by the trial judge were in error, an error of this nature does not by itself warrant intervention by a court of appeal. Only if the error is sufficiently serious to constitute a miscarriage of justice by giving rise to the appearance of or an actual unfair trial will it justify intervention. That is not the case here." - See paragraphs 95 to 97.

Criminal Law - Topic 4574

Procedure - Conduct of trial - Interventions by trial judge - [See Criminal Law - Topic 4418 ].

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - [See Civil Rights - Topic 4620.1 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See fifth Criminal Law - Topic 5510 ].

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The Saskatchewan Court of Appeal stated that a Vetrovec warning " alerts a jury to the danger of relying on the unsupported evidence of unsavoury witnesses and explains the reasons for special scrutiny of their testimony. In appropriate cases, it may also give a jury tools to help to identify evidence capable of enhancing the trustworthiness of unsavoury witnesses. The overall goal of a Vetrovec warning is to ensure that jurors attain an appropriate level of comfort before convicting an accused on the basis of what has traditionally been considered unreliable evidence ... The content of a Vetrovec warning must achieve its purposes, but there is no fixed or mandatory language for doing so. This necessarily leaves a trial judge with latitude when crafting a Vetrovec warning as part of the judge's charge to a jury." - See paragraphs 14 to 15.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - A homeowner was shot and killed during a home invasion robbery by a number of persons, including the accused J. Worm, T. Worm and Jimmy - A jury found J. Worm guilty of second degree murder and T. Worm and Jimmy guilty of manslaughter as parties to the murder - Two unsavoury witnesses (Smoke and Raphael) admitted to being involved in the robbery and identified the accused as being present - A third unsavoury witness (Anderson) was the homeowner's son and testified that J. Worm admitted shooting his father - The trial judge issued a Vetrovec warning to the jury respecting the evidence of the three unsavoury witnesses, but declined to give a Vetrovec warning respecting Smoke's sister - The sister was part of the group before the robbery, but did not participate in it - She testified that J. Worm had a gun when he left for the robbery and heard J. Worm admit that he shot "that guy" - The Saskatchewan Court of Appeal held that the trial judge did not err in declining to give a Vetrovec warning respecting the sister - The court stated that "She was never charged with any offence or taken into custody in connection with this matter. She voluntarily gave a statement to the police when called upon to do so. There is no evidence she acted as a witness for the Crown in exchange for any immunity or benefit, or hope thereof, for herself or her brother. While her evidence may have minimised her brother's association with the murder weapon, it did not exculpate him; in fact, she placed him squarely within the group who participated in the home invasion. There is no suggestion she is an inveterate liar, a perjurer or an otherwise untrustworthy individual. ... The allegations that she is an accomplice or an accessory are wholly speculative or based on longbow inferences drawn from scant circumstantial evidence. ... Here, factors which might have given rise to dangers or weaknesses in [the sister's] evidence were largely absent or wholly speculative or were readily apparent and easily quantifiable with the application of common sense. ... the jurors were made well aware of the characteristics of [the sister] and the frailties of her evidence that brought its credibility into question and, with the application of no more than common senses, a juror would easily discern reasons to carefully scrutinise her testimony." - See paragraphs 27 to 37.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The Saskatchewan Court of Appeal held that the evidence of one unsavoury witness could be used to confirm the evidence of another unsavoury witness - The court stated that "a Vetrovec warning does not render admissible that which is otherwise inadmissible nor does it lend materiality to that which is otherwise immaterial. Rather, because the evidence of an unsavoury witness is inherently unreliable, a Vetrovec warning instructs jurors to look for evidence that corroborates or supports the unreliable evidence and it warns jurors to be cautious about convicting an accused in the absence of such corroboration or support. Nonetheless, a jury may still convict an accused in reliance only on the unsupported, uncorroborated, inherently unreliable evidence of an unsavoury witness provided the jury is convinced of the truth of the evidence and, thereby, the accused's guilt beyond a reasonable doubt. ... [in a British Columbia Court of Appeal case it was stated that] while evidence two unsavoury witnesses had colluded might prohibit the jury from using the testimony of one to corroborate that of the other, the jury was not barred from doing so as a general rule. ... [In an Ontario Court of Appeal case it was stated that] the possibility of tainting, while clearly relevant, was not in and of itself enough to say that the evidence of one unsavoury witness could not be independent of the other." - The court held that where there was no evidence of any collusion on the parts of the two unsavoury witnesses, the trial judge did not err in instructing the jury that the evidence of one of them could be used to corroborate or confirm the evidence of the other - See paragraphs 38 to 44.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The accused committed a home invasion robbery that resulted in the shooting death of the homeowner by one of them - One accused was convicted of second degree murder - The other two were convicted of manslaughter - The accused appealed, arguing that the trial judge erred by failing to caution the jury, while giving a Vetrovec warning, about the frailties of eyewitness identification evidence - One of the accused had a prominent facial scar that was not mentioned by a witness identifying the accused as participating in the home invasion robbery - The accused argued that the trial judge should have instructed the jury that if the witness had identified the accused as having facial scarring, then the evidence would be potentially confirmatory of the identification evidence proffered by the unsavoury witnesses - The Saskatchewan Court of Appeal dismissed this ground of appeal - A trial judge was to instruct a jury to look for evidence tending to corroborate the evidence of an unsavoury witness - The court stated that "the absence of evidence as to a certain circumstances, especially a circumstance that is itself not actually in evidence, can be neither confirmatory nor evidence per se. The second problem is that a judicial direction of the nature sought ... would have had the effect of telling the jury to disregard suspect evidence on the basis of an absence of evidence as to a certain circumstance. It would have left the jury no option but to conclude the absence of evidence from the victims as to a scarred assailant confirmed the unreliability of the evidence of unsavoury witnesses as to [the accused's] involvement in the crime. This would be tantamount to a judicial direction to the jury to disbelieve the suspect evidence because it is not corroborated in a specific way and would thereby usurp and narrow the jury's function as trier of fact. ... The suggested approach is all the more problematic ... given the body of evidence to the effect that most of the assailants had masked their faces, which diminishes the meaningfulness of the fact the witnesses did not testify as to any scarring on an assailant's face." - See paragraphs 45 to 55.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The accused committed a home invasion robbery that resulted in the shooting death of the homeowner by one of them - One accused (T. Worm) was convicted of second degree murder - Two unsavoury witnesses, who were the subject of Vetrovec warnings, testified that T. Worm was present and participated in the home invasion robbery - One unsavoury witness placed T. Worm in the living room - The other placed him in the kitchen - T. Worm's defence was that he was not at the residence at all - T. Worm argued that the Vetrovec warning was inadequate where it failed to specifically instruct the jury on the frailties of eyewitness identification evidence - The Saskatchewan Court of Appeal dismissed this ground of appeal - The court stated that "the jury was satisfied that [T. Worm] had formed a common intention with his brother and others to invade the Anderson home and rob its occupants and that he knew or ought to have known that a homicide would be a probable consequence of carrying out that unlawful common purpose. Given the circumstances of his conviction, it matters little whether the unsavoury witnesses, who both knew [T. Worm] and clearly placed him among the home invaders, gave inconsistent evidence as to which room of the home he had been in at the time of the homicide. ... while I find that the trial judge misapprehended some of Mr. Raphael's evidence, I am of the opinion that no substantial wrong or miscarriage of justice has occurred as a result. Therefore, notwithstanding the misapprehension, I would invoke the curative provision in s. 686(1)(b) in respect of this aspect of this ground of appeal because the error does not give rise to a reasonable possibility the jury would have rendered a different verdict [but for the error]" - See paragraphs 56 to 65.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - A group of persons committed a home invasion robbery that resulted in the shooting death of the homeowner - The accused J. Worm was convicted by a jury of second degree murder as the shooter - The evidence of unsavoury witnesses, subject to Vetrovec warnings, identified J. Worm as a member of the home invaders and the shooter - J. Worm, who denied being present at all, appealed his conviction on the ground that the trial judge's Vetrovec warnings should have incorporated a referral to the absence of other evidence (other than unsavoury witnesses) pertaining to his presence at the crime scene - The Saskatchewan Court of Appeal rejected this ground of appeal - The court stated that "The process called for is one of searching for confirmatory or corroborating evidence because the suspect evidence is inherently unreliable by reason of the unsavoury characteristics of the witness. While its presence may assist jurors in their assessment of an unsavoury witness's credibility, the absence of other evidence lends nothing to the analysis and requires no special acknowledgement by the trial judge. As such, the trial judge's charge was not flawed by reason that she did not draw specific attention to the lack of other evidence placing [J. Worm] in the Anderson home at the time of the homicide." - See paragraphs 73 to 78.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The accused appealed on the ground that "the trial judge's Vetrovec warnings failed to provide the members of the jury with meaningful analytical tools by which they could properly assess the suspect evidence of the unsavoury witnesses" - The Saskatchewan Court of Appeal rejected his ground of appeal, stating that "the application of simple common sense would tell a juror to be truly cautious about the evidence of [the unsavoury witnesses] ... given each of their personal circumstances and characteristics and the nature of their testimony. But, even if a juror's common sense did not give rise to an awareness of the dangers inherent in the testimony of these unsavoury witnesses ... the trial judge's preliminary remarks and closing charge to the jury contained thorough instructions and advice on the assessment of credibility and other matters pertaining to the jury's assessment of the evidence. Her Vetrovec warnings supplemented this with clear and sharp cautions to the jurors of the special need to carefully scrutinise the evidence of the unsavoury witnesses. ... I do not see how the jurors could have been under any misunderstanding. I find that the trial judge said more than enough to ensure the jurors understood each of the three unsavoury witnesses in this case might have had some personal motive other than the pursuit of truth for what they had said in their testimony. ... I can see no reason why the members of the jury would have needed special tools beyond their own good common sense and the caution given to them by the trial judge to make an informed assessment of the trustworthiness of each [unsavoury witness]. ... a trial judge is not required by the law of evidence to discredit an unsavoury witness or to attempt to dissuade the jurors from believing the unsavoury witness." - See paragraphs 79 to 90.

Criminal Law - Topic 5510

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Warning to jury of danger of reliance on - The Saskatchewan Court of Appeal stated that " Vetrovec and the laws of evidence with respect to Vetrovec warnings did not require a trial judge to wade through all the consistencies, inconsistencies, contradictions and gaps in evidence while guiding the jury to a conclusion on the credibility of an unsavoury witness or truthfulness of his or her testimony. That is a task left solely to the jury as the trier of fact." - See paragraph 102.

Criminal Law - Topic 5515

Evidence and witnesses - Evidence of accomplices, co-defendants, informants, etc. - Corroboration or confirmatory evidence - [See all Criminal Law - Topic 5510 ].

Criminal Law - Topic 5670

Punishments (sentence) - Imprisonment and parole - Parole - Period of ineligibility (incl. jury recommendation) - The 23 year old accused, with the assistance of a group of others, broke into a home to rob the occupants of drugs - They had the wrong house - The accused, armed with a handgun, shot and killed an occupant in front of his daughter-in-law and 14 year old granddaughter - The accused was convicted by a jury of second degree murder and sentenced to life imprisonment - At issue was the period of parole ineligibility - The accused aboriginal had a tragic upbringing and abused alcohol since age nine - He had 45 previous criminal convictions as a youth and adult, including eight prior break and enters and five violence-related convictions - Aggravating factors included that this was a home invasion robbery committed by a group of persons under the influence of alcohol and/or drugs and was committed in the presence of the victim's granddaughter and daughter-in-law - Other family members were traumatized - The only mitigating factors were the accused's relative youth and his suffering of many of the systemic inequities identified in R. v. Gladue - Seven jury members made no recommendation, four recommended the minimum 10 years and one recommended 20 years - The trial judge stated "having regard to all of the factors ... including the aggravating factors surrounding the offence, the record and character of the accused, the cases referred to me by counsel, the recommendations of the jury, the nature and circumstances of the offence and all of the other factors, I have determined that 16 years is the appropriate period of parole ineligibility" - The Saskatchewan Court of Appeal dismissed the accused's sentence appeal - Absent an error in principle, failure to consider a relevant factor, or overemphasis of an appropriate factor, an appellate could should not interfere with an ordering extending the period of parole ineligibility unless the order was demonstrably unfit - There was no such error and 16 years of parole ineligibility, on the facts of this case, was not demonstrably unfit - See paragraphs 124 to 131.

Criminal Law - Topic 5846.1

Sentencing - Considerations on imposing sentence - Aboriginal offenders - An aboriginal accused appealed his 16 year sentence for manslaughter on the ground that the trial judge failed to properly consider his Aboriginal status (Gladue (SCC)) - The Saskatchewan Court of Appeal rejected this ground of appeal - The court stated that "While a short reference to R. v. Gladue and lack of written reference to rehabilitation might prima facie call for an appellate review, they do not call for appellate intervention in the sentence imposed in this case. This is because, other than to advise he is of Aboriginal heritage, [the accused] did not offer the trial judge or this Court any explanation as to how his Aboriginal status and his personal circumstances might be relevant to his commission of the offence with which he has been convicted. ... [the accused] has not indicated how his Aboriginal status has affected the gravity of his offence or his moral culpability in committing it. ... In circumstances where an offender fails to offer any assistance to the sentencing judge to demonstrate how the potentially mitigating circumstance of his Aboriginal status has affected the gravity of the offence or his culpability for its commission or how a sentencing objective like rehabilitation can and should be actualised in his circumstances, a sentencing judge does not err by giving little weight to Gladue considerations." - See paragraphs 139 to 142.

Criminal Law - Topic 5846.9

Sentencing - Considerations on imposing sentence - Group activity - [See Criminal Law - Topic 5670 and Criminal Law - Topic 5882 ].

Criminal Law - Topic 5849.23

Sentencing - Considerations on imposing sentence - Home invasion - [See Criminal Law - Topic 5670 and Criminal Law - Topic 5882 ].

Criminal Law - Topic 5882

Sentence - Manslaughter - A group of persons, including the 18 year old aboriginal accused, decided to rob what they mistakenly believed to be a drug house - One person, to the knowledge of the accused, had a gun and shot and killed one of the occupants - The accused was convicted by a jury of manslaughter as a party - The Crown sought 15 years' imprisonment - The trial judge stated that the sentence range for manslaughter was 4-12 years' imprisonment - The accused was a substance abuser who often drank alcohol to the point of blacking out - Aggravating factors included that this was a home invasion by a group or gang, other occupants were assaulted, a handgun was used and the victim was shot in the presence of his 14 year old granddaughter and daughter-in-law - Mitigating factors included the accused's young age, minimal prior record, his acceptance of responsibility and his potential for a productive life - The judge sentenced the accused to 12 years' imprisonment, less 46 months' credit for 23 months' pre-trial custody spent in 23.5 hours/day lock-down - The net sentence remaining to be served was 8.5 years - The Saskatchewan Court of Appeal dismissed the accused's sentence appeal - The trial judge committed no errors in treating the aggravating factors - The court stated that "A homicide committed in the context of a home invasion, where the group of invaders have uttered gang epithets and assaulted a number of residents, and have beaten their primary victim before shooting him in front of children and other family members, necessarily elevates the gravity of the offence such that a fit sentence must fall near the upper end of the range." - See paragraphs 132 to 135.

Cases Noticed:

R. v. Vetrovec; R. v. Gaja, [1982] 1 S.C.R. 811; 41 N.R. 606, refd to. [para. 2].

R. v. Shropshire (M.T.), [1995] 4 S.C.R. 227; 188 N.R. 284; 65 B.C.A.C. 37; 106 W.A.C. 37, refd to. [para. 5].

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. 5].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 7].

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. 14].

R. v. Brooks (F.A.), [2000] 1 S.C.R. 237; 250 N.R. 103; 129 O.A.C. 205; 2000 SCC 11, refd to. [para. 15].

R. v. Brass (D.A.R.) (2007), 304 Sask.R. 20; 413 W.A.C. 20; 226 C.C.C.(3d) 216; 2007 SKCA 94, refd to. [para. 16].

R. v. Bevan and Griffith, [1993] 2 S.C.R. 599; 154 N.R. 245; 64 O.A.C. 165, refd to. [para. 17].

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. 19].

R. v. Kehler (R.A.), [2004] 1 S.C.R. 328; 317 N.R. 30; 346 A.R. 19; 320 W.A.C. 19; 2004 SCC 11, refd to. [para. 39].

R. v. Roks (A.) (2011), 281 O.A.C. 235; 274 C.C.C.(3d) 1; 2011 ONCA 526, refd to. [para. 39].

R. v. Sauvé (J.) et al. (2004), 182 O.A.C. 58; 182 C.C.C.(3d) 321 (C.A.), leave to appeal denied [2004] 1 S.C.R. xv; 336 N.R. 195, refd to. [para. 39].

United States of America v. Sheppard, [1977] 2 S.C.R. 1067; 9 N.R. 215; 30 C.C.C.(2d) 424, refd to. [para. 39].

R. v. Sanderson (R.K.) (2003), 177 Man.R.(2d) 260; 304 W.A.C. 260; 180 C.C.C.(3d) 53; 2003 MBCA 109, refd to. [para. 39].

R. v. Illes (M.) (2013), 336 B.C.A.C. 306; 574 W.A.C. 306; 269 C.C.C.(3d) 437; 2013 BCCA 169, refd to. [para. 41].

R. v. Drabinsky (G.) (2011), 284 O.A.C. 222; 274 C.C.C.(3d) 289; 2011 ONCA 582, refd to. [para. 42].

R. v. T.S. (1995), 131 Sask.R. 1; 95 W.A.C. 1; 98 C.C.C.(3d) 529 (C.A.), dist. [para. 48].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352; 63 C.C.C.(3d) 397, refd to. [para. 49].

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. 69].

R. v. Hibbert (K.R.), [2002] 2 S.C.R. 445; 287 N.R. 111; 165 B.C.A.C. 161; 270 W.A.C. 161; 2002 SCC 39, refd to. [para. 69].

R. v. Bigsky (J.S.), [2007] 4 W.W.R. 99; 289 Sask.R. 179; 382 W.A.C. 179; 2006 SKCA 145, refd to. [para. 69].

R. v. James (W.A.) et al., [2009] 1 S.C.R. 146; 383 N.R. 329; 273 N.S.R.(2d) 388; 872 A.P.R. 388; 2009 SCC 5, refd to. [para. 80].

R. v. Turkiewicz, Barrow and MacNamara (1979), 103 D.L.R.(3d) 332 (Ont. C.A.), refd to. [para. 97].

R. v. Valley (1986), 13 O.A.C. 89; 26 C.C.C.(3d) 207 (C.A.), leave to appeal refused [1986] 1 S.C.R. xiii; 67 N.R. 159; 15 O.A.C. 240, refd to. [para. 97].

Pepe v. State Farm Mutual Automobile Insurance Co. (2011), 282 O.A.C. 157; 2011 ONCA 341, refd to. [para. 98].

R. v. G.B. et al. (1988), 65 Sask.R. 134 (C.A.), refd to. [para. 103].

R. v. G.D.B., [2000] 1 S.C.R. 520; 253 N.R. 201; 261 A.R. 1; 225 W.A.C. 1; 2000 SCC 22, refd to. [para. 109].

R. v. R.W.A. (2005), 203 O.A.C. 56; 202 C.C.C.(3d) 60 (C.A.), refd to. [para. 109].

R. v. Archer - see R. v. R.W.A.

R. v. Joanisse (R.) (1995), 85 O.A.C. 186; 102 C.C.C.(3d) 35 (C.A.), refd to. [para. 109].

R. v. Kim (D.) (2011), 375 Sask.R. 68; 525 W.A.C. 68; 272 C.C.C.(3d) 15; 2011 SKCA 74, refd to. [para. 109].

R. v. S.G.T., [2011] 5 W.W.R. 10; 366 Sask.R. 90; 506 W.A.C. 90; 265 C.C.C.(3d) 550; 2011 SKCA 4, refd to. [para. 110].

R. v. E.R.M. (2002), 217 Sask.R. 259; 265 W.A.C. 259; 163 C.C.C.(3d) 343; 2002 SKCA 30, refd to. [para. 110].

R. v. Moore - see R. v. E.R.M.

R. v. Smith (S.A.) (2007), 299 Sask.R. 312; 408 W.A.C. 312; 223 C.C.C.(3d) 114; 2007 SKCA 71, refd to. [para. 110].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 111].

R. v. Wenarchuk (1982), 15 Sask.R. 240; 67 C.C.C.(2d) 169 (C.A.), refd to. [para. 125].

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. 127].

R. v. Ipeelee (M.), [2012] 1 S.C.R. 433; 428 N.R. 1; 288 O.A.C. 224; 318 B.C.A.C. 1; 541 W.A.C. 1; 2012 SCC 13, refd to. [para. 127].

R. v. Paskimin (D.T.G.) et al. (2012), 393 Sask.R. 30; 546 W.A.C. 30; 2012 SKCA 35, refd to. [para. 130].

R. v. Hein (J.) et al. (2004), 254 Sask.R. 298; 336 W.A.C. 298; 2004 SKCA 120, refd to. [para. 130].

R. v. Danvers (Q.) (2005), 201 O.A.C. 138; 199 C.C.C.(3d) 490 (C.A.), refd to. [para. 130].

R. v. Q.D. - see R. v. Danvers (Q.).

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50; 2002 SCC 26, refd to. [para. 132].

R. v. Keepness (D.L.) et al. (2010), 359 Sask.R. 34; 494 W.A.C. 34; 2010 SKCA 69, refd to. [para. 135].

R. v. R.R.F. (2008), 310 Sask.R. 124; 423 W.A.C. 124; 2008 SKCA 52, refd to. [para. 135].

R. v. Littlewolfe (C.B.) et al. (2002), 227 Sask.R. 245; 287 W.A.C. 245; 2002 SKCA 143, refd to. [para. 135].

R. v. Key (C.G.) (2000), 199 Sask.R. 239; 232 W.A.C. 239; 2000 SKCA 127, refd to. [para. 135].

R. v. Baptiste (C.) (1998), 168 Sask.R. 189; 173 W.A.C. 189 (C.A.), refd to. [para. 135].

R. v. Lafontaine, 1997 SKCA (Sent.Dig.) 22, refd to. [para. 135].

R. v. MacIntyre and Liron (1992), 135 A.R. 166; 33 W.A.C. 166 (C.A.), refd to. [para. 137].

R. v. McArthur (E.) (2013), 427 Sask.R. 180; 591 W.A.C. 180; 2013 SKCA 139, refd to. [para. 141].

R. v. Popowich (M.J.) (2013), 544 A.R. 312; 567 W.A.C. 312; 2013 ABCA 149, refd to. [para. 141].

Authors and Works Noticed:

Watt, David, Watt's Manual of Criminal Jury Instructions (2005), pp. 218, 219 [para. 22].

Counsel:

Morris P. Bodnar, Q.C., and Michael D. Nolin, for Jacob Worm;

Bobby P. Hrycan, for Tyrone Worm;

Michael T. Megaw, Q.C., (June 11 and September 30, 2013); E. Scott Hopley (all appearances); and David Zeggelaar (June 20, 2014), for Denny Troy Jimmy;

Anthony B. Gerein, for the respondent;

Timothy Brown, for Saskatchewan Lawyers Insurance Association.

These appeals were heard on June 11 and September 30, 2013, and June 20, 2014, before Ottenbreit, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal.

On September 15, 2014, Caldwell, J.A., delivered the following judgment for the Court of Appeal.