SUPREME COURT OF NOVA SCOTIA Citation: R. v. Johnson, 2015 NSSC 382. v. Nathan Tremain Johnson. Temporary Deferred Publication Ban:

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1 SUPREME COURT OF NOVA SCOTIA Citation: R. v. Johnson, 2015 NSSC 382 Date: Docket: CRH No Registry: Halifax Between: Her Majesty the Queen v. Nathan Tremain Johnson Temporary Deferred Publication Ban: It is ordered that no person shall publish or broadcast any information in relation to all evidence tendered during this trial, all submissions of counsel, evidence tendered at the preliminary inquiry, verdict in this trial, sentence imposed if a guilty plea is rendered, the reasons for sentence, as well as all evidence, submissions and ruling on this application for a temporary deferred publication ban order. This order is in effect until the conclusion of Randy Riley s trial currently scheduled to be heard in March 2016 and relates to Nathan Tremain Johnson s two matters currently before the Court, C.R. No and C.R. No INCLUDED OFFENCES DECISION Judge: Heard: The Honourable Justice Joshua Arnold December 1, 2015, in Halifax, Nova Scotia Oral Decision December 1, 2015 Final Written February 29, 2016 Counsel: Michelle James and Melanie Perry, for the Crown Patrick MacEwen, for the Defence

2 Page 2 By the Court: [1] This decision concerns which offences should be left to the jury in Nathan Johnson s murder trial. During the trial I gave short oral reasons and reserved the right to supplement those reasons in writing. These are my written reasons. [2] Nathan Johnson is charged with the first degree murder of Chad Smith. As the trial unfolded it became clear that the Crown s theory was that Randy Riley was the principle perpetrator in the shooting death of Chad Smith and that Nathan Johnson aided Randy Riley in such a way as to make him a party to the murder. [3] The Crown argues that only first degree murder should be left to the jury. The defence argues that first degree murder and manslaughter should be left to the jury, but not second degree murder. Respectfully, I disagree with both parties on this issue. [4] In R. v. MacLeod, 2014 NSCA 63, Beveridge J.A. reviewed the law regarding included offences in a murder trial. The accused in MacLeod did not testify. Counsel in that case could not agree whether manslaughter should also be left to the jury as an included offence. Justice Beveridge noted: [65] In the case at bar, there were no defences advanced by the appellant. Manslaughter is not a defence to the charge of murder; it is a building block upon which the Crown can then ask the jury to convict of second degree murder. This was not one of those relatively rare cases where, if the accused is found to have been a party to a homicide, there is no question that the homicide was not just culpable, but that injuries were such that the person responsible obviously meant to cause death. [5] In Mr. Johnson s case, the Crown argues that Mr. Riley s use of a shotgun to kill Chad Smith makes this one of the rare cases where there is no question that Chad Smith s homicide was not just culpable, but that the person responsible obviously meant to cause death. However, Beveridge J.A. recognized the complexity of this issue when he noted in MacLeod: [66] Charging a jury from the bottom up (starting with the requirement of proof of an unlawful act causing death, i.e. manslaughter) is either recommended by, or is implicit in, the standard resources that are relied on by trial judges to properly charge juries (See: David Watt, Watt s Manual of Criminal Jury Instructions (Toronto: Carswell, 2005), at pp ; Canadian

3 Page 3 Judicial Council Model Jury Instructions Homicide, last revised July 2012, p. 10; CRIMJI: Canadian Criminal Jury Instructions, 4 th ed., Gerry A. Ferguson, Michael R. Dambrot & Elizabeth A. Bennett, para. 6.45). As observed by Watt J.A. in R. v. Luciano, 2011 ONCA 89 (CanLII), a charge with such a structure is the prevailing practice (para. 91). [67] In my opinion, this approach, absent special circumstances, is mandated by the provisions of the Criminal Code. The structure and content of the relevant sections are logical, and are, as legal constructs go, easily understood. [68] Homicide is committed whenever a person causes the death of another human being. But homicide can be culpable or not culpable. If it is not culpable, there is no offence. [69] If it is culpable homicide, it is murder, manslaughter or infanticide. This logical structure is found in s. 222 of the Code. The relevant parts of this section are: 222. (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being. (2) Homicide is culpable or not culpable. (3) Homicide that is not culpable is not an offence. (4) Culpable homicide is murder or manslaughter or infanticide. (5) A person commits culpable homicide when he causes the death of a human being, (a) by means of an unlawful act; (b) by criminal negligence; (c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or (d) by wilfully frightening that human being, in the case of a child or sick person. [70] Culpable homicide is murder where the person who causes the death of the victim did so with one of two states of mind: either an intent to cause death, or to cause bodily harm that he knows is likely to cause death, and is reckless whether death follows. Section 229 provides: 229. Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

4 Page 4 [71] Furthermore, s. 234 of the Code specifically directs that: 234. Culpable homicide that is not murder or infanticide is manslaughter. [72] Finally, s. 662(3) provides that manslaughter is an included offence in an indictment that charges murder. (emphasis added) [6] It seems obvious that the shotgun blast that killed Chad Smith was intended to cause death. However, in this case Mr. Johnson is not alleged to have done the shooting. If the Crown evidence is believed, Mr. Johnson was at a distance when the shooting occurred. The evidence regarding the events leading to the shooting and the shooting itself mainly consists of statements attributed to Mr. Riley (when he was with Mr. Johnson) and a confession by Mr. Johnson to his girlfriend. [7] Justice Beveridge went on to state in MacLeod: [87] It was open to the jury to infer that the appellant strangled the deceased with the requisite intent for murder. It was also open to the jury to infer that the appellant strangled (compressed the neck of) the deceased without significant force, but it triggered a fatal heart arrhythmia. That inference would explain the absence of fractures to the hyoid bone and even microscopically to the larynx. It would also explain the complete absence of defensive wounds to the body and hands of the deceased normally found in cases of strangulation. The evidence of both pathologists was that the presence of extensive petechial haemorrhages would also be consistent with death by heart failure. [88] There was considerable evidence of after the fact conduct by the appellant. This included evidence he: cleaned up the apartment; tried to kill himself by ingesting drugs and stabbing himself; told a deliberate lie to put himself out of the apartment during the timeframe of Ms. Page s death. All of this the judge told the jury they could use to infer the appellant s awareness of having committed a blameworthy act. But the only blameworthy act they could convict him of was murder. [89] Secondly, if the jury had a reasonable doubt about the presence of a murderous intent, whether the appellant engaged in an act of strangulation, or otherwise assaulted the deceased, they were faced with only one option: an outright acquittal. They were therefore denied a true picture of the available options open to them. Indeed, they may have considered an outright acquittal not only quite unpalatable in the circumstances, but contrary to a considerable body of evidence suggesting that the appellant knew he had engaged in a blameworthy act inferentially defined by the judge in this case to be murder. [90] There is considerable authority for the proposition that ordinarily a jury must be instructed that if they have a reasonable doubt on the issue of intent to commit murder, they should return a verdict of manslaughter (see: R.

5 v. Wright, 1979 ALTASCAD 187 (CanLII), [1979] 5 W.W.R. 481 (Alta. S.C.A.D.); The Queen. v. Kuzmack, 1955 CanLII 81 (SCC), [1955] S.C.R. 292; R. v. Stowe,1978 CanLII 1800 (SK CA), [1979] 2 W.W.R. 90 (Sask. C.A.); [1978] S.J. No. 487). [91] In Stowe, Culliton C.J.S., writing for the Court, described the settled nature of this proposition: 17 I think the law is well settled that a person on trial for murder has the right to have the issue of manslaughter left to the jury if the evidence is such that a verdict of manslaughter is open to the jury. 18 In Bullard v. R., [1957] A.C. 635, 42 Cr. App. R. 1, Lord Tucker, speaking for the Judicial Committee, said at p. 7: "Every man on trial for murder has the right to have the issue of manslaughter left to the jury if there is any evidence upon which such a verdict can be given. To deprive him of this right must of necessity constitute a grave miscarriage of justice and it is idle to speculate what verdict the jury would have reached. "Their Lordships are accordingly of opinion that the verdict of guilty of murder cannot stand in this case." 19 Too, the issue of manslaughter must be left to the jury even if such a verdict appears to be improbable. This was made clear by Lord Tucker in Bullard v. R., supra, when at p. 7 he said: "Their Lordships do not shrink from saying that such a result would have been improbable, but they cannot say it would have been impossible. As was said by Humphreys J. in R. v. Roberts (1942), 28 Cr. App. R. 102 at 110, [1942] 1 All E.R. 187: 'As for the question whether it was open to them on the facts, counsel for the prosecution has argued with good reason that no reasonable jury could come to such a conclusion. The court may be disposed to take much the same view, but it cannot delve into the minds of the jury and say what they would have done if the issue had been left open to them.'" 20 See also R. v. Golder; R. v. Jones; R. v. Porritt, [1960] 1 W.L.R. 1372, 45 Cr. App. R. 5, [1960] 3 All E.R. 457 (C.C.A.), and R. v. Kwaku Mensah, [1946] A.C. 83, [1946] 2 W.W.R. 455, 2 C.R. 113 (P.C.). 21 In my respectful view, the instructions to the jury that only one of two verdicts was open to them, either "guilty as charged" or "not guilty", were wrong. It was for the jury, giving due weight to the inferences which might properly be drawn, to decide whether the appellant had the necessary intent to make her guilty of murder. [emphasis added] Page 5

6 Page 6 [8] As Beveridge J.A. noted, the law is well settled that a person on trial for murder has the right to have manslaughter left to the jury if there is any evidence that would allow a verdict of manslaughter. Similarly, a person charged with first degree murder, as is the case with Mr. Johnson, has the right to have second degree murder and manslaughter left to the jury, if the evidence is such that these verdicts are available to the jury. [9] Justice Beveridge also noted: [96] The Crown cites a number of cases from Ontario that discuss the requirement to put manslaughter as an available verdict, but only if there is an air of reality for it, and the tension created when the positions taken by counsel at trial, are eschewed on appeal. Most are referred to in R. v. Chalmers, supra. I will discuss that case, and refer to the authorities cited therein. [10] In MacLeod, Beveridge J.A. analysed the Ontario line of authorities that discuss when to leave manslaughter as an included offence and stated: [108] Returning to Chalmers, Blair J.A. found that the issue of manslaughter, if it had an air of reality, in the context of the evidence as a whole, was marginal at best (para ). The defence conceded the issue of intent before the jury in light of the five skull fractures from blows administered by a long pipe-like instrument. The police found such an object close to where the appellant showed them he had thrown it. Even if there was a sufficient air of reality to require manslaughter to be put to the jury, there was no substantial wrong or miscarriage of justice in the circumstances. Hence, the proviso applied (para. 64). [109] The case at bar is markedly different. Here, the availability of a manslaughter verdict was not marginal at all. It was the opinion of Dr. Bowes that an act of strangulation, in these circumstances, plainly an unlawful act, caused the death of the victim. There was also evidence from which the jury could infer a physical struggle, amounting to an unlawful act, quite apart from an act of strangulation. [110] Both pathologists agreed that the stress of either of these scenarios could trigger a fatal heart arrhythmia. Whatever the limits may be of an accused s claim to a constitutional right to make tactical decisions or otherwise control his own defence, it does not extend to changing the law set out in the Criminal Code. Culpable homicide that is not murder is either manslaughter or infanticide. In these circumstances, the jury should have been instructed accordingly. [111] Nonetheless, the Crown argues that even if the failure to leave manslaughter was an error of law, the proviso should be applied. As I understand it, there are three bases for its position. The first is that the tactical decision at trial was a

7 reasonable one, made by experienced counsel, and should not be reversed on appeal. The Crown urges that in these circumstances an appellate court should, in effect, erect a higher threshold than merely requiring a verdict of manslaughter to have an air of reality. If the evidence does not pass over the higher bar, the proviso should be applied. [112] Second, the trial judge erred in law in his instructions to the benefit of the appellant, and this can be taken into account as to the appropriate remedy (see R. v. Finck, 2008 NSCA 42 (CanLII) at para. 25). [113] Third, it is open to this Court to reason back from the jury s verdict of guilty of murder to conclude that the failure to leave manslaughter could not have affected the outcome, hence the error was harmless. [114] I will deal with each of these in turn. [115] On the first basis, that of the tactics at trial, essentially, the Crown suggests two things: even if there was an air of reality to a verdict of manslaughter, thus requiring it to be left with the jury, the tactical decision by the defence at trial was sound and the verdict should, as a consequence, be upheld via the proviso; second, and it is related to the first, the defence of manslaughter was in conflict with his main defence and hence no reversible error occurred by failing to charge the jury on it. [116] With respect, I am unable to agree. There is no jurisprudential foundation to erect a higher threshold dependant on an appellate court s view of the soundness of a tactical trial decision. Even if there was, manslaughter was plainly a viable option. I have already dealt with the contention that there was no "air of reality" to a verdict of manslaughter. To recap assuming for the sake of argument that there needs to be an "air of reality" with respect to the existence of an essential element of an offence (here an unlawful act causing death), in my opinion there was both on the basis of an unlawful act apart from an act of strangulation, and from that act. [117] I do not find the authorities cited by the Crown persuasive on the claimed discretion of a trial judge to not charge on defences or other issues thought to be in conflict with the main defence. (emphasis added) Page 7 [11] Justice Beveridge did not expressly endorse the Ontario authorities requiring an air of reality before leaving manslaughter as an included offence. He merely noted that in MacLeod, there was an air of reality to support that verdict. [12] In R. v. Jackson, [1993], 4 S.C.R. 573, [1993] S.C.J. No. 134, McLachlin J. (as she was then), speaking for the majority, confirmed that an aider can be convicted of manslaughter while the principal offender is convicted of murder. McLaughlin J. stated:

8 Discussion (1) Manslaughter and its Application in this Case 16 The main objection to the charge is that the trial judge failed to properly instruct the jury with respect to Davy's potential liability for manslaughter through the application of ss. 21(1)(b), 21(1)(c) and 21(2) of the Criminal Code. (i) Aiding and Abetting: Section 21(1)(b) and (c) 17 I turn first to Davy's potential liability for manslaughter as an aider and abettor under s. 21(1)(b) and (c). A person is a party to an offence if he or she aids or abets the commission of it. In this case, Jackson committed the offence of murder. It was open on the evidence for the jury to find that Davy aided and abetted him in that offence, and is guilty under s. 21(1)(b) and (c) of the Criminal Code. If he possessed the necessary mens rea for murder he could be guilty of murder. In the event that the jury did not find the intent required for murder, the question arises whether and in what circumstances Davy could be convicted under s. 21(1) for the lesser offence of manslaughter. 18 The trial judge did not give the jury a specific direction that it could find Davy guilty of manslaughter as an aider and abettor under s. 21(1) of the Criminal Code. The Court of Appeal held that this was an error. It held that the trial judge should have told the jury that s. 21(1)(b) and (c) of the Code would lead to a verdict of manslaughter if Davy did not have the mental state required for murder but the unlawful act which was aided or abetted was one he knew was likely to cause some harm short of death. This follows from the decision of this Court in R. v. Kirkness, [1990] 3 S.C.R. 74, at p. 88, per Cory J., where it was held that a person who aids and abets in an attack which results in a death may be guilty of manslaughter where that person does not have the requisite mens rea for murder but possesses the requisite intention for manslaughter, and where his co-accused is guilty of murder. (See also Wilson J., at pp ) 19 I agree with the Court of Appeal that the jury could have convicted Davy of manslaughter under these sections while convicting Jackson of murder. 20 I differ from the Court of Appeal, however, in the state of mind required to be guilty of manslaughter under s. 21(1)(b) and (c). The Court of Appeal held that the test was a subjective appreciation that the act was likely to cause some harm short of death. Since the date of the Court of Appeal's decision, this Court has held that unlawful act manslaughter -- that is, the killing of a person while engaged in an unlawful act -- does not require a subjective appreciation of the consequences of the act. The test is objective -- what a reasonable person would have appreciated in all the circumstances. Nor is it necessary that the risk of death be foreseeable. As long as the unlawful act is inherently dangerous and harm to another which is neither trivial nor transitory is its foreseeable consequence, the resultant death amounts to manslaughter: R. v. Creighton, [1993] 3 S.C.R. 3; see also R. v. DeSousa, [1992] 2 S.C.R Page 8

9 21 I conclude that a person may be convicted of manslaughter who aids and abets another person in the offence of murder, where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken. I further conclude that Davy might fall within this rule on the evidence presented at trial. (emphasis added) Page 9 [13] In the instant case Mr. Johnson did not testify. No defences have been raised. The facts here are very different from MacLeod since we are dealing with one blast of a shotgun to Chad Smith s chest, not strangulation. However, Nathan Johnson is not alleged to have been the trigger man or even to have been within sight of the shooting. The main witnesses for the Crown are Kaitlin Fuller and Paul Smith. The jury will receive a strong Vetrovec caution about their evidence. The jury will also be told, as in every case, that they can accept all, some or none of each witness evidence or any of the evidence. [14] Mr. Johnson points out that if the jury rejects some of Kaitlin Fuller s evidence they may be left convinced beyond a reasonable doubt that he was aiding Mr. Riley in committing an unlawful act, but might not be convinced beyond a reasonable doubt that he had the necessary intention for murder. If so, it would be open to the jury to convict Mr. Johnson of manslaughter. The jury may be convinced beyond a reasonable doubt that he had the necessary intention to commit murder, but not be convinced beyond a reasonable doubt that the murder was both planned and deliberate in relation to Mr. Johnson s participation. If so, it would be open to the jury to convict Mr. Johnson of second degree murder. [15] The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove beyond a reasonable doubt that Nathan Johnson meant to kill Chad Smith, that he aided someone who meant to kill Chad Smith, that he meant to cause Chad Smith bodily harm that he knew was likely to kill Chad Smith, or that he aided in the same circumstances and was reckless whether Chad Smith died or not. In other words, to prove that Nathan Johnson aided in committing murder, Crown counsel must satisfy the jury beyond a reasonable doubt either that Nathan Johnson meant to kill Chad Smith or that Nathan Johnson meant for bodily harm to be caused to Chad Smith that Nathan Johnson knew was so serious and dangerous it would likely kill Chad Smith and that he proceeded despite his knowledge that Chad Smith would likely die as a result. [16] Only one of these required states of mind has to be proved by the Crown beyond a reasonable doubt. If the jury is left with a reasonable doubt on either of

10 Page 10 those states of mind, but find that Mr. Johnson aided in the unlawful death of Chad Smith, then Nathan Johnson committed manslaughter. The jury may believe all, some or none of the Crown s evidence. It is not fanciful that the jury might conclude that Mr. Johnson aided in the unlawful death of Chad Smith without the intention to murder him if some of Kaitlin Fuller s testimony is accepted and some is rejected. This supports leaving a verdict of manslaughter to the jury. [17] Considering the evidence elicited at trial, the jury may be convinced that Nathan Johnson aided in the murder of Chad Smith and that he had the requisite intention for Chad Smith to be killed, but the jury may not be convinced beyond a reasonable doubt of planning and deliberation on the part of Mr. Johnson. [18] Much was made on cross-examination of Ms. Fuller regarding the timing of her allegations that Mr. Johnson made the telephone call to the pizza shop to lure Chad Smith to the scene as well as her testimony regarding the discussions between Mr. Johnson and Mr. Riley about a choice location to commit the crime. Mr. Johnson pointed out that these two critical issues were not raised by Ms. Fuller until years after her initial statements to the police. How much or how little the jury may believe of this testimony is within the jury s sole purview. However, both of those issues could go to planning and deliberation on the part of Mr. Johnson. [19] If the jury has a reasonable doubt about Mr. Johnson s planning or deliberation, but they find Mr. Johnson did have the intention to kill Chad Smith or to aid in the killing of Chad Smith, then he would be guilty of second degree murder. [20] In R. v. Haughton, [1994] 3 S.C.R. 516, Sopinka J. highlighted the dangers of failing to leave the appropriate included offences to the jury and said for the unanimous court: in cases in which an included offence is not left with the jury, a conviction by the jury of the more serious offence cannot generally be relied on by reason of the fact it may very well be a reaction against a complete acquittal. There is an apprehension that the jury convicted because they had no other alternative than acquittal and acquittal was unpalatable. [21] Considering the evidence presented by the Crown in this case, the jury s possible application of the reasonable doubt standard to the various aspects of the evidence, considering Beveridge J.A. s direction in MacLeod and Sopinka J. s directions in Haughton, in addition to a possible verdict of first degree murder being

11 Page 11 left with the jury, both second degree murder and manslaughter should also be left with the jury as included offences and possible verdicts in this case. Arnold, J.