COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Jackman,

 

2013 BCCA 157

Date: 20130409

Dockets: CA039173; CA039485

Docket:  CA039173

Between:

Regina

Respondent

And

Albert Jackman

Appellant

- and -

Docket:  CA039485

Between:

Regina

Respondent

And:

Gregory Michael Barrett

Appellant

Before:

The Honourable Chief Justice Finch

The Honourable Madam Justice Ryan

The Honourable Madam Justice Neilson

On appeal from:  Supreme Court of British Columbia, June 10, 2011 (conviction)

(R. v. Jackman, New Westminster Docket X073851);

June 10, 2011 (conviction) and November 4, 2011 (sentence)

(R. v. Barrett, New Westminster Docket X073851-3)


 

Counsel for Albert Jackman, the Appellant:

J.R. Ray

Counsel for Gregory Michael Barrett, the Appellant:

N.L. Cobb

Counsel for the Respondent:

G. McKinnon, Q.C.

Place and Date of Hearing:

Vancouver, British Columbia

February 25, 2013

Place and Date of Judgment:

Vancouver, British Columbia

April 9, 2013

Written Reasons by:

The Honourable Chief Justice Finch

Concurred in by:

The Honourable Madam Justice Ryan
The Honourable Madam Justice Neilson

Reasons for Judgment of the Honourable Chief Justice Finch:

I.

[1]             On 28 March 2009, in the late evening hours, Kyle Barber was stabbed to death in the home he shared with his girlfriend, Hayley Lloyd.  The two appellants were charged with Mr. Barber’s death.  The appellant Mr. Jackman was charged with, and convicted of, first degree murder for having killed Mr. Barber with the requisite intent, while Mr. Barber was unlawfully confined in his home.

[2]             The appellant Barrett was charged with, and convicted of, manslaughter for having been a party to Mr. Jackman’s unlawful assault on Mr. Barber.

[3]             The appellants were tried together by Madam Justice Stromberg-Stein, sitting without a jury at New Westminster, and on 10 June 2011, she found both appellants guilty as charged.

[4]             In appeal No. CA039173, Mr. Jackman seeks a new trial, or alternatively that a verdict of manslaughter be substituted.  In appeal No. CA039485, Mr. Barrett seeks an order that his conviction be set aside and an acquittal entered, or alternatively that a new trial be ordered.

[5]             Both convictions arise from the same circumstances, both appellants were tried together on the same indictment, and the trial judge delivered one set of reasons in respect of both.  These reasons, therefore, address both appeals.  For the reasons that follow I would dismiss both appeals and affirm both convictions.

II.

[6]             The Crown’s principal witness was Mr. Barber’s girlfriend, Hayley Lloyd.  Both appellants testified.  Much evidence was contradictory, and the credibility and reliability of all three principal witnesses was much in issue.  What follows is a general overview of the case.

[7]             The appellant Barrett lived in a house he rented on 244th Street in Langley, BC.  There was a barn behind the house which was also said to be rented to a Mr. Forber.

[8]             Ms. Lloyd and Mr. Barber lived in an adjacent property on the corner of 244th Street and the Fraser Highway.  The neighbours did not know one another.  The barn on Mr. Barrett’s property was visible from the Lloyd/Barber property.

[9]             According to Mr. Barrett, on 26 March 2009, he saw a ladder leaning up against the window of the barn, adjacent to the Lloyd/Barber property.  Mr. Barrett was apparently concerned that something may have been taken from the barn, although at trial he professed to not knowing what the barn contained.

[10]         On the evening of 28 March, Mr. Barrett drove with his acquaintance, the appellant Jackman, to the home occupied by Ms. Lloyd and Mr. Barber.  The expressed intention of Mr. Jackman and Mr. Barrett was to see if the neighbours had any information about the barn and the ladder.

[11]         There was conflicting evidence about whether Mr. Jackman and Mr. Barrett were admitted voluntarily into the Lloyd/Barber home, or whether they pushed their way in.

[12]         After they were in the home, Mr. Jackman is said to have assumed a position of dominance and control.  Mr. Barber went to the bedroom to get a gun.  Mr. Jackman followed and engaged him physically.  He showed Mr. Barber a tattoo which he said was a “Red Scorpion”.  The gun was taken from Mr. Barber.  The two then went into the basement, followed by Ms. Lloyd and Mr. Barrett, where Mr. Jackman assaulted Mr. Barber with his fists and a pair of scissors.

[13]         Mr. Jackman and Mr. Barber then went back to the bedroom, again followed by Ms. Lloyd and Mr. Barrett. Mr. Jackman told Mr. Barber to lie down on the floor and threatened to break or to cut off his fingers.  Mr. Barber then threw an electric heater at Mr. Jackman, and Mr. Jackman then took a knife from the dresser top and stabbed Mr. Barber multiple times, inflicting many wounds, including the fatal wound to Mr. Barber’s neck.

[14]         It was not disputed that Mr. Jackman inflicted the fatal wound, or that the appellant Mr. Barrett was present throughout.

[15]         The gun from the Lloyd/Barber bedroom was subsequently found in a pond some eight kilometers from their residence.

[16]         After leaving the Lloyd/Barber home it appears that Mr. Jackman and Mr. Barrett went their separate ways.  Mr. Barrett went to see friends, Heather Reid and Bradley Mah, who testified that Mr. Barrett was distraught to the point of his vomiting, and also as to some statements Mr. Barrett made to them concerning the preceding events. 

[17]         At trial, Jackman’s defence was self-defence, and he asserted as well that the Crown had failed to prove the requisite intent for murder.

[18]         The appellant Mr. Barrett said that the Crown had not proven the intent necessary for him to be found guilty as a party.

[19]         Both appellants attacked the evidence of Hayley Lloyd as inconsistent, unreliable and not credible.

[20]         The trial judge found Hayley Lloyd to be a credible witness, and she rejected the evidence of both appellants as implausible, and bordering on the far-fetched and ridiculous.

[21]         Before addressing the issues raised by both appellants on appeal, I will refer to, and to some extent summarize, the trial judge’s critical findings of fact.

III.       Reasons for Judgment at Trial

[22]         The learned trial judge gave extensive reasons summarizing the evidence of the key witnesses, identifying the issues to be resolved, and setting out her findings of fact.

[23]         Mr. Jackman testified that when he arrived at Mr. Barrett’s house on the evening of 28 March, Mr. Barrett told him that a grow operation had been “ripped off” from the barn, and that he, Mr. Barrett, was going to be held responsible for it.

[24]         The trial judge said:

[209]    .... Mr. Jackman suggested they go and talk to the neighbour.  Mr. Jackman went to the neighbours’ house at night as a favour for his acquaintance, just to help Mr. Barrett out with the problem he had.  He had no stake in the grow operation.

[25]         In his evidence, Mr. Barrett denied any connection to, or knowledge of, a grow operation in the barn, or its value (para. 214).

[26]         The trial judge found:

[220]    A glaring inconsistency between the evidence of Mr. Barrett and Mr. Jackman is whether there was the grow-op or the grow operation or the grow-op rip-off in Mr. Barrett's barn, for which he believed he would be held responsible.  Mr. Jackman and Mr. Mah say that Mr. Barrett told them there was.  Mr. Barrett said there was not.  Mr. Barrett said Mr. Jackman was asking for $50,000.  Mr. Barrett said he did not know where that number came from, yet he told Mr. Mah the grow op was $50,000, and then he said that he was merely reporting what Mr. Jackman had said in the house.

[221]    Mr. Barrett's evidence makes no sense.  In my view, it is totally unbelievable.  He refused to admit there was a grow-op, yet that is what makes sense of all that occurred that night.  Why did he feel responsible and worried when he did not know what, if anything, was taken or the value, if any, and he had received no threats from and had no fear of the alleged owner, Mr. Forber? 

[222]    During the course of the events that unfolded in the residence, at first he claimed he was not paying attention as he was petting the dog.  Why would he show up at 10:00 p.m. to 11:00 p.m. to ask neighbours, who were strangers to him, questions and not pay attention?  For the first time in cross-examination he mentioned Mr. Jackman's conversation in the living room, referring to the $50,000.  This is consistent with Ms. Lloyd's evidence and with Mr. Mah's evidence, and this goes to explain why Mr. Barrett and Mr. Jackman did not leave. 

[223]    Mr. Barrett claimed to be frightened a good deal of the time, yet it never crossed his mind that he was an unwelcome guest, even after the gun was produced.  Why did he not leave?  Because he wanted to learn what they knew about the grow-op rip-off and Mr. Jackman was there to help him find out.  The inevitable conclusion is this was an extortion associated with a grow-op rip-off.

[27]         With respect to Ms. Lloyd’s credibility, the judge held:

[207]    Despite the concerns raised by the defence about the credibility and reliability of parts of Hayley Lloyd's evidence, I find her to be a credible and reliable witness.  Hayley Lloyd's evidence makes sense in the context of the undisputed facts and the admitted events that unfolded in her home.  Ms. Lloyd does not evidence bias.  Nothing flows from her comments to her mother.  Identification is not in issue and her mother is not a witness.  She never exaggerated Mr. Barrett's role, even describing him [as] “nice”, relative to Mr. Jackman's interaction with Mr. Barber.

[28]         With respect to Mr. Jackman’s and Mr. Barrett’s credibility she said:

[225]    There is unexplained evidence about the gun being found eight kilometres away.  Both accused say they did not put it there.  Clearly one of them did.  Neither was being honest.  Both were evasive.  Their evidence is internally and externally inconsistent.  Each contradicted statements that they made to police in material parts in their testimony.  They contradicted each other.  Their evidence does not make sense.  It lacks the ring of truth and it is simply not credible.

[29]         After considering the whole of the evidence, the judge made the following findings of fact:

[226]    As I indicated at the outset, many of the facts are not in dispute.  Most of those in dispute are easily resolved or are unnecessary to resolve.  I agree with the Crown that the court must consider the whole of the evidence and not parse the evidence, as suggested by defence counsel.  The assessment of the evidence requires consideration of the entire course of events and not just the final events during the second encounter in the bedroom.  The events were sequential acts and not individual, discrete acts. 

[227]    Mr. Jackman and Mr. Barrett went to the Barber-Lloyd home in the late hours of the night to get answers from them about what they knew about a grow operation rip-off at Mr. Barrett's barn.  Mr. Jackman pushed his way in, accusing and demanding answers about the break-in.  He demanded they give him $50,000 worth of stuff.  Mr. Barber did not run for the bedroom out of the blue.  The run for the gun in the bedroom was precipitated by Mr. Jackman ordering Mr. Barber to sit down and his beginning to question him about a missing $50,000.  In the bedroom, Mr. Jackman was pinning Mr. Barber to the bed.  Ms. Lloyd is clearly mistaken about the choking, but she had no reason to lie.  What she saw and everyone agreed was Mr. Barber being pinned to the bed.  Obviously her mistake is explained by the frightening scene that was unfolding in her home and in her bedroom.  She described the threatening and intimidating act where Mr. Jackman showed Mr. Barber his wrist tattoo and told him that, “That's a Red Scorpion.  You've messed with the wrong person.”  She did not know Mr. Jackman and otherwise could not have known that he had a tattoo he admitted represented Red Scorpion.  Her evidence of seeing Mr. Jackman punch Mr. Barber with scissors in the basement is consistent with the physical evidence, the location of the scissors relative to the blood, and the position of Mr. Barber, the amount of blood, the injuries to Mr. Barber's face, and the injuries to Mr. Jackman's hand.  The scissors were near where Mr. Barber was kneeling holding his bloody face, and where his blood was pooled on the basement floor.  Spots and smears of Mr. Barber's blood were on the scissors.  While the defence suggests the photographs and pathologist's evidence refute an assault with the scissors, in my view the evidence is entirely consistent with what Hayley Lloyd described.

[228]    In the final scene in the bedroom where Mr. Barber was ordered to sit down, lay down, have his fingers broken or cut off, he only threw the heater. Ms. Lloyd did not see a gun in Mr. Barber's hand, nor did Mr. Barrett, because it was not there to be seen.  What Ms. Lloyd and Mr. Barrett saw was a brutal attack on Mr. Barber. 

[229]    Clearly, as Ms. Lloyd described, the two accused held Ms. Lloyd and Mr. Barber under their control and domination while in their home.  It was a home invasion.  It was fraught with peril, as the homeowners tried to fight back by producing a shotgun, after being accused of a $50,000 grow-op rip‑off and receiving demands they pay back what was taken.  Their offer of money, drugs, and their own modest grow operation was met with a derisive response from Mr. Jackman that it was not good enough.

[30]         The judge rejected Mr. Jackman’s defence of self-defence (paras. 230 to 244), and Mr. Jackman does not appeal against that conclusion.

[31]         The judge found that Mr. Jackman had the requisite intent for murder:

[251]    He does not dispute that he cut Mr. Barber with the knife and Mr. Barber died as a result of the jaw wound inflicted during the course of a struggle.  I have rejected the defence of self-defence.  I have accepted Hayley Lloyd's evidence that Mr. Jackman chased Mr. Barber around and up and over the bed, stabbing him with a knife multiple times.  I am satisfied beyond a reasonable doubt that the Crown has proved Mr. Jackman committed an unlawful act of stabbing that caused Mr. Barber's death, and that he caused Mr. Barber's death with the required intent for murder.  That is, he meant to cause Mr. Barber's death or he meant to cause bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not.  [Emphasis added.]

[32]         She held that the killing occurred while Ms. Lloyd and Mr. Barber were unlawfully confined, and that Mr. Jackman was, therefore, guilty of first degree murder:

[256]    Mr. Jackman never abandoned the intention to remain and question Mr. Barber and Ms. Lloyd, even when it was clear that Mr. Barber and Ms. Lloyd wanted him and Mr. Barrett to leave.  These were not multiple, discrete incidents over the course of the evening.  On the whole of the evidence, it is clear that Mr. Barber and Ms. Lloyd were not able to move freely about their home.

[257]    Having regard to the totality of the evidence, I am satisfied the Crown has proved beyond a reasonable doubt that Mr. Jackman intentionally confined Mr. Barber, and that confinement was without lawful authority.

FIRST DEGREE MURDER

[258]    The Crown has proved beyond a reasonable doubt Mr. Jackman committed an unlawful act, a stabbing, that caused Mr. Barber's death, with the required intent for murder.  Further, the Crown has proved beyond a reasonable doubt that Mr. Jackman unlawfully confined Mr. Barber.  The unlawful confinement and the murder of Mr. Barber were part of the same series of events.  Mr. Jackman caused the death of Mr. Barber in the course of an unlawful confinement.  Therefore, Mr. Jackman is guilty of first degree murder.

[Emphasis added.]

[33]         As to Mr. Barrett’s guilt, the trial judge said:

[259]    With respect to Mr. Barrett, he is charged with manslaughter in the death of Kyle Barber.  The issue with respect to Mr. Barrett is whether the Crown has proved beyond a reasonable doubt that he is a party to the offence of murder committed by Mr. Jackman.  The Crown must prove beyond a reasonable doubt, in addition to identity, the date and the place described in the indictment, which are not in issue, that Mr. Barrett was party to an unlawful act that was committed by Mr. Jackman, which was dangerous and caused Mr. Barber's death. 

[260]    Mr. Barrett may be found guilty of the offence of manslaughter because he aided Mr. Jackman to commit the offence of murder.  The Crown must prove he intended that the offence be committed or knew that the other person intended to commit it and intended to help that person accomplish his goal.

[34]         She concluded:

[271]    Clearly Mr. Barber and Ms. Lloyd were terrified, intimidated, and dominated from the beginning to the end, as Mr. Jackman played the role of the heavy, supported by the lumbering presence of Mr. Barrett.  Mr. Jackman told Mr. Barrett to remove the gun from Ms. Lloyd.  He left Mr. Barrett in control when he went upstairs to wash the blood from his hands, and Mr. Barrett was left with Ms. Lloyd upstairs when he first went downstairs with Mr. Barber.

[272]    Having regard to the totality of the evidence, I am satisfied beyond a reasonable doubt Mr. Barrett is guilty of manslaughter, as he aided Mr. Jackman in the commission of the offence of first degree murder.  He need not and obviously did not desire that the offence be committed.  By his actions and presence he was a party, in that he intended that the offence be committed or he knew that Mr. Jackman intended to commit it and he intended to help Mr. Jackman accomplish his goal.

[35]         She, therefore, found each accused guilty as charged.

IV.      Grounds of Appeal

[36]         The appellant Jackman raises three grounds of appeal.  He asserts:

1)       the trial judge erred in failing to find which of the two intents for murder described in s. 229(a)(i) and (ii) was proven against him.  That is, the reasons for judgment (para. 251) do not specifically find that Mr. Jackman either:  (a) meant to cause Mr. Barber’s death; or (b) meant to cause Mr. Barber bodily harm that he knew was likely to cause his death, and was reckless whether death ensued or not;

2)       the trial judge erred in her finding Hayley Lloyd to be a credible and reliable witness, and in particular erred in the use of prior out of court statements made by Hayley Lloyd; and,

3)       erred in holding the evidence of the witnesses Reid and Mah was not admissible on the issue of the appellant Jackman’s intent.

[37]         The appellant Barrett also raises three grounds of appeal.  He asserts:

1)       the trial judge applied the wrong legal test on the issue of whether Mr. Barrett had the requisite intention to support his conviction as a party to the offence of manslaughter;

2)       the trial judge misapprehended the evidence on the issue of whether he had the requisite intent to be guilty as a party to the offence of manslaughter; and,

3)       the judge erred in applying a different standard to the assessment of  Mr. Barrett’s credibility as opposed to the assessment of Hayley Lloyd’s credibility.  Counsel for Mr. Barrett argues that the reasons for judgment do not disclose any meaningful analysis of Ms. Lloyd’s testimony, which he says was inherently contradictory and unreliable.

[38]         As both appellants attack the trial judge’s finding that Hayley Lloyd was a credible witness, and in doing so rely to a considerable extent on the same arguments, I will address that common issue first.  I will then turn to the separate issues relevant to each appellant’s appeal.

V.       The Credibility of Hayley Lloyd

[39]         At para. 205 of the reasons for judgment, the trial judge summarizes 16 points which defence counsel said showed that Ms. Lloyd’s evidence was either internally inconsistent, inconsistent with prior out of court statements she had made, or was contradicted by other reliable evidence.

[40]         An example of internal inconsistency was her testimony that she ran downstairs after Mr. Barber and Mr. Jackman, but that her slight body was restrained at the time in a bear hug by the 230 lb. Mr. Barrett, while she was holding her dog, and that she dragged him to the basement with her.

[41]         An example of inconsistency with a prior statement was her testimony that the two appellants forced their way into the house, but she had previously told the police that she opened the door and let them in.

[42]         An example of inconsistency with other reliable evidence in her testimony is that in the first bedroom incident she saw Mr. Jackman choking Mr. Barber until he was blue, whereas Dr. Charlesworth, who performed the autopsy on Mr. Barber, found “there was no evidence of choking.  If there was a choking episode, it would have been relatively minor compared to what went on.”

[43]         Counsel for the appellants say that despite the many inconsistencies and contradictions they identified, the trial judge made no analysis of this evidence, and for the most part, gave no reasons or explanations for discounting the inconsistencies and finding Ms. Lloyd to be a credible witness.

[44]         With respect to Ms. Lloyd’s evidence concerning the choking, the judge said simply:

[227]    .... Ms. Lloyd is clearly mistaken about the choking, but she had no reason to lie.  What she saw and everyone agreed was Mr. Barber being pinned to the bed.  Obviously her mistake is explained by the frightening scene that was unfolding in her home and in her bedroom.  She described the threatening and intimidating act where Mr. Jackman showed Mr. Barber his wrist tattoo and told him that, “That's a Red Scorpion.  You've messed with the wrong person.”  She did not know Mr. Jackman and otherwise could not have known that he had a tattoo he admitted represented Red Scorpion.

[45]         As to her evidence concerning the events in the basement the trial judge said:

[227]    .... Her evidence of seeing Mr. Jackman punch Mr. Barber with scissors in the basement is consistent with the physical evidence, the location of the scissors relative to the blood, and the position of Mr. Barber, the amount of blood, the injuries to Mr. Barber's face, and the injuries to Mr. Jackman's hand.  The scissors were near where Mr. Barber was kneeling holding his bloody face, and where his blood was pooled on the basement floor.  Spots and smears of Mr. Barber's blood were on the scissors.  While the defence suggests the photographs and pathologist's evidence refute an assault with the scissors, in my view the evidence is entirely consistent with what Hayley Lloyd described.

[46]         As to the events which immediately preceded the fatal stabbing in the second bedroom incident, the trial judge said:

[228]    In the final scene in the bedroom where Mr. Barber was ordered to sit down, lay down, have his fingers broken or cut off, he only threw the heater. Ms. Lloyd did not see a gun in Mr. Barber's hand, nor did Mr. Barrett, because it was not there to be seen.  What Ms. Lloyd and Mr. Barrett saw was a brutal attack on Mr. Barber. 

[47]         In addition, counsel for the appellants point to the fact that there was a marihuana grow operation in the basement of the Lloyd/Barber house, the value of which she minimized in her evidence; the fact that she was a regular “chronic” user of marihuana and had smoked marihuana earlier that evening; and the fact that she was emotionally engaged in the case, and therefore biased against the appellants because of the death of her boyfriend, as evidenced by her telling her mother she had identified the suspects from photo lineups, after being cautioned by the police not to discuss the identification with anyone.

[48]         When the reasons are read as a whole, it is apparent that the trial judge did address all of the issues raised by defence counsel concerning Ms. Lloyd’s credibility.  The appellants have not identified any passages in the reasons which show that the trial judge erred in her appreciation of the evidence.

[49]         The judge made an extensive review of Ms. Lloyd’s evidence (at paras. 17 – 62) which included her evidence on cross examination with respect to statements she gave to the police.  After reviewing the other evidence, the trial judge assessed Ms. Lloyd’s credibility (at paras. 204 – 207).  She identified the many inconsistencies raised by the defence.  It was not in my opinion necessary for her to explain point-by-point, the significance of each point, or the lack thereof, to her final findings on credibility.  In R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621 Justices Bastarache and Abella said:

[19]      This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court. Having encouraged these expanded reasons, it would be counterproductive to dissect them minutely in a way that undermines the trial judge's responsibility for weighing all of the evidence. A trial judge's language must be reviewed not only with care, but also in context. Most language is amenable to multiple interpretations and characterizations. But appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components. In re-examining the evidence piece by piece, the Court of Appeal in this case confused the need for sufficiency of reasons with the examination of sufficiency of the evidence, the latter being central to the disposition of the case in Burke, Burns and R. (D.) on which it relied. In our view the reasons were sufficient. In any event, any consideration of the sufficiency of the evidence had to be founded on consideration of all of the evidence and especially the justifications for all findings of credibility, including those referable to the child and witnesses who testified in support of her, not just referable to the accused and those supporting him.

[50]         Moreover, so far as the appellant Jackman is concerned, apart from Ms. Lloyd’s credibility, the only real issue on appeal is whether the Crown proved the requisite level of intent beyond a reasonable doubt.  It is conceded on appeal, (as it was at trial) that Mr. Jackman inflicted the fatal wound to Mr. Barber.  Self-defence is not a ground of appeal in this Court.

[51]         The most important evidence concerning Mr. Jackman’s intent was the medical evidence as to the multiple stab wounds inflicted by Mr. Jackman, during his savage attack, and the inference to be drawn from that evidence.

[52]         Hayley Lloyd’s evidence was therefore only relevant to Mr. Jackman’s intent to murder so far as it added to the facts upon which the inference of his intent could be based.  It was of course also relevant to the issue of unlawful confinement.

[53]         There was ample evidence from all three key witnesses to show that the first physical altercation between Mr. Jackman and Mr. Barber in the bedroom, the assault in the basement, and the final violent and savage stabbing in the bedroom were all part of a series of escalating violent attacks by Mr. Jackman upon Mr. Barber.  Whether Ms. Lloyd’s evidence was mistaken, unreliable, or not to be believed in any of the points taken by defence counsel, could not in my view be a basis for disturbing the trial judge’s findings concerning Mr. Jackman’s intent, or the unlawful confinement.

[54]         Even if there were deficiencies in the trial judge’s credibility analysis, the standard of review on questions of credibility is very high.  In R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at para. 26, Charron J. said:

Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal.

[55]         I would not give effect to this ground of appeal in favour of Mr. Jackman.

[56]         Counsel for the appellant Mr. Barrett similarly pointed to a number of details in Ms. Lloyd’s evidence which he said demonstrated the need for careful scrutiny.  He referred to the contradictory statement she gave about how the appellants gained access to her house, the assault by Mr. Jackman on Mr. Barber in the basement, and whether she saw Mr. Jackman use the scissors when he was punching Mr. Barber, or whether she first saw his bloody hand holding the scissors after the event; her evidence about being held by Mr. Barrett in a bear hug while still able to make her way downstairs while she was holding her dog; and her evidence concerning her purchase of a shotgun for hunting with her father, but its modification to make it useful for shooting humans.

[57]         It may be that the trial judge considered Ms. Lloyd to be mistaken in some or all of the particulars asserted by the appellant Mr. Barrett.  Nevertheless, it was for the trial judge to decide whether her evidence on the critical issues was worthy of credit, in whole or in part, or not.  Looking at the body of evidence as a whole, she concluded it was.

[58]         So far as Mr. Barrett’s participation in the killing is concerned, the Crown’s case was that he aided or abetted Mr. Jackman by taking the gun away from Ms. Lloyd in the first bedroom incident, and then subsequently in preventing her from coming to her boyfriend’s assistance while he was being attacked by Mr. Jackman.  There can be little doubt on the evidence as a whole that Ms. Lloyd was prevented from helping Kyle Barber, either by the direct physical restraint of Mr. Barrett, or by his intimidating proximity to her.

[59]         Again, according to the trial judge’s reasons, the appropriate level of deference on her finding as to Ms. Lloyd’s credibility, I do not see any basis on which this Court could interfere with her conclusion.

[60]         Nor, in my view, can it properly be said that the judge applied a different standard to the assessment of Ms. Lloyd’s credibility, than she did to her assessment of both appellants’ credibility.  The judge assessed the truthfulness of their testimony against the whole body of evidence adduced, and concluded that:

[225]    There is unexplained evidence about the gun being found eight kilometres away.  Both accused say they did not put it there.  Clearly one of them did.  Neither was being honest.  Both were evasive.  Their evidence is internally and externally inconsistent.  Each contradicted statements that they made to police in material parts in their testimony.  They contradicted each other.  Their evidence does not make sense.  It lacks the ring of truth and it is simply not credible. 

As with Ms. Lloyd, the trial judge did not give a detailed explanation for each and every inconsistency, contradiction or discrepancy in the evidence of the two appellants.  She had, earlier in her reasons, summarized their evidence on the relevant points.

[61]         Her findings of fact on credibility are conclusions which the trial judge was entitled to reach having heard the appellants testify, and weighing their evidence against all the facts she found to be established.

[62]         I would not give effect to this ground of appeal in the appellant Barrett’s favour.

VI.      The Issue Concerning the Appellant Jackman’s Intent

[63]         The relevant provisions of the Criminal Code on the charge of first degree murder against Mr. Jackman were:

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;

...

231.(5)   Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

...

(e)        section 279 (kidnapping and forcible confinement); or

...

279.(2)   Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a)        an indictable offence and liable to imprisonment for a term not exceeding ten years;  ...

[64]         The appellant Jackman challenges the conclusion of the trial judge as expressed in para. 251 of the reasons:

[251]    He does not dispute that he cut Mr. Barber with the knife and Mr. Barber died as a result of the jaw wound inflicted during the course of a struggle.  I have rejected the defence of self-defence.  I have accepted Hayley Lloyd's evidence that Mr. Jackman chased Mr. Barber around and up and over the bed, stabbing him with a knife multiple times.  I am satisfied beyond a reasonable doubt that the Crown has proved Mr. Jackman committed an unlawful act of stabbing that caused Mr. Barber's death, and that he caused Mr. Barber's death with the required intent for murder.  That is, he meant to cause Mr. Barber's death or he meant to cause bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not.

[65]         He contends the judge was obliged to explain why she concluded that an intent to assault became an intention to kill.

[66]         The submission on behalf of Mr. Jackman begins from the premise that the intention of both Mr. Jackman and Mr. Barrett, from the outset, was to obtain information so they could recover what had been taken from the barn (“the grow-op rip-off”), and that everything they did was consistent with that intention.

[67]         Counsel submits that intention remained throughout, and that there is no reason why Mr. Jackman would suddenly form a murderous intention during the second bedroom altercation with Mr. Barber.  Counsel relies on the evidence that after Mr. Barber threw the heater at Mr. Jackman, Mr. Jackman reacted by grabbing the knife from the dresser and stabbing him.  He says Mr. Jackman’s intent could only have been an intent to assault, rather than an intent to kill. 

[68]         Counsel points out that the judge’s finding of intent, as expressed in para. 251, is not based on an application of the “common sense inference” – that is the inference that one may be presumed to intend the natural and probable consequences of his acts.

[69]         In short, counsel says the trial judge was obliged, but failed, to express a clear finding as to whether Mr. Jackman had the intent to kill (s. 229(a)(i)), or whether he had the intention to cause bodily harm that he knew was likely to cause death, and was reckless as to whether death followed or not (s. 229(a)(ii)).

[70]         As noted by the Crown, counsel for Mr. Jackman does not say that there was no evidence on which the judge could find the requisite intent under either part of s. 229(a).

[71]         The Crown also points out that this charge of first degree murder is not based on an allegation that the killing was planned or deliberate (s. 231(2)).  The charge alleged an intentional killing during the course of an unlawful confinement.  Therefore, the appellant’s intention in going to the Lloyd/Barber home to get information is not of assistance in finding the requisite intent. 

[72]         There was evidence, accepted by the trial judge, that Mr. Jackman intended to inflict grievous bodily harm.  He punched Mr. Barber in the face with scissors in the basement and threatened to break or cut off his fingers in the second bedroom incident.  There was further evidence from which Mr. Jackman’s intent could be inferred – when he grabbed and opened the knife in the bedroom and attacked Mr. Barber with it, stabbing him multiple times.

[73]         The difference between the two intentions described in s. 229(a) was considered in R. v. Cooper, [1993] 1 S.C.R. 146 at 155 – 156, 78 C.C.C. (3d) 289, where Cory J., for the majority said:

The concept of recklessness was considered by this Court in Sansregret v. The Queen, [1985] 1 S.C.R. 570. At page 582 it was said

[Recklessness] is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.

The same words can apply to s. 212(a)(ii) with this important addition: it is not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim.

It is for this reason that it was said in Nygaard that there is only a “slight relaxation” in the mens rea required for a conviction for murder under s. 212(a)(ii) as compared to s. 212(a)(i). The position was put in this way at p. 1089:

... [where] two accused form the intent to repeatedly and viciously strike a person in the head with a baseball bat realizing full well that the victim will probably die as a result. Nonetheless they continue with the bone-splintering, skull-shattering assault. The accused ... must have committed as grave a crime as the accused who specifically intends to kill ... I would conclude that the crime defined in s. 212(a)(ii) [now 229(a)(ii)] can properly be described as murder and on a “culpability scale” it varies so little from s. 212(a)(i) as to be indistinguishable

The intent that must be demonstrated in order to convict under s. 212(a)(ii) has two aspects. There must be (a) subjective intent to cause bodily harm; (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. It is only when those two elements of intent are established that a conviction can properly follow.

[74]         Counsel for the appellant Jackman has not taken the position that there was no evidence on which the judge could conclude that there were both a subjective intention to cause bodily harm, and subjective knowledge that the bodily harm was of a nature likely to cause death.  Indeed, counsel did not take the position that there was no evidence on which the judge could find an intention to cause death.

[75]         In my view, on a review of all the evidence, it was open to the judge to conclude that either of the intentions described in s. 229(a) had been proven beyond a reasonable doubt.  I do not consider it significant in these circumstances that she declined to choose one over the other.  Given the evidence the trial judge accepted, if it was not the first, it had to be second.

[76]         I would not give effect to this ground of appeal.

VII.     The Evidence of Heather Reid and Bradley Mah

[77]         In the factum filed on behalf of the appellant Jackman, an issue is raised over the trial judge’s ruling (at para. 63) to consider the evidence of Reid and Mah only in respect of the accused Barrett.  Counsel did not address this issue in oral submissions to us but I did not understand him to have abandoned it. 

[78]         In brief, Reid and Mah gave evidence concerning a visit made to their home by the appellant Barrett between 11:00 and 11:30 p.m. on the evening of 28 March 2009.  They described Mr. Barrett as distraught, hyperventilating, very frightened, stuttering, making little sense and not very coherent.  Mr. Barrett is said to have given them an account of what had just occurred at the house where he and Mr. Jackman had gone to discuss the “grow-op rip-off”.

[79]         At trial, counsel for Mr. Barrett suggested this evidence was relevant to Mr. Barrett’s credibility and reliability.

[80]         In the appellant Jackman’s factum, the submission is made that the evidence of Mr. Barrett’s demeanor with Reid and Mah was probative of Mr. Jackman’s intent in causing Mr. Barber’s death, as supporting the contention that the violent turn of events took everyone by surprise, and that all were overwhelmed by the shocking escalation of violence.

[81]         Whatever probative value the evidence of Reid and Mah as to Mr. Barrett’s demeanor may have had on Mr. Barrett’s intent, it is in my view of no probative value whatever in respect of Mr. Jackman’s intent.  The trial judge did not err in excluding it as evidence in Mr. Jackman’s case.

[82]         I would therefore dismiss Mr. Jackman’s appeal.

VIII.    Barrett’s Appeal

[83]         In addition to Mr. Barrett’s submissions that the trial judge erred in assessing the credibility of Hayley Lloyd, which I have addressed above, counsel for Mr. Barrett raises two other grounds – both of which relate to the issue of Mr. Barrett’s intent as a party.  As described in para. 37 above, those two issues are whether:

1)       the trial judge applied the wrong legal test on the issue of whether Mr. Barrett had the requisite intention to support his conviction as a party to the offence of manslaughter; and

2)       the trial judge misapprehended the evidence on the issue of whether he had the requisite intent to be guilty as a party to the offence of manslaughter.

[84]         The appellant Barrett says the trial judge fell into error in the conclusion expressed at para. 272 of her reasons:

Having regard to the totality of the evidence, I am satisfied beyond a reasonable doubt Mr. Barrett is guilty of manslaughter, as he aided Mr. Jackman in the commission of the offence of first degree murder.  He need not and obviously did not desire that the offence be committed.  By his actions and presence he was a party, in that he intended that the offence be committed or he knew that Mr. Jackman intended to commit it and he intended to help Mr. Jackman accomplish his goal.

[85]         He says that in so concluding, the trial judge applied the wrong legal test for intent in a party to an offence.

[86]         Counsel says that to be found guilty as a party, the accused must have knowledge of the specific offence, crime or dangerous act that the principal offender, Mr. Jackman, was going to commit; and that the party, Mr. Barrett, did something with the specific intention of assisting the principal in the commission of that offence.  In addition, the harm done to the victim must be neither trivial nor transitory, and that harm must be the objectively foreseeable consequence of the specific offence or dangerous act committed by the principal.

[87]         Counsel says the requisite intention for a party is not just the intent to do an act that in fact assists the principal, but it must be an act done with the express intention of so assisting.

[88]         Here, counsel says the judge erred in concluding that Mr. Barrett had either the requisite knowledge or intent to be guilty as a party.  He says further, the trial judge also failed to consider whether the bodily harm inflicted by Mr. Jackman was objectively foreseeable to Mr. Barrett.

[89]         Counsel says the trial judge “conflated” the consideration that Mr. Barrett’s conduct may have in fact assisted Mr. Jackman in carrying out his assault, without his having the intention to do so.  Counsel referred to R. v. L. (Q.V.T.M.), 2003 BCCA 48 where this Court said:

[47]      One final aspect of the requisite intention of an aider or abettor is the intention to aid or abet. In R. v. Morgan (1993), 80 C.C.C. (3d) 16 (Ont. C.A.); leave to appeal to S.C.C. refused, [1993] S.C.C.A. No. 529 (S.C.C.), a case of trafficking in narcotics, the Ontario Court of Appeal said, at p. 21:

In our view, the trial judge's instructions suggested that the appellant's liability as an aider rested entirely on whether his conduct had the effect of aiding the seller in the sale of the cocaine. The trial judge should have made it clear that the appellant was only liable if he intended to assist the seller. The directions with respect to the requisite culpable mental state were inadequate and necessitate the quashing of the conviction. ...

[90]         In addition to having applied the wrong legal test for the intent of a party, the appellant Mr. Barrett says the trial judge also erred in misapprehending the evidence touching on his intent.  He refers to the evidence of his and Mr. Jackman’s expressed intention to seek information from their neighbours, which counsel says was objectively supported by:  “their arriving at the Lloyd/Barber residence in an open manner, without weapons or disguise; there being no evidence of violence by anyone until Mr. Barber went to get the gun from the bedroom”.  Counsel says the subsequent violence by Mr. Jackman, including the assault in the basement, and the knife attack by Mr. Jackman in the bedroom, were unanticipated and that Mr. Jackman’s intention to kill or harm could only have been formed after they were in the house, and that intention was never communicated to Mr. Barrett in any way.  Counsel says that Mr. Barrett’s conduct at the time of Mr. Jackman’s violence, and subsequently, showed that he was taken completely by surprise, that Mr. Jackman was in fact acting contrary to what Mr. Barrett thought would occur.  Counsel says there is no evidence that can support a finding that Mr. Barrett intended that Mr. Barber be murdered, or that he knew Mr. Jackman had formed an intention to murder Mr. Barber.

[91]         As to the correct test for the requisite intention in a party to the offence of manslaughter, the law is as stated in R. v. Jackson, [1993] 4 S.C.R. 573 at 582 – 583, [1994] 86 C.C.C. (3d) 385, where McLachlin J. (as she then was), for the majority said:

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. 944.

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.]

[92]         The test for intention of a party to manslaughter is therefore objective, namely, what would a reasonable person have appreciated in all the circumstances.  The question in this case is what ought Mr. Barrett reasonably to have understood in all the circumstances leading up to the fatal stabbing.

[93]         The submission of counsel for Mr. Barrett is premised on a reading of para. 272 of the judge’s reasons that imputes to Mr. Barrett a subjective intention that murder be committed, or that he subjectively knew that Mr. Jackman intended to commit murder, and helped Mr. Jackman to accomplish that goal.

[94]         Such a reading overlooks what the judge said earlier in her reasons:

[259]    With respect to Mr. Barrett, he is charged with manslaughter in the death of Kyle Barber.  The issue with respect to Mr. Barrett is whether the Crown has proved beyond a reasonable doubt that he is a party to the offence of murder committed by Mr. Jackman.  The Crown must prove beyond a reasonable doubt, in addition to identity, the date and the place described in the indictment, which are not in issue, that Mr. Barrett was party to an unlawful act that was committed by Mr. Jackman, which was dangerous and caused Mr. Barber's death. 

...

[262]    I understand the position of the Crown to be that Mr. Barrett did something for the purpose of aiding Mr. Jackman to commit an offence, from which, objectively viewed, bodily harm would result.  Therefore, the Crown asserts Mr. Barrett is guilty of manslaughter in the death of Mr. Barber.  The Crown argues that Mr. Barrett is a party to the unlawful act which caused the death, maintaining even on his own evidence his actions assisted Mr. Jackman through preventing Ms. Lloyd from doing anything to assist Mr. Barber.  The Crown says it is clear that he intended to go to the home of Barber and Lloyd to obtain answers about the break-in.  He never abandoned that intention, even when it was clear that Mr. Barber and Ms. Lloyd wanted him and Mr. Jackman to leave.  He chose to remain until he and Mr. Jackman obtained answers, even in the face of the production of a gun and an assault on Mr. Barber.

[95]         Read in the context of the reasons as a whole, the judge’s references to an “offence” and “goal” in para. 272 must be reasonably understood as referring to unlawful act manslaughter, not murder.

[96]         The trial judge found (para. 228) that Mr. Barrett saw the brutal attack by Mr. Jackman on Mr. Barber in the bedroom.  He therefore had both subjective as well as objective knowledge that significant bodily harm was a foreseeable consequence of Mr. Jackman’s conduct.  As noted in Jackson, the Crown did not have to prove that Mr. Barrett foresaw, or should have foreseen, death or the risk of death.  It is sufficient that in all the circumstance he would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken by Mr. Jackman.

[97]         As to the evidence of Mr. Barrett’s conduct, the trial judge held (para. 229) that:  “... the two accused held Ms. Lloyd and Mr. Barber under their control and domination while in their home.  It was a home invasion.”

[98]         She found (para. 256) that:  “... Mr. Barber and Ms. Lloyd were not able to move freely about their home”.  She said:

[271]    Clearly Mr. Barber and Ms. Lloyd were terrified, intimidated, and dominated from the beginning to the end, as Mr. Jackman played the role of the heavy, supported by the lumbering presence of Mr. Barrett.  Mr. Jackman told Mr. Barrett to remove the gun from Ms. Lloyd.  He left Mr. Barrett in control when he went upstairs to wash the blood from his hands, and Mr. Barrett was left with Ms. Lloyd upstairs when he first went downstairs with Mr. Barber.

[99]         Given the presence of a gun in the home, Mr. Barber’s attempt to use it, and Ms. Lloyd’s participation in the sequence, it is evident that Mr. Jackman could not have succeeded in his assault on Mr. Barber if Mr. Barrett had not been there to prevent Ms. Lloyd’s intervention or assistance to Mr. Barber.

[100]     In my respectful view, the trial judge applied the correct legal test for finding an intention in a party to the offence; and there was evidence to support her finding that Mr. Barrett aided Mr. Jackman in the commission of the offence.

[101]     I would dismiss Mr. Barrett’s appeal from the conviction for manslaughter.

IX.      Conclusion

[102]     I would dismiss both appeals, and affirm both convictions.

“The Honourable Chief Justice Finch”

I agree:

“The Honourable Madam Justice Ryan”

I agree:

“The Honourable Madam Justice Neilson”