This week’s top three summaries: R v AS, 2026 ONCA 241: #family fabrication, R v Comber, 2026 MBCA 27: #murder common sense, R v Nordquist, 2026 SKCA 20: #self-defence

R v AS, 2026 ONCA 241

[April 2, 2026] Accused Exculpatory Evidence: Family Fabrication [Reasons by Copeland J.A. with B. Zarnett and J.George JJ.A. concurring]

AUTHOR’S NOTE: This case addresses whether alleged fabrication by defence witnesses can be attributed to the accused. The answer is no—absent independent evidence.

At trial, the Crown attacked the testimony of the accused’s family members, suggesting they had colluded to fabricate evidence in his favour. In closing, the Crown went further, rhetorically inviting the jury to reject the defence on the basis that the accused wanted them to believe this allegedly coordinated story. A collusion instruction was given, but it failed to differentiate between the accused and the other witnesses.

That omission proved fatal. Where an allegation of fabrication is directed at an accused, the law requires independent evidence of deliberate concoction. Mere disbelief of testimony—even strong disbelief—does not transform that evidence into fabrication, nor does it permit an inference that the accused orchestrated it.

In this case, there was no evidence that the accused participated in any collusion with his family members. By failing to instruct the jury on this requirement, the trial judge allowed the risk that disbelief of the family’s evidence would improperly “rub off” on the accused and be used as a basis for guilt.

The conviction was set aside. The decision reinforces a critical safeguard: fabrication findings cannot be inferred by association or by disbelief alone—they must be proven.

[1] The appellant appeals from his convictions, in a trial by jury, for two counts of sexual assault, one count of invitation to sexual touching, and one count of indecent exposure to a person under 16 years of age. The complainant was the daughter of family friends of the appellant, who was cared for after school in the appellant’s home, along with two of the appellant’s grandsons.

[2] For the reasons explained below, I would allow the appeal, set aside the convictions, and order a new trial. The trial judge erred in her instructions to the jury on assessing the evidence of witnesses who may have colluded about their testimony, by failing to direct the jury:

 that the collusion instruction did not apply to the appellant;

 that if they rejected the evidence of the appellant’s family members, or gave it less weight, on the basis that their evidence was tainted by collusion, they could not use that fact in assessing the appellant’s credibility; and,

 that if they rejected the evidence of the other family members, or gave it less weight, on the basis that their evidence was tainted by collusion, they could not use that fact to infer that the appellant was guilty of the offences charged.

1. Did the trial judge err in the collusion instruction?

[21] It is helpful to review the context of how the collusion issue arose during the trial in order to understand this issue.

a. Evidence relevant to collusion as it related to defence witnesses

[22] Crown counsel at trial (not Ms. Bolton) asked questions in cross-examination of five of the appellant’s family members which were capable of providing a factual basis for a collusion instruction about at least some of the defence witnesses. 5

 The appellant’s son – The Crown suggested to the appellant’s son that he had discussed his evidence with the “entire immediate” family. The son disagreed. The Crown suggested that the son would do anything to help his dad. The son agreed. The Crown then suggested that the son knew his evidence would further his dad’s defence. The son responded, “I am saying what actually happened.” In reexamination, the son said he would not lie to help his father.

 The appellant’s daughter – One of the appellant’s daughters agreed in cross-examination that she had a couple of conversations with her family since the appellant was charged. These were on December 30 and 31, 2020, at the time the police notified the family of the allegations and the appellant was charged. After trial counsel was retained, based on “guidance” from trial counsel telling them not to discuss the allegations, the family would only discuss the allegations if there was a specific request for information from trial counsel, for example, for photos relevant to the defence. Crown counsel also suggested that everything in the daughter’s evidence was “specifically for the purpose of helping your father further his defence?” The daughter replied “yes”. However, in re-examination, she was asked if she would help her father if she believed he had sexually assaulted the complainant, and she said she would not.

 The appellant’s other daughter – The appellant’s other daughter agreed in cross-examination that around the time the appellant was arrested, there was a family discussion about what was being alleged against the appellant. But she said that the only conversations about the allegations after December 31, 2020 were with the appellant’s trial counsel. Crown counsel also suggested to the daughter that by testifying she was “just, you know trying to help [the appellant]?” The daughter replied: “I’m trying to just say the truth.” In re-examination, she said she would “definitely not” lie to help her dad.

 One of the appellant’s grandsons – The Crown questioned one of the appellant’s grandsons about family discussions of the allegations against the appellant. He said he was aware of family discussions, but not present for them, other than being told about the fact of the allegations. He said after January 1, 2021, he was not present for any other conversations about the allegations. This grandson agreed that he was testifying in the appellant’s defence because he believed the complainant was lying because she had also made a false allegation against this grandson….

 The appellant’s wife – The appellant’s wife was not cross-examined about whether there were family discussions of the allegations. However, Crown counsel did suggest to her that she was saying what she was saying in her evidence “simply because you want to support your husband in this trial?” The appellant’s wife responded, “Not really because it’s the truth.” In re-examination, she confirmed that she would not lie to protect her husband.

[23] The appellant’s other three grandsons were not asked any questions in cross-examination that raised the issue of collusion. In particular, they were not asked any questions about family discussion of the allegations; nor were they asked any questions suggesting they were giving their evidence to support their grandfather.

[24] The trial Crown did not ask the appellant any questions about family discussion of the allegations. I note as well that the trial Crown did not ask any of the family members whether the appellant was present for these discussions. This issue was left unclear on the record.[Emphasis by PJM]

b. Discussion of an instruction on collusion at the pre-charge conference

[26] An instruction on collusion was discussed at the pre-charge conference.

[27] The issue was initially raised by the defence, seeking an instruction on collusion in relation to the complainant’s evidence. The defence request was based on the evidence that the complainant discussed her evidence with her sister and with other family members and friends….

[31] During the discussion with Crown counsel on this issue, the trial judge outlined what she thought was an appropriate instruction:

So, basically what, what I would say, something along the lines of both the Crown and defence raised the issue of collusion and argue the fact that a witness may have colluded with another witness, affects their credibility. And then, for example, the defence posits these scenarios of collusion, the meetings or what took place. The Crown submits that members of the Atkins family have colluded by comparing stories and, and whatever, to support, to support their father. And I can specifically mention the chart is not part of that, if [trial counsel] is concerned about that. But the, the part that comes from, from the, the model instruction is, if you conclude that the similarity of the witness’ testimony is the result of collusion, collaboration, or tainting, you must not use it to support the Crown’s case or, the Crown’s position or the defence position. Or I can make those two different paragraphs. If you do not reach that conclusion, you must still consider whether the evidence is reliable despite the opportunity for collusion, collaboration, or tainting, and whether it should be given less weight or no weight because it may not be independent.

[33] Once the trial judge made clear that in giving an instruction on collusion, she would address both the defence and Crown theories of collusion, trial counsel for the appellant took the position that this would be so prejudicial that he withdrew his request for a detailed collusion instruction and instead requested a more general instruction, “without mentioning either side specifically.”

d. The instruction to the jury on collusion

[36] The trial judge gave the following instruction on collusion:

You must consider the possibility of collusion, collaboration, or tainting of the witnesses. By collusion, I am not referring to the evidence of [the appellant’s son] that he consulted with others about the dates and times in which they came to Canada and lived at [the appellant’s address]. That was done on the instruction of counsel. I am referring to the discussions about the substance of the allegations and the surrounding circumstances in which they took place. If you conclude that a witness has discussed their evidence with others, and that the witnesses’ testimony is the result of collusion, collaboration or tainting, you must consider whether the evidence is reliable despite the opportunity for collusion, collaboration, or tainting, and whether or not it should be given less weight or no weight because it may not be independent. [Emphasis added.]

e. Discussion and conclusion on collusion instruction ground

[39] As noted above, the appellant argues that, having chosen to give an instruction on collusion that applied to the defence evidence, the trial judge erred in failing to instruct the jury that the instruction did not apply to the appellant’s evidence and in failing to caution the jury that, if they rejected the evidence of the appellant’s family members on the basis of collusion, they could not use that rejection (a) to draw an inference that the appellant was lying, or (b) as circumstantial evidence of guilt. The appellant bases this argument on two lines of cases: first, R. v. Soobrian (1994), 96 C.C.C. (3d) 208 (Ont. C.A.); and second, R. v. O’Connor (2002), 170 C.C.C. (3d) 365 (Ont. C.A.), and R. v. U.K., 2023 ONCA 587, 430 C.C.C. (3d) 81.

[42] The second line of cases relied on by the appellant are those which place limits on the ability of the Crown to argue that rejection of an accused’s evidence may be evidence of guilt and that discuss the required limiting instructions where issues of fabrication by an accused are raised by the Crown. The criminal law draws a distinction between disbelieved evidence and fabricated evidence. The reason for the distinction is the risk of inadvertently shifting the burden of proof by turning disbelieved evidence into positive evidence of guilt. Disbelieved evidence has no evidentiary value. By contrast, fabricated evidence may be considered as circumstantial evidence of guilt. In order to maintain this distinction, absent independent evidence of fabrication, a trier of fact is not permitted to infer guilt from the rejection of an accused’s testimony. Where the Crown alleges that the accused fabricated their testimony, the failure to give the jury a specific instruction in accordance with these principles may constitute reversible error. This is because, without a specific instruction, juries may have difficulty understanding the difference between disbelieved evidence and fabricated evidence: O’Connor, at paras. 17-23; U.K., at paras. 70-76; R. v. Al-Enzi, 2021 ONCA 81, 401 C.C.C. (3d) 277, at paras. 38-39, 41.

[43] The appellant argues that the principles from the O’Connor line of cases apply in this appeal because the trial Crown’s theory of collusion that was left with the jury did not distinguish between the appellant and the other members of the family. In other words, it was a theory that the appellant fabricated his evidence in collusion with his family. However, there was no evidence (independent or otherwise) of fabrication on the part of the appellant.[Emphasis by PJM]

[45] In my view, the concerns raised in cases such as O’Connor, U.K., and Al-Enzi, are applicable to this appeal. As a result, it is not necessary to address the appellant’s argument based on Soobrian, which would require the court to consider expanding the principles from that case to a different context.

[46] There are two fundamental problems with how the collusion issue was put to the jury in this trial. The first arises out of the Crown’s closing. The second out of the jury instructions. Both arise out of the fact that there was no evidentiary basis to permit the jury to consider whether the appellant fabricated his evidence, and in particular, whether he colluded with his family members to fabricate his evidence.

[48] I express no view on whether the trial Crown intended to exclude the appellant from her collusion theory. Whatever the trial Crown’s intention, I am satisfied that there is a real possibility, indeed a likelihood, that the jury would have understood the Crown’s theory of collusion in its closing address as including all of the defence witnesses – including the appellant. I have extracted a larger portion of the Crown’s closing above. The following phrases within it would have suggested to the jury that the Crown’s collusion theory included the appellant:

 Mr. Atkins wants you to believe that his family was permitted to discuss the allegations….

 I ask you to find that there’s no evidence of collusion on the part of the Clarke family but that there is definitely bias on the part of the Atkins.

 But consider when does similar testimonies [sic] cross over into the realm of collusion. I suggest to you that there are two clear themes that have emerged that would lend support to a finding that the Atkins family colluded….

 Mr. Atkins wants you to believe his family and I ask you to find that they’re not credible and not reliable witnesses … Everyone went out of their way to advance Mr. Atkins’ narrative. [Emphasis added.]

[50] There was no evidentiary basis for the Crown to argue to the jury (or leave the jury with the impression it was arguing) that the appellant fabricated his evidence in collusion with his family members. The appellant was not crossexamined on whether he at any time discussed the allegations or his evidence with his family. To the extent other family members were cross-examined about family members discussing the allegations against the appellant, none were asked whether the appellant was present for those conversations. As noted above, whether the appellant was present was left unclear on the evidence at trial.

[51] Because there was no evidence that the appellant colluded with his family members to fabricate his evidence, the Crown should not have been permitted to make arguments to the jury suggesting that the appellant colluded with his family to fabricate the defence evidence.[Emphasis by PJM]

[52] The jury instructions raise the same concern. As noted above, the instruction on collusion was left to the jury in general terms, referring to “witnesses” generally. The appellant was a witness. The plain meaning of the reference to “witnesses” in the collusion instruction included the appellant. There is every reason to believe the jury would have understood the reference to “witnesses” to include the appellant….

[55] The failure to give the jury a limiting instruction in relation to the collusion instruction was an error and it was prejudicial to the appellant. The trial judge should have cautioned the jury:

 that the collusion instruction did not apply to the appellant;

 that if they rejected the evidence of the appellant’s family members, or gave it less weight, on the basis that their evidence was tainted by collusion, they could not use that fact in assessing the appellant’s credibility; and,

 that if they rejected the evidence of the other family members, or gave it less weight, on the basis that their evidence was tainted by collusion, they could not use that fact to infer that the appellant was guilty of the offences charged.[Emphasis by PJM]

[57] In this case, the failure to provide the limiting instructions outlined above left the jury inadequately instructed on the law as it related to the fundamental credibility issues in this trial.

Disposition

[65] I would allow the appeal, set aside the convictions, and order a new trial.

R v Comber, 2026 MBCA 27

[March 30, 2026] Murder: The Common Sense Inference [Reasons by Christopher Mainella J.A. with Janice L. leMaistre and Anne M.E. Turner JJ.A. concurring] 

AUTHOR’S NOTE: Murder prosecutions often rely heavily on circumstantial evidence, particularly when proving the accused’s state of mind. In that context, the Crown frequently invokes the so-called “common sense inference”—that a person intends the natural consequences of their actions. In clear cases (e.g., shooting someone in the chest at close range), that inference may be readily available to a jury.

This case demonstrates the limits of that principle.

The Court of Appeal held that the common sense inference was not available on the facts. The circumstances were too far removed from the type of direct, lethal conduct that reliably supports an inference of intent to kill. The accused had participated in firing a rifle in the dark at the taillights of a departing vehicle. On this record, the range of reasonable alternative inferences—including a lack of intent to kill—could not be excluded.

As a result, the Court concluded that no properly instructed jury, acting judicially, could find that the only reasonable inference was guilt. The conviction could not stand.

Takeaway:
The “common sense inference” is not a shortcut to proving intent. Where the underlying act and surrounding circumstances are ambiguous, courts must rigorously apply the principles governing circumstantial evidence. If reasonable alternatives remain open, the inference of intent to kill is unavailable.

Introduction

[2] On the evening of November 17, 2018, Hailey Dugay (the victim), age twenty, was struck in the lower back by a .30-calibre bullet while she sat in the rear passenger seat of a pickup truck travelling down Kuz Road, a gravel road in the Interlake area of Manitoba. Tragically, she died from the gunshot.

[3] The police originally charged Jesse Paluk (Paluk) with second degree murder as several witnesses saw him shooting a rifle on Kuz Road at the time the vehicle transporting the victim was shot at. However, subsequent ballistics testing confirmed the rifle Paluk possessed and discharged on Kuz Road did not fire the fatal shot.

[4] Paluk pleaded guilty to discharging a firearm with recklessness for his conduct on Kuz Road and assault with a weapon in relation to a fight earlier in the evening at the Fraserwood Bar in Fraserwood, Manitoba (the bar). Paluk became a cooperating Crown witness against the accused, identifying him as being another shooter on Kuz Road.

[14] The two issues that need to be canvassed in detail relate to the trial judge’s interventions during defence counsel’s cross-examination of witnesses and the reasonableness of the jury’s second degree murder verdict.

[15] Given my conclusion that the record here could only support a conviction for manslaughter, as opposed to second degree murder, it is unnecessary to comment on the ground of appeal that relates to the adequacy of the trial judge’s answer to a question from the jury on murderous intent during their deliberations.

[16] For the following reasons, I would dismiss the appeal but substitute the verdict of manslaughter because the verdict of second degree murder was unreasonable.

Discussion

Issue One: The Trial Judge’s Interventions During Defence Counsel’s CrossExamination of Witnesses

[148] In my view, a reasonable person reviewing the whole of the proceedings in this case would not conclude that the proceedings were unfair because of the interventions by the trial judge, including his manner of interventions.

Issue Two: Reasonableness of the Jury’s Verdict

Introduction

[149] The standard of appellate review of the jury’s murder verdict under section 686(1)(a)(i) of the Code is whether the verdict is one that a properly instructed trier of fact, acting judicially, could reasonably have rendered. In performing this analysis, a reviewing court must consider and, to some extent, re-weigh the evidence and its effect through the lens of judicial experience but with appropriate deference to the trier of fact’s fact-finding (see R v Hall, 2018 MBCA 122 at paras 164, 166 [Hall]).

[150] In Villaroman, Cromwell J stated: “Where the Crown’s case depends on circumstantial evidence, the question becomes whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence” (at para 55; see also Hall at para 165). This analysis tasks the appellate court with focusing on whether the inferences drawn by the trier of fact, having regard to the standard of proof, are reasonably open to it (see Villaroman at para 67).

[151] Post-Villaroman, some controversy has arisen as to the parameters of the comments in Villaroman when the inferential reasoning based on circumstantial evidence is directed to proof of mens rea as opposed to the actus reus (see R v Cook, 2023 SKCA 117 at para 79; R v Dingwall, 2021 SCC 35; R v Delorme, 2021 ABCA 424 at paras 62-72 [Delorme]).

[152] Historically, the view of this Court has been that Villaroman is a case of universal application such that the principles discussed therein are not limited to cases where the inferential reasoning, based on circumstantial evidence, is directed to proof of the actus reus only (see e.g. R v KB, 2025 MBCA 73; R v Monro, 2025 MBCA 64; R v Assi, 2023 MBCA 2; R v Bradburn et al, 2022 MBCA 98; R v Beardy, 2022 MBCA 90; R v Contois, 2020 MBCA 89; R v Giesbrecht, 2019 MBCA 35; R v Ewert, 2019 MBCA 29; R v Houle, 2016 MBCA 121). I would note that the parties in this case accepted that Villaroman applied to the question of the accused’s murderous intent; I agree with that view.[Emphasis by PJM]

The Firing of the Fatal Shot

[174] I agree with the Crown that it was entirely open to the jury to reach a verdict of some form of culpable homicide based on the accused firing the fatal shot when the direct and circumstantial evidence is viewed cumulatively. The mere existence of evidence which, if accepted, may give rise to a reasonable doubt does not make a verdict unreasonable. I have little difficulty on this record coming to the conclusion that a properly instructed jury, acting judicially, could reasonably have rendered a verdict based on the conclusion that the accused committed culpable homicide when he caused the victim’s death by the unlawful act of discharging a firearm at an occupied vehicle on Kuz Road.

Murderous Intent

[175] Once the jury was satisfied beyond a reasonable doubt that the accused fired the fatal shot, the crucial question that arose was proof of the accused’s murderous intent: “what [he] subjectively knew and intended” at the time he discharged the firearm at Harasymko’s vehicle (R v Wakefield, 2019 SCC 26 at para 2).

[178] Murderous intent within the meaning of section 229(a)(ii) requires proof of (1) subjective intention to cause bodily harm, and (2) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death (see R v Cooper, [1993] 1 SCR 146 at 155, 1993 CanLII 147 (SCC) [Cooper]). If both requirements are established, the statutory reference to “reckless” in section 229(a)(ii) becomes “an afterthought” (Cooper at 154) because, by “necessity”, someone with that state of mind is reckless whether death ensues or not (ibid at 155).

[179] As was explained in Watkins: “The distinction between meaning to kill [section 229(a)(i)] and causing bodily harm knowing that that harm is likely to cause death [section 229(a)(ii)] is a slim one” (at para 63; see also R v Vaillancourt, 1987 CanLII 2 at para 11 (SCC) [Vaillancourt]). While section 229(a)(ii) is a residue of a much greater historic doctrine of constructive intention for murder, the provision is not designed to water down the fault requirement for murder from subjective intent to mere recklessness (see Regina v Simpson (No 2) (1981), 58 CCC (2d) 122 at 144, 1981 CanLII 3284 (ONCA); Don Stuart, Canadian Criminal Law: A Treatise, 7th ed (Toronto: Carswell, 2014) at 535; Kent Roach, Criminal Law, 7th ed (Toronto: Irwin Law, 2018) at 432).

[181] In this case, to convict the accused of second degree murder, the Crown had to establish beyond a reasonable doubt that he intended to cause bodily harm to the victim by the act of discharging a firearm at Harasymko’s vehicle and that, while doing so, he subjectively foresaw that death was a likely consequence of that act (see Vaillancourt at para 11).[Emphasis by PJM]

[182] The theory of the Crown in its closing submission to the jury was that the accused, given that he was a hunter, “knew what it meant to pull the trigger of a gun.” The Crown alleged that, once Paluk asked for backup, the accused aimed at Harasymko’s vehicle with the Winchester rifle at “the only thing he could see; the taillights” and fired three shots. The Crown alleged that that act—firing three shots with a rifle at the tail lights of an occupied vehicle driving erratically from about fifty to one hundred yards—satisfied the requirements of section 229(a)(ii) of the Code.

[183] There was no direct evidence as to the accused’s state of mind; this aspect of the Crown’s case was entirely circumstantial. To establish the requirements of section 229(a)(ii), the Crown relied on the common sense inference as to the accused’s state of mind that was described by Cory J in R v Seymour, 1996 CanLII 201 at para 19 (SCC), as follows :

[I]n determining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane and sober persons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee the consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.[Emphasis by PJM]

[184] As was explained in R v Walle, 2012 SCC 41 [Walle], the common sense inference is a useful “marker [for the trier of fact] against which to measure the rather amorphous concept of intent” (at para 63). The inference that a sane and sober person intends the natural and probable consequences of their actions is a “permissive inference, not a presumptive one” (see R v Hodgson, 2024 SCC 25 at para 67 [Hodgson]) [emphasis in original]. Before relying on this analytical tool, the trier of fact must carefully consider the evidence that points away from the inference (see ibid at paras 67-68; Walle at para 63).[Emphasis by PJM]

[185] The following is made clear in Walle at para 67:

[If] there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence, or if the pertinent evidence does not leave the jury in a state of reasonable doubt about the accused’s intent, then the jury may properly resort to the common sense inference in deciding whether intent has been proved.

[186] Based on my review of the transcript, there was little in the way of “evidence that could [have] realistically [borne] on the accused’s mental state” (Walle at para 65) at the time of the shootings on Kuz Road. The one exception is that, in his jury instruction, the trial judge did caution the jury to consider what little evidence there was as to the accused’s intoxication, as he had been at the bar socializing prior to the shootings on Kuz Road. This was necessary on the trial judge’s part, but the evidence here is far removed from the type of advanced intoxication evidence that would realistically impact whether the accused had the requisite mental state at the time of the offence (see R v Daley, 2007 SCC 53 at para 42).

[189] In addition to Walle, a number of appellate authorities have highlighted that, in the absence of evidence to the contrary, the act of pointing and discharging a firearm at a vital portion of a victim’s body can be a sufficient evidentiary foundation for the trier of fact to employ the common sense inference to decide subjective intent (see R v Singharath, 2023 SKCA 6 at paras 27-29; R v Weng, 2022 BCCA 332 at para 70; Delorme at para 39; R v McArthur, 2013 SKCA 139 at para 10; R v Arrieta, 2012 BCCA 402 at para 12; Bains at para 47).

[190] While I would endorse this line of authority, the one caution I would take with reading the jurisprudence in this area is that many of the cases involve handguns, shotguns or rifles that were fired at a vital portion of a victim’s body at a short distance.

[192] The common sense inference resulting from pointing and discharging a firearm is not limited to instances where the firearm is discharged at close range; that reasoning ignores the inherent dangerousness of firearms at long distances (see Regina v Turner, [1967] 1 CCC 1 at 7-8, 1966 CanLII 546 (BCCA), aff’d [1967] 1 CCC 1 at 33 (SCC)).

[193] In their weighing of the common sense inference, the trier of fact needs to consider the whole of the firearms evidence, which will include:

1) the nature and lethality of the firearm;

2) the condition of the firearm;

3) the range of the shot given the firearm used;

4) how the firearm was aimed;

5) the skill of the shooter given their firearms experience;

6) the number of shots taken; and

7) any motive for the shooting.[Emphasis by PJM]

[194] I have no difficulty with the position of the Crown that the discharging of the Winchester rifle, a firearm used for hunting and capable of firing .30-calibre ammunition, on three occasions at an occupied vehicle at a distance of about fifty to one hundred yards by a person familiar with firearms, could give rise to the application of the common sense inference to establish murderous intent for the purposes of section 229(a)(ii) of the Code even though the accused had no motive for the shooting other than, as Paluk requested, to back him up. The difficulty here is that section 229(a)(ii) required proof beyond a reasonable doubt that the accused discharged the Winchester rifle with the intention of causing bodily harm and not for another purpose based on the evidence or its absence (see Villaroman at para 55).[Emphasis by PJM]

[197] ….the Court of Appeal must ask itself “whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury” (at para 50) [emphasis in the original].

[199] The lens of judicial experience informs me that the problem with the reasonableness of the jury’s verdict, in terms of second degree murder as opposed to manslaughter, is that the act of discharging a firearm with an intention to cause mischief in relation to property is not automatically synonymous with also having an intention to cause bodily harm to a person in close proximity to the mischief being caused (see e.g. R v Russell, 2023 BCSC 1123 at paras 132-33). It is important to repeat that section 229(a)(ii) is “limited to cases where the accused intended to cause bodily harm to the victim” (Vaillancourt at para 11; see also Hodgson at paras 48-51).[Emphasis by PJM]

[200] There are two aspects of the evidence that cause me to conclude that the jury’s fact-finding on murderous intent was sufficiently “flawed” (Biniaris at para 39) to produce an unreasonable result: a verdict of second degree murder as opposed to manslaughter (see ibid).

[201] First, unlike cases such as Walle, there is no evidence that the accused pointed and fired the Winchester rifle at a vital part of the body of any of the occupants of Harasymko’s vehicle….[Emphasis by PJM]

[202] What happened to one of the three shots the accused fired from the Winchester rifle is unknown. However, the location in which the other two shots struck Harasymko’s vehicle gives rise to the inference that the accused was not discharging the firearm at the occupants in the cab of the vehicle to cause bodily harm; he was shooting at the vehicle’s tail lights, as the Crown contended, to scare them away as part of the plan to back up Paluk.

[203] At the hearing of the appeal, the parties both conceded that, had the Winchester rifle been pointed and fired at the windows of Harasymko’s vehicle, that act—intentionally shooting a rifle discharging a .30-calibre bullet at a vital portion of the body of a victim—would dispel any concerns about a trier of fact relying on section 229(a)(ii) to satisfy the proof of the mens rea of murder. I agree that would be unambiguous evidence of an intent to cause bodily harm that would be subjectively foreseeable that death was a result (see Walle).

[204] My other concern is that, while the accused’s behaviour is highly blameworthy and resulted in a tragic death of a young person, the conditions under which the Winchester rifle was fired reasonably gave rise to the inference of an errant bullet based on a state of mind of recklessness, as opposed to a requirement of section 229(a)(ii)—an intention to cause bodily harm to the victim.[Emphasis by PJM]

[205] Several aspects of the evidence are important. The shooting conditions at the time were not optimal; it was dark. The fishtailing of Harasymko’s vehicle on a gravel road made aiming at it in a precise manner challenging. While the accused was familiar with firearms, the distance between him and Harasymko’s vehicle was not great for a rifle (about fifty to one hundred yards); the sight on the Winchester rifle was defective according to Paluk, an experienced hunter. While the result of the accused’s incautious decision was tragic, it cannot be said with the requisite certainty on these facts that his intention was for an occupant of the vehicle to be shot, as opposed to the vehicle’s tail light.[Emphasis by PJM]

[206] In my view, the combined effect of the circumstantial evidence gives rise to the conclusion that the application of the common sense inference on these facts would not allow a properly instructed jury acting judicially to conclude that murderous intent, within the meaning of section 229(a)(ii), had been established beyond a reasonable doubt. The circumstances here, in terms of murder, amount to a reasonable inference other than guilt given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense (see Villaroman at paras 36, 55). In my judgment, the verdict of second degree murder was unreasonable within the meaning of section 686(1)(a)(i) of the Code.[Emphasis by PJM]

Disposition

[208] In the result, I would dismiss the accused’s appeal and substitute a verdict of manslaughter for that of second degree murder.