COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ward, 2016 ONCA 984

DATE: 20161228

DOCKET: C55519

Juriansz, Watt and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ronald Ward

Appellant

Timothy E. Breen, for the appellant

Howard Leibovich, for the respondent

Heard and released orally: December 23, 2016

On appeal from the conviction entered on September 27, 2011 by Justice John A. Desotti of the Superior Court of Justice, sitting with a jury.

ENDORSEMENT

[1] A jury found Ronald Ward guilty of second degree murder for having unlawfully caused the death of Scott Hayes. The trial judge ordered that Ward serve at least 14 years of his sentence of imprisonment for life before he is eligible for consideration for release on parole.

[2] Ronald Ward appeals. He says that his conviction is flawed because of legal errors in the trial judge’s charge to the jury. He asks us to dismiss his appeal from conviction of second degree murder, substitute in its place a conviction of manslaughter, and impose a sentence of time served. The Crown agrees with the appellant’s proposal.

[3] These reasons explain briefly why we have decided that we should give effect to the position jointly advanced by counsel, dismiss the appeal from conviction of second degree murder under s. 686(1)(b)(i) of the Criminal Code, substitute a conviction for manslaughter, and impose a sentence of imprisonment of time served under s. 686(3)(b) of the Criminal Code.

The Background

[4] The circumstances surrounding the death of Scott Hayes had their genesis several years earlier in events in which the appellant played no active part.

[5] Scott Hayes had a relationship with a young women, S.P., with whom he would have two children. When S.P. was 15, she had sex with the appellant’s brother, Chris Ward, in his car. Scott Hayes was in jail at the time. When Scott Hayes was released from jail, S.P. told him about her sexual encounter with Chris Ward. Later, Hayes challenged Chris Ward to a fight. Ward responded. Hayes beat him up, then surrendered to police.

[6] Over 3 ½ years later with Hayes again in jail, and bound by an order not communicate with S.P., Chris Ward and S.P. were present at the same bar. Chris Ward and later the appellant told S.P. that the appellant had a problem with Hayes whom he claimed had “ratted him out”. The appellant was waiting for Hayes to be released from custody.

[7] About two weeks before Scott Hayes’ death, S.P. asked Chris Ward to drive her home from a social event she and Hayes were attending. Ward agreed. Shortly after S.P. entered Chris Ward’s vehicle, Ward suggested that they engage in some sexual activity. S.P. refused. Ward drove S.P. home. About a week later, she told Hayes what had happened with Chris Ward.

The Arrangements

[8] Scott Hayes and Chris Ward agreed to meet in the rear parking lot of a commercial premises to settle their dispute. Chris Ward asked the appellant to follow him to watch his (Chris Ward’s) back. The appellant agreed to do so, but delayed his arrival so that Hayes would think that his only adversary would be Chris Ward.

The Altercation

[9] When the appellant arrived in the parking lot, he saw Chris Ward and the appellant fighting. Once again, Hayes had the upper hand. Instead of getting out of his vehicle to help his brother, the appellant drove his truck towards both men. The road surface was snow covered and icy. The appellant accelerated, then applied the brakes. The truck fishtailed, struck Hayes and crushed him against the wall. Then the appellant backed up. He got out of the truck and walked over towards Hayes. He then left the area without offering any assistance to Hayes. He was arrested several days later in Thunder Bay.

[10] The appellant neither testified nor called any witnesses at trial.

The Positions of Counsel at Trial

[11] At trial, Crown counsel contended that the appellant intentionally drove into Hayes, intending to kill him or intending to cause him bodily harm that the appellant knew would likely cause Hayes’ death and was reckless whether Hayes lived or died. The Crown alleged that the appellant had a motive to kill Hayes because Hayes had “ratted him out” to the police.

[12] The trial Crown (not Mr. Leibovich) also advanced an alternative argument, one that, if accepted, would have yielded a verdict of manslaughter grounded on the unlawful act of dangerous operation of a motor vehicle. To rebut any claim of accident advanced by the appellant, the trial Crown relied upon the appellant’s failure to seek assistance for Hayes and his flight from the scene as evidence of after-the-fact conduct to rebut the claim of accident and demonstrate the culpable nature of the appellant’s conduct.

[13] Trial counsel for the appellant (not Mr. Breen) advanced a defence of “accident” that he submitted warranted a finding of not guilty. This was so despite a concession by co-counsel that accident in the course of an unlawful act of dangerous operation that caused death yielded a verdict of manslaughter, not an unqualified acquittal.

The Grounds of Appeal

[14] On the appeal from conviction, the appellant says that the trial judge made errors in his instructions to the jury;

i) on the defence of “accident”;

ii) on the use jurors can make of evidence of after-the-fact conduct; and

iii) on his description of the fault element in murder.

Analysis

[15] In our view the charge to the jury, informed by the position trial counsel for the appellant advanced in his closing address, did not adequately equip the jury to determine the nature and extent of the appellant’s liability for the death of Scott Hayes. In the end, there was no realistic prospect of a not guilty verdict based on accident. What the jury was required to decide in this case was whether this unlawful killing was murder, as the Crown alleged in the indictment, or manslaughter.

[16] In the criminal law, the term “accident” is used in two senses: an unintended act and an unintended consequence. The former relates to the conduct or actus reus element of an offence, the latter to the fault or mens rea element. In this case, there were two unlawful acts upon which the Crown relied:

i) assault, intentionally applying force to Hayes by striking him with a truck; and

ii) dangerous operation of a motor vehicle.

An assertion of accident was not applicable in the same way to both and could not realistically have led to an unqualified acquittal as sought by trial counsel in his closing address. The failure of the trial judge to make clear the role of accident constituted non-direction amounting to misdirection in the circumstances of this case.

[17] The error in connection with accident did not stand alone. It was compounded by an error with respect to the manner in which the jury were told they could use evidence of after-the-fact conduct in connection with the claim of accident and a further error in description of the fault element required to be proven in order to find that an unlawful killing amounted to murder.

[18] In combination, these errors tended to deflect the jury’s attention from the critical issue in the case and compromised their informed determination of whether the Crown had established the fault element required for conviction of second degree murder with the degree of certainty required in a criminal case.

Conclusion

[19] In the result, we are satisfied that, although the appellant was not properly convicted of second degree murder, he was properly convicted of manslaughter. Accordingly, we invoke the provisions of ss. 686(1)(b)(i) and 686(3) of the Criminal Code and dismiss the appeal from conviction and substitute a conviction of manslaughter in place of the conviction of second degree murder entered at trial.

[20] The parties invite us to impose a sentence warranted in law with respect to the conviction for manslaughter. They suggest a sentence of time served – approximately 7 years. We are satisfied that such a sentence would give effect to the governing principles of sentencing and would not bring the administration of justice into disrepute.

[21] For these reasons, we dismiss the appeal from conviction, substitute a conviction of manslaughter in place of that of second degree murder and impose a sentence of time served, which we consider the functional equivalent of a sentence of imprisonment of 7 years.

“R.G. Juriansz J.A.”

“David Watt J.A.”

“L.B. Roberts J.A.”