R. v. MacGarvie, Nagy and Wilson, 2017 ONSC 7663

CITATION: R. v. MacGarvie, Nagy and Wilson, 2017 ONSC 7663

COURT FILE NO.: 4403/16

DATE: 20171220

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Bradley MacGarvie, Thomas Nagy and Duran Wilson

BEFORE: The Hon. Mr. Justice Robert B. Reid

COUNSEL: G. Leach, Counsel, for the Crown

R. Charlebois, and M. Peterson, Counsel, for Bradley MacGarvie

G. Walker, Q.C. and B. Walker, Counsel, for Thomas Nagy

J. Goldlist and J. Razaqpur, Counsel, for Duran Wilson

HEARD: August 17, 2017; Oral Ruling given August 18, 2017

ruling on PROVOCATION DEFENCE RE: BRADLEY MACGARVIE

[1] On August 17, 2017, during the pre-charge conference, submissions were received by counsel on behalf of Mr. MacGarvie requesting that the defence of provocation be left with the jury.

[2] When the pre-charge conference reconvened on August 18, 2017, I advised counsel that I did not accede to that request and therefore there would be no instruction on the defence of provocation included in my jury charge.

[3] At the time, I advised counsel that I would deliver reasons for that decision at a later time, perhaps during the jury’s deliberations. Since that opportunity did not present itself prior to the jury’s verdict, I am providing my reasons as set out below.

Background:

[4] Messrs. MacGarvie, Nagy and Wilson were indicted for the first-degree murder of Alexander Fraser. The murder was alleged to have taken place in the early morning hours of December 26, 2014. The theory of the prosecution was that all three accused persons were involved in the abduction of Mr. Fraser from a parking lot on the Niagara Parkway in the Town of Fort Erie following which he was bound and put into a hydro channel in a remote location in the City of Niagara Falls. His body was recovered from the water of the hydro channel on March 17, 2015.

[5] Bradley MacGarvie, Thomas Nagy, and Duran Wilson were friends.

[6] There was evidence of a pre-existing animus between Mr. MacGarvie and Mr. Fraser. The evidence was that Mr. MacGarvie and others assaulted Mr. Fraser in mid-November 2014 in Niagara Falls and instructed him to leave the area. He did not leave as directed.

[7] On the evening of December 25, 2014, the evidence was that Mr. MacGarvie received text messages from an unknown number at around 10:00 or 10:30 p.m. He testified that the texts contained threats to kill him but without saying why or identifying the author of the texts. He did not know what they were talking about, but Carol Acker (who was present) “freaked out”. She revealed that one-and-a-half or two weeks prior, she had overheard a telephone call to Mr. Fraser in which he had arranged for people to come to Niagara Falls to retaliate against Mr. MacGarvie in response to the mid-November assault. It was her impression that if anyone was in the way, they would also get hurt. As a result, she was frightened.

[8] In response to the threatening texts, Mr. MacGarvie, in concert with Victoria Harvey and her mother Ms. Acker, hatched a scheme by which Mr. Fraser would find himself in a remote parking lot known as Gonder’s Flats along the Niagara Parkway.

[9] Ms. Harvey contacted Mr. Fraser. She arranged for him to drive her and Ms. Acker, who was earning money as an escort, ostensibly to an out call for Ms. Acker at a particular address on the Niagara Parkway in Fort Erie located close to Gonder’s Flats, in the early morning hours of December 26, 2014.

[10] After Ms. Acker was dropped off, Ms. Harvey directed Mr. Fraser to Gonder’s Flats as prearranged with Mr. MacGarvie. Prior to Mr. Fraser’s arrival, Mr. Wilson had driven Messrs. MacGarvie and Nagy to the same remote parking lot. They were dropped off. According to Mr. MacGarvie, Mr. Nagy was present to provide “muscle” for Mr. MacGarvie if the threatening friends of Mr. Fraser arrived.

[11] There was no dispute on the facts that Mr. MacGarvie assaulted Mr. Fraser in the parking lot. Mr. Wilson returned in his vehicle. Before returning to the parking lot, Mr. Wilson picked up Ms. Harvey and Ms. Acker. In the parking lot, he then picked up Messrs. MacGarvie, Nagy and Fraser. Mr. Fraser was confined in Mr. Wilson’s vehicle, seated between Messrs. Nagy and MacGarvie and, as Mr. Wilson drove them out of the parking lot, Mr. Fraser’s vehicle was observed bursting into flame.

[12] On the instructions of Mr. MacGarvie, Mr. Nagy, or both of them, Mr. Wilson then drove the group for about 20 minutes to another remote location, this time along the Chippawa Parkway in Niagara Falls. He was directed to stop in a wooded location near railroad tracks and the Welland River. During that drive, there was evidence that Mr. Fraser was assaulted, at least by Mr. MacGarvie, and that he expressed fear for his life.

[13] Messrs. MacGarvie, Nagy and Fraser got out of the vehicle and on undisputed evidence, Mr. Fraser went into the woods along a path with Mr. MacGarvie. Mr. Fraser’s hands were apparently bound behind his back and there was duct tape over his eyes. There was a dispute on the evidence about whether Mr. Nagy accompanied them. Mr. MacGarvie testified that he and Mr. Fraser went into the woods alone.

[14] The path led to and along a fence, and from there to the railroad tracks. A short distance along the tracks was a railroad bridge over the Welland River. The river led directly into the hydro channel by which water flows to the Sir Adam Beck generating station in Niagara Falls.

[15] Mr. Fraser was not seen again until his body was recovered on March 17, 2015 from the water of the hydro channel near the generating station, with hands and feet bound by nylon zip ties and with some duct tape still around his head.

[16] Mr. MacGarvie testified that he alone bound Mr. Fraser and he alone dumped him into the river after inflicting a beating. I will have more to say about that evidence when I review the evidence of provocation.

The legal issue:

[17] A trial judge is obligated to put to the jury any defence that arises on the facts if there is an evidential foundation for it. The corollary is that a defence which lacks an evidential foundation or air of reality should not be put to a jury. In considering the question, the trial judge must consider the totality of the evidence, assuming that the evidence relied on by the accused is true. If there is an air of reality to a defence, the question of findings of fact, including decisions about the credibility of witnesses and weight to be given to evidence, should be left to the jury. These principles were set out by the Supreme Court of Canada in R. v. Cinous, reported at 2002 SCC 29, [2002] 2 S.C.R. 3. In summary, the question is whether there is evidence upon which a properly instructed jury, acting reasonably, could acquit if the evidence is believed.

[18] As to the defence of provocation, and whether there is an air of reality to it in any particular case, some limited weighing of the evidence is appropriate. The defence of provocation must be left with a jury when on the totality of the evidence there is a basis upon which a reasonable jury could have a reasonable doubt in respect of each of the constituent elements of the defence. The evidence, at a minimum, must support inferences that would be necessary to provide reasonable doubt as to those constituent elements.

The provocation defence:

[19] The partial defence of provocation is set out in s. 232 of the Criminal Code, R.S.C., 1985, c. C-46. The relevant parts of the provision as they apply to this case (and prior to more recent amendments) are as follows:

232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2) A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

[20] There is both an objective and subjective component to provocation. Objectively, and using the “ordinary person” standard, the law recognizes that there is a minimum level of self-control demanded of everyone in the community. Thus, even if an individual was subjectively provoked by an insult or wrongful act but an ordinary person would not have lost control and acted “on the sudden”, in those circumstances, there is no defence.

Evidence of provocation:

[21] Mr. MacGarvie provided the only testimony concerning provocatory words from Alexander Fraser. There were no alleged provocatory actions.

[22] He testified that prior to exiting the vehicle with Mr. Fraser on the Chippawa Parkway and prior to entering the woods with Mr. Fraser, Mr. MacGarvie had no intention to kill or even hurt Mr. Fraser.

[23] His evidence was that, after telling Mr. Fraser to walk to the path, he yelled at him, questioning him about who Mr. Fraser had arranged to come to harm Mr. MacGarvie and when. Mr. MacGarvie wanted to know what he was up against. Mr. MacGarvie testified that Mr. Fraser gave the name of “Harley” or “Harvey” and added: “It’s too late now. They’re coming to Niagara. They’re going to find me and when they do, I hope they kill you and your family for what you did to me in November and for what you’re doing to me right now.” Mr. MacGarvie said his reaction was to lose all train of thought. He said he lost control, snapped, and just started hitting Mr. Fraser in the face. He said that when he stopped, he stepped back and Mr. Fraser had fallen face first onto the ground. After lifting the duct tape from Mr. Fraser’s eyes, Mr. MacGarvie concluded that Mr. Fraser was dead.

Application of law to the facts:

Was there evidence that Mr. MacGarvie acted in response to the provocation on the sudden before there was time for his passion to cool?

[24] The only direct evidence supportive of the subjective component of the provocation defence came from the testimony of Mr. MacGarvie as to his state of mind and reaction to hearing that Mr. Fraser’s contacts were coming to Niagara and that Mr. Fraser hoped that they would kill Mr. MacGarvie and his family.

[25] As noted, there was prior evidence of the existing animus between Mr. MacGarvie and Mr. Fraser from several witnesses. There was evidence of the anonymous texts on December 25 given by Mr. MacGarvie and Ms. Acker. The prior conversation between Mr. Fraser and an unknown contact overheard by Ms. Acker helps explain her reaction to the December 25 texts. As well, there was evidence from Jamie Ogden, a friend of Mr. Fraser from Sarnia, to the effect that Mr. Fraser had called and discussed being beaten up by Mr. MacGarvie and that Mr. Fraser requested assistance. He testified that he agreed to come with two “bouncer” friends to Niagara Falls for New Year’s Eve to be seen with Mr. Fraser as a form of protection for Mr. Fraser but also as a means of intimidation to Mr. MacGarvie.

[26] The meticulous planning of the fake out call, the execution of that plan, the assault on Mr. Fraser, his subsequent confinement, and the direction by Mr. MacGarvie to a remote location near the railroad bridge over the Welland River all belie the likelihood that subjectively the comments made by Mr. Fraser to Mr. MacGarvie constituted a wrongful act or an insult of such a nature as to be sufficient to deprive him of the power of self-control and that he acted on it “on the sudden” and before there was time for his passion to cool.

[27] However, it is possible that a reasonable jury could have a reasonable doubt as to the subjective element of provocation. As such, and regardless of the strength of the evidence or the credibility of the witnesses, it is a matter for the jury to decide whether to give effect to provocation, as to the subjective requirement, based on the totality of the evidence.

Was there evidence of the wrongful act or insult capable of depriving the ordinary person of self-control?

[28] The ordinary person, for the purpose of this inquiry, was described in R. v. Thiebert, reported at 1996 249 (SCC), [1996] 1 S.C.R. 37 at para. 18 as follows:

The “ordinary person” must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused.

[29] Mr. MacGarvie is obviously a male. He was approximately 26 years of age at the time. He had a background in mixed martial arts and during his fighting career was known as “Hollywood”. It was clear from the uncontradicted evidence of many witnesses that Mr. MacGarvie occupied a leadership role amongst his peers. He was no “shrinking violet”.

[30] The threatening comments allegedly made by Mr. Fraser were essentially duplicative of the anonymous texts received by Mr. MacGarvie on the evening of December 25 and which led to the plan to lure Mr Fraser to Gonder’s Flats. I do not consider that the additional reference to “family” adds significantly to the prior threat which, according to the information conveyed to him by Ms. Acker, included the potential for others around him to be hurt. It is untenable to consider that the comments made by Mr. Fraser in response to Mr. MacGarvie’s query would have caused a reasonable person to lose the power of self-control and act “on the sudden”.

[31] The context of the threatening comments is also important to note. Mr. Fraser had been assaulted by Mr. MacGarvie at Gonder’s Flats. Mr. Nagy’s presence had been requested to provide “muscle” if needed, but no one else did appear in support of Mr. Fraser, nor was there any reasonable expectation for reinforcements to arrive in aid of Mr. Fraser given that the group had left Gonder’s Flats and driven to another remote area. His car had been incinerated.

[32] Mr. MacGarvie and Mr. Nagy forcibly confined Mr. Fraser in the vehicle during the trip between Gonder’s Flats and the Chippawa Parkway for about 20 minutes. His hands appear to have been bound. He was blindfolded with duct tape. Mr. Fraser was completely under the physical control of Mr. MacGarvie when, according to Mr. MacGarvie, they went to the woods together prior to the threatening comments being made by Mr. Fraser.

[33] On a policy basis, and as set out by the Supreme Court of Canada in R. v. Tran, reported at 2010 SCC 58, [2010] 3 S.C.R. 350 at para. 30, the ordinary person standard seeks to ensure that only “behaviour which comports with contemporary society’s norms and values will attract the law’s compassion”.

[34] I acknowledge the admonition in R. v. Pappas, reported at 2013 SCC 56, [2013] 3 S.C.R. 452 at para. 33 to the effect that: “[W]hat would suffice to cause an ordinary person to lose self-control is a question of degree that the jury is well-placed to decide, and one which, in case of doubt, should be left to the jury.” However, in this case, I see no basis upon which a reasonable jury could have a reasonable doubt in respect of the objective basis required for provocation. This is not a case of doubt. The evidence does not support any reasonable inferences that would be necessary to provide reasonable doubt as to that constituent element.

[35] Based on the foregoing, I determined that the defence of provocation should not be left with the jury. However, I did agree to make reference in my final instructions to the fact that Mr. MacGarvie’s testimony as to his sudden or instinctive actions, and his anger or fear arising from Mr. Fraser’s comment, formed part of the constellation of evidence that the jury could consider as to whether or not Mr. MacGarvie had the intent required for murder.

Reid J.

Date: December 20, 2017