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HOMICIDE - Second degree murder - Mens rea

Wednesday, October 02, 2019 @ 6:12 AM  


Lexis Advance® Quicklaw®
Appeal by the accused, Shevalev, from a conviction for second degree murder. The accused, 19 years old, lived with his mother but had access to his father's bank account. The accused transferred $105,400 from his father's account to buy a Ferrari. The father was angry and wanted the accused to return the vehicle. A friend of the accused testified for the Crown under an immunity agreement. The friend described a heated argument between the accused and his father at the father’s condominium. The friend heard a physical altercation commence in a separate room and witnessed the accused apply a chokehold to the father until the father lost consciousness. The friend helped the accused move the father to a bed and left the apartment. The accused testified that the altercation was initiated by his father, who spat in his face and kneed him in the groin, and that he grasped his father from behind, unaware that he was choking him. He testified that he believed his father fainted, that he moved him to the bed to ensure he was comfortable, and that his father was breathing when he left the condominium. A forensic pathologist testified that the father's death resulted from substantial external pressure to his neck. During deliberations, the jury sought clarification on whether the accused's intent and his continuing conduct was confined to the chokehold itself, or extended to the events before and after the chokehold. The trial judge responded that criminal intent need not be continued throughout a transaction comprised of a series of wrongful acts that resulted in death. Following further deliberation, the jury returned a guilty verdict. The accused appealed.

HELD: Appeal allowed. The chokehold was the start and end of the actus reus of the offence. Accordingly, the jury had to be satisfied that the accused had the requisite intent when the chokehold was applied. Otherwise, the accused was entitled to an acquittal, regardless of the events that transpired after the chokehold. The trial judge's answer to the question regarding the timeframe for mens rea was incorrect, as it expanded the timeframe and invited the jury to consider what happened afterwards. Nothing that occurred subsequent to the chokehold contributed to the father's death. The use of "wrongful act" wording in the trial judge's answer was problematic, as it opened the door to consideration of the concurrence issue in relation to conduct that was not part of the actus reus. The conviction was set aside and a new trial was ordered.

R. v. Shevalev, [2019] B.C.J. No. 1527, British Columbia Court of Appeal, S.D. Frankel, D.F. Tysoe and D.C. Harris JJ.A., August 14, 2019. TLD-September302019007