CRIMINAL PROCEDURE - Trial judge's duties - Charge or directions - Evidence of witnesses - Intent

Appeal by the accused, Kelsie, from convictions for first degree murder and conspiracy to commit murder. The victim, Simmons, was shot twice in an apartment lobby. He died from his wounds approximately eight hours later. Two witnesses heard gunshots. One witness heard the apartment back door slam. Another witness saw a man with a particular jacket and ponytail walk abruptly away from the apartment. The parties accepted that the man observed by the witness was Gareau. Gareau was involved with two individuals, Potts and Derry, in a criminal lifestyle that included fraud, drug use and drug trafficking. The handgun used in the shooting was traced to Potts and Derry. The accused delivered drugs and collected money for their drug trafficking operation. The victim had prior negative dealings with a Hells Angel, Smith, who reportedly supplied Potts and Derry with drugs for resale. The Crown alleged that Smith ordered the victim killed, and that Derry and Gareau planned the killing. The Crown alleged that the accused was chosen as the shooter en route to the shooting. The accused and Gareau were arrested following an extensive investigation that included intercepted conversations. The accused denied the shooting to police. Derry and Potts were Crown witnesses with federal immunity based on prior and ongoing cooperation with police. The accused was tried by a judge sitting with a jury. He appealed the ensuing conviction.

HELD: Appeal allowed. Derry and Potts offered circumstantial evidence regarding the accused's possession of the gun before and after the shooting, and his subsequent admission of being the shooter. They did not witness the shooting. Given the accused's statement to police that the gun had been transferred from the accused to Gareau immediately prior to the shooting, the trial judge failed to properly instruct the jury on the mental element, namely the accused's knowledge of Gareau's role in planning the killing, required to find the accused liable for first degree murder as a party to the shooting rather than as the principal. Given the unsavoury nature of the Crown's witnesses, the curative proviso was not available to sustain the conviction. Moreover, given the trial judge's failure to leave the lesser included offence of manslaughter with the jury, it was not possible to substitute a verdict of conviction for second degree murder. Given that Derry was not charged as a conspirator or named as an unindicted co-conspirator, there was no admissible evidence implicating the accused in any conspiracy to murder the victim prior to the drive to the shooting scene. A new trial was ordered on both counts.

R. v. Kelsie, [2017] N.S.J. No. 467, Nova Scotia Court of Appeal, D.P.S. Farrar, C.A. Bourgeois and E. Van den Eynden JJ.A., December 8, 2017. Digest No. TLD-December182017003