Date: 20091215

Docket: 146111

Registry: Victoria

Regina

v.

Gregory Brotherston, Kenneth Stewart Brotherston
and Kenneth Robert David Brotherston

Before: The Honourable Madam Justice Dillon

Reasons for Judgment
on Application for Directed Verdict

[1] Gregory Brotherston (Gregory) and Kenneth Robert David Brotherston (Kenneth Jn.) are charged with second degree murder in the death of Keith Taylor on May 30, 2008. Both brought motions for a directed verdict following the close of the Crown’s case. Also charged is Kenneth Stewart Brotherston (Kenneth Sn.), who elected to call evidence. The Court directed that the decision on application for a directed verdict would be made following the close of the case for Kenneth Sn. At that time, the Court dismissed the application with reasons to follow. These are those reasons.

Summary of Kenneth Jn.’s position

[2] Kenneth Jn. submits that there is no evidence that he aided or abetted Kenneth Sn. in the choking of Taylor that ultimately led to his death. While Kenneth Jn. concedes that there is some direct evidence that his acts in preventing other parties from intervening in the struggle between his father and Taylor when the choking occurred may have had the effect of assisting Kenneth Sn. in choking Taylor, he submits that he did not possess the requisite mental element to aid or abet in Taylor’s murder. There is no evidence upon which the Crown can prove beyond a reasonable doubt that Kenneth Jn. foresaw that his father had the intention to cause Taylor bodily harm that was likely to kill him, nor that Kenneth Jn. engaged in the acts for the express purpose of aiding his father in carrying out such an intention.

Summary of Gregory’s position

[3] Gregory submits that there is no evidence of the required mens rea or the actus reus to suggest that he aided or abetted in any way the choking act that led to Taylor’s death. His mere presence is insufficient. At most, the evidence suggests that Gregory aided Kenneth Sn. in the commission of an assault in the first struggle between Kenneth Sn. and Taylor, before the lethal choking. There is no evidence that Gregory participated in the second struggle at the top of the stairs where the choking that caused death occurred. As to intent, Gregory submits that there is no evidence upon which to infer that he knew that Kenneth Sn. intended to kill Taylor. The evidence merely suggests that Gregory entered the first altercation between Kenneth Sn. and Taylor to assist his father in taking Taylor’s gun away from him and resist his assaultive behavior.

Summary of Crown’s position

[4] The Crown submits that Taylor’s death was a joint enterprise of all three accused. The Crown submits that the actions of each of Gregory and Kenneth Jn., whether or not they actually diagnostically killed Taylor, were a substantial and integral component to the killing. While there is no direct evidence that either participated in the lethal act of choking Taylor, both Gregory and Kenneth Jn. assaulted Taylor before and after the choking. Moreover, both sons acted to prevent any persons from coming to Taylor’s aid during the struggle between Kenneth Sn. and Taylor when the choking occurred. The Crown submits that evidence of all the surrounding circumstances of Gregory’s and Kenneth Jn.’s attendance that day shows that each either meant to cause the death of Taylor or meant to cause bodily harm that each knew was likely to cause death and was reckless whether or not the bodily harm caused death. This includes evidence of animus, the manner of attendance at 3351 Betula Place, and participation in the assaults. The required intent can be inferred from the evidence.

Test for a Directed Verdict

[5] All parties agree on the test for a directed verdict. The test is whether there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty (R. v. Charemski, [1998] 1 S.C.R. 679 at para. 2, 123 C.C.C. (3d) 225, [1998] S.C.J. No. 23 [Charemski]; R. v. Arcuri, [2001] 2 S.C.R. 828 at para. 21, 157 C.C.C. (3d) 21 [Arcuri]). Where circumstantial evidence is involved, the judge may engage in a limited weighing of the evidence and assess whether it is reasonably capable of supporting the inferences that the Crown seeks (Arcuri at para. 23). This does not involve consideration of the inherent reliability of the evidence itself (Arcuri at para. 30). Proof of an essential element can be achieved through inferential reasoning (Charemski at paras. 6-11). However, any inferences relied upon to infer guilt must be both reasonable and reasonably based upon the evidence (R. v. Munoz, 86 O. R. (3d) 134 at paras. 22 and 31, [2006] O.J. No. 446 (Sup. Ct. J.); Charemski at para. 32).

[6] In deciding whether there is some evidence upon which a properly instructed jury could reasonably convict, a trial judge must take the case for the Crown at its highest and, in doing so, must resolve competing permissible inferences in favour of the Crown (R. v. Masterson, 2008 ONCA 481 at para. 6, [2008] O.J. No. 2382, [Masterson]). The evidence must be assessed in the context of the case as a whole and not on a piecemeal basis (Masterson at para. 8).

Law on Party Liability for Murder

[7] The elements of the crime of second degree murder which are at issue here are, for Gregory, whether he engaged in acts or conduct that caused Taylor’s death and whether he had the requisite mens rea. For Kenneth Jn., the question relates only to mens rea.

[8] Gregory argued that there is no evidence that he did any act or was a party to any act that caused the fatal injury because the cause of death was mechanical asphyxia due to external compression of the neck, or choking, and because all of the other superficial blunt force injuries suffered by the deceased would not have caused death. Although it is conceded that Gregory was involved in the first struggle by a sawhorse, it is argued that he did not participate and his conduct was not causative of the death by choking. In so arguing, Gregory seeks to isolate the choking in the course of the struggle and so insulate himself from conduct causing death. While the evidence relating to this will be considered below, as a matter of law, I conclude that the act of choking cannot be isolated from the general assault carried out on Taylor.

[9] In R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, the Supreme Court of Canada addressed the threshold test of causation that must be met before an accused may be held legally responsible for causing a victim’s death in a charge of second degree murder. The majority and the minority in that case were unanimous in identifying the applicable causation standard  for all forms of homicide as being “a contributing cause beyond de minimis”, or, to avoid the Latin phrase, “a contributing cause that is not trivial or insignificant”: Smithers v. The Queen, [1978] 1 S.C.R. 506. Nette highlights the causation issues that tend to arise in homicides involving multiple parties. The Court stated at para. 63 that s. 21 of the Criminal Code permits the attribution of criminal responsibility to an individual who aided or abetted another in the commission of an offence, and that the law of parties provides that individuals may bear criminal responsibility for the acts of another, including murder. The Court also stated that it is unnecessary to engage in fine distinctions as to the degree of participation of the various perpetrators in the killing. Accordingly, to be convicted of second degree murder, the Crown must establish that the accused has committed an act or series of acts which are of such a nature that they contributed to the victim’s death in a manner that is not trivial or insignificant. At para. 47, the Court noted that the starting point in the chain of causation which seeks to attribute the prohibited consequences to an act of the accused is usually an unlawful act in itself. When that unlawful act is combined with the requisite mental element for the offence charged, causation is generally not an issue. It is necessary, then, that the Crown show that the accused possessed the required mental element for the offence charged.

[10] R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, [2000] S.C.J. No. 16, involved a 20 to 30 second attack by the accused and one other on the victim in which the fight was started by the other and Biniaris entered the fray. There was evidence that the accused kicked the deceased and jumped on his head. Ultimately, the pathology determined that the cause of death was from brain injury sustained when the other person caused the victim to strike his head on the pavement. Nonetheless, the accused was held liable for the death of the victim. The Court said at para. 47 that “it was clearly reasonable for the jury to conclude that the [accused] had, through words and actions which encouraged and assisted [the other], participated in an interrelated chain of events which ultimately led to [the victim’s] death.”

[11] In R. v. Rojas, 2006 BCCA 193, 208 C.C.C. (3d) 13, [2006] B.C.J. No. 870, [Rojas], it was not necessary to determine who administered the lethal blow, in that case, strangulation by coat hanger, when there had been many blows to the deceased and both accused participated in the attack on the victim. Ryan J.A. for the court said at para. 51:

51    Finally, it must also be said that, conceptually at least, where two or more persons physically attack a victim, their liability may be grounded on any or all of s. 21(1)(a) and s. 21(1)(b) or (c). Where two or more persons participate in an attack that results in the death of another it is not wrong to say that the two through their blows not only caused the death of the victim, but, through their blows assisted each other in doing so. This issue was mooted recently in R. v. H.(L.I.) (2003), 176 C.C.C. (3d) 526 (Man. C.A.).

[Emphasis in original.]

[12] Although there was ambiguity in the specific role that each accused played in the crime, the court said at para. 62:

62    ...the jury might conclude that it could not say conclusively what role each played in the killing, but whichever it was – that both physically attacked Bahamonde or just one delivered the blows while the other rendered assistance – both were equally guilty of murder.

[13] It is clear that mere presence at the scene is not a sufficient basis for a finding of party liability (R. v. Dunlop, [1979] 2 S.C.R. 881, [1979] S.C.J. No. 75 [Dunlop]; R. v. Davy, [2000] O.J. No. 3519, 137 O.A.C. 53 (C.A.)).

[14] It is within this legal context that Gregory’s actions must be considered.

[15] Both Gregory and Kenneth Jn. argued that there was no evidence that either had the mens rea for second degree murder. For an accused to be convicted of aiding or abetting a murder, his intent must be the same as that required for the person who actually does the killing (R. v. Kirkness, [1990] 3 S.C.R. 74, 60 C.C.C. (3d) 97 at 127 [Kirkness]; R. v. Yu, [1998] B.C.J. No. 113 at para. 23, 102 B.C.A.C. 265, 122 C.C.C. (3d) 353 [Yu]). This means that the person aiding or abetting a murder must intend to cause death or intend to cause grievous bodily harm that the person knew was likely to cause death and was reckless whether death ensued. The accused as well as the principal must personally, subjectively know and intend that the death of the victim would ensue (Yu at para. 25). There must be evidence from which it can be inferred that the accused knew that the perpetrator may have intended or did intend to kill the victim (Dunlop at 110; R. v. Maciel, 2007 ONCA 196 at para. 88, 219 C.C.C. (3d) 516, [2007] O.J. No. 1034 [Maciel]). If the alleged party knew only that the perpetrator intended harm short of death, the party can be guilty at most of manslaughter (Kirkness at paras. 38-41; R. v. Jackson, [1993] 4 S.C.R. 573, [1993] S.C.J. No. 134 at paras. 17-18). The accused must intend that his actions aid in the commission of murder, although he need not know all of the details of the crime committed (R. v. Roach, 192 C.C.C. (3d) 557, [2004] O.J. No. 2566 at para. 44 (C.A.); Maciel at para. 88). Although it has been established that knowledge will include actual knowledge or willful blindness, the issue of whether willful blindness can constitute knowledge required to establish the mens rea for aiding and abetting murder is presently before the Supreme Court of Canada (R. v. Briscoe, 2008 ABCA 327, leave to appeal to S.C.C. granted [2008] S.C.C.A. No. 503).

[16] Intention can be inferred from the evidence. Intent can be derived from all of the accused’s actions. In Biniaris at para. 49, the Court held:

49    ... There was evidence upon which the jury could reasonably find that the respondent had administered one or more kicks to Niven, including the glancing blow to the face; and to accept the Crown's contention that the respondent had "changed gears" when he moved from kicking to stomping and that, in so doing, he "obviously intended deadly harm". In the same way, it was not unreasonable for the jury to conclude that in deciding to stomp, not once but twice, on Niven's head, the respondent's purposive, deliberate and intentional conduct, which involved the repeated use of violence against a defenceless man, established that he intended to cause Niven bodily harm which he must have known was likely to cause death, being reckless as to whether or not death ensued. As indicated earlier, in light of his responsibility as a party, the fact that the specific blows inflicted by the respondent were not the ones which were the immediate cause of death was of no significance.

[17] Intent was inferred from conduct such as holding the legs of the victim while another stabbed the victim to death (R. v. Harbottle, [1993] 3 S.C.R. 306, [1993] S.C.J. No. 58) or participating in a continued enterprise to assault and confine a person, rendering that person helpless to the assault which ultimately kills him (Rojas; R. v. Brown, 2006 BCCA 326, [2006] B.C.J. No. 1453). In Charemski at para. 7, the Court considered that intent to kill could be inferred from evidence of animus and motive.

Application to the Evidence

(a) Gregory

[18] With respect to conduct, there is evidence that Gregory went to 3351 Betula Place on May 30, 2008 with Kenneth Sn. and Kenneth Jn. There is evidence that Gregory had a fight with Taylor six to eight months earlier when threats were also made by Taylor against his grandmother.  Evidence suggested that Gregory had punched Taylor in the face in February 2008 at a gas station in an apparent unprovoked attack. Gregory and Kenneth Jn. were both addicted to crack cocaine.  Gregory would have known that Taylor was a crack addict and that 3351 Betula Place was a known crack house. From the evidence of Kenneth Sn., it could be inferred that Gregory knew that a purpose for attending there had to do with Taylor’s demand for payment of money from the Brotherstons for the loss of his crack cocaine drug business during the time that he spent in jail, for which he specifically blamed Gregory. From evidence relating to Kenneth Jn. and evidence that he and Gregory drove together to meet with Taylor, it could be inferred that Kenneth Jn. would have told Gregory that Taylor had threatened Kenneth Jn. with a gun earlier in the day when he demanded payment. Devon Daughtry (Daughtry), James Reuter (Reuter), Al Arsenault (Arsenault), Harold Fairchild (Fairchild), Andrea Olson (Olson) and Kenneth Sn. all testified that Gregory remained near the truck in the driveway while Kenneth Sn. and Kenneth Jn. walked towards the house. Olson said that Gregory told the others that Taylor had gone out the back, meaning to the backyard of the house.

[19] By all accounts, a fight ensued between Kenneth Sn. and Taylor in which Kenneth Sn. struck Taylor and then fell on top of him to the ground, continuing to fight and struggle on the ground. Fairchild and Kenneth Sn. said that Taylor had pointed a gun at him and Kenneth Jn.  A struggle for the gun ensued with Kenneth Sn. fighting and struggling, repeatedly punching Taylor while on top of him. While there is no evidence as to exactly when Gregory arrived in the course of these events, there is evidence that Gregory was yelling at someone while he was in the backyard area where Taylor and Kenneth Sn. were fighting on the ground.  Daughtry testified that she saw Gregory standing to the right of his father on the ground, kicking Taylor. She was not certain that any kicks landed. She said that Gregory told her to stay out of the way. Daughtry, however, tried to jump on Kenneth Sn.’s back, perhaps three or four times. She said that Gregory kicked her from behind and she flew into the doorframe of the house. She later heard Gregory say “tie him up.”

[20] Olson said that Gregory kicked and punched Taylor while he was on the ground and that she too jumped onto Kenneth Sn.’s back. Arsenault testified that Gregory and Kenneth Jn. pulled Daughtry and Olson from Kenneth Sn.’s back. Kenneth Sn. testified that Gregory punched Taylor and then struggled with him to get the gun out of Taylor’s hand. Then, Kenneth Sn. choked Taylor and he passed out briefly. Gregory’s preventing others from intervening in the struggle could have had the effect of assisting Kenneth Sn. to choke Taylor.

[21] The fight then continued at the top of the stairs in the backyard near the back door. Blood near the back door and on the cement wall confirms that the fight continued there. Kenneth Sn. said that Taylor charged at him with a knife and he rammed Taylor into the cement wall. The fight continued until Kenneth Sn. choked him again, only harder and longer. He then pushed him down the stairs. He did not know where Gregory was. However, it could be inferred that Gregory continued to participate because Arsenault said that he saw Gregory at the back door of the house and then assumed that they dragged Taylor down the stairs, because he next saw the three Brotherstons drag Taylor down the driveway to the truck. Olson said that she heard scuffling along the back wall of the house which would be near the back stairs and heard Gregory say “…he shit himself.”  She assumed that they were going down the back stairs. Others also saw Gregory on the driveway, dragging Taylor to the truck. Olson said that Gregory and Kenneth Sn. threw Taylor face first onto plywood lying on the driveway and were tying his hands and feet behind his back. All three Brotherstons then left in the truck.

[22] It is a reasonable inference from these circumstances that the assault on Taylor continued to the driveway and that Gregory continued to participate. From evidence of 911 calls and the time of Kenneth Sn.’s arrival at the Westshore RCMP detachment, one could conclude that this struggle lasted about five minutes. Gregory fled from the truck before Kenneth Sn. arrived at the police station.

[23] Taylor had no injuries before this event, but had multiple blunt force trauma injuries over most of his body afterwards, plus lacerations and abrasions suggestive of dragging. There were patterned injuries on his head and neck area consistent with and suggestive of having been caused by footwear. At least one patterned injury was found on each side of Taylor’s head. Expert evidence suggested that the injuries may have been caused by footwear from one or more than one person. The blunt force trauma injuries were not sufficient to cause death. The pathologist testified that Taylor died from mechanical asphyxia as a result of external compression of the neck.

[24] In addition to the evidence that Gregory participated in the fight that led to Taylor’s death, there is also evidence of animus towards Taylor because Gregory had made allegations against Taylor concerning an assault causing bodily harm that resulted in Taylor’s arrest and detention in 2007. There was a continuing history of assaults between them with a fight in late 2007 and Gregory punching Taylor at a gas station early in 2008. There is also evidence of motive with the knowledge of the demand for payment of money and the threat made by Taylor that caused the Brotherstons to attend at 3351 Betula Place that evening. From this it could reasonably be inferred that Gregory intended to end matters once and for all with Taylor. When Gregory went there with his brother and father, there was a warrant out for the arrest of both he and his brother, and his brother was under a restraining order to have no contact with Gregory. The three attending together in defiance of those orders could reasonably be inferred as a show of force. The circumstances reasonably suggest that they were there to confront Taylor and to teach him a lesson.

[25] From this conduct of active involvement in the beating of Taylor and preventing others from coming to his aid, and from the evidence of animus and motive, a jury properly instructed could infer the necessary actus reus and mental state for Gregory’s aiding or abetting murder.

(b) Kenneth Jn.

[26] Kenneth Jn. attended at 3351 Betula Place on May 30, 2008 in the circumstances described above. Kenneth Jn. would have known that Taylor was a crack cocaine addict and that 3351 Betula Place was a known crack house because he had attended there that afternoon and met with Taylor. From evidence of Taylor’s consumption of crack cocaine that day and of Kenneth Jn.’s addiction to crack cocaine himself, Kenneth would have known that Taylor was high on crack at the time the Brotherstons arrived. There is evidence that Taylor had put a gun to Kenneth Jn.’s head that afternoon and that a loud argument had ensued between them. Taylor demanded $100,000 from the Brotherstons for the loss of his crack cocaine drug business during the time that he spent in jail. He told Kenneth Jn. to get his father and brother to come back to 3351 Betula Place.  It can be inferred that Kenneth Jn. knew about the history between Gregory and Taylor due to their common involvement in the local crack cocaine drug world. In these circumstances, Kenneth Jn. went into the backyard of 3351 Betula Place to meet with Taylor. It could reasonably be inferred that he intended to confront Taylor.

[27] There is evidence that Taylor pointed a gun at Kenneth Jn. as he came up the stairs to the backyard, following Kenneth Sn. Taylor yelled at him to “get the fuck out of here.”  Kenneth Jn. stood still and did not leave. He was seen on the stairs to the backyard, near the fence at the back door, and in the backyard bushes. Daughtry said that after Kenneth Sn. threw the first punch at Taylor and they fell fighting to the ground, Kenneth Jn. stood on one side of Taylor and Gregory on the other. Kenneth Jn. was kicking at Taylor. Olson said that Kenneth Jn. kicked and punched Taylor. She said that he was pointing and waving the gun, telling people to stay back and punching and kicking Taylor from the right. Daughtry said that Kenneth Jn. put a gun to her face, told her to back off, and kicked her in the mouth as Gregory kicked her from behind and she fell into the door frame. Arsenault said that Kenneth Jn. threw Daughtry and Olson off of Kenneth Sn. and that Kenneth Jn. chased him and hit him on the back of the head. Olson said that Kenneth Jn. punched her in the face with his fist and hit her on the back of the neck and knee.

[28] Arsenault saw Kenneth Jn. near the back door of the house and assumed that he had helped drag Taylor down the back stairs. He said that he saw Kenneth Jn. drag Taylor down the driveway to the truck. Daughtry said that Kenneth Jn. was on the driveway with Taylor and that they tied Taylor’s arms and legs behind his back. Olson said that she saw Kenneth Jn. with a gun in his hand in the house riffling through drawers in the bedroom where he had met with Taylor earlier that day. She did not see Kenneth Jn. drag Taylor down the driveway.

[29] From the evidence of blood stains near the back stairs and the evidence of sounds coming from that area, it could be inferred that Taylor was thrown down the back stairs towards the driveway where Kenneth Jn. was seen by at least some witnesses to drag Taylor to the truck. By this time, Taylor’s shirt was bloodied and torn and he would have been bleeding from a laceration to his face. Given Kenneth Jn.’s participation in the fight in the backyard and evidence of his actively preventing anyone from helping Taylor, it would be reasonable to infer that his participation continued in the short time before Taylor was put into the truck and all three Brotherstons left the scene. Kenneth Sn. drove immediately to the Westshore police detachment, but Kenneth Jn. fled from the car before arriving there.

[30] From this conduct of active involvement in the beating of Taylor and preventing others from coming to his aid, and given the evidence of animus and motive, a jury properly instructed could infer that Kenneth Jn. had the requisite mental state for murder.

Conclusion

[31] I agree with the Crown’s submission that a jury properly instructed could reasonably take the view that both Gregory and Kenneth Jn. were active participants in a concerted effort to confront Taylor and inflict grievous injury with intent at some point during the assault to cause grievous bodily harm that each knew was likely to cause death, and that they were reckless as to whether or not death ensued. The applications for a directed verdict are, therefore, dismissed.

“J. Dillon, J.”

The Honourable Madam Justice Dillon