• Lewis Waring

Second Degree Murder - Sandra Barkho

Background/Facts:


The accused in R v Moar (“Moar”), a 2021 decision of the Manitoba Court of Queen’s Bench (“the MBQB”), was Storm Moar, who was charged with second degree murder for the death of Adam Martin (“the deceased”). The deceased died on January 1, 2019, from a shotgun wound to his chest at 411 Nairn Avenue in Winnipeg. The MBQB in Moar was satisfied on the evidence that Moar and Moneyas engaged in a physical altercation with the deceased at 411 Nairn on the day of his death. Shane, who lived at 411 Nairn, testified that he saw the deceased, Moar, Moneyas, and Morton (who also lived at the address) in the kitchen on the night in question. Things became tense as the conversation shifted to the money that Moneyas owed the deceased. Shane testified that Moar pulled out the shotgun and, after being told to put the gun away, the deceased picked up Moar by the legs and took him to the backyard where he hit Moar repeatedly. Shane and others also joined the fight and, as Moar and Moneyas were about to leave, the deceased chased them to the front yard and kicked at them from behind. Thirty seconds later, Shane heard shots being fired and later saw the deceased lying on the front yard. The defence did not contest that the fatal shot was fired from the shotgun, where the Deceased’s blood was also found.


Issues:


The first issue was whether Moar caused the deceased’s death, and, if he did, the second issue was whether the death was unlawful, accidental, or a result of Moar acting in self-defence. If the death was unlawful, the third issue was whether Moar had the intent for murder. If he did have the intent for murder, the final issue was whether or not Moar was provoked.


Issue 1: Did Moar Cause the Deceased’s Death?


The main question in this issue was whether Moar fired the shot that killed the deceased. The defence claimed that the fatal shot was inflicted in the backyard, where blood was found as well as a shotgun shell. There was no evidence that the firearm was discharged intentionally in the backyard, and Shane testified that the shot was probably accidental. This was irrelevant, however, because the MBQB concluded that the shot in the backyard did not cause the deceased’s death. Instead, the second shot in the front yard was the fatal one. The pathologist testified that the cause of death was a single gunshot wound on the left side of the body which would have caused serious blood loss. While the deceased could have gotten up and ran to the front yard after being shot in the backyard, there would have been blood coming out of the wound as he moved. However, there was only a small amount of blood found in the backyard and on the sidewalk connecting it to the front yard. It is possible that this was due to the layers of clothing the deceased was wearing, absorbing some of the blood. However, the deceased was found lying on the front yard with a lot of blood surrounding his body and his wound continued to bleed heavily in the ambulance. Further, Shane and Morton were in the backyard during the first shot and neither noticed a large shotgun wound. Morton even stated that he “almost knew” that the deceased was not hit in the backyard. The judge concluded that the only scenario that fit with the physical evidence and eyewitness evidence of Shane and Morton was that the fatal shot was inflicted in the front yard.


The evidence regarding whether Moar had the gun in the front yard was circumstantial based on the testimony of the witnesses as well as after-the-fact evidence of Moar’s conversations in jail where he was bragging about being a shooter and killer. However, Moar also said that he was not the killer. While it is common for shooters to claim their innocence after the fact, it is unusual for someone to admit to shooting and killing someone if they did not do it. Therefore, the judge found that the overall tone of Moar’s admissions was that he was bragging about the shooting of the deceased. Moar’s comments, taken as a whole together with Shane’s evidence and Morton’s statement, supported the findings that Moar was present when the fatal shot was inflicted and that he was the shooter. There was no other logical or reasonable inference that could have been drawn from the circumstantial evidence other than that Moar inflicted the fatal shot.


Issue 2: Did Moar cause the Deceased’s death unlawfully?


At this stage, the Crown was required to prove beyond a reasonable doubt that Moar did not fire the fatal shot accidentally. The defence argued that the fatal shot occurred during the fight in the backyard, which would have likely been found to be accidental. For the shot to be considered accidental, there were two possibilities: either the actus reus was negated because the act was involuntary or the mens rea was negated because the fatal shot was fired unintentionally. Based on the evidence in this case, as mentioned above, the MBQB concluded that the fatal shot was inflicted in the front yard. Thus, there was no basis to conclude that the fatal shot was accidental.


Self Defence:


Since the shot was not accidental, Moar can argue that he was acting in self-defence when he shot the deceased. One of the requirements to prove one acted in self-defence is that they had reasonable belief that force was being used against them. In Moar, Moar reasonably believed that the deceased had used force against himself and Moneyas.


Next, the fatal shot has to have been fired for the purpose of defending oneself. The deceased was a lot taller and stronger than Moar and Moneyas and was also impaired by drug and alcohol use, which can result in increased energy, abilities, and aggression. Thus, the deceased was able to overtake Moar and Moneyas in the front yard fight. Based on those findings, the MBQB was satisfied that Moar inflicted the fatal shot either in defending himself or protecting Moneyas from the use of force by the deceased.


However, when considering whether the shot was reasonable in the circumstances, it is important to consider that Moar and Moneyas outnumbered the deceased and were also armed whereas the deceased was not. Instead of shooting at the deceased, Moar and Moneyas could have continued to fight in self-defence, ask for help, or attempt to run away. The judge found that shooting the deceased was neither reasonable or proportionate in the circumstances and thus, the defence of self-defence must fail.


Did Moar have the requisite intent for murder?


Here, the Crown was required to prove, beyond a reasonable doubt, that Moar either meant to kill the deceased or meant to cause him bodily harm that Moar knew was likely to result in death and that Moar was reckless as to whether the deceased died or not. Since there was no direct evidence, the MBQB relied on after-the-fact evidence of Moar’s conduct and conversations with his friends. When looked at as a whole, the evidence was more consistent with murder rather than manslaughter because Moar’s tone suggested that he intended to cause the deceased bodily harm and he knew the gunshot would likely kill the deceased and was reckless as to whether he died or not. Therefore, the judge was satisfied that Moar had the requisite intent for murder.


Was Moar Provoked?


Section 232 of the Criminal Code (“the Code”) states that culpable homicide may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. The burden is on the Crown to prove that Moar was not acting under provocation when he murdered the deceased. In this case, the deceased had assaulted both Moar and Moneyas and insulted Moar by calling him names. However, the MBQB found that an ordinary person in these circumstances would not lose the power of self-control. Further, provocation does not apply where the accused incited the acts of the victim; since the attack began after Moar took out his gun and threatened to shoot those in the kitchen with it, he incited the deceased’s attack. Therefore, provocation did not apply in this case and Moar was found guilty of second-degree murder.


Check out the Robson Crim MLJ
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