Her Majesty the Queen v. Gerald Arnold Mustard

(Manitoba) (Criminal) (By Leave)




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Criminal law – Defences – Self-defence – Evidence – Accused convicted of manslaughter for stabbing deceased following altercation – Accused not testifying at trial but raising possibility of self-defence – Trial judge finding no air of reality to asserted claim of self-defence and refusing to put self-defence before jury – Court of Appeal overturning conviction and ordering new trial – Whether Court of Appeal erred in overturning trial judge’s decision not to leave self-defence with jury.

The accused, Mr. Mustard, was tried by a judge and jury for second degree murder for a fatal stabbing during an altercation. The Crown’s theory was that the accused stabbed the deceased while the two men were standing, as Mr. Mustard was seen advancing towards the deceased while holding a knife and making a “punching motion” in his direction. The accused did not testify at trial but raised the issue of self-defence, arguing that weaknesses in the Crown’s evidence supported an alternative inference – i.e., that the stabbing occurred on the ground, when the deceased was choking the accused. The trial judge refused to put self-defence before the jury, finding that there was no “air of reality” to the claim. Mr. Mustard was convicted of manslaughter. He appealed on the grounds that the judge erred by refusing to instruct the jury on self-defence.

The Court of Appeal unanimously allowed the appeal, quashed the conviction, and ordered a new trial, finding that there was in fact circumstantial evidence reasonably capable of supporting the inference that the stabbing occurred while the two men were on the ground. The Court of Appeal found that the trial judge erred by refusing to instruct the jury with respect to the accused’s claim of self-defence, by exceeding her role and engaging in a substantive weighing of the evidence, and by failing to assume the truth of the evidence that tended to support the claim of self-defence.

Lower Court Rulings

April 22, 2015
Court of Queen’s Bench of Manitoba

CR 14-01-33257, 2015 MBQB 99
Judge finding no “air of reality” to claim of self-defence; self-defence not put to jury
April 19, 2016
Court of Appeal of Manitoba

AR 15-30-08403, 2016 MBCA 40
Appeal allowed (“air of reality” threshold for self-defence was met); conviction quashed and new trial ordered