MOOSE JAW — The Saskatchewan Court of Appeal has ordered a new trial for Vincent William Picken, a Moose Jaw man who was convicted last year of second-degree murder in the death of Shaun Holmes.
The court issued its ruling recently, saying Chief Justice M.D. Popescul, the trial judge, erred when he didn’t instruct the jury in late 2023 to rule on the statutory partial defence of provocation but did instruct members to rule on self-defence.
Justice Popescul refused to instruct them on provocation since he said it was incompatible with self-defence and there was “no air of reality” to the accused’s assertion that Holmes provoked him, the document said.
The jury convicted Picken of second-degree murder — which carries a mandatory life sentence — in November 2023, and in February 2024, the judge sentenced him to 12 years in prison before parole.
Picken appealed the decision, alleging that Popescul erred by failing to instruct the jury on provocation and the availability of a verdict of manslaughter.
The Criminal Code says provocation is a wrongful act or an insult sufficient enough to deprive a person of the power of self-control and who could act on that emotion before “there was time for his passion to cool.”
Writing for her appeals court colleagues, the Hon. Justice Meghan R. McCreary allowed the appeal and ordered a new trial. She noted that the trial judge erred on provocation being incompatible with self-defence “because there was a sufficient factual foundation for a properly instructed jury to give effect to the provocation defence.”
Facts of the situation
Justice McCreary summarized the facts, saying Picken visited Holmes’ apartment on Oct. 28, 2020, to retrieve his girlfriend’s bicycle, which he thought the man had. Before he went, though, he consumed alcohol and methamphetamines.
Holmes let Picken into his apartment and took the man to a bedroom, with the former insulting the latter’s girlfriend. They swore at each other before Holmes began punching and kneeing Picken in the face and whipping him with an extension cord.
Picken fought back while on the ground, and seeing a knife nearby, grabbed it and swung it at Holmes, contacting the latter several times. Holmes momentarily backed off, allowing Picken to flee to the back door in the kitchen.
However, Holmes caught Picken by his hair, pushed him to the floor and resumed punching and kicking him. The former also ordered his dog to bite Picken; the 60-pound animal was barking and growling inches from Picken’s face.
Picken testified that he punched the dog — he said he felt “scared,” “panicked” and “scared for my life” — and began swinging and jabbing at Holmes, the ruling said. He also testified that he was in “panic mode” after the dog joined the fight and remained panicked until he could escape.
Holmes eventually stopped his assault and ran out the back door, while Picken fled through the other door. The jury heard that Holmes was grievously wounded and died outside his apartment building. An autopsy revealed that Holmes had seven stab wounds and 28 cut-like wounds, with two neck wounds causing his death.
During the trial, the defence counsel said that if the jury was unsatisfied that Picken used the knife in self-defence, it should consider the option that he lost self-control because of the dog, the ruling said. If accepted, this could establish a provocation defence that reduced the second-degree murder charge to manslaughter.
However, the Crown counsel was opposed to the provocation option, saying the event was a “continuous transaction” where Picken used the knife during the entirety of the fight.
The trial judge agreed and instructed the jury only on the defence of self-defence.
Analysis
“… in my view, the direct and circumstantial evidence from trial satisfied the air of reality standard in connection with both the objective and subjective elements of the provocation,” Justice McCreary wrote.
The Crown conceded that there was an air of reality to the objective element of the provocation — that Holmes attacked and assaulted Picken and sicced his dog on the man — and agreed that such an attack was without legal right, she continued.
“(However), the Crown’s main argument on (the subjective element of provocation) is that there was no direct evidence that Mr. Picken was provoked by having the dog set upon him,” Justice McCreary wrote. “… the Crown contends that direct evidence from the accused — that he was panicked — is insufficient to demonstrate the loss of control required for provocation.
“With respect, I do not accept this argument,” she continued, referring to other court cases to rebut the Crown’s contention.
“… Mr. Picken’s evidence could reasonably be interpreted to suggest that he acted wildly, without rational thought” since the initial attack led to the dog joining the fight and he only used the word “panic” after Holmes ordered the animal to attack,” she continued.
“A reasonable interpretation of his evidence could support either self-defence or provocation … ,” the justice said, noting that Picken said the dog scared him the most — prompting him to violently swing and jab the knife at Holmes — and his panic only subsided after he left.
Meanwhile, photographs showed significant amounts of blood in the kitchen and clumps of Picken’s long hair, suggesting that his attack with the knife intensified once the dog entered the kitchen, she continued.
Therefore, Justice McCreary said there was a “sufficient factual foundation” for a properly instructed jury to “give effect to the partial defence of provocation,” so she set aside the second-degree murder conviction and ordered a new trial.
The justice also ordered Picken to remain in custody until he re-applied to the Court of King’s Bench.
