New trial ordered in 2009 death of Ben Warland

The B.C. Court of Appeal has ordered that the man convicted of killing a young Richmond father three years ago will stand trial again.

Joshua David Berner was convicted in October of 2010 of the second-degree murder of Benjamin Warland, who was just 23 at the time of his death.

Berner and his lawyer appealed the conviction, and on Monday, the Court of Appeal of B.C. unanimously agreed with the argument put forward by Berner's lawyer that his trial judge erred in his instruction to the jury.

Specifically, the error relates to how the jury was instructed to interpret Berner's post-offence conduct on the night of the incident on Jan. 31, 2009.

"I have carefully considered the able submissions of counsel for the Crown respondent that the error was harmless but ultimately I am not persuaded that this is so," Court of Appeal Justice John. E. Hall wrote in a ruling released Monday.

"On the facts of this case, I would think it a near certainty that the jury would be moved to take quite a censorious view of the lies told by the appellant to the police near the scene of the struggle," Hall wrote. "This course of action by the appellant foreclosed any hope of saving the life of the deceased...In my respectful opinion, the judge committed a significant legal error in failing to instruct the jury that Berner's post-offence conduct had no bearing on the issue of intent. On the particular facts of this case, such failure could have tipped the scales in favour of a guilty-as-charged verdict."

On the night of Warland's death, Berner and his friend, Christian Olegario, had been drinking and watching hockey at a sports bar.

They left the bar around 11 p.m. and took a bus to Berner's home.

During that bus trip, Olegario and Warland got into a "somewhat acrimonious discussion."

"The three men exited from the bus at a stop near the intersection of Cambie and Bargen Drive, a location a few blocks from the residence of the appellant. Olegario was planning to go to Berner's house to "hang out for a bit."

"Olegario testified that as he and Berner were at the intersection waiting for the light to change, he was punched in the face and rendered unconscious," Justice Hall wrote.

Berner described a violent struggle between him and Warland after Olegario was knocked out, in the front yard of a residence.

"Curiously, the residence was a short distance from the bus stop but in a direction away from the course of travel the appellant would have taken to return home," Hall wrote.

"The appellant testified that after punching Olegario, the deceased advanced on him brandishing what was described as a pocket knife. No weapon was ever recovered by investigators. Berner described a violent and confusing struggle for the possession of the knife. He said he eventually gained control of the weapon and used it to defend himself from an assault by the deceased."

Berner and Olegario were walking home following the altercation when they were stopped by police officers responding to a call by a householder who heard the noises of the altercation between Warland and the two men.

"When the appellant was asked by the police about blood on his person, he said he attempted to break up a fight earlier at the pub. This of course was an untruth as the source of the blood was his violent struggle with Warland."

As the police were talking with Berner, his landlady happened to pass the scene, and offered to bring him home.

It was then discovered that Berner had a serious injury to his leg, and he went to St. Paul's Hospital.

About an hour later, a passerby discovered Warland at the scene of the struggle, and he was "gasping for air" and unable to speak.

Warland was pronounced dead soon after arriving at hospital.

"In the course of her charge, the learned trial judge more than once made reference to the post-offence conduct of the appellant and the use that could be made of such conduct by the jury...The judge, in her oral instructions to the jury, after commenting about the issue of intoxication, went on to say, 'You may also consider in determining whether Mr. Berner had the requisite intent, his after-the-fact conduct and the remarks that I referred to earlier in my charge. But remember the caution I gave you about drawing an inference of guilt based on such circumstantial evidence,'" Hall wrote.


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