2011 QCCA 1172, 2011 QCCA 1172

Callery c. R. 2011 QCCA 1172 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-004584-106 ( 700-01-058842-058 ) MINUTES OF THE HEARING DATE: June 15, 2011 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. ALLAN R. HILTON, J.A. RICHARD WAGNER, J.A. APPELLANT(

S) ATTORNEY(

S) EDWARD CALLERY Mtre Daniel Royer LABELLE, BOUDRAULT, CÔTÉ ET ASSOCIÉS RESPONDENT(

S) ATTORNEY(

S) HER MAJESTY THE QUEEN Mtre Maxime Lacoursière CRIMINAL AND PENAL PROSECUTING ATTORNEY ATTORNEY(

S) On appeal from a judgment rendered on February 4, 2009 by the Honourable Judge Carol Richer of the Court of Quebec, District of Terrebonne. NATURE OF THE APPEAL : Attempted murder - conviction Clerk: MARC LEBLANC Court Room: PIERRE-BASILE-MIGNAULT HEARING 14 h 02 Beginning of the hearing. 14 h 03 Argument of Mtre Royer. 14 h 25 Argument of Mtre Lacoursière. 14 h 38 Reply by Mtre Royer. 14 h 39 Suspension of the hearing. 14 h 42 Resumption of the hearing. 14 h 43 Judgment rendered – see page 3. 14 h 45 The hearing is concluded. Marc Leblanc Clerk BY THE COURT JUDGMENT

[ 1 ] After having rejected the appellant's defence based on

section 16 of the Criminal Code , the trial judge concluded, on the basis of evidence he accepted, [1] that the appellant intended to kill his estranged wife.

In limiting his consideration of this issue to the evidence he had accepted, the trial judge erred. [2] [ 2 ] In such circumstances, he was obliged to consider all of the evidence, including that which he had rejected, in order to determine whether the Crown had discharged its burden to establish beyond a reasonable doubt whether the appellant had the necessary specific intent to commit the offence of attempted murder, [3] or whether such evidence raised a reasonable doubt as to the existence of the required specific intent. [4] [ 3 ] The evidence rejected by the trial judge that he was obliged to but did not consider in this context included the expert report and testimony of Dr.

Sirman, as well as various other uncontested facts concerning the events in issue as they relate to the behaviour of the appellant on the night in question, both before and after the armed assault on his estranged wife. [ 4 ] The analysis of the trial judge on the count of attempted murder was incomplete due to this omission.

This Court's intervention is therefore justified to set aside the verdict of guilty of attempted murder. [5] [ 5 ] In all of the circumstances, the Court is of the view that it would be preferable to order a new trial rather than substitute a verdict of assault causing bodily harm as the appellant proposes. [ 6 ] FOR THESE REASONS, THE COURT: [ 7 ] ALLOWS the appeal; [ 8 ] SETS ASIDE the verdict of guilty of attempted murder pronounced by the judge of the Court of Quebec on February 4, 2009; [ 9 ] ORDERS a new trial on the count of attempted murder. YVES-MARIE MORISSETTE, J.A. ALLAN R. HILTON, J.A.

RICHARD WAGNER, J.A.