2011 QCCA 284, 2011 QCCA 284

Unofficial English Translation R. c. Ouellet 2011 QCCA 284 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF QUEBEC No.: 200-10-002358-096 (300-01-009121-080) DATE : FEBRUARY 11, 2011 CORAM: THE HONOURABLE LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A. HER MAJESTY THE QUEEN APPELLANT - Prosecutrix v. LAURENT OUELLET RESPONDENT - Accused JUDGMENT [ 1 ] THE COURT: – Ruling on the appellant’s appeal from the verdicts rendered March 6, 2009, by a jury, presided by the Honourable Mr. Justice Claude C.

Gagnon (Superior Court, District of Montmagny) acquitting the respondent of charges of causing death by criminal negligence with a firearm and of having used a firearm in a careless manner; [ 2 ] After having examined the file, heard the parties and deliberated; [ 3 ] Understanding the factual framework of the case is not required to understanding the difficulty that arose here or its solution. Even so, we note that on October 13, 2007, Jacques Auger went moose hunting with a friend in the Rexfor area, in Saint-Damase-de- L’Islet.

The respondent was already in the area, for the same reason, on the lookout in a blind he had built. [ 4 ] Mr. Auger was walking near the blind, using a piece of wood [referred to as a scraper] to thrash the trees and shrubs while imitating the call of a bull moose. The respondent thought a real moose was present. He aimed his rifle in the direction of a [ translation ] “ a big black thing”, [1] according to the statement he gave to police officers on the day of the accident, and fatally shot Mr.

Auger in the ribcage. [ 5 ] The respondent was charged with causing the victim’s death by criminal negligence with a firearm [2] and of having used a firearm in a careless manner or without reasonable precautions for the safety of other persons. [3] He was tried by judge and jury. [ 6 ] Before oral submissions and in the absence of the jury, counsel for the respondent asked the judge whether he might read the relevant sections of the Criminal Code . The judge replied that that would not be a problem but added unequivocally, [ translation ] “ Not the sentences…”.

Counsel for the respondent answered [ translation ] “All right” . The judge ordered counsel [ translation ] “ to avoid that area on both sides”. [ 7 ] Counsel for the respondent had just begun his oral submissions when he spoke the following words: [ translation ] I don’t quite understand the Crown’s objective in this case. He wants a conviction at any price. He wants my client to be convicted under

section 220 and

section 86 of the Criminal Code , and I would like to read these sections.

Section 220 states: Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable (

a) where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years ; and (

b) in any other case, to imprisonment for life . And 86,

section 86 states: Every person commits an offence who, without lawful excuse, uses, carries, handles, ships, transports or stores a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any ammunition or prohibited ammunition in a careless manner or without reasonable precautions for the safety of other persons.

So the objective is to imprison an innocent man who shot at a hunter who was pretending to be a moose. There is such a determination to have him convicted that a witness who is essential to the case in order to properly understand the story has not been called. … [Emphasis added] [ 8 ] Apart from the acrimonious impugning of the Crown’s motives, regarding which our intervention is not sought, and the entirely improper comment concerning the man who lost his life in this tragic episode, counsel referred specifically to the minimum and maximum sentences provided in subsection 220 (

a) and to the maximum sentence (imprisonment for life) provided in paragraph 220 ( b ), which is not at issue here, but he took care not to state that the offence provided in paragraph 86 (3) (

a) Cr. C., a hybrid offence, carries only a maximum sentence of two years in the case of a first offence, when the charge involves an indictable offence. [ 9 ] In the absence of the jury, the trial judge, who seemed to be dumbfounded, said to counsel for the respondent: [ translation ] “Well, it’s a good thing I warned you not to talk about sentences.” Then he added: [ translation ] “ …You’ve got only one chance for credibility and I think it’s too soon to be pushing your luck.” Crown counsel did not ask for a mistrial at that time.

He was appalled by his colleague’s reference to the sentence and asked how he could retract the [ translation ] “assertion”. The judge said he would correct the situation and asked him not to broach the matter in his oral submissions. [ 10 ] A pre-charge conference was then held, after which the proceedings continued two days later, when the judge gave his instructions to the jury. At that time, Crown counsel made a motion for a mistrial.

The judge dismissed his motion and added: [ translation ] But I hope to be able to ensure , at the point we have reached, to ensure the members of the jury understand that sentencing considerations are not their responsibility. I also hope to ensure they understand that, neither they nor I write the laws; we merely apply them. And I hope my instructions will be clear enough to offset the contaminating effect that these words may have had in the minds of the members of the jury. Mtre GUIMONT: Fine.

THE COURT: And perhaps I’m mistaken but, at the point we have reached, I dare to hope we can obtain from the members of the jury a fair and equitable verdict, based on the evidence and not on considerations they should not be looking at . Mtre GUIMONT: Fine.

THE COURT: So, I have to provide my instructions this morning and I’m telling you frankly, I have no illusions about this, I’m going to do, we’re going to do what we can .… [Reproduced verbatim] [Emphasis added] [ 11 ] We point out that, in giving his preliminary instructions at the start of the trial, the judge had explained to the jury: [ translation ] If you find Laurent Ouellet guilty of an offence, I will have to decide the appropriate sentence to be applied in this case.

Issues concerning the consequences of your decision have no place in your deliberations and discussions. [ 12 ] In his final instructions, the judge referred to the oral submissions of counsel: … As well, you have heard the oral submissions by counsel. They have given their

interpretation of the facts, their

interpretation of the evidence. Their words do not constitute evidence. [ 13 ] He then explained to the members of the jury that they had to follow his instructions concerning the application of the law: [ translation ] … You must therefore follow the rules of law that I tell you to apply. Even if you do not agree with these rules of law, you must follow my instructions on this matter.… I’m telling you that you, like me, are here to apply the law, the law that is voted on by our legislature. We’re not here, you or I, to rewrite the law or to apply our own ideas of what it should be.

As I stated at the start of the trial, you must examine the evidence and make your decision without prejudice, fear, or sympathy . What is required of you is a fair and objective assessment of the evidence. [Emphasis added]

[ 14 ] The trial judge then elaborated on the oral submissions by counsel for the defence: [ translation ] In his final argument, Maître Lavoie mistakenly thought it advisable to refer you to the

section of the Criminal Code concerning the sentence that an individual found guilty of having caused the death of another person by criminal negligence using a firearm is liable to. He also emphasized that the evidence was not adequate to justify imprisoning his client for a long period. These words were intended to have you render a verdict based on sympathy, rather than the evidence, which you may not do . Let me first tell you this.

In a trial, there is no sentence unless you decide the accused is guilty.… I am therefore insisting, and I am repeating what I already said at the start of the trial, that your only task is to determine, in light of all the evidence, whether Laurent Ouellet is guilty or innocent of the charges against him. The possibility of punishment, that which we also call sentencing and its determination, in other words, determining the extent of the punishment, is irrelevant to your discussions and to your decision .

If you declare Laurent Ouellet guilty, it will be up to me, it is the role of the judge, to decide on the appropriate punishment , taking the circumstances into account. … [Reproduced verbatim] [Emphasis added] [ 15 ] The little later, the judge repeated that the jury’s decision must not be [ translation ] “sympathy-based ”. He also commented on the statements by counsel for the respondent on the professional integrity of Crown counsel.

He reminded the jury that each party conducts his or her case. [ 16 ] Lastly, in response to a question from the jury, the judge stated: [ translation ] If you are worried about the fact that the first charge and the second charge involve the same offence, your task is to find whether there are essential elements for each. I will be responsible for harmonizing things afterwards.

I still have the power afterwards to ensure that a person is not, for example, punished twice for the same thing. [ 17 ] The respondent was acquitted of both offences he was charged with. * * * [ 18 ] The Crown faulted counsel for the respondent for having knowingly disregarded the trial judge’s instructions by telling the members of the jury about the sentence applicable under

section 220 Cr. C. , trying in that way to gain their sympathy and to influence them. In his opinion, the trial became unfair and it was not possible to rectify the situation through instructions to the jury. After the oral submissions by counsel for the respondent, the trial judge should have declared a mistrial and ordered a new trial. The Crown alleges that a fair and equitable trial did not take place. * * * [ 19 ] Counsel for the respondent jeopardized the fairness of the trial by drawing the jury’s attention to the sentences provided in

section 220 Cr. C . Was a mistrial necessary as a result? [ 20 ] When a trial judge refuses to declare a mistrial, an appellate court will intervene only if a clear error has been made. [4] Concerning this matter, Béliveau and Vauclair write: [ translation ] In Canadian law, the fairness of the judicial process is a predominant value. Occasionally, it takes very little for this fragile equilibrium to be affected by incidents that are unforeseeable but nonetheless prejudicial.

Confronted with such incidents, a trial judge enjoys broad discretionary power in the conduct of the trial to correct the situation, such as declaring a mistrial.… … Declaring a mistrial is above all a discretionary power arising from common law, based on an assessment of whether the interests of society and those of the accused will be served by the continuation of a trial whose fairness might be compromised.… [5]

[Emphasis added] [Citations omitted] [ 21 ] An assessment of the fairness of the judicial process must not be made solely from the standpoint of the accused. [6] Fundamental justice embraces more than the rights of the accused; the fairness of a trial must also be assessed from the point of view of the community and the complainant. [7] [ 22 ] We have adopted the principle whereby the sentence that could be imposed on an accused, as a result of a guilty verdict, must not be taken into account by the jury in its deliberations. [8] As the Supreme Court reminds us: [62] While the practice varies in other jurisdictions, the rule in Canada is that guilt is for the jury to determine, while sentencing is left to the trial judge.

That long-standing approach is sensible as a trial judge will obviously have more knowledge on both the acceptable range of sentences for the particular offence and the principles of sentencing. The jury’s role is to determine on the facts whether the evidence establishes guilt.

There is no reason to depart from the general rule. [63] It may seem odd that the jury, without knowing the penalty, could be blind to the consequences of its conclusions, but that fact is both appropriate and desirable when one takes into account the risk that the jury could be influenced — whether towards acquitting or convicting — on the basis of the sentence. That logic applies with the same force when the prescribed penalty is a statutory minimum.

The fact that a convicted person will be subject to a pre-designated minimum sentence should not influence the jury’s consideration of the question of guilt. [9] [ 23 ] In the context of a guilty verdict , the Manitoba Court of Appeal said the following about a reference to sentencing by counsel for the defence: Under normal circumstances it is not appropriate for counsel, in an address to the jury at the conclusion of the case, to refer to the penalty which might be imposed in the event of a guilty verdict .

The question of sentencing is for the judge and reference to a possible penalty may be construed as an attempt to gain sympathy with the jury and to make the jury more amenable to a finding of not guilty. In the instant case, during his address to the jury, counsel for the accused, Stolar, told the jury that the penalty for first degree murder was life imprisonment with no eligibility for parole for 25 years. The learned trial judge interrupted at that point, and instructed counsel to “please stay away from penalty”. Counsel for Stolar now contends that he should not have been interrupted.

Penalty was mentioned to impress upon the jury the seriousness of their task. It is not improper to indicate the minimum penalty where it is mandated by the Criminal Code itself. Firstly, I think the intervention of the learned trial judge was fully justified. Further remarks on the subject of penalty could well have been construed as an attempt to gain sympathy in an improper manner. The fact that the minimum sentence is mandated by the Code does not give counsel a licence to discuss sentence in an attempt to bring about a favourable result for an accused .

In asking counsel to desist from further comment, and to move to a different area, the learned trial judge was not unfair to the accused, Stolar. [10] [Emphasis added] [ 24 ] It remains that a conviction involves a theoretical response to the question concerning the consequence of counsel’s reference before the jury to the applicable minimum sentence. In this case the respondent was acquitted. Concerning counsel’s oral submissions, Béliveau and Vauclair remind us: [ translation ] Like the prosecuting attorney, counsel for the defence does not have full latitude in his oral submissions.

He may not imply that the prosecuting attorney is prepared to do anything to win or otherwise attack his integrity, which may give rise to a mistrial.

He may not make inflammatory statements, tell the jury the sentence to which his client is liable or truncate the facts adduced as evidence to confuse the jury. [11] [Emphasis added] [Citations omitted] [ 25 ] In 1978, Macdonald J. of the Supreme Court of Nova Scotia, Appeal Division, wrote the following on this matter: The second issue involves a remark by defence counsel to the jury that “this indictable offence, this offence which carries a maximum sentence of 14 years”. In my opinion such a remark was improper for the reason that it is no concern of a jury what the prescribed penalty for any given offence is.

To refer to penalty may well be construed as an attempt to gain sympathy with the jury and indeed to colour their deliberations as to guilt or innocence. Counsel did refer however to fourteen years as being the maximum sentence and the trial judge in his charge to the jury said: Some reference was made by counsel to the question of the sentence, and all I have to say to you is, that is not your concern.

Your only concern at the moment is the determination of guilt or innocence, and nothing else… I can visualize situations where advising the jury of the sentence prescribed might result in a miscarriage of justice necessitating a new trial.

In the present case, however, in light of the defence raised and the instructions of the trial judge to which I have referred, I am satisfied that the improper remarks of defence counsel as to what the maximum sentence was did not result in a miscarriage of justice and hence I would not give effect to this ground of appeal…. [12] [Emphasis added] [Citations omitted] [ 26 ] The judge’s instructions to the jury may therefore, in certain cases, avoid a mistrial. Moreover, the Supreme Court of Canada recognized that trial judges have a broad discretion in charging the jury:

[1] …Trial judges’ charges to juries vary. No particular magical incantation is required. Judges properly have a wide discretion in what they tell the jury but there are, depending on the offence alleged, certain things that the jury must be told. The language used to obtain the result is left to the trial judge.

If the charge adequately informs the jury what it must consider, appeal courts will not interfere simply because they feel the charge could have been better. [13] [ 27 ] Chamberland J.A. added to these known principles, for the Court, in Mantha : [ translation ] In an assessment of the adequacy and fairness of these instructions, it is necessary to take into account the context of the trial, in particular counsel’s submissions, the complexity of the questions submitted, the nature of the defences and the complexity of the related evidence. [14] [ 28 ] The trial judge was confronted with an extremely sensitive situation.

He was fully aware of that and concluded, in exercising his discretionary power and taking into account the context of the trial that, if the members of the jury were properly informed of their role and responsibilities, it was possible to obtain [ translation ] “a fair and equitable verdict, based on the evidence and not on considerations they should not be looking at”. [ 29 ] His instructions were entirely adequate, which the Crown acknowledged.

The relevant excerpts therefrom, reproduced above, [15] show that the trial judge gave instructions to the members of the jury clearly and skilfully to offset the blunder by counsel for the respondent.

One must assume that the jury complied with the instructions of the presiding judge. [16] There is nothing here to raise any doubts on that count. [ 30 ] Lastly, to irrevocably declare a mistrial because of an unfortunate, maybe even deliberate, statement, despite the curative instructions given, would open the door to abuse and would render a disservice to the ends of justice, when the fairness of the trial had been safeguarded. FOR THESE REASONS : [ 31 ] DISMISSES the appeal. LOUIS ROCHETTE, J.A. BENOÎT MORIN, J.A. JEAN BOUCHARD, J.A.

Mtre Marcel Guimont CRIMINAL AND PENAL PROSECUTING ATTORNEY For the appellant Mtre Charles Lavoie PELLETIER, LAVOIE For the respondent Date of hearing: January 27 , 2011