2021 QCCA 1678, 2021 QCCA 1678

McConini Mitchell c. R. 2021 QCCA 1678 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006908-188 ( 550-01-105200-184 Seq. 002, 565-01-005410-162) MINUTES OF HEARING DATE: November 2, 2021 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. MARTIN VAUCLAIR, J.A. CHRISTINE BAUDOUIN, J.A.

APPELLANT COUNSEL Amik McConini Mitchell Mtre MAUDE PAGÉ-ARPIN ( Latour Dorval Avocats ) RESPONDENT COUNSEL HER MAJESTY THE QUEEN Mtre ISABELLE MICHAUD ( Director of Criminal and Penal Prosecutions ) By videoconference On appeal from a guilty verdict rendered on October 26, 2018 , by a jury presided by the Honourable Daniel W. Payette of the Superior Court , District of Gatineau . NATURE OF THE APPEAL: Verdict of guilt – Accident negating actus reus – Murder. Clerk at the hearing : Annie Lapierre Courtroom: Antonio-Lamer HEARING

9:30 Commencement of the hearing. Identification of counsel. Submissions by Mtre Pagé-Arpin.

Mtre Pagé-Arpin submits an Outline of Pleading to the Court, an amended decision tree, and a proposal for instructions to the jury on the defence of accident negating the actus reus of the offence. 9:36 Discussion between the Court and Mtre Pagé-Arpin. 9 :38 Submissions by Mtre Pagé-Arpin 9:48 Discussion between the Court and Mtre Pagé-Arpin. 9:49 Submissions by Mtre Pagé-Arpin. 10:04 Discussion between the Court and Mtre Pagé-Arpin. 10:09 Submissions by Mtre Pagé-Arpin. 10:19 Recess of the hearing. 10:33 Resumption of the hearing.

The Court advises the respondent’s counsel that it will not be necessary to hear her submissions. 10:34 BY THE COURT: Judgment – see page 3. 10:35 Conclusion of the hearing. Annie Lapierre, Clerk at the hearing JUDGMENT [ 1 ] The appellant appeals from a verdict rendered on October 26, 2018, by a jury of the Superior Court, District of Gatineau, presided by the Honourable Daniel W. Payette, convicting him on one count of second-degree murder. [ 2 ] The tragic events took place in on the night of June 4 to 5, 2016.

A private party, with approximately 15 to 20 guests, was ongoing, mainly in the parking area of a residential setting. The victim was amongst the guests. [ 3 ] Problems with a particular guest lead to his expulsion from the party. Soon after, the brother of the expelled guest arrived in a car, accompanied by the appellant and other people. The appellant got out of the car, armed with a black stick. Seeing his group was outnumbered, he decided to leave, not without overtly threatening the crowd that he would come back with a firearm, which he did. When the car returned, the appellant got out with a rifle.

He shot a few times into the air. Very quickly, the appellant and the victim were face to face, a few inches apart, the appellant pointing the rifle at the victim. The evidence is contradictory in some of the details of what occurred next. There may have been, or not, some degree of physical interaction between the two protagonists. The victim may have tried to remove the rifle from the appellant’s hands or to push it away.

It is undisputed, however, that two rifle shots, at point blank, killed the victim. [ 4 ] After having testified for the defence, and after consulting with his experienced criminal defence lawyer, the appellant, under the careful scrutiny of the trial judge, made the formal written admission that he had caused the victim’s death and that he had done so unlawfully: s. 655 Cr.C . [ 5 ] The admission was preceded by the following exchange in the absence of the jury: Me ÉLISE PINSONNAULT : Yes. I spoke with Mr.

Amik McConini Mitchell during lunch time, and he understands the consequences of doing both following admissions and he’s willing to do that. Now, is it right that, stand up, please? Is it right that I explained to you the consequences of those two (2) admissions? Mr. Amik McConini Mitchell : Yes. Q. Do we agree or understand? A. Yes. Q. Do you understand that this will close the acquittal instructions in the jury?

A. Yes. Q. Yes. There’s going to be two (2) choices, Murder 2 or Manslaughter, do you understand that? A. Yes. Q. Are you willing to admit that you caused Bret James Jerome’s death? A. Yes. Q. Yes? Nobody forced you to say that, sir? A. Nobody forced me. Q. Okay, and are you willing to say that you did cause Bret James Jerome death while doing an unlawful act? A. Yes. Q. Yes? A. Yes. Q. Did I explain to you, what’s an unlawful act? A. Euh… Q. Did we talk about that? A. Yeah, but I already forgot. Q. Okay, did I mention to you what the Crown is proposing as unlawful acts, six (6) of them, can we talk about them?

A. Okay, yeah. Q. Yes, do you want me to repeat them? A. Euh, yes. Q. Yes. THE COURT: The unlawful acts would be particularly use of a firearm and careless use of a firearm, others that were mentioned were also pointing afirearm, possession of weapon for dangerous purpose, discharging a firearm with intent, discharging firearm recklessness, and assaultwith weapon, but honestly, I would concentrate on use of firearm and careless use of firearm. So those were the ones mentioned. Me ÉLISE PINSONNAULT: Yes. THE COURT: I’m not going for… Me ÉLISE PINSONNAULT: Q.

So you still make those admissions and you understand what we talked about? A. Yes. Q. Okay. THE COURT: So we’ll take them down for the record right now, if Me Pinsonnault you can have your client sign one for Tuesday morning, that’d begood enough. [6] On appeal, the appellant raises two grounds, interrelated to some extent, turning on the judge’s instructions to the jury on (1) thedefence of accident, and (2) the offence of second-degree murder.

For the following reasons, both arguments must fail. [7] With regard to the defence of accident, the appellant invites the Court to find an error in the judge’s instructions for not havingdistinguished the accident negating the actus reus of the offence and the accident negating the requisite mens rea: see R. v. Primeau,2017 QCCA 1394, approved in R. v. Barton, 2019 SCC 33 , [2019] 2 SCR 579, par. 186 and reiterated in R. v. Primeau, 2021QCCA 544.

Although the significance of the distinction is uncontested, its application in the instant case is not determinative. [8] First, it runs contrary to the appellant’s formal admission that he unlawfully caused the death of the victim and acknowledgment

of the various underlying unlawful acts. By admitting these essential elements, the appellant excluded the possibility of an accidentnegating the actus reus that would lead on to an acquittal. On the admission, acquittal was not an option. [9] Second, on the facts, there was no air of reality to this particular defence. There were two rifle shots. Forensic evidence did notestablish that the rifle in question could be discharged accidentally, except for a scenario where one pulls the rifle while the other has hisfinger clutched on the trigger.

While this scenario, on the evidence, could explain the first shot, it certainly could not explain the secondand asserting otherwise is pure speculation. [10] Third, although the admission relieved the judge of the burden to explain a defence negating the actus reus, he nevertheless, to alarge extent, incorporated the said defence in his instructions on the accident negating the mens rea of the second-degree murder. Theappellant, rightfully so, acknowledges that the instructions in that regard were correct.

The instructions are indeed replete with examplesfrom different witnesses that could support the possibility of an interaction between the victim and the appellant which could haveaccidentally led to the first shot. Of course, and again, this contradicts the formal admission of the appellant and does not account for thesecond shot.

Whether those instructions were an error, it is unnecessary to decide, since it could only have played in favour of theappellant. [11] Finally, but most importantly, the accident with respect to the actus reus would be, in this case, the equivalent of an interveningact from the victim resisting the assault from the appellant and thus, it would not alter the assessment of legal causation: R. v. Maybin,2012 SCC 24 , [2012] 2 S.C.R. 30. [12] The second ground of appeal raises an error in the judge’s instructions on second-degree murder.

The appellant faults the judgefor not having specified the underlying dangerous act of manslaughter. The argument rests on the premise that the discharge of thefirearm could have been involuntary. Again, the defence of an involuntary discharge of the rifle had no air of reality. Second, once theformal admission was made, in the circumstances of this case, the only remaining live issue at trial was the mens rea required formurder; instructions on the underlying offences were not required : R. v. Miljevic, 2010 ABCA 115, conf. at 2011 SCC 8 ,[2011] 1 S.C.R. 203; R. v. MacDonald, 2008 ONCA 572.

FOR THESE REASONS, THE COURT: [13] DISMISSES the appeal. MARIE-FRANCE BICH, J.A. MARTIN VAUCLAIR, J.A. CHRISTINE BAUDOUIN, J.A.