2017 QCCA 1394, 2017 QCCA 1394

Primeau c. R. 2017 QCCA 1394 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-005642-143 (765-01-022997-114) DATE: 19 SEPTEMBER 2017 CORAM: THE HONOURABLE MARIE ST-PIERRE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. ALAIN PRIMEAU APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutrix JUDGMENT [ 1 ] THE COURT , on appeal from a verdict rendered on April 13, 2014, by a jury of the Superior Court, district of Richelieu, presided by the Honourable Michael Stober, convicting the appellant on one count of first degree murder, on two motions for fresh evidence and a motion to address an additional ground of appeal; [ 2 ] For the reasons of Healy, J.A., with which St-Pierre and Hogue, JJA., agree, THE COURT : [ 3 ] DISMISSES both motions for fresh evidence; [ 4 ] GRANTS the motion to address the additional ground of appeal; [ 5 ] ALLOWS the appeal; [ 6 ] ORDERS a new trial on the same charge.

MARIE ST-PIERRE, J.A. MARIE-JOSÉE HOGUE, J.A. PATRICK HEALY, J.A. Mtre Maude Pagé-Arpin Latour Dorval Avocats For Alain Primeau Mtre Daniel Royer Director of Criminal and Penal Prosecutions For respondent Date of hearing: March 21, 2017 REASONS OF HEALY, J.A. [ 7 ] The appellant was found guilty of first-degree murder after trial by judge and jury. He appeals against the verdict on four

[ 7 ] The appellant was found guilty of first-degree murder after trial by judge and jury. He appeals against the verdict on four grounds: The judge erred in law and fact by failing to intervene to address prejudicial remarks by the prosecutor and by failing to give the jury limiting instructions to correct the prejudice thus caused. The, judge erred in law and fact by dismissing in part a Corbett [1] motion by the defence to exclude all previous convictions of the appellant for crimes of violence. The judge erred in law in his instructions to the jury concerning after-the-fact conduct by the appellant.

The judge infringed the appellant’s right to a fair trial by an impartial jury by recording the jury’s verdict only an hour after the jury sent him a note that they needed rest due to fatigue. In short, the appellant raises two grounds of appeal concerning alleged errors by the judge during the trial and two grounds at the conclusion of the evidence. [ 8 ] In the preparation of the appeal the panel identified an issue not raised by the parties. With due notice, the appellant submitted a motion to address this issue in an additional ground of appeal and both parties addressed the issue in oral submissions.

This motion is of course granted. In view of my conclusion on this issue, which is to allow the appeal and order a new trial, it is unnecessary to consider the other grounds advanced by the appellant. [ 9 ] Therefore, the motions for fresh evidence submitted by both parties are dismissed since the fresh evidence is only relevant to a ground of appeal that will not be addressed in these reasons. [ 10 ] The issue concerns the elements of culpable homicide and the relationship among them in offences of murder and manslaughter.

More specifically, as the defence case was entirely one of accident, it concerns the absence of an instruction on accident relating to the actus reus . Context [ 11 ] The appellant and his brother Richard lived in the same house. The appellant lived in the basement with his son; his brother lived on the ground floor with his wife. Relations were not always bad between the two families but there was often conflict when the brothers, most notably Richard, would consume alcohol. This conflict involved threatening exchanges of verbal abuse and sometimes physical exchanges.

Relations were generally good unless alcohol had been consumed. Richard often drank substantial quantities. To help purchase alcohol he would borrow money, or ask to borrow money, from his brother and nephew downstairs. That is what happened on 3 September 2011. [ 12 ] That afternoon his son, Pascal, told the appellant that Richard had asked to borrow money. The appellant advised Pascal not to lend him any money. Later Pascal told the appellant that Richard’s wife had asked him to borrow money to pay utility bills.

The appellant again counselled him not lend any money because it would be spent on alcohol and gambling and never be repaid. Pascal then returned to the ground floor and repeated his father’s words to Richard. At that point Richard was more inebriated. [ 13 ] The evidence is not entirely clear on various verbal exchanges that occurred, or might have occurred, but there are aspects of the testimony to suggest that the brothers, principally through Pascal going up and down the stairs, exchanged threats to shoot each other.

When Pascal returned downstairs to report a threat from Richard, the appellant removed a rifle from a closet and went upstairs. At that moment, according to the evidence, Richard’s wife was in a bathroom. She testified that she heard Richard say to his brother, “Voyons donc, Alain, tu feras pas ça, voyons donc” and that the appellant replied “T’as fini toi.” The appellant claimed in his testimony that Richard said to him, “Comme ça, tu veux me tirer une balle dans la tête.” And a shot was fired.

Only the two brothers were present when the shot was fired and Richard did not survive to give an account of the incident. The appellant raised a defence of accident at trial and testified. [ 14 ] The appellant admitted that he was angry with his brother when he heard from Pascal that Richard was again asking to borrow money. He testified that when he went upstairs with the rifle he held it down in the region of his thigh. He said that Richard was quite drunk, raised himself from his computer and threw himself toward the appellant.

The appellant testified that he tried to avoid Richard by stepping back but lost his balance and struck his arm on the couch. At this moment the gun discharged, by itself, while the appellant did not have Richard in sight. He testified that the gun must have discharged as he struck the couch. [ 15 ] In explaining what happened, the appellant testified that he went upstairs, angry, to frighten his brother but that he never pointed the rifle at Richard and never had his finger on the trigger. He also testified that he was unaware at the time that the hunting rifle was loaded.

He testified that several months before he had removed the trigger-guard around the trigger because he had mislaid a safety key. At the same time he had inserted a single bullet in the chamber in order to test the modified rifle but forgot the bullet was loaded in it. As a result, the trigger was accessible. [ 16 ] The defence of accident in the appellant’s testimony was repeated in direct examination and tested at length in cross- examination. Much attention was given to the position of the two men in the room, the verbal exchanges between them and their movements leading to the shot.

There was ballistic and forensic evidence. Conference [ 17 ] After the evidence was closed, the trial judge met with counsel to discuss how the jury should be instructed. With regard to the elements of murder, they identified three central points: an unlawful act, causation of death and intention. The defence agreed that the appellant’s actions in approaching Richard with a rifle, even if he thought it was not loaded, was an unlawful act. The defence also

agreed that this unlawful act was the cause of Richard’s death. Further, the defence agreed with the judge’s observation that he should instruct the jury on the defence of accident with respect to the element of intention. Instructions [ 18 ] The judge began his instructions to the jury by reviewing the definition of homicide in

section 222 of the Criminal Code [2] and thereafter the definition of murder in

section 229 ( a ). He then told the jury that the prosecution must prove beyond reasonable doubt four elements to establish first-degree murder: (1) an unlawful act; (2) that caused the death of the victim; (3) that the accused had the intention required for murder; and (4) that the murder was planned and deliberate. He proceeded in his instructions by way of a decision- tree, which had been printed and distributed to the jury. [ 19 ] First, he recited the definition of assault in

section 265 of the Code and told the jury that the defence did not contest that the actions of the appellant in going upstairs with the rifle to confront his brother constituted assault in section 265(1)(

b) or ( c ). On the second question, causation, the judge told the jury that this question as well should not be difficult because the defence did not contest whether the appellant had caused the death of Richard. On the third question, intention, the judge repeated the alternative

definitions of intent in

section 229(

a) and reviewed the relevant evidence. [ 20 ] The judge then instructed the jury, in accordance with the decision-tree that he had provided, on the verdicts available for them to consider: murder or manslaughter. In this regard he reminded the jury twice to consider whether the defence of accident raised a reasonable doubt with respect to the element of intention. Implicit in this instruction, given the admission that the appellant committed an assault that caused death, is that the evidence was sufficient for a verdict of unlawful-act manslaughter.

Finally, the judge instructed the jury that if the evidence proved that the appellant intentionally killed the victim they must consider further whether the murder was planned and deliberate. He directed that if this element was not proved beyond reasonable doubt the jury must find the appellant guilty of second-degree murder. [ 21 ] The judge then reviewed the theories of the case presented by the prosecution and defence.

With respect to the moment at which the shot was fired, the judge summarised the position of the defence briefly: “En voyant Alain avec l’arme, Richard réagit, il se lève de sa chaise de l’ordinateur et se dirige vers Alain. À ce moment, Alain a un mouvement de recul, il a l’arme dans les mains et il s’accroche sur le divan du salon. Durant ce mouvement de recul, un coup de feu est parti accidentellement.” [ 22 ] It is clear that the judge instructed the jury to consider the defence of accident in relation to the element of intention in

section 229(

a) of the Code. He made no reference to accident in relation to the actus reus of murder or manslaughter, nor any mention of the elements of unlawful-act manslaughter. Discussion [ 23 ] The judge put the case to the jury on the basis that the defence did not contest either the underlying offence of assault or that the commission of this offence was the cause of death. The wisdom of these admissions is open to question and the soundness of the second is open to doubt.

In his lengthy testimony the appellant insisted that he had forgotten that the gun was loaded, that he never had his finger on the trigger and that the gun discharged on its own when he fell against the couch. Apart from a denial of an intention to kill, this evidence was sufficient for the judge to instruct the jury with respect to accident and the actus reus in the various offences of culpable homicide that were open to them. [ 24 ] There is no question that accident is a good defence to the element of intention in murder or to any other offence in which a culpable mental state is an essential element.

Accidents are, by definition, not intentional. An accident is not the result of a deliberate choice to engage in specific conduct or to cause a specific result. To the extent that the criminal law allows liability to be found in the absence of such choice it condones constructive liability because it allows responsibility to be attributed in the absence of an essential element. But accident is not only a defence to an element of mens rea . [3] Accident is also a defence to the actus reus of an offence.

What is common between them is that both, but for distinct reasons, preclude proof beyond reasonable doubt of essential elements of an offence. [ 25 ] For

an act to be attributed to the responsibility of a person in the criminal law it must be voluntary. Accidents are, by definition, not voluntary. A voluntary act is the expression of a conscious choice and conscious control by the person who commits it. To this extent the actus reus of an offence includes a mental element. This mental element merges with elements of mens rea but must be distinguished from them.

The mental element in the voluntariness, or conscious choice, merges with elements of mens rea in the sense that elements such as intention, knowledge, wilful blindness and recklessness presuppose the exercise of conscious choice. They cannot exist except upon a foundation of conscious choice. What distinguishes the element of conscious choice in the actus reus from the mental element in mens rea is that states of mind such as intention, knowledge, wilful blindness and recklessness define particular types of conscious choice.

In addition to proof of a voluntary act the proof of such elements, as required by the substantive law in the definition of specific offences, justifies a verdict that a person is guilty for a conscious choice in the commission of a prohibited act. [ 26 ] Accident negates the element of conscious choice, or voluntariness, in action as much as it negates specific types of choices as defined in various concepts of mens rea .

Thus a driver who unavoidably strikes a pedestrian who streaks into the road cannot be held criminally responsible for voluntary conduct or fault in the commission of an offence. [4] [ 27 ] An accident that occurs in the absence of any other unlawful act precludes any criminal liability. This is not a complicated proposition. But the criminal law must also account for accidents that are caused by previously committed offences or accidents that occur during the commission of an unlawful act. The present case concerns the second issue.

The theory of the defence was that during (not after) the commission of an assault the gun accidentally discharged and the shot killed the victim. [ 28 ] Assuming a sufficient factual foundation in the evidence, this theory forces consideration of the extent to which criminal responsibility can be attributed where accidents occur during the commission of other offences. This possibility has been rejected to the extent that constructive murder, a killing in the absence of subjective foresight of death, has been declared unconstitutional.

It has not been rejected with respect to other offences, including other forms of culpable homicide. Unlawful-act manslaughter allows for

conviction where an accidental death is caused by the commission of an underlying or predicate offence, such as assault, if the commission of that offence is dangerous in the sense that it demonstrates an objective risk of bodily harm. [ 29 ] As a general proposition, for which exceptions are not involved in this appeal, [5] there can be no liability for first-degree murder unless the commission of an underlying offence is the cause of death; nor will it suffice that a person caused death while committing an underlying offence. Murder requires subjective foresight of death in the act of killing.

It is clear that the judge instructed the jury to consider the defence of accident in relation to the element of intention in

section 229(

a) of the Code. He made no reference to accident in relation to the actus reus of murder or manslaughter, nor any mention of the elements of unlawful-act manslaughter. [6] [ 30 ] If the instructions had included a direction on accident with respect to the actus reus , the jury would have had a clearer understanding between the possible verdicts of murder or unlawful-act manslaughter. If as a result of such an instruction the jury had a reasonable doubt concerning the voluntariness of the shot, and thus of causation, the only alternative verdict would be manslaughter by means of an unlawful act.

The absence of an instruction concerning accident and the actus reus implied that the only defence to a charge of murder would be reasonable doubt on the element of intention defined in

section 229( a ). It did not account for the possibility that there was a defence of accident if the discharge of the gun was not

an act that was voluntary or the expression of a conscious choice. Conclusion [ 31 ] Ample evidence provides an air of reality to support such an instruction, notably the appellant’s assertions that he did not know at the time that the gun was loaded and his firm denial that in the confrontation with his brother he had his finger on the trigger.

This is thus an omission to instruct the jury on a matter of defence supported by the evidence and this alone is sufficient to warrant new trial. [ 32 ] The absence of an instruction concerning accident and the actus reus fails to make clear to the jury the distinction between a specific intention to cause death (murder) and causing death without specifically intending it (manslaughter). It makes no distinction between an accidental act and an accidental consequence. It does not explain the substantive differences between the elements of murder and manslaughter.

It does not explain the elements of unlawful-act manslaughter predicated on simple assault. It does not explain that accident in relation to mens rea (intention) and accident in relation to the actus reus are related but distinct factors for their consideration.

As a result, the jury did not have a full explanation of the verdicts that were open to them and the appellant did not have the benefit of the jury’s deliberations in light of such an explanation. [7] [ 33 ] Although the jury’s verdict makes clear that it was persuaded that the appellant intended to kill his brother after planning and deliberation, instructions concerning all matters of defence supported by the evidence would have given the jury a more complete basis on which the jury could evaluate the evidence and the verdicts that were open.

The effect on the jury of an instruction concerning accident and the actus reus is impossible to assess but it is sufficient for this Court to order a new trial. Proviso [ 34 ] In the absence of an instruction concerning accident and the actus reus it cannot be said confidently that the verdict would have been the same; nor can it be said that the appellant suffered no prejudice. The curative proviso is therefore inapplicable. [ 35 ] I would allow the appeal and order a new trial. PATRICK HEALY, J.A.