2015 QCCA 1910, 2015 QCCA 1910

Gendreau c. R. 2015 QCCA 1910 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL N° : 500-10-005100-126 (450-01-063634-104) DATE: November 19, 2015 CORAM: THE HONOURABLE MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. GUY GAGNON, J.A. JACQUES GENDREAU APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] On January 18, 2012, a jury presided by the Honourable Gaétan Dumas, J. of the Superior Court, convicted the appellant of careless use of his firearm (s. 86(1) Cr. C. ).

He appeals. [ 2 ] For the reasons of Gagnon J.A., with which Bich and Kasirer JJ.A. agree; THE COURT: [ 3 ] DISMISSES the appeal. MARIE-FRANCE BICH, J.A. NICHOLAS KASIRER, J.A. GUY GAGNON, J.A. Mtre Jean-Philippe Marcoux Gariépy St-Onge Marcoux For the appellant Mtre Daniel Royer and Mtre Andy Drouin Criminal and Penal Prosecutors For the respondent Date of hearing: April 14, 2015 REASONS OF GAGNON, J.A.

[ 4 ] On January 18, 2012, a jury presided by Gaétan Dumas, J. convicted the appellant Jacques Gendreau of careless use of his firearm while moose hunting (count 2). He was, however, acquitted of the charge of criminal negligence causing bodily harm to the person injured by his shot (count 1). [1] [ 5 ] The appellant asks us to substitute the verdict under appeal with an acquittal or to order a new trial. Essentially, his grounds of appeal allege the insufficiency and vagueness of the instructions to the jury.

He also criticizes the trial judge for failing to intervene to correct certain errors in the Crown’s submissions to the jury. Background [ 6 ] The appellant is a construction worker. Every fall, he goes to the land belonging to his brother Daniel, who owns the family home, to hunt moose. Daniel owns 180 acres of grassland and forests, including a fir stand neighbouring a river near the American border. [ 7 ] Saturday, October 17, 2009, was the opening day of the gun moose hunting season.

The regulation applicable at the time indiscriminately authorized the killing of bulls, cows and calves. [ 8 ] That day at dawn, the two Gendreau brothers left to go hunting. Once at the site, they decided to separate. Daniel chose to go towards a salt lick [2] on the neighbouring land, while the appellant opted for a blind in a neighbouring area. [ 9 ] After calling the moose, [3] Daniel detected certain indications that suggested the presence of game in the area. His intuition was accurate. He saw a cow moose not far from his location. He fired, but missed his target.

The frightened animal fled the area, followed closely by a calf. [ 10 ] After that episode, the two brothers met up to talk about their misfortune. Daniel had to stop the activity, however, because other obligations he had planned for the day were waiting for him. The appellant also decided to stop hunting for the moment. Confident about the potential of the area, he planned to return mid-afternoon. [ 11 ] In the meantime, they went to a gravel pit where locals practice rifle shooting.

They ran into an acquaintance there by the name of Jérémie Rouleau, who was with two strangers, Jean-Christophe Beloin and his spouse Vanessa Désorcy. The four of them were on the verge of sharing a tragic destiny. [ 12 ] Around 3:30 p.m., the appellant returned to the spot where Daniel had fired earlier. Once there, he loaded his weapon, taking care to set the safety catch. Shortly after this manoeuvre, he heard a [ translation ] “sloshing” sound like that of a moose walking through a swamp. He says that he saw [ translation ] “legs going by, grey legs”.

He then saw [ translation ] “a solid shape, silhouette, black, brown- black, which I could see through [a] fir tree”. He also used the word [ translation ] “shadow” to describe what would become his target. [ 13 ] He states that at that moment, [ translation ] “for me, the game was identified”. It was a calf. He examined the target with his naked eye. He also looked at it two or three times through the scope on the top of his rifle. He testified that, when he pulled the trigger, he said to himself, [ translation ] “I can’t hit it in the buttocks because that’s not a vital point”.

He aimed higher, released the safety, and fired. [ 14 ] He hit the target, but observed that the [ translation ] “moose” was trying to get back up. He moved quickly towards where he believed the animal had fallen, reloading his weapon right away. He then heard a person (Jean-Christophe Beloin) yell at him, [ translation ] “Christ, you shot my girlfriend”. Stupefied, he discovered that his target was one of the people he had met a few hours earlier at the gravel pit. It was Vanessa Désorcy (the “victim”). [ 15 ] The victim had a serious abdominal injury.

She has recovered from her injuries but not without permanent sequelae from this shot. Issues raised by the appellant [ 16 ] The appellant asks us to answer several questions, which I summarize as follows: 1. Did the judge err in failing to instruct the jury about the three stages in W.(D.) ? [4] 2. Did the judge err in failing to instruct the jury on the actus reus and the mens rea applicable to the offence of careless use of a firearm and that of criminal negligence causing bodily harm (of which, however, Gendreau was acquitted)? 3.

Did the judge err in allowing the victim to testify on the extent of her physical and psychological injuries, despite the appellant’s admission at the beginning of the trial concerning precisely this point ? 4. Did the judge err in allowing the jury to examine the appellant’s rifle during their deliberations without this authorization being preceded by a caution? 5. Did the judge err in his instructions by failing to correct the inaccuracies in the Crown’s submissions? 6. Did the judge err in his instructions by making contradictory remarks about Michel Brault’s qualification as an expert?

[17] The position adopted by the appellant suggests that the verdict was unreasonable, although this is not an explicit ground ofappeal. Let us consider.

The Law [18] It is useful at the outset to reproduce the Criminal Code provision creating the offence of which the appellant was convicted: Usage négligent 86(1) Commet une infraction quiconque, sansexcuse légitime, utilise, porte, manipule,expédie, transporte ou entrepose une arme à feu,une arme prohibée, une arme à autorisationrestreinte, un dispositif prohibé, des munitions oudes munitions prohibées d’une manièrenégligente ou sans prendre suffisamment deprécautions pour la sécurité d’autrui.

Careless use of firearm, etc. 86(1) Every person commits an offence who,without lawful excuse, uses, carries, handles,ships, transports or stores a firearm, a prohibitedweapon, a restricted weapon, a prohibited deviceor any ammunition or prohibited ammunition in acareless manner or without reasonableprecautions for the safety of other persons. [19] Crimes of penal negligence, like the one in this case, are not easily understood.

In this respect, Sopinka J. wrote that “[t]his areaof the law, both here and in other common law countries, has proved to be one of the most difficult and uncertain in the whole of thecriminal field”.[5] The main difficulty in objective criminal liability cases probably arises from the fact that the actus reus and the mensrea of this type of offence are closely related notions, hence the risk of confusing one for the other because of the objective element theyshare. [20] Scholarly commentary has defined the purpose of subsection 86(1) Cr. C. thus: This

section is aimed at protecting people from the careless acts of others that may result in injury caused by this carelessness. Becausefirearms and ammunition have a potential for causing serious injury or death, Parliament has recognized that it is important that personsin possession of such items have a duty to use, carry, handle, ship and store them in a careful and safe manner.[6] [21] The case law, for its part, summarizes the central element of this offence in these terms: 21. … The gravamen of the offence is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person.

If areasonable doubt exists, either that the conduct in question did not constitute a marked departure from that standard of care, or thatreasonable precautions were taken to discharge the duty of care in the circumstances, a person cannot be found guilty of the offence: R. v.Finlay, (SCC), [1993] 3 S.C.R. 103, at p. 117.

In addition, in order to attract criminal liability, the person’s conduct mustbe without lawful excuse.[7] [22] Based on the foregoing, it is easy to say that the provision at issue obliges all users to use a firearm with diligence or to takesufficient precautions so as not to compromise the safety of other persons.

Unless he or she has a lawful excuse, such as defence ofproperty,[8] the accused’s conduct will be judged according to an objective standard of care. [23] The majority opinion of the Supreme Court expressed by Charron J. in Beatty[9] provides the analytical framework applicablein this case, mutatis mutandis. [24] The teachings in that judgment urge us to define the actus reus according to the terms of the provision at issue. In this case, thematerial aspect of the offence in subsection 86(1) Cr. C. contains two elements, but proof of one of the two suffices to establish theoffence.

The trier of fact must determine beyond any reasonable doubt whether, from an objective standpoint, the accused used a firearm“[1] in a careless manner or [2] without reasonable precautions for the safety of other persons”.

At this preliminary stage, the analysismust focus on the objective assessment of the accused’s conduct or, if appropriate, the insufficiency of precautions at the time thefirearm was used. [25] Taking into account all of the circumstances, this evidence is essentially based on the conduct of the accused when he used thefirearm, the location of the incident, and the riskiness of the situation.[10] [26] As for the mens rea of this offence, it is based on proof beyond any reasonable doubt that the careless use of the firearm was amarked departure from the standard of care of a reasonable person placed in the same situation as the accused.[11] Once again, theobjective test is the central element in deciding this issue. [27] I note in passing that the analysis of the mens rea in criminal negligence cases is not based solely on the conduct expected of areasonable person, which would bring us too close to the standard of conduct of simple imprudence, hence the importance of the“modified” objective test adopted by the Supreme Court in Hundal.[12] The evidence must instead demonstrate a marked departure frombehaviour that a so-called reasonable person would have adopted in the same situation.

Evidence of a marked departure remains aquestion of degree left to the assessment of the trier of fact. [28] While the Crown is not obliged to prove that the accused had the subjective intent to handle the firearm carelessly, the objectivemens rea does not ignore his state of mind.

Such proof, if it exists, is based primarily on the demonstration of his mental state of care atthe time of the event,[13] that is to say, that of failing to bring to the activity the expected degree of thought and attention it required.[14]Such proof may be found in insufficient precautions taken by the user when undertaking the dangerous activity. [29] If it is shown that the accused had the requisite capacity of discernment to appreciate the inherent risk in his conduct, in the

absence of the appropriate mental state of care, the inference drawn from the accused’s negligent behaviour that departs markedly from that of a reasonable person is sufficient to establish mens rea : ... If a person has committed a manifestly dangerous act, it is reasonable, absent indications to the contrary, to infer that he or she failed to direct his or her mind to the risk and the need to take care. [15] [ 30 ] I would also add that the objective mens rea may also be inferred from the very nature of the activity during which the blameworthy act took place.

In the case before us, no one would dispute that moose hunting is a highly regulated activity (hunting permit, possession and acquisition licence, certificate of registration, etc.). As Cory J. wrote in Hundal : ... Licensed drivers choose to engage in the regulated activity of driving [here, moose hunting] ...

They place themselves in a position of responsibility to other members of the public who use the roads. [here, other hunters]. [16] [ 31 ] In Beatty , Charron, J. was inspired by this excerpt to opine that those who decide to engage in an activity that is regulated because it is dangerous “and fail to meet the requisite standard of care cannot be said to be morally innocent”. [17] [ 32 ] If the accused provides an explanation, however, as in this case, the trier of fact must consider whether a reasonable person in similar circumstances “ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused”. [18] [ 33 ] I would therefore summarize the task of the trier of fact called on to determine the guilt of an individual charged with the offence under subsection 86(1) Cr.

C . as follows. First, the trier of fact must determine whether the material elements of the offence have been objectively demonstrated beyond any reasonable doubt, that is, that there was careless use of a firearm or use without reasonable precautions.

Then, in the second stage of the analysis, before arriving at a guilty verdict, the trier of fact must be convinced beyond any reasonable doubt that the conduct in question departs markedly from the standard of care of a reasonable person placed in circumstances similar to those prevailing when the accused used the firearm. [19] Such a conclusion requires consideration of any legitimate excuse emerging from the evidence that is capable of raising a reasonable doubt. [ 34 ] In reality, it is clear that the risk of prejudice associated with the use of a firearm is very high.

It is expected that a reasonable person engaging in a hunting activity will display a high degree of foresight. The case law provides several examples of blameworthy behaviour in criminal negligence cases with firearms (ss. 220 and 221 Cr.

C .), [20] the teachings of which, bearing in mind the appropriate standard (marked departure), may be imported to determine the criminal liability of an individual charged with careless use of a firearm. [ 35 ] Thus, while taking care not to establish an official standard to support a conviction for negligence involving a firearm, Gonthier J., writing for the Supreme Court in Morrisey , wrote the following: … Simply stated, shooting without adequately determining the nature of the target is a marked departure from the behaviour of a prudent hunter. [21] [ 36 ] The judge’s instructions to the jury had to be in harmony with the analytical criteria set out above.

Before determining whether this was the case, I reiterate that the appellant was acquitted of the charge of criminal negligence causing bodily harm (count 1). This offence is, to a certain point, related to that of careless use of a firearm (count 2). Therefore, it must be borne in mind that inadequate instructions to the jury with respect to count 2, as argued by the appellant, did not interfere with his acquittal on count 1. This observation must not be forgotten in the analysis that follows. Analysis

(1) The judge’s decision not to provide instructions in accordance with W.(D.) [ 37 ] The appellant maintains that, where there is contradictory evidence, the judge must instruct the jury in accordance with the three stages proposed in W.(D.) . He is wrong. Here is why. [ 38 ] First, the evidence on the determinative facts of the events of October 17, 2009, is not contradictory. The appellant admits that, while he was moose hunting, he shot at a target that turned out to be the victim. The circumstances around his act are essentially accepted.

The actual debate at trial was on another level; it involved the jury deciding whether the appellant’s conduct demonstrated a marked departure from the standard of conduct of a reasonable person. [ 39 ] Second, the analytical approach proposed in W.(D.) “is not a sacrosanct formula that serves as a straitjacket for trial courts”. [22] On this question, even if the credibility of the main actors in this case were at issue, a flexible analytical method adapted to the situation was still the best approach: [t]he assessment of credibility will not always lend itself to the adoption of the three distinct steps suggested in W.(D.) ; it will depend on the context.

What matters is that the substance of the W. (D.) instruction be respected. [23] [ 40 ] I add that a literal expression of the three-part instructions in W.(D.) is not always appropriate for analyzing evidence of objective criminal liability. Here, even if the jury believed the appellant regarding his subjective perception of the facts, the question remained. The offence at issue is based on the appellant’s negligence, not his culpable intent to act negligently.

An unreasonable belief, even if sincere, may still be negligently held or may not have been the subject of sufficient precaution. [24] [ 41 ] In this case, even if the jury had believed in the sincerity of the appellant’s subjective beliefs, it clearly could not give credence to his statements that his target was an actual “moose”:

[ translation ] • I dropped the moose. • I saw that the moose was trying to get back up. • In the scope, what I saw was a small moose. • Even today, it’s still a moose. • That was a moose. • Yes, it was the moose. • That’s what I saw, the moose was trying to get up. • The buttocks, the back [of the upper part of the moose]. • But, for me, it was a moose. [ 42 ] In fact, what the appellant saw was nothing more than [ translation ] “a solid shape, silhouette, black, brown-black...” or a [ translation ] “shadow”. This conclusion is inescapable precisely because of the result of the shot.

In this respect, the victim and the witness Beloin did not testify that they saw a moose likely to confuse the appellant in their immediate environment. As for his claim that he saw [ translation ] “grey legs”, it turns out that the victim was wearing black boots. [ 43 ] Finally, the judge also reminded the jury nearly twenty times of its duty to consider the existence of a reasonable doubt at all stages of its analysis. No more is needed to respect the spirit of W.(D.).

(2) The insufficiency of the instructions regarding the actus reus and mens rea of the offences of careless use of a firearm (count 2) and criminal negligence causing bodily harm (count 1) [ 44 ] In support of his argument whereby the judge gave insufficient instructions to the jury regarding the actus reus and mens rea of the offence of careless use of a firearm, the appellant submits five grounds that are intended to demonstrate his point of view. [ 45 ] Before ruling on each of these sub-issues, I believe that the statement whereby the judge refused to provide the jury with instructions regarding the actus reus and the mens rea of the two offences for which the appellant was standing trial cannot be verified by reading the transcript of the trial hearing. [ 46 ] As for the actus reus of the offence of criminal negligence causing bodily harm, the judge clearly explained to the jury the essential elements of this offence, which are the identity of the perpetrator, the location of the events, the act allegedly committed by the appellant in relation to the terms used in the charge, and its causal relationship with the bodily injuries identified in the victim. [ 47 ] As for the mens rea of this offence, here is an excerpt of the instructions dealing with this point: [ translation ] A small mistake or momentary lapse of attention that tragically results in bodily injury is not sufficient to constitute criminal negligence.

The prosecution does not have to demonstrate that Jacques Gendreau intended to injure Vanessa Désorcy or anyone at all. What the prosecution must prove beyond any reasonable doubt is that Jacques Gendreau, when he fired without identifying his target or failed to handle his firearm prudently, displayed an outrageous and reckless disregard for the consequences of his actions. Criminal negligence requires more than carelessness on the part of the accused.

What the accused did or did not do must represent a substantial departure from what a reasonable and prudent person would have done in the same circumstances. [25] [ 48 ] As for the offence of careless use of a firearm, even though the judge did not explicitly refer to the notions of actus reus or mens rea in his instructions, as I will point out further on, they nevertheless contained all the ingredients. [ 49 ] It is now appropriate to respond to each of the appellant’s submissions on the insufficiency of the instructions dealing with these notions. (

i) The distinction between civil negligence and criminal negligence [ 50 ] Before the Court, the appellant argued that the judge should have emphasized the fundamental distinction between civil negligence and criminal negligence to the jury. [ 51 ] And yet, when the judge gave his instructions on the charge of criminal negligence causing bodily harm, he did discuss this issue. Here are the relevant excerpts: [ translation ] ... Don’t forget that Jacques Gendreau’s conduct must display outrageous, reckless disregard for the life or safety of other persons.

A small mistake or momentary lapse of attention that tragically results in bodily injury is not sufficient to constitute criminal negligence. …

Criminal negligence requires more than carelessness on the part of the accused. What the accused did or did not do must represent a substantial departure from what a reasonable and prudent person would have done in the same circumstances. [26] [Emphasis added.] [ 52 ] The judge was not obliged to confuse the jury with more or less subtle distinctions between notions relating to the standards of civil negligence and criminal negligence. Careless use or the breach of a duty of sufficient precaution is now characterized as “penal negligence”.

Since the Supreme Court judgments in Gosset [27] and Naglik , [28] it has become the standard applicable to this offence. As Charron, J. points out in Beatty , “it is important not to conflate the civil standard of negligence with the test for penal negligence”. [29] [ 53 ] It is true, however, that the instructions regarding the charge of careless use of a firearm do not precisely distinguish the elements relating to the actus reus of the offence from those constituting the mens rea .

I find that this omission, if it is one, did not mislead the jury. [ 54 ] The fact that the judge did not use technical expressions such as actus reus and mens rea is far from an error, quite the contrary.

Judges presiding jury trials are urged to use plain and understandable terms in their instructions. [30] What is important is the message conveyed, which must clearly express the burden of proof applicable to the Crown and not a sacrosanct formula that is poorly adapted to the circumstances of the case, from which deviation cannot be tolerated. [ 55 ] I note that the jurors were given a written version of subsection 86(1) Cr. C . As we have seen, a mere reading of this provision is sufficient to reveal the material element of the offence.

There were also admissions made at the outset of the trial, along with explanations from the appellant, which for the most part were not contradicted.

It was up to the jury to identify, based on this evidence, the elements of negligence in the appellant’s conduct or to assess the insufficiency of his precautions for the safety of others before it could conclude beyond any reasonable doubt that the actus reus was established. [ 56 ] This excerpt from the written instructions given to the jury concerns precisely the first stage of the analysis it was required to do: [ translation ] Did Jacques Gendreau use a firearm carelessly or without taking sufficient precautions for the safety of other persons?

The use of a firearm is an activity involving control over an object that can kill or seriously injure a person. Criminal statutes pay particular attention to persons who have control of firearms. We expect people who deliberately use firearms to act in a way that respects the inherent risk of a firearm injuring another person . To answer this question, you do not need to decide what Jacques Gendreau was thinking when he used the firearm. Negligence is the absence of necessary care. To answer this question, you must look at : 1. What the accused did or did not do ; 2. How the accused acted or did not act .

You must consider all of the circumstances, including all of the personal characteristics of Jacques Gendreau that might have deprived him of the capacity to be aware of the requisite duty of care . [31] [Emphasis added.] [ 57 ] The decision tree the judge gave each member of the jury [32] is even more explicit in this respect: Did Jacques Gendreau use a firearm? No. → Final verdict not guilty ↓ yes Did Jacques Gendreau use a firearm carelessly or without taking sufficient precautions for the safety of other persons?

No. → Final verdict not guilty ↓ yes Did the accused’s conduct constitute a marked departure from the standard of care that a reasonable person would observe in the circumstances?

No. → Final verdict not guilty ↓ yes Final verdict of guilty [ 58 ] This analytical tool reveals that the two first questions the jury had to answer specifically contemplated the actus reus of the offence of careless use of a firearm, while the third was focused on the mens rea . [ 59 ] I would add that, in this case, the appellant could not have been prejudiced by an instruction that did not clearly distinguish between the notions of actus reus and mens rea .

Saying that the jury understood from the impugned instructions that the notion of marked departure applied to the actus reus , which I do not decide, is like saying that the Crown was required to meet an additional burden at the initial stage by having to demonstrate a degree of negligence equivalent to a marked departure from the standard of care of a reasonable person. As we have seen, however, the notion of “marked departure” is relevant only at the mens rea stage of the analysis.

[ 60 ] With regard to this last element, the instructions appear to me to be adequate and sufficiently understandable to attain the degree of effectiveness required in this case.

I add that pointlessly complex instructions could have done a disservice to the ends of justice by creating a risk that the jury would lose itself in speculation on the true nature of the moral element of the charge at issue. [ 61 ] The judge appropriately explained what was essentially the central issue before the jury, i.e., whether the appellant’s behaviour represented a marked departure [ translation ] “from the standard of care of a reasonable person”.

Here are the relevant passages from the instructions on which I rely to reach this conclusion: [ translation ] To determine whether there is negligence, the test is objective and is that of a marked departure from the standard of care of a reasonable person. Jacques Gendreau is a hunter. The fundamental question is therefore whether the actions of the accused constitute a marked departure from the conduct of a reasonable member of the group of hunters. You must therefore consider the following questions: 1.

Did the accused’s conduct constitute a marked departure from the standard of care that a reasonable person would observe in the circumstances of the offence? When hunting, hunters must not pull the trigger of their weapon unless they have the reasonable conviction that their target is not a human being. They must reasonably ensure that their target is the animal they have the right to hunt. To answer this question, you must analyze the evidence as a whole.

You must ask yourself whether a reasonably prudent hunter, placed in the same circumstances, could reasonably believe that he was shooting at an animal and not a human being. Could the fact that the victim’s clothes were similar in colour to a moose establish this reasonable belief? It is up to you to decide. It is up to you to decide whether the accused took precautions and committed a reasonable error. Hunting gives rise to reasonable and unreasonable accidents, just as the use of firearms may give rise to reasonable and unreasonable accidents in other circumstances.

Every one of these accidents is tragic, but they are not all sources of criminal liability.

It is up to you to decide. [33] [ 62 ] I note that these teachings closely follow the model instructions proposed by the National Judicial Institute. [34] Although I do not state that the instructions suggested by this body guarantee the required effectiveness in all circumstances, [35] the fact remains that the appellant has not drawn our attention to a judgment that questions the model used by the judge. [ 63 ] This time, in fact, the instruction is closer to the type given for criminal negligence, which has already been approved by the Court of Appeal of British Columbia: [36] [43] The judge’s charge in this area closely followed the model instruction prepared under the auspices of The Canadian Judicial Council, …. … [48] The judge correctly made clear to the jury that they must find both the actus reus and the mens rea elements of the offence; there is no additional requirement that these elements must be satisfied independently from one another.

Just as a person is presumed to intend the consequences of his or her actions, mens rea must always be inferred from conduct to some extent. … [ 64 ] Also, as this excerpt indicates, and even though the judge did not formally address this issue in his instructions, the jury could infer the existence of the requisite mens rea from the appellant’s negligent conduct. Such an inference could also be based on the highly regulated activity practiced by the appellant.

The law assumes that those who engage in this activity are aware of the necessary standard of care. [37] [ 65 ] Upon reflection, in light of the circumstances of the case, more exhaustive instructions in this respect would merely have further reinforced the Crown’s position presented to the jury. (ii) The notion of “marked departure” [ 66 ] The appellant considers that the judge did not sufficiently define the actual scope of the notion of “marked departure” for the jury.

I disagree with this proposition. [ 67 ] After summarizing the main facts adduced into evidence, the judge asked the jury to decide whether the appellant was guilty on the basis of an objective test, namely, whether his behaviour at the time of the events constituted [ translation ] “a marked departure from

the standard of care of a reasonable person”. [ 68 ] He also took pains to point out the various elements in the evidence that could establish the factors of diligence of a reasonably prudent person. He also reiterated the appellant’s argument claiming a reasonable belief based on the fact that the colour of the victim’s clothes was a similar to that of a moose.

Then, after telling the jury that a reasonably diligent hunter must always ensure that the target is indeed the animal he or she has the right to hunt, he added: [ translation ] You must ask yourself whether a reasonably prudent hunter, placed in the same circumstances, could reasonably believe that he was firing at an animal and not a human being. [38] [ 69 ] This instruction corresponds to the examples given by Gonthier J. in Morrisey [39] and drawn from Stewart . [40] (iii) The defence of mistake of fact [ 70 ] The judge’s instructions to the jury left ample leeway for a defence of mistake of fact, despite the undeveloped argument of the defence on this issue. [ 71 ] I note that this defence may arise from the Crown’s evidence or from a mere submission by the accused, without this process placing any type of burden of proof on the accused. [ 72 ] In the context of penal negligence offences, the actus reus , mens rea and the defence of honest but reasonable mistake of fact are notions that have different goals but remain inexorably linked.

They are based primarily on the reasonable person test. [ 73 ] The defence of honest mistake of fact in penal negligence cases consists in determining whether a reasonable person placed in the same situation as the accused would have had the same erroneous perception of the facts if, of course, his or her action had been preceded by reasonable standard precautions to prevent the risk of error. [41] [ 74 ] Once the trier of fact concludes that the evidence demonstrates beyond any reasonable doubt that, having regard to all the circumstances, a reasonable person would not have acted as the accused did, it may also be inferred from this evidence that this same reasonable person would not have made the same mistake if placed in the same circumstances as the accused.

These are, in a way, the two sides of the same coin. [ 75 ] I am of the view that, based on the excerpts from the instructions reproduced above, the jury was adequately instructed on this aspect of the dispute now raised in appeal. [ 76 ] The appellant would have liked the judge to have associated this defence with his actual state of mind to then be able to mention it specifically to the jury. Penal negligence is not concerned with the subjective perception of the accused. At the risk of repeating myself, the objective mens rea is usually inferred from the facts in evidence.

The appellant does not maintain that the

summary of facts narrated by the judge to the jury is vitiated by determinative omissions or inaccuracies. [ 77 ] In addition, the appellant’s mental state of care was discussed at great length throughout the trial. The appellant and his counsel had the opportunity to provide lengthy explanations of the type of precautions he took before firing at the target.

It was up to the jury to assign this argument its actual weight. (iv) Lawful excuse [ 78 ] The appellant claims that the judge should have instructed the jury on the possibility of lawful excuse, in this case an exculpatory defence closely related to his situation.

Other than the defence of mistake of fact, we do not know what lawful excuse could be raised here, as the evidence does not indicate any other. [ 79 ] That said, even though the evidence makes no mention of this point, the judge nevertheless took pains to ask the jury to take into account [ translation ] “all of the personal characteristics of Jacques Gendreau that might have deprived him of the capacity to be aware of the requisite duty of care”. [42] (

v) The failure to tell the jury that the appellant had not breached a regulatory standard [ 80 ] This ground is without merit. [ 81 ] The appellant may very well have hoped for instructions as favourable to his case as possible. He could not, however, demand that they be perfect [43] or that they correspond on all points to his own standards and expectations, especially since his own submissions to the jury failed to refer to several issues that he now wishes to raise in appeal. [ 82 ] In this case, there was no reason to distract the jury with instructions on an issue not related to the application of the objective test to determine the appellant’s criminal liability.

(3) The victim’s testimony [ 83 ] The appellant indicates that, during the presentation of the Crown’s case, the judge authorized the victim to testify about her physical and psychological sequelae from the incident of October 17, 2009. He notes that this evidence had already been admitted at the beginning of trial. He considers this irregular and suggests that it was a strategy indirectly seeking to elicit the sympathy of the jury for this witness. [ 84 ] The Crown quite rightly concedes that the judge’s decision to allow this evidence was unlawful. [44] The appellant is therefore

right to denounce this manner of proceeding. This error, however, could not have had the consequences he attributes to it. [85] During his instructions, the judge reminded the jurors at least three times of its obligation to judge the case without taking intoconsideration the sympathy they might feel towards the victim. He even added that this question was not part of the evidence. [86] Moreover, during his testimony, the appellant made a point of providing a counterweight to this element. He reminded the jurythat he was also a victim in this case.

He recounted the scope of his prejudice, stating that his life was turned upside down by this tragicevent and that he has preserved a painful memory of it, requiring long-term psychological treatment. [87] It must also be noted that this mistake did not prevent the jury from acquitting the appellant for the offence of negligencecausing bodily harm.

(4) The examination of the firearm by the jury during deliberations [88] The appellant states that the judge should not have allowed the jury to examine the rifle during its deliberations. He believesthat this decision authorized the jury to [translation] “experiment, manipulate or reproduce” his actions in his absence. [89] This criticism originates from an objection to the evidence upheld by the judge, which prohibited the prosecution from aneleventh-hour filing of photographs showing the different zooms the appellant had on his rifle telescope.

The judge rejected thisevidence [translation] “because then you might want to infer that if he had set it at nine (9), he would have seen the woman”.

He added, [translation] So, what is it going to show if you show what zero (0) is, or three (3), or six (6), or nine (9), when what you actually want to prove isthat it was at 4.5. ...[45] [90] The appellant believes that giving the rifle to the jury circumvented this decision. [91] I agree with the Crown that, with some exceptions, the jury has the right to have in its possession all of the exhibits filed attrial.[46] [92] Moreover, I find that the authorization now being impugned was given with the agreement of counsel for the appellant and thatthis strategic choice has not been repudiated since then.

In addition, the statement that the jury did some [translation] “experiment” isnothing more than speculation.

The fact that a jury during deliberations is interested in an exhibit filed into evidence at trial does notground the inference that it must be an additional piece of evidence being presented in the absence of the accused.[47] [93] Through his decision, the judge prevented the prosecution from proving what a reasonable person could have done in the samesituation as that in which the appellant found himself. [94] This evidence did not seek to establish what the appellant should have done in such circumstances, but rather what he couldhave done.

I note in passing that the prosecution’s submissions to the jury on this issue respected this important distinction. I shall returnto this subject. [95] In any event, the jury had already been presented with evidence whereby the appellant’s scope was adjusted to level four or fivemagnification and that it had the capacity to enlarge the image up to nine times. [96] The appellant also stated that he looked through the scope two or three times before firing, suggesting that using this instrumentallowed him to better see his target.

This evidence clearly sought to emphasize his diligence in the circumstances. [97] This information about the use of the scope came from the appellant himself. This is therefore not one of those rare situations inwhich a jury was contaminated by prejudicial information that has been formally excluded from the trial. [98] In this case, because of the very nature of the evidence admitted, the jury could examine the firearm to form its own opinion. Asthe Supreme Court noted in Pan:[48] [61] Jurors are expected to bring to their task their entire life’s experiences.

It is on the basis of what they know about humanbehaviour, knowledge that they have obviously acquired outside the courtroom, that they are requested to assess credibility and to drawinferences from proven facts. …. [99] Ultimately, I find that the lack of objection on this issue seems significant in terms of the lesser seriousness of this so-calledirregularity to which the appellant refers us at the appeal stage.[49] If the judge did indeed err by giving the rifle to the jury withoutaccompanying that decision with a specific instruction,[50] this error, if it is one, cannot have led to a miscarriage of justice, given theweight of the evidence against the appellant: 29. … As stated by Lamer C.J., for the Court, in R. v.

Tran, (SCC), [1994] 2 S.C.R. 951, at p. 1008, “[s]ection 686(1)(b)(iii) is designed to avoid the necessity of setting aside a conviction for minor or ‘harmless’ errors of law where the Crown can establishthat no substantial wrong or miscarriage of justice has occurred.” … 31. In addition to cases where only a minor error or an error with minor effects is committed, there is another class of situations in whichs. 686(1)(b)(iii) may be applied. This was described in the case of R. v.

S. (P.L.), (SCC), [1991] 1 S.C.R. 909, at p.916, where, after stating the rule that an accused is entitled to a new trial or an acquittal if errors of law are made, Sopinka J. wrote: There is, however, an exception to this rule in a case in which the evidence is so overwhelming that a trier of fact would inevitably

convict. In such circumstances, depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when theinvariable result would be another conviction. Therefore, it is possible to apply the curative proviso even in cases where errors are not minor and cannot be said to have had only aminor effect on the trial, but only if it is clear that the evidence pointing to the guilt of the accused is so overwhelming that any otherverdict but a conviction would be impossible (see R. v. Nijjar, (SCC), [1998] 1 S.C.R. 320; Alward v. The Queen, (SCC), [1978] 1 S.C.R. 559; Ambrose v.

The Queen, (SCC), [1977] 2 S.C.R. 717; Dufresne v. LaReine, (QC CA), [1988] R.J.Q. 38 (C.A.); R. v. Welch (1980), (SK CA), 5 Sask. R. 175 (C.A.)). [51] [Emphasis added.] [100] In stating the above, I also bear in mind the fact that the same jury acquitted the appellant of criminal negligence causing bodilyharm to the victim.

(5) The judge’s fault for failing to correct the errors in the Crown’s pleading when instructing the jury [101] The appellant claims there are seven inaccuracies or exaggerations in the Crown’s arguments. In his view, these errors had thecumulative effect of irremediably vitiating the trial. He concedes, however, that the respondent’s argument was not incendiary. [102] Once again, with the perspective available at the appeal stage, the appellant raises more issues in his appeal than he put forwardin his conference with the judge before the instructions were given to the jury. (

i) The Crown’s submissions on the notion of “marked departure” [103] The appellant maintains that the Crown left no room for an acquittal when arguing that the jury could choose between asubstantial marked departure[52] or a marked departure. [104] An attentive reading of the transcript of the Crown’s submissions clearly shows that the notion of substantial marked departurepresented to the jury was intimately related to the offence of criminal negligence causing bodily harm, of which the appellant was in factacquitted. [105] As for the charge of careless use of a firearm, the prosecution took care to explain to the jury that its burden consisted of[translation] “proving a marked departure from what a reasonable ... person would have done”.[53] This statement respects the state ofthe law regarding careless use of a firearm. (ii) The Crown’s submissions on the appellant’s interest in his own trial [106] The appellant is correct to argue that every accused has an interest in obtaining an acquittal especially if he or she claims to beinnocent of the offence charged.

The Crown’s submissions on the appellant’s interest in the outcome of his trial were improper, and itgoes without saying that remarks of this nature before a jury should be proscribed.

In this case, however, their effect cannot have beenprejudicial if we consider the appellant’s acquittal on the charge of criminal negligence. (iii) The Crown’s submissions on the lack of any indication by the witnesses Désorcy and Beloin’s that there was an animal intheir immediate vicinity [107] In my view, the Crown was right to remind the jury that the victim and her boyfriend at the time, the witness Beloin, did nottestify that they saw a large game animal in their immediate vicinity. [108] According to the location of the noise associated with a moose crossing a swamp, as related by the appellant, the animal wasallegedly at approximately the same place as the two victims, which normally should have drawn their attention since they weresupposedly closer to the target than the appellant himself.

It was therefore logical to infer from the circumstances that the witness Beloinand the victim, both accompanied by Jérome Rouleau, had not seen a moose at the very spot the victim was hit by a bullet. (iv) The Crown’s submissions on the way the appellant used his scope [109] The appellant suggests that the Crown induced the jury into error by declaring that the accused should have used his scope atfull magnification. Contrary to this claim, however, the Crown did not argue that the appellant should have adjusted his scope to a higherlevel.

Rather, the Crown stated that he appellant could have set his scope to a higher level to further magnify the image, given theuncertain conditions prevailing at the time (view of target partially obscured by a fir tree). [110] This is an important distinction. In the first case, if the Crown had made these remarks, their effect would have been to create anabsolute duty of care, which would have constituted a palpable error of law.

However, by wishing to show the jury that different optionsassociated with sufficient precaution were available to the appellant when he fired at his target, including that of increasing themagnification on his scope, the Crown was simply drawing attention to an element of diligence that might correspond to the conduct of areasonable person. [111] Ultimately, it was up to the jury to determine, based on the context at the time of the events, whether this option identified by theCrown, in addition to the other factors of diligence filed into evidence (such as the recommendations in the hunters’ manual)corresponded to the standard of care of a reasonable person. (

v) Crown’s submissions on elements not in evidence [112] The appellant believes that the Crown was arguing on the basis of elements not in evidence when it told the jury that his desire

to kill game led him to believe that his target was a moose, thus causing him to fire blindly. This criticism must also fail. [ 113 ] To emphasize his degree of diligence or demonstrate the sufficiency of his precautions, the appellant highlighted an element of the context of the incident by recalling that, on that very day and in the same area, his brother had fired at a moose. According to him, this anecdote justified a reasonable belief that he was seeing the same animal several hours later.

It was on the basis of an event experienced by a third party and its impact on the appellant’s reasoning that the Crown could refer to the idea of firing [ translation ] “blindly”. [ 114 ] Moreover, the appellant stated that he saw a solid shape in his scope, a brown-black silhouette. With no further explanation, the shape became a moose which, after being hit, even tried to get up. How can a person aim at a moose, state that he identified the animal in a scope, and hit the target as intended, only to have shot a person? [ 115 ] To paraphrase my colleague Louis Rochette, J.A., in Gougeon v.

R ., [54] the comments of the Crown aimed to signal to the jury that the appellant’s desire to kill a moose had replaced reason, and illusion had replaced reality. [ 116 ] The issue of whether the appellant had made sure to properly identify the target before firing was the critical element of the trial, to which the Crown had to draw the jury’s attention. (vi) The Crown’s submissions on the appellant’s beliefs [ 117 ] The Crown was right to argue that the appellant’s beliefs were not necessarily those of a reasonable person, in light of the objective test applicable to the offence at issue. [ 118 ] Even if the jury believed the appellant, it could not have acquitted him without asking whether the precautions he took before pulling the trigger were those that a reasonable person placed in the same situation would have taken.

A negative answer to this question led to another, and the jury then had to ask whether the appellant’s conduct constituted a marked departure from the standard of a reasonable person. [ 119 ] The Crown’s argument was consistent with these analytical criteria. (vii) The Crown’s submissions on the evidence of the hunter training manual [ 120 ] The appellant criticizes the Crown for considering the hunter training manuals filed into evidence as equivalent to a regulatory standard from which no derogation is permitted.

This argument is without merit. [ 121 ] The Crown’s allusions to this piece of evidence constituted an acceptable reference to one of the components of its syllogism relating to the conduct of a reasonable person. It emerges from this documentation that a prudent hunter must properly identify his or her target before firing. Here is an excerpt from one of these texts: [ translation ] Prudent hunters identify their game before firing. They never fire in the direction of a sound, a coloured spot or any other object before knowing that it is indeed the game they are hunting.

They sacrifice a very large catch rather than take the smallest risk of making a mistake. [55] [ 122 ] Also according to the case law, the positive identification of the target constitutes a basic precaution. [56] Counsel for the appellant accepted this level of precaution when she said to the jury, [ translation ] “The game must be properly identified before firing, properly identify the game”. [57] The appellant himself subscribed to this level of diligence when he stated, [ translation ] “Well, before firing, I make sure that it’s really a moose”. [58] [ 123 ] Placed in its original context, the Crown’s argument did not have the goal of elevating the documents filed into evidence to the rank of a law.

The exercise sought merely to emphasize a degree of diligence in hunting cases with which all of the parties agreed. In short, the jury could not have been mistaken as to the actual scope of this evidence. 6. The expert Brault [ 124 ] The appellant is of the view that there is an ambiguity with regard to the expert status of the witness Brault.

This ground of appeal should be rejected. [ 125 ] The record shows that the parties agreed on the qualification of this witness as an expert as early as the pre-hearing conference [59] and again recognized him at the hearing. [60] The judge also introduced him to the jury as a specialist in hunter and trapper training and safety in Quebec. [ 126 ] This witness came to outline the basic safety rules for handling firearms in a hunting context. It was relevant and admissible evidence that the appellant did not really contest.

At the risk of repeating myself, this evidence corresponds in many ways to a degree of diligence that the appellant himself accepted. [61] [ 127 ] There is no doubt regarding the qualification of the witness Brault as an expert, and the jury could not have been mistaken on this question.

(7) The unreasonable verdict [ 128 ] Paragraph 686(1) (

a) of the Criminal Code allows for an appeal from a guilty verdict on the ground that it is unreasonable or cannot be supported by the evidence. The teachings of the Supreme Court in the leading cases Yebes [62] and Biliaris [63] show that a verdict is unreasonable or cannot be supported on the evidence if a properly instructed jury acting judicially could not reasonably have

rendered the impugned verdict. [ 129 ] The alleged erroneous

interpretation of the evidence must go to the substance rather than the detail and have a significant impact for the verdict to be qualified as not founded on the evidence. Thus, the errors identified must have played an essential

part in the reasoning process resulting in a conviction. [64] [ 130 ] In this case, there is no doubt that the appellant was, at a minimum, obliged to use his firearm prudently.

In a hunting situation, a reasonable person fires only after positively identifying the game. [ 131 ] The appellant affirms that he displayed diligence and bases this assertion on the following factors: [65] • he could see clearly in the middle of day, in suitable climactic conditions; • he checked his scope two or three times to properly identify the target; • his brother had missed a game animal in the same area that very morning; • his brother had placed the urine of a cow in heat at this location; • the territory is known for its moose population; • he saw grey legs and a brownish solid shape; • he was on his hunting grounds and no one had informed him of the presence of other hunters; • the surrounding pathways were closed and no one was supposed to have access; • he was entitled to expect other hunters to comply with the regulations including that of wearing an orange vest, which the victim did not do. [ 132 ] First, several elements invoked by the appellant in support of his diligence show instead that he let down his guard because of a subjective belief based on the recent experience of his brother and allegedly favourable conditions grounding his hope of meeting with the coveted game animal. [ 133 ] The appellant then admits that when he fired, [ translation ] “his view was not perfect because of a small fir tree with sparse foliage in front of the target”. [66] He also acknowledges never seeing the animal’s head, choosing the spine as his target instead, while according to him, he could see the calf from [ translation ] “behind”.

Such a target required a high-quality shot, preceded by sufficient precautions to identify the top of the animal’s body. I note, however, that the victim was injured in the abdomen, and she states that she had her knees lightly bent when she was hit. [ 134 ] The appellant also said at trial that the moose calf had a silhouette that looked [ translation ] “exactly” like a person. [67] Although the accuracy of this statement may be doubted, if it is true, such a resemblance required increased vigilance. [ 135 ] What is more, the mere colour of a target is not sufficient to identify it adequately.

That said, the evidence shows that there were forestry activities in the area neighbouring the location where the appellant was. This reality, of which he was aware, could also have led him to suspect the probable presence of forest workers who were not compelled to follow the dress code for hunters.

It is therefore an additional circumstance that should have urged him to exercise even greater prudence. [ 136 ] Because of his past experience, the appellant also knew that the grounds he was on were regularly frequented by other hunters, who might have gained access through different entry points. [ 137 ] The jury clearly found that a reasonable person would not have fired in such conditions and that the appellant’s action was a marked departure from the conduct of a reasonable person in similar circumstances. [ 138 ] I add that the jury could not have been unaware of the appellant’s statement that he had officially identified a moose, when in reality he had seen only a shape, a brown-black silhouette, or even a shadow. [ 139 ] Based on the preceding, there can be no doubt that the guilty verdict rendered by the jury was based on sufficient evidence and that this verdict was among those that a properly instructed jury acting judicially could reasonably render. [ 140 ] To conclude, I note that there is no inconsistency between the acquittal rendered by the jury on the charge of criminal negligence causing bodily harm and the conviction under appeal.

With respect to the first charge, the Crown had to demonstrate a significantly or substantially marked departure, whereas the offence of careless use of a firearm required only proof of a marked departure. [68] Conclusion [ 141 ] For all of these reasons, the appellant has not convinced me that his different grounds of appeal justify the intervention of the Court. Accordingly, I would dismiss the appeal.

GUY GAGNON, J.A.