Supreme Court of Canada
Charbonneau v. R., [1977] 2 S.C.R. 805
Date: 1977-04-04
Armand Emanuel Charbonneau (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1977: February 24; 1977: April 4.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Murder—Possible reduction to manslaughter—Criminal negligence—Adequacy of charge to jury—Criminal Code, s. 212.
Appellant was convicted of non-capital murder in the shooting of his wife. The Ontario Court of Appeal upheld his conviction. An appeal was brought to this Court, by leave. Appellant contended that the trial judge had failed to instruct the jury adequately on the included offence of manslaughter, through appellant’s criminal negligence in his discharging a loaded rifle.
Held (Spence J. dissenting): The appeal should be dismissed.
Per Laskin C.J. and Martland, Judson, Ritchie, Pigeon, Dickson, Beetz and de Grandpré JJ.: We agree with the reasons of the Court of Appeal. We adopt its view that there was no material evidence from which a jury could find any support for the theory, not advanced at the trial, that the death resulted from criminal negligence.
Per Spence J., dissenting: Although the whole defence at the trial was based on the argument that the discharge of the firearm was a pure accident, it was the duty of the trial judge to deal adequately with any other view of the facts, arising out of the evidence, which would reduce the crime from murder to manslaughter. There was evidence here of: (1) negligence in the, handling of a firearm on many occasions and (2) much drinking by the appellant, on which the trial judge left with the jury the possible verdict of manslaughter, only if the jury concluded that the accused discharged the rifle, but, because of his intoxication, he had been unable to form the intent required for the conviction of murder. The same intoxication which would justify the jury in reducing the charge from murder to manslaughter would render more probable criminal negli-
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gence in unintentional homicide. The appeal should be allowed, the conviction set aside and a new trial ordered.
[Mancini v. Director of Public Prosecutions (1941), 28 Cr. App. R. 65; Kelsey v. R., [1953] 1. S.C.R. 220 referred to.]
APPEAL from a judgment of the Court of Appeal for Ontario dismissing an appeal from a conviction by O’Leary J. with a jury on a charge of non-capital murder. Appeal dismissed, Spence J. dissenting.
Edward L. Greenspan, for the appellant.
J. David Watt, for the respondent.
The judgment of Laskin C.J. and Martland, Judson, Pigeon, Dickson, Beetz and de Grandpré JJ. was delivered by
RITCHIE J.—This is an appeal brought with leave of this Court from a judgment of the Court of Appeal for Ontario which affirmed the verdict of guilty of non-capital murder of his wife entered against the appellant at his trial before Mr. Justice O’Leary sitting with a jury.
The argument before this Court on behalf of the appellant was founded on the contention that the learned trial judge had erred in law in failing to instruct the jury adequately as to the defence of manslaughter on the theory that the death resulted from criminal negligence on the part of the appellant in discharging the loaded rifle.
I find myself in agreement with the reasons for judgment of the Court of Appeal and I adopt the following paragraph from that judgment:
The contention that the trial judge was in error in failing to adequately instruct the jury as to the included offence of manslaughter cannot be supported by the evidence. In our view there is no material evidence from which a jury could find any support for the theory, now advanced for the first time in this Court by the appellant, that the death resulted from criminal negligence. This is a theory based on speculation and the defence is not entitled to have a speculative theory presented to the jury for their consideration. In our view there was no evidence to support criminal negligence as distinct from accident.
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I would accordingly dismiss this appeal.
SPENCE J. (dissenting)—This is an appeal, upon leave granted by this Court, from the judgment of the Court of Appeal for Ontario pronounced on March 12, 1975. By that judgment, the said Court of Appeal dismissed an appeal by the accused from his conviction by O’Leary J. of non-capital murder after a verdict by a jury.
I have had the privilege of reading the reasons for judgment which are being delivered by my brother Ritchie. I agree that the sole issue which concerns this Court is whether the learned trial judge erred in failing to leave to the jury the possible verdict of manslaughter based on very great negligence in the handling of a firearm. The learned trial judge had left to the jury the possible verdict of manslaughter only if the jury concluded that the accused had discharged the firearm but due to the degree of his intoxication had been unable to form the intent required for commission of the crime of murder by s. 212 of the Criminal Code as it provided at the relevant time. However, with respect, I differ with my brother Ritchie in concluding that the Court of Appeal for Ontario was correct in concluding that the learned trial judge properly so confined his treatment of the alternate verdict of manslaughter. The Court of Appeal regarded the theory that the deceased woman’s death might have resulted from the accused’s criminal negligence as mere speculation not supported by any evidence.
It is true that able and experienced counsel for the accused based his whole defence on an attempt to convince the jury that the discharge of the firearm was a pure accident and that therefore the homicide did not result from an unlawful act so that the accused should be acquitted. The addresses of counsel to the jury are not set out in the appeal case so I cannot tell whether counsel for the accused urged the jury that even if they found the accused had intentionally discharged the firearm, as contrasted with the finding he urged that the firearm had discharged accidentally, that they should nevertheless find that the accused through his intoxication was incapable of forming the
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necessary intent and so their verdict should be manslaughter. Certainly the learned trial judge put that possible verdict on that very basis very plainly to the jury in his charge.
No place in the record am I able to find any suggestion by counsel for the accused that a verdict of manslaughter based on criminally negligent but unintentional discharge of the firearm should be submitted to the jury. Certainly the learned trial judge not merely failed to put such issue to the jury but he excluded it in the plainest of words, saying:
Now, as is obvious from what has been said by the defence and crown counsel and what I have already said, the first issue that you have to decide here is whether or not what happened was an accident. If you conclude that what happened was an accident, then that is the end of it and your verdict must be not guilty. If you are convinced beyond a reasonable doubt that the shooting was no accident, that it was intentional, then you will still have to decide whether or not your verdict should be guilty of murder or guilty of manslaughter.
In this particular case, there is only one circumstance that could result in a finding of manslaughter. If you decide that the killing was—shooting was intentional, you would still have to consider whether or not the defence of drunkenness applies. The defence of drunkenness will only reduce murder to manslaughter.
Certainly since the pronouncement of Viscount Simon, L.C., in Mancini v. Director of Public Prosecutions[1] at p. 72, there can be no doubt that it is the duty of a trial judge, despite the fact that the defence advanced another and perhaps a contradictory theory, “to deal adequately with any other view of the facts which might reasonably arise out of the evidence given, and which would reduce the crime from murder to manslaughter”. The Lord Chancellor’s ruling by its terms applies to “other views of the fact which might reasonably arise out of the evidence” so this Court has said in Kelsey v. The Queen[2], and it has oft been repeated that a submission requiring such a charge could only be based on the existence in the record of
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evidence which could support it. The Court of Appeal here, as I have said, were of the view that such a theory was mere speculation not based on the evidence.
I am unable to come to such a conclusion. The evidence is that this married couple had lived together for many years and together operated a cleaning business. Both their adult sons gave evidence and described their parents’ domestic life as normal without any real quarrelling although one son Jean Claude Charbonneau inferred that the accused when intoxicated tended to quarrel with the deceased. The same son did give rather vague evidence which might be said to infer that at about 9:00 a.m. on the morning of her death the accused had struck the deceased with an ash tray resulting in a slight cut at the hairline but two employees in the business gave the clearest testimony that the deceased was normal in appearance and disposition all day and accidentally cut her own head on an open cash drawer at 6:30 p.m. in the immediate presence of both who observed the accident. These same two witnesses and many others testified as to normal relationship of the accused and the deceased. The one son Francis Charbonneau described the relationship thus:
It is not a domestic bliss, you know. It is not a honeymoon setting, but it is not—it is not continuous fights or not a honeymoon place; an average domestic scene.
In short, the record fails to reveal any real evidence of motive. Of course, the Crown, if it proves the homicide and the necessary intent, need not prove motive. The lack of motive, however, does tend to strengthen the presumption of innocence of the accused in that it makes less likely that he did the act with necessary intent and therefore that the discharge of the rifle while in his hands might have occurred for some other reason.
The accused, after the fatal shooting, walked directly to the police station and finding it unoccupied wandered into a local beverage room and there sat in what described as a dazed manner consuming beer until approached by a friend Maki and then after a few moments’ casual conversation the accused said to his friend “I shot Rose...it
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was an accident". That same word "accident" the accused used to describe the homicide to Dr. McLachlan who examined him about 3 hours later and his statement made to the police officer later at about 1:00 a.m. described the discharge as occurring accidentally. Perhaps it was this evidence which moved counsel for the accused to stress the defence of blameless accident but I regard it as much more indicative of criminal negligence in handling a firearm, that is, evidence which would have supported a conviction of manslaughter.
This evidence is strengthened, in my opinion, by much evidence that the accused, although an experienced and skilled hunter, was very careless in leaving this same rifle cased or uncased lying about the small apartment sometimes in his bedroom, sometimes in the kitchen, sometimes in the living room, sometimes loaded and with magazine attached sometimes not. Moreover, the evidence revealed that the accused had suffered a serious stroke more than a year before and walked with a decided limp so one could expect him to be awkward. Whether or not a cartridge were in the chamber ready for firing could only be determined by pulling open the bolt of the rifle and that was the very action which the son Francis Charbonneau testified he had seen the accused fail to take on some occasions.
It must also be remembered that there was much evidence that the accused had been drinking during the course of that fatal day. Such evidence the learned trial judge rightly thought required him to charge on the defence of drunkenness. The same intoxication which would justify the jury in reducing an intentional homicide from murder to manslaughter would make more probable criminal negligence in an unintentional homicide.
For these reasons, I am of the opinion that despite the avoidance by the accused's counsel of any defence based on such criminally negligent but unintentional homicide it was the duty of the trial judge to leave that possibility to the jury in his charge.
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I would allow the appeal and direct a new trial.
Appeal dismissed, SPENCE J. dissenting.
Solicitors for the appelant: Pomerant, Pomer-ant & Greenspan, Toronto,
Solicitor for the respondent: The Attorney General for Ontario, Toronto.