Case information

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The following facts were set out by the Court of Appeal. The Appellant testified that while he was having a party at his house, at about 3 a.m., the victim Mr. Charlie came uninvited to the party with other people. The Appellant shot Mr. Charlie with a shotgun which he said accidentally discharged when Mr. Charlie spit and swore at him while he was attempting to eject Mr. Charlie from his house. He and others at the party had poor recall of the shooting as a result of their alcohol consumption. The Appellant had owned the gun for about a year and had fired it on more than one occasion. He did not notice a sensitive trigger and a firearms expert found it had no tendency to accidentally discharge. The Appellant testified the gun accidentally discharged and that he had no intention to kill Mr. Charlie. About ten minutes after the shooting, he called Sergeant Ron Appleton whom he knew. Sergeant Appleton and Constable O'Neill arrested the Appellant on a charge of second degree murder and advised him of his rights.

The Appellant was tried before a jury. Defense counsel, in his address to the jury, discussed three possible verdicts including "not guilty" and "guilty of murder" but asserted that the correct verdict was "guilty of manslaughter". After defense counsel's address to the jury, the trial judge reminded counsel that he did not intend to leave the verdict of "not guilty" with the jury. The trial judge could not see a route to a "not guilty" verdict however the evidence was regarded by the jury. During a discussion of a draft jury charge, the trial judge also advised counsel he could see no air of reality to a line of reasoning that the jury should be instructed that s. 41(1) of the Criminal Code provided a route to a verdict of "not guilty" based on accidental discharge of the shotgun while the Appellant was defending his property. The trial judge did not instruct the jury on s. 41. The trial judge also did not instruct the jury that, with respect to s. 41(2), Mr. Charlie's actions could be found to be an unprovoked and unjustified assault constituting a wrongful act or insult founding the defense of provocation thus reducing the act from murder to manslaughter. The trial judge did instruct the jury that the defense of provocation would only arise if the jury found the shooting was intentional.

The day after the charge, both counsel asserted that the trial judge ought to have left the jury with the possibility of returning a verdict of "not guilty". The trial judge asked the jurors to make changes to written instructions they had received and explained that he had made a legal error in taking away from them a "not guilty to anything verdict." He acknowledged he had made presumptions about findings of fact and referred them to the portion of his charge where he had listed the elements of the offence of murder. The Appellant was convicted of second degree murder. He appealed from his conviction. His appeal was dismissed.