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Criminal - Defence - 'Accident'. R. v. Suthakaran
In R. v. Suthakaran (Ont CA, 2023) the Court of Appeal considered the criminal defence of 'accident', here in the context of a jury charge:2. Legal Principles
[45] This ground of appeal concerns the sufficiency of the trial judge’s instructions on accident. In its recent decision in R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, the Supreme Court has helpfully summarized the relevant principles for reviewing a jury charge for both accuracy and sufficiency. The sufficiency of an instruction is properly assessed in a functional manner, considering the impugned instruction in the context of the entire charge and the trial as a whole: at para. 53. The overriding question is whether the jury was properly equipped to decide the particular issues. An instruction may be insufficiently detailed in one part of the charge but can be supplemented by another part to provide the jury with a sufficient understanding of the law to decide the case. The level of detail depends on the circumstances of each case. The judge has a duty to decant and simplify the law: at paras. 54, 56.
[46] In the criminal law context the term “accident” is used to signal one or both of the following: that the act in question was involuntary, thereby negating the actus reus of the offence; or that the accused did not have the requisite mens rea: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 186. Accident in the sense of an unintended act and accident in the sense of unintended consequences are distinct defences, and where viable both must be put to the jury: Mathisen, at para. 95; see also R. v. Culliton (2000), 2000 CanLII 1093 (ON CA), 128 O.A.C. 95 (C.A.), where both accidental discharge of a gun and lack of intent were viable defences: at para. 8.
3. Discussion
[47] As I will explain, the jury was properly and sufficiently charged on the defence of accident in this case, both in the sense of the shooting having been an unintended act and the victim’s death an unintended consequence.
[48] First, the charge properly addressed the defence of accident as an unintended act. The trial judge instructed that, if the jurors were satisfied that the appellant was the shooter, they had to consider whether the gun discharged accidentally when the appellant was brandishing it. At the pre-charge conference the appellant’s counsel acknowledged that the defence of accident in this sense was in play. It was acknowledged that, if the appellant was the shooter, and the gun had discharged, unless the brandishing of the gun was legally justified, the shooting would amount to manslaughter through the unlawful act of careless use of a firearm.
[49] It was in the context of his discussion of the third element of the lawful defence of a third party that the trial judge instructed the jury about the need to decide whether the appellant “meant to fire the gun” or whether the discharge was accidental, and the consequences, in terms of the applicable verdict, of such a determination. As we have seen in the passage set out at para. 29 above, the trial judge instructed the jury that, before deciding whether it was reasonable for the appellant to use the firearm as he did, they must decide whether he meant to fire the gun, and that the discharge of the firearm was not an accident. The trial judge explained that, if the jurors concluded that the gun went off accidentally, they would need to consider whether producing and brandishing the gun was reasonable, and how their determination of this issue would affect the verdict.
[50] The trial judge then referred to some of the evidence relevant to whether the appellant meant to fire the gun: the fact that no gun was ever recovered so there was no evidence as to the condition of it; that none of the witnesses said they saw a gun so there was no description of it or the manner in which it came to be discharged; the fact that the appellant shot his best friend, which was conceded as not something he intended to do; and that, after the shot was fired, he did not, for whatever reason, fire again but instead engaged Mr. Shiyamalaraj physically.
[51] Later in the charge, when addressing the intent for murder the trial judge returned to the question of accident. He stated:It’s implicit in the nature of the mental state required for murder that to prove that mental state the Crown must prove beyond a reasonable doubt that the discharge of the firearm was intentional, not accidental. That is, the Crown must prove that [the appellant] meant to fire the gun. I discussed with you earlier what you should take into account in that respect. If you are satisfied, in accordance with my earlier instructions, that [the appellant] committed culpable homicide, but you’re not satisfied that he meant to fire the gun, you must find him not guilty of murder but guilty of manslaughter. [52] I see no deficiency in the trial judge’s charge as it related to the defence of “accident”, meaning whether or not the appellant meant to fire the gun. As I have already explained, the trial judge carefully crafted the charge to ensure that the appellant was left with an available route to acquittal if the jury accepted that he was acting in defence of his friend when he brandished the gun and if they had a reasonable doubt as to whether his actions were not reasonable.
[53] These instructions related to the possibility that the act of shooting was unintended. “Accident” may also refer to an unintended consequence. In his factum, the appellant says that the trial judge failed to focus on the negation of mens rea and whether the claim of accident demonstrated the absence of one of the elements of the offence charged.
[54] As this court noted in R. v. Groves, 2023 ONCA 211, at para. 50, accident in the sense of an unintended consequence is best handled as part of the mental element of the offence charged. That is what happened in this case. The trial judge provided a thorough and accurate instruction on the mental elements of the offence of murder. As such, “no further instruction was required to put before the jury [the] defence of an unintended consequence”: Mathisen, at para. 73. And, as in Groves, for the trial judge to have instructed the jury as to the difference between an accidental act and an accidental consequence would have been confusing: at para. 51.
[55] The trial judge did what he was required to do in respect of the defence of accident. He provided instructions relevant to the defence of accident that were appropriate to the context of the case. He “decanted and simplified”, and he avoided unnecessary, inappropriate and irrelevant legal instruction that might divert the jury’s attention from the disputed issues: Groves, at para. 46. See also Abdullahi, at para. 56. . R. v. Ethier
In R. v. Ethier (Ont CA, 2023) the Court of Appeal considered 'accident' as a criminal defence:[46] A defence to a criminal charge that what occurred was an “accident” may mean one of two different things: (a) the act in question was involuntary (negating the actus reus of the offence); or, (b) the accused lacked the requisite mens rea: R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at para. 186[2].
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