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CRIMINAL CODE OFFENCES - Careless use or storage of firearms

Wednesday, March 27, 2019 @ 8:07 AM  

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Appeal by the accused from conviction for manslaughter. The jury also found the appellant guilty of careless use of a firearm, but the trial judge stayed the charge based on Kienapple. The victim was the appellant’s fiancée. While celebrating their engagement, a rifle the appellant was handling in the kitchen before going target shooting discharged and killed the victim. The appellant argued he was unaware the rifle was loaded and was checking it to ensure it was not loaded. He claimed he inadvertently dropped the rifle which discharged because it struck something on the countertop. After commencing deliberations, the jury asked whether it could convict of one charge without the other. In answering the question and in his jury charge, the trial judge instructed the jury, in effect, that the only way it could convict of careless use of a firearm but acquit of manslaughter was if it found the appellant’s careless use of a firearm had not caused the victim’s death. The judge then effectively removed the possibility of an acquittal on the manslaughter charge when he reminded the jury the appellant had formally admitted the victim died from a gunshot wound.

HELD: Appeal allowed. New trial ordered. The trial judge conflated the mens rea for careless use of a firearm with the mens rea for manslaughter in his charge to the jury. Given that the elements of the two offences were different, the trial judge erred in law in answering the question as he did. If the jury was satisfied the Crown had established the appellant carelessly used a firearm but was not satisfied the Crown had established objective foreseeability of the risk of bodily harm which was neither trivial nor transitory, then it would have returned a guilty verdict on only the careless use charge. In light of this, the answer to the jury’s question amounted to misdirection. The jury was also given inconsistent instructions with respect to the elements of careless use of a firearm. It was first told it must convict if the Crown proved a list of essential elements that did not include objective foreseeability of risk of bodily harm but later told objective foreseeability of risk of bodily harm was an essential ingredient.

R. v. Penner, [2019] B.C.J. No. 314, British Columbia Court of Appeal, S.D. Frankel, S. Stromberg-Stein and J.E.D. Savage JJ.A., March 6, 2019. Digest No. TLD-March252019005