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CRIMINAL CODE OFFENCES - Offences against person and reputation - Homicide - First degree murder

Wednesday, August 09, 2017 @ 8:47 AM  


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Appeal by the accused, Spence, from a conviction for first degree murder. The accused, age 25, shot and killed his half-brother, Trapper, age 18. The accused admitted to police that he shot Trapper in the back with a shotgun. He maintained that he intended to scare Trapper when he fired the gun, rather than harm him. In the same interview, the accused suggested he suffered from mental health issues. There was no indication of any pre-existing animosity between the accused and Trapper. The shooting occurred 15 minutes after a brief exchange over Trapper's concern with the cleanliness of his mother's home. The accused swung Trapper's bedroom door open and fired the shotgun without saying a word. He drove to the home of his aunt and uncle in a state of extreme upset and stated he shot his brother. Police arrived thereafter and the accused voluntarily stated he shot Trapper. Throughout a subsequent interview at the detachment, the accused maintained he did not intend to shoot Trapper, as he instead wanted to scare him by shooting his computer or stereo. The accused was convicted by a judge sitting with a jury. He appealed on the basis the jury instructions were inadequate in several respects.

HELD: Appeal allowed. The accused's utterances raised the issue of whether he aimed at Trapper when he fired the shotgun. Although the evidence regarding mental health was thin, in combination with the accused's claim of an accident, there was evidence capable of raising a reasonable doubt on the issue of intent. The trial judge's instructions and subsequent clarifications following defence counsel's objection on the issue of mens rea for murder were confusing and erroneous. In particular, the instructions addressing the evidence of mental illness were seriously problematic. No mental disorder defence was advanced at trial. The judge identified a presumption of voluntariness capable of rebuttal by evidence of mental illness. No such presumption existed. References to intent, capacity and incapacity further confused the issue. A new trial was ordered.

R. v. Spence, [2017] O.J. No. 3870, Ontario Court of Appeal, R.G. Juriansz, S.E. Pepall and G.T. Trotter JJ.A., July 26, 2017. Digest No. TLD-August72017006