Court of Appeal of Quebec

Gascon v. R.

500-10-006440-174

Levesque, Hogue, Sansfaçon

Appeal from a conviction. Dismissed.

Following a jury trial, the appellant was convicted of the first degree murder of his former spouse, whom he repeatedly struck in the head with a frying pan and stabbed several times in the abdomen with a carving fork.

The appellant, who admitted having caused the death of his former spouse, presented a defence of provocation at trial, arguing that because of provocation by the victim, he could not have formed the intention required for first degree murder, and thus, the only possible verdict was a conviction of manslaughter. The prosecution submitted that the evidence established beyond a reasonable doubt that the appellant was guilty of first degree murder, not only because his actions were planned and deliberate (s. 231(2) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.)) — which excludes the defence of provocation — but also because it was a murder committed in circumstances where the victim had been criminally harassed by the appellant before her death (s. 231(6) Cr. C.).

The appellant appeals that verdict, arguing that the judge erred in law in her instructions to the jury by failing to instruct it on the cumulative effect that his consumption of medication and drugs and the anger he felt at the time of the crime could have had on his state of mind (“rolled-up” instruction).

The anger resulting from the victim’s provocative conduct should not be taken into account as a stand-alone defence. Anger may however be taken into account if it is combined with other relevant evidence. In this regard, the usefulness of a “rolled-up” instruction is assessed in light of the circumstances specific to each case and the relevance of the evidence presented at trial.

In this case, the appellant criticizes the judge for not having given such an instruction, in which she should have told the jury to consider the appellant’s anger combined with his consumption of medication to be able to assess his actual state of mind. The evidence presented to the jury revealed that the concentration level of the substances found in the appellant’s blood corresponded to therapeutic consumption (as opposed to toxic or lethal consumption) and that there was nothing to suggest that the medication consumed had an effect on his intent. That being said, it was not relevant evidence that could have been combined with another relevant element to determine the appellant’s actual state of mind. In the circumstances, the “rolled-up” instruction was not required.



*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca

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