Court of Appeal of Quebec

Primeau v. La Reine


Bich, Hamilton, Sansfaçon

Appeal from a conviction. Allowed; a new trial is ordered.

Following a trial by jury, the appellant was convicted of the second degree murder of his brother. The appellant lived in the basement of the victim’s residence. After being told of the threats his brother had uttered against him, the appellant took his rifle – which no longer had a trigger guard but did have a forgotten bullet in the chamber – and joined him in his living room. The appellant’s brother rushed him and the appellant lost his balance while backing up. He hit the sofa and accidentally pulled the trigger. The appellant argued the defence of accident negating actus reus, submitting that the act of pulling the trigger was involuntary. In the alternative, he argued a defence of accident negating mens rea.

The appellant alleges that the trial judge committed several errors in his instructions on the defence of accident, which instructions were so wrong as to be tantamount to not opening the defence of accident negating actus reus or contorting it to the point that the jury could not understand its impact on the offences of culpable homicide and the various possible verdicts.

The judge’s initial instructions on the defences of accident presented by the appellant were insufficient and muddled, particularly with respect to the defence of accident negating actus reus. In this context, it was also lacking with respect to manslaughter, which was only brought up as an afterthought, in the event the prosecution failed to prove the specific intent required for murder. The decision tree given to the jurors was just as incomplete. Finally, it is not because, here and there in the instructions, the judge attempted to explain the defence’s theory of an accident or its relationship to manslaughter that he succeeded, and the jurors cannot be expected to find the correct path to follow based on the faulty explanations received. In fact, it is clear that the jurors did not understand the initial instructions, as appears from the list of questions they later asked the judge on crucial elements of the case, such as what was a voluntary act, what the notion “state of mind” referred to, and what was manslaughter. They obtained answers that, overall, were unfortunately confusing, wrong or incomplete, that failed to comply with the teachings in this regard, and that were insufficient to clarify the initial instructions, which were themselves inadequate. There is a reasonable possibility that the jury was misled on central aspects of the case, which vitiates the verdict. In these circumstances, it is necessary to set aside the conviction and order a new trial.

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