Her Majesty the Queen v. Mulligan [Indexed as: R. v. Mulligan]

80 O.R. (3d) 537

Court of Appeal for Ontario,

Rosenberg, Borins and Gillese JJ.A.

May 12, 2006

Criminal law -- Appeals -- Proviso -- Accused being convicted of second degree murder -- Trial judge making errors in charge to jury regarding accused's defences of accident and self- defence in relation to unintentional killing -- Errors would have affected validity of manslaughter verdict but not of murder verdict -- Instructions regarding murder proper -- Jury must have rejected accused's claim that shooting was accidental and found that he had intent required for murder -- Court may consider unambiguous findings of fact not tainted by error implicit in verdict when deciding whether to apply curative proviso -- Appeal from conviction dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).

The accused was charged with second degree murder. His son and the deceased intended to fight each other. The accused agreed to accompany his son as "back-up", and brought along a rifle. According to the accused, the gun discharged accidentally when he was using it in self-defence to ward off the deceased and repel an apprehended attack by the deceased with a baseball bat. He did not claim that he shot the deceased in self-defence; rather, his defence rested primarily on a combination of self-defence and accident. The jury found the accused guilty of second degree murder. He appealed. [page538]

Held, the appeal should be dismissed.

The trial judge made a number of errors in his charge to the jury which would have affected the validity of a manslaughter verdict. When the charge was looked at as a whole, it was not clear that the jury was left with a sufficient understanding of how the facts related to self-defence and accident in the context of an unintentional killing. The court may take into account unambiguous findings of fact implicit in verdict if they are not tainted by error when deciding whether to apply the proviso. The trial judge's instructions to the jury respecting the intent required for murder were correct. Having regard to those instructions, the jury must have found that the accused intentionally pulled the trigger, that was the only route to murder in this case. Since the jury convicted the accused of murder, they must have found that not only did the gun not discharge accidentally, but that the accused had the intent for murder. Those findings undermined any argument that depended upon the jury entertaining a reasonable doubt that the accused had the intent for murder. Since the accused's submissions depended upon that finding, the proviso could be applied. The appeal was dismissed on the basis that there was no substantial wrong or miscarriage of justice.

APPEAL from the conviction by Marshall J. of the Superior Court of Justice [then the Ontario Court (General Division)], sitting with a jury, dated June 28, 1999, for second degree murder.

Cases referred to R. v. Elkins (1995), 1995 3510 (ON CA), 26 O.R. (3d) 161, [1995] O.J. No. 3228, 86 O.A.C. 125, 28 W.C.B. (2d) 511 (C.A.), apld R. v. Pintar (1996), 1996 712 (ON CA), 30 O.R. (3d) 483, [1996] O.J. No. 3451, 110 C.C.C. (3d) 402, 2 C.R. (5th) 151 (C.A.), consd R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, 253 D.L.R. (4th) 76, 333 N.R. 286, J.E. 2005-988, 211 B.C.A.C. 5, 196 C.C.C. (3d) 123, 29 C.R. (6th) 17, distd Other cases referred to R. v. Baxter (1975), 1975 1510 (ON CA), 27 C.C.C. (2d) 96, 33 C.R.N.S. 22 (Ont. C.A.); R. v. Grandin, 2001 BCCA 340, [2001] B.C.J. No. 973, 95 B.C.L.R. (3d) 78, 154 C.C.C. (3d) 408, 44 C.R. (5th) 53, [2001] BCCA 340 (C.A.); R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516, [1994] S.C.J. No. 86, 20 O.R. (3d) 63n, 179 N.R. 1, 93 C.C.C. (3d) 99, 34 C.R. (4th) 22; R. v. Herbert, 1996 202 (SCC), [1996] 2 S.C.R. 272, [1996] S.C.J. No. 65, 135 D.L.R. (4th) 577, 197 N.R. 277, 107 C.C.C. (3d) 42, 48 C.R. (4th) 204; R. v. Humaid, 2006 12287 (ON CA), [2006] O.J. No. 1507, 208 C.C.C. (3d) 43 (C.A.); R. v. Mulligan (1997), 1997 995 (ON CA), 34 O.R. (3d) 212, [1997] O.J. No. 2191, 115 C.C.C. (3d) 559 (C.A.); R. v. Paice, [2005] 1 S.C.R. 339, [2005] S.C.J. No. 21, 251 D.L.R. (4th) 193, 332 N.R. 159, [2006] 3 W.W.R. 38, 195 C.C.C. (3d) 97, 2005 SCC 22, 29 C.R. (6th) 1; R. v. Tennant (1975), 1975 605 (ON CA), 7 O.R. (2d) 687, 23 C.C.C. (2d) 80, 31 C.R.N.S. 1 (C.A.); R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 46 O.A.C. 352, 122 N.R. 277, 63 C.C.C. (3d) 397, 3 C.R. (4th) 302 Statutes considered Criminal Code, R.S.C. 1985, c. C-46, ss. 34(1) [as am.], 34(2) [as am.], 37, 41(1), 229(a), 686(1)(b) [as am.]

John Norris, for appellant. David Lepofsky, for respondent. [page539]

The judgment of the court was delivered by

ROSENBERG J.A.: --

[1] The principal issue in this appeal from conviction for murder concerns this court's power to dismiss an appeal on the basis that no substantial wrong or miscarriage of justice occurred. Specifically, the question raised is whether this court can dismiss an appeal from conviction for murder despite legal errors that would affect the validity of a manslaughter verdict. The appellant defended this case primarily on a combination of accident and self-defence. The principal grounds of appeal all concern accident and self-defence as they apply to an unintentional killing. Inasmuch as the jury convicted the appellant of murder and thus must have found that the appellant had the intent to kill, the Crown argues that any errors could not have occasioned any prejudice to the appellant.

[2] I agree with that submission and accordingly would dismiss the appeal.

The Background

[3] The appellant was tried on a charge of second degree murder before Marshall J. and a jury. He was convicted in June 1999 and sentenced to life imprisonment without parole for ten years. This was the appellant's second trial. The killing occurred in 1991. The appellant was convicted in 1992, but this court ordered a new trial for reasons reported at (1997), 1997 995 (ON CA), 34 O.R. (3d) 212, [1997] O.J. No. 2191, 115 C.C.C. (3d) 559. (C.A.)

The Facts

[4] This killing arises out of a dispute between the appellant's son, Clint, and the deceased, Corey Bishop. While there was conflicting evidence about the relationship between Clint and the deceased, it would be open to a jury to find that the deceased had severely beaten Clint on prior occasions. On March 31, 1991, Clint and the deceased became involved in a further verbal altercation. The evidence shows that they decided to engage in a physical altercation. For the next several hours, Clint and his friends and the deceased and his friends drove around in search of a suitable location for this physical battle. Regrettably, Clint's father, the appellant became involved. At Clint's request, the appellant, who had been drinking and watching television, agreed to accompany Clint and his friends as "back-up". He brought a rifle and two ammunition [page540] clips with him. At some point, the appellant loaded the weapon with the larger of the two clips.

[5] On the version most favourable to the appellant, he, Clint and Clint's friends were heading home when they realized the deceased's group was following them. The car in which the appellant and Clint were travelling stopped, possibly at the appellant's direction. The appellant jumped out of the car. He was holding the loaded rifle by his side. Someone (it turned out to be the deceased) approached him with a wooden baseball bat raised in his right hand. The appellant raised the rifle up from his side, said"Back off you son of a bitch" and pushed the gun at the deceased. As he pushed the gun at the deceased, the appellant felt it go off. The appellant claimed that he did not pull the trigger and he thought the safety was on. The appellant saw the deceased's friends approaching and so he went back in the car and drove home where he waited for the police. There was expert evidence that with the safety off, the rifle had a tendency to accidentally discharge.

[6] I have said that this was the version most favourable to the appellant. There was a body of evidence upon which the Crown could rely to show that the appellant intended to shoot the deceased, that the rifle did not have a tendency to accidentally discharge, and that the deceased was unarmed when he was killed.

Analysis

The appellant's defence

[7] There was evidence that the appellant had been drinking earlier in the evening. The trial judge put the defences of intoxication as well as provocation to the jury. However, the appellant's principal defence was a combination of self-defence and accident. In short, his position was that he did not pull the trigger; that the gun discharged accidentally when he was using the rifle in self-defence to ward off the deceased and repel an apprehended attack by the deceased with the baseball bat. It was never the appellant's position that he intentionally shot the deceased in self-defence. Rather, he raised the gun and pushed the deceased with it, to prevent an attack. Of course, it would be open to the jury to find that the appellant did intentionally pull the trigger, in which case they would have to consider whether the intentional use of deadly force could be justified in self-defence.

[8] The appellant argues that the trial judge never made the real defence position clear to the jury. He submits that when the [page541] charge is read as a whole, the jury was only given self-defence in the context of an intentional killing, not in relation to an unintentional killing. I largely agree with that submission.

[9] However, the appellant was convicted of murder. The trial judge's instructions on the intent for murder and self-defence as it related to murder were not tainted by any legal error. The jury must have found that the appellant intended to kill the deceased or intended to cause bodily harm, which he knew was likely to cause death, and was reckless whether death ensued. Since there was only the one shot, the jury could only have arrived at this conclusion by finding beyond a reasonable doubt that the appellant intentionally pulled the trigger -- that his story of an accidental discharge was untrue. Since there were no errors in the jury instructions on self-defence as they relate to an intentional killing, it would seem to follow that the appellant suffered no legal prejudice from the alleged misdirection.

[10] The appellant submits, however, based on R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, [2005] S.C.J. No. 25, 196 C.C.C. (3d) 123 and several appellate authorities, that there must be a new trial because of the misdirection in relation to self-defence. To appreciate the force of this argument, it is necessary to first outline the errors, the charge as it relates to the intent for murder, and then consider the application of Gunning.

The errors relating to self-defence and accident

[11] As I have indicated, the appellant's core submission is that the trial judge never made it clear that the appellant's real defence was a combination of self-defence and accident based on the theory that the only force the appellant intentionally used was the raising of the rifle, pointing it at the deceased and pushing him with it. The appellant highlights a number of parts of the charge to the jury that he says contributed to this error.

[12] First, the appellant raises the way that the trial judge dealt with culpable homicide and the requirement of an unlawful act. The appellant submits that the trial judge directed the jury that the unlawful act was the "shooting" and that the jury would have little difficulty finding that the deceased died as a result of an unlawful act. Following are two examples:

(1) In this case it is obvious that the deceased died as a result of the shooting which in law is an assault, which is the application of force by one person to another without his or her consent. An assault is an unlawful act. In this case the killing is admitted, the homicide, if you like. [page542]

(2) If you are not satisfied beyond a reasonable doubt that it was an unlawful act of the accused that caused the victim's death then you must acquit the accused altogether by returning a verdict of not guilty.

You are not going to have difficulty with the question of this particular point, that is, that the accused has admitted that he held the gun that killed Mr. Cory Bishop.

If you find that the victim, Mr. Bishop, died as a result of an unlawful act and that the accused committed that unlawful act but you are not satisfied beyond a reasonable doubt that Mr. Mulligan had the intent required for murder then you will find the accused not guilty of murder but guilty of manslaughter, subject to what I say about the defence of self-defence.

(Emphasis added)

[13] The appellant submits that the effect of these directions was to remove from the jury's consideration the issue of whether the shooting was an unintentional act of self- defence and therefore lawful.

[14] Second, the appellant submits that the trial judge isolated accident from self-defence and limited accident to lack of intent for murder. For example, in the midst of his instructions on self-defence, the trial judge digressed to give this instruction:

I am going to go into this in great detail. Just so you do not mix this with the defence of accident, I am just going to say a word about accident here. We have heard evidence of it being an accident and not being an accident -- we have reviewed that. But there is evidence here, for instance, from the ballistic expert that this was an accident, this firing. The accused gave evidence himself as I have said before and I will say it again that this was an accident. The gun went off without pulling the trigger.

For our purposes an accident is an unintentional or unexpected occurrence that produces injury to another person. Therefore, evidence of accident is really evidence of a lack of intent by the accused to cause the death. That is just to help you with accident.

(Emphasis added)

[15] It is the appellant's submission, with which I agree, that the two defences were closely related. The appellant's defence was that he shot the deceased by accident (i.e., without an intent to kill [See Note 1 below]) while brandishing the rifle in self-defence. However, the jury might understand from this direction that self-defence only applied to an intentional killing.

[16] Third, the trial judge directed the jury on s. 34(2) of the Criminal Code, R.S.C. 1985, c. C-46 but not s. 34(1). The appellant submits that s. 34(2) is focused on death or grievous bodily [page543] harm whereas it was the appellant's defence that he did not intend to cause death or grievous bodily harm. Thus, s. 34(1) was the more appropriate provision to leave with the jury. He says that in the circumstances of this case it would be more difficult for the appellant to meet the requirements of s. 34(2) than s. 34(1). A comparison of the two subsections illustrates the point:

34(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

(Emphasis added)

[17] The appellant makes the point that the jury might well find that the appellant did not have a reasonable apprehension of death or grievous bodily harm. Alternatively, the jury might find that the appellant did not reasonably believe that he needed to resort to deadly force to preserve himself from death or grievous bodily harm. In the result, the appellant would not have been able to meet the conditions necessary to support self-defence under subsection (2). Yet, the jury might very well find that threatening the deceased and poking him with a gun (but not intending to cause his death or cause him grievous bodily harm) was a proportionate response to the threatened assault, within the meaning of s. 34(1).

[18] The appellant submits that the trial judge exacerbated this problem because, when discussing self-defence under s. 34(2), he focused on the shooting rather than the threatening or pushing. For example, the trial judge directed the jury as follows:

You can ask yourself whether a reasonable person in Mr. Mulligan's situation with Mr. Mulligan's experiences, may also have believed that he could not preserve himself otherwise than by shooting Mr. Bishop.

(Emphasis added)

[19] The appellant submits that the real issue was not whether the appellant shot the deceased out of necessity but whether he brandished the rifle and poked the deceased with it to defend himself. [page544]

[20] Fourth, the appellant submits that when summarizing the defence position, the trial judge never made clear how self- defence and accident were related. Thus, as he had when dealing with the applicable legal principles, when he came to discuss the defence position, the trial judge compartmentalized self-defence and accident. For example, when discussing accident the trial judge said the following:

Looking on all the evidence on accident, the Crown's position, the defence position, if you are left with a reasonable doubt that it was an accident, [defence counsel's] position is that you must be left with a reasonable doubt on the basis of the evidence. If you are left with a reasonable doubt as to accident then you acquit the accused of murder but find him guilty of manslaughter.

[21] Fifth, although the trial judge did instruct the jury with respect to s. 37(1), in discussing the elements of the s. 37 defence, the trial judge used language that the appellant submits would have led the jury to believe the defence related to the shooting rather than the threatening and the pushing. The trial judge also misstated the defence position:

First, s. 37 applies where the accused used force, where Mr. Mulligan used force. Force simply means physical conduct. Here the accused admitted the shooting so that particular part will not trouble you.

(Emphasis added)

[22] The trial judge a short time later, however, did correct himself:

Assault is defined in s. 265 of the Criminal Code. You will not have difficulty with that here because, as I said, the accused has admitted the shooting--holding the gun I should say.

[23] The trial judge never made it clear that the force the appellant was attempting to justify under s. 37 was the raising of the gun and the pushing of the deceased and not necessarily the shooting. For example, the trial judge said the following:

The third ingredient, no more force than necessary. The third essential ingredient for s. 37 is defence of self-defence [sic]. The third ingredient for s. 37 is that Mr. Mulligan used no more force than necessary to prevent the assault or the repetition of it. The real issue for this third ingredient is whether the force used by Mr. Mulligan was excessive in relation to the type of assault or harm it was intended to prevent. In other words, was the force used by Mr. Mulligan proportionate to the harm or potential harm which Mr. Mulligan or his son was facing?

[24] As well, in a passage that is not altogether clear, the trial judge told the jury to use their common sense in deciding whether or not the appellant used no more force than necessary "subject to what I said about accident". [page545]

[25] Finally, the appellant points out that this concern was clearly raised in the objections by defence counsel to the charge to the jury. I have reproduced counsel's dialogue with the trial judge in Appendix "A".

[26] The trial judge did not recharge the jury in response to counsel's objection. In fairness to the trial judge, the import of this objection may have been lost because of the response of the trial Crown counsel that there was an agreement in pre- charge discussions that the pointing of the rifle was an unlawful assault. Crown counsel's position was that if this issue was going to be re-opened he wanted all the potential underlying unlawful acts, such as pointing a firearm, put to the jury.

[27] While the appellant has pointed to several errors in the charge to the jury, they all really come to the same thing; the trial judge failed to adequately explain the legal effect of the appellant's testimony. I am not satisfied that when the charge to jury is looked at as a whole, the jury was left with a sufficient understanding of how the facts related to self- defence applied to an unintentional killing.

[28] However, the common feature of these alleged errors is that they rest upon the possibility that the jury might have had a reasonable doubt that the appellant intended to kill the deceased. For example, the alleged error in failing to leave s. 34(1) is of no consequence if this was an intentional killing since s. 34(1) applies only where the force used "is not intended to cause death or grievous bodily harm". Similarly, the focus on the shooting as an unlawful act only prejudiced the appellant if the jury found that the shooting was accidental. That is, the jury might find the appellant guilty of unlawful act manslaughter instead of acquitting him, even though he acted in self-defence, because the trial judge in effect took that issue away by telling them that shooting was an unlawful act.

The instructions on the intent for murder

[29] The issue then becomes whether it is open to reason back from the jury's murder verdict, which necessarily entails a finding that the appellant did not accidentally shoot the victim. This first requires a review of the instructions the jury was given about the effect of an accidental shooting. In my view, while the jury might have been somewhat confused about what finding to make if they found, or had a reasonable doubt, that the appellant shot the deceased accidentally, at the very least they would not have convicted of murder. A few examples from the charge will demonstrate this. [page546]

[30] First, in his instructions in accordance with R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, [1991] S.C.J. No. 26, 63 C.C.C. (3d) 397, the trial judge instructed the jury that if they believed the appellant's evidence or it raised a reasonable doubt he must be found not guilty. [See Note 2 below] Of course, the core of the appellant's story, and this was repeated on many occasions, was that the gun discharged accidentally.

[31] Second, in reviewing the position of the defence, the trial judge told the jury that the position was that the appellant should be acquitted because he was acting in self- defence, alternatively that he did not have the intent for murder by reason of provocation, intoxication and accident and could therefore only be convicted of manslaughter.

[32] Third, in instructing the jury on the law of murder, the trial judge told the jury that they could infer the appellant had the requisite intent for murder if "he pulled the trigger and shot the victim". He then pointed out that while the Crown says that the appellant "intended to pull the trigger", the position of the defence was that "the gun went off accidentally". He made several more references to the contrasting positions while discussing murder; always emphasizing the appellant's evidence was that the gun went off accidentally.

[33] Fourth, when discussing self-defence under s. 34(2), the trial judge told the jury that this defence was available whether or not the appellant intended to cause death or grievous bodily harm.

[34] Fifth, the trial judge told the jury that a manslaughter verdict was possible though self-defence failed.

[35] Six, in his instructions on accident, the trial judge made it clear that the appellant could not be convicted of murder if the jury had a doubt whether the gun went off accidentally. Since those instructions are crucial to this issue I set them out below in full:

Accident

If it was an unlawful act that the accused was doing, if it was an unlawful act that Mr. Mulligan was doing on Heximer Street that night, for example -- an assault, the defence of accident will only reduce the offence of murder to manslaughter. The reason for that is that accident, if you find that or have reasonable doubt that this was an accident, it goes to the [page547] intent required for murder and reduces murder to manslaughter. So again, if it was an unlawful act that the accused was doing (an assault), the defence of accident will only reduce the defence [sic offence] of murder to manslaughter.

To put this accident in perspective a little bit with self- defence, as I have given it to you, in regards to accident, if you were to have a reasonable doubt on the defence of self-defence and that the gun went off accidentally, you would acquit the accused entirely. If you were to have a reasonable doubt on the issue of self-defence, you would acquit the accused entirely. If you do not have a reasonable doubt on the defence of self-defence, you will still look at the defence of accident, the defence of intoxication and the defence of provocation (which I will be going to deal with momentarily) in regards to whether he had intent or whether the Crown has proved beyond a reasonable doubt that he had the intent necessary for murder, and if you have a reasonable doubt that he had the intent necessary for murder on the basis of accident, intoxication or provocation and you would find him guilty of manslaughter but not guilty of second degree murder.

So you can really look at it in terms of two steps if you like. Has the Crown proven beyond a reasonable doubt that this was not self-defence, bearing in mind all the evidence? If you decide that the Crown has proved beyond a reasonable doubt that this was not self-defence as I have just defined it to you, then you go on and look at the situation entirely again and consider accident, provocation, intoxication to decide whether the Crown has proved beyond a reasonable doubt that he is not entitled to those defenses. If you are satisfied beyond a reasonable doubt that Mr. Root [Crown counsel] has convinced you beyond a reasonable doubt that those defences are not open to him, you will not acquit him but find him guilty of the lesser included offence of manslaughter as opposed to second degree murder. So you can approach it in that way. However, you must keep the defenses in mind and all of the evidence in mind in your deliberations.

(Emphasis added)

[36] The italicized portions above are the clearest explanation of the legal implication of the appellant's defence and in some respects are arguably unduly favourable to the appellant. As I will explain later, even if the jury found that the gun went off accidentally while the appellant was acting in self-defence, it would have been open to the jury to find the appellant guilty of manslaughter. Importantly, those passages also direct the jury not to convict of murder if the shooting was accidental; that at worst the appellant could only be convicted of manslaughter.

[37] Seven, in directing the jury on the defence of intoxication, the trial judge told the jury that if they had a reasonable doubt whether the appellant had the intent to kill the deceased, they should find him guilty of manslaughter. The instruction on intoxication focused on the intent for murder and the jury was told to consider all the circumstances in determining whether the appellant had the requisite intent for murder. If he did not, the jury was told they could only convict of manslaughter. [page548]

[38] Finally, in summarizing the defence position, the trial judge referred to the appellant's evidence that he did not pull the trigger and the various other pieces of evidence that supported that position, especially the evidence of the firearms expert of the rifle's tendency to discharge accidentally.

[39] Thus, in my view, while the jury might not have fully understood the relationship between self-defence and an unintentional killing, they would have understood that they could not convict the appellant of murder unless they found he had the intent for murder. On any reasonable view of the facts, the jury could not have found that the appellant had the intent for murder unless they found that he intentionally shot the deceased. It would seem, therefore, that any errors in the charge with respect to either accident or self-defence that depended upon the jury having a doubt as to whether the appellant had the intent for murder could not have caused any prejudice to him.

[40] In such circumstances, it would seem that this court could exercise its discretion and dismiss the appeal under s. 686(1)(b)(iii) of the Criminal Code. The appellant submits, however, that it is not open to the court to dismiss the appeal in view of the decision of the Supreme Court in Gunning. However, before turning to that decision, I want to deal with certain other submissions made by Crown counsel as to why the appeal should be dismissed.

Submissions by Crown Counsel other than Gunning issue

[41] Mr. Lepofsky argues that the proviso in s. 686(1)(b) (iii) applies because, in any event, the appellant was not entitled to rely upon self-defence, at least not self-defence under s. 34(1), because the appellant was engaged in a consensual fight. He relies upon R. v. Paice, 2005 SCC 22, [2005] 1 S.C.R. 339, [2005] S.C.J. No. 21 and, in particular, the passage at para. 20 of that decision:

Section 34(1) is only available where the accused is an innocent victim who has been assaulted without having provoked the assault. Where a person willingly engages in mutual combat, he cannot later say that he did not provoke the assault . . .

[42] In my view, this submission cannot succeed. It was never suggested at trial that when the appellant confronted the deceased he was engaged in a consensual fight and thus the jury was never charged in relation to that issue. If there were to be a new trial in this matter at which the trial judge put the s. 34(1) defence to the jury, the trial judge would, of course, have to consider the application of Paice. However, we are in no position to [page549] make the findings of fact that would be necessary to deprive the appellant of the defence on this basis.

[43] The Crown submits that the trial judge was right not to leave s. 34(1) because s. 34(2) is a broader defence and it is important that the trial judge not overcharge the jury in respect to self-defence. He relies upon this court's decision in R. v. Pintar (1996), 1996 712 (ON CA), 30 O.R. (3d) 483, [1996] O.J. No. 3451, 110 C.C.C. (3d) 402. Pintar, applying the decision of the Supreme Court of Canada in R. v. Hebert, 1996 202 (SCC), [1996] 2 S.C.R. 272, [1996] S.C.J. No. 65, 107 C.C.C. (3d) 42, held that in charging a jury on self-defence the trial judge must take a functional approach. As Moldaver J.A. put it in Pintar at p. 494 O.R., p. 414 C.C.C.:

[Hebert] invites trial judges to take a hard look at the evidence with a view to determining the essence of the claim to self-defence and the Code provision(s) realistically available to that claim. It advocates a careful and considered culling of the self-defence provisions to avoid unnecessary, inappropriate and irrelevant legal instruction of a kind that might well divert the jury's attention from the real basis upon which the claim to self-defence rests.

[44] However, in this case, if the jury accepted or had a reasonable doubt with respect to the appellant's story of an accidental discharge, the essence of the self-defence claim fell not within s. 34(2), but s. 34(1). Again in Pintar, Moldaver J.A. explained that the functional approach does not imply that legitimate bases for self-defence can be removed from the jury's consideration. As he said at p. 496 O.R., p. 416 C.C.C.:

Where a particular provision affords the accused a wider scope of justification than a companion provision, the narrower provision should only be put to the jury if the evidence lends an air of reality to the factual underpinnings of that provision, and the provision somehow fills a gap unaccounted for in the justification afforded by the wider provision.

[Emphasis in original]

[45] As I have said earlier, the appellant would have a difficult time meeting the requirements of s. 34(2). Thus, s. 34(1) filled a gap "unaccounted for in the justification afforded by the wider provision".

[46] That is not to say that s. 34(2) should not have been put. If the jury took the view that the appellant intentionally pulled the trigger, the appellant had the right to have the jury pass on self-defence in relation to that set of facts. If he intentionally shot the deceased, he could not rely on self- defence under s. 34(1) and the judge would, as was done here, have to charge the jury on the application of s. 34(2). There has never been a suggestion that there was no air of reality to a s. 34(2) self-defence claim, even though the jury found that the appellant intended to shoot the victim. [page550]

[47] To summarize, nothing in Pintar detracts from what Martin J.A. said in R. v. Baxter (1975), 1975 1510 (ON CA), 27 C.C.C. (2d) 96, 33 C.R.N.S. 22 (Ont. C.A.), at p. 111 C.C.C.: "Where there is an issue as to whether the accused intended to cause death or grievous bodily harm the trial Judge, notwithstanding death or grievous bodily harm has resulted, should instruct the jury with respect to the provisions of s. 34(1) and then proceed to s. 34(2) as the applicable provision, in the event that the jury is satisfied that the accused intended to cause death or grievous bodily harm."

[48] Crown counsel also suggests that the appellant was not prejudiced by the trial judge's failure to leave s. 34(1) because the jury was charged on s. 37, which in some respects is broader than s. 34(1). He relies upon R. v. Grandin, 2001 BCCA 340, [2001] B.C.J. No. 973, 154 C.C.C. (3d) 408 (C.A.) where the court held that s. 37, unlike s. 34(1), applies even where the assault was provoked by the accused and can apply to an intentional killing. While there is some force to this argument, it seems to me that [it] fails for two reasons. First, s. 37 was put to the jury, in part, on the theory that the appellant was defending against an attack on his son. This was an unlikely scenario on the appellant's own story. As far as he knew, his son was still in the car when the deceased confronted him. More importantly, the instructions on s. 37 were, in part, infected with the same error that occurred in relation to s. 34, the failure to make clear that the force sought to be justified was not the intentional shooting but the use of the gun to threaten or push the deceased.

[49] Mr. Lepofsky also points out that defence counsel (not Mr. Norris) did not ask for a charge on s. 34(1) and that there was an agreement in unrecorded pre-trial discussions that only s. 34(2) and s. 37 would be put. However, it is also apparent that there was real confusion at trial as to what had been agreed to in the pre-trial discussions not only on the s. 34(1) issue. And, in his objection, which I have set out in Appendix "A", defence counsel did clearly raise his concern with the trial judge's failure to relate accident to self-defence. The failure to put s. 34(1) was only one feature of the alleged error. In any event, the appellant's complaint about not putting s. 34(1) to the jury would be of less import if the trial judge had adequately stated the defence position in terms of s. 37.

[50] Finally, Crown counsel submits that the appellant never was entitled to an acquittal even if his combined defence of self-defence and accident was accepted. He points out that when he approached the deceased with a loaded gun in a residential [page551] street the appellant was at least guilty of several other unlawful acts that could not be justified as self-defence, even if the pushing or pointing of the gun could be. In other words, some of these other offences such as careless use of a firearm would have led inevitably to a verdict of at least manslaughter. See R. v. Tennant (1975), 1975 605 (ON CA), 7 O.R. (2d) 687, 23 C.C.C. (2d) 80 (C.A.), at p. 703 O.R., p. 96 C.C.C. While there is considerable force to this argument, it does not directly meet the appellant's complaint. Whether the appellant's defence would have led to a complete acquittal or manslaughter verdict, he was entitled to have the true legal effect of his position placed before the jury -- namely, that by threatening or pushing the deceased with the gun, he was acting in self-defence. Moreover, it was a question for the jury whether the other suggested offences, such as careless use of a firearm, were made out on the facts. This clearly follows from R. v. Gunning, supra, as I will explain below.

[51] In my view, none of the Crown's arguments, aside from reasoning back from the verdict, meet the legal error concerning the failure to adequately explain the relationship between accident and self-defence.

R. v. Gunning and the proviso

[52] Gunning was charged with murder as the result of the death of a man who had entered his home uninvited during a party. The victim was killed by a single shot from the accused's shotgun after the victim refused to leave. The accused testified that he had taken out his shotgun and loaded it to intimidate the victim and scare him into leaving. On the accused's story, his gun discharged accidentally while he was gesturing at the victim. The trial judge left only the defences of intoxication and provocation. He refused to charge the jury on the defence of property under s. 41(1) of the Criminal Code and directed the jury that, in his handling of the firearm, the accused committed the offence of careless use of a firearm. The Crown relied upon the careless use of a firearm as the unlawful act for the purpose of culpable homicide. The Supreme Court of Canada concluded that the trial judge had directed the jury as a matter of law that the accused's actions prior to the discharge of the gun constituted an unlawful act. In the result, there was no possibility of the appellant obtaining an acquittal.

[53] The Supreme Court found that the trial judge had erred in two respects. First, he erred in failing to direct the jury on the application of the defence of property. While intentionally shooting a trespasser could not be justified under s. 41(1), it [page552] was possible that the accused could justify the use of the firearm under s. 41(1) to merely threaten the victim. If the jury took that view of the evidence and had a reasonable doubt that the accused accidentally discharged the rifle, the accused would be entitled to an acquittal.

[54] The second error concerned careless use of a firearm. The court held that the trial judge had no power to direct the jury as a matter of law that one of the elements of the offence was made out. The trial judge "overstepped the proper boundaries of his function" by deciding that the underlying offence of careless use of a firearm had been made out.

[55] As in this case, the Crown argued that the errors could not have affected the verdict because the jury found that the accused intended to kill the victim. Speaking for the court, Charron J. rejected that argument, at para. 22:

The Crown contends, and the British Columbia Court of Appeal agreed, that this whole question of careless use of a firearm becomes irrelevant because we must take it from the verdict of guilty of murder that the jury was convinced that the shooting was intentional. I will explain at the outset why I disagree that the appeal should be dismissed on that basis. Undoubtedly, a verdict of guilty on the murder charge can only rest on a finding that the shooting was intentional. However, we do not know what reasoning led the jury to its verdict. What we do know, as we shall see, is that these jurors were never told that a person is entitled at law to forcibly remove a trespasser from his home, so long as he uses no more force than necessary. Rather, they were directed, as a matter of law, to base their determination on the critical question of intent on the premise that Mr. Gunning's conduct prior and up to the time of the shooting was unlawful. In these circumstances, it is my respectful view that it would be unsafe to rely on the jury's verdict in this case as a basis for dismissing the appeal.

(Emphasis added)

[56] Charron J. did not further elaborate on why it would be unsafe to rely on the jury's verdict in that case. The crucial factor in her decision that the proviso could not be applied, despite the murder verdict, must lie in her view that the jury was directed "as a matter of law, to base their determination on the critical question of intent on the premise that Mr. Gunning's conduct prior and up to the time of the shooting was unlawful". In other words, the finding that Gunning had the intent for murder was tainted by the legal errors.

[57] There are similarities between Gunning and this case. The appellant submits that the trial judge effectively directed the jury as a matter of law that culpable homicide was made out by the unlawful act (assault) of shooting. This error, he says, is the equivalent of the error made by the trial judge in Gunning [page553] in directing the jury that careless use of a firearm was made out. Further, by failing to direct the jury on self-defence under s. 34(1) and failing to relate accident to self-defence the trial judge made an error similar to the error in Gunning in withdrawing defence of property from the jury. The appellant submits, in effect, that while the trial judge left an acquittal open to the jury as a theoretical verdict it was as if he had withdrawn acquittal from the jury, given that he never adequately explained to them how to reach that verdict, except through the unlikely route of s. 34(2) based on an intentional shooting. The appellant submits that the jury's verdict cannot be relied upon because, as was said in para. 22 of Gunning"we do not know what reasoning led the jury to its verdict".

[58] Following oral argument of this appeal, we gave the parties the opportunity to provide further written submissions on the application of the proviso in this case and, in particular, the impact of the Gunning decision. Having considered these additional submissions, I am satisfied that Gunning does not prevent resort to the proviso in this case.

[59] As Crown counsel points out, there is no indication that the Gunning court intended to overrule its earlier decisions that permit an appellate court to reason back from a verdict that is untainted by error. An important authority in that regard is R. v. Haughton, 1994 73 (SCC), [1994] 3 S.C.R. 516, [1994] S.C.J. No. 86, where the court set out this test for applying s. 686(1)(b)(iii) at pp. 516-17 S.C.R.:

The application of s. 686(1)(b)(iii) of the Criminal Code, R.S.C., 1985, c. C-46, requires the Court to consider whether a jury properly instructed could, acting reasonably, have come to a different conclusion absent the error. In applying this test the findings of the jury in the case under appeal may be a factor in determining what the hypothetical reasonable jury would have done, provided those findings are not tainted by the error.

[60] This court has subsequently relied upon Haughton in self-defence cases. In R. v. Elkins (1995), 1995 3510 (ON CA), 26 O.R. (3d) 161, [1995] O.J. No. 3228, 86 O.A.C. 125 (C.A.), [See Note 3 below] the accused testified that he fired his gun in self-defence but without intending to hit the deceased. This court found that the charge to the jury may have left the jury with the erroneous impression that s. 34(2) was unavailable in the case of a provoked assault. Relying on Haughton at para. 28, Doherty J.A. held that"In considering [page554] the application of the curative proviso, I am entitled to take into consideration findings of fact made by the jury to the extent that those findings are unambiguously revealed by their verdicts and are not tainted by the error". I would adopt that test. The jury findings in this case must be unambiguously revealed by the verdict and not tainted by the error.

[61] Having regard to the correct instructions respecting the intent for murder, the jury must have found that the appellant intentionally pulled the trigger. That was the only route to murder in this case. Even if the jury had been instructed that if the appellant accidentally discharged the gun while warding off an apprehended attack he could be acquitted if he met the requirements of either s. 34(1) or s. 37, they would still have convicted of murder because they found that he had the intent for murder. I have set out at some length the trial judge's directions but of particular importance is the trial judge's direction on accident reproduced at para. 35.

[62] The effect of these directions was that if the jury found that the appellant accidentally pulled the trigger in circumstances not amounting to self-defence he could be found guilty of no greater offence than manslaughter. Even if the jury did not believe it was an accident but found that considering all the evidence they had a doubt that the accused had the intent for murder, again they could only convict of manslaughter. Since the jury did convict of murder, they must have found that not only did the gun not discharge accidentally but that the appellant had the intent for murder. These findings undermine any argument that depends upon the jury entertaining a reasonable doubt that the appellant had the intent for murder. Since the appellant's submissions depend upon this finding, the proviso can be applied.

[63] Finally, and of equal importance, the appellant's case differs from Gunning in one crucial respect. The trial judge never directed the jury that as a matter of law the appellant's conduct leading up to the killing was unlawful. It seems to me that the contrary direction in Gunning was the most problematic for Charron J. in finding that she could not rely on the jury's verdict of murder to dismiss the appeal. Despite the problematic direction by the trial judge in this case that the jury would not have much difficulty with finding that the appellant committed an unlawful act, he almost invariably followed that up with the caveat that this direction was subject to what he would say about accident and/or self- defence. He repeated this direction three times within the space of two and one-half pages when giving his summary of the law regarding murder. I have attached those [page555] directions as Appendix "B". Further, unlike Gunning where the jurors were never told that the accused had the right to use force, in this case the jurors were given two routes, s. 34(2) and s. 37, that would justify the use of force.

Other grounds of appeal

[64] The appellant raised several other grounds of appeal in his factum. He submitted that the trial judge erred in placing s. 34(2) and s. 37 on an equal footing. He abandoned this ground of appeal in oral argument.

[65] The appellant also argued that the so-called "rolled-up" charge on intent was erroneous and may have confused the jury, especially on the provocation defence. I do not agree. The instructions were clear. There is no possibility that the jury would confuse the instructions on the defence of provocation with the use of evidence of provocation as part of the rolled- up charge.

Disposition

[66] Accordingly, I would dismiss the appeal.

Appeal dismissed.

APPENDIX "A"

Objection to the Charge

MR. HADFIELD: Yes, just briefly. I am concerned about your direction with respect to the issue of accident. I know this is a quagmire and I'm sorry I have to raise it again, but Your Honour seemed to suggest that every time you used the "accident", that it went exclusively to the issue of intent. And then what flows from that is the manslaughter, murder distinction. But the issue of accident also has a second import in this trial and that is whether or not, pursuant to either 34 or 37, particularly 37, that force that Mr. Mulligan applied to Mr. Bishop was no more than necessary. Because as you will recall, my client's evidence is he pushed him away with the gun. That was the action that he took. That was the intentional action that he took in defending himself. He pushed Mr. Bishop away from him. Then there was the intervening event, the accident with the gun discharging without depressing the trigger.

THE COURT: What was the first accident?

MR. HADFIELD: The first use of the term "accident" of course is the one we were using all along. It's the same accident. I mean, the gun discharging is the accident event.

THE COURT: Right. [page556]

MR. HADFIELD: There are two uses. The first use is it reducing murder to manslaughter because of the intent issue. But the second one that isn't clear here, in my respectful submission, is that my client has maintained that when he applied the force, the intentional force to Mr. Bishop, it was to push him away. That the only force that he intended to use on Mr. Bishop in defending himself was pushing him away with the object he had in his hand, the gun, and that the intervening event, the gun going off, was an accident. But his intention was to apply only such force as was reasonably necessary, namely to push Mr. Bishop away from him.

The jury has to make a determination as to whether or not he used no more force than was necessary. My client's and my position is that he only used a minimal amount of force. He pushed him away with the gun. Unfortunately then there was an accident that occurred that doesn't go to the issue of intent.

APPENDIX "B"

Extract from the Trial Judge's Charge to the Jury

Summary of Law Regarding Murder

So to summarize the law in regard to murder for you, let me review for you the requisites of a charge of second degree murder. If the Crown has satisfied you beyond a reasonable doubt that the victim, Mr. Bishop, died as a result of an assault, that the accused Mr. Mulligan committed the assault upon the deceased and that the accused meant to cause death or meant to cause bodily harm that the accused knew was likely to cause death and was reckless whether death ensued or not then you will find the accused guilty of second degree murder subject to what I will tell you about the defenses of self-defence, provocation, intoxication and accident.

If you have a reasonable doubt on any of the matters essential to a verdict of second degree murder, if you have any reasonable doubt of any of those matters essential to a verdict of second degree murder, you will find the accused not guilty of second degree murder.

If you are not satisfied beyond a reasonable doubt that it was an unlawful act of the accused that caused the victim's death then you must acquit the accused altogether by returning a verdict of not guilty.

You are not going to have difficulty with the question of this particular point, that is, that the accused has admitted that he held the gun that killed Mr. Cory Bishop.

If you find that the victim, Mr. Bishop, died as a result of an unlawful act and that the accused committed that unlawful act but you are not satisfied beyond a reasonable doubt that Mr. Mulligan had the intent required for murder then you will find the accused not guilty of murder but guilty of manslaughter, subject to what I say about the defence of self-defence. [page557]

No intention to kill or cause bodily harm of the nature I have described need be proved by the Crown to sustain a verdict of manslaughter. Manslaughter is an unintentional killing resulting from an unlawful act. The Crown must satisfy you beyond a reasonable doubt that the accused killed Mr. Bishop by means of an unlawful act that the accused committed upon him, subject to what I will say again about the defenses and especially self-defence.

Now, we are getting into the detail and I appreciate that it will be difficult for you. Listen carefully and I think it will be clear at the end how you should approach the law in regards to the facts as you find them.

(Emphasis added)

Notes

Note 1: I use the term "intent to kill" as a short for the intent for murder in s. 229(a) of the Criminal Code.

Note 2: On appeal, Crown counsel argues that this instruction was overly favourable to the defence. He argues that on the appellant's own story he committed several unlawful acts such as a careless use of a firearm and therefore at best would have to be convicted of manslaughter even if he acted in self-defence.

Note 3: Also see R. v. Humaid, 2006 12287 (ON CA), [2006] O.J. No. 1507, 208 C.C.C. (3d) 43 (C.A.), at paras. 87-91.