R. v. Gosset, [1993] 3 S.C.R. 76

Allen Gosset Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Gosset

File No.: 22523.

1992: May 1; 1993: September 9.

Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson* and Iacobucci JJ.

on appeal from the court of appeal for quebec

Criminal law ‑‑ Unlawful act manslaughter ‑‑ Predicate offence -- Mens rea ‑‑ Police officer who shot and killed suspect charged with unlawful act manslaughter ‑‑ Officer's careless use of firearm contrary to s. 86(2) of Criminal Code constituting predicate offence ‑‑ Whether trial judge erred in stating proper test for determining carelessness ‑‑ Whether Court of Appeal correct in overturning acquittal ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, ss. 86(2), 222(5)(a), 686(4)(b)(i).

The accused, a police officer, responded to a call from a taxi driver complaining of a customer who refused to pay his fare. Suspecting that the 150 packs of cigarettes in the taxi had come into the customer's possession illegally, and as there was an outstanding warrant for his arrest, the officer arrested him and took him to the police station. When he opened the rear door of the car at the station to let the suspect out, the latter attempted to flee. The accused chased after him, taking his gun out of its holster as he ran. He yelled "Stop or I'll shoot", and then pointed the gun at the suspect with his finger on the trigger. A shot went off, fatally striking the suspect in the head. The accused was charged with manslaughter. Under s. 222(5)(a) of the Criminal Code, a person commits culpable homicide when he causes the death of a human being by means of an unlawful act. The Crown contended that the accused's careless use of a firearm contrary to s. 86(2) constituted the unlawful act. At trial the accused acknowledged that the gun must have been cocked at the time he pointed it at the suspect. He further indicated that he never intended to shoot and that the gun went off accidentally. The accused was acquitted by a jury. The Court of Appeal set aside the acquittal and ordered a new trial. This appeal raises the issues of the proper test for determining carelessness in the context of s. 86(2) of the Code where it is the predicate offence of unlawful act manslaughter, and whether, if the trial judge erred on this question, the Court of Appeal was correct in overturning the acquittal.

Held: The appeal should be dismissed.

Per La Forest, L'Heureux‑Dubé, Gonthier, Cory and McLachlin JJ.: The proper test for the careless handling of a firearm is set out in R. v. Creighton. It was open to the jury to find that the conduct of the accused police officer constituted a marked departure from the standard of care of a reasonably prudent person in the circumstances. This was sufficient to permit a finding of the necessary actus reus and mens rea, absent evidence of incapacity to appreciate the risk involved in the conduct. The misdirection to the jury requires that a new trial be directed.

Per Lamer C.J. and Sopinka and Iacobucci JJ.: The determination of what constitutes "in a careless manner" or "without reasonable precautions for the safety of other persons" for purposes of s. 86(2) of the Code must be assessed on an objective standard, requiring a marked departure from the standard of care of a reasonable person. Penal negligence, or negligence in a criminal setting, is to be distinguished from negligence under civil law and incorporates the particular frailties of the accused, if any, because he or she could not have acted otherwise in the circumstances. In the determination of fault under s. 86(2) of the Code, it would be necessary for the jury to be instructed to consider whether the conduct of the accused was a marked departure from the standard of care of a reasonable person in the circumstances of the offence. If the answer is no, then the accused must be acquitted, since his or her conduct was not objectively negligent. If the answer is yes, however, then the jury must be instructed to consider whether the conduct of the accused was a marked departure from the required standard of care because (a) he or she did not turn his or her mind to the duty of care and thus to the risk likely to result from the conduct, or (b) he or she lacked the capacity to turn his or her mind to the duty of care, due to human frailties. If the answer is (a), the accused must be convicted, since the criminal law cannot allow the absence of actual awareness to be an excuse to criminal liability for negligence. If the answer is (b), the third stage of the inquiry is needed, under which the jury should be instructed to consider whether in the context of the particular offence, the reasonable person with the capacities of the accused would have made him or herself aware of the required duty of care.

If a jury should find the accused's use of the firearm in this case met the threshold of a marked departure from the standard of care of a reasonably prudent police officer in the circumstances, and no evidence is tendered to suggest that the accused, due to any particular human frailty, was unable to exercise his duty of care in the circumstances, then the accused must be convicted under s. 86(2) of the Code. In order to convict an accused of unlawful act manslaughter under s. 222(5)(a), however, it is necessary to prove (1) that the unlawful act caused the death of the victim; (2) that the accused has satisfied the fault requirement of that unlawful act (which cannot be one of absolute liability); (3) that the unlawful act is objectively dangerous; and (4) that the unlawful act was one from which a reasonable person, in the circumstances of the accused, would have foreseen the risk of death. Should a new trial be ordered, the jury would have to be instructed to consider the capacity of the accused again in the context of the fourth element of the offence, to determine whether the accused was capable of foreseeing the risk of death arising from the unlawful act.

In directing the jury to inquire into the mind of the accused in this case, in order to determine if he possessed "criminal" intent, the trial judge committed an error in law. Given the seriousness of the error in the charge, which went to the very heart of the elements of the offence that the Crown had to establish, the outcome may well have been affected, and therefore a new trial is required.

Cases Cited

By McLachlin J.

Followed: R. v. Creighton, [1993] 3 S.C.R. 000.

By Lamer C.J.

Referred to: R. v. Creighton, [1993] 3 S.C.R. 000; R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867; R. v. Derkosh (1979), 1979 ABCA 341, 52 C.C.C. (2d) 252; R. v. Batalha (1982), 1982 CanLII 369 (BC CA), 70 C.C.C. (2d) 190; R. v. Finlay, [1993] 3 S.C.R. 000; R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392; R. v. Reid, [1992] 3 All E.R. 673; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, s. 7.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 84(2), 202, 205(5)(a), 217, 219.

Criminal Code, R.S.C., 1985, c. C‑46, ss. 79, 80, 86(2), 219, 222(5)(a), (b), 234, 236, 436 [rep. & sub. 1990, c. 15, s. 1], 686(4)(b)(i), 691(2)(a).

Authors Cited

Canada. Law Reform Commission. Working Paper 46. Omissions, Negligence and Endangering. Ottawa: The Commission, 1985.

Colvin, Eric. Principles of Criminal Law, 2nd ed. Scarborough, Ont.: Thomson Professional Publishing Canada, 1991.

Duff, R. A. Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law. Oxford: Basil Blackwell, 1990.

Hawley, Donna Lea. Canadian Firearms Law. Toronto: Butterworths, 1988.

APPEAL from a judgment of the Quebec Court of Appeal, 1991 CanLII 2863 (QC CA), [1991] R.J.Q. 1567, 67 C.C.C. (3d) 156, 6 C.R. (4th) 239, 37 Q.A.C. 161, allowing the Crown's appeal from the accused's acquittal on a charge of manslaughter and ordering a new trial. Appeal dismissed.

Serge Ménard, for the appellant.

René de la Sablonnière and François Huot, for the respondent.

The reasons of Lamer C.J. and Sopinka and Iacobucci JJ. were delivered by

Lamer C.J. --

I. Facts

On the morning of November 11, 1987, the appellant, a 16-year veteran of the Montreal police force, and his partner, Kimberley Campbell, responded to a call from a taxi driver complaining of a customer who refused to pay his fare. The customer identified himself as Tony Bowers. The appellant learned over the police radio that this information was false. Based on papers that he was carrying, the individual was identified as Tony Griffin, for whom there was an arrest warrant outstanding. The appellant then arrested Mr. Griffin and brought him to the police station. The officers also received from the cab driver a bag belonging to Mr. Griffin which contained approximately 150 packs of cigarettes. The officers suspected that these cigarettes had come into the possession of Mr. Griffin illegally.

Upon arriving at the station, Ms. Campbell went to retrieve the cigarettes from the trunk of the car, the appellant opened the rear door to let Mr. Griffin out, and at that moment, Mr. Griffin attempted to flee. The appellant chased after him, taking his gun out of its holster as he ran. The gun was held at the side of his right leg, pointing at the ground. The appellant yelled in the direction of Mr. Griffin, "Stop or I'll shoot." The appellant then pointed his gun at Mr. Griffin with his index finger on the trigger. He claimed that he did this in order to intimidate Mr. Griffin because he was not responding to the order to stop. The Crown's position, however, is that Mr. Griffin had already stopped running forward and had begun running on the spot "dodging like a boxer", when he turned to face the appellant. At that moment, a shot went off, fatally striking Mr. Griffin in the head. These events all took place in the police station parking lot.

The gun used by the appellant can be fired either by "single action", where the gun is already cocked and only slight pressure on the trigger is required, or by "double action", requiring very strong pressure on the trigger so as to raise the hammer and then fire a shot.

The appellant was charged with manslaughter under ss. 234 and 236 of the Criminal Code, R.S.C., 1985, c. C-46 (formerly ss. 217 and 219). At trial, he testified that he was not aware of cocking the gun and never made a decision to do so; however, the appellant acknowledged that the gun must have been cocked at the time he pointed it at Mr. Griffin. He further indicated that he never intended to shoot and that the gun went off accidentally. The appellant was acquitted by a jury. On appeal to the Quebec Court of Appeal, the acquittal was set aside and a new trial was ordered: 1991 CanLII 2863 (QC CA), [1991] R.J.Q. 1567, 67 C.C.C. (3d) 156, 6 C.R. (4th) 239, 37 Q.A.C. 161. The appellant appeals to this Court as of right under s. 691(2)(a) of the Code.

II. Relevant Statutory Provisions

Criminal Code, R.S.C., 1985, c. C-46

86. . . .

(2) Every one who, without lawful excuse, uses, carries, handles, ships or stores any firearm or ammunition in a careless manner or without reasonable precautions for the safety of other persons

(a) is guilty of an indictable offence and liable to imprisonment

(i) in the case of a first offence, for a term not exceeding two years, and

(ii) in the case of a second or subsequent offence, for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

222. . . .

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

(b) by criminal negligence;

234. Culpable homicide that is not murder or infanticide is manslaughter.

III. Judgments Below

Superior Court

Trottier J. reviewed the text of s. 86(2) (formerly s. 84(2)) of the Code, and proceeded to make the following statement:

[translation] Remember that all the words in a section of a statute have meaning. In this definition of the criminal offence found in [86(2)], there are two essential elements that you must consider: 1. the element "without lawful excuse", and 2. "in a careless manner or without reasonable precautions for the safety of other persons".

Therefore, in order for an accused to be found guilty of having committed the criminal offence prohibited by section [86(2)] of the Criminal Code, the Crown, or the prosecution if you prefer, must establish for you that the accused acted without lawful excuse and in a careless manner, or without reasonable precautions for the safety of other persons.

If you have a reasonable doubt that the Crown has not established each of these elements, the accused must not be found guilty of manslaughter, by means of an unlawful act.

Trottier J. summarized the offence under s. 86(2) of the Code in the following passage:

[translation] . . . I should point out that for an action to constitute a criminal act, there must be a criminal state of mind, and that mere civil negligence, which happens to all of us, does not make us criminally liable.

Following his charge on the relevant law for manslaughter under s. 222(5) (formerly s. 205(5)), both on the basis of an unlawful act and on the basis of criminal negligence, the trial judge put the following five questions to the jury:

• [translation] First, at the beginning of the incident, was there anything in the evidence which indicated to you a criminal state of mind on the part of the accused?

• Second, during the trip to the station, even after having learned other information such as the existence of a warrant for his arrest, and the fact that the young man was considered violent, are you of the view that the evidence showed on the part of the accused this criminal state of mind?

• Third, upon their arrival at the station, before the attempted escape, do you find, there again in the evidence, anything indicating a criminal state of mind on the part of the accused?

• Fourth, during the attempted escape, when the shot was fired, do you see in the evidence, and solely in the evidence, facts which could lead you to conclude that the accused had, there again, a guilty state of mind, in the sense that I previously indicated to you?

• Fifth, immediately after the shot was fired, was the accused's attitude that of a person who showed a guilty state of mind or wanton or reckless disregard for the life of another person?

At the conclusion of the trial judge's charge, after the jury had retired, a discussion ensued between the trial judge and counsel for the Crown. Counsel for the Crown expressed serious concern about the manner in which Trottier J. had defined the negligence (carelessness) set out in s. 86(2), and, according to the Crown, had left the jury with the impression that s. 86(2) required the same degree of moral culpability as criminal negligence under s. 219 (formerly s. 202). This impression was affirmed, the Crown submitted, by the five questions stated by the trial judge reproduced above.

Trottier J. ruled that he had adequately distinguished between the two offences and their respective elements, and further, that recalling the jury for clarification might unfairly prejudice the accused. Two days later, the jury returned a verdict of acquittal.

Court of Appeal, 1991 CanLII 2863 (QC CA), [1991] R.J.Q. 1567, 67 C.C.C. (3d) 156

Beauregard J.A.

Beauregard J.A., at p. 161 C.C.C., stated that, in order to correctly explain s. 86 of the Code in relation to s. 222(5)(a) (formerly s. 205(5)(a)) of the Code, Trottier J. should have told the jury they had to be convinced of [translation] "the existence of the following essential elements" in order to find the appellant guilty:

(1) the handling of the gun must have been done knowingly;

(2) [the appellant] [must] also have been aware of the circumstances in which he handled the gun;

(3) his handling of the gun must have been done with less care than a good police officer would have taken in the same circumstances;

(4) there was no lawful excuse for [the appellant's] conduct;

(5) Griffin's death resulted from [the appellant's] conduct.

Beauregard J.A. added that Trottier J. should have explained the meaning of the phrase "without lawful excuse" in s. 86(2) of the Code.

Beauregard J.A. concluded, at p. 162 C.C.C., that Trottier J. had not caused prejudice to the respondent by telling the jury that the appellant could not be found guilty under ss. 86(2) and 222(5)(a) of the Code [translation] "if he only committed an act of simple negligence". However, [translation] "instead of saying that such a finding of guilt necessitated `a criminal state of mind'", Trottier J. should have said [translation] "that there was guilt if the negligence was gross negligence".

Beauregard J.A. concluded that Trottier J. had correctly explained s. 222(5)(b) of the Code by telling the jury that they should find the appellant guilty [translation] "if they came to the conclusion that [the appellant] had caused the death of Griffin by showing wanton or reckless disregard for the latter's life or safety" (p. 163 C.C.C.). However, Beauregard J.A. noted that Trottier J. [translation] "did not clearly explain to the jury what he understood by the expression `guilty state of mind'" or "criminal state of mind". Accordingly, in Beauregard J.A.'s opinion, the jury could only [translation] "have understood that, if, at the time of the shooting, [the appellant's] mind was not animated by malice, he should be found not guilty". Beauregard J.A. therefore concluded, at p. 164 C.C.C., that the jury had not considered the essential question, namely:

[translation] Considering all the circumstances, did [the appellant], in the use of his firearm, cause Griffin's death as a result of wanton or reckless disregard for Griffin's life?

Rothman J.A.

After reviewing the facts of the case, Rothman J.A. discussed the issues that would have to be determined by the jury; first, whether, when the accused pointed his gun at Mr. Griffin, the accused knew his gun was loaded and cocked or, alternatively, was indifferent to whether or not it was loaded and cocked; and second, whether the action of the accused amounted to "carelessness" within the definition of s. 86(2). Rothman J.A., however, noted, at p. 1576 R.J.Q., that the jury never had the opportunity to address these critical determinations:

Unfortunately, the jury had no opportunity to consider these questions. Instead, they were invited to consider the definition of criminal negligence, and the requirement of a criminal intent ("esprit criminel") the meaning of which was not explained to them. The judge's directions in this regard suggested that the Crown had the burden of proving malice, a burden that was too high whether the Crown had relied on criminal negligence under Sec. 219 or the careless handling of a firearm under Sec. 86(2).

With great respect for the trial judge, I do not believe the jury was properly instructed on the essential elements required to establish that Griffin's death was caused by the careless use, or handling of a firearm or how the law under Sec. 86(2) related to the evidence. Certainly, there was evidence on which a jury, properly instructed, could have concluded that [the] respondent was careless in the use and handling of his revolver. The jury should have been directed as to how the law related to that evidence.

Rothman J.A. concluded that it would have been "exceedingly difficult, if not impossible" to say that the outcome would have been the same if the jury had been properly instructed on the issue. A new trial, therefore, was ordered.

Brossard J.A. (dissenting)

Brossard J.A., at p. 175 C.C.C., stated that negligence under s. 86(2) of the Code [translation] "in order to justify a verdict of guilty does not require the same degree of recklessness or disregard that criminal negligence does". Brossard J.A., at p. 177 C.C.C., added that the degree of fault or negligence required for that subsection to apply involved a measure of objectivity bringing it very close to civil fault or negligence [translation] "which uncontestably is lesser in degree than that required in order to find criminal negligence and which was the [only one commented on or explained]" by Trottier J. Brossard J.A. then observed, at p. 177 C.C.C., that proof of negligence within the meaning of s. 86(2) of the Code [translation] "remains subject to the criminal law rules", namely that it is for the respondent to prove "beyond a reasonable doubt" that there was negligence in the handling of the firearm.

Brossard J.A. concluded, at p. 175 C.C.C., that Trottier J. erred in his charge to the jury because he did not [translation] "sufficiently explain the constituent elements of `carelessness' under [s. 86(2)] of the Criminal Code, and explained even less the distinction between carelessness under [s. 86(2)] and criminal negligence under [s. 219]". Brossard J.A. concluded, at p. 177 C.C.C.:

[translation] . . . [Trottier J.] should have emphasized that carelessness under [s. 86(2)] did not require any criminal state of mind, any criminal intent, nor any wanton or reckless behaviour on the part of the [appellant], no more than did it require proof that the latter had foreseen the unreasonable consequences of his act. It was also incumbent on [Trottier J.] . . . in concluding his charge, to pose the question clearly to the jury, in respect of [s. 86(2)] in terms analogous to those that he used in respect of criminal negligence....

Unlike the majority of the Court of Appeal, Brossard J.A. concluded that Trottier J.'s error in his charge to the jury did not warrant an order for a new trial. Brossard J.A. asked himself the following question, at p. 178 C.C.C.:

[translation] We must, therefore, ask ourselves whether the facts in evidence, interpreted by a jury properly charged, were such, with a reasonable degree of certainty, as would result in a different verdict.

Brossard J.A. stated, at p. 178 C.C.C., that [translation] "one cannot necessarily and ipso facto infer from the verdict of not guilty that the jury necessarily believed and accepted the [appellant's] story". Moreover, the respondent was required to prove [translation] "the voluntariness of the acts with which [the appellant] is reproached" (p. 179 C.C.C.). Brossard J.A. considered the evidence relating to the five steps in the actus reus, namely:

(1) The fact of having taken the gun out of the holster;

(2) The fact [that the gun was cocked];

(3) The fact of running with the gun out of the holster, pointed towards the ground;

(4) The fact of pointing the gun;

(5) The fact of pressing on the trigger and firing the gun.

Brossard J.A. stated that the deliberate and voluntary nature of the act was an essential element of the actus reus. He concluded that the involuntary and unconscious nature of the appellant's act prevented a verdict of guilty, despite the fact that Trottier J.'s charge to the jury was inadequate as to the degree of negligence required under s. 86(2) of the Code.

Brossard J.A. dismissed the other grounds of appeal relating to lawful excuse, necessary force and the admissibility of evidence of the police force directives, that is administrative standards. Brossard J.A. accordingly would have dismissed the appeal.

IV. Analysis

A. The Issues

There are two central issues before the Court in this appeal: first, what is the proper test to determine "carelessness" in the context of s. 86(2) of the Criminal Code where it is the predicate offence of unlawful act manslaughter? This is the question on which the trial judge was found to have erred by the Quebec Court of Appeal. The second issue is whether, if the trial judge erred, the Crown discharged its burden of demonstrating the error was such that the Court of Appeal could say, with a reasonable degree of certainty, that the verdict would not necessarily have been the same if the jury had been properly instructed.

Although the appellant was charged under s. 222(5) without distinguishing between the two grounds, (a) unlawful act manslaughter and (b) manslaughter by criminal negligence, the Crown principally relied on s. 222(5)(a) in its submissions, contending that the appellant's careless use of a firearm contrary to s. 86(2) comprised the predicate offence for unlawful act manslaughter. The trial judge instructed the jury both with respect to s. 222(5)(a) (unlawful act manslaughter) and s. 222(5)(b) (manslaughter by criminal negligence). The correctness of the charge for the offence under s. 222(5)(b) manslaughter by criminal negligence, however, was not pursued as a ground of the appeal before this Court and is not considered herein.

Finally, although the appellant raised the constitutionality of s. 222(5)(a) (unlawful act manslaughter) in his written submissions as a ground of appeal, this issue was not addressed by the Court of Appeal, nor was any constitutional question stated or conveyed to the provincial Attorneys General so as to allow them to intervene. Therefore, as the Court indicated at the time of the hearing, this issue will not be addressed herein. The constitutionality of s. 222(5)(a) is addressed, however, in R. v. Creighton, [1993] 3 S.C.R. 000, released this same day, where the matter was properly before this Court, in which s. 222(5)(a) is upheld as constitutional under s. 7 of the Canadian Charter of Rights and Freedoms.

B. Section 86(2) of the Code: Careless Use of a Firearm

The question in this case is the proper interpretation of the elements of s. 86(2) of the Code, where it forms the predicate unlawful act for the offence of unlawful act manslaughter under s. 222(5)(a) of the Code. In this determination, the Court must discern the intent of Parliament, having regard to the purpose of the section and the applicable principles of statutory construction.

Though there are no other references to "careless[ness]" in the Criminal Code, there are a number of analogous provisions to s. 86(2). Sections 79 and 80, for instance, create an offence which punishes persons for failing to discharge a duty of care to prevent bodily harm and property damage with respect to the care and control of explosive substances. Section 436 creates an offence which punishes a marked departure from the standard of care that a reasonably prudent person would use to prevent or control the spread of fires or to prevent explosions, where the fires or explosions cause bodily harm to a person or damage to property. These provisions indicate Parliament's intent that where people take care or control of inherently dangerous materials, they are put on notice that society has placed on them a specific duty of care.

In Canadian Firearms Law (1988), at p. 46, D. Hawley outlines what, in her view, provides the rationale for this provision:

This section is aimed at protecting people from the careless acts of others that may result in injury caused by this carelessness. Because firearms and ammunition have a potential for causing serious injury or death, Parliament has recognized that it is important that persons in possession of such items have a duty to use, carry, handle, ship and store them in a careful and safe manner.

In its Working Paper 46, Omissions, Negligence and Endangering (1985), the Law Reform Commission of Canada presented a further justification for rendering criminal the consequences of careless conduct (at p. 23):

The other misconception sees deterrence as the sole function of the criminal law. But is there not also room for reformation, prevention and support for values? Even if punishing carelessness did not deter, could it still not reform and teach offenders to take more care in future, prevent further carelessness and publicly affirm the value set on carefulness?

I agree with these descriptions of Parliament's intent in enacting s. 86(2).

What, then, is the basis of fault under s. 86(2)? In R. v. Hundal, 1993 CanLII 120 (SCC), [1993] 1 S.C.R. 867, at p. 883, this Court unanimously found that the test for dangerous driving under s. 249 of the Code is an objective one, requiring "a marked departure from the standard of care of a reasonable person". In my opinion, the determination of what constitutes "in a careless manner" or "without reasonable precautions for the safety of other persons" is, following Hundal, to be assessed on an objective standard. I am supported in this view by the plain meaning of the words chosen by Parliament. Neither phrase connotes any subjective knowledge of the standard of care in the circumstances, nor any subjective awareness of the risks arising out of a marked departure from the standard of care.

I draw further support for this approach from a series of appellate court decisions in Canada which have squarely addressed the fault requirement under s. 86(2). Most have found that whether or not carelessness has been established is to be determined objectively. While I would not, in every case, adopt the phraseology of these courts in their elucidation of the requirements of the section, I do agree with their conclusion in this regard.

In R. v. Derkosh (1979), 1979 ABCA 341, 52 C.C.C. (2d) 252 (Alta. C.A.), the acquittal of a man charged with storing firearms in a careless manner was upheld, on the basis that the evidence of the precautions taken by the accused negated the allegations of negligence. Speaking for the Court, Haddad J.A. adopted an objective test for the assessment of carelessness (at p. 254):

A duty is imposed on the possessor of firearms and ammunition, to ensure he is not careless in the manner in which he causes them to be stored, having regard to all of the circumstances. In positive words, there is a duty to take due care because these are potentially dangerous articles and a measure of safety is necessary.

In R. v. Batalha (1982), 1982 CanLII 369 (BC CA), 70 C.C.C. (2d) 190 (B.C.C.A.), a man was acquitted of a summary offence under s. 86(2) (formerly s. 84(2)) of the Code, after an unloaded gun was found, with ammunition nearby, in a parked truck. The acquittal was set aside by the County Court judge. On appeal to the British Columbia Court of Appeal, Nemetz C.J.B.C. adopted the reasoning in Derkosh, supra, and then reached the following conclusion in dismissing the appeal (at pp. 191-92):

Counsel for the appellant in his able submission contended that without proof of advertence on the part of the accused there can be no conviction here. In making that submission he relied on such cases as Mann v. The Queen, 1966 CanLII 5 (SCC), [1966] 2 C.C.C. 273, 56 D.L.R. (2d) 1, [1966] S.C.R. 238, and Peda v. The Queen, 1969 CanLII 22 (SCC), [1969] 4 C.C.C. 245, 6 D.L.R. (3d) 177, 7 C.R.N.S. 243.

In those cases Parliament used the word "dangerous" as setting the standard of care. These were mostly driving cases. In this case Parliament has used the word "careless" as being the standard.

As Mr. Justice Judson said in O'Grady v. Sparling (1960), 1960 CanLII 70 (SCC), 128 C.C.C. 1 at pp.14-5, 25 D.L.R. (2d) 145, [1960] S.C.R. 804 at p. 809:

What the Parliament of Canada has done is to define "advertent negligence" as a crime under ss. 191(1) and 221(1) [now ss. 219(1) and 249(1)]. It has not touched "inadvertent negligence" . . . and until Parliament chooses to define it in the Criminal Code as "crime", it is not crime.

However, here in order to protect the public from the improper carrying, handling, shipping, and storing of firearms, Parliament has imposed a duty of care. If the accused failed in his duty, he is liable, because the Code says so, even if he is no more than civilly or inadvertently liable.

Thus, s. 86(2) of the Criminal Code cannot be said to punish a state of mind; rather, this section establishes an offence of negligence, which, like intention and recklessness, may provide a valid basis of fault in criminal law. What need be proven in order to convict under this provision is conduct that constitutes a marked departure from the standard of care of a reasonably prudent person in the circumstances. If a reasonable doubt exists either that the conduct in question did not constitute a marked departure from that standard of care, or that reasonable precautions were taken to discharge the duty of care in the circumstances, a verdict of acquittal must follow.

As I find the fault element under s. 86(2) of the Code to be objective, what remains is to outline what factors that assessment of fault should consider. It is this question that I shall now address.

C. The Objective Test

While identifying the objective basis for the determination of fault under s. 86(2), the cases noted above tend to conflate the civil standard of negligence with the test for negligence in criminal law. Negligence in a criminal setting, or what I shall hereinafter refer to as "penal negligence" to distinguish it from offences involving a fault element of criminal negligence under s. 219 of the Code, subjects those convicted to the possibility of imprisonment. Unlike negligence under civil law, which is concerned with the apportionment of loss, penal negligence is concerned with the punishment of moral blameworthiness. The practical implication of the distinction is that a finding of negligence under the Code, whatever degree or species of negligence is contemplated by the charging section, is made somewhat differently than a finding of civil negligence. Penal negligence incorporates the particular frailties of the accused, if any, because he or she could not have acted other than they did in the circumstances. As I state in R. v. Finlay, [1993] 3 S.C.R. 000, released this same day, at p. 000, this approach is necessary if the principle of fundamental justice that prohibits punishing the morally innocent is to be respected.

In his book Intention, Agency and Criminal Liability: Philosophy of Action and the Criminal Law (1990), at p. 155, R. Duff contends that inadvertence may properly be construed as a morally blameworthy basis of fault:

One obvious objection to [orthodox subjectivism] is that it has no room for negligence as a species of fault, since the negligent agent does not choose to cause, or to risk causing, harm. But negligence surely is a species of fault, albeit less serious than recklessness: we properly blame people for their negligence. [Emphasis in original.]

In my view, this reasoning is sound. Section 86(2) punishes a marked departure from the standard of care as a species of criminal fault. This is not a case, however, of a person seeing a risk and recklessly disregarding that risk in his or her conduct, but rather of a person who fails to take reasonable precautions in response to the duty that has been placed upon him or her, and should have taken; the breach of this duty is demonstrated by the risk of harm to which their conduct gives rise. This provision, therefore, punishes those who have not acted reasonably.

Reasonableness cannot, however, be assessed in the abstract, but must relate to the circumstances of the accused and of the offence. In R. v. Tutton, 1989 CanLII 103 (SCC), [1989] 1 S.C.R. 1392, at p. 1434, I stated that in applying the objective norm set out in the definition of criminal negligence in s. 202 of the Criminal Code (now s. 219), there "must be made `a generous allowance' for factors which are particular to the accused, such as youth, mental development, education . . .". This position has since been described (by Eric Colvin in Principles of Criminal Law (2nd ed. 1991), at p. 151), as "a highly personalized approach to assessing negligence".

. . . the test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person. There is no need to establish the intention of the particular accused. The question to be answered under the objective test concerns what the accused "should" have known. The potential harshness of the objective standard may be lessened by the consideration of certain personal factors as well as the consideration of a defence of mistake of fact.

This approach is consistent with recent judicial pronouncements with respect to the law regarding dangerous driving in England. In R. v. Reid, [1992] 3 All E.R. 673 (H.L.), there is a general recognition that the capacity of the accused to appreciate risk is relevant to a determination of fault. Lord Keith, for example (at p. 675), found that the assessment of fault on the basis of inadvertence may have to be "modified . . . for example, where the driver acted under some understandable and excusable mistake or where his capacity to appreciate risks was adversely affected by some condition not involving fault on his part".

The principles underlying the consideration of the capacity of the accused are discussed in detail in R. v. Creighton, supra. I wish to emphasize, however, that having regard for the human frailties of a particular accused to the extent they might affect his or her ability to meet the standard of care required in the circumstances is not tantamount to adopting a subjective test for assessing fault. The objective test can clearly be distinguished from a subjective test in which the accused must be proven to have actual awareness that his or her conduct is creating a risk of harm. Under a subjective test, all characteristics of the accused are relevant, since the inquiry concerns what this particular accused knew and intended. The objective test, by contrast, holds an accused liable even in the absence of actual awareness, provided that awareness would have been present in the reasonable person.

Once a marked departure from the standard of care is established, the focus of the investigation under penal negligence must shift, therefore, to the question of whether the accused was capable of recognizing that he or she had fallen short of the standard of care required in the circumstances by the charging section.

It is important to distinguish, however, between the relevance of personal factors to the question of whether the accused's conduct constituted a marked departure from the standard of care of a reasonable person, and the relevance of personal factors to the question of whether the accused was capable of meeting that standard of care. I note initially that some factors particular to the offence will not be personal to the accused: the standard of care must obviously be determined with reference to the external, physical circumstances of the offence (e.g., prevailing road conditions where a driving offence is at issue). Rather a personal factor relevant to defining the standard of care is the accused's membership in a group characterized by training or specially superior knowledge which indicates that a higher standard of care than that which would be expected of the untrained or non-specialist reasonable person is appropriate. Just as in the law of civil negligence, the defendant with special knowledge or experience is held to a higher standard commensurate with that knowledge or experience, so in penal negligence a police officer trained and experienced in the use of firearms should be held to a higher standard of care in the handling of firearms than the non-police officer. The standard of care in the law of professional negligence provides another example of this approach.

Common sense dictates that the nature of the activity in question will determine whether any special knowledge, training or experience of the group is relevant at this stage of the inquiry: while training and experience as an ambulance driver will affect the standard of care in a driving offence, but not in an offence involving the use of firearms, the appellant's training and experience as a police officer most certainly will be relevant to the standard of care under s. 86(2) in this case.

This attention to characteristics of the group to which the accused belongs does not make the definition of the standard of care any more subjective than it is in the law of civil negligence: the threshold question remains whether the accused's actions constituted a marked departure from the conduct expected of a reasonable member of the experienced or specialist group.

In contrast, the factors which will be relevant to capacity in the context of penal negligence will be those which may have impaired, rather than enhanced, the accused's personal ability to know the facts necessary to have acted reasonably, and thus serve to excuse the accused from liability.

The analytical distinction between these types of personal factors is best illustrated in a checklist of questions for the trier of fact. In the determination of fault under s. 86(2) of the Code, it would be necessary for the jury to be instructed to consider the following questions:

(1) Was the conduct of the accused a marked departure from the standard of care of a reasonable person in the circumstances of the offence?

If the answer to this question is no, then the accused must be acquitted, since his or her conduct was not objectively negligent. If the answer is yes, however, then the jury must be instructed to consider the second question:

(2) Was the conduct of the accused a marked departure from the required standard of care because

(a) he or she did not turn his or her mind to the duty of care and thus to the risk likely to result from the conduct; or

(b) he or she lacked the capacity to turn his or her mind to the duty of care, due to human frailties?

If the answer is (a), the accused must be convicted, since the criminal law cannot allow the absence of actual awareness to be an excuse to criminal liability for negligence. If the answer is (b), the third stage of the inquiry is needed, under which the jury should be instructed to consider the third question:

(3) In the context of the particular offence, would the reasonable person with the capacities of the accused have made him or herself aware of the required duty of care?

If a jury should find the appellant's use of the firearm in this case met the threshold of a marked departure from the standard of care of a reasonably prudent police officer in the circumstances, and no evidence is tendered to suggest that the appellant, due to any particular human frailty, was unable to exercise his duty of care in the circumstances, then the appellant must be convicted under s. 86(2) of the Code.

While it was clear that the firing of the appellant's gun caused the death of Mr. Griffin, a finding of fault under s. 86(2) is not sufficient to find the appellant guilty of unlawful act manslaughter. In R. v. Creighton, supra, I set out the following elements which must be proven in order to convict an accused of unlawful act manslaughter under s. 222(5)(a): (1) that the unlawful act caused the death of the victim; (2) that the accused has satisfied the fault requirement of that unlawful act (which cannot be one of absolute liability); (3) that the unlawful act is objectively dangerous; and (4) that the unlawful act was one from which a reasonable person, in the circumstances of the accused, would have foreseen the risk of death.

Should a new trial be ordered, the jury would have to be instructed to consider the capacity of the accused again in the context of the fourth element of the offence, to determine whether the accused was capable of foreseeing the risk of death arising from the unlawful act. In R. v. Creighton, I outline the objective test to be applied in order to establish fault for unlawful act manslaughter under s. 222(5)(a) of the Code.

I shall now turn to the task of evaluating the trial judge's charge to the jury.

D. The Charge to the Jury and s. 686(4)(b)(i) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

In his charge to the jury, the trial judge stated that, in order to convict the appellant under s. 86(2) as the predicate unlawful act for s. 222(5)(a) of the Code, the prosecution had to establish that the appellant possessed [translation] "a criminal state of mind" and that a finding of simple negligence was insufficient to satisfy this standard. The meaning of "criminal state of mind" was not discussed anywhere in the charge to the jury. Subsequently, at the close of his address on the relevant law, the trial judge put five questions to the jury, all of which reiterated that, in order to convict, the jury had to be satisfied that the appellant had "a criminal state of mind". In directing the jury to address these questions, and inquire into the mind of the accused, in order to determine if he possessed "criminal" intent, the learned trial judge, with respect, committed an error in law.

All the members of the Court of Appeal found that the trial judge had erred in his charge to the jury on the assessment of carelessness under s. 86(2); Brossard J.A., however, dissented on the question of the implications of this error. Brossard J.A. was not convinced with a reasonable degree of certainty that the verdict of not guilty would have been different if the error had not been committed. Therefore, Brossard J.A. saw no need for a new trial.

Having concluded that the Court of Appeal was correct in finding that the trial judge erred in his charge to the jury, it is necessary to determine if the majority of the Court of Appeal was also correct in setting aside the acquittal and ordering a new trial under s. 686(4)(b)(i) of the Code.

In R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at p. 374, Sopinka J. stated the threshold to be met for setting aside an acquittal and ordering a new trial under the section in the following manner:

The onus resting on the Crown when it appeals an acquittal was settled in Vézeau v. The Queen, 1976 CanLII 7 (SCC), [1977] 2 S.C.R. 277. It is the duty of the Crown to satisfy the court that the verdict would not necessarily have been the same if the jury had been properly instructed.

I am prepared to accept that the onus is a heavy one and that the Crown must satisfy the court with a reasonable degree of certainty. An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it. Any more stringent test would require an appellate court to predict with certainty what happened in the jury room. That it cannot do.

Brossard J.A., in departing from the majority on the question of whether a properly instructed jury, acting reasonably, could have come to a different conclusion, makes an important inference based on the jury's verdict of an acquittal. In his view, the acquittal of the appellant implied that the jury had accepted the appellant's defence that the discharge of the gun had been accidental, involuntary and of an unconscious nature.

With respect, I do not think this inference necessarily follows from the acquittal. The jury was instructed to determine if criminal negligence had been established, and may even have been misdirected to look for "malice". The jury could well have accepted that the discharge of the weapon had not been involuntary or unconscious, and still found that the elements of criminal negligence had not been proven beyond a reasonable doubt.

More importantly, given the seriousness of the error in the charge, which went to the very heart of the elements of the offence that the Crown had to establish, I would say with more than a reasonable degree of certainty that the outcome may well have been affected by the error in the trial judge's charge. Consequently, a new trial is required.

V. Disposition

I would dismiss the appeal, and affirm the decision of the majority of the Quebec Court of Appeal ordering a new trial.

The judgment of La Forest, L'Heureux-Dubé, Gonthier, Cory and McLachlin JJ. was delivered by

McLachlin J. -- The appellant, a police officer, is charged with manslaughter. A suspect was attempting to escape. The appellant yelled "Stop or I'll shoot", and pointed his gun in the direction of the suspect. A shot went off. It hit the suspect in the head and killed him. The appellant was charged with "unlawful act manslaughter", on the basis that he had killed someone while handling a firearm in a careless manner contrary to s. 86(2) of the Criminal Code, R.S.C., 1985, c. C-46 (formerly s. 84(2)). At trial the appellant testified that he never intended to shoot and that the gun went off accidentally. The jury acquitted him. The Court of Appeal set the acquittal aside on the ground that the judge had misdirected the jury and ordered a new trial.

The appeal to this Court raises the question of the proper test for the careless handling of a firearm. Depending on the answer to this question, a further question may arise of whether the verdict would have necessarily been the same had the jury been told to apply the correct test. My view on the applicable legal principles is set out in R. v. Creighton, [1993] 3 S.C.R. 000.

I agree with the Chief Justice that it was open to the jury to find that the conduct of the police officer constituted a marked departure from the standard of care of a reasonably prudent person in the circumstances. This was sufficient to permit a finding of the necessary actus reus and mens rea, absent evidence of incapacity to appreciate the risk involved in the conduct. The Court of Appeal below, 1991 CanLII 2863 (QC CA), [1991] R.J.Q. 1567, found that "in this case, there is nothing in the evidence to suggest that [Mr. Gosset] would not have been able to recognize a risk of danger that all reasonable people would inevitably recognize as a risk of danger in the use or handling of a firearm" (reasons of Rothman J.A., at p. 1574). In short, there was no incapacity which prevented the accused from taking the care a reasonable person would have taken in the circumstances. This was precisely the test I have attempted to enunciate more fully in R. v. Creighton.

I agree, however, with the Chief Justice that the misdirection to the jury he refers to requires that a new trial be directed.

I would dismiss the appeal, and affirm the decision of the majority of the Quebec Court of Appeal ordering a new trial.

Appeal dismissed.

Solicitors for the appellant: Trudel, Nadeau, Lesage, Cleary, Larivière & Associés, Montréal.

Solicitor for the respondent: René de la Sablonnière, Québec.

• Stevenson J. took no part in the judgment.