R. v. Parent, [2001] 1 S.C.R. 761, 2001 SCC 30

Her Majesty The Queen Appellant

v.

Réjean Parent Respondent

and

The Attorney General for Ontario Intervener

Indexed as: R. v. Parent

Neutral citation: 2001 SCC 30.

File No.: 27652.

2001: March 14; 2001: May 17.

Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Criminal law – Charge to jury – Murder – Effect of anger on criminal intent – Trial judge suggesting in his charge that intense anger short of provocation might suffice to reduce murder to manslaughter by raising doubts on existence of criminal intent for murder – Whether trial judge misdirected jury on effect of anger in relation to manslaughter – If so, whether recharge on provocation corrected misdirection.

The accused and his estranged wife were involved in litigation over the division of their assets, some of which were held in a corporation. Because of financial difficulties, the accused’s shares were seized and put up for sale. The wife attended the sale, allegedly intending to buy the shares. The accused was also present. The wife suggested that they speak. She said: “I told you that I would wipe you out completely” at which time the accused shot his wife six times and killed her with a loaded gun he was carrying in his pocket. At trial the accused, who was charged with first degree murder, testified that he did not intend to kill his wife and did not know what he was doing. He argued that the verdict should be reduced to manslaughter on the basis of lack of criminal intent or provocation. The jury found him guilty of manslaughter. The Court of Appeal upheld the verdict.

Held: The appeal should be allowed and a new trial ordered on second degree murder.

The trial judge erred in his charge to the jury on the effect of anger on criminal intent and its relationship to manslaughter. In the context of murder, the defence of provocation does not eliminate the need for proof of intention to kill, but operates as an excuse that has the effect of reducing murder to manslaughter. Portions of the jury charge in which the trial judge addressed the criminal intent suggested that anger, if sufficiently serious or intense, but not amounting to the defence of provocation, may reduce murder to manslaughter. It also suggested that such anger could negate the criminal intention for murder. These connected propositions are not legally correct. Intense anger alone is insufficient to reduce murder to manslaughter. Anger can play a role in reducing murder to manslaughter in connection with the defence of provocation when all the requirements of that defence are met. Anger is not a stand-alone defence. The trial judge’s misdirections on the effect of anger in relation to manslaughter left it open to the jury to find the accused guilty of manslaughter, on the basis of the anger felt by the accused, even if they concluded that the conditions required for the defence of provocation were not met. The trial judge’s initial direction that anger alone might reduce murder to manslaughter was not corrected on the recharge on provocation and it cannot be inferred from the way the trial proceeded that the jury’s verdict of manslaughter was not based on the erroneous initial direction.

Cases Cited

Referred to: R. v. Thibert, 1996 249 (SCC), [1996] 1 S.C.R. 37; R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C-46, s. 232.

APPEAL from a judgment of the Quebec Court of Appeal rendered October 19, 1999 dismissing the Crown’s appeal from the accused’s conviction for manslaughter. Appeal allowed and new trial ordered on second degree murder.

Pierre Lapointe, for the appellant.

Kenny Gionet, for the respondent.

Trevor Shaw, for the intervener.

The judgment of the Court was delivered by

1 The Chief Justice -- On September 24, 1996, the respondent, Réjean Parent, shot and killed his estranged wife. She had initiated divorce proceedings four years earlier and they were involved in litigation over the division of their assets, some of which were held in a corporation. In the meantime, their financial situation deteriorated, to the point that Mr. Parent’s shares were seized and put up for sale. The wife attended the sale, allegedly intending to buy the shares. Mr. Parent also attended. He carried a loaded gun with a locked security catch in his pocket. There, she suggested they speak and they retired into a nearby room. Shortly after, shots were heard. Mr. Parent had shot his wife six times. She died from the wounds later that night.

2 Mr. Parent was charged with first degree murder. At trial, he testified that when they proceeded to the room his wife had said, in effect: [translation] “I told you that I would wipe you out completely.” He then felt a hot flush rising and shot. He said he [translation] “didn’t know what [he] was doing any more” and was aiming in front of him. He said he did not intend to kill his wife. After doing so, he left the building and spent the afternoon in a strip club before giving himself up to police that evening.

3 At trial, Mr. Parent argued that the verdict should be reduced to manslaughter on the basis of lack of criminal intent or provocation. The jury found him guilty of manslaughter. He was sentenced to 16 years’ imprisonment, and a lifetime prohibition on possessing firearms, ammunition and explosives: [1997] Q.J. No. 4459 (QL).

4 The Crown appealed the verdict of manslaughter, and Parent appealed the sentence. The Quebec Court of Appeal dismissed the appeal from the verdict without reasons, but in separate proceedings ((1999), 1999 13451 (QC CA), 142 C.C.C. (3d) 82) reduced the sentence to six years’ imprisonment, after giving Mr. Parent credit of two years for time served. In this Court, the appellant raised one point only: that the judge had erred in his instructions to the jury on the effect of anger, creating a “defence of anger” (défense de colère) distinct from the defence of provocation. The respondent, for his part, argued that any difficulties in the judge’s directions to the jury were cleared up in his redirection on provocation in answer to jury questions and that the jury properly convicted the accused of manslaughter on the basis of provocation.

5 Two issues are raised: (1) whether the trial judge erred in his charge to the jury on intention, and (2) if so, whether that error was cured by the redirection. I conclude that the trial judge erred in his direction on intention and that the recharge did not eliminate the possibility that this error led the jury wrongly to find the respondent guilty of manslaughter. Accordingly, the conviction must be set aside and a new trial ordered.

1. Did the Trial Judge Err in his Charge to the Jury on Intention?

6 The jury had three possible offences before it: first degree murder, second degree murder and manslaughter. All three offences require proof of an act of killing (actus reus) and the corresponding criminal intention (mens rea). In relation to murder, the defence of provocation does not eliminate the need for proof of intention to kill, but operates as an excuse that has the effect of reducing murder to manslaughter.

7 The Crown argues that the trial judge erred in suggesting that anger is capable of negating the intention to kill and that the jury could reduce the offence to manslaughter on this basis. More particularly, the Crown suggests that the judge’s directions wrongly treated anger as a matter that could negate the criminal intent or mens rea of the offence; wrongly suggested that negation of intent can reduce the offence to manslaughter; and wrongly left open the suggestion that anger alone can establish provocation, when in fact other requirements must be met pursuant to s. 232 of the Criminal Code, R.S.C. 1985, c. C-46. The gravamen of the Crown’s submission is that the trial judge’s direction on intention was confusing and wrong and left it open to the jury to convict the accused of manslaughter, not on the basis of provocation (which the trial judge correctly defined), but on the erroneous basis that a high degree of anger short of provocation, as defined in law, could negate the criminal intent or mens rea of the offence.

8 The Crown objects to the portions of the jury charge in which the trial judge stated that the jury must take into account [translation] “evidence surrounding the defence of provocation raised by the accused” in determining the accused’s intent to kill. The Crown also objects to the trial judge’s treatment of mens rea in the following passages:

[translation] For example, murder may be reduced to manslaughter where a person’s state of mind is affected by alcohol consumption, drug consumption or where a person’s state of mind is obscured or diminished by an outside force, by an incident like, for example, a fit of anger.

You no doubt appreciate that we are not talking about an arbitrary reduction.

In other words, it is not sufficient for a person to simply say “I was drinking” or “I took some drugs” or “I was really angry”.

That alone, that’s not enough, and all that always depends on the circumstances. It always depends on the nature of the facts at issue, of external influences, or outside influences capable of affecting one’s state of mind.

It depends on the nature of the fact at issue, of its importance, its seriousness, its intensity in relation to the action that was taken by the person who committed the crime, all the while taking into account the evidence as a whole and all the circumstances.

So, you must look at the accused’s state of mind when he killed Suzanne Bédard, you look at the entire evidence, including the elements surrounding the provocation defence with a view to determining whether he acted with the criminal intention that I defined earlier.

Here, the accused, when he testified, described to you his state of mind when Suzanne Bédard said the words in question.

You must then decide if this incident was sufficiently serious, important, intense so as to cause him to lose his faculties to the point of reducing the crime of murder to manslaughter.

You will ask yourselves if his state of mind was affected, diminished, and if so, the intensity, the degree to which, taking into account all the circumstances at the time when he did what he did.

To reduce murder to manslaughter, you must come to the conclusion that the influence of the events that occurred was strong enough, important enough, intense enough to cause the accused to not know or not want what he was doing by reason of his state of mind, that his faculties were too diminished to fully assess the situation, or that raise a reasonable doubt in his favour, in this respect. [Emphasis added.]

9 The Crown argues that this passage creates a halfway house defence of anger, between non-mental disorder automatism and provocation. I agree. This passage suggests that anger, if sufficiently serious or intense, but not amounting to the defence of provocation, may reduce murder to manslaughter. It also suggests that anger, if sufficiently intense, may negate the criminal intention for murder. These connected propositions are not legally correct. Intense anger alone is insufficient to reduce murder to manslaughter.

10 The passage cited overstates the effect of anger. Anger can play a role in reducing murder to manslaughter in connection with the defence of provocation. Anger is not a stand-alone defence. It may form part of the defence of provocation when all the requirements of that defence are met: (1) a wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control; (2) which is sudden and unexpected; (3) which in fact caused the accused to act in anger; (4) before having recovered his or her normal control: R. v. Thibert, 1996 249 (SCC), [1996] 1 S.C.R. 37. Again, anger conceivably could, in extreme circumstances, cause someone to enter a state of automatism in which that person does not know what he or she is doing, thus negating the voluntary component of the actus reus: R. v. Stone, 1999 688 (SCC), [1999] 2 S.C.R. 290. However, the accused did not assert this defence. In any event, the defence if successful would result in acquittal, not reduction to manslaughter.

11 So it seems clear that the trial judge misdirected the jury on the effect of anger in relation to manslaughter. His directions left it open to the jury to find the accused guilty of manslaughter, on the basis of the anger felt by the accused, even if they concluded that the conditions required for the defence of provocation were not met. The directions raise the possibility that the jury’s verdict of manslaughter may have been based on erroneous legal principles, unless they were corrected in the recharge to the jury.

2. Did the Trial Judge Correct the Errors in his Recharge to the Jury?

12 The trial judge recharged the jury in response to two questions it posed during its deliberations. The jury asked for clarification as to sudden provocation and the burden of proof for manslaughter.

13 The trial judge responded by correctly recharging the jury on provocation. He told the jury that they would need to consider provocation only if they found the elements of murder established and that if they had a reasonable doubt on the matter, they must convict of manslaughter, not murder.

14 The question, however, is whether the recharge on provocation corrected the earlier misdirection suggesting that anger short of provocation might suffice to reduce murder to manslaughter by raising a doubt on the existence of the criminal intent for murder. Since the trial judge began his recharge on provocation by noting (correctly) that the jury must already have satisfied itself of the basic elements of murder before it got to this point – actus reus and mens rea – the recharge did not address the earlier erroneous suggestion that anger alone might reduce murder to manslaughter.

15 More seriously, the trial judge incorporated by reference into the recharge, his earlier erroneous charge on criminal intention. He stated:

[translation] I defined criminal intention in a general manner and I indicated to you that if you had a reasonable doubt with respect to the accused’s criminal intention, you had to return a verdict of manslaughter because the crime would no longer amount to murder.

This incorporated into the trial judge’s recharge his previous erroneous comments suggesting that anger alone could negate criminal intention or mens rea and hence reduce murder to manslaughter.

16 I conclude that the recharge did not cure the errors in the trial judge’s initial direction on how anger could affect criminal intent.

17 The respondent argues that the fact that the jury asked for directions on provocation after they had deliberated for four days, combined with the trial judge’s direction that they could consider provocation only if they were satisfied of the basic requirements for murder, including criminal intention, suggest that the jury’s verdict of manslaughter must have been based on provocation, not the problematic direction on criminal intent. Yet this conclusion is speculative. The fact remains that the jury may have come to its conclusion that the respondent was guilty of manslaughter by another route – the erroneous thesis that serious anger on its own can negate the criminal intent required for murder. The asking of a question related to one possible route to a verdict does not establish that the jury actually followed that route. It is quite possible that the jury went back to the fundamental issues of criminal intent after hearing the judge’s recharge on provocation. In view of the misleading directives on anger, we cannot be assured that the jury was able to carry out its function according to the law. To put it another way, we cannot be sure that the recharge corrected the potential for the jury deciding on manslaughter on the erroneous basis put forward in the initial charge.

3. Conclusion

18 The trial judge erred in his charge to the jury on the effect of anger on criminal intent or mens rea and its relationship to manslaughter. This error was not corrected on the recharge and we cannot infer from the way the trial proceeded that the jury’s verdict of manslaughter was not based on the erroneous initial direction. It follows that the conviction for manslaughter must be set aside and a new trial directed.

19 As indicated earlier, the Crown in this appeal, relied solely on the trial judge’s misdirections on anger and criminal intent. It is therefore unnecessary to comment further on the applicability of the defence of provocation as it may be tendered at the new trial. It will be for the judge on the new trial to determine whether, on the evidence there presented, the defence of provocation should be put to the jury.

20 I would allow the appeal and direct a new trial on second degree murder.

Appeal allowed and new trial ordered on second degree murder.

Solicitor for the appellant: The Attorney General’s Prosecutor, Quebec City.

Solicitors for the respondent: Boulet, Boivin, Gionet, Duchesne, Thibault & Savard, Quebec City.

Solicitor for the intervener: The Ministry of the Attorney General, Toronto.