R. v. Gunning (J.J.), (2005) 211 B.C.A.C. 51 (SCC)

• Judge: McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 19, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 211 B.C.A.C. 51 (SCC);2005 SCC 27;[2005] BCWLD 3302;EYB 2005-90540;[2005] CarswellBC 1181;[2005] 1 SCR 627;65 WCB (2d) 97;JE 2005-988;333 NR 286;29 CR (6th) 17;[2005] SCJ No 25 (QL);196 CCC (3d) 123;211 BCAC 51;349 WAC 51;253 DLR (4th) 76

R. v. Gunning (J.J.) (2005), 211 B.C.A.C. 51 (SCC);

      349 W.A.C. 51

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2005] B.C.A.C. TBEd. MY.036

Jody James Gunning (appellant) v. Her Majesty The Queen (respondent)

(30161; 2005 SCC 27; 2005 CSC 27)

Indexed As: R. v. Gunning (J.J.)

Supreme Court of Canada

McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ.

May 19, 2005.

Summary:

The accused was convicted by a jury of second degree murder after inflicting a single gunshot wound to the victim's neck. The victim was a trespasser at a party in his home and refused to leave. The accused alleged that he retrieved his shotgun, loaded it and intended to use it only to intimidate the victim into leaving. The accused alleged that the gun accidentally discharged. The accused appealed, submitting that the trial judge erred in refusing to leave the defence of property with the jury and in instructing the jury that the underlying offence of careless use of a firearm was made out (an unlawful act precluding an acquittal for manslaughter if the Crown failed to prove the requisite intent for murder).

The British Columbia Court of Appeal, in a judgment reported (2003), 186 B.C.A.C. 225; 306 W.A.C. 225, dismissed the appeal. The accused appealed.

The Supreme Court of Canada allowed the appeal and ordered a new trial. The trial judge erred in instructing the jury that the offence of careless use of a firearm had been made out. That was the jury's function. A later recharge did not cure the error. The trial judge also erred in refusing to leave the defence of property (Criminal Code, s. 41) with the jury. There was an air of reality to the defence and it was the jury's function to accept or reject the defence, not the trial judge's.

Criminal Law - Topic 234

General principles - Statutory defences or exceptions - Defence of property - The accused was convicted by a jury of second degree murder for the shooting death of the victim - The victim was a trespasser in the accused's home and refused to leave - The accused alleged that he retrieved his shotgun, loaded it and intended to use it to intimidate the victim into leaving, but the shotgun accidentally discharged - The trial judge refused to leave the defence of property (Criminal Code, s. 41(1)) with the jury - The only contentious issue was whether the accused used unreasonable force to eject the victim - The Supreme Court of Canada held that the trial judge erred where there was an evidential foundation giving the defence an "air of reality" - The accused was entitled to have the jury, not the trial judge, determine whether his use of the firearm up until the time of the alleged accidental discharge was a reasonable action taken in defence of property - See paragraphs 18 to 38.

Criminal Law - Topic 1285

Offences against person and reputation - Murder - Provocation - Jury charge - The accused alleged that he shot a trespasser accidentally when using the gun solely to intimidate the trespasser into leaving his home - The accused, convicted of second degree murder by the jury, alleged that the trial judge erred by failing to instruct the jury on s. 41(2) of the Criminal Code (provocation) - The British Columbia Court of Appeal rejected this ground of appeal, doubting that the defence should have been left with the jury - The Supreme Court of Canada agreed that the trial judge did not err in refusing to leave s. 41(2) with the jury - The court stated that "the defence of provocation only applies in respect of the offence of murder, in this case the alleged intentional shooting of [the victim]. [The accused] never asserted that he shot [the victim] for the purpose of removing him from his property." - See paragraphs 41 to 43.

Criminal Law - Topic 4293.1

Procedure - Trial judge - Duties and functions of - Jury trials - The Supreme Court of Canada stated that "it is never the function of the judge in a jury trial to assess the evidence and make a determination that the Crown has proven one or more of the essential elements of the offence and direct the jury accordingly. It does not matter how obvious the judge may believe the answer to be. Nor does it matter that the judge may be of the view that any other conclusion would be perverse. The trial judge may give an opinion on the matter when it is warranted, but never a direction." - See paragraph 31.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Directions regarding defences and theory of the defence - The accused was convicted by a jury of second degree murder for the shooting death of the victim - The victim was a trespasser in the accused's home and refused to leave - The accused alleged that he retrieved his shotgun, loaded it and intended to use it to intimidate the victim into leaving, but the shotgun accidentally discharged - The trial judge directed the jury that the underlying offence of careless use of a firearm was made out - The result was that if the jury found that the accused lacked the requisite intent for murder, they had to convict him of manslaughter based on the death resulting from an unlawful act (careless use of firearm) - The Supreme Court of Canada ordered a new trial - Whether the underlying offence of careless use of a firearm was made out was for the jury to decide, not the trial judge - The court rejected the Court of Appeal's application of the curative provision to dismiss the appeal notwithstanding the error on the ground that the error was irrelevant where the jury found the intent to commit murder - The court stated that "we do not know what reasoning led the jury to its verdict. What we do know ... 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 [the accused'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." - See paragraphs 18 to 38.

Criminal Law - Topic 4386

Procedure - Charge or directions - Jury or judge alone - Judge's duty to determine if defence available on evidence - The Supreme Court of Canada stated that a trial judge had a duty to place before the jury any defence having an "air of reality" - A defence had an "air of reality" if "a properly instructed jury could reasonably, on account of the evidence, conclude in favour of the accused" - See paragraph 32.

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See Criminal Law - Topic 4357 ].

Cases Noticed:

R. v. Finlay, [1993] 3 S.C.R. 103; 156 N.R. 374; 113 Sask.R. 241; 52 W.A.C. 241, refd to. [para. 21].

R. v. Baxter (1975), 27 C.C.C.(2d) 96 (Ont. C.A.), refd to. [para. 26].

R. v. Clark (1983), 44 A.R. 141; 5 C.C.C.(3d) 264 (C.A.), refd to. [para. 26].

R. v. Bacon, [1999] Q.J. No. 19 (C.A.), refd to. [para. 26].

Chandler v. Director of Public Prosecutions, [1964] A.C. 763 (H.L.), refd to. [para. 28].

R. v. Wang (2005), 332 N.R. 49; 2005 UKHL 9, refd to. [para. 28].

R. v. Cinous, [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 32].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 2004 SCC 27, refd to. [para. 32].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 41(1) [para. 24].

Counsel:

Glen Oris, Q.C., for the appellant;

Richard C.C. Peck, Q.C., and Paul Barclay, for the respondent.

Solicitors of Record:

Glen Orris, Vancouver, B.C., for the appellant;

Peck and Co., Vancouver, B.C., for the respondent.

This appeal was heard on February 15, 2005, before McLachlin, C.J.C., Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron, JJ., of the Supreme Court of Canada.

On May 19, 2005, Charron, J., delivered the following judgment in both official languages for the Court.