Decisions of the Court of Appeal

WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (2), or (3) of the Criminal Code shall continue.  These sections of the Criminal Code provide:

486.    (1)            Any proceedings against an accused shall be held in open court, but the presiding judge or justice may order the exclusion of all or any members of the public from the court room for all or part of the proceedings if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(2)            For the purpose of subsection (1), the “proper administration of justice” includes ensuring that.

(a)       the interests of the witnesses under the age of eighteen years are safeguarded in all proceedings; and

(b)       justice system participants who are involved in the proceedings are protected.

(3)            If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 172, 172.1, 173, 212, 271, 272 or 273 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, reference to the circumstances of the case, the reason for not making an order.  R.S., c. C-34, s. 442; 174-75-76, c. 93, s. 44; 1980-81-82-83, c. 110, s. 74, c. 125, s. 25; R.S.C. 1985, c. 19 (3rd Supp.), s. 14; c. 23 (4th Supp.), s. 1; 1992, c. 21, s. 9; 1993, c. 45, s. 7; 1997, c. 16, s. 6; 1999, c. 25, s. 2; 2001, c. 32, s. 29; 2001, c. 41, s. 16, 34 and 133(13), (14); 2002, c. 13, s. 20; 2005, c. 32, s. 15; 2005, c. 43, ss. 4 and 8(3)(a).

[1]              Hans Vogel appeals from his conviction on July 7, 2005 for the manslaughter of his wife. He had been charged with second-degree murder. He raises several grounds of appeal but we find it necessary to deal only with his submission that the trial judge did not adequately instruct the jury on the mental element required for manslaughter.

[2]              The Crown’s theory at trial was that the appellant, in a fit of frustration over his wife’s excessive drinking and their financial problems, had committed second-degree murder by deliberately pushing his wife down the stairs in the middle of the night. Given that the injuries the deceased’s suffered were consistent with a fall down a flight of stairs, the differing accounts the appellant had given about how he discovered her at the bottom of the stairs were an important part of the Crown’s case. The appellant had stated that he found the deceased after coming home from a friend’s home, that he discovered her body as he was going to the bathroom in the middle of the night, and finally that he accidentally bumped into her in the upstairs hallway as he was going to the toilet beside the staircase.

[3]              The trial judge’s charge focused on the state of mind required for murder and said little about the mental state required for the included offence of manslaughter. The trial judge told the jury that if they had a reasonable doubt that what happened to the deceased was an accident, they must find the appellant not guilty. On the murder charge, he said the Crown must prove that the appellant either meant to kill his wife or meant to cause her bodily harm that he knew was likely to kill her and saw the risk that she could die from the injury but went ahead anyway and took the chance. He added “If [the appellant] did not mean to do either, [he] has committed manslaughter.” He also told them that “Manslaughter, very briefly, is the wrongful killing of a human being by means of an unlawful act but without the intention needed for murder.”

[4]              These instructions to the jury reflected the competing theories of the Crown and the defence at trial. The trial judge did not instruct the jury specifically on the mental component required for manslaughter.

[5]              The trial judge’s initial charge to the jury about manslaughter, though incomplete, would have been sufficient in the circumstances of the case. The defence recognized that deliberately pushing a person down a flight of stairs would give rise to an objectively foreseeable risk of bodily harm, which is neither trivial nor transitory. Thus, the jury was presented with the two alternatives – an accident or a deliberate push down the stairs. The jury, however, evidently considering another scenario permitted by the evidence, posed a question about the mental state required for manslaughter. The trial judge’s response to that question was inadequate.

[6]              The jury, in a preface to their question, indicated that they recognized that the unlawful act alleged in the case was the appellant’s assault on his wife by “deliberately pushing her down the stairs”. (Underlining not added). The jury then asked “If he deliberately pushed her out of the way, not intending to push her down the stairs, but simply intending to move her out of the way, does that constitute an unlawful act…?” (Underlining not added).

[7]              The trial judge answered this question by telling the jury:

Your question, ladies and gentlemen, assumes a deliberate pushing, and intentional pushing. I instruct you, as a matter of law, that an intentional application of force without consent constitutes an assault in law and that is an unlawful act. The strength of the force is immaterial.

[8]              There are two problems with this. First, it is not necessarily obvious that pushing the deceased out of the way in the hallway, not intending that she fall down the stairs, is an objectively dangerous act. Second, the instruction that “the strength of the force is immaterial” is simply wrong. The trial judge should have instructed the jury that the mental state required for unlawful act manslaughter is “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”: R. v Creighton (1993), 83 C.C.C. (3d) 346, at 373.

[9]              The trial judge’s answer to the question would have misled the jury. The appeal must be allowed. The conviction is set aside and the matter is remitted to be Superior Court of Justice for a new trial.

“John Laskin J.A.”

“R.G. Juriansz J.A.”

“J. MacFarland J.A.”