



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).






CITATION: R.
          v. Vogel, 2011 ONCA 342



DATE: 20110502



DOCKET: C45370



COURT OF APPEAL FOR ONTARIO



Laskin, Juriansz and MacFarland



BETWEEN



Her Majesty The Queen



Respondent



and



Hans-Joachim Vogel



Appellant



Richard Posner for the appellant



Elise Nakelsky for the respondent



Heard:
April 27, 2011



On appeal from the conviction imposed by Justice James Robert
          MacKinnon of the Superior Court of Justice dated September 6, 2005.



ENDORSEMENT



[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 Crowns theory at trial was that the appellant, in
    a fit of frustration over his wifes 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
    deceaseds 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 Crowns case. The appellant
    had stated that he found the deceased after coming home from a friends 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 judges 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 judges 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 judges 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
    appellants 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 judges 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.


