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Regina v. Coyne. The judgment of the Court was delivered by 1 RITCHIE J.A.:—The appellant was convicted before the Magistrate for the County of Charlotte on a charge of having caused bodily harm to John Edward Polk and James Reynold Clark by criminal negligence in firing a rifle in a manner so as to show wanton or reckless disregard for the lives and safety of other persons. The charge was laid under s. 193 of The Criminal Code which reads: "Every one who by criminal negligence causes bodily harm to another person is guilty of an indictable offence and is liable to imprisonment for ten years." 2 The learned magistrate sentenced the appellant to ten days imprisonment and to pay a fine of $100. 3 The facts are not in dispute. Shortly after leaving his work in Saint Stephen about five o'clock in the afternoon of Friday, 18th October 1957, the appellant was driven by a friend to the junction of the Bowery and Mayfield Roads, a few miles away. There, at ap-proximately ten minutes past five o'clock, he found, waiting in a car, a Mrs. Devers who told him she had driven some boys out and asked if he saw them to tell them to hurry out of the woods. The appellant walked on the Bowery Road southerly about 11/2 miles to the camp of one George McIntee with whom he intended to stay until the following night. He estimates it took about 20 minutes to walk this distance. Finding no one at the camp he left his gear and went to a nearby clearing about 5 acres in extent on the westerly side of the Bowery Road where he sat down and had a smoke. At its southerly edge a bulldozed woods' road leading westerly from the Bowery Road skirts this clearing. When the appel-lant had about decided to call it a day he saw on the bulldozed road moving objects which he says he took to be three deer. He watched for 4 or 5 seconds and then aimed his rifle and fired at one of the objects thinking it was a deer running into the woods on the far side of the road. 4 The moving objects were not deer but 4 boys hurrying easterly along the road. The bullet from the appellant's rifle hit John Polk just below the shoulder blade, passed through his right arm, entered the left arm of James Clark and lodged back of his shoulder blade. The other two boys, Allen Johnstone and Philip McIntee, were not injured. 5 At the time of the shooting young Polk was wearing a red checkered shirt and khaki trousers, Clark a red hunting jacket, and Philip McIntee a red jacket and light tan trousers. There is no evidence as to Allen Johnstone's dress. 6 The appellant says visibility was good, although the bushes in the clearing and the dark background of the woods beyond the road interfered, to some extent, with his vision. 7 The distance from where the appellant was sitting to the point where the two boys were when hit was found, on measurement, to be approximately 200 feet. The police tes-timony was that there were bushes about midway between the two points which, to some extent, would obscure the view. 8 In his judgment the learned magistrate expresses the following conclusion: "There is no doubt in my mind that at the time the accused pulled the trigger of his gun and fired he was absolutely satisfied in his mind that he was shooting at a deer. That the accused had no knowledge he was shooting at a person nor any intention to shoot a person is, in my opinion, no excuse in law." 9 And later, when finding the appellant guilty, he says: "In my opinion an ordinary prudent man would have made sure of what he was firing at. I believe the accused felt sure he was firing at a deer, nevertheless the evidence shows it was not a deer but a person or per-sons. I cannot but hold the accused, before firing his rifle, omitted to take the necessary precaution required by law." 10 The appeal is from the conviction and not against sentence. 11 The substantial ground is that having found as a fact the appellant honestly be-lieved he was firing at a deer, the learned magistrate erred in convicting, there being no proof of mens rea. 12 With s. 193 must be read s. 191: "(1) Every one is criminally negligent who 13 In Regina v. Fortin (1958), 29 C.R. 28, 42 M.P.R. 70, 121 C.C.C. 345, 1958 Can. Abr. 211, referring to s. 191, we stressed the importance of the words "wanton" and "reck-less". Also important are the words "shows" and "disregard" and the phrase "duty imposed by law". Among the meanings ascribed to "wanton" by the Oxford Dictionary are "undisciplined, un-governed". The same dictionary assigns to "reckless" the meanings "careless of the consequences of one's actions"; "heedless (of something)"; and "lacking in prudence or caution". The verb "show" is said to mean "to display (a quality, condition, feeling, et cetera) by one's action or behaviour". "Disregard" is defined as "want of regard; neglect, inattention; the treating of anything as of no importance". 14 The "duty imposed by law" may be a duty arising by virtue of either the common law or by statute. Use of a firearm, in the absence of proper caution, may readily endanger the lives or safety of others. Under the common law any one carrying such a dangerous weapon as a rifle is under the duty to take such precaution in its use as, in the circum-stances, would be observed by a reasonably careful man. If he fails in that duty and his behaviour is of such a character as to show or display a wanton or reckless disregard for the lives or safety of other persons, then, by virtue of s. 191, his conduct amounts to crim-inal negligence. See Regina v. Fortin, supra. 15 In Regina v. Salmon (1880), 6 Q.B.D. 79 at 83, Sir James Fitzjames Stephen J., an eminent authority on criminal law, enunciates the duty in these terms: "There is a duty tending to the preservation of life to take proper precautions in the use of dangerous weapons or things. It is the legal duty of every one who does any act, which without ordinary precautions is or may be dangerous to human life, to employ those precautions in doing it." 16 As was stated by this Court in Fortin's case at 33: "If the conduct of the accused comes within the language of s. 191, and there is no evidence that such conduct may have been due to circumstances beyond his control, a blameworthy state of mind is imputed to him and criminal negligence, as an ingredient of the offence, is established." 17 Honest negligence is not a defence. In Rex v. Gylee (1908), 1 Cr. App. R. 242, the appellant had been convicted of manslaughter. While driving a motor vehicle he saw a bicycle about to cross his path. It appeared to him, however, that the bicycle rider had seen the car approaching and had decided to turn the bicycle so as to proceed in the same direction as the car. The car struck the bicycle and a girl who had been riding on the step of the bicycle was killed. It was submitted on behalf of the appellant that if he honestly believed the bicycle rider was turning so as to go in the same direction as himself, then what happened was accidental and he was not responsible. The judgment of the Court, delivered by Darling J., contains the following passage: "The statement of law suggested by appellant to be the correct one lacked this qualification, that appellant might have been unjustified in coming to the conclusion which he did. It was no defence to prove that a man was honestly negligent." 18 The conduct of an accused, rather than the belief entertained by him, must be the dominant factor and criterion in assessing the applicability of the provisions of s. 191 to such conduct. 19 The danger inherent in the use of a firearm in the woods during the hunting season should be obvious to any man of ordinary intelligence. In this case the appellant actually was aware others were hunting in the area. There were no abnormal circumstances surrounding the boys at the time of the shooting. The evidence contains nothing to suggest their dress, position or movements would have misled any person, exercising reasonable care and circumspection, to mistake them for deer. 20 The facts disclose no explanation or excuse capable of bringing the appellant's behaviour within the category of reasonably careful conduct. Neither his belief he was shooting at a deer, nor his lack of knowledge he was shooting at persons serves so to classify his act. The discharge of the rifle was intentional not accidental. Nothing in the conduct of the appellant was due to circumstances beyond his control. Our view is that no one of normal intelligence, exercising the care and caution ordinarily practised by a rea-sonably careful man would, in the circumstances disclosed, have allowed himself to be led or lulled into a conviction he was shooting at a deer. 21 It is our unanimous opinion the appellant failed to take such precaution in the use of his rifle as, in the circumstances would be observed by a reasonably careful man and that his conduct showed such a reckless disregard for the lives or safety of others as to lead to no other reasonable conclusion than that there existed in him that blameworthy state of mind which, in criminal negligence cases, constitutes mens rea. 22 Were the law to be interpreted in conformity with the contention of the appellant, any person who, on a hunting expedition, shoots another could escape responsibility by establishing, without more, that he thought he was shooting at game. Such a proposition we cannot accept. The appeal will be dismissed.
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