The B.C. Court of Appeal has ordered a new trial for a Vanderhoof man who was sentenced to four years in prison for the shooting death of his fiancee.
In a decision issued Wednesday, the court found B.C. Supreme Court Justice Paul Pearlman's charge to the jury was "inconsistent and confusing" with regard to the elements of the two charges Kayne Sabbe Penner was facing.
As well as finding him guilty of careless use of the firearm, the jury also found him guilty of the more serious count of manslaughter - and it was on that charge that Penner was sentenced.
Penner, who was sentenced in September 2017, had been out on bail for much of the time since then, pending the outcome of the appeal. He will remain out on bail while waiting for a new trial.
He had been issued the term for the Dec. 20, 2012 shooting death of April Johnson, 18. Penner was handling a .22-calibre semiautomatic rifle within the confines of his cousin's trailer home in the community of 4,650 people 100 kilometres west of Prince George when it went off. The bullet struck Johnson in the stomach and she later died in hospital.
Shortly after beginning to deliberate, the jury returned with two questions, the second being whether Penner could be found guilty of one charge without the other.
The Court of Appeal found the jury could have found Penner guilty of manslaugher solely on the essential elements for proving careless use and without considering whether there was a foreseeable risk of bodily harm which is "neither trivial nor transitory."
Pearlman had conflated elements of the two offences when he gave his charge and then failed to take steps to determine the source of the jury members' uncertainty.
"Had the judge done so, he would have been able to dispel that uncertainty and, perhaps, correct his charge," the Court of Appeal said in the decision, written by Justice David Frankel and concurred by Justice Sunni Stromberg-Stein and Justice John Savage.
And that both Crown and defence counsels failed to raise that point when discussing with Pearlman how to best address the jury's question was attributed to oversight rather than tactical reasons.
During the trial, the court heard that the rifle had been leaning against the home's kitchen counter with the safety off when Penner picked it up. Although told it was unloaded, Penner later told police he was "checking it" and, in a video of the interview, he was seen motioning as if he was pulling back the rifle's slide to check the chamber.
Penner said he did not see a bullet in the chamber but, as he was holding it horizontally, it went off. Johnson, who was getting ready to go target shooting, was standing by the home's door a short distance away.
Vancouver lawyers Richard Fowler and Karen Blok represented Penner on the appeal.
"Obviously as the court of appeal noted this case is truly a tragic case," Fowler said in an email to the Citizen. "There were clearly legal errors in the first trial and as Mr Penner's counsel we are pleased that the court agreed with our arguments."
