A jury began deliberations midday Monday on whether a man accused manslaughter with a firearm and careless use of a firearm in the shooting death of his fiance is guilty of either of the counts.
Among the issues the 11 members will consider is whether the conduct of Kayne Sabbe Penner, now 29, was a "marked departure from the standard of care of a reasonable person," B.C. Supreme Court Justice Paul Pearlman told the jury in delivering his charge prior to sending them away.
Penner has admitted to handling the gun, .22-calibre semi-automatic rifle, when it went off inside the Vanderhoof-area mobile home of his cousin on the afternoon of Dec. 20, 2012. The bullet struck April Rose Johnson, 18, in the stomach and she died from the wound early the next morning. The couple had become engage that same month.
At question is why the gun went off. Penner's cousin, Richard Borne, had retrieved the rifle from his bedroom after Johnson suggested they go target shooting.
During testimony last week, the court heard the magazines holding the bullets were causing trouble. One shattered when Borne pulled the trigger during a session about a month before when a round failed to properly load into the chamber. And the backup clip was "sticking" as it fed bullets into the chamber, the court also heard.
With that in mind, Borne testified he went outside to fire off a test round into a nearby tree. Satisfied it was in working order, Borne said he went back inside and leaned the gun against the kitchen counter but admitted the safety was off.
In a video-recorded statement to police, aired during testimony, Penner said he picked the gun up and, holding it sideways, pulled the bolt on top to check to see if the clip was still sticking. Penner said he pulled the bolt back twice but maintained he did not see a bullet in the chamber.
"Then I just slipped and hit," Penner said. "I do not know if shell stuck in the chamber or what the frig happened. That's the only thing I can think of."
Realizing Johnson had been shot, he rushed her out to his car and off to St. John Hospital in Vanderhoof. Her health declining, Johnson was later taken by ambulance to University Hospital of Northern British Columbia in Prince George, where she died shortly before 2 a.m.
In closing arguments, Crown counsel Denise Ryan invited the jury to presume Penner's finger inadvertently touched the trigger at some point. Defence counsel Dave Jenkins Sr. countered the gun was never dusted for fingerprints.
He also noted there was a "dog's breakfast" of items on the counter, including a cast-iron eagle with its claws in the air and suggested it may have touched the gun's trigger as Penner dropped it. Johnson was struck in the upper stomach and Ryan argued the level at which she was hit, combined with a slight downward direction in the bullet's trajectory shows the gun went off while Penner was still holding the rifle.
If the jury finds Penner's actions were a marked departure from those of a reasonable person, Pearlman said members must find him guilty of careless use of a firearm. As for the more serious charge of manslaughter using a firearm, Pearlman they must also find Penner knew his actions were "objectively dangerous."
It took Pearlman 1 1/2 hours to read out his 39-page charge.
The jury must unanimously decide whether or not Penner is guilty of either or both counts and cannot discuss what was said during deliberations with anyone else. If they cannot reach a verdict, a mistrial will be declared and the case will be subject to another trial.
