R. v. Alec, [1975] 1 SCR 720

Supreme Court of Canada

R. v. Alec, [1975] 1 S.C.R. 720

Date: 1974-05-27

Josephine Alec Appellant;

and

Her Majesty The Queen Respondent.

1974: May 15; 1974: May 27.

Present: Laskin C.J. and Martland, Judson, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Accused acquitted after jury trial on charge of non-capital murder—Misdirection—Court of Appeal ordering new trial on original charge—New trial directed by Supreme Court on charge of manslaughter—Jury showing by questions that they rejected non-capital murder.

APPEAL from a majority judgment of the Court of Appeal for British Columbia[1], whereby the acquittal of the appellant on a charge of non-capital murder was set aside and a new trial directed. Appeal allowed.

I.G. Waddell, for the appellant.

W.G. Burke-Robertson, Q.C., for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The appellant accused was acquitted after a trial by jury before Anderson J. of the British Columbia Supreme Court on a charge of non-capital murder of her husband. He died of a knife wound during a drinking party at the spouses’ residence, a party that had begun earlier in the evening at a hotel. They had had an argument and the husband left the house. The appellant took a knife and was heard to threaten to kill her husband. She then left the house, and returned after an interval (variously estimated at five to fifteen minutes, ten minutes to half an hour, and half an hour), with her face bruised and bloodied and her clothes muddy and

[Page 721]

bloodstained. She burst out that she had killed her husband.

At her trial her defences were accident, self-defence, drunkenness and provocation. No objection was taken by either counsel for the Crown or for the accused to the trial judge’s charge. The jury retired at 6:25 p.m., and a few minutes after 9 p.m. they asked for further instruction on provocation and also “on the conditions for manslaughter”. The foreman then added “some were wondering about what would be the reduction from manslaughter to not guilty”. The trial judge recharged briefly on drunkenness and provocation and the jury retired again. At 10:12 p.m. the jury came back again and put the following question to the trial judge: “Re-define manslaughter for some members of the jury. For example, is it applicable if there is no intent to cause death or injury?” In responding to this question, the trial judge said this:

If there is no intent to cause death or injury there is no offence at all, or if there is a reasonable doubt that there was no intent to cause death or injury it is your duty to acquit the accused. That’s very simple because our whole—I don’t think there are any exceptions but there are certainly no exceptions in this case—but if there is no intent to do something wrong there is no offence; that’s very simple.

The jury returned at 11:35 p.m. with a verdict of acquittal, both of non-capital murder and of manslaughter.

On appeal by the Crown, a majority of the British Columbia Court of Appeal found fatal misdirection in the trial judge’s above-quoted response to the jury’s question when they came back a second time at 10:12 p.m. Maclean J.A.

[Page 722]

for the majority noted that the Crown had relied on assault as the unlawful act to prove culpable homicide, and he held that there was error in telling the jury that an intent to cause death or injury was necessary to establish manslaughter. A new trial was directed on the original charge, Maclean J.A. having said in the course of his reasons that “if the jury was improperly instructed on the law relating to culpable homicide and manslaughter it follows that there would be no proper basis for a correct verdict on murder”. If by “culpable homicide” in this statement the learned judge meant non-capital murder only (and this seems to be the proper view of it), there is no warrant for saying that the charge was in this respect improper.

In a dissent, Farris C.J.B.C. was of the opinion that the charge taken as a whole was adequate; and that although the first sentence of the impugned direction was wrong when read alone, the jury would not be misled because they had previously been instructed on the defences of drunkenness and provocation, and were left with the clear impression that only accident or self-defence would justify acquittal if they found that the accused had knifed the deceased. These last-mentioned defences, according to the Chief Justice, would give meaning in this case to the trial judge’s statement that “if there is no intent to do something wrong, there is no offence”. The Chief Justice was of the further view that if there was to be a retrial, it should be on manslaughter only because the jury had shown by their questions that they had rejected non-capital murder.

[Page 723]

In my opinion, this is the proper conclusion, and not a restoration of the verdict of acquittal. I am moved to this conclusion because there was in the charge proper a misdirection similar to that which was the subject of the appeal to the British Columbia Court of Appeal. In the course of his charge, the trial judge said this:

If you find she didn’t mean to kill him you couldn’t find her guilty of murder. Now of course if she didn’t mean to harm him at all, she’s not guilty of anything.

I would allow the appeal, and substitute for the direction of a new trial for non-capital murder a direction for a new trial on a charge of manslaughter.

Judgment accordingly.

Solicitors for the appellant: Vancouver Legal Assistance Society.

Solicitor for the respondent: Attorney-General of British Columbia, Victoria.