R. v. Walker, 2008 SCC 34, [2008] 2 SCR 245

                                                 SUPREME COURT OF CANADA

Between:

Bradley Gene Walker

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario

Intervener

Coram: Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

R. v. Walker, [2008] 2 S.C.R. 245, 2008 SCC 34

Bradley Gene Walker                                                                                                        Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

and

Attorney General of Ontario                                                                                            Intervener

Indexed as:  R. v. Walker

Neutral citation:  2008 SCC 34.

File No.:  32069.

2008:  February 26; 2008:  June 6.

Present:  Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for saskatchewan

Criminal law — Trial — Judgments — Reasons for judgment — Court of Appeal reversing trial judge’s acquittal of accused on charge of second degree murder owing to insufficiency of reasons — Whether trial judge’s duty to give reasons for judgment in trial by judge alone operates with equal force on appeal from acquittal as on appeal from conviction — Whether trial judge’s reasons adequately explained why accused was acquitted on charge of second degree murder.

After a night of drinking, the accused shot and killed his common law spouse and was charged with second degree murder.  At his trial before a judge alone, the trial judge acquitted the accused of murder but convicted him of manslaughter.   In reaching his decision, the trial judge noted evidence of intoxication and accident, and indicated that he was not satisfied beyond a reasonable doubt that the accused either meant to cause his spouse’s death or meant to cause her bodily harm which he knew was likely to cause death.  The majority of the Court of Appeal set aside the acquittal and ordered a new trial on the charge of second degree murder.  In the majority’s view, the trial judge’s reasons did not make it clear whether the acquittal was based on the evidence of the accused’s intoxication, or on the evidence of his having accidentally shot his spouse or on some combination of the two.  This inadequacy was such as to preclude meaningful appellate review of the correctness of the trial decision.  The dissenting judge held that the reasons were sufficient to permit an assessment of the acquittal based on the intoxication defence.

Held:  The appeal should be allowed and the acquittal on the murder charge restored.  The conviction on the charge of manslaughter was not appealed and is maintained.

Sheppard recognized a duty to give adequate reasons on a number of broad policy grounds, and it is apparent that these grounds apply as much to acquittals as to convictions.  The Crown and the police, no less than the accused and the public generally, have a legitimate interest in knowing the reasons for the unsuccessful outcome.  However, an appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself.  Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments.  Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue.  Whether the perceived deficiencies in the trial judge’s reasons undermined the exercise of the Crown’s right of appeal must be assessed in light of the limited nature of this right.  Section 676(1)  of the Criminal Code  only permits appeals from acquittals on questions of law alone and contrasts with the broader right of appeal from a conviction given to an accused. [19-21]

The adequacy of reasons must also be assessed in light of the fact an accused benefits from the presumption of innocence.  A conviction requires the prosecution to establish each of the factual elements of the offence beyond a reasonable doubt.  An acquittal, on the other hand, can rest simply on the absence of proof.  This difference does not excuse a trial judge from failure to provide intelligible reasons for an acquittal, but it necessarily informs an assessment of whether the reasons are so deficient as to preclude effective appellate review. [22]

Here, the trial judge adequately explained his reasons for the acquittal on the second degree murder charge.  He did not find that the consumption of alcohol prevented the accused from forming the requisite intent for murder.  Rather, on a fair reading of his reasons as a whole, his reasonable doubt as to intent was raised by what he considered to be the real possibility that the shooting was the result of an accident in which the accused’s alcohol consumption played a significant role.  While the trial judge’s reasons, delivered orally, fell well short of the ideal, they were not so inadequate that the Crown’s limited right of appeal was impaired. [23-24] [26-27]

Cases Cited

Applied:  R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26; disapproved:  R. v. Kendall (2005), 198 C.C.C. (3d) 205; referred to:  R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27; R. v. Burns, [1994] 1 S.C.R. 656; R. v. R. (D.), [1996] 2 S.C.R. 291; R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17; R. v. Kent, [1994] 3 S.C.R. 133; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Biniaris, [2000] 1 S.C.R. 381, 2000 SCC 15.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1985, c. C‑46, ss. 222(1) , (5) , 229 (a), 234 ‑236, 676(1)(a).

APPEAL from a judgment of the Saskatchewan Court of Appeal (Cameron, Jackson and Richards JJ.A.), [2007] 7 W.W.R. 445, 293 Sask. R. 113, 220 C.C.C. (3d) 528, [2007] S.J. No. 184 (QL), 2007 CarswellSask 191, 2007 SKCA 48, setting aside the acquittal on the charge of second degree murder and ordering a new trial.  Appeal allowed.

Mervyn T. Shaw, Q.C., for the appellant.

Anthony B. Gerein, for the respondent.

M. David Lepofsky, for the intervener.

The judgment of the Court was delivered by

[1]     Binnie J. —  This appeal raises the question of whether a trial judge’s duty to give reasons  for judgment in a trial by judge alone operates with equal force and effect in an appeal from an acquittal as on an appeal from a conviction.  In the present case, a majority of the Saskatchewan Court of Appeal reversed the trial judge’s acquittal of the appellant on a charge of second degree murder.  The appellant was convicted of manslaughter.  In reaching his decision the trial judge noted evidence of intoxication and accident, but in the view of the majority he did not make clear the “pathway” he followed to the acquittal of the appellant of the more serious charge.  In particular, according to the majority, the trial judge did not make it clear whether the acquittal was “based on the evidence of the accused’s intoxication, or on the evidence of his having accidentally shot [the victim], or on some combination of the two (in the sense intoxication can increase the prospect of accident)” ((2007), 220 C.C.C. (3d) 528, 2007 SKCA 48, at para. 33).  A new trial was ordered on the charge of second degree murder.

[2]     In my view, with respect, while the trial judge’s duty to give reasons applies generally to acquittals as much as to convictions, the content of the reasons necessary to give full effect to the right of appeal is governed by the different issues to which the reasons are directed on an acquittal (perhaps no more than the basis of a reasonable doubt) and a conviction (factual findings showing the pathway to conviction, explaining why significant elements of the evidence are accepted, rejected or fail to raise a reasonable doubt).  Caution must be taken to avoid seizing on perceived deficiencies in a trial judge’s reasons for acquittal to create a ground of “unreasonable acquittal” which is not open to the court under the provisions of the Criminal Code, R.S.C. 1985, c. C-46  (“Cr. C.”).  I conclude, with great respect for the contrary view, that the trial judge’s reasons in this case provided an adequate foundation for the Crown to exercise its limited right of appeal.  I would therefore set aside the majority judgment of the Saskatchewan Court of Appeal and restore the acquittal on the murder charge.  The conviction on the charge of manslaughter was not appealed.

I.  Facts

[3]     The appellant, a 27-year-old resident of Moose Jaw, shot and killed his common-law spouse, Valerie Reynolds, on August 30, 2003.  They had been living together in a house they shared with the appellant’s three small children.  The appellant kept a shotgun (the weapon used) in the house.  The shotgun had recently been purchased from a friend, Denis Deschamps.

[4]     On the evening in question, Mr. Deschamps came to the appellant’s house at about 6:00 p.m.  Everyone, including the appellant, had several drinks of rum and Coke,  eventually finishing off a 26-ounce bottle.  There may have been some beer consumed and possibly one joint.  At some point, early in the evening, the appellant got out the shotgun and began playing around with it.  The gun was not loaded at that time.  Around 11:30 p.m., the group decided to go to a bar.  In the meantime, Mr. Deschamps’s girlfriend had arrived.  She agreed to remain behind to baby-sit the children.  This left Valerie Reynolds, the eventual victim, free to accompany the men to the bar.

[5]     The trial judge found that when the appellant left the house he “was not sober, but he was not really drunk” ([2004] S.J. No. 850 (QL), at para. 29).  The group remained at the bar until its 2:00 a.m. closing time.  The appellant drank two shots of Sambuca and at least four beers, maybe five, and a rye and Coke as well.  Ms. Reynolds was drinking Smirnoff Ice.  Friction developed.  Ms. Reynolds danced with someone else and the appellant confronted this individual and told him to back off.  At the same time, it seems, the appellant was “hitting on” another woman.  The appellant was very drunk by closing time.  However, they were holding hands as they left the bar.

[6]     Once outside, the appellant approached several women with a view to arranging a sexual threesome with Ms. Reynolds and himself.  She objected and an argument ensued.  She then took the house keys and set off for home.  Mr. Deschamps described Ms. Reynolds’ pace as “like an Olympic speed walking”, and “truckin’”.  The two men pursued at a “quick pace” but could not narrow the gap by much.  The appellant appeared angry at Ms. Reynolds for “leaving him like that” and accompanied by Mr. Deschamps chased after her saying he “was really pissed off” and would “slap her around and put her back into line”.  Ms. Reynolds was crying.  They continued on home, pausing in the parking lot of a Burger King, where they were observed arguing in loud voices by one of the employees, who saw the appellant grab Ms. Reynolds by the face to turn her towards him but said “[i]t wasn’t anything violent or aggressive.”

[7]     Ms. Reynolds arrived home around 3:30 a.m.  She was crying and went straight to the bedroom.  The babysitter’s evidence was that the appellant was “much more drunk than when he left”.  When leaving, Mr. Deschamps told the appellant to “take it easy”, to which the appellant replied, “Yeah, it’ll be a show, the police will show up”.

[8]     Around 4:25 a.m., the police received a 911 call from the appellant to the effect that upon going to bed an intruder had somehow entered the bedroom, a scuffle ensued between him and the intruder and during the scuffle the intruder had shot Ms. Reynolds and then escaped.  One of the police officers testified that when he reached the house the appellant did not appear significantly drunk.  He was seen carrying a child and talking on the phone while pacing.  The defence expert said the effect of the shotgun blast could be the equivalent of “a bucket of cold water in the face”.

[9]     On further police questioning the following morning, it became obvious that there had not been an intruder and that the appellant had, in fact, shot Ms. Reynolds.  He now said that he had hidden the shotgun under his bed and pulled it out that night while he and Ms. Reynolds were talking.  He was playing with the gun at the end of the bed while they talked.  The gun went off accidentally and shot her.  He was three feet away from her at the time.  He described the shooting as “a freak accident” in a statement given to the police and introduced at trial by the Crown:

I remember looking at the wall and holding the gun[,] it was sideways like this in my hands and all of a sudden bang.  I looked up cause she made a noise and just the look and expression on her face.  And I think she was in her bra.  She wasn’t in her clothes. . . . Boom.  And there was a hole in her. Somewhere on her right side. . . . Like I didn’t point the gun at her to kill her.  I didn’t intentionally go bang you’re dead.  You know.  Like. . . . I slipped on the trigger and shot my girlfriend.  Complete hundred percent accident.  Like wow.  It hit her here like somewhere.  Another five inches it probably would have missed her completely. . . . I remember the gun blowing off in my hand.  Bang.  And I remember the gun was sitting lopsided in my hand.  It wasn’t aimed.  It wasn’t pointed.  Well it was pointing at her but not intentionally pointing at her.  Like I wasn’t trying to shoot a gun. . . .  I know the alcohol. . . . [d]efinitely took control of me. . . . I was being a fucking retard and trying to scare her or do something really fucking stupid.

After the shooting, the shotgun was found in the backyard of a neighbour, where the appellant had hidden it immediately after the shooting and before the police arrived.

[10] The expert evidence was that at the approximate time of the shooting, around 4:22 a.m., the appellant’s blood alcohol level was “in the range of .215”.  In the expert’s opinion, a blood alcohol reading above .200 “would seriously disrupt brain function and the person would be obviously severely intoxicated”.

[11] Other expert evidence established that the gun barrel was either touching or within approximately one-half centimetre of the victim’s skin at the time it was discharged.  The pellets found in the victim’s body were consistent with the gun being parallel to the body at the time of the discharge.

[12] The appellant was charged with second degree murder under s. 235 Cr. C.  He was tried by a judge of the Court of Queen’s Bench sitting without a jury.  The appellant did not testify.  The judge acquitted him of murder but convicted him of manslaughter.  The appellant was sentenced to eight years minus double credit for one and one-quarter years spent on remand, resulting in a sentence of five and a half years.

II.  Judicial History

A.  Saskatchewan Court of Queen’s Bench (Kovach J.), [2004] S.J. No. 850 (QL)

[13] In oral reasons for judgment, the trial judge said he was satisfied beyond a reasonable doubt that the appellant was properly identified as the offender, that the Crown had established the time and place of the offence as set out in the indictment, and that the accused caused the death of Ms. Reynolds by his unlawful act.  However, the trial judge was not satisfied beyond a reasonable doubt that the appellant either meant to cause Ms. Reynolds’ death or meant to cause her bodily harm which he knew was likely to cause death and was reckless whether death ensued or not (s. 229 (a) Cr. C.).  He explained his decision on this point as follows (at paras. 49-50):

Although it’s not a specific finding of fact, it is my distinct impression that in part due to the effects of alcohol and in part to his personality, at the time of the shooting Walker was engaged in an act of bravado or machismo.  He was showing off his latest toy [the shotgun] in an effort to intimidate Ms. Reynolds and impress her with his disappointment at her failure to embrace his desire to engage in a sexual threesome and her gall at walking away from him at the bar.

As disgusting and as utterly contemptuous as I find that conduct to be, it is not and I cannot find it to be tantamount to an intention to kill or an intention to cause bodily harm likely to cause death. And under the circumstances, I find Walker not guilty of murder, but guilty of manslaughter.

B.   Court of Appeal for Saskatchewan — the Majority — Cameron J.A. (Richards J.A. Concurring) (2007), 220 C.C.C. (3d) 528, 2007 SKCA 48

[14] Cameron J.A. cited R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26, for the proposition that a trial judge’s failure to provide adequate reasons might amount to error of law if the deficiency is incurable by the record and is such as to preclude meaningful appellate review of the correctness of the decision.  In his view, the trial reasons for judgment here disclosed the general basis upon which the judge decided to acquit the accused of murder (failure to prove its case beyond a reasonable doubt on mens rea) but not the foundation for this conclusion.  Specifically, the trial reasons do not disclose whether the acquittal was based on the evidence of the accused’s intoxication, or on the evidence of his having accidentally shot the victim, or on some combination of the two.  This inadequacy was such as to preclude meaningful appellate review of the correctness of the trial decision.  As stated, a new trial was ordered.

C.  Jackson J.A. (Dissenting)

[15] In the view of Jackson J.A., this was not a particularly complicated case:  it involved a charge of second degree murder and the defences of accident and drunkenness.  The law is settled.  The trial judge’s reasons must be read in light of the straightforward nature of the case.  He was not charging a jury and gave an oral decision.  What is important is that he clearly concluded that the specific intent for murder had not been made out.  Once the defence of accident is set aside, the basis for the verdict is obvious. The reasons are sufficient to permit an assessment of the acquittal based on a defence of intoxication.  In her view, the trial reasons reveal no error of law with respect to the defence of intoxication.  She would have dismissed the appeal.

III.  Relevant Statutory Provisions

[16]        Criminal Code, R.S.C. 1985, c. C-46 

222. (1)  A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

                                                                            . . .

(5)       A person commits culpable homicide when he causes the death of a human being,

(a)       by means of an unlawful act;

(b)       by criminal negligence;

                                                                            . . .

229.     Culpable homicide is murder

(a)       where the person who causes the death of a human being

(i)  means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

                                                                            . . .

234.     Culpable homicide that is not murder or infanticide is manslaughter.

236.     Every person who commits manslaughter is guilty of an indictable offence and liable

(a)       where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; . . .

                                                                            . . .

676. (1)  The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal

(a)       against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone;

IV.  Analysis

[17] The live issue at trial was whether the Crown established the necessary mens rea for murder, that is to say that the appellant meant to cause Ms. Reynolds’ death or meant to cause her bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not (s. 229 (a) Cr. C.).

[18] The Crown says the trial judge’s reasons are both inadequate and inscrutable, citing R. v. Braich, [2002] 1 S.C.R. 903, 2002 SCC 27.  In its view, the trial judge’s reasons are deficient because one cannot tell if the trial judge decided the murder was unproven because he had at least a reasonable doubt that the pulling of the trigger was an accident; or if the appellant did pull the trigger deliberately, he did so without knowing where the gun was aimed; or if he deliberately pointed the gun at his spouse, it went off accidentally; or if he shot deliberately, but with a drunken failure to form the specific intent to kill or cause bodily harm foreseen as likely to cause death, and reckless  whether or not death ensues.  The judges in the majority and minority in the Saskatchewan Court of Appeal were seemingly agreed that the trial judge had a duty to make it clear whether the acquittal on the murder charge was based on “the evidence of the accused’s intoxication, or on the evidence of his having accidentally shot Ms. Reynolds, or on some combination of the two (in the sense intoxication can increase the prospect of accident)” (para. 33).  The difference is that the majority thought the reasons unclear on this point whereas the dissenting judge felt able to explain the acquittal on the basis of the intoxication defence.

[19] Sheppard recognized a duty to give adequate reasons on a number of broad policy grounds.  At the trial level, the reasons justify and explain the result.  “Reasons for judgment are the primary mechanism by which judges account to the parties and to the public for the decisions they render” (para. 15).  The losing party is entitled to know why he or she has lost.  “Informed consideration can be given to grounds for appeal.  Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be” (para. 24).  “Trial courts, where the essential findings of facts and drawing of inferences are done, can only be held properly to account if the reasons for their adjudication are transparent and accessible to the public and to the appellate courts” (para. 15).  See also R. v. Burns, [1994] 1 S.C.R. 656; R. v. R. (D.), [1996] 2 S.C.R. 291, and R. v. Gagnon, [2006] 1 S.C.R. 621, 2006 SCC 17, at paras. 13, 14, 19 and 62.  It is apparent that these considerations apply as much to acquittals as to convictions.  Prosecutions call for a great expenditure of public resources, both human and material, and the Crown and the police, no less than the accused and the public generally, have a legitimate interest in knowing the reasons for the unsuccessful outcome.

[20] Equally, however, Sheppard holds that “[t]he appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself” (para. 26).  Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments.  Their sufficiency should be measured not in the abstract, but as they respond to the substance of what was in issue.  The  “trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision” (para. 55(8)).  Moreover, “[w]here it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene” (para. 46).  The duty to give reasons “should be given a functional and purposeful interpretation” and the failure to live up to the duty does not provide “a free-standing right of appeal” or “in itself confe[r] entitlement to appellate intervention” (para. 53).

[21] In this case, the Crown argues that the perceived deficiencies in the trial judge’s reasons undermined the exercise of its statutory right of appeal.  However, the Crown’s argument must be assessed in light of the Crown’s limited right of appeal from an acquittal (“a question of law alone” (s. 676(1) (a) Cr. C.)) in contrast to the broader right of appeal given by Parliament to an accused from a conviction.  In particular, the Crown has no right to appeal what it regards as an “unreasonable acquittal”:  R. v. Kent, [1994] 3 S.C.R. 133; R. v. Morin, [1988] 2 S.C.R. 345, and R. v. Biniaris,  [2000] 1 S.C.R. 381, 2000 SCC 15, at para. 33.

[22] A major difference between the position of the Crown and the accused in a criminal trial, of course, is that the accused benefits from the presumption of innocence.  The intervener Attorney General of Ontario argues that “[t]he fact that the accused is presumed innocent doesn’t derogate in any way from the judge’s duty to correctly apply all applicable legal principles” (Factum, at para. 7).  This is true, so far as it goes, but whereas a conviction requires the prosecution to establish each of the factual elements of the offence beyond a reasonable doubt, no such requirement applies to an acquittal which, unlike a conviction, can rest simply on the absence of proof.  The trial judge may just conclude that one or more of the elements of the offence was “not proven” to the criminal standard.  This difference does not excuse a trial judge from failure to provide intelligible reasons for an acquittal, but it necessarily informs an assessment of whether the reasons are so deficient as to preclude effective appellate review.

[23] In my view, with respect, the trial judge’s reasons in this case adequately explained his reasons for the acquittal on the second degree murder charge.  The Crown had proven culpable homicide beyond a reasonable doubt (s. 222(5)  Cr. C.).  This finding laid the foundation for the manslaughter conviction.  The remaining issue was whether the Crown had also proven the requisite mens rea for murder, i.e., that the appellant intended to cause the death of his spouse, or to cause her bodily harm that he knew was likely to cause her death, and was reckless whether death ensued or not (s. 229 (a) Cr. C.).

[24] The Crown argues that at a minimum the trial judge was required to indicate whether his reasonable doubt on murder mens rea was due to intoxication, accident, or a combination of the two.  In my view, with due respect for the divergent views of the judges of the Saskatchewan Court of Appeal, the reasons of the trial judge on this point are intelligible when assessed in terms of their appellate purpose.  The trial judge reasoned that the culpable homicide resulted from an accident fuelled by alcohol or what Cameron J.A. described as “some combination of the two (in the sense intoxication can increase the prospect of accident)” (para. 33).  The trial judge did not find that the consumption of alcohol prevented the appellant from forming the requisite intent for murder.  Rather, he concluded (admittedly using a curious turn of phrase):

Although it’s not a specific finding of fact, it is my distinct impression that in part due to the effects of alcohol and in part to his personality, at the time of the shooting Walker was engaged in an act of bravado or machismo.  He was showing off his latest toy in an effort to intimidate Ms. Reynolds and impress her with his disappointment at her failure to embrace his desire to engage in a sexual threesome and her gall at walking away from him at the bar. [Emphasis added; para. 49.]

[25] The intervener Attorney General of Ontario relies on the majority judgment in R. v. Kendall (2005), 198 C.C.C. (3d) 205 (Ont. C.A.), for the proposition that, to acquit, the trial judge must “make ‘findings’ in [the accused’s] favour” (Factum, at para. 9).  It is difficult to see any parallel with Kendall where the entire reasons consisted of two sentences:

Shannon Kendall pleaded not guilty to impaired driving, and driving with over 80 milligrams of alcohol in 100 millilitres of blood on the 10th of May, 2002.  I agree with and adopt the submissions made on behalf of the accused, and there will be an acquittal on both counts. [para. 3]

[26] Here the trial judge stated, somewhat enigmatically it is true, that his “distinct impression” was not a “finding”, but he nevertheless put it forward as the explanation for the conclusion that follows immediately thereafter, as stated:

As disgusting and as utterly contemptuous as I find that conduct to be, it is not and I cannot find it to be tantamount to an intention to kill or an intention to cause bodily harm likely to cause death.  And under the circumstances, I find Walker not guilty of murder, but guilty of manslaughter. [para. 50]

The trial judge’s “distinct impression” was well supported by the evidence.  (The Crown objects that the appellant’s explanation set out in the trial judgment was unsworn.  However, it was contained in a statement to police filed as evidence as part of the Crown’s case.)  The shooting, the trial judge found, was only “in part due to the effects of alcohol”.  The conduct of the appellant on the night in question, both before and after the shooting, undermines any intoxication defence.  The trial judge recites the relative level of coherence in the appellant’s interaction with Mr. Deschamps and Ms. Reynolds on the way home, including his words to his friend prior to the shooting (“it’ll be a show, the police will show up”), the 911 call immediately following the shooting and the appellant’s manipulative construction thereafter of inconsistent but self-serving lies, and his presence of mind to immediately hide the gun and his other behaviour after the shooting in pacing the room while carrying a child, speaking on the phone, and carrying on a conversation with the police.  Instead, the effect of alcohol was a destabilizing factor that turned a “machismo” attempt to “intimidate” and “impress” Ms. Reynolds into a tragedy that the trial judge was unable to find was intended to “kill or . . . to cause bodily harm likely to cause death”.  In my view, on a fair reading of the trial judge’s reasons as a whole, his reasonable doubt as to intent was raised by what he considered to be the real possibility that the shooting was the result of an accident in which the appellant’s alcohol consumption played a significant role.  I agree with Sharpe J.A., dissenting in the result in Kendall, when he stated that:

A reasonable doubt need not rest upon the same sort of foundation of factual findings that is required to support a conviction.  A reasonable doubt arises where an inadequate foundation has been laid. [para. 98]

[27] Sheppard states that “[w]here it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene” (para. 46).  While the trial judge’s reasons, delivered orally, fell well short of the ideal, that is not the applicable standard.  They were not so inadequate that the Crown’s limited right of appeal was impaired.  There was thus no error of law and no basis on which the Crown could properly succeed in bringing itself within the limited Crown appeal provisions of s. 676(1)(a) of the Cr. C.

V.  Disposition

[28] The appeal is allowed.  The decision of the Saskatchewan Court of Appeal is set aside, and the acquittal on the murder charge is restored.  The conviction on the charge of manslaughter was not appealed and is maintained.

Appeal allowed.

Solicitor for the appellant:  Saskatchewan Legal Aid Commission, Moose Jaw.

Solicitor for the respondent:  Attorney General for Saskatchewan, Regina.

Solicitor for the intervener:  Attorney General of Ontario, Toronto.