R. v. Daley, 2007 SCC 53, [2007] 3 SCR 523

                                                 SUPREME COURT OF CANADA

Between:

Wayne Joseph Daley

Appellant

and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

R. v. Daley, [2007] 3 S.C.R. 523, 2007 SCC 53

Wayne Joseph Daley                                                                                                         Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

Indexed as:  R. v. Daley

Neutral citation:  2007 SCC 53.

File No.:  31616.

2007:  May 18; 2007:  December 13.

Present:  McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for saskatchewan

Criminal law — Charge to jury — Defence of intoxication — Accused convicted of second degree murder — Whether trial judge’s charge on defence of intoxication adequate — Whether trial judge’s one‑step charge on actual intent only appropriate — Criminal Code, R.S.C. 1985, c. C‑46, s. 229 (a)(ii).

Criminal law — Charge to jury — Expert testimony — Accused testifying having no memory of what happened at time of murder due to consumption of alcohol — Expert testifying about effect of alcohol on judgment, evaluation of appropriateness and memory — Whether trial judge should have interpreted expert evidence for jury.

Criminal law — Charge to jury — Credibility — Accused testifying having no memory of what happened at time of murder due to consumption of alcohol — Whether trial judge should have linked requirement for proof beyond a reasonable doubt to issue of accused’s credibility in charge to jury.

D and his common law wife M went out socializing and drinking  with friends. The group returned to the couple’s home early in the morning.  After more drinking and socializing, D and a friend rode on motorcycles on search for another party, leaving M in the house, dancing by herself to music which was playing on the computer. D returned around five in the morning.  The house was locked and neighbours heard him cursing and trying to get into the house and his vehicles.  Later in the morning, M was found in the kitchen, dead from a stab wound.  D was found drunk in a bedroom and arrested for murder.  At trial, D testified that, due to his alcohol consumption on that night, he was unable to remember the events that took place after he arrived home.  Many witnesses testified about D’s state of drunkenness before and after the killing.  An expert witness was called by the defence and testified about the effect of alcohol on judgment and brain function.  The jury found D guilty of second degree murder and this verdict was upheld by the majority of the Court of Appeal.  At issue here are the adequacy of the trial judge’s instruction on the defence of intoxication and whether the trial judge had to give a specific instruction on proof beyond reasonable doubt with respect to the credibility of the accused.

Held (Binnie, LeBel, Fish and Charron JJ. dissenting):  The appeal should be dismissed.

Per McLachlin C.J. and Bastarache, Deschamps, Abella and Rothstein JJ.:  When considering the adequacy of a trial judge’s charge, the appellate tribunal will consider the charge as a whole and determine the general sense which the words used must have conveyed, in all probability, to the mind of the jury.  It is the overall effect of the charge that matters, and not whether a particular formula was recited by the judge. [30‑31]

On the current state of the law, for a murder charge, the defence of intoxication will only be available to negate specific intent so as to reduce the charge to manslaughter.  There are three legally relevant degrees of intoxication.  First, there is mild drunkenness, which induces relaxation of both inhibitions and socially acceptable behaviour.  This has never been accepted as a factor in determining whether the accused possessed the requisite mens rea and the trial judge is not required to give any instruction on mild intoxication.  Second, there is advanced intoxication, i.e. intoxication to the point where the accused lacks the specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea.  A defence based on this level of intoxication applies only to specific intent offences and the extent of intoxication required to advance it successfully may vary, depending on the type of offence involved.  Third, there is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility, but such a defence would be extremely rare and, by operation of s. 33.1  of the Criminal Code , limited to non‑violent types of offences.  [40‑44]

The trial judge’s instructions on advanced intoxication should cover eight elements:  (1) instruction on the relevant legal issues, including the charges faced by the accused; (2) an explanation of the theories of each side; (3) a review of the salient facts which support the theories and case of each side; (4) a review of the evidence relating to the law; (5) a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations; (6) instruction about the burden of proof and presumption of innocence; (7) the possible verdicts open to the jury; and (8) the requirements of unanimity for reaching a verdict.  [29]

The trial judge must make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent.  In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death.  In this case, the trial judge did present the issue properly, closely following a specimen charge on intoxication which incorporates all the recommendations from this Court’s recent cases.  After identifying that the main issue in the case was whether D had the intent to kill M, the trial judge explained how this would be proven and proceeded to identify the evidence that would assist the jury in assessing whether D had this intent;  he explained the common sense inference that sane and sober persons intend the natural and probable consequences of their actions and linked this to the evidence of intoxication; he identified evidence relevant to the jury’s determination of whether to draw the common sense inference and again instructed the jury on the legal conclusions they could reach after assessing the evidence.  On a functional review of the charge, the jury properly understood that one of the main questions before them was whether D was so intoxicated that he could not foresee that stabbing M would result in her death.  A clear and specific linkage between foreseeability and intoxication was not necessary so long as the charge as a whole conveyed the need to address the effect of drunkenness on foreseeability.  [48] [63‑68]

Brevity in the jury charge is desired.  The duty of a trial judge is not to undertake an exhaustive review of the evidence, which may confuse the jury.  The extent to which the evidence must be reviewed will depend on each particular case.  The test is one of fairness.  Here, a concise and fair summary of the evidence, focussing on the evidence central to deciding whether D was so intoxicated that he could not foresee the consequences of his actions, was what was in order.  Just as there was evidence supporting that D was very drunk, there was evidence to suggest that he was less drunk than alleged and was capable of acting rationally.  Both sides were presented.  It is also relevant that the defence did not raise any concerns with the adequacy of the summary of the layman witnesses’ evidence after the charge was delivered.  In addition, concerns about omissions are tempered by the fact that the trial judge prefaced his summary by telling the jury they were to rely on their own recollections of the evidence in deciding the case and the fact that he repeatedly told them they were to consider the whole of the evidence in deciding whether D possessed the requisite intent.  [56‑57] [76] [78] [80]

The trial judge summarized the expert evidence properly.  Trial judges need only summarize and present to the jury what was clearly stated by the expert witness, nothing more.  It is dangerous and in most cases inappropriate for trial judges to interpret the evidence of experts for the jury.  Here, the expert testified that there was a correlation between alcohol‑induced amnesia and a lack of judgment and assessment of appropriateness.  For his testimony to be relevant to the central issue, he had to clearly convey that someone in D’s state could not foresee the consequences of his actions.  As he failed to do so, his testimony was not particularly helpful.  The trial judge has the discretion to seek to clarify an expert testimony by posing further questions, but he is under no obligation to do so.  It is the role of the parties to lead evidence and not that of the trial judge.  Appellate courts should not attempt to fill in the gaps or make inferences that end up changing the evidence that the jury is to consider.  [83] [87-89]

The trial judge did not mislead the jury with respect to the significance of alcoholic amnesia.  Not all elements of the theory the defence sought to put forward were established on the evidence.  Most importantly, the link between loss of the capacity for judgment and evaluation of appropriateness and loss of the ability to foresee the consequences of one’s action was never clearly addressed in the testimony of the expert. Without this link, it was acceptable for the trial judge to stipulate that amnesia is not a defence.  [90‑92]

The trial judge did not give to the jury the impression that, if D was capable of voluntary action, his defence of intoxication was no longer relevant.  The evidence that detracted or contradicted D’s alleged advanced degree of drunkenness was  relevant to the issue of whether D was so intoxicated that he could not foresee the likely consequences of his action because it showed that D did these activities with apparent desire to come to a logical end.  [93‑95]

It is recommended that a one‑step charge focusing only on whether the accused possessed actual intent be used in all future charges on intoxication.  It is more problematic than beneficial to leave the door open for the possibility of giving a two‑step charge to the jurors, first instructing them on capacity to form the requisite intent, and then saying to them that if they find beyond a reasonable doubt that the accused possessed the capacity to form the requisite intent, they must still go on to determine whether the accused possessed the actual intent.  No injustice is caused to the accused by only instructing the jury to consider actual intent.  [97] [101‑102]

The trial judge did sufficient efforts to prevent the jury from readily applying the common sense inference.  So long as the members of the jury are instructed that they are not bound to draw the common sense inference, particularly in light of the evidence of intoxication, there is nothing objectionable about instructions on the common sense inference.  [103‑104]

There was no obligation on the trial judge to give a specific instruction linking the credibility of D with reasonable doubt, since this caution is mandatory only in cases where credibility is a central or significant issue and credibility was not in issue in this case.  [106]

Per Binnie, LeBel, Fish and Charron JJ. (dissenting):  The law presumes the collective wisdom and intelligence of the jurors but makes no assumption as to their knowledge of the legal principles they are bound to apply.  Nor does the law assume that jurors will appreciate on their own the legal significance of the evidence they have heard.  That is why appropriate instructions are and must be given by the trial judge. Unfortunately, in this case, the trial judge’s charge conveyed to the jury an inadequate and incomplete understanding of the issues it was required to consider in reaching its verdict.  Brevity is no virtue where the charge lacks clear direction as to the issues, or fails to relate the issues to the material facts, or neglects to summarize the respective positions of the parties or to draw the jury’s attention clearly and fairly to the specific evidence that supports either position.  That was the case here.  [120] [130] [139]

The decisive question was whether the jury was satisfied beyond a reasonable doubt that D, drunk as he was, either meant to cause M’s 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.  It was fatal to the trial judge’s charge that it included no mention at all of D’s position that he lacked the requisite mens rea to commit murder because his extreme intoxication rendered him incapable of foreseeing the consequences of his actions.  Nowhere did the trial judge draw the jury’s attention, however summarily, to the evidence capable of supporting that position.  Nowhere in the “decision tree” he remitted to the jury is there any reference at all to D’s state of intoxication or its effect on the requirement of foresight that was an essential element of the charge.  His references to the evidence were limited to discrediting D’s defence.  [110] [126] [128]

When intoxication has been put to the jury as a defence to a murder charge under s. 229 (a)(ii) of the Criminal Code , it is insufficient for the jury to be told, in general terms, that alcohol may affect intention.  There is no particular phrase that must be used,  but a more specific instruction is mandatory to ensure that the jury understands the impact of intoxication on the foresight requirement under this provision.  The jurors were never told that extreme intoxication was a defence to the charge of murder if it raised in their minds a reasonable doubt as to whether D appreciated that his assaultive behaviour was likely to cause the death of his partner, and that if D failed to realize that, on account of his extreme intoxication, he necessarily lacked the culpable intent that was an essential element of the murder charge.  It was also fatal to the trial judge’s charge that it failed to adequately explain the link between an intoxication defence and the common sense inference that if a sane and sober person acts in a way that has predictable consequences that person usually intends, or means to intend, to cause those consequences.  [133] [135‑137] [140‑142]

The trial judge’s review of the critical evidence as to the degree of D’s intoxication was incomplete and unbalanced.  He failed to mention significant evidence that was  favourable to D, capable of supporting his defence and entirely uncontradicted.  Most importantly, he dealt summarily and dismissively with the expert evidence as to the impact of alcoholic consumption on behaviour and he did not relate this evidence at all to the question of whether D had the requisite mens rea for murder, more specifically, whether he knew that death was a likely consequence of his actions.  Yet, the point of the expert’s testimony was precisely to convey his opinion that extremely intoxicated persons cannot judge the consequences of their actions.  And if one cannot judge the consequences, one cannot foresee them.  There was no need for the trial judge to interpret the expert testimony.  He was simply required to draw the jury’s attention to it, since it related manifestly to the central issue in the case.  Even if the expert testimony was not as clear as it might have been, its interpretation proposed by the defence was plausible at the very least and ought to have been put to the jury because, if accepted by the jury, it was capable of raising a reasonable doubt as to D’s foresight of the consequences of his acts.  The judge’s duty to direct the jury’s attention to significant evidence capable of supporting a defence extends to any defence raised by the record, whether advanced by the accused or not.  [122] [143‑147] [151] [154] [156] [159]

The trial judge’s statement that “[a]mnesia, while it may reflect extreme drunkenness, is not a defence” may well have confused the jurors as to the importance they could properly attach to the expert testimony.  The expert did not testify about the legal consequences of amnesia, but rather about the relationship between alcohol‑induced amnesia and the defence of intoxication advanced by D.  At the very least, it was the trial judge’s duty to remind the jury of the expert opinion that amnesia reflects a degree of extreme drunkenness that seriously impairs and perhaps destroys one’s ability to make appropriate judgments.  [161] [163]

Cases Cited

By Bastarache J.

Referred to:  R. v. MacKinlay (1986), 28 C.C.C. (3d) 306; R. v. Canute (1993), 80 C.C.C. (3d) 403; R. v. Jacquard, [1997] 1 S.C.R. 314; Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. George, [1960] S.C.R. 871; Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Seymour, [1996] 2 S.C.R. 252; R. v. Berrigan (1998), 127 C.C.C. (3d) 120; R. v. Hannon (2001), 159 C.C.C. (3d) 86, 2001 BCCA 566; R. v. Simpson (1999), 125 B.C.A.C. 44, 1999 BCCA 310; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Demeter (1975), 25 C.C.C. (2d) 417, aff’d [1978] 1 S.C.R. 538; Young v. The Queen, [1981] 2 S.C.R. 39; Thériault v. The Queen, [1981] 1 S.C.R. 336; R. v. Girard (1996), 109 C.C.C. (3d) 545; R. v. Jack (1993), 88 Man. R. (2d) 93, aff’d [1994] 2 S.C.R. 310; R. v. Collins (1907), 38 N.B.R. 218; Cooper v. The Queen, [1980] 1 S.C.R. 1149; R. v. Tipewan, [1998] S.J. No. 681 (QL); R. v. Lemky, [1996] 1 S.C.R. 757; R. v. Courtereille (2001), 40 C.R. (5th) 338; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Good (1998), 102 B.C.A.C. 177.

By Fish J. (dissenting)

Bray v. Ford, [1896] A.C. 44; Spencer v. Alaska Packers Association (1904), 35 S.C.R. 362; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. MacKay, [2005] 3 S.C.R. 607, 2005 SCC 75; Kelsey v. The Queen, [1953] 1 S.C.R. 220; R. v. Clayton‑Wright (1948), 33 Cr. App. R. 22; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Wu v. The King, [1934] S.C.R. 609; R. v. Seymour, [1996] 2 S.C.R. 252; R. v. Lemky, [1996] 1 S.C.R. 757; R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Berrigan (1998), 127 C.C.C. (3d) 120; R. v. Hannon (2001), 159 C.C.C. (3d) 86, 2001 BCCA 566; R. v. Canute (1993), 80 C.C.C. (3d) 403.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).

Criminal Code, R.S.C. 1985, c. C‑46, ss. 33.1 , 229 , 691(1) (a).

Authors Cited

Canadian Criminal Procedure (Annotations), 1952, ed. by A. E. Popple.  Toronto: Carswell, 1953.

Der, Balfour Q. H.  The Jury — A Handbook of Law and Procedure.  Toronto: Butterworths, 1989 (loose‑leaf updated September 2006, issue 23).

Ferguson, Gerry A., Michael R. Dambrot, and Elizabeth A. Bennett.  CRIMJI: Canadian Criminal Jury Instructions, 4th ed.  Vancouver: Continuing Legal Education Society of British Columbia, 2005 (loose‑leaf updated December 2006).

Granger, Christopher.  The Criminal Jury Trial in Canada, 2nd ed.  Scarborough, Ont.:  Carswell, 1996.

Stuart, Don.  Canadian Criminal Law:  A Treatise, 4th ed. Scarborough, Ont.:  Carswell, 2001.

Watt, David.  Watt’s Manual of Criminal Jury Instructions.  Toronto:  Carswell, 2005.

APPEAL from a judgment of the Saskatchewan Court of Appeal (Vancise, Gerwing and Smith JJ.A.) (2006), 285 Sask. R. 225, [2006] 11 W.W.R. 1, 212 C.C.C. (3d) 290, [2006] S.J. No. 529 (QL), 2006 SKCA 91, affirming the accused’s conviction.  Appeal dismissed, Binnie, LeBel, Fish and Charron JJ. dissenting.

Hersh E. Wolch, Q.C., for the appellant.

Anthony B. Gerein, for the respondent.

The judgment of McLachlin C.J. and Bastarache, Deschamps, Abella and Rothstein JJ. was delivered by

Bastarache J. —

1.        Introduction

[1]                              On the evening of April 23, 2004, Wayne Daley and his common-law wife, Teanda Manchur, went out partying.  They had drinks at a friend’s house and then they went bowling with their friends.  The couple and most of the others then went to a local bar, drank until it closed and finally returned to the couple’s home around 4 a.m.  After more drinking and socializing in the couple’s garage, Mr. Daley and a friend rode off on motorcycles in search of another party.  Mr. Daley returned around five in the morning. The house was locked and neighbours heard him cursing and trying to get into the house and his vehicles which were parked around the house.  The next morning, Ms. Manchur, was found by her sister‑in‑law lying in a pool of blood in the kitchen and dining area of the house, dead from a stab wound and naked from the waist down.  Mr. Daley was found drunk in a bedroom.  He was charged with first degree murder.

[2]                              Mr. Daley was tried before judge and jury.  His trial lasted a total of seven days.  At trial, the appellant claimed that due to his alcohol consumption on the night of April 23 to 24, 2004, he was unable to remember the events that took place after he arrived home at 5 a.m.  An expert witness was called by the defence and testified about the effect of alcohol consumption on judgment and brain function.  The Crown called 19 witnesses, including the attending emergency and police officials on the scene on the morning of April 24, 2004, forensic experts, and persons who had either been with, seen or heard Mr. Daley on the evening of April 23, 2004, or in the early morning hours of April 24, 2004.  After five days of hearing evidence, the jury was instructed by the trial judge on May 9, 2005, and they returned a verdict of guilty of second degree murder on May 10, 2005.

[3]                              Mr. Daley appealed to the Saskatchewan Court of Appeal.  He claimed that the trial judge did not adequately instruct the jury on the concept of proof beyond a reasonable doubt, including credibility, on the defence of drunkenness, and on the degree of culpability and possible verdicts, and that he erred in failing to leave with the jury the ability to find that someone other than the appellant had caused the death of the victim.  His conviction was upheld by Vancise J.A. (Gerwing J.A. concurring).  Smith J.A. dissented.  She would have allowed the appeal and ordered a new trial on the ground that the trial judge improperly instructed the jury on the defence of drunkenness.

[4]                              This appeal comes before this Court as of right pursuant to s. 691(1) (a) of the Criminal Code, R.S.C. 1985, c. C‑46 , on the grounds that there was a dissent in the Court of Appeal on a question of law only.  A number of deficiencies with the charge on the defence of drunkenness were raised by the dissenting judge.  By and large, however, the essence of Smith J.A.’s dissent lies in a disagreement with the majority about the nature and significance of the testimony of the defence expert, Dr. Richardson.  This is arguably a disagreement on a question of fact, at worst, or at best, on a question of mixed fact and law.  That disagreement led to vastly different conclusions by the majority and dissent as to the proper application of the rules regarding the trial judge’s duty to relate the evidence to the law in jury instructions.  In my view, the disagreement between the majority and dissent in the Court of Appeal over the nature and significance of the expert evidence was so crucial to Smith J.A.’s dissent that it raises the question as to whether there was in fact a dissent on a question of law.  It seems to me that had there been no disagreement on the substance of Dr. Richardson’s evidence, no error would have been found against the trial judge in relating the evidence to the law.  If there is a question of law in this case, it must be the extent to which the trial judge must review and interpret evidence presented at trial, in particular expert evidence, for the jury.  In this respect, I find that Smith J.A. imposed a greater obligation on the trial judge than the law demands, and in fact exceeded the bounds of appellate review by reading into Dr. Richardson’s testimony evidence that clearly was not there; this is what led her, erroneously in my view, to find fault with the trial judge’s instructions.

2.        Facts

[5]                              On April 23, 2004, the appellant and Teanda Manchur went out for the evening.  One of their children was visiting at a nearby lake while the other was spending a night with the appellant’s sister.  They went to the home of Tyler Sanjenko and his partner Amanda Weger, friends of the appellant, around 9:30 p.m.  Present were Amanda’s sister, Larry Hubick and his wife Chantel Huel.  The group socialized and drank until about 10:15 p.m., when they went bowling.  They bowled and drank at the bowling alley until about midnight. Most of the group then went to the Crown and Hand bar in the neighbourhood.  They drank until the bar closed at 3:30 a.m.  The group then went back to Tyler Sanjenko’s home to pick up some alcohol and continued on to the home of the appellant and Teanda Manchur.  They arrived prior to 4 a.m. and spent the next while drinking, looking at the appellant’s motorcycles in his garage and touring his house.

[6]                              At about 4 a.m., Larry Hubick and Chantel Huel left to go to a house party on Winnipeg Street.  When they left, Teanda Manchur was in the house dancing by herself to music which was playing on the computer.

[7]                              The appellant and Tyler Sanjenko decided to follow Larry Hubick and his wife on two of the appellant’s motorcycles. According to the testimony of Tyler Sanjenko, the appellant seemed to ride fine at first but then began weaving.  He was nonetheless able to reach the home of a friend, James Beamish, go inside, have a brief visit and a beer.  Mr. Beamish testified to the appellant being “pretty intoxicated”.  He testified that the appellant had difficulty keeping his balance, stumbled up the stairs and had to hold onto a counter to hold himself up, and had slurred speech.  On departing, the appellant put his helmet on backwards and had difficulty putting on his boots.  However, upon leaving his friend’s house, he was able to back his bike out of the driveway and catch up with Larry Hubick at or near the party location.  On the way there, however, the appellant crashed his motorcycle while travelling about five miles an hour and suffered some minor bumps and scrapes; he needed help to pick up his bike.  Discovering there was no party, the Hubicks went home and the appellant and Tyler Sanjenko went back to the appellant’s house.  The appellant dropped his motorcycle again outside his garage.

[8]                              Tyler Sanjenko parked the motorcycles and then discovered the appellant urinating against the neighbour’s fence.  The appellant appeared to have difficulty getting his pants up afterwards and walked around with them down. Mr. Sanjenko described the appellant as being “pretty out of it” at this point, but the two of them were still able to talk for several minutes about their plans for the next day to attend a car show together. Following this, Tyler Sanjenko left the appellant at the door of his house and went home.

[9]                              After Tyler Sanjenko left, the appellant showed up across the street at the home of his new neighbour, James Clarke.  Evidently intoxicated and unsteady on his feet, he woke up his neighbour and welcomed him to the neighbourhood.  He was obviously drunk and went up and down the stairs a few times repeating the greetings and then stumbled away.

[10]                          Other neighbours observed the appellant.  Mr. Jack Mohr was awakened by the motorcycles returning and after that heard the appellant yell “Let me in, you fuckin’ bitch.”  Mrs. Mohr was awake reading and saw the appellant outside, apparently trying to get into his home, around 5 a.m.  She heard him yelling the same phrase about five times.  She also observed the appellant unsuccessfully trying to get in each of his four vehicles outside the house.  She described the appellant as appearing “really intoxicated” and witnessed him fall once during this time.  She then went back to her reading.

[11]                          The appellant’s sister testified that she arrived at the appellant’s home around 7:30 or 7:40 on the morning of the 24th of April with the children and discovered Teanda dead in the dining room area.  The victim’s shirt was pushed up to just below her breasts, she had no clothing on her lower body, her legs were spread and her knees were up.  The appellant’s sister put a towel over her.  She followed a trail of blood leading from where she found the body to the bathroom and found the appellant down the hall in a bedroom smelling of alcohol and unresponsive.

[12]                          The appellant’s sister phoned her father, who arrived shortly thereafter.  Her father checked to see if the victim was breathing and concluded she was not.  He testified he tried to wake the appellant who reeked of alcohol, but was unable to waken him.  He testified that he feared his son was dead.  He asked a friend who had come with him to the appellant’s house to phone for help.

[13]                          Paramedics arrived and confirmed the victim was dead.  They observed the appellant’s father to be walking back and forth through the blood trail.  One of the paramedics heard the appellant and his father talking in the bedroom while she and her partner worked on the victim.  The other paramedic observed two knives with broken blades in the living room.

[14]                          One of the paramedics, Ms. Ackles, went to check on the appellant.  She found him lying on the bed staring at the ceiling while partly covered by a blanket.  He appeared nude.  She saw blood on him, and on the bedding, and asked if he was hurt.  She testified that she believed the appellant said he “was only mentally injured”.

[15]                          The police arrived at about 7:50 a.m.  Constable Decterow made observations similar to the paramedic regarding the deceased and the blood trail.  She saw a broken knife in the living room.  She found the appellant intoxicated, but awake, in the back bedroom, staring at the ceiling.  After some mumbled conversation during which the appellant identified himself and told her he was not hurt, Constable Decterow arrested him for murder.  The appellant made the following statement which was admitted as a voluntary statement at the trial:

He said, “Teanda and I were fighting but I didn’t hurt her.”  I asked, “Who did?”  Mr. Daley said, “Whoever jumped in.”  He then said, “I’m sorry,” and I asked, “What are you sorry about?”  Mr. Daley said, “I’ll take [the] guilt over it.  I’ll take the blame.”  I asked, “Why?”  His response was, “Why not?”  Mr. Daley then said, “Sorry about that.”  I asked, “What are you sorry about?”  Mr. Daley said, “Well, fuck, fighting with her.  It’s just beyond bullshit.  You get in a fight and it’s beyond bullshit.  You have kids, you know.”  I asked, “Were you fighting about the kids?”  And he gave no response and at that point that was the end of the exchange.  [A.R., at p. 129]

After making this statement, the appellant asked the police several times if his wife was o.k. and if she could bail him out.  He was also described as reacting with surprise to later hearing that his wife was dead.

[16]                          An autopsy was performed on Teanda which revealed that she had suffered a two-centimeter-deep stab wound to the back of her leg.  There was a corresponding hole in her blood-covered jeans that were found elsewhere in the house.  That wound was not fatal.  Teanda died from blood lost as a result of a second stab wound located on her right side some 21 centimetres deep between the ninth and tenth rib, angling downwards through her lung and liver.  Death likely would have come within a half hour although prompt medical attention could have saved her.

[17]                          The appellant testified and denied any memory of the events after arriving home at around 5 a.m.  He essentially confirmed the events of the evening as testified to by others up to the point of arriving at his home for the first time around 4 a.m.  After that he testified things became a little bit hazy.  He does not remember taking his motorcycle out of the garage but does remember starting it in the alley.  He stated he does not remember the ride to his friend James Beamish’s residence on the other side of the city except for falling off his motorcycle.  The next thing he remembers is going into the police cells.  He has no recollection of going home or interacting with his neighbour Mr. Clarke.  Mr. Daley claimed he is only an occasional drinker who avoided hard liquor.  The estimates of his consumption range from 30 drinks of alcohol (Tyler Sanjenko) to between 36 and 40 (the appellant) to 49 ounces (Larry Hubick) consisting mostly of whiskey.  He was given a breathalyzer test at 11:54 a.m. on April 24 and tested 0.10.  At 12:13 p.m. he tested 0.09.  He does not remember speaking to or giving a statement to the police officer.

[18]                          Dr. Richardson, a pharmacologist, testified for the defence as an expert on the effects of beverage alcohol on the human body, brain functioning and behaviour.  He testified that some brain cells, such as those responsible for judgment and evaluation of appropriateness, are more sensitive to alcohol than others:

The brain – the brain cells responsible for differing functions in our – in our brains have differing sensitivity to being disrupted by any outside force. The – some cells continue to function at their normal fashion as other cells have been shut down.  The – for reasons that neuroscience has not yet discovered, the brain cells in the parts of the brain that are responsible for judgement and the evaluation of appropriateness of behaviours and thoughts are more sensitive to depression by – or disruption by forces such as beverage alcohol or many therapeutic drugs, alterations in a person’s amount of water in their body that change the chemical nature or chemical environment of these cells.  A variety of factors will alter the functioning of these brain cells involved in judgement and evaluation of appropriateness at – while brain cells involved in other functions continue to function normally. [Emphasis added; A.R., at pp. 419-20.]

He also testified that one can lose memory and judgment due to high ingestion of alcohol, but still be able to form ideas and carry out complex tasks, describing such a person as being in a state of “alcoholic amnesia”:

A:    So as blood alcohol level increases then the disruption of brain function of the cell – activity of the cells increase as increasing amount of blood alcohol levels.

Q:   In consuming or ingesting alcohol can you reach a point where these cells that are responsible for memory shut down?

A:    Yes.  The – there is a concentration of beverage alcohol or any other depressant drug that will completely shut down the functioning of all excitable – all cells that – that have the excitable characteristics, that the judgement evaluation cells being more sensitive to being shut down than other cells in the brain.  These are the cells that are shut down at a lower blood alcohol concentration than that needed to shut down the functioning of the – the cells responsible for movement.

Q:   What you’re saying is that the cells responsible for memory or the cells that are responsible for a person’s judgement can shut down but the person can still function such as walk or talk or move.  Is that –

A:    Yes, that’s right. There is – and this particular threshold concentration of blood alcohol level differs among different people but there is a concentration that will shut down the judgement and evaluation neurons but only impair the movement and sensory processing neurons.  A person is still able to walk and talk and answer questions and move about and come up with ideas and carry out fairly complex behaviours but be doing it in the absence of judgement.

Q:   These cells that shut down, are they – are they responsible for transmitting long or short‑term memory or –

A:    That – that’s another function of the – these neurons.  There are, well, roughly two – two types of memory.  One is referred to as short‑term memory and that is up to about 30 minutes, things that are kept in mind for about 30 minutes are referred to as short‑term memory.  That’s the – the first memory store.  Information that’s in short‑term memory that the judgement and evaluation of appropriateness neurons deem important enough to use up long‑term memory storage is then transferred into long‑term memory storage.  The short‑term memory primarily is located in part of the brain called the Hippocampus. Long‑term memory we don’t know where it is specifically.  Long‑term memory is still a mystery what the mechanism of that.  But the same cells that are [in]volved in the judgement and appropriate – the evaluation of appropriateness of behaviours, thoughts and ideas are also involved in this transfer from short‑term memory into long‑term memory. Information that is not transferred from short‑term into long‑term memory then is forgotten, is – is lost.

Q:   It’s lost.  Now, you indicated that – that the judgement or evaluation by these cells being impaired becomes more acute as the level of alcohol rises in the system.  You indicated that it can reach a point where these neurons will shut down.  What, if anything, does that do with respect to the capability of an individual to determine appropriate behaviour, does it have any effect on it?

A:    Yes, it does.  As blood alcohol level increases, the judgement cells are disrupted and at first then the person is still capable of judgement but it’s not the clear, appropriate judgement that they would [have] if they didn’t have any alcohol, so they have faulty judgement, up to a threshold blood alcohol concentration again which differs for each person at which time the blood – alcohol completely shuts down these judging and appropriateness neurons and the person then does not have – the ability to judge is just gone.  At this stage then also the ability – the ability of that person’s brain to transfer information from short‑term memory into long‑term memory, that is also gone.  So the person would then have amnesia for things that happened once the blood alcohol level got above this particular threshold.

Q:   The person that reaches this threshold where these cells shut down, can he or she determine the appropriateness of – of his or her behaviour or activities?

A:    No, the – the – the cells are just not functioning whatsoever.

Q:   I see.  Now, you indicated that this can occur in the system and – and a person can reach a point where these cells will shut down where they’re not capable of determining appropriate behaviour, they can’t figure out what is or isn’t appropriate in a particular circumstance but they can still walk and talk.  Is that correct?

A:    Yes, that’s right.

Q:   And –

A:    Their – their – their – their ability to walk and talk would be impaired, it wouldn’t be normal –

Q:   Sure.

A:    – walking and talking, but they’re still – the brain cells that are involved responsible for motor activity, for verbalization, for idea generation, for following instructions, these cells are still able to work.  They’re not working normally but they’re still able to carry out their – their – their duties.

Q:   Now, you indicated that a person can reach the stage of – of what you referred to as alcoholic amnesia.  And what is alcoholic amnesia?

A:    Okay.  Well, alcohol‑induced amnesia is a condition where the person has consumed sufficient beverage alcohol to reach a blood alcohol concentration that shuts down the – the activity of the cells involved in transferring information from short‑term memory into long‑term memory but yet not – have not consumed enough alcohol to shut down the activity of the cells that – that keep – keep the person awake or their ability to move.  If they continue to drink beverage alcohol and their blood alcohol does reach the threshold needed to shut down motor – the cells responsible for movement or the cells responsible for keeping us awake, they then pass out.

Q:   So physically they’re – they’re –

A:    They’re comatose.

Q:   – comatose.

A:    They’re unconscious, yes. [Emphasis added; A.R., at pp. 424-29.]

Later, defence counsel put a hypothetical scenario to Dr. Richardson involving an individual the same age and weight as the appellant, having ingested roughly the amount allegedly consumed by the appellant, and acting in ways similar to how others had described the appellant’s behaviour.  The expert was asked if that individual would have symptoms consistent with alcoholic amnesia.  Dr. Richardson answered affirmatively and further testified that, in this state, alcohol may have shut off the individual’s judgment and “appropriateness filter”:

Q:   The scenario or the hypothetical that I provided you, is that consistent or inconsistent with alcohol‑induced amnesia?

A:    Yes, it is. At 8:00 a.m. the blood alcohol level would still be about 230 which is within the range of alcohol‑induced amnesia.  Again for different people it may – it may or may not be sufficient to produce blood alcohol level – or produce alcohol‑induced amnesia in a given individual.

Q:   Now, you indicated earlier that a person in an alcohol‑induced amnesia you said that he was in – he or she was incapable of forming judgement and couldn’t figure out whether what they were doing was appropriate or not appropriate.  Is that correct?

A:    Yes, the blood alcohol levels above 200 milligrams percent for various people completely shut down the functioning of these – the neurons involved as the appropriateness filter in our – in our brains.  And again this appropriateness filter is an automatic thing, it’s not something that we consciously do, it’s just that’s what the brain cells do for us.  It’s one part of our unconscious brain activity.

Q:   Now, a person in this state who isn’t capable of determining the appropriate behaviour or capable of forming appropriate judgements, what is it that causes that to occur within the system?  Is it the shutting down of the – of the brain cells?

A:    Yes. Brain cell activity is just suppressed, totally suppressed by the depressing chemicals such as beverage alcohol or anti‑anxiety pills, a variety of things.

Q:   With respect to this alcohol‑induced amnesia from the consumption of alcohol, does the memory of what transpired ever come back or is it gone?

A:    It’s gone. It’s just not – it leaves – information that is not transferred from short‑term memory storage into long‑term is lost.

Q:   And it will never come back.

A:    Right. [A.R., at pp. 450-52]

3.       Judgment of the Saskatchewan Court of Appeal

[19]                          The only points of disagreement between the majority and dissent at the Court of Appeal were the adequacy of the trial judge’s instruction on the defence of intoxication and whether the trial judge had to give a specific instruction on proof beyond a reasonable doubt with respect to the credibility of the accused ((2006), 212 C.C.C. (3d) 290).  Therefore, I will limit myself to giving a short summary of the extent of disagreement between the majority and dissent on these issues.  The finer points of Smith J.A.’s position will be examined in greater detail in the analysis below.

[20]                          The inadequacies in the jury instruction on the intoxication defence were framed as two-fold by Mr. Daley before the Court of Appeal.  First, it was argued that the presentation of the evidence relevant to the intoxication defence was inadequate, in particular the presentation of the evidence of the expert witness, Dr. Richardson.  Second, it was argued that, because Dr. Richardson had testified in terms of capacity to form intent, the two-step charge suggested in R. v. MacKinlay (1986), 28 C.C.C. (3d) 306 (Ont. C.A.), which instructs both on capacity to form intent, as well as on actual intent, was warranted, rather than the one-step charge suggested in R. v. Canute (1993), 80 C.C.C. (3d) 403 (B.C.C.A.), which instructs only on actual intent.

[21]                          Vancise J.A. was of the view that the trial judge properly raised both sides of the evidence of the events before and after the homicide on the issue of whether the accused had the requisite intent to commit murder.  The trial judge did not have to go further than he did in relating the evidence of Dr. Richardson, according to Vancise J.A., since the expert’s testimony had not been relevant to the essential issue in the case — whether the accused possessed the requisite intent for murder:

The evidence of Dr. Richardson did not negative the accused’s intentions, purposefulness or foresight.  His evidence dealt with the loss of memory not intention.  He did not equate lack of memory with lack of intent.  The issue is not whether the accused’s judgement was impaired but rather whether the accused lacked the intent. [Emphasis added; para. 34.]

Vancise J.A. took Dr. Richardson’s evidence at face value and did not read into his testimony any more than what was actually there.

[22]                          Because he found the expert had not testified in terms relating to the capacity of the appellant to form the requisite intent, Vancise J.A. concluded that a two-step MacKinlay-type charge was not warranted.  As to whether the trial judge had to give a specific instruction on reasonable doubt with respect to the credibility of the accused, he concluded that the law only requires making this link where credibility is important and  opined that, in this case, the credibility of Mr. Daley had not been in issue.  Mr. Daley had only testified that he could not remember anything past 5 a.m.; he gave no evidence on the key element in the trial — whether he had the requisite intent to kill or cause bodily harm with the foresight that the likely consequence was death.

[23]                          Smith J.A. took a very different view of the evidence of Dr. Richardson and this led her to find several deficiencies in Kyle J.’s jury charge.  In her view, there was overwhelming evidence that Mr. Daley was highly intoxicated and

it is clear that the point of leading [Dr. Richardson’s evidence] was to establish that, at the time the appellant’s wife was killed, the appellant was extremely intoxicated to the point that he could suffer amnesia in relation to the event, and, more significantly, to the point that he would be incapable of the judgment necessary to appreciate the consequences of what he was doing. . . .

. . .

. . . in my view, the clear factual implication of Dr. Richardson’s testimony was that[,] in the case of extreme intoxication[,] the ability of an individual to judge or appreciate the consequences of his or her actions is, at least, seriously impaired, and may be totally absent. [Emphasis added; paras. 126-27.]

[24]                          By ascribing this significance to Dr. Richardson’s testimony, Smith J.A. appears to have found the appellant’s intoxication defence to have been particularly strong and thus concluded that the trial judge failed to present it properly to the jury.  She found that Kyle J. failed to explain the issue of intoxication properly; gave a one-sided summary of the evidence and, in particular, failed to explain the real implication of the expert’s evidence; misled the jury about the significance of alcoholic amnesia; confused the jury about the degree of intoxication needed to make out the defence; should have given a two-step MacKinlay-type charge; should have done more to prevent the jury from readily applying the common sense inference; and failed to adequately instruct the jury as to the requirement for proof beyond a reasonable doubt in that he failed to expressly link this requirement to the issue of credibility, since the fact that he stated he could not remember the events of the evening was crucial to his defence.

[25]                          As I noted in the introduction, almost the entirety of Smith J.A.’s dissent is premised on the interpretation she gives to Dr. Richardson’s evidence, and this raises the question of whether her dissent was truly on a question of law as required by s. 691(1) (a) of the Criminal Code .  As earlier stated, I have serious doubts whether this was indeed a dissent on a question of law, but since the extent of her disagreement with the majority is extensive and raises a number of reasons to doubt the adequacy of the charge, I will  address directly the points she raises.

4.       Relevant Statutory Provisions

[26]                          The relevant provisions of the Criminal Code  are attached in the Appendix.

5.           Analysis

5.1         Legal Principles on Jury Charges

5.1.1      General Principles

[27]                          In a criminal jury trial, the jury determines the guilt or innocence of the accused.  Questions of fact are solely within the jury’s competence.  The jury draws the final conclusion on the basis of the facts it considers established by the evidence.  The trial judge is required to determine and to state the law, and to regulate and order the proceedings in accordance with the law.  See C. Granger, The Criminal Jury Trial in Canada (2nd ed. 1996), at p. 6.

[28]                          When reviewing the adequacy of jury instructions, appellate courts must remember the role of the various actors in the context of the trial as a whole: see R. v. Jacquard, [1997] 1 S.C.R. 314, at paras. 33 and 35.  The jury is the master of the facts.  The judge is the master of the law.  It is counsel’s obligation to put all evidence relevant to its position before the jury and to effectively defend the interests of the accused, in the case of defence counsel, and the interests of the state, in the case of Crown counsel.  The trial procedure is accusatory and adversarial.  The judge is not there to argue, inquire or examine, accuse or defend, nor to make decisions on the facts or on the guilt of the accused: Granger.

[29]                          This case concerns a number of issues relating to the trial judge’s final charge.  B. Q. H. Der, in The Jury — A Handbook of Law and Procedure (loose-leaf), at p. 14-1, sets out eight elements that should be covered:

1.    instruction on the relevant legal issues, including the charges faced by the accused;

2.    an explanation of the theories of each side;

3.    a review of the salient facts which support the theories and case of each side;

4.    a review of the evidence relating to the law;

5.    a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations;

6.    instruction about the burden of proof and presumption of innocence;

7.    the possible verdicts open to the jury; and

8.    the requirements of unanimity for reaching a verdict.

[30]                          When considering the adequacy of a trial judge’s charge on these elements, it is important for appellate courts to keep in mind the following.  The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge.  The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case.

[31]                          In determining the general sense which the words used have likely conveyed to the jury, the appellate tribunal will consider the charge as a whole.  The standard that a trial judge’s instructions are to be held to is not perfection.  The accused is entitled to a properly instructed jury, not a perfectly instructed jury: see Jacquard, at para. 2.  It is the overall effect of the charge that matters.

5.1.2     Instructions on the Relevant Legal Issues Where Intoxication Is a Defence

[32]                          The trial judge must set out in plain and understandable terms the law the jury must apply when assessing the facts.  This is what is meant when it is said that the trial judge has an obligation to instruct on the relevant legal issues.

[33]                          In the instant case, there was clear evidence of intoxication, which the appellant relied on as a defence to murder.  This was the central issue in the case.  For the analysis that follows, I believe it would be helpful at this point to review the law with respect to the defence of voluntary intoxication and how trial judges must explain this issue to the jury.

5.1.2.1    The Development of the Defence of Voluntary Intoxication

[34]                          The modern defence of intoxication stems from the decision of the House of Lords in Director of Public Prosecutions v. Beard, [1920] A.C. 479.  Finding that intoxication, in some cases, could be a defence, the House of Lords articulated the following propositions, at pp. 500-502:

(1)   That intoxication could be a ground for an insanity defence if it produced a disease of the mind.

(2)   That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

(3)   That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.

[35]                          Courts in England and Canada have taken the reference in Beard to “forming the specific intent essential to constitute the crime” as drawing a distinction between crimes of specific intent and those of general intent, such that the defence of intoxication is traditionally only available with respect to the former.  Specific intent offences require the mind to focus on an objective further to the immediate one at hand, while general intent offences require only a conscious doing of the prohibited act: see R. v. Bernard, [1988] 2 S.C.R. 833, and R. v. George, [1960] S.C.R. 871.

[36]                          In Leary v. The Queen, [1978] 1 S.C.R. 29, the Court was faced with whether an accused could rely on the defence of intoxication for a general intent offence.  The Court endorsed the controversial proposition adopted in England that the accused, by becoming voluntarily intoxicated, had committed the mens rea for a general intent offence.  Under this approach, the recklessness of becoming drunk was deemed to be sufficient to supply the fault element for the commission of the particular general intent offence.

[37]                          The Leary rule was found to violate the Canadian Charter of Rights and Freedoms , however, in R. v. Daviault, [1994] 3 S.C.R. 63.  There, this Court held that extreme intoxication could in rare cases be a defence to general intent offences such as assault or sexual assault.  It further held that, in such cases, the minimal intent required for a general intent offence cannot be inferred from the commission of the prohibited act because “the very voluntariness or consciousness of that act may be put in question by the extreme intoxication of the accused” (p. 87).

[38]                          The defence contemplated in Daviault applies only if the accused is extremely intoxicated.  As Cory J. stated:

Given the minimal nature of the mental element required for crimes of general intent, even those who are significantly drunk will usually be able to form the requisite mens rea and will be found to have acted voluntarily. . . .

It is obvious that it will only be on rare occasions that evidence of such an extreme state of intoxication can be advanced and perhaps only on still rarer occasions is it likely to be successful. [pp. 99-100]

One must be intoxicated to the point of rendering himself an automaton in order to qualify for this defence.  In R. v. Stone, [1999] 2 S.C.R. 290, this Court characterized the Daviault decision as having “addressed extreme intoxication akin to a state of automatism” (para. 162) and proposed a unified approach for proof of  automatism defences.

[39]                          Nine months after Daviault’s release, Parliament responded with s. 33.1  of the Criminal Code , which amends the Code so that those with a Daviault defence will be convicted of the same violent general intent offences they would have been convicted of before the Court’s decision.  This provision appears to amend the law such that extreme intoxication to the point of automatism or involuntariness is only available for offences that do not include as an element “an assault or any other interference or threat of interference by a person with the bodily integrity of another person”: s. 33.1(3) of the Code.

[40]                          Thus, on the current state of the law, for a murder charge, the defence of intoxication will only be available to negate specific intent so as to reduce the charge to manslaughter.  The degree of intoxication capable of raising a reasonable doubt about whether the accused lacked specific intent was discussed by this Court in R. v. Robinson, [1996] 1 S.C.R. 683.  That case considered the legitimacy of the third proposition in Beard, which refers to evidence of intoxication that would render the accused incapable of forming specific intent in order to make out the defence.  This proposition was interpreted by many courts to require the trier of fact to have a reasonable doubt about whether the accused was capable of forming an intent, whereas general mens rea principles would suggest that the actual intent, not capacity for intent should be the issue.  In Robinson, the Court held that the Beard rules violated ss. 7  and 11 (d) of the Charter  because they required the jury to convict even if they had a reasonable doubt about the accused’s actual intent.  An accused who was not so intoxicated as to lack capacity to form the intent may nevertheless not have exercised that capacity and formed the specific intent.  The ultimate inquiry is always whether the accused possessed actual intent.

5.1.2.2     The Legally Relevant Degrees of Intoxication

[41]                          Our case law suggests there are three legally relevant degrees of intoxication. First, there is what we might call “mild” intoxication.  This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour.  This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea.  See Daviault, at p. 99.  Second, there is what we might call “advanced” intoxication.  This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea.  The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials:

In most murder cases, the focus for the trier of fact will be on the foreseeability prong of s. 229 (a)(ii) of the Criminal Code, R.S.C., 1985, c. C‑46 , that is, on determining whether the accused foresaw that his or her actions were likely to cause the death of the victim.  For example, consider the case where an accused and another individual engage in a fight outside a bar.  During the fight, the accused pins the other individual to the ground and delivers a kick to the head, which kills that person.  In that type of a case, the jury will likely struggle, assuming they reject any self‑defence or provocation claim, with the question of whether that accused foresaw that his or her actions would likely cause the death of the other individual. [para. 49]

A defence based on this level of intoxication applies only to specific intent offences.

[42]                          It is important to recognize that the extent of intoxication required to advance a successful intoxication defence of this type may vary, depending on the type of offence involved.  This was recognized by this Court in Robinson, at para. 52, in regards to some types of homicides:

[I]n cases where the only question is whether the accused intended to kill the victim (s. 229(a)(i) of the Code), while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming of course that there is an “air of reality” to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of jurors.  For example, in a case where an accused points a shotgun within a few inches of someone’s head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill.

Although I would hesitate to use the language of capacity to form intent, for fear that this may detract from the ultimate issue (namely, actual intent), the point of this passage, it seems to me, is that, for certain types of homicides, where death is the obvious consequence of the accused’s act, an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication defence of this type.

[43]                          The third and final degree of legally relevant intoxication is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility.  As discussed above, such a defence would be extremely rare, and by operation of s. 33.1  of the Criminal Code , limited to non-violent types of offences.

5.1.2.3     When the Trial Judge Must Instruct on Intoxication

[44]                          It is apparent that where there is evidence of a mild degree of intoxication, since this has never been held to be a defence, the trial judge is not required to give any instruction on intoxication; there would be no air of reality to the defence.  The threshold for instructing juries on intoxication was set out in Robinson, at para. 48: “[B]efore a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt” (emphasis deleted).  This is the threshold for instructing juries on advanced  drunkenness.

[45]                          As for extreme intoxication akin to automatism, the approach adopted in Daviault and confirmed in Stone imposes an evidentiary burden on the accused to satisfy the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.  In all cases, this will require that the defence make an assertion of involuntariness and call confirming psychiatric evidence: see Stone, at paras. 182-84; Daviault, at pp. 101-2.

[46]                          It is clear that a defence based on a degree of intoxication akin to automatism was not advanced in the present case.  This was acknowledged by Smith J.A., at para. 108:

[T]his degree of intoxication was never put forward as a defence in the case before us and, in any case, the evidence of the appellant’s conduct prior to the killing would not have supported it, for in the time preceding the stabbing of Ms. Manchur the conduct of the appellant clearly indicated that he was capable of conscious, voluntary, even if very drunken, action.

5.1.2.4    Elements of an Adequate Jury Charge on Intoxication

[47]                          Since the degree of extreme intoxication akin to automatism is not in issue in this case, I will limit my review of what constitutes an adequate charge on this degree of drunkenness to saying that a charge consistent with that given in cases involving non-insane automatism will be in order.  What really concerns us here is what constitutes an adequate charge on advanced intoxication.

[48]                          In Robinson it was held that once the threshold for instructing on the defence of intoxication was met, the trial judge “must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent.  In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death” (para. 48).  The Court in Robinson also endorsed the model charge set out in Canute, at p. 419, as that which should normally be given (see para. 49).  It is instructive to set out the charge suggested in Canute:

The intoxicating effect of alcohol and drugs is well known. Intoxication which causes a person to cast off restraint and act in a manner in which he/she would not have acted if sober affords no excuse for the commission of an offence while in that state if he/she had the intent required to constitute the offence.  A drunken intent is none the less an intent.

The offence of [Here describe the specific intent offence charged.] is not committed if the accused lacked the intent [Here describe the specific intent required to constitute the offence charged.].  The Crown is required to prove that intent beyond a reasonable doubt.  In considering whether the Crown has proved beyond a reasonable doubt that the accused had the required intent, you should take into account his/her consumption of alcohol or drugs along with the other facts which throw light on his/her intent at the time the offence was allegedly committed.

[Here it would, as a general rule, be desirable for the judge to refer to the evidence as to the consumption of alcohol or drugs and to the other facts which throw light on the accused’s intention at the relevant time.]           

If, after taking into account the evidence of the accused’s consumption of alcohol or drugs, along with the other facts which throw light on the accused’s intent, you are left with a reasonable doubt whether the accused had the required intent, you must acquit him/her of [Here state the specific intent offence charged.] and return a verdict of guilty of [Here state the included general intent offence.].  If, on the other hand, notwithstanding the evidence of his/her consumption of alcohol or drugs, you are satisfied beyond a reasonable doubt that at the time he/she [Here describe the acts of the accused which form the actus reus of the offence charged.], he/she had the intent to [Here describe the intent required to constitute the offence charged.], then it is your duty to return a verdict of guilty as charged.

[49]                          While this Court endorsed the Canute-type charge as that which should generally be given, it left the door open for trial judges to instruct along the lines of the model charge set out in MacKinlay, at pp. 321-22.  The essential difference between the Canute- and MacKinlay-type charges is that the later makes an explicit distinction between findings on capacity and findings of actual intent.  In the MacKinlay-type charge, the jury is told that if it entertains a reasonable doubt whether the accused by reason of intoxication had the capacity to form the necessary intent, then the necessary intent has not been proven.  The trial judge must then go on to say that, even if they are satisfied beyond a reasonable doubt that the accused had the capacity to form the necessary intent, they must then go on to consider whether, taking into account the consumption of liquor and the other facts, the prosecution has satisfied them beyond a reasonable doubt that the accused in fact had the requisite intent.  On the other hand, the Canute model charge focuses only on the issue of whether the accused possessed  actual intent and omits any references to capacity.  Otherwise, the charges are identical.  In fact, in formulating the model charge in Canute, Wood J.A. simply adopted the model suggested by Martin J.A. in MacKinlay, removing all references to capacity: “[W]hen the issue of intoxication does arise on the evidence, it would seem to me to be difficult to find a better jury instruction than that suggested by Martin J.A. at pp. 321-22 of the report in MacKinlay, with all the references to capacity and any language supporting such references removed” (p. 419).

[50]                          The Canute-type charge underwent one further modification in R. v. Seymour, [1996] 2 S.C.R. 252.  There, this Court held that while it is necessary for trial judges to instruct on the common sense inference for specific intent offences, where there is evidence of intoxication, there must be a direct link drawn between the effect of intoxication and the common sense inference:

When charging with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, in determining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane and sober persons intend the natural and probable consequences of their actions.  Common sense dictates that people are usually able to foresee the consequences of their actions.  Therefore, if a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act.  In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.

. . .

However, different considerations will apply where there is evidence that the accused was intoxicated at the time of the offence.  The common sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determine the accused’s actual intent. That same common sense makes it readily apparent that evidence of intoxication will be a relevant factor in any consideration of that inference. It follows that the jury must be instructed to take into account the evidence of the accused’s consumption of alcohol or drugs, along with all the other evidence which is relevant to the accused’s intent, in determining whether, in all the circumstances, it would be appropriate to draw the permissible inference that the accused intended the natural consequences of his actions.

. . .

It is common knowledge that a significant degree of intoxication may affect a person’s state of mind and thus the ability to foresee the consequences of actions.  It is, therefore, essential for a trial judge to link the instructions given pertaining to intoxication to those relating to the common sense inference so that the jury is specifically instructed that evidence of intoxication may rebut that inference.  See Robinson, at para. 65.  A trial judge is obliged to ensure that the jury understands two important conditions: (1) the reasonable common sense inference may be drawn only after an assessment of all of the evidence, including the evidence of intoxication; and (2) the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention. [Emphasis deleted; paras. 19, 21 and 23.]

[51]                          Finally, there has been some discussion in the lower courts on whether in cases involving a defence of intoxication to homicide under s. 229 (a)(ii) of the Criminal Code  the trial judge should link the effect of intoxication to the ability to foresee the consequences of one’s actions.  This is because in murder as defined in s. 229 (a)(ii), the mental element the Crown must prove includes elements of intention and subjective foresight.  The recommendation that the trial judge should instruct on the link between intoxication and foreseeability was offered by Martin J.A., in MacKinlay, in 1986, at p. 322:

The state of mind required under s. 212(a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of his act: McAskill v. The King, [[1931] S.C.R. 330, at p. 334].  Where the Crown on a charge of murder relies on the intent under s. 212(a)(ii) of the Code, it would be helpful to remind the jury that the state of mind required by this subsection involves a knowledge by the accused of the “likely” consequences of his act and the jury should consider the effect of intoxication along with the other facts in deciding whether the accused intended to inflict an injury on the victim which he knew was likely to cause death or whether intoxication affected his ability to foresee the consequences of his actions. [Emphasis deleted.]

[52]                          More recent cases have gone so far as to find that a non-direction on the link between foreseeability and intoxication will constitute a reversible error: see R. v. Berrigan (1998), 127 C.C.C. (3d) 120 (B.C.C.A.), at paras. 13-14, and R. v. Hannon (2001), 159 C.C.C. (3d) 86, 2001 BCCA 566.  In the latter case it was held that “where a central realistic issue was whether the accused was intoxicated such that he knew it was likely that the bodily harm would cause death, a clear and specific linkage in the charge was required” (para. 9).  These cases rely on the following passage in Seymour to ground their finding of a mandatory duty to link intoxication and foreseeability:

One of the effects of severe intoxication is an inability to foresee the consequences of one’s actions, much less intend them.  It was for this reason that the Ontario Court of Appeal in MacKinlay, supra, at p. 322, held that the state of mind required to commit the crime described in s. 229 (a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of his act and that, therefore, the jury should consider whether intoxication affected his ability to have the required foresight. [para. 22]

[53]                          While I agree that the inquiry under s. 229 (a)(ii) is whether the accused possessed the ability to foresee the consequences of his action and the main determination in cases involving a defence of intoxication to a second degree murder charge will be whether the accused’s degree of intoxication affected this ability, and that it is very important for the jury to understand this, I do not think this Court’s jurisprudence goes so far to require that a particular phrase expressly making this link be included in the charge, the absence of which leads to reversible error.  As discussed above, appellate courts must consider whether the charge, as a whole, conveyed the necessary instruction to the jury, not whether particular words or a particular sequence was followed.  In this respect, I approve the functional approach that was taken to the issue of linking of foreseeability and intoxication in R. v. Simpson (1999), 125 B.C.A.C. 44, 1999 BCCA 310, at para. 38:

On the fifth ground of appeal, the appellant argues that no instruction was given to the jury on the issue of the foreseeability of the probable consequences of the appellant’s actions due to intoxication.  That submission cannot be sustained, for the trial judge did, in fact, give such an instruction. He said:

In this trial there is evidence, if you accept it, that the accused consumed a quantity of alcohol before the killing.  You should know that, in order to justify a verdict of second degree murder, the Crown must, as I have said over and over, prove beyond a reasonable doubt that the accused intended to cause bodily harm and was reckless whether death ensued or not, but that despite his consumption of alcohol he knew what he was doing was likely to cause death. [Emphasis deleted.]

5.1.3       Relating Evidence to the Issues

5.1.3.1    General Duty

[54]                          One of the classic statements describing the trial judge’s duty to review the evidence in the charge to the jury is found in this Court’s decision in Azoulay v. The Queen, [1952] 2 S.C.R. 495, at pp. 497-98, per Taschereau J.:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them. [Emphasis added.]

This statement, however, must be understood in the context of that particular case.  There, the trial judge had not reviewed the evidence at all.  He simply indicated that both counsel had elaborated on this matter sufficiently.  A majority of this Court found the charge inadequate because it left the whole of the evidence for the jury in bulk for evaluation.

[55]                          Azoulay does not stand for the proposition that all facts upon which the defence relies must be reviewed by the judge in the charge.  Indeed, Taschereau J. qualified the above-quoted statement a few lines later: “The pivotal questions upon which the defence stands must be clearly presented to the jury’s mind.  Of course, it is not necessary that the trial judge should review all the facts, and that his charge be a minute record of the evidence adduced . . .” (p. 498 (emphasis added)).  Moreover, in later decisions, this Court adopted the reasoning of the Court of Appeal in R. v. Demeter (1975), 25 C.C.C. (2d) 417 (Ont. C.A.), at p. 436, aff’d on other grounds, [1978] 1 S.C.R. 538, to the effect that non-direction on a matter of evidence constitutes a reversible error only where the single item of evidence in question is the foundation of the defence: see Young v. The Queen, [1981] 2 S.C.R. 39, at p. 56, and Thériault v. The Queen, [1981] 1 S.C.R. 336, at p. 344 (per Dickson J.).  Trial judges are not required to relate witness testimony that is only peripheral to the main issues in the case: see Thériault, at p. 342.

[56]                          Thus, it is not the case that the trial judges must undertake an exhaustive review of the evidence.  Such a review may in some cases serve to confuse a jury as to the central issue.  Brevity in the jury charge is desired.  Consider the following comment by Proulx J.A. in R. v. Girard (1996), 109 C.C.C. (3d) 545 (Que. C.A.), at p. 567:

[translation] Instead of giving the jury a fastidious and unending review of each piece of evidence, the trial judge would have been better advised to limit himself to the evidence which the jury had to consider in resolving the live issues.

. . .

Nothing requires a judge to set out in detail the whole of the evidence.  This is what Dickson C.J.C., then Chief Justice of Canada, said in R. v. Thatcher, [1987] 1 S.C.R. 652 . . . .  What is essential, as was mentioned in Cooper, supra, is setting out the position of the Crown and defence, the legal issues involved and the evidence that may be applied in resolving the legal issues and ultimately in determining the guilt or innocence of the accused.

It is therefore unhelpful to review all of the evidence.

[57]                          The extent to which the evidence must be reviewed “will depend on each particular case.  The test is one of fairness.  The accused is entitled to a fair trial and to make full answer and defence.  So long as the evidence is put to the jury in a manner that will allow it to fully appreciate the issues and the defence presented, the charge will be adequate”: see Granger, at p. 249.  The duty of the trial judge was succinctly put by Scott C.J.M. in R. v. Jack (1993), 88 Man. R. (2d) 93 (C.A.), aff’d [1994] 2 S.C.R. 310: “the task of the trial judge is to explain the critical evidence and the law and relate them to the essential issues in plain, understandable language” (para. 39).

[58]                          Finally, it should be recalled that the charge to the jury takes place not in isolation, but in the context of the trial as a whole.  Appellate review of the trial judge’s charge will encompass the addresses of counsel as they may fill gaps left in the charge: see Der, at p. 14-26.  Furthermore, it is expected of counsel that they will assist the trial judge and identify what in their opinion is problematic with the judge’s instructions to the jury.  While not decisive, failure of counsel to object is a factor in appellate review.  The failure to register a complaint about the aspect of the charge that later becomes the ground for the appeal may be indicative of the seriousness of the alleged violation.  See  Jacquard, at para. 38: “In my opinion, defence counsel’s failure to object to the charge says something about both the overall accuracy of the jury instructions and the seriousness of the alleged misdirection.”

5.1.3.2    Expert Evidence

[59]                          Expert testimony is commonplace in the Canadian criminal trial.  Often, expert testimony is delivered in highly technical and complex language.  The difficulty for the trial judge is: “How can this evidence be communicated to the jury?”  If counsel has not elicited an explanation, germane to a central issue in the case, in plain, understandable language, should the trial judge embark upon the task of trying to interpret this evidence in his charge?  In Thériault, at p. 342, this Court held that it is neither necessary nor, indeed, advisable for the trial judge to explain the testimony of experts or technical evidence.

[60]                          The case involved an accused charged before judge and jury and convicted of first degree murder.  His appeal was dismissed by the Quebec Court of Appeal, Kaufman J.A. dissenting on the ground that the trial judge should have explained the expert testimony in terms which were more comprehensible than those employed by the expert witnesses.  This Court was unanimous in the view that the trial judge was not required to interpret this evidence for the jury.  Dickson J., for eight members of the Court, was of the view that the risks inherent in interpreting expert evidence outweigh the benefits of such an undertaking:

[T]here is no obligation on the trial judge to interpret the testimony of experts.  Mr. Justice Kaufman speaks of the risk of “losing precision”.  Equally grave is the danger of error in translating technical language into common and everyday vernacular.  If the testimony is highly technical counsel who has called the expert witness should ask the witness to explain himself in language the layman can understand.  The judge may, in his discretion, decide that some simplification is desirable but failure on his part to undertake this difficult and potentially hazardous task is not, in my view, reversible error. [p. 342]

Lamer J. (dissenting on other grounds), echoed the sentiment, at p. 358:

[A] judge is not obliged to simplify the testimony of an expert witness.  He may, as may counsel, ask the witness to do so.  The judge may do so in his charge to the jury, but if so he must warn them that his interpretation of the meaning and purport of what the witness has said is only an opinion and that, in the final analysis, it is up to them and no one else, including the judge, to draw their own conclusions as to what the witness meant.  Here, the judge used the passages from the testimony which were most readily comprehensible.  In my view, he cannot be said to have failed to simplify, let alone be required to do so, beyond what the witnesses stated.

[61]                          The primary reservation appellate courts have with regards to imposing an obligation on trial judges to interpret expert evidence is the fear that this would be a direct encroachment on the province of the jury as the ultimate arbiter of the facts.  It is a long-held principle of our criminal justice system that it is the role of the jury to draw inferences from the evidence and that this is a sphere trial judges should enter with extreme caution, if at all.  See R. v. Collins (1907), 38 N.B.R. 218 (S.C.), at p. 222, per Hanington J.:

Under the principles of our criminal jurisdiction the jurors alone are the judges of the facts, and find whether they are true or not.  They alone are from those facts . . . to draw their inference and conclusion, and I think it is clearly an error that a trial judge should tell a jury not only the inference they must draw, but that there is no doubt as to any important fact or inference from that fact.  The question of doubt is with them. [Emphasis added.]

[62]                          One problem with drawing inferences from expert testimony is that it can leave the jury with the impression that they are required to accept this interpretation.  A review of expert testimony should not be presented to the jury in a way that removes the determination of facts from their consideration: see Cooper v. The Queen, [1980] 1 S.C.R. 1149, at p. 1171.  Thus, it is not advisable for the trial judge to wade into the waters of interpreting expert testimony.  If he chooses to do so, he must exercise great care to impress upon the jury that his interpretation is only an opinion which they may either accept or reject.

5.2       Application of Principles to the Present Case

5.2.1    Whether the Trial Judge Failed to Present the Issue Properly

[63]                          It is clear that Kyle J. was following the Canute model charge, with the further addition of the modified instruction on the common sense inference suggested in Seymour.  More specifically, it appears he was closely following the specimen charge on intoxication set out in Watt’s Manual of Criminal Jury Instructions (see Final 71, at pp. 827-28), which incorporates all the recommendations from this Court’s recent cases and even provides further direction on relating the evidence of intoxication to the issue. After identifying that the main issue in the case was whether Wayne Daley had the intent to kill Teanda Manchur, he went on to explain how this would be proven:

Intoxication that causes a person to cast off restraint and to act in a manner which he would not act if sober is no excuse for committing an offence if he had the state of mind required to commit the offence.  Murder is not committed if Wayne Joseph Daley either lacked the intent to kill or the intent to cause bodily harm knowing that it was likely to cause the death of Teanda Manchur.

To prove murder, Crown counsel must prove beyond a reasonable doubt that Wayne Daley had the intent to kill or to cause bodily harm, knowing that  it was likely to cause death.  To decide whether he had that intent you should take into account the evidence about his consumption of alcohol along with all the rest of the evidence which throws light on his state of mind at the time the offence was allegedly committed. [Emphasis added; A.R., at p. 15.]

[64]                          He then proceeded to identify the evidence that would assist the jury in assessing whether Mr. Daley had this intent.  He next explained the common sense inference and linked this to the evidence of intoxication, as suggested in Canute:

In considering all the evidence, use your common sense.  You may conclude, as a matter of common sense, that if a sane and sober person acts in a way that has predictable consequences that person usually intends, or means to intend, to cause those consequences.  But that is simply one way for you to determine a person’s actual state of mind, what he intended to do.  It is a conclusion you may only draw, however, after considering all the evidence, including evidence about his consumption of alcohol.  It is not a conclusion you must reach.  It is for you to say whether you will draw that conclusion, the conclusion that he intended to cause the consequences which were caused.  If you have a reasonable doubt about his state of mind you must not conclude that he intended or meant to bring about the predictable consequences of what he did. [Emphasis added; A.R., at pp. 16-17.]

[65]                          Kyle J. then proceeded to identify evidence relevant to the jury’s determination of whether to draw the common sense inference or not.  After this review, he again instructed the jury on the legal conclusions they could reach after assessing the evidence, as suggested in Canute and in Watt’s Manual of Criminal Jury Instructions:

If you conclude that, regardless of his intent, he did kill Teanda unlawfully then you must find him guilty of manslaughter at a minimum.  If you conclude that he had the necessary intent, that is to kill or to cause bodily harm, knowing that it was likely to cause her death, then he is guilty of murder and the issue you must decide is whether the murder is first degree or second degree. [Emphasis added; A.R., at p. 19.]

This constituted the essentials of Kyle J.’s instructions on the issue of intoxication.

[66]                          While most of her dissent was based primarily on perceived failures in Kyle J.’s handling of the evidence of intoxication in the charge, Smith J.A. was of the view that the trial judge failed to adequately instruct the jury on the issue of the effect of intoxication on the appellant’s ability to foresee the consequences of his actions in accordance with British Columbia Court of Appeal decision in Hannon (see para. 162). I am satisfied, however, that on a functional review of the charge, the jury properly understood that one of the main questions before them was whether Mr. Daley was so intoxicated that he could not foresee that stabbing Ms. Manchur would result in her death.  This was conveyed by Kyle J.’s repeated reference to the state of mind to be proven by the Crown as “the intent to kill or the intent to cause bodily harm knowing that it was likely to cause the death”, which he emphasized they could only come to after considering Mr. Daley’s consumption of alcohol  and the rest of the evidence that threw light on his state of mind.  The reference to “knowing that it was likely to  cause the death” is but another way to describe foreseeing that the consequences of one’s actions will result in death.  It is a common phrase that is used to convey the intent required by s. 229 (a)(ii): see CRIMJI: Canadian Criminal Jury Instructions (4th ed. 2005), Special Direction 4—Second Degree Murder—Intent—Knowledge—Drunkenness, at p. 8.36-11.

[67]                          I also believe that the modified instruction on the common sense inference would have further conveyed to the jury that the relevant question was whether intoxication prevented the accused from foreseeing the consequences of his acts.  The jury was specifically told that if they had a reasonable doubt about Mr. Daley’s state of mind they could not conclude that he intended or meant to bring about the predictable consequences of what he did.

[68]                          As discussed earlier, the clear and specific linkage between foreseeability and intoxication mandated by Hannon is not necessary so long as the charge as a whole conveyed the need to address the effect of drunkenness on foreseeability.  On a functional assessment, I am satisfied  that Kyle J.’s instruction did so, as was the majority of the Court of Appeal, at para. 80:

In my opinion, Kyle J. properly instructed the jury that the level of intoxication was such that it might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt.  He properly advised the jury that the issue of drunkenness having been raised, as it properly was on the evidence, that the onus was on the Crown to prove beyond a reasonable doubt that the appellant had the requisite intent.

5.2.2      Whether the Trial Judge Gave a One-Sided Summary of the Evidence

[69]                          Kyle J. related the evidence to the jury at various points in his charge.  First, after  reviewing the duties of the jurors, the presumption of innocence and the onus of proof beyond a reasonable doubt on the Crown, and instructing the jury on how they should assess evidence, he proceeded to provide the jury with an overview of the facts. He prefaced his summary by reminding them:

You have heard summaries of facts from counsel for the Crown and for the Defence. As I told you before, your recollections are the most important but I will attempt to mention those things which, in my opinion, must be in the forefront of your minds as you deliberate. [A.R., at p. 13]

[70]                          His general summary of the evidence was as follows:

During the night of April 23rd and the morning of April 24th, 2004, Teanda and Wayne joined some acquaintances for a night of visiting, drinking, bowling and drinking.  It was a happy evening and people drank too much, especially Wayne who, if you believe Larry Hubick, may have had as much as 49 ounces or the equivalent of 49 ounces of liquor.  Now, I find this hard to believe but there is no doubt he became drunk, very drunk, to the point where his driving a motorcycle, normally no problem for him, became almost too much for him.  He did, however, drive it and carry on a conversation about the next morning before his last companion left him knocking on the door at 1228 McTavish Street around 5:00 a.m.  He called on a neighbour, checked some vehicles and then apparently broke into his house.  His neighbours heard him calling abusively to Teanda to let him in. The next morning his sister Elissa came into the house and found Teanda dead on the floor of the dining room in circumstances that have been fully described to you.  She and her father George, when he came, found Wayne asleep and with great difficulty George awakened him.  Police were called [and an] ambulance arrived.  The presence of police, ambulance attendants, George and Elissa may have disturbed the scene but it seems they were all careful.  The professionals were professional, and we have quite detailed evidence of what they found.  There is no evidence of there being anyone in the house other than Teanda and Wayne and as she died violently from a stab wound there is a strong implication that Wayne caused her death and that in so doing he acted unlawfully.  The more difficult questions remain, did he intend to kill her.  [Emphasis added; A.R., at pp. 13-15.]

[71]                          Kyle J.’s second discussion of the evidence occurred when he explained to the jury that they were to determine Mr. Daley’s state of mind by considering all the evidence.  He identified the evidence in particular that would help in assessing his state of mind:

You should consider what he did do, how he did it and what he said about it.  You should look at Wayne Daley’s words and conduct before, at the time and after the event.  This will include the evening’s activities, his relationship with his friends up to about five o’clock in the morning, all the evidence as to what happened in the course of the next two hours, including photographic evidence, the expert testimony, et cetera.  And you should look at his condition when the crime was discovered and the things he said to the police.  Evidence about how much alcohol he had consumed over how long has shed some light on his state of mind at the time he allegedly committed the offences charged.  All this evidence may help you decide what he meant or did not mean to do. [Emphasis added; A.R., at pp. 15-16.]

[72]                          He related the evidence a third time, after discussing the common sense inference and linking it to intoxication.  After instructing the jury, “If you have a reasonable doubt about his state of mind you must not conclude that he intended or meant to bring about the predictable consequences of what he did”, he then related the following evidence to this issue:

The only evidence we have of his mental state immediately prior to the events in question is that about 5:00 a.m. he discussed the next morning’s car show with Tyler Sanjenko.  He went and called on Mr. Clarke and carried on a drunken, but intelligible, conversation.  He checked the four vehicles, including a Winnebago, apparently with a view to sleeping there, before he entered the house.  And he called angrily to his wife, “Let me in, you fucking bitch”.  These events followed his trip across town and back on his motor bike during which he found and called at a friend’s house, visited a possible party site, and had several minor accidents with his motor bike which no doubt resulted from his intoxication.  Crown counsel has described these facts as evidence of how drunk he wasn’t.

When his sister and father arrived they had difficulty awakening him, although it seems that he and his father were heard to be in conversation when the ambulance attendant was in the house.

Constable Decterow had difficulty convincing him that Teanda was dead as she took him to the police cells.

You have heard Wayne’s testimony that he had consumed a lot of alcohol that night and that he has no recollection of the events following the motorcycle ride or even during the ride except for his wiping out on one occasion.  Your task, however, is not to determine his state of mind after the crucial events but rather during them.  That he does not remember the events in the house is only one aspect of the matter.

Amnesia, while it may reflect extreme drunkenness, is not a defence.  It is his ability to form the necessary criminal intent at the time that you must focus on.  In this regard you must remember what I said about the burden of proof.  There is no burden on the accused to prove he was so drunk he couldn’t form the necessary intent.  The question of drunkenness having been raised, and upon the evidence properly so, the onus is on the Crown to prove beyond a reasonable doubt that he had the necessary intent, notwithstanding his drinking. [A.R., at pp. 17-19]

[73]                          Following this was the reiteration of legal conclusions the jury could reach after assessing this evidence, which I cited in the previous section.  After this, Kyle J. explained the Crown’s theory that Mr. Daley should be found guilty of first degree murder and how the jury could reach this conclusion.  Kyle J. then reviewed the three experts who had testified at trial.  It was here that the evidence of Dr. Richardson was summarized:

The alcohol expert, if I may call him that, Dr. Richardson, spoke of the effect of drunkenness of the sort we have here.  It affects judgment.  It affects motor ability, and it can bring on amnesia if short-term memory does not become long-term memory.  In the present case, Wayne Daley simply says that he remembers nothing after he left his garage on the motorcycle, other than the accident.  At the time he was arrested, however, he said that he and Teanda had been fighting. [A.R., at p. 21]

[74]                          Smith J.A. was critical of the fact that the trial judge omitted a number of facts from his review of the evidence (para. 155).  In particular, she identified the following testimony that was not mentioned: (1) the additional testimony of Tyler Sanjenko who said that, while riding his motorcycle, Mr. Daley was “falling all over the place, like he was pretty – pretty out of it” and while speaking to Mr. Daley at his home at 5:30 a.m. the appellant urinated against a neighbour’s fence and had great difficulty getting his pants back up (paras. 115-16); (2) the testimony of James Beamish, a friend that Mr. Daley did not remember visiting at 4:30 a.m., who described Mr. Daley as highly intoxicated and as unable to keep his balance, had to hold onto a counter to hold himself up, and had difficulty putting on his bike helmet and boots when leaving (para. 114); (3) the testimony of Jim Clarke, the neighbour to whom Mr. Daley paid a visit after 5:30 a.m., who evaluated the appellant as “really drunk”, talking “just gibberish” and “out of his mind drunk” (para. 117); (4) the evidence of the neighbour, Ms. Mohr, who saw the appellant trying to enter his home, and testified, that he “appeared to be really intoxicated” and fell on the ground as he was walking (para. 118); (5) further testimony of Mr. Sanjenko about his conversation with Mr. Daley concerning their attendance at a car show the following day.  Smith J.A. was of the view that the trial judge should have mentioned that Mr. Sanjenko was less intoxicated than the appellant, that it was not clear who did the talking, and Kyle J. should have stressed this was not evidence that suggested any significant “planning” (paras. 132-33).  The omission of all this evidence led, in her view, to an overemphasis on the evidence tending to downplay his degree of intoxication: “it would not be unfair to say that the trial judge’s description of the appellant’s state of intoxication focused almost exclusively on ‘how drunk he wasn’t’” (para. 153).

[75]                          In addition to his handling of the evidence of these lay witnesses, Smith J.A., in particular, was critical of the trial judge’s summary of evidence of Dr. Richardson.  I will deal with this issue separately in the next sections.

[76]                          As I explain above, the duty of a trial judge is not to undertake an exhaustive review of the evidence.  A concise and fair summary of the evidence, focusing on the evidence central to deciding whether Mr. Daley was so intoxicated that he could not foresee the consequences of his actions, was what was in order.

[77]                          I agree with the Crown’s submission that Smith J.A.’s criticism fails to recognize that the obligation of Kyle J. was only to provide a summary of the evidence. This was a relatively short trial, lasting only seven days.  The testimony of the witnesses would have been still fresh in the minds of the jurors and counsel had reviewed the evidence in support of their case immediately before the jury charge.  Kyle J. did not have to review all the evidence that was given at trial.

[78]                          As for whether the presentation of the evidence was unfair, I would agree with Crown counsel that this was not a charge about “how drunk Mr. Daley wasn’t”, but was all about what the evidence actually was.  The evidence during the trial, as Crown counsel put it, “cut both ways”.  Just as there was evidence supporting that Mr. Daley was very drunk, there was evidence to suggest that he was less drunk than alleged and was capable of acting rationally.  Kyle J. mentioned many key facts in support of Mr. Daley’s position, such as that he had consumed a significant amount of alcohol, that he had difficulty riding his motor bike and had several minor accidents, that people had difficulty waking him the next morning, and that officers had difficulty convincing him Teanda was dead.  But equally, Kyle J. mentioned the evidence that detracted from or contradicted this evidence, such as the fact that he was still able to carry on conversations prior to the incident, drove a motorcycle across town and called on a friend, had a conversation with a neighbour, attempted to take shelter in his cars once he realized he was locked out, and was overheard talking to his father by an ambulance attendant at the time he alleged he was unconscious.  Both sides had to be presented.

[79]                          I would further note that just as not all the evidence in support of Mr. Daley’s drunkenness was reviewed by the trial judge, nor was all the evidence in support of the Crown’s position presented.  For example, Kyle J. did not mention that the identification officer who processed the appellant at 9:55 a.m. on the morning of April 24th testified that he did not find Mr. Daley to be all that intoxicated.  Crown counsel stated the matter quite well in oral submissions:

Does [the trial judge] talk about the fact that Mr. Daley, when he went to talk to Mr. Clarke, had to use the railing?  Or that he was seen to stumble? No, he doesn’t; but he also does not mention that despite his drunkenness Mr. Daley was cognizant of the fact and correct that Mr. Clarke had moved in about a week before.  And he comes to Mr. Clarke and greets him, Hello neighbour.

So that, in the Crown’s respectful submission, if we are going to talk about omissions, that cuts the other way.  That is a very powerful indication that this is a man whose brain is processing. . . .

So what we have here, we have a summary.  Does it leave out certain things that Mr. Wolch would have liked to have had there?  No doubt.  Does it leave out certain things that I would like to have had there?  Absolutely.

It is also worth noting that the trial judge did not relate Mr. Daley’s efforts to enter the house upon discovering he was locked out and the capacity to form an intention, given his level of intoxication.

[80]                          I also consider it relevant that the defence did not raise any concerns with the adequacy of the summary of the layman witnesses’ evidence after the charge was delivered.  In addition, concerns about omissions from the summary are tempered by the fact that the trial judge prefaced his summary by telling the jury they were to rely on their own recollections of the evidence in deciding the case and the fact that he repeatedly told them they were to consider the whole of the evidence in deciding whether Mr. Daley possessed the requisite intent.

5.2.3      Whether the Trial Judge Failed to Explain the Real Implication of Dr. Richardson’s Evidence

[81]                          Smith J.A. found that the point of Dr. Richardson’s testimony was to establish that the appellant was extremely intoxicated, to the point he could suffer amnesia and to the point where he could be incapable of the judgment necessary to appreciate the consequences of what he was doing.  As a result, she concluded that the trial judge’s summary and instructions on how this evidence was to be used were wholly inadequate:

The evidence of Dr. Richardson was not expressly related to the question of intent and was referred to in a different portion of the jury charge, largely to indicate that it was not really relevant to the issues before the jury.  Although the trial judge pointed out that Dr. Richardson had testified that “drunkenness of the sort we have here . . . affects judgment”, this evidence was not related, in the charge, to the question of whether the appellant knew that death was a likely consequence of his actions.  The relevance to this issue of the evidence of alcohol‑induced amnesia was discounted by the trial judge who said only, “Amnesia, while it may reflect extreme drunkenness, is not a defence.” [Emphasis added; para. 138.]

[82]                          The problem — and it is no small one — with Dr. Richardson’s evidence is that it was not at all clear if that, in fact, was his meaning.  Vancise  and Gerwing JJ.A. did not think his evidence supported that interpretation:

Nowhere in all of the testimony, which I have set out in detail, did Dr. Richardson testify on the effect of alcohol to impair the ability or capacity to form specific intent.  He did testify that the hypothetical person described by the appellant, that is, someone with a blood-alcohol level of .230, would be incapable of forming judgment or figuring out whether what they were doing was appropriate.  He did not however testify as to the capacity of that person to form a specific intent or whether or not the person could, having regard to all of the evidence, form the specific intent required.

. . .

He testified about the effect of alcohol on the capacity to form appropriate judgments.  He did not testify that lack of memory equates to a lack of intent. [Emphasis added; paras. 70 and 76.]

[83]                          I agree.  While it is true, as Smith J.A. points out, that Dr. Richardson failed to testify that the effect of alcohol is to “impair the ability or capacity to form specific intent” and that this would be a legal conclusion upon which an expert would not be expected to offer an opinion (para. 127), I think this is somewhat of an oversimplification of the problem. While Dr. Richardson did not have to testify that someone in Mr. Daley’s state of intoxication would lack “specific intent” for murder for his testimony to be relevant to the central issue in the case, he had to clearly convey that someone in Mr. Daley’s state could not foresee the consequences of his actions.  He failed to do so.  Indeed, Smith J.A. acknowledged that the evidence was less than clear: “It is unfortunate that the gist of Dr. Richardson’s evidence did not emerge as clearly as it could have from his testimony, particularly his evidence-in-chief” (para. 129).

[84]                          The only time that a discussion about the ability to foresee consequences arose in the course of his testimony was in cross-examination, and was in the context of a discussion pertaining to making plans and deliberating future actions rather than knowledge in the moment:

Q:   What about – what about planning for the next day, would – would it be typical for a person in that kind of gross state of drunkenness to not be planning what they’re going to do the next day, thinking ahead?  Would that be a typical impairment of judgement that you’re not thinking ahead?

A:    Well, they’re not – not anticipating the consequences of what you’re doing, yes.

Q:   Right.

A:    Again, that would be part of the appropriateness filter is to anticipate . . . the consequences of [what is] going on – what you’re carrying out.

Q:   Or – or for that matter, just what you’re going to do the next day.

A:    Well, the – quite possibly because the – the memory – or the – the idea-generating parts of the brain are still generating ideas.  So it would be possible that in an amnesic state the person would talk about – would have ideas of what to do in the future –

Q:   Right.

A:    – and to talk about it with other people, but whether they were appropriate things or not, whether they were things that the person actually would carry out is another issue all –

Q:   A different story.

A:    – issue altogether. [A.R., at pp. 463-64]

One would not necessarily take from this exchange that a person in Mr. Daley’s state was incapable of knowing the likely consequences of his actions; it could simply be taken to mean that someone in an amnesiac state lacks the ability to engage in long-term planning.

[85]                          It is questionable whether loss of the capacity to form judgments and judge the appropriateness of one’s action equates with loss of the ability to foresee the consequences of one’s actions.  As discussed at para. 42 dealing with the Robinson case, it is hard to accept that a person, here stabbing someone in the side, would not be able to realize such an action could kill.  Expert evidence that the intoxication was such that one could not judge the appropriateness of one’s actions can hardly be equated to evidence of intoxication sufficient to establish the incapacity alleged to have existed here. This is the problem I see with the interpretation given to the evidence of the expert by Smith J.A.

[86]                          Smith J.A. drew support for her conclusion by reference to another intoxication case, R. v. Tipewan, [1998] S.J. No. 681 (QL) (Q.B.), where Dr. Richardson, testifying as an expert for the defence, had expressly linked loss of judgment with loss of the ability to foresee consequences.  While I acknowledge that Smith J.A. prefaced her reliance on this case by noting “one must exercise extreme caution when comparing the evidence adduced in another case” (para. 140), I am of the view that it was improper for her to rely on the evidence in another case to prop-up the evidence in this case.  The significance of Dr. Richardson’s testimony in this case is a question of fact. Subject to judicial notice, the answer to a question of fact, as it rests wholly on the evidence in a particular case, cannot be presumed to be true for any situation outside the specific one before the trial court.  Also, the trial judge could hardly be criticized for dealing only with the evidence in front of him; that is the only evidence that could properly be put to the jury.

[87]                          Moreover, as a determination to be made on the evidence presented at trial, the significance of Dr. Richardson’s evidence is solely a debate to be had between members of the jury, as the ultimate arbiters of the facts.  As I discussed earlier, it is a long-held principle that it is dangerous and in most cases inappropriate for trial judges to interpret the evidence of experts for the jury.  Trial judges need only summarize and present to the jury what was clearly stated by the expert witness, nothing more, and this is so only where the evidence is central, as opposed to peripheral to a main issue in the case: see Thériault, at p. 342.

[88]                          It was alternatively argued by Mr. Daley’s counsel during oral argument that if the substance of Dr. Richardson’s testimony was unclear during his examination, the trial judge should have sought to clarify his meaning by posing him further questions while on the witness stand.  While the trial judge certainly had the discretion to do so, I am of the view that he was under no obligation to do so.  As discussed earlier, it is the role of the parties to lead evidence and not that of the trial judge.  Trial judges understandably may have a certain reluctance to tease out evidence for fear of eliciting statements counsel did not wish to have brought out and then have their intervention challenged on appeal.

[89]                          As to whether the trial judge’s summary of Dr. Richardson’s evidence was inadequate, given my conclusion that the trial judge was under no obligation to read more into, or to interpret for the jury, what was presented, I find his summary was not so incomplete or biased in favour of one position that it gave rise to reversible error.  Dr. Richardson testified that there was a correlation between alcohol-induced amnesia and a lack of judgment and assessment of appropriateness.  Kyle J. summarized that properly, separately from that portion of the charge dealing specifically with the issue of intoxication, with the rest of the expert testimony. Because what clearly came out of Dr. Richardson’s testimony was not particularly helpful in determining the central issue of whether Mr. Daley lacked the requisite intent and because the sequence to be followed in a jury charge is generally a matter within the trial judge’s discretion, I find no error here.  Had Dr. Richardson testified in clear terms to the extent that Smith J.A. attributes to him, I would have serious concerns about the adequacy of the summary and presentation of this evidence, but the evidence was lacking and appellate courts should not attempt to fill in the gaps or make inferences that end up changing the evidence that the jury is to consider.

5.2.4      Whether the Trial Judge Misled the Jury with Respect to the Significance of Alcoholic Amnesia

[90]                          This concern with the charge is related to the previous section.  Given her interpretation of Dr. Richardson’s evidence, Smith J.A. felt that Kyle J. risked seriously misleading the jury as to the significance of Dr. Richardson’s evidence when he stated at the conclusion of the portion of his charge on intoxication that “[a]mnesia, while it may reflect extreme drunkenness, is not a defence.”  In her view, a fairer summary of the relevance of the evidence of amnesia would have been, “[a]mnesia, while it is not in itself a defence, may reflect extreme drunkenness to the degree that judgment is absent or seriously impaired” (para. 139).

[91]                          In oral argument before this Court, counsel for Mr. Daley argued that this mis-characterization of the significance of amnesia amounted to non-direction on the theory of the defence.  I understand from his oral submissions that the theory the defence sought to put forward was as follows: (1) Mr. Daley could not remember the events surrounding the homicide.  (2)  This is proof that he was in a state of alcoholic amnesia. (3) Persons in a state of alcoholic amnesia experience a shut down of judgment and the ability to evaluate the appropriateness of actions.  (4) Persons whose judgment is no longer functioning are unable to foresee the likely consequences of their actions.  (5) Persons who cannot foresee the likely consequences of their actions lack the specific intent to be found guilty of second degree murder.  Counsel for Mr. Daley says that if all the propositions upon which the above theory is based are made out, then the evidence of amnesia must be central to his case.  This is because the evidence in support of amnesia, if accepted, would bring one to the conclusion, by following the steps in the reasoning I set out above, that Mr. Daley lacked the requisite intent.

[92]                          However, as I explained in the previous section, not all elements of this theory were established on the evidence.  Most importantly, the link between loss of the capacity for judgment and evaluation of appropriateness and loss of the ability to foresee the consequences of one’s actions was never clearly addressed in the testimony of Dr. Richardson, and Kyle J. had no duty to tease this out.  Had this link been made, the argument that Kyle J.’s explanation of the significance of amnesia was lacking would be more apt.  But the link was not established on the evidence.  Without the link, I find it was acceptable for Kyle J. to stipulate that amnesia is not a defence.

5.2.5    Whether the Trial Judge Confused the Jury About the Degree of Intoxication Needed to Make Out the Defence

[93]                          Smith J.A. was of the view that the nature of the intoxication defence was misunderstood by both Mr. Daley’s and Crown counsel at trial and that this carried over into the trial judge’s instructions (para. 105).  She states that the trial judge’s presentation of the evidence confused the level of intoxication that would be necessary to establish a state of automatism with the level of intoxication that would support a reasonable doubt that the accused had the requisite specific intent for murder.  In her view, Kyle J. may have given the jury the impression that if they were satisfied beyond a reasonable doubt that the appellant was capable of voluntary action, his defence of intoxication was no longer relevant:

In short, it is my view that what the learned trial judge did say about the defence of drunkenness could have been interpreted by the jury as implying that, if they were satisfied beyond a reasonable doubt that the appellant was capable of voluntary action, that was the end of the matter.  [The trial judge’s description of the] conduct of the appellant (“discussing” the next morning’s car show, calling on Mr. Clarke and carrying on “a drunken, but intelligible, conversation” and trying to get into locked vehicles “apparently with a view to sleeping there”) as showing “how drunk he wasn’t” suggests that if the appellant was capable of doing all of those things, he was probably also capable of the necessary intent. [para. 152]

[94]                          It would seem that Smith J.A. was of the view that the evidence Kyle J. mentioned that detracted or contradicted the appellant’s alleged advanced degree of drunkenness would only have been relevant had Mr. Daley been making a defence of extreme intoxication akin to automatism.  She appears to suggest that such evidence was not relevant to the issue of whether Mr. Daley was so intoxicated that he could not foresee the likely consequences of his action.  With respect, I disagree.

[95]                          It seems to me that it was not the fact that the appellant did pursue these activities that was the purpose of mentioning them, but whether they showed that Mr. Daley did them with apparent desire to come to a logical end, which is relevant to the question of intention.  That the appellant stayed on topic when planning for the next day with his friend, Mr. Sanjenko, was able to ride his motorcycle to a friend’s house, to a house party, and then ride back home, though getting into minor accidents, called out to his wife on being locked out and looked for a vehicle to stay in, give indications of his actual awareness.  I agree with the submission of the Crown that it was not the voluntariness of the actions that the trial judge was highlighting, but the rationality of them.

[96]                          As I discussed above, the trial judge has a duty to present the evidence of both sides fairly.  I believe that Kyle J. did so.  It seems to me that Smith J.A. would have preferred the trial judge to omit much of this important evidence from his charge and to overemphasize the evidence of Mr. Daley’s drunkenness.  That would not have been a fairer charge.

5.2.6       Whether the Trial Judge Should Have Given a Two-Step Charge

[97]                          As discussed earlier, while this Court endorsed the Canute-type charge as that which should normally be given where intoxication is a defence to a specific intent offence, it left the door open in Robinson for instructions to be given along the lines as those set out in MacKinlay.  As I noted earlier, the essential difference between the Canute and MacKinlay model charges is that MacKinlay first instructs on capacity to form the requisite intent, and then goes on to say that if the jury finds beyond a reasonable doubt that the accused possessed the capacity to form the requisite intent, they must still go on to determine whether the accused possessed the actual intent.  The Canute model charge focuses only on whether the accused possessed actual intent.

[98]                          In Robinson, the Court said that the trial judge could give a MacKinlay-type charge “where there has been expert evidence concerning issues of capacity, where the evidence reveals that the accused consumed a considerable amount of alcohol or where the accused specifically requests a ‘capacity’ charge as part of his or her defence” (para. 53).  Some precision was added to this in R. v. Lemky, [1996] 1 S.C.R. 757, where McLachlin J. (as she then was) stated for the majority, at para. 15, that: “While the two-stage direction is sometimes helpful, a separate charge on capacity is not a legal requirement and its absence will not generally constitute reversible error.”  However, in Seymour, where the trial judge had given a Canute-type charge, this Court found a reversible error on the basis that the trial judge had not given a MacKinlay-type instruction, since the expert witness had testified in terms of capacity.

[99]                          Based on her interpretation of Dr. Richardson’s evidence, Smith J.A. found that a MacKinlay-type charge, as found in Seymour, would have been the most appropriate:

Further, in the instant case, the expert witness testified as to the appellant’s lack of capacity for judgment (and, in the sense of ability to foresee consequences, therefore his capacity for the requisite intent for murder) . . . .

. . . the jury charge also failed to distinguish between the question of lack of capacity to form the requisite intention and the question of whether, due to his level of intoxication, the accused in fact lacked the requisite intent.

. . .

It is arguable that, as in R. v. Seymour, supra, the instant case was a case in which a two‑step . . .  charge would have been preferable. [Emphasis in original; paras. 156-57 and 159.]

[100]                      However, the expert only clearly testified about lack of capacity for judgment and evaluation of appropriateness, not about lack of capacity for specific intent, specifically the capacity to foresee the consequences of one’s act.  Therefore, the expert did not testify in the relevant “capacity” language and a MacKinlay-type charge was not called for on this basis.  It is true that Mr. Daley’s counsel did request that a MacKinlay-type instruction be given on the recharge, and that Kyle J. declined to recharge on this issue, primarily on the basis that he thought this would only serve to confuse the jury.  However, given the expert evidence, I find no reversible error in his refusal to do so, and furthermore, I tend to agree with his view that a two-step charge would have only served to confuse the jury.  The problem with the MacKinlay-type charge was well put by Wood J.A., in Canute, at pp. 418-19:

Before us, Crown counsel argued that the full MacKinlay charge should now be approved in this province, suggesting that its two-step process was a simple formula for a jury to apply.  When asked why a two-step formula would be any more simple to apply than a single test, counsel could not provide any answer.

In fact, as was pointed out in Korzepa, the two-step test in MacKinlay is inherently confusing.  What reason could there be for requiring a jury to struggle with the elusive concept of “capacity to form an intent”, when at the end of that exercise they will only be required to turn their consideration to the real legal issue, namely, the actual intent of the accused?  The issue of actual intent necessarily renders the question of capacity to form that intent redundant.  With respect, it seems that the only likely result of retaining the two-step approach in MacKinlay, with its reference to “capacity”, would be to confuse the jury into considering something other than the actual intent of the accused . . . . [Emphasis added.]

[101]                      I am of the view that leaving the door open for the possibility of giving a MacKinlay-type charge in Robinson was more problematic than beneficial.  No injustice is caused to the accused by only instructing the jury to consider actual intent.  This was acknowledged in Seymour, at para. 26: “Provided that a jury is properly instructed that they must find that the accused possessed the requisite intent, then an accused who was not capable of forming the specific intent for the offence obviously cannot be found to have formed that intent” (emphasis deleted).  Notwithstanding this acknowledgment, and the statement in Lemky, however, the Court went on to find a reversible error for a failure to give a two-step charge in Seymour.  This, I feel, has unfortunately created an incentive for the possibility of bringing an appeal any time the one-step Canute-type charge is given, despite this Court’s general preference for the one-step charge.

[102]                      The MacKinlay-type charge was retained in Robinson in order to provide flexibility, but I feel this was at the sacrifice of simplicity and clarity.  I agree with Don Stuart’s criticism of Robinson in this respect:

It is most unfortunate that the Court left open the possibility that in some cases the two-step direction involving capacity may be appropriate.  There is a great deal to be said for the clarity and simplicity of the British Columbia approach for all cases.  This Beard anomaly should have been fully removed from Canadian law, as it has been by courts in England, New Zealand and Australia.

(D. Stuart, Canadian Criminal Law: A Treatise (4th ed. 2001), at p. 427)

I would therefore recommend that a one-step Canute-type charge be used in all future charges on intoxication.

5.2.7     Whether the Trial Judge Should Have Done More to Prevent the Jury From Readily Applying the Common Sense Inference

[103]                      Smith J.A. was also of the view that in light of evidence of intoxication, the trial judge should have made greater efforts to stress to the jury that they did not have to draw the common sense inference:

In the case before us, the learned trial judge, in the passage from his charge to the jury quoted above, referred to the “common sense inference”, encouraging the jury to “use your common sense”.  While it is true that he also cautioned the jurors that they could draw the common‑sense inference only after considering all the evidence, including evidence of the appellant’s consumption of alcohol, in my view this instruction failed adequately to explain the relevance of the evidence of intoxication in this context and therefore failed to caution the jury that the “common sense inference” might be inapplicable where the effects of severe intoxication affected the accused’s ability to foresee the consequences of his actions. [Emphasis in original; para. 161]

[104]                      I am of the view that the trial judge had to do no more than link the common sense inference to the evidence of intoxication, as required by Seymour.  It seems to me that it will be necessary to instruct the jury on the common sense inference in most cases, for it assists the jury in understanding how they are to conclude whether or not there was the necessary intent: see Seymour, at para. 19.  So long as the members of the jury are instructed that they are not bound to draw this inference, particularly in light of the evidence of intoxication, which Kyle J. did in this case, I find nothing objectionable about instructions on the common sense inference.  I do not think the trial judge must take pains to tell the jury they are not bound to draw the inference where there is evidence of a significant degree of intoxication, as this is a matter of common sense.  In this respect, I approve of the comments made by Huddart J.A. in R. v. Courtereille (2001), 40 C.R. (5th) 338 (B.C.C.A.), at para. 32:

[The common sense inference] does not die with the first drink.  The collective common sense and knowledge of life possessed by twelve jurors is of fundamental importance to the unique value of juries. . . .  It is equally good sense and common experience that the effect of alcohol on thought processes is a continuum. . . .  The more intoxicated a person becomes, the greater the likelihood that drink will result first in uninhibited conduct, and ultimately in unintended conduct.  It is proper to remind the jury that they may use their common sense with respect to this, even if intoxication is advanced, provided the reminder includes the admonition that the inference is permissive and subject to a consideration of the evidence of intoxication.

5.2.8       Whether the Trial Judge Failed to Adequately Instruct on the Link Between Credibility and Reasonable Doubt

[105]                      Finally, given her interpretation of Dr. Richardson’s evidence, particularly the significance of alcoholic amnesia on the question of whether Mr. Daley could foresee the consequences of his actions, Smith J.A. found that the trial judge put the appellant’s credibility in issue when he made the comment: “In the present case, Wayne Daley simply says that he remembers nothing after he left his garage on the motorcycle, other than the accident.  At the time he was arrested, however, he said that he and Teanda had been fighting” (para. 137 (emphasis added)).  As a result of this, she felt it was incumbent on Kyle J. to instruct the jury that the rule of reasonable doubt applied to the issue of credibility, according to this Court’s decision in R. v. W. (D.), [1991] 1 S.C.R. 742.

[106]                      The W. (D.) caution is mandatory only in cases where credibility is a central or significant issue.  See R. v. Good (1998), 102 B.C.A.C. 177, at p. 180: “[W. (D.)] applies mainly where the case comes down to a simple and crucial credibility conflict between the evidence of a complainant and the evidence of the accused, and particularly where there are no other relevant extrinsic factors in the evidence.”  Here, I agree with Vancise J.A. that credibility was not in issue in this case:

Here, credibility was not an issue.  There was no conflict between the evidence of the appellant and any other witness.  He simply could not remember.  He gave no evidence on the key element in the trial — whether he had the requisite intent to kill or cause bodily harm with the foresight that the likely consequence was death.

. . . There was no conflict between the evidence of the accused and any other person.  The appellant could not or would not testify with respect to the events surrounding the death of his partner.  The trial judge specifically stated that “If [the jury] have a reasonable doubt about his state of mind you must not conclude that he intended or meant to bring about the predictable consequences of what he did.” [paras. 46-47]

Therefore, there was no obligation on Kyle J. to give a specific instruction linking the credibility of the appellant with reasonable doubt.

6.        Disposition

[107]      For the above reasons, I would dismiss the appeal.

The reasons of Binnie, LeBel, Fish and Charron JJ. were delivered by

Fish J. (dissenting) —

I

[108]                      The appellant stands convicted of murder. His defence was that he was so intoxicated as to lack the culpable intent — more particularly, the subjective foresight — that is a requisite element of that offence.  There is no dispute that the appellant had consumed an enormous quantity of alcohol and that he was, at the relevant time, in an advanced state of intoxication. 

[109]                      According to one witness, the appellant was “out of his mind drunk” and “could barely stand up”.  According to another, he was “falling all over the place” and “pretty out of it”.  A pharmacologist called as an expert testified that “a person in that kind of  gross state of drunkenness” would not be “anticipating the consequences of what [they are] doing”.

[110]                      Nowhere in his charge to the jury did the trial judge refer to any of this evidence.  Nowhere did he set out, however briefly, the position of the defence on this decisive issue.  Nowhere did he draw the jury’s attention, however summarily, to the evidence capable of supporting that position.  Nowhere in the “decision tree” remitted by the trial judge to the jury is there any reference at all to the appellant’s state of intoxication or its effect on the requirement of foresight that was an essential element of the charge.  On the contrary, the judge’s references to the evidence were limited to discrediting the appellant’s defence.  To make all of this plain, I shall reproduce the relevant extracts from the record.

[111]                      Except for purposes of emphasis or illustration, it will be unnecessary for me to include a detailed review of the facts:  Justice Bastarache, in his careful and extensive reasons, has set out fully and fairly the principal items of evidence adduced at trial.  Unfortunately, as we shall see, the trial judge did not do that.  Nor did he relate that evidence to the defence that it was capable of supporting as a matter of law.  The jury was thereby prevented from properly exercising its right and discharging its duty — a right and a duty that are not ours — to weigh the relevant evidence and to determine its significance in rendering a verdict that by law is a jury’s alone.

[112]                      Like Smith J.A., dissenting in the Court of Appeal, I believe the judge’s charge to the jury “failed adequately to put to the jury the defence of intoxication that was raised on the evidence in this case, and, in particular, failed adequately to direct the jury to the question of whether intoxication could have affected the accused’s ability to foresee the likely consequences of his actions, sufficient to raise a reasonable doubt as to whether he had the necessary intention for a conviction for murder” ((2006), 212 C.C.C. (3d) 290, at para. 104).

[113]                      With respect for the contrary opinion of Justice Bastarache, I would therefore allow the appeal, quash the appellant’s conviction and order a new trial on the charge as laid.

II

[114]                      Justice Bastarache has listed the eight required elements of a trial judge’s charge to the jury (para. 29).  For ease of reference, I reproduce that list here:

1.    instruction on the relevant legal issues, including the charges faced by the accused;

2.    an explanation of the theories of each side;

3.    a review of the salient facts which support the theories and case of each side;

4.    a review of the evidence relating to the law;

5.    a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations;

6.    instruction about the burden of proof and presumption of innocence;

7.    the possible verdicts open to the jury; and

8.    the requirements of unanimity for reaching a verdict.

[115]                      Only the first four requirements are in issue on this appeal.  That they must form part of every charge is not in dispute:  The question is whether they were satisfied in this case. 

[116]                      I have concluded that they were not and find it useful, in explaining my conclusion, to first refer briefly to some of the leading authorities.  As we shall see, they all emphasize the duty of a trial judge to identify the issues in the case; to summarize, clearly and fairly, the respective positions (or “theories”) of the prosecution and the defence; to draw the jury’s attention to the evidence that supports each of these theories; and, finally, to relate the main items of evidence to the applicable rules of law. 

[117]                      It has been the law for more than a hundred years that “[e]very party to a trial by jury has a legal and constitutional right to have the case which he has made either in pursuit or in defence, fairly submitted to the consideration of that tribunal” (Bray v. Ford, [1896] A.C. 44 (H.L.), at p. 49 (emphasis added), approved by Nesbitt J. in Spencer v. Alaska Packers Association (1904), 35 S.C.R. 362, at p. 367, and reaffirmed in Azoulay v. The Queen, [1952] 2 S.C.R. 495, at pp. 497-98).

[118]                      Few judicial pronouncements on the subject have surpassed — for clarity, simplicity and economy of language — this statement of the law in Azoulay:

The rule which has been laid down, and consistently followed is that in a jury trial the presiding judge must, except in rare cases where it would be needless to do so, review the substantial parts of the evidence, and give the jury the theory of the defence, so that they may appreciate the value and effect of that evidence, and how the law is to be applied to the facts as they find them.

(Taschereau J., for the majority, at pp. 497-98)

[119]                      Azoulay reaffirmed in particularly felicitous terms the governing principles set out a half-century earlier in the cases I have mentioned.  And these principles have in turn been repeatedly reaffirmed during the half-century since.  In R. v. MacKay, [2005] 3 S.C.R. 607, 2005 SCC 75, for example, McLachlin C.J., citing Azoulay, emphasized that “[t]he function of instructions to the jury is to ‘explain the relevant law and so relate it to the evidence that the jury may appreciate the issues or questions they must pass upon in order to render a verdict of guilty or not guilty’” (pp. 607-8 (emphasis added)). 

[120]                      Where this can be fairly achieved in short compass, a compact but focused charge is without question preferable to a laborious and indiscriminate recitation from the transcripts of the judge’s notebook.  But brevity is no virtue where the charge, for that reason or any other, lacks clear direction as to the issues, or fails to relate the issues to the material facts, or neglects to summarize the respective positions of the parties or to draw the jury’s attention clearly and fairly to the specific evidence that supports either position.

[121]                      The scope of the judge’s duty to explain the respective positions of the parties, and the manner in which it must be discharged, were summarized this way in  Kelsey v. The Queen, [1953] 1 S.C.R. 220, at p. 227 (citing Goddard L.C.J. in R. v. Clayton-Wright (1948),  33 Cr. App. R. 22, at p. 29):

The duty of the Judge . . . is adequately and properly performed . . . if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give . . . a fair picture of the defence . . . .

The rule is simple and implements the fundamental principle that an accused is entitled to a fair trial, to make a full answer and defence to the charge, and to these ends, the jury must be adequately instructed as to what his defence is by the trial Judge. [Emphasis added; emphasis in original deleted.]

[122]                      The judge’s duty to direct the jury’s attention to significant evidence capable of supporting a defence extends to any defence raised by the record, whether advanced by the accused or not.  See Pappajohn v. The Queen, [1980] 2 S.C.R. 120, where the Court held (at p. 126):

It is well established that it is the duty of a trial judge in giving directions to a jury to draw to their attention and to put before them fairly and completely the theory of the defence. In performing this task, it is also clear that the trial judge must put before the jury any defences which may be open to the accused upon the evidence whether raised by the accused’s counsel or not. He must give all necessary instructions on the law relating to such defences, review the relevant evidence and relate it to the law applicable. [Emphasis added.]

[123]                      These principles were well established long before Pappajohn.  Decades earlier, the Court held in Wu v. The King, [1934] S.C.R. 609, at p. 616:

There is no doubt that in the trial court an accused person is ordinarily entitled to rely upon all alternative defences for which a foundation of fact appears in the record, and, in my opinion, it makes no difference whether the evidence which forms that foundation has been given by the witnesses for the Crown or for the accused, or otherwise. What is essential is that the record contains evidence which, if accepted by the jury, would constitute a valid defence to the charge laid. Where such evidence appears it is the duty of the trial judge to call the attention of the jury to that evidence and instruct them in reference thereto. [Emphasis added.]

[124]                      Finally, trial judges must take care “to preserve th[e] balance between the case for the prosecution and the case for the defence which is so essential to a fair trial” (A. E. Popple, ed., Canadian Criminal Procedure (Annotations), 1952 (1953), at p. 16).  And in reviewing the evidence, they must take care as well to avoid misstatements and omissions of material facts, misinterpretations of the evidence and improper comments on the facts (ibid.).

[125]                      With these established principles in mind, I turn now to the judge’s charge in this case.

III

[126]                      I agree with Justice Bastarache (at para. 33) that the central issue in this case was whether the appellant, by reason of his intoxication, lacked the culpable intent that is an essential element of murder.  More precisely, the decisive question was whether the jury was satisfied beyond a reasonable doubt that the appellant, drunk as he was, either meant to cause the victim’s 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. 

[127]                      It is thus hardly surprising that most of the evidence adduced by the defence related to the accused’s extreme intoxication and its likely effect on his capacity to form the requisite culpable intent — or its effect on his actual intent, if he did have that capacity.  And the appellant called an expert witness to testify to the effect of extreme intoxication on his mental state, including his ability to foresee the consequences of his actions.

[128]                      In this light, I find it fatal to the judge’s charge that it included no mention at all  of the appellant’s position that he lacked the requisite mens rea to commit murder because his extreme intoxication rendered him incapable of foreseeing the consequences of his actions.  Indeed, the trial judge’s only references to intoxication as a defence were couched in general terms, with no reference at all to the specific facts capable of supporting that defence in this case.  This was the tenor of his instructions regarding the appellant’s defence of intoxication:

To prove murder, Crown counsel must prove beyond a reasonable doubt that Wayne Daley had the intent to kill or to cause bodily harm, knowing that it was likely to cause death. To decide whether he had that intent you should take into account the evidence about his consumption of alcohol along with all the rest of the evidence which throws light on his state of mind at the time the offence was allegedly committed.

. . .

Evidence about how much alcohol he had consumed over how long has shed some light on his state of mind . . . . [A.R., at pp. 15-16]

[129]                      In my view, these very general references to the appellant’s defence of intoxication do not pass muster under any of the authorities mentioned above or by Justice Bastarache. 

[130]                      With respect, moreover, the inadequacy of the judge’s charge in this regard was compounded by a striking omission in the detailed decision tree he remitted to the jury as a roadmap to their verdict.  It contained no reference at all to the accused’s intoxication and how it related to their determination of his innocence or guilt.  If the judge’s instructions failed — as I believe they did — to explain the position of the defence clearly and fairly, the judge’s decision tree adds an additional layer of concern.  Taken together, the charge and the decision tree conveyed to the jury an inadequate and incomplete  understanding of the issues the jury was required to consider in reaching its verdict.

[131]                      In my view, the judge’s instructions thus failed to satisfy the governing principles applicable to all jury charges: Read as a whole, as they must be, the instructions were neither complete, nor accurate, nor balanced (a matter to which I shall later return).  More particularly, the instructions do not satisfy the specific requirements on a trial for murder under  s. 229 (a) of the Criminal Code, R.S.C. 1985, c. C-46 , where there is evidence of extreme intoxication, as there was here.

[132]                      In cases of this sort it was incumbent upon the trial judge to instruct the jury as to the effect of extreme intoxication on the requisite mens rea for murder under s. 229 (a) and, more precisely, its bearing on  the foresight requirement under s. 229 (a)(ii): R. v. Seymour, [1996] 2 S.C.R. 252.  Speaking for the Court in Seymour, Cory J. explained (at para. 22):

One of the effects of severe intoxication is an inability to foresee the consequences of one’s actions, much less intend them. It was for this reason that the Ontario Court of Appeal in MacKinlay, supra, at p. 322, held that the state of mind required to commit the crime described in s. 229 (a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of his act and that, therefore, the jury should consider whether intoxication affected his ability to have the required foresight.

[133]                      Accordingly, where intoxication has been put to the jury as a defence to a charge under s. 229 (a)(ii), the trial judge is required to direct the jury expressly “that the Crown must prove beyond a reasonable doubt that the accused, at the time of the offence, actually foresaw the natural consequences of his or her act, i.e., the death of the victim”:  R. v. Lemky, [1996] 1 S.C.R. 757, at para. 15 (emphasis deleted).  That is to say, the trial judge is bound to explain clearly and specifically that the Crown must prove “beyond a reasonable doubt that the accused . . . intended to kill or cause bodily harm with the foresight that the likely consequence was death”:  R. v. Robinson, [1996] 1 S.C.R. 683, at para. 48.

[134]                      In R. v. Berrigan (1998), 127 C.C.C. (3d) 120, the British Columbia Court of Appeal set aside the appellant’s conviction and ordered a new trial on the ground that the trial judge “did not give the jury a specific instruction relating the evidence of the appellant’s intoxication to the ability to foresee the consequences of his actions under s. 229 (a)(ii)” (para. 14 (emphasis added)).  Speaking for a unanimous court, Donald J.A. held:

This, in my view, was a material omission because the jury may have concluded that anyone would know that 11 stab wounds were likely to cause death. The jury should have been told of the potential effect of an intoxicating drug on a person’s ability to measure or foresee the consequences of his or her actions. [para. 14]

This proposition was affirmed, three years later, in R. v. Hannon (2001), 159 C.C.C. (3d) 86, 2001 BCCA 566.

[135]                      Like Smith J.A., I believe that Berrigan and Hannon adopted the correct approach.  It is insufficient for the jury to be told, in general terms, that alcohol may affect intention.  A more specific instruction is mandatory to ensure that the jury understands the impact of intoxication on the foresight requirement under s. 229 (a)(ii). As David Watt explains:

In some cases, for example in murder as defined in ss. 229 (a)(ii) and 229 (b), the mental element P must prove includes elements of intention and subjective foresight. In these cases, it is important that jurors understand that evidence of intoxication may raise a reasonable doubt whether D actually foresaw the consequences of his or her conduct.

(Watt’s Manual of Criminal Jury Instructions (2005), at p. 829)

[136]                      I agree with Justice Bastarache that there is no particular phrase that must be used in delivering this message.  With respect, however, we are not concerned here with the terms in which the required instruction was given: our concern, rather, is with the fact that the required instruction was not given at all. 

[137]                      Nothing in the judge’s instructions informed the jury how to apply the governing law to the facts as they found them on this decisive issue in the case.  The jurors were never told that extreme intoxication was a defence to the charge of murder if it raised in their minds a reasonable doubt whether the appellant realized that death was a likely consequence of his actions.  Nor were they given the required guidance in determining whether this defence had been made out.  As I have mentioned already, and will presently demonstrate, the attention of the jurors was not drawn to the evidence indicating how intoxicated the appellant in fact was.  They were not told that persons who are extremely intoxicated may for that reason fail to appreciate the consequences of their conduct.  And they were not instructed that if the appellant, on account of his extreme intoxication, failed to appreciate that his assaultive behaviour was likely to cause the death of his partner, then he necessarily lacked the culpable intent that was an essential element of the murder charge.

[138]                      The judge merely recited the text of s. 229 (a)(ii) of the Criminal Code  and  instructed the jury, in general terms, to consider “the evidence about [Mr. Daley’s] consumption of alcohol along with all the rest of the evidence which throws light on his state of mind at the time the offence was allegedly committed”.

[139]                      The law presumes the collective wisdom and intelligence of the jurors who for centuries have served, and continue to serve,  the cause of justice well.  But the law makes no assumption as to their knowledge of the legal principles they are bound to apply.  Nor does the law assume that jurors will appreciate the legal significance of the evidence they have heard — even in the absence of appropriate instructions from the presiding judge.  That is why appropriate instructions are and must be given by the trial judge.  Unfortunately, this was not done here.

[140]                      Finally, on this branch of the matter, I am troubled by the trial judge’s instruction that the jurors “may conclude, as a matter of common sense, that if a sane and sober person acts in a way that has predictable consequences that person usually intends, or means to intend, to cause those consequences”.  This instruction could not have assisted the jury in properly considering the defence advanced by the appellant.  Any  inference that can reasonably be drawn from the acts of a “sane and sober” person can hardly be a reliable indication that a like inference can reasonably be drawn from the acts of someone who, like the appellant, was far from sober when he committed those acts;  he was then, in fact, extremely intoxicated.

[141]                      The trial judge ought at a minimum to have explained the link between the “common sense inference” to which he referred and the evidence of the appellant’s extreme intoxication.  As the Court made clear in Seymour, it is  “essential for a trial judge to link the instructions given pertaining to intoxication to those relating to the common sense inference so that the jury is specifically instructed that evidence of intoxication may rebut that inference” (para. 23 (emphasis added)).  See, to the same effect, Robinson, at para. 65, and R. v. Canute (1993), 80 C.C.C. (3d) 403 (B.C.C.A.), at p. 420.  Moreover, even where a “common sense inference” direction might properly be considered relevant, the trial judge should instruct the jury that the more intoxicated accused persons are found to have been, the less likely it is that they foresaw — let alone intended — the “natural consequences” of their actions.

[142]                      Here, the trial judge failed to adequately explain the link between an intoxication defence and the common sense inference, and failed as well to draw the jury’s attention to the evidence of the appellant’s extreme intoxication and its effect on the appellant’s state of mind.  In my view, this too was fatal to his charge:  “an instruction which does not link the common-sense inference with the evidence of intoxication constitutes reversible error”: Robinson, at para. 65.

IV

[143]                      Trial judges are required, as we have seen, to outline the theory of the defence and to draw to the jury’s attention any significant evidence capable of supporting that theory.  The trial judge did not do that here.  I have said that his review of the critical evidence as to the degree of the appellant’s intoxication was incomplete and unbalanced.  Here are some telling examples:

(1)               Tyler Sanjenko testified that the appellant swerved all over the road, hit the curb, fell over several times, was  “pretty out of it” and “it was like something hit him”.  He testified as well that the appellant was urinating against the neighbour’s fence and had difficulty getting his pants up and walked around with them down. (Emphasis added; A.R., at pp. 307-12 and 324.)

The trial judge did not mention any of the underlined evidence.  His entire summary of Mr. Sanjenko’s testimony was as follows:

. . .  about 5:00 a.m. he discussed the next morning’s car show with Tyler Sanjenko. [A.R., at p. 17]

(2)               Jim Clarke, the appellant’s neighbour testified that the appellant was “out of his mind drunk” and that most of what he was saying was “just gibberish as far as [he] was concerned”. (Emphasis added; A.R., at pp. 330-31.)

The trial judge omitted the underlined evidence entirely and summarized Mr. Clarke’s evidence as follows:

[Mr. Daley] went and called on Mr. Clarke and carried on a drunken, but intelligible, conversation. [A.R., at p. 17]

(3)               James Beamish, a friend of the appellant who was awakened by his unannounced visit at approximately 4:30 a.m. testified as follows:

My mother-in-law was staying with us that night and she made it to the door before I did and when she opened up the door Wayne [the appellant] stumbled in and stumbled up the stairs . . . I knew he was drunk coming up the stairs. . . .

He [the appellant] was intoxicated. He, you know, he couldn’t keep his balance, he was using the counter to hold himself up . . . .

. . . he went to put his motorcycle helmet back on and he put it on backwards . . . .

Yes, [he had] slurred speech. [Emphasis added; A.R., at pp. 281, 284 and 290.]

The trial judge did not refer to this evidence at all.

(4)               Cynthia Lorraine Mohr, a neighbour of the appellant who saw him at around 5:00 a.m. testified that

Wayne [the appellant] was standing at the front of his door next door and he appeared to be really intoxicated, he was — just kept banging, and then he went down the stairs and started to go towards the front street where there was vehicles parked and he fell on the ground . . . . [Emphasis added; A.R., at p. 340.]

Again the trial judge did not mention the underlined evidence at all.

(5)               Basing his opinion on the uncontradicted evidence, Dr. J. S. Richardson, estimated the appellant’s blood alcohol level and explained its effect on his state of mind in these terms: 

The blood alcohol level at approximately three o’clock of the average 220 pound male who had consumed two bottles of beer and roughly 22 ounces of rye from 9:15 or so, at three o’clock the blood alcohol level would be approximately 250 milligrams percent which is within the range of . . . for the average person of producing alcohol-induced amnesia.

. . .

The expected blood alcohol level at 4:20 . . . would be approximately 220 –  or 280 milligrams percent which is, for all but the very experienced alcoholics, an extremely intoxicating blood alcohol concentration. I would expect amnesia, expect severe motor impairment, expect severe disruption of the person’s ability to carry out normal activities. So the scenario you described is consistent with a blood alcohol level of 280.  [Emphasis added;  A.R., at pp. 438-39 and 441-42.]

[144]                      In his charge to the jury, the trial judge did not mention any of the testimony I have underlined — all of it significant, favourable to the appellant, capable of supporting his defence and entirely uncontradicted.  Indeed, only references to evidence of the accused’s level of intoxication were marked by skepticism or doubt and tended to support the Crown’s position that the accused was not that drunk.  Here is how the trial judge summarized for the jury’s benefit the evidence regarding the appellant’s degree of intoxication — mistakenly characterizing it as the “only evidence” of the appellant’s mental state when he stabbed his partner, Teanda Manchur:

The only evidence we have of his mental state immediately prior to the events in question is that about 5:00 a.m. he discussed the next morning’s car show with Tyler Sanjenko.  He went and called on Mr. Clarke and carried on a drunken, but intelligible, conversation.  He checked the four vehicles, including a Winnebago, apparently with a view to sleeping there, before he entered the house.  And he called angrily to his wife, “Let me in, you fucking bitch.”  These events followed his trip across town and back on his motor bike during which he found and called at a friend’s house, visited a possible party site, and had several minor accidents with his motor bike which no doubt resulted from his intoxication.  Crown counsel has described these facts as evidence of how drunk he wasn’t. [A.R., at p. 17]

[145]                      Perhaps most important, the trial judge did not mention at all Dr. Richardson’s evidence on the central issue in this case:  whether the appellant, because of his extreme intoxication, lacked the mens rea to commit murder.  The trial did refer to Dr. Richardson’s testimony in three short sentences and only at the very end of his instructions regarding the evidence relevant to the respective theories of the Crown and the defence.  The judge’s treatment of Dr. Richardson’s evidence was completely removed from his discussion of the requisite intent for murder and the evidence related to it.  He summarized Dr. Richardson’s entire testimony this way:

The alcohol expert, if I may call him that, Dr. Richardson, spoke of the effect of drunkenness of the sort we have here.  It affects judgment.  It affects motor ability, and it can bring on amnesia if short-term memory does not become long-term memory.  In the present case, Wayne Daley simply says that he remembers nothing after he left his garage on the motorcycle, other than the accident.  At the time he was arrested, however, he said that he and Teanda had been fighting. [Emphasis added; A.R., at p. 21.]

[146]                      I pause here to mention that Dr. Richardson, a pharmacologist and professor of psychiatry, was qualified — without challenge by the Crown — “as an expert in the effects of beverage alcohol on not only the body but on brain functioning and behaviour” (A.R., at p. 412).  His evidence covers 53 pages of the trial transcript.  He was cross-examined by the Crown as to the impact of alcoholic consumption on behaviour and on one’s ability to plan and anticipate.

[147]                      In short, Dr. Richardson’s testimony was dealt with by the trial judge both summarily and dismissively.  As noted by Smith J.A., it was not related at all to the central issue in the case — “the question of whether the appellant knew that death was a likely consequence of his actions” (para. 138).

[148]                      The majority of the Court of Appeal concluded that Dr. Richardson’s testimony had little bearing on the issue of intent.  In their view, Dr. Richardson did not, anywhere in his evidence, “testify on the effect of alcohol to impair the ability or capacity to form specific intent”.  He had only testified, said the majority, with respect to the “capacity to form appropriate judgments” (paras. 70 and 79 (emphasis added)).

[149]                      Like Smith J.A., I do not share this view of Dr. Richardson’s testimony.  On the contrary, I find the reasoning of Smith J.A. far more persuasive:

It is true that Dr. Richardson did not expressly say that the effect of alcohol in the case of extreme intoxication of the sort described is to “impair the ability or capacity to form specific intent.”  This, of course, is in part a legal conclusion and not one on which one would expect the expert to offer an opinion.  Nonetheless, in my view, the clear factual implication of Dr. Richardson’s testimony was that in the case of extreme intoxication the ability of an individual to judge or appreciate the consequences of his or her actions is, at least, seriously impaired, and may be totally absent.  Further, in response to hypothetical questions based on the evidence before the Court of the quantity of alcohol consumed, Dr. Richardson was of the opinion that the appellant was intoxicated to this degree at the time in question.  It is clear, as well, that this expert expressly linked the lack of judgmental capacity that would result from extreme intoxication to amnesia of the event that occurred while he was in that state.

In addition, Dr. Richardson’s evidence was that, even in that extreme state of intoxication, an individual would still be capable of ordinary actions such as walking and talking, albeit with considerable motor and speech impairment. [paras. 127-28]

[150]                      As an expert on the effects of alcohol, Dr. Richardson can hardly be faulted for failing to draw a conclusion whether the appellant in fact lacked the capacity to form the requisite “specific intent” — that was a question for the jury to answer.  Nor can he be faulted for failing to use legal terminology in giving his professional opinion as a psychopharmacologist.

[151]                      Justice Bastarache agrees that the expert witness need not have used the phrase “specific intent”, but finds that Dr. Richardson’s testimony was largely irrelevant because it failed to “convey that someone in Mr. Daley’s state could not foresee the  consequences of his actions” (para. 83).  With respect, this was precisely the point of Dr. Richardson’s testimony.

[152]                      On a fair reading of Dr. Richardson’s evidence-in-chief, as Smith J.A. found,

it is clear that the point of leading this evidence was to establish that, at the time the appellant’s wife was killed, the appellant was extremely intoxicated to the point that he could suffer amnesia in relation to the event, and, more significantly, to the point that he would be incapable of the judgment necessary to appreciate the consequences of what he was doing. [para. 126]

[153]                      And this, notwithstanding the fact that defence counsel framed his questions to Dr. Richardson in terms of one’s ability to determine “appropriate behaviour” or to form “appropriate judgments or behaviour”.  I agree with Smith J.A. that while “inappropriate judgment” sometimes relates to what is socially unsuitable, the word “appropriate” can also be used — and was used by Dr. Richardson here — to describe proper conduct in the sense of appreciating its likely consequences.

[154]                      Given that the central issue in this case was whether the accused had the requisite mens rea for murder, it should have been clear to the trial judge that Dr. Richardson was testifying with respect to the effect of alcohol on one’s ability to judge the consequences of one’s actions, and he should have directed the jury accordingly.

[155]                      Any doubt as to the meaning of Dr. Richardson’s testimony was resolved on cross-examination, when he stated that someone who is in a state of  extreme intoxication is “not anticipating the consequences of what [he or she is] doing, [which] would be part of the appropriateness filter . . . to anticipate . . . the consequences of [what is] going on – what you’re carrying out” (A.R., at p. 463 (emphasis added)).

[156]                      In my view, Dr. Richardson’s evidence intended to convey — and did convey in substance — his opinion that extremely intoxicated persons cannot judge the consequences of their actions.  And if one cannot judge the consequences, one cannot foresee them. Dr. Richardson gave this testimony in cross-examination in response to a question about one’s ability to plan for the next day.  To the extent that further clarification was necessary, this response to Crown counsel clarified the meaning of Dr. Richardson’s evidence-in-chief.  There was thus no need for the trial judge to interpret Dr. Richardson’s testimony, in the sense of determining what it meant to him.  He was simply required to draw the jury’s attention to it since it related, manifestly, to the central issue in the case.

[157]                      Dr. Richardson explained as well that a person with a significantly elevated blood-alcohol level “is not scanning the environment, not paying attention, and so things happen around them that they’re not paying attention to and if you don’t pay attention to it then you’re — you’re not aware that it happened” (A.R., at p. 434).  It was thus open to the jury to infer from this evidence that the appellant, as a result of his high level of intoxication, might indeed have been unaware of the consequences of his actions.  People who are unaware of the present are unlikely to foresee the future, including the likely consequences of their behaviour.

[158]                      Justice Bastarache finds that “it is hard to accept that a person, here stabbing someone in the side, would not be able to realize such an action could kill” (para. 85).  This intuitive reaction is entirely understandable but, in my respectful view, it ignores the crux of Dr. Richardson’s testimony: There is a point where extreme intoxication renders a person incapable of contemplating the consequences of his or her actions, and therefore unable to foresee that stabbing someone in the side would likely cause that person’s death.

[159]                      Even if Dr. Richardson’s testimony was not as clear as it might have been, its interpretation proposed by the defence was plausible at the very least, and ought therefore to have been put to the jury.  Whatever its shortcomings, Dr. Richardson’s evidence, if accepted by the jury, was capable of raising a reasonable doubt as to the appellant’s foresight of the consequences of his acts.  Had it been put to the jury fairly, accurately and in context — as it should have been —, the jurors would then have given it the consideration it deserved.  It was up to the jury to then determine what weight, if any, to attach to Dr. Richardson’s evidence in reaching their verdict.

[160]                      On any view of the matter, the trial judge was required to assist the jury in appreciating Dr. Richardson’s testimony.  His three-line summary of that evidence,  entirely disconnected from his review of what he wrongly described as the “only evidence” of the accused’s mental state, removed it instead from their realm of contemplation.

[161]                      Moreover, the trial judge’s statement that “[a]mnesia, while it may reflect extreme drunkenness, is not a defence” (A.R., at p. 18) may well have confused the jury as to the importance they could properly attach to Dr. Richardson’s testimony.  No jury could reasonably have understood Dr. Richardson to have suggested that amnesia was a defence to murder.  He did not testify to the legal consequences of amnesia, but rather to the relationship between alcohol-induced amnesia and the defence advanced by the appellant.

[162]                      That relationship is set out clearly by Justice Bastarache (para. 91).  My colleague finds, however, that the trial judge was not required to explain the significance of alcohol-induced amnesia because Dr. Richardson never linked the “loss of the capacity for judgment and evaluation of appropriateness” to “loss of the ability to foresee the consequences of one’s actions” (para. 92).

[163]                      Even if I shared this view — with respect, I do not — I agree with Smith J.A. that, at the very least, it was the trial judge’s duty to remind the jury of Dr. Richardson’s opinion that amnesia reflects a degree of extreme drunkenness that seriously impairs and perhaps destroys one’s ability to make appropriate judgments.  The jury would then have, once again, been left to determine the significance of Dr. Richardson’s evidence in  light of the other evidence to which I have referred.

V

[164]                      For all of these reasons, I would allow the appeal, quash the appellant’s conviction, and order a new trial.

APPENDIX

Relevant Statutory Provisions

Criminal Code, R.S.C. 1985, c. C‑46 

33.1 (1) It is not a defence to an offence referred to in subsection (3) that the accused, by reason of self‑induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2).

(2)  For the purposes of this section, a person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in a state of self‑induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person.

(3)  This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by a person with the bodily integrity of another person.

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;

691. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada

(a)  on any question of law on which a judge of the court of appeal dissents;

Appeal dismissed, Binnie, LeBel, Fish and Charron JJ. dissenting.

Solicitors for the appellant:  Wolch, Ogle, Wilson, Hursh & deWit, Calgary.

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