The Queen v. Mitchell, [1964] SCR 471

Supreme Court of Canada

The Queen v. Mitchell, [1964] S.C.R. 471

Date: 1964-05-11

Her Majesty The Queen Appellant;

and

David Mitchell Respondent.

1964: February 19, 20; 1964: May 11.

Present: TASCHEREAU C.J., and Cartwright, Fauteux, Martland, Ritchie, Hall and Spence JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Capital murder—Deliberate and planned—Instructions to jury—Whether deliberation negatived by provocation and drunkenness—Whether necessary to charge jury in accordance with Hodge's case on issue of planning and deliberation—Criminal Code, 1953-54 (Can.), c. 51, ss. 201, 202A(2)(a), 203.

The appellant was convicted of capital murder of his brother. There was evidence that on the day in question the brothers had been drinking and had quarrelled over a girl. The appellant obtained a gun from a friend, waited sometime for his brother to come out of the house and shot and killed him. The Court of Appeal having directed a new trial, the Crown was granted leave to appeal to this Court on the questions (1) as to whether the trial judge erred in failing to point out to the jury that deliberation might have been negatived by provocation and drunkenness; and (2) as to whether the jury should have been instructed respecting the rule in Hodge's case.

Held: The appeal should be dismissed.

Per Taschereau C.J. and Fauteux, Martland, Ritchie, Hall and Spence JJ.: The charge of the trial judge was defective in the failure to bring the questions of provocation and drunkenness to the attention of the jury upon the issue of planning and deliberation. In determining whether the accused committed the crime of capital murder, the jury

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should have available and should be directed to consider all the circumstances including not only the evidence of the accused actions but of his condition, his state of mind as affected by either real or even imagined insults and provoking actions of the victim and by the accused consumption of alcohol. This is a finding of fact. The jury should have been instructed upon provocation and drunkenness when the trial judge was dealing with murder, whether capital or non-capital, under s. 201 of the Code. Then, with clear indication that he was passing on to the other and important matter of the additional ingredient needed to establish capital murder, the trial judge should have brought the jury's attention to all relevant evidence to determine whether the murder was planned and deliberate. Such a procedure is necessary to illustrate to the jury the absolute necessity of considering the evidence firstly upon the issue of intent and the ameliorating provision as to provocation and then again, only if they find against the accused on the first issue, upon the issue of planning and deliberation. It could not be said, despite other evidence pointing strongly to the conclusion that the murder was planned and deliberate, that the jury might not at least have found a reasonable doubt that the accused might have acted in a frenzy and in such a highly emotional state influenced by intoxication so that it would not be planned and deliberate on his part.

Even though the evidence in respect of the issue of planning and deliberation was circumstantial, the trial judge was not required to instruct the jury in accordance with the rule in Hodge's case. In that case the direction was concerned only with the identification of the accused as being the person who had committed the crime. The rule is concerned with evidence as to the commission of an act. These instructions did not apply and were never intended to apply to the issue here. The task of a jury which is required to consider whether a murder is capital or not, is entirely different. Before it is called upon to determine the issue of planning and deliberation, it must already have reached the conclusion, beyond a reasonable doubt, that the accused has committed murder. It is then called upon to decide whether the murder was planned and deliberate and not whether the accused committed the act. It must consider the whole of the evidence in relation to the issue of planning and deliberation. The charge to be given by the judge to the jury with respect to this issue is that it must consider all the evidence before it, aided by his instruction as to what evidence is indicative of planning and deliberation and what indicates the contrary, including circumstances and conditions affecting the capacity and ability to plan and deliberate. Having weighed the evidence, the jury can only reach a verdict of capital murder if satisfied, beyond a reasonable doubt, that the murder was planned and deliberate.

Per Cartwright J.: The jury should have been instructed on the issue of planning and deliberation in accordance with the rule in Hodge's case. Having reached the conclusion that the accused was guilty of murder, the jury was then called upon to inquire whether the murder was planned and deliberate. There was ample evidence to support findings by the jury that the murder was planned and deliberate; but all of this evidence was circumstantial. Whether a murder is planned and whether it is deliberate are both questions of fact which involve an inquiry into the state of mind of the accused at the relevant time. The key word in the rule in Hodge's case is "rational". The jury could not find a verdict of capital murder unless convinced beyond a reasonable doubt that the only rational conclusion from the facts established by

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the whole of the evidence was that the killing was planned and deliberate.

APPEAL from a judgment of the Court of Appeal for British Columbia[1], directing a new trial on a charge of capital murder. Appeal dismissed.

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

John E. Spencer, for the respondent.

The judgment of Taschereau C.J. and Fauteux, Martland, Ritchie, Hall and Spence JJ. was delivered by

SPENCE J.:—This is an appeal by the Crown from a unanimous judgment of the Court of Appeal of British Columbia[2] pronounced on November 7, 1963, allowing an appeal from the conviction by the Honourable Mr. Justice MacLean on September 6, 1963, upon the findings of a jury. The accused was convicted of capital murder contra the Criminal Code, s. 202A(2) (a). The Court of Appeal of British Columbia directed a new trial.

The appeal was by leave granted by this Court on December 9, 1963, upon the following questions:

(a) Did the Court of Appeal for British Columbia err in holding that the Learned Trial Judge should have told the jury that even if they rejected provocation as a defence to murder generally it was open to them to consider provocation as negativing deliberation and as a defence reducing capital murder to non-capital murder?

(b) Did the Court of Appeal for British Columbia err in holding that the Learned Trial Judge should have told the jury that they might consider evidence of the Respondent's drinking as showing that his passions had been inflamed by alcohol and therefore had a bearing on the important element of deliberation and as a defence reducing capital murder to non-capital murder and in failing to point out to the jury that deliberation might be negatived by drunkenness falling short of incapacity to form the intent to kill?

(c) Did the Court of Appeal for British Columbia err in holding that the Learned Trial Judge should have charged the jury on the rules relating to circumstantial evidence as set out in Hodge's case (1883) 168 E.R. 1186?

Whittaker J.A., with whom Davey and Sheppard JJ.A. agreed, gave reasons for allowing the appeal from the conviction upon the basis that the trial judge in his charge failed to direct the jury properly upon the issue of whether the murder had been "planned and deliberate" as those

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words are used in s. 202A(2) (a). Tysoe J.A. also delivered reasons for judgment in which he came to the same conclusion as Whittaker J.A. upon that issue but added that the charge of the learned trial judge was defective in that it did not contain the appropriate instruction upon circumstantial evidence as outlined in Hodge's case[3]. Sheppard J.A. disagreed with the latter conclusion and Whittaker J.A. did not deem it necessary to express any view thereon.

It must be realized that the learned trial judge did not have the advantage of the reasons for judgment of this Court in More v. The Queen[4], only delivered on July 23, 1963, and first reported in October 1963, when he charged the jury at this trial on September 6,1963. In the More case, this Court dealt with the circumstance that the evidence of two doctors as to the mental condition of the accused, which stopped far short of diagnosing him as insane within the meaning of s. 16(2) of the Criminal Code, was to all intent and purpose removed from the consideration of the jury by the trial judge in his charge. Cartwright J. said at p. 534:

The evidence of the two doctors is not relied on by the defence as raising the question whether the accused was legally sane. Its importance is that it would assist the jury in deciding the question whether the accused's action in pulling the trigger, which so far as this branch of the matter is concerned was admittedly the intentional act of a sane man, was also his deliberate act. The question is one of fact and its solution involves an inquiry as to the thinking of the accused at the moment of acting. If the jury accepted the evidence of the doctors it, in conjunction with the accused's own evidence, might well cause them to regard it as more probable that the accused's final act was prompted by sudden impulse rather than by consideration. On this question the accused was entitled to have the verdict of a properly instructed jury.

In a judgment of Ritchie J. in Regina v. McMartin[5] (delivered at the same time as are the reasons of the Court in this appeal), he said at p. 13:

In my opinion, without the evidence of the appellant's mental history and condition, it cannot be said that all the circumstances bearing on the question of whether the murder was planned and deliberate have been passed upon by a jury, and I would accordingly allow this appeal, quash the conviction and direct that there be a new trial.

I am of the opinion that the judgments in these two cases have as their ratio decidendi the principle that in determining whether the accused committed the crime of capital

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murder in that it was "planned and deliberate on the part of such person" the jury should have available and should be directed to consider all the circumstances including not only the evidence of the accused's actions but of his condition, his state of mind as affected by either real or even imagined insults and provoking actions of the victim and by the accused's consumption of alcohol. There is no doubt this is a finding of fact. The questions which the jury must decide and decide beyond reasonable doubt before they may convict the accused of capital murder under the relevant subsection, section 202A(2) (a), are: Was the murder which he committed planned and was it deliberate? I separate the jury's problem in that form because I am in complete agreement with Whittaker J.A. when he said: "It is possible to imagine a murder to some degree planned and yet not deliberate." Therefore, to determine whether the charge to the jury delivered by the learned trial judge was adequate in submitting to them the issue of planning and deliberation the charge must be examined with some care.

It should be stated at once that the charge so far as it dealt with provocation under s. 203 and with drunkenness as it affects murder under the doctrine in Director of Public Prosecutions v. Beard[6] was, with respect, excellent. That, however, I believe, is not sufficient. The jury should have been instructed upon those topics when the trial judge was dealing with murder, whether capital or non-capital, under s. 201. Then, with clear indication that he was passing on to the other and important matter of the additional ingredient needed to establish capital murder under s. 202A(2) (a), the learned trial judge should have brought the jury's attention to all relevant evidence to determine whether the murder was planned and deliberate on the part of the accused, and therefore, capital murder. I am the first to agree that such a charge is difficult, onerous and may be, unless great care is exercised, somewhat repetitive, and no attempt should be made to force charges to the jury into an inflexible mould, yet I believe some such procedure is necessary to illustrate to the jury the absolute necessity of considering the evidence firstly upon the issue of intent and the ameliorating provision as to provocation and then again, only if they find against the accused on the first issue, upon

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the issue of planning and deliberation. I adopt upon this latter issue the statement of Tysoe J.A. in his reasons:

Our concern is with quite a different matter, namely, the effect of the drinking of the appellant and of the deceased's provocative conduct on the mind and mental processes of the appellant in his then condition in relation to the issue of planning and deliberation on his part.

It might be preferable, in discussing insults and the accused's state of mind as they affected deliberation, to avoid the use of the word "provocation" as that word would, in the mind of the jury, be associated with the exact technical sense in which the word is utilized in s. 203. Such circumstances have a broader and less exact scope in the determination of whether the murder was deliberate.

It is true that the learned trial judge in the charge, after defining "planned" and "deliberate", said:

Now these two words must be read together, the meaning of one colours the meaning of the other, planned and deliberate. The circumstances must be such that there was time for the conception of a plan to deliberately kill, and it is for you to say whether in the circumstances of the case there was such time.

Planned and deliberate conceives a killing not done under the stress of sudden passion or sudden emotion. Therefore before the accused can be found guilty of capital murder the Crown must not only prove that the accused is guilty of murder, as I have defined and explained it to you already, but must further prove beyond a reasonable doubt that the murder was planned and deliberate on his part.

And shortly thereafter in reciting the various actions of the accused which the jury could consider in determining whether the murder were planned and deliberate, he said:

Now there was an argument between Harvey and the accused in the kitchen with regard to Corinne.

I am of the opinion that this reference to the conduct of the victim upon the issue of whether the murder was deliberate on the part of the accused is too slight under the circumstances and I subscribe to the opinion of Whittaker J.A. when he said:

The jury were not told that even if they rejected provocation as a defence to murder generally, it was open to them to consider provocation as negativing deliberation and as a defence reducing capital murder to non-capital. I think this should have been put to them divorced from the somewhat complicated provisions of the Code which deal with provocation reducing murder to manslaughter.

The learned trial judge, as I have said, adequately instructed the jury on the issue of drunkenness as it affected

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the question of intent under s. 201 but again I am in agreement with Whittaker J.A. when he said:

The learned Judge was, of course, dealing with drunkenness as a defence to murder generally, but it was not anywhere suggested in the charge that the jury might consider the evidence of drink as showing that appellant's passions had been inflamed by alcohol and, therefore, having a bearing on the important element of deliberation and as a defence reducing capital murder to non-capital. Nor was it pointed out that deliberation might be negatived by drunkenness falling short of incapacity to form the intent to kill, if the jury thought such a finding supported by the evidence.

I have, therefore, concluded that the charge of the learned trial judge was defective in the failure to bring these elements to the attention of the jury upon the issue of planning and deliberation and I cannot say, despite other evidence pointing strongly to the conclusion that the murder was planned and deliberate, that the jury might not at least have found a reasonable doubt that the accused might have acted in a frenzy and in such a highly emotional state influenced by intoxication so that it would not be planned and deliberate on his part. I therefore would answer both questions (a) and (b) in the order granting leave to appeal in the negative.

In the Court below, three of the five judges considered the question as to whether, in respect of the issue of planning and deliberation, the jury should have been charged in accordance with the rule in Hodge's case[7]. Tysoe J.A., with whom Bird J.A. concurred, was of the opinion that, since the evidence on this issue was circumstantial, the jury should have been so charged. Sheppard J.A. took the view that the evidence in respect of the issue was direct, and it was, therefore, unnecessary so to charge the jury. No opinion was expressed by the other two members of the Court.

The issue is an important one. Planning and deliberation involve the exercise of mental processes. Because of that, in almost every case where a jury is required to reach a conclusion as to whether or not a murder was planned and deliberate on the part of the accused, it must reach a conclusion on the basis of evidence which is circumstantial. Does the fact that evidence is circumstantial necessarily require that an instruction be given to the jury in accordance with that which was given in Hodge's case?

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To answer this question it is desirable to recall just what were the circumstances of Hodge's case. The report states that the prisoner was charged with murder, the case was one of circumstantial evidence altogether, and contained no one fact which, taken alone, amounted to a presumption of guilt.

Baron Alderson told the jury that the case was made up of circumstances entirely; and that, before they could find the prisoner guilty, they must be satisfied, "not only that those circumstances were consistent with his having committed the act, but they must also be satisfied that the facts were such as to be inconsistent with any other rational conclusion than that the prisoner was the guilty person".

It is quite clear that this direction was concerned only with the identification of the accused as being the person who had committed the crime. A murder had been committed. There was some circumstantial evidence which implicated the accused. One of the tasks of the jury was to decide whether the accused was the man who had perpetrated the crime. The direction given by Baron Alderson was to instruct the jury as to how far the evidence must go in order to warrant a decision that the accused was the person who had "committed the act".

The rule in Hodge's case was stated in the same way, in this Court, by Chief Justice Duff in Comba v. The King[8], and it has been referred to in several other decisions of this Court. By its own terms, however, the rule is concerned with evidence as to the commission of an act. In my opinion, that limitation is a proper one. A criminal charge is laid as a result of the commission of a certain act or certain acts. If the evidence against the accused is circumstantial in character, then a jury should only find him guilty in respect of those acts if consistent with his having committed them and inconsistent with any other rational conclusion than that he did.

The task of a jury which is required to consider whether a murder is capital or not, is entirely different. Before it is ever called upon to determine the issue of planning and deliberation it must already have reached the conclusion, beyond a reasonable doubt, that the accused has committed murder. What it is now called upon to decide is not whether the accused committed the act, but whether the murder, of

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which he is guilty, was planned and deliberate on his part. The pattern of evidence which it must now consider is not a series of facts, which, in order to establish guilt, must lead to a single conclusion. The jury is now concerned with the mental processes of a person who has committed a crime. In relation to that crime it has to consider his actions, his conduct, his statements, and his capacity and ability to plan and deliberate. It must consider the whole of the evidence in relation to the issue of planning and deliberation. In nearly every case some of this evidence may indicate planning and deliberation and some may indicate the contrary. The jury must weigh all of this evidence and arrive at a conclusion.

With respect to this issue, in my opinion, the charge to be given by the judge to the jury is that it must consider all of the evidence before it, aided by his instruction as to that evidence which is indicative of planning and deliberation and that, including circumstances and conditions affecting the capacity and ability to plan and deliberate, which indicates the contrary, and that, having weighed the evidence, it can only reach a verdict of capital murder if satisfied, beyond a reasonable doubt, that the murder committed by the accused was planned and also was deliberate on his part.

This does not, in the slightest degree, reduce the onus of proof which rests upon the Crown in criminal cases and does not substitute any other rule. The direction in Hodge's case did not add to or subtract from the requirement that proof of guilt in a criminal case must be beyond a reasonable doubt. It provided a formula to assist in applying the accepted standard of proof in relation to the first only of the two essential elements in a crime; i.e., the commission of the act as distinct from the intent which accompanied that act. The first element, assuming every circumstance could be established by evidence, would be capable of proof to a demonstration. The latter element, save perhaps out of the mouth of the accused himself, could never be so proved. The circumstances which establish the former not only can be, but must be consistent with each other, as otherwise a reasonable doubt on the issue arises. The circumstances which establish the latter, being evidence personal to one individual, will seldom, if ever, be wholly consistent with only one conclusion as to his mental state and yet the weight of evidence on the issue may be such as to satisfy the jury,

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beyond a reasonable doubt, as to the guilty intent of the accused. The instruction of Baron Alderson in Hodge's case does not apply and was never intended to apply to an issue of this kind.

For the reasons which I have outlined, I am of the opinion that Tysoe J.A., with whom Bird J.A. agreed, was in error in the view which he expressed in his reasons and I would answer question (c) in the affirmative. However, being of the opinion that questions (a) and (b) should be answered in the negative, I would dismiss the appeal.

CARTWRIGHT J.:—The questions on which leave to appeal was granted are set out in the reasons of my brother Spence, which I have had the advantage of reading.

I agree with the view which he expresses as to the manner in which it will generally be advisable for a trial judge to instruct the jury in regard to the proper way in which to deal with the question whether a murder, which they find was committed by the accused, was "planned and deliberate".

The appeal can succeed only if we give an affirmative answer to all three of the questions on which leave to appeal has been granted.

I do not find it necessary to express a final opinion on questions (a) and (b). The defects in the charge which are said to require a negative answer to these questions are the alleged failure of the learned trial judge to call to the attention of the jury the possible effect of the evidence as to drunkenness and provocation on the questions, (i) whether the accused was capable of planning and of deliberate action, (ii) whether he did in fact plan, and (iii) whether his action in firing the fatal shot was in fact a deliberate one.

It is true that the judge did not direct the jury specifically in relation to the possible effect of the evidence as to drunkenness and provocation on the answers they should make to these questions although he had dealt adequately with that evidence in discussing the differences between murder and manslaughter. On the other hand he directed the jury clearly on the meaning of the words "planned and deliberate" and emphasized the onus lying on the Crown to prove both planning and deliberate action beyond a reasonable doubt.

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The reasons of the members of this Court in More v. The Queen[9], referred to in the reasons of my brother Spence, must be read in the light of the peculiar facts of that particular case, in which the accused had given evidence to the effect that over the course of some days he had contemplated taking the lives of his wife and himself and had made preparations to do this, but that, at the last moment, while still in a state of indecision and distress, he had fired the fatal shot without conscious volition and without realizing that he was doing so.

I incline to the view that the absence of any evidence similar to that given in More v. The Queen differentiates that case from the case at bar; but, as already indicated, I do not find it necessary to reach a final conclusion on questions (a) and (b). The reason for this is that, in my opinion, question (c) should be answered in the negative.

In considering question (c), it is to be assumed that the jury have reached the conclusion that the accused caused the death of his victim, that he intended to cause his death, that the circumstances were not such as to reduce the offence to manslaughter and that, consequently, the accused is guilty of murder. It is only when the jury have reached this conclusion that it becomes necessary for them to proceed to the further inquiry whether the murder was planned and deliberate on the part of the accused.

As there is to be a new trial in the case at bar it is desirable to say no more about the evidence than is necessary to make clear the reasons for decision. It is, I think, sufficient to say in this case that there was ample evidence to support findings by the jury that the murder was planned on the part of the accused and that his act in firing the fatal shot was deliberate, that is to say was considered rather than impulsive; but it is clear that all of this evidence was circumstantial.

It is equally clear that the questions whether the murder was planned and whether it was the deliberate act of the accused are both questions of fact, the solution of which involves an inquiry into the state of mind of the accused at the relevant time.

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In Edgington v. Fitzmaurice[10], Bowen L.J. said:

There must be a misstatement of an existing fact: but the state of a man's mind is as much a fact as the state of his digestion. It is true that it is very difficult to prove what the state of a man's mind at a particular time is, but if it can be ascertained it is as much a fact as anything else.

In Clayton v. Ramsden[11], Lord Wright said:

States of mind are capable of proof like other matters of fact.

In Lizotte v. The Queen[12], there is the following passage in the unanimous judgment of the Court:

Hodge's case was a case where all the evidence against the accused was circumstantial. It is argued that the direction there prescribed is not necessary in a case where there is direct evidence against the accused as well as circumstantial evidence. However that may be, it is my opinion that where the proof of any essential ingredient of the offence charged depends upon circumstantial evidence it is necessary that the direction be given.

There is no doubt that an affirmative finding of fact that the murder was planned and deliberate on the part of the accused is essential to a conviction of capital murder where, as in this case, the charge is based on s. 202A(2) (a) of the Criminal Code.

It is argued, however, that although all the evidence put forward to support that essential finding of fact is circumstantial it is unnecessary and indeed, if I have understood the argument correctly, undesirable for the trial judge to instruct the jury on this issue in accordance with the rule in Hodge's case[13].

The substance of that rule is that, in a criminal case, where proof of any issue of fact essential to the case of the Crown consists of circumstantial evidence it is the duty of the judge to instruct the jury that before they can find the accused guilty they must be satisfied not only that the circumstances are consistent with an affirmative finding on the issue so sought to be proved but that the circumstances are inconsistent with any other rational conclusion. In my opinion this rule is one not merely of prudent practice but of positive law.

I do not pause to examine the long line of cases in which the rule is formulated because, apart altogether from those authorities, the rule appears to me to follow inevitably as

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a corollary of the rule that the jury must not convict unless they are satisfied beyond a reasonable doubt of the guilt of the accused.

In the case at bar, for example, no one would question the assertion that the jury must not convict the accused of capital murder unless satisfied beyond a reasonable doubt that his act in firing the fatal shot was deliberate in the sense of being considered rather than impulsive. Suppose that the jury had returned a special verdict in the following words:—"We are all satisfied that the prisoner is guilty of murder; as to whether he is guilty of capital murder we are all satisfied that the circumstances which we find proved are consistent with the view that the prisoner's act in firing was deliberate and that it is highly probable that it was deliberate but we are all also of opinion that those circumstances are not rationally inconsistent with the view that his act was impulsive and not deliberate". I think it clear that on such a verdict the Court could record a conviction of murder only and not a conviction of capital murder.

The key word in the rule in Hodge's case is "rational". How, it may be asked, can the proof of circumstances which are rationally consistent with the innocence of the accused establish his guilt beyond reasonable doubt? How can the proof of circumstances rationally consistent with the act of the accused having been impulsive rather than considered establish beyond reasonable doubt that his act was deliberate?

In the case of a charge of capital murder based on s. 202A(2) (a) of the Criminal Code the Crown is called upon, as a condition precedent to the finding of a verdict of guilty, to prove a matter of fact which from its nature will frequently be susceptible of proof only by circumstantial evidence and which will often, to use the words of Bowen L.J., be "very difficult to prove". But the consideration that proof of a matter of fact which Parliament has seen fit to require will often be difficult does not permit the Court to modify the long established rules as to the standard of proof in criminal cases and to substitute the rule applicable in civil cases that issues may be decided upon the balance of probabilities.

In regard to question (c), I am in substantial agreement with the reasons of Tysoe J.A.

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For the above reasons I would answer question (c) on which leave to appeal was granted in the negative and would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: G. L. Murray, Vancouver.

Solicitor for the respondent: J. Spencer, Vancouver.