R. v. Wallen, [1990] 1 SCR 827

R. v. Wallen, [1990] 1 S.C.R. 827

 

Darel Grant Wallen       Appellant

 

v.

 

Her Majesty The Queen    Respondent

 

indexed as:  r. v. wallen

 

File No.:  20762.

 

1990:  February 23; 1990:  April 12.

 

Present:  Lamer, La Forest, L'Heureux‑Dubé, Cory and McLachlin JJ.

 

on appeal from the court of appeal for alberta

 

    Criminal law ‑‑ First degree murder ‑‑ Planning and deliberation ‑‑ ‑‑ Intoxication ‑‑ Instructions to jury ‑‑ Trial judge not pointing out to jury that planning and deliberation may be negatived by lesser degree of drunkenness than that required to negative intent to commit murder ‑‑ Whether trial judge's charge sufficient as regards effect of accused's intoxication on planning and deliberation.

 

    Criminal law ‑‑ Jury ‑‑ Deliberation ‑‑ Request by jury to have written explanation of what constitutes first and second degree murder ‑‑ Whether trial judge erred in declining that request.

 

    The appellant was charged with first degree murder.  Part of his defence was that alcohol and drugs had impaired his judgment and control over his emotions and actions.  The trial judge instructed the jury to take the evidence of drunkenness into account with respect to the intent to kill and again in considering whether the murder was planned and deliberate.  He then told the jury as part of his charge that "if a man is very intoxicated, it makes it much less likely that during the period of his intoxication, he could formulate a plan" and that "if he is very intoxicated, it is much less likely that his act is an intentional one".  Shortly after beginning its deliberations, the jury asked the trial judge to provide a written explanation of what constitutes first and second degree murder.  The trial judge refused the request, but added that the jury was at liberty to come back at any time and ask for a further explanation.  The jury convicted the appellant on the charge of first degree murder.  The Court of Appeal, in a majority decision, upheld the conviction.  This appeal raises questions as to the sufficiency of the trial judge's charge and the sufficiency of his response to a question from the jury.

 

    Held (L'Heureux‑Dubé and McLachlin JJ. dissenting):  The appeal should be allowed.

 

    Per Lamer and Cory JJ.:  The trial judge's charge was insufficient as regards the effect of intoxication on planning and deliberation.  While the trial judge made sufficiently clear in his charge that the jury should consider the level of the appellant's impairment due to alcohol and drugs separately as regards intent to kill and planning and deliberation, he failed to instruct them expressly that planning and deliberation might be negatived by drunkenness falling short of incapacity to form the intent to kill.  Such an instruction was essential.  Further, the trial judge's charge, read as a whole, did not explicitly or sufficiently inform the jury of this distinction; the use of the words "very intoxicated" in connection with the effect of drunkenness on planning and deliberation may have left the jury with the mistaken impression that a lesser degree of intoxication than that required to negative the intent to kill could not negative planning and deliberation.

 

    Section 686(1)(b)(iii) of the Criminal Code  has no application in this case.  The trial judge's error bore directly on the crucial issue before the jury.  The Crown did not satisfy the Court that the jury would have necessarily returned a verdict of first degree murder had there not been the error regarding the failure to make clear that planning and deliberation can be negatived by a lesser degree of intoxication than that required to negative the intent to commit murder.

 

    Per La Forest J.:  There is no hard and fast rule that the trial judge must always give explicit instructions clearly distinguishing between the degree of intoxication necessary to negative intent to kill and that necessary to negative planning and deliberation.  The charge must be read as a whole.  In this case, however, the repeated use of the words "very intoxicated" in both contexts may have misled the jury.  The fact that the jury sought to obtain the text of the provisions dealing with first and second degree murder does nothing to allay one's concern about that possibility.

 

    With respect to the jury's request for a written explanation of what constitutes first and second degree murder, the trial judge should in all the circumstances have made further enquiries to determine the precise matter of concern to the jury and clarified any confusion that might have existed regarding the distinction between the two, an issue that went to the heart of the case.

 

    Section 686(1)(b)(iii) of the Criminal Code  has no application in this case.

 

    Per L'Heureux‑Dubé and McLachlin JJ. (dissenting):  The trial judge's charge as a whole makes clear the requirement that the jury direct its attention to the critical question of whether the accused was too intoxicated to be capable of formulating or carrying out a plan to murder.  While the trial judge must instruct the jury to consider intoxication with respect to planning and deliberation separately from intoxication with respect to intent, it is not an absolute rule that he must also expressly instruct the jury that a lesser degree of intoxication may suffice to establish incapacity to formulate or carry out a plan to murder than to negative intent to kill.

 

    The degree of drunkenness required to negative capacity to formulate and carry out a plan is a question of fact for the jury.  In deciding this question, the jury will take into account the complexity of the plan and the degree of intoxication demonstrated by the evidence.  It is evident that the degree of intoxication required to negative capacity to plan and execute a murder may be less than the degree required to negative intent to kill.  While it might be useful to instruct the jury explicitly on this point, failure to do so is insufficient to vitiate the charge.  The matter is one of fact rather than law and one with which the jury is quite capable of dealing, provided it has been properly instructed on the legal elements as well as the facts.  Here, the trial judge's charge, read as a whole, leaves no doubt that the jury were in a position to properly assess the relationship between the appellant's intoxication and his ability to formulate and carry through a plan for murder.  Although it would have been better if the trial judge had not used the phrase "very intoxicated" in discussing the capacity to formulate and carry out such a plan, it could not have misled the jury, given the entire charge on this issue.

 

    The trial judge did not err in declining the jury's request for a written explanation of what constitutes first and second degree murder.  The fact that the jury did not come back and ask for a further explanation, even though the trial judge had invited them to do so, negates the suggestion that they did not understand the difference between the two.  They were at the beginning of their deliberations and may have simply concluded that it would be more convenient for each juror to have a written copy of the instructions.  The trial judge is likely to have a better appreciation than an appellate court of the sense of a jury's questions and what is really being sought.  Where the trial judge adequately responds to what, on a reasonable construction, appears to be the jury's concern, an appellate court should be reluctant to intervene.

 

Cases Cited

 

By Lamer J.

 

    Applied:  R. v. Mitchell, [1964] S.C.R. 471; referred to:  R. v. Kematch and Campeau (1979), 48 C.C.C. (2d) 179; R. v. Knuff (1980), 52 C.C.C. (2d) 523; R. v. Reynolds (1978), 44 C.C.C. (2d) 129; R. v. Howard, [1989] 1 S.C.R. 1337, rev'g on other grounds (1986), 29 C.C.C. (3d) 544; Colpitts v. The Queen, [1965] S.C.R. 739.

 

By McLachlin J. (dissenting)

 

    R. v. Mitchell, [1964] S.C.R. 471; R. v. Howard (1986), 29 C.C.C. (3d) 544;  R. v. Reynolds (1978), 44 C.C.C. (2d) 129.

 

Statutes and Regulations Cited

 

Criminal Code , R.S.C., 1985, c. C‑46 , s. 686(1) (b)(iii).

 

    APPEAL from a judgment of the Alberta Court of Appeal (1988), 84 A.R. 12, dismissing appellant's appeal from his conviction on a charge of first degree murder.  Appeal allowed, L'Heureux‑Dubé and McLachlin JJ. dissenting.

 

    Alexander D. Pringle, for the appellant.

 

    Jack Watson, for the respondent.

 

//Lamer J.//

 

    The reasons of Lamer and Cory JJ. was delivered by

 

    Lamer J. -- I have had the benefit of reading the reasons for judgment prepared by my colleague Justice McLachlin.  While I agree with her summary of the facts and the issues, I do not, with respect, concur with her disposition of this appeal.

 

Analysis

 

    In light of my conclusion as regards the issue of the trial judge's charge on the effect of intoxication on planning and deliberation, I find it unnecessary to deal with the other issues raised by the appellant, namely the trial judge's response to the jury's question and his comments about planning and deliberation that may have occurred at some earlier point when the appellant was sober.

 

    I must state at the outset that generally the trial judge's charge to the jury as a whole, and specifically on the meaning of "planning and deliberation", was without fault.  Indeed, the appellant does not take issue with the trial judge's comments in respect of the meaning of "planning and deliberation".  The main issue in contention is whether he properly and sufficiently charged the jury as regards the potential effect of the appellant's impairment due to alcohol and drugs on planning and deliberation.  This Court in R. v. Mitchell, [1964] S.C.R. 471, addressed the matter of how a trial judge should deal with evidence of intoxication on the issues of intent to kill and planning and deliberation.  In that case Mitchell was convicted of the capital murder of his brother.  There was evidence that on the day of the killing the brothers had been drinking and had argued.  Mitchell obtained a gun from a friend, waited for his brother to come out of his house and then shot and killed him.  The Court of Appeal for British Columbia ordered a new trial.  One of the issues on appeal to this Court was whether the trial judge erred in failing to point out to the jury that deliberation might have been negatived by provocation and drunkenness.

 

    Spence J., speaking for the majority of the Court at pp. 475-76, made clear, first of all, that the effect of drunkenness must be treated separately as it relates to the intent to kill and planning and deliberation:

 

. . . 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 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.

 

See also R. v. Kematch and Campeau (1979), 48 C.C.C. (2d) 179 (Sask. C.A.), at p. 191, and R. v. Knuff (1980), 52 C.C.C. (2d) 523 (Alta. C.A.), at pp. 536-37.  In my view, the trial judge in the case at bar made sufficiently clear in his charge that the jury should consider the level of the appellant's impairment due to alcohol and drugs separately as regards intent to kill and planning and deliberation.  I reproduce that portion of his charge to demonstrate:

 

What I have said to you before applies here as well.  Before, my discussion of the evidence of drunkenness applied to the question of whether the accused had either of the intents which is necessary for the accused to be found guilty of murder.  Now, the same evidence should be considered by you again at this stage if you reach this stage.  That is, if you conclude that there was murder and you're deciding whether it's first degree or second degree murder.

 

    There remains, however, the issue of whether the trial judge correctly instructed the jury on how it should treat the effect of drunkenness on planning and deliberation as distinct from its effect on intent to kill.  In this regard Spence J. in Mitchell, supra, at p. 477, expressly adopted the following statement of Whittaker J.A. in the court below:

 

    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.  [Emphasis added.]

 

The need for a trial judge to explicitly make the point underlined above was affirmed by Martin J.A. in R. v. Reynolds (1978), 44 C.C.C. (2d) 129 (Ont. C.A.), at p. 138:

 

    I am, however, of the view that the learned trial Judge's charge was defective in failing to instruct, expressly, the jury that planning and deliberation might be negatived by drunkenness, falling short of incapacity to form the intent required to constitute murder. . . . [Emphasis added.]

 

This view was reiterated once more by Cory J.A. (as he then was) in R. v. Howard (1986), 29 C.C.C. (3d) 544 (Ont. C.A.), at p. 557:

 

It was therefore necessary to direct the jury only that the consumption of alcohol along with all the other surrounding circumstances was to be taken into account in determining whether or not the accused did in fact plan and deliberate upon the killing of the victim.  It was also necessary for the trial judge to point out that a lesser degree of drunkenness than might be required to negative the intent to kill may negative planning and deliberation.  [Emphasis added.]

 

The Howard case was appealed to this Court on a number of grounds, including the sufficiency of the trial judge's charge on the significance of alcohol consumption in relation to planning and deliberation.  The majority of this Court disposed of the appeal on another ground without reaching the issue of the trial judge's charge: R. v. Howard, [1989] 1 S.C.R. 1337.  L'Heureux-Dubé J., dissenting, did reach this point and adopted the position of Cory J.A. (as he then was).  In this regard my colleague stated at p. 1364 that:

 

In pointing out to the jury that drunkenness falling short of the incapacity to form the intent to kill might negate planning and deliberation, the trial judge satisfied the main requirement defined by this Court in R. v. Mitchell . . . .

 

I cannot, therefore, agree with my colleague McLachlin J. that an instruction that a lesser degree of intoxication may suffice to negative planning and deliberation than to negative the intent to kill is not essential in a judge's charge to the jury.  First degree murder is, in terms of punishment, the most serious offence in the Criminal Code , calling for a mandatory sentence of life imprisonment without eligibility for parole until a person has served twenty-five years of his or her sentence.  It is imperative, having regard for the serious consequences of a finding by the jury that the appellant planned and deliberated on the killing of his wife, that the jury be explicitly and clearly instructed on the distinction between the effect of intoxication on intent to kill as opposed to planning and deliberation.  This position was clearly stated by this Court in Mitchell, supra, and has since been followed by the Court of Appeal for Ontario as well as by my colleague L'Heureux-Dubé J. in her reasons in Howard, supra.

 

    There is no question that in the case at bar the trial judge failed to expressly instruct the jury that planning and deliberation might be negatived by drunkenness falling short of incapacity to form the intent to kill.  Indeed, the majority of the Court of Appeal noted ((1988), 84 A.R. 12, at p. 17) that:

 

The trial judge did, not, in a succinct sentence, expressly instruct "the jury that planning and deliberation might be negatived by drunkenness, falling short of incapacity to form the intent required to constitute murder" (per Martin, J.A., in R. v. Reynolds (1979), 44 C.C.C. (2d) 129, at p. 138).

 

The majority of the Court of Appeal, however, described this failure as not fatal since the trial judge's charge clearly differentiated between the degree of intoxication necessary to negative the specific intent to commit murder and that necessary to have an effect upon the ability to plan and deliberate.  With respect, I cannot agree.  The significant portion of the trial judge's charge on this issue reads as follows:

 

Obviously if a man is very intoxicated, it makes it much less likely that during the period of his intoxication, he could formulate a plan; form a calculated scheme carefully thought out, weighing and considering the nature and consequences of the scheme.  And if he is very intoxicated, it is much less likely that his act is an intentional one because it is much less likely that his act is one that has been carefully thought out.

 

First, it seems that at one point in the passage quoted from, the trial judge equates an "intentional" act with one that is "carefully thought out" or in other words, planned.  Second, the charge on this point seems to be sending mixed messages to the jury.  On the one hand the trial judge indicates that intoxication may make it "much less likely" that the appellant planned and deliberated.  But on the other hand, the trial judge makes this comment in the context of someone that is "very intoxicated".   In my view, with respect, the use of the words "very intoxicated" in connection with the effect of drunkenness on planning and deliberation may have misled the jury into believing that a lesser degree of drunkenness than that required to negative the intent to kill could not negative planning and deliberation.  If this mistaken impression was left with the jury, then it can hardly be said that the trial judge's charge, absent an explicit instruction, clearly distinguished between the degree of intoxication necessary to negative intent to kill and that necessary to negative planning and deliberation.  I agree with Harradence J.A. in dissent, that on the whole the trial judge's charge did not explicitly or sufficiently inform the jury of this distinction.

 

    Therefore, I conclude that the trial judge's charge was deficient in two respects: first, he did not explicitly, as he is required, tell the jury that a lesser degree of drunkenness than is required to negative the intent to commit murder can still negative planning and deliberation, and second, his charge as a whole did not, in any event, make the distinction clear to the jury.  Accordingly, I am of the view that the appellant should succeed on this ground of appeal, and I need not, as a result, pronounce upon the other alleged errors raised by the appellant.

 

    The remaining issue is whether despite the error by the trial judge, the provisions of s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 , can be applied.  The onus is on the Crown to satisfy the Court that the verdict would necessarily have been the same if the error did not occur:  Colpitts v. The Queen, [1965] S.C.R. 739.  The error in question bore directly on the central and crucial issue in the case before the jury, namely whether impairment due to alcohol and drugs affected the ability of the appellant to plan and deliberate on the killing of his wife.  There was conflicting evidence before the jury as to the level of the appellant's intoxication, but at least two witnesses, a Mr. Dumont and a Mr. Hudyma, testified that the appellant was drunk and visibly impaired about an hour before the killing.  There was also uncorroborated testimony from the appellant that he took depressant drugs which could have magnified the effect of the alcohol.  In this context I am not convinced that the jury would have necessarily returned a verdict of first degree murder had there not been the error regarding the failure to make clear that planning and deliberation can be negatived by a lesser degree of intoxication than that required to negative the intent to commit murder.  I would, therefore, allow the appeal and direct that a new trial be held.  As an alternative to a new trial, the appellant asks for a substituted verdict of second degree murder.  In the present case, however, I am unable to conclude that with the proper instructions a verdict of first degree murder would have been unreasonable and could not have been supported by the evidence.

 

    Accordingly, I would allow the appeal, set aside the conviction for first degree murder, and order a new trial.

 

//La Forest J.//

 

    The following are the reasons delivered by

 

    La Forest J. -- I have had the advantage of reading the reasons of my colleagues, Lamer and McLachlin JJ., and would respectfully dispose of this appeal in the manner proposed by Lamer J.  I should, however, say that I agree with McLachlin J. that, while it is certainly the better course to follow, there is no hard and fast rule that the trial judge must always give explicit instructions clearly distinguishing between the degree of intoxication necessary to negative intent to kill and that necessary to negative planning and deliberation.  The charge must be read as a whole.  In the present case, however, the repeated use of the words "very intoxicated" in both contexts may, as Lamer J. holds, have misled the jury.  The fact that the jury sought to obtain the text of the provisions dealing with first and second degree murder does nothing to allay one's concern about that possibility.

 

    As to the issue regarding the question posed by the jury to which I have just alluded, like the dissenting judge, Harradence J.A. in the Court of Appeal, I think, with respect, that the learned trial judge should in all the circumstances have made further enquiries to determine the precise matter of concern to the jury and clarified any confusion that might have existed regarding the distinction between first and second degree murder, an issue that went to the heart of the case.

 

    I agree with Lamer J. that this is not a case for applying the provisions of s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 .

 

//McLachlin J.//

 

    The reasons of L'Heureux-Dubé and McLachlin JJ. were delivered by

 

    McLachlin J. (dissenting) -- This appeal raises questions as to the sufficiency of the trial judge's response to questions from the jury and the sufficiency of his charge in a trial for first degree murder.

 

    The accused was charged with first degree murder of his wife.  It is not disputed that he killed her.  The only question before the jury was whether he was guilty of first degree murder, second degree murder, or manslaughter.

 

    The accused and the deceased were married in 1978.  They had a child.  Before too long the marriage encountered difficulty.  In May 1982 the deceased left the accused with their child and her child from a previous marriage.  She returned, only to leave again with the children in March of 1983.

 

    In April 1982, while still living with the accused, the deceased took a job as secretary with a law firm.  The accused came to believe that her work and the influence of the lawyers in the office, all of whom had been raised in the same area as the deceased and had known her for some time, caused the separation.  The accused apparently believed that his wife was having an affair with one of the lawyers in the firm.

 

    Prior to the actual incident there had been a number of confrontations between the appellant and deceased during the periods of separation.  Some incidents occurred near their respective residences, some at the law office and some over the phone.  Some involved physical force by the appellant.  There was evidence that during some of the confrontations in front of witnesses, the appellant had threatened to kill the deceased. These incidents escalated.   For example, in July 1983, the appellant entered the law office with a friend and started shouting at Ron Lonsdale (one of the lawyers) until he was removed by the R.C.M.P.  The police searched his car and found in the trunk a rifle and a loaded, sawed-off shotgun that had been purchased earlier that year.

 

    On the day of the killing at around 4:20 p.m., the appellant, armed with two guns, entered the law office near closing time.  He encountered two of the lawyers and asked where Lonsdale, one of the lawyers, was.  He ordered the lawyers against the wall and spoke to them before turning towards the deceased, who was at her desk.  The appellant exchanged words with her.  The lawyers testified that the deceased was begging for her life for about a minute.  The appellant was stating that the deceased can't take his child from him, that he wasn't going to allow her to be raised by a "slut", all the while periodically jumping back into the interior office, levelling the gun at the lawyers and telling them that if they tried to use the phones they were dead.   The deceased became hysterical, pleading, "Darel, please don't do this.  What do you want?  What have I done?"   The appellant responded to the effect that "You better plead for your life but it's all over now".  Then he shot her.

 

    After shooting his wife, the appellant shot through the door where one of the lawyers was hiding. The other lawyer bolted through a rear door into the alley and the appellant fired four or five shots after him.  The appellant then fled the scene.

 

    The appellant was arrested shortly after midnight at a bar. He did not resist arrest.

 

    In his defence, the appellant testified that at noon on that day he took at least three Ativan tablets (a minor tranquilizer), went to a tavern in the hotel across the street from the law office, and began reading divorce papers he had received earlier that day.  He had at least three double rum and cokes and some beer.  He remained there until around 3:30 p.m. and then went to a party.  He may have smoked some marijuana while at the party but the evidence is not clear.  He returned to the hotel.  At 4:00 p.m. the appellant phoned the deceased and said he wanted to talk about the access rights to his daughter.  He testified that the deceased said "What makes you think you are Kimberley's father" and slammed down the phone.  The appellant returned to the tavern and there is conflicting testimony as to whether he had another drink.   He then proceeded across the street and entered the law office.  At trial there was conflicting evidence as to whether or not the accused was intoxicated.

 

    A forensic psychiatrist gave evidence that in his opinion the appellant suffered from a condition called delusional jealousy, also referred to as "paranoid jealousy, Othello's syndrome, pathological jealousy, morbid jealousy and psychotic jealousy".  Reports of his wife's infidelity, and the restricted access to his daughter, created reactions which built and intensified with the passing of time.  The psychiatrist also testified that the alcohol and Ativan impaired his judgment and control over his emotions and actions.

 

    The jury convicted on the charge of first degree murder.  The appellant appealed to the Court of Appeal raising numerous grounds. On appeal the majority and dissenting judge agreed with the disposition of all but two grounds with the majority dismissing the appeal and the dissenting judge finding in favour of the accused: (1988), 84 A.R. 12.

 

I.  Response to Jury's Questions

 

    Shortly after beginning its deliberations, the jury put two questions to the judge:  "Could we obtain a written explanation of what constitutes first and second degree murder?" and "Is it possible to get a complete transcript of the testimony of all witnesses?".  The trial judge responded to the first question as follows:

 

    Ladies and gentlemen, the first question which you have caused to be delivered to me is this:  "Could we obtain a written explanation of what constitutes first and second degree murder?" My job is to explain to you what the law is.  I hope that I've done a good job of doing that.  It is not customary for the judge then to deliver a written explanation.  To do that would mean sitting down for a period of time and resuming this trial again next week.  Your deliberations would have to continue meanwhile, and that might take quite some time.  So I've given you an explanation;  one of the two counsel also gave a very clear explanation of the difference between first and second degree murder, and I hope that will be sufficient for you.  You are, of course, at liberty, at any time, to come back and ask for a further explanation.

 

(There is no issue on the second question.)

 

    The parties differ in their characterization of the question.  The appellant says that the question should be regarded generally as a request from the jury for more instruction on the distinction between first and second degree murder, calling for further clarification by the trial judge on this question.  At very least, the appellant submits, the trial judge should have asked the jury if they desired further instructions.  The Crown, on the other hand, says the question meant just what it said, namely that the jury wanted written as opposed to oral instruction on the matter, in which case the trial judge's response was appropriate, given the concession of the appellant that the decision as to whether to give a written answer was within his discretion.

 

    In my view, there is no reason to extend the jury's question beyond what was actually asked for -- a written explanation.  While the trial judges declined that request, he invited the jury to pose further questions if they felt they needed to do so, telling them they could at any time "come back and ask for a further explanation."  The fact that the jury did not come back and ask for a further explanation negates the suggestion of the appellant that they did not understand the distinction between first and second degree murder.  The fact that the jury asked for the explanation in writing does not suggest that they did not understand the distinction which had been put to them.  They were at the beginning of their deliberations and may have simply concluded that it would be more convenient for each juror to have a written copy of the instructions before him.

 

    The trial judge is likely to have a better appreciation than an appellate court of the sense of a jury's questions and what is really being sought and what is required.  Where the trial judge adequately responds to what, on a reasonable construction, appears to be the jury's concern, an appellate court should be slow to say he erred.

 

    The reference to counsel in the judge's answer was also criticized.  I cannot think that anything turned on this, and would reject this submission.

 

II.  Adequacy of the Charge to the Jury

 

    The intoxication of the accused was relevant to two issues before the jury.  First, it was relevant to the question of whether he had the capacity to form the intent to commit murder. If not he could stand convicted only of manslaughter. Second, it was relevant to whether he had the capacity to form and carry through a plan to commit murder required for a conviction for first degree.

 

    The trial judge charged the jury fully and flawlessly with respect to the relationship of inebriation to the question of whether the accused had the necessary intent to support a charge for murder.

 

    He then went on to charge the jury with respect to the distinction between murder in the first degree and murder in the second degree.  He stated:

 

    In considering whether the murder was planned and deliberate, you should consider all the circumstances -- not only the accused's action but also the evidence of his condition; his state of mind as affected by real or imagined insults and by real or imagined provoking actions of the victim; and his consumption of alcohol   . . . .

 

    One of the elements I have just mentioned is the question of drunkenness.  What I have said to you before applies here as well.  Before, my discussion of the evidence of drunkenness applied to the question of whether the accused had either of the intents which is necessary for the accused to be found guilty of murder.  Now, the same evidence should be considered by you again at this stage if you reach this stage.  That is, if you conclude that there was murder and you're deciding whether it's first degree or second degree murder.  In deciding whether the killing was planned and deliberate, you will take into account the evidence that I have summarized and any other evidence that I have missed on the question of the state of intoxication of the accused at the time of the killing.  Obviously, if a man is very intoxicated, it makes it much less likely that during the period of his intoxication, he could formulate a plan; form a calculated scheme carefully thought out, weighing and considering the nature and consequences of the scheme.  And if he is very intoxicated, it is much less likely that his act is an intentional one because it is much less likely that his act is one that has been carefully thought out.  It is more likely that his act is hasty or rash.  Putting it another way, it is less likely that he has taken time to weigh the advantages and disadvantages of his intended action.  You will wish to consider the evidence of drunkenness in that regard.

 

    If you are satisfied that -- if you're satisfied beyond a reasonable doubt that he was not drunk; that he was not intoxicated, then it's an element which will not impede a conclusion that the killing was planned and deliberate.  On the other hand, if you are satisfied that he was very intoxicated, that will form a major impediment to your concluding that the killing was planned and deliberate unless you conclude that at some earlier time when he was sober, he worked out a plan and deliberately decided what he was going to do in the sense in which I have used those words.

 

    Finally, at the end of his charge the trial judge summarized the charge on planning and deliberation as follows:

 

. . . in deciding this question, you will take into account all the circumstances including his drunkenness; his delusional jealousy and its effect upon his mind as testified to by Dr. Brooks; and the events that preceded that day as well as the events of that day.

 

    The appellant says this charge was deficient because it failed to make a direct comparison between the effect of intoxication on the issue of intent and its effect on the issue of capacity to form and carry out the plan required for a conviction of first degree murder.

 

    The leading decision on point is R. v. Mitchell, [1964] S.C.R. 471, where this Court held that the issue of drunkenness when considering intent to kill should be treated differently when considering planning and deliberation.  Spence J. stated at pp. 475-76:

 

. . . 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 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.

 

    Spence J. went on at p. 477 to adopt the following statement of Whittaker J.A. from the court below:

 

    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.

 

    Mitchell makes it clear that the judge must instruct the jury to consider the issue of intoxication separately when considering planning and deliberation.  The dispute in this case arises from the fact that the last sentence in the quotation has been relied on in several courts as establishing a rule that, in addition to instructing the jury that it must consider intoxication with respect to planning and deliberation separately from intoxication with respect to intent, the judge must in all cases instruct the jury that a lesser degree of drunkenness may negative planning and deliberation: see R. v. Howard (1986), 29 C.C.C. (3d) 544 (Ont. C.A.), at p. 557; R. v. Reynolds (1978), 44 C.C.C. (2d) 129 (Ont. C.A.), at p. 138.

 

    I do not think that the language of Mitchell should be taken as laying down as an absolute rule that a judge must expressly instruct the jury that a lesser degree of intoxication may suffice to establish incapacity to formulate or carry out a plan to murder than to negative intent to kill.  Such an instruction is certainly not wrong, and indeed may be helpful.  But I cannot conclude that its omission alone suffices to vitiate a charge which, as a whole, makes clear the requirement that the jury direct its attention to the critical question of whether the accused was too intoxicated to be capable of formulating or carrying out a plan to murder.

 

    The judge was obliged to instruct the jury on the legal requirements for first degree murder.  He was required to explain to the jury what is required for a finding that the murder was planned and deliberate.  He was obliged to tell them that in determining whether those requirements were met they should consider the accused's intoxication, and that this consideration is separate and distinct from consideration of his intoxication with respect to the capacity to form an intent to murder.  Those are the essential legal instructions.  The degree of drunkenness required to negative capacity to formulate and carry out a plan is a question of fact for the jury.  In deciding this question the jury will take into account the complexity of the plan and the degree of intoxication demonstrated by the evidence.  It is evident to anyone who directs his mind to the matter that the degree of intoxication required to negative capacity to plan and execute a murder may be less than the degree required to negative intent to kill.  While it might be useful to tell the jury this expressly, failure to do so is insufficient to vitiate the charge, the matter being one of fact rather than law and one with which the jury is quite capable of dealing, provided it has been properly instructed on the legal elements I have mentioned as well as the facts.

 

    The appellant also criticises some of the wording used by the judge in the passage quoted.  I share the view that it would have been better if the trial judge had not used the phrase "very intoxicated" in discussing the capacity to formulate and carry out a plan to murder.  On the other hand, it is probably true that while the degree of intoxication necessary to negate the capacity to plan and act on a plan is less than that required to negate intention to kill, in both cases the degree required is relatively high.  In any event, the phrase was not used in the sense of a legal requirement, but more by way of example.  In these circumstances, and considering the phrase in the context of the entire charge on this issue, I cannot conclude that it was capable of having misled the jury.

 

    I conclude that the trial judge's charge, read as a whole, leaves no doubt but that the jury were given the essential instructions on the law and on the facts and that they were in a position to properly assess the relationship between the appellant's intoxication and his ability to formulate and carry through a plan for murder.

 

Conclusion

 

    I would dismiss the appeal.

 

    Appeal allowed, L'Heureux‑Dubé and McLachlin JJ. dissenting.

 

    Solicitor for the appellant:  Alexander D. Pringle, Edmonton.

 

    Solicitor for the respondent:  The Attorney General for Alberta, Edmonton.