Mulligan v. R., [1977] 1 SCR 612

Supreme Court of Canada

Mulligan v. R., [1977] 1 S.C.R. 612

Date: 1976-04-01

William Eric Mulligan (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1976: January 28; 1976: April 1.

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

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Non-capital murder—Proof of “mens rea”—Defences of insanity, provocation and drunkenness—Mental state of accused—Charge to jury—Relevancy of mental condition to defence of drunkenness—Criminal Code, s. 212(a).

Appellant was charged with the murder of his wife. Throughout the trial much evidence was given by crown witnesses as to appellant’s consumption of alcohol and, until five months prior to the homicide, of “speed”. Appellant did not give evidence on his own behalf. The only witness called by the defence was a psychiatrist who testified that the appellant was in a dissociated state of reaction at the time of the stabbing. The psychiatrist attributed this condition to a reaction resulting from a threat by appellant’s wife, the victim, to abort herself; he also stated that alcohol had been a factor, but not the major factor. It was the opinion of the witness that appellant was unable to appreciate the nature and consequence of his actions and that such dissociative state constituted a disease of the mind. The trial judge in his charge made a detailed review of the evidence given by the psychiatrist and then proceeded to deal separately with each of the specific defences but did not relate the evidence of the dissociative state specifically to the issue of drunkenness. Appellant was convicted of non-capital murder and his appeal unanimously dismissed by the Court of Appeal.

Held (Laskin C.J. and Spence and Dickson JJ., dissenting): The appeal should be dismissed.

Per Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.: The trial judge made it clear that only in the event the jury decided appellant had not proved the defence of insanity would they need to go on to consider the defence of drunkenness, i.e. that drunkenness would only require consideration if the psychiatrist’s thesis of dissociative reaction was rejected. If that thesis were

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accepted by the jury the defence of insanity would have been established. The case was not one in which, because of a pre-existing condition, appellant was more likely to become incapable as a result of consuming alcohol. Had that been the case the evidence would have had significance. There was, in the circumstances, no error of law on the part of the trial judge.

Per Laskin C.J. and Spence and Dickson JJ., dissenting: The task of the jury in reference to the defence of drunkenness was to determine whether appellant was able to and did form the intent of killing the deceased or of administering to her such bodily harm as he knew was likely to cause her death. To determine this the jury had to consider all of the relevant evidence which included not only evidence as to the quantity of alcohol consumed prior to the deed and its observed effect but also the psychiatric evidence as to his personality, external stress, and the effect of alcohol on such a person under such stress. Because of the judge’s charge, the jury might well have come to the conclusion that they should arrive at their decision by reference to only part of that evidence and exclude other evidence.

Per Dickson J., dissenting: In such a serious charge as that of non-capital murder, the establishment of mens rea is a pre-requisite to ascribing guilt. Section 212 of the Code makes specific provision for this in the use of the words “means to clause his death”. The intention of the accused is central to the determination of the charge. When deciding whether an accused can rely on the defence of drunkenness to negative capacity to form the intent to kill, it is necessary to consider the effect of the alcohol alleged to have been consumed, on the particular accused, at the particular time and in his then mental state. A rigid categorization of defences keeping mental evidence of insanity entirely separate from evidence of drunkenness is not only unrealistic but a departure from all that the concept of mens rea stands for. It was essential to relate the evidence of drunkenness to the evidence of the mental state of the accused. The jury was confused as evidenced by a request for a recharge on provocation, insanity and intent. Although not easy matters to explain to a jury, the attempt must be made to explain all factors bearing on capacity and intent and to consider them jointly and severally as part of an overall picture.

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APPEAL from a judgment of the Court of Appeal for Ontario[1] dismissing an appeal from a conviction for non-capital murder.

M.A. Wadsworth, for the appellant.

C. Scullion, for the respondent.

The judgment of Laskin C.J. and Spence J., in which Dickson J. also concurred, was delivered by

SPENCE J. (dissenting)—This is an appeal from the judgment of the Court of Appeal for Ontario pronounced on April 25, 1974. By that judgment, the said Court of Appeal dismissed an appeal from the conviction of the appellant by a jury in a trial presided over by Mr. Justice O’Driscoll, the conviction having been pronounced on May 16, 1973.

Leave to appeal to this Court was granted upon the following question of law:

Did the Court of Appeal err in law in failing to hold that the trial Judge erred in law in failing to put to the jury on the issue of drunkenness the medical evidence as to the accused’s dissociative state of mind as having a bearing on the issue of intent arising out of the defence of drunkenness?

The judgment of the Court of Appeal for Ontario has been reported in (1974), 18 C.C.C. (2d) 270, and Martin J.A. in giving the unanimous judgment of the Court made a very considerable reference to the facts and to the grounds of appeal before that Court so that it will be necessary to add in these reasons but little reference to the evidence.

The issue which concerned this Court was the alleged failure of the learned trial judge to put to the jury on the issue of drunkenness the medical evidence as to the accused’s dissociative state of mind as having a bearing on the issue of intent arising out of the defence of drunkenness.

Throughout the trial, there was a very considerable body of evidence given by many witnesses as to the accused’s consumption of alcohol and also his consumption, until a date some five months

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prior to the homicide, of the drug known as “speed”. There was a well evidence given by lay witnesses, the associates of the accused, during the evening in question and also police officers as to the accused’s over wrought state following the homicide and what was described, both in questions and in answers during the evidence, as his “distraught condition”. The only witness called for the defence was a Dr. Pieter Ormonde Gordeon Butler, an expert psychiatrist whose qualifications were proved to the Court and to whose expertise no objection was made by the Crown.

There were three defences urged by counsel for the defence. Firstly, insanity; secondly, the defence known as drunkenness; and thirdly, the defence known as provocation.

It was quite evident upon reading the examination-in-chief of Dr. Butler that the purpose of adducing his evidence was to support the defence of insanity and Dr. Butler gave evidence expressing strongly the opinion that the appellant, at the moment the offence was committed, suffered from a dissociative state. Dr. Butler based that opinion upon an interview lasting one and a half hours which he had with the accused on May 3, 1973, which was almost six months after the commission of the offence, on the evidence which was outlined to him by counsel for both the defence and the Crown, on evidence which he heard during the trial, and, as he said, upon his expert knowledge in psychiatry.

The jury, by its verdict of guilty as charged, certainly rejected the defence of insanity and no issue is taken by the defence as to the judge’s charge on either the defence of insanity or the defence of provocation, so that those two defences need no further consideration at this time.

The learned trial judge gave a long, detailed and in nearly every respect a most meticulously correct charge to the jury. That charge, after commencing with the usual formal parts and the submission to the jury of the indictment, continued with a very lengthy recital of the evidence witness by witness which occupied thirty-four printed pages in the record and which included in detail a recital of the

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evidence of associates of the appellant and of the police officers as to his drinking, as to his personality, as to his apparent over-wrought or disturbed condition, and also detailed reference to the evidence of Dr. Butler. This latter reference, as one would expect in view of the examination-in-chief of Dr. Butler by defence counsel, seems to be very largely concerned with the expert witness’ opinion as to the sanity of the appellant but it did include a reference to Dr. Butler’s opinion that a drug user would be more susceptible to the effects of alcohol than another person.

The learned trial judge then turned to the issue of intent, and I quote a page of his charge upon that topic:

Let us go back. Has the Crown proved to you beyond a reasonable doubt that the accused caused the death of his wife by means of an unlawful act? That is stabbing her to death with exhibit 28A and B. I would not think there would be much doubt on that. That is for you to say. Has the Crown proved to you beyond a reasonable doubt that the accused meant to cause her death or meant to cause her bodily harm that he knew was likely to cause death and was reckless whether or not death ensued?

How do you determine whether someone meant or intended to do something assuming that you have someone who is sane, assuming you have someone who is sober. There is a reasonable inference that a man intends the natural consequences of his act. When a man points a gun at another and fires it, the jury may reasonably infer he meant to either cause death or to cause bodily harm that he knew was likely to cause death and was reckless whether or not death ensued. The stabbing of a person the number of times and in the places here found, I think one may infer the person intended to cause death or intended to cause bodily harm that he knew was likely to cause death and was reckless whether or not death ensued. Has the Crown proved either one of these beyond a reasonable doubt? If so, the verdict would be guilty as charged.

It will be seen that that reference is chiefly to the course of proving intent by reference to the acts of an accused person and the inference, not the presumption, that he intended the natural consequences of his act.

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The learned trial judge then turned to submit to the jury the evidence of insanity and therein referred to the evidence of Dr. Butler which, as I have said, he had previously outlined. The reference to Dr. Butler’s evidence at that time was not extensive but that evidence the learned trial judge had outlined in detail earlier in his charge and the reference to it at this point in the charge brought out to the jury that in considering the issue of insanity the evidence of Dr. Butler was, of course, crucial.

The learned trial judge continued:

If you come to the conclusion beyond a reasonable doubt that the accused was guilty of murder and has not proved on a balance of probabilities the defence of insanity, then you must also consider this, the defence of drunkenness. There is evidence of the accused man’s drinking in this case and the law as to the effect of consumption of alcohol is this.

The learned trial judge then continued to outline the law in reference to the defence of drunkenness and may be said to have simply adopted Director of Public Prosecutions v. Beard[2]. He then continued by referring to the evidence previously outlined of the witnesses upon the appellant’s consumption of alcohol. The learned trial judge, however, during this part of his charge, did not refer, or perhaps I should use the words refer back, to the evidence of Dr. Butler which he had previously outlined, and then continued his charge with reference to the defence of provocation. Counsel for the accused at the trial, who was not the counsel for the appellant in this Court, objected to the charge upon this specific issue submitting:

First of all, with respect to the issue of intent. On the issue of intent, your lordship put it to the jury that this is really related to the defence of drunkenness. As I understand the evidence, particularly that of Dr. Butler when he was asked whether or not in his opinion the accused had the capacity to form the necessary intent, he made it quite clear that in his view the element of alcohol, the intake of alcohol, was only one of several factors. He stressed for example the importance of external pressure, the threat of the deceased to abort herself. It is my respectful view that in putting the matter of intent to the

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jury, although I appreciate in many cases they talk only about the issue of drunkenness, I haven’t been able to find anywhere a law which states that in determining whether or not they are satisfied beyond a reasonable doubt that the accused had the capacity to form the necessary intent that they need not only just take into consideration the evidence of drunkenness when there is evidence of drunkenness, but the evidence of his external pressure or threat or provocation.

I am deliberately avoiding using provocation in that context. I don’t want the jury to be confused between provocation in its broadest sense and the legal sense, but it is my submission that the intake of alcohol is only one element the jury must consider with respect to whether or [not] the accused was able to form the necessary intent. The jury should be asked to consider Dr. Butler’s evidence in that respect as to whether or not with the combination of alcohol, the accused’s personality and external threat in his view combined to create this dissociative state which made it impossible for the accused to form the necessary intent.

That is quite apart from whether or not the jury is satisfied on the balance of probabilities that the accused is insane. The jury may not be satisfied the accused or the defence has satisfied them on the balance of probabilities that he was insane. I wouldn’t like them to do that although your lordship put it to the jury that it is open to the jury to find that he wasn’t insane on the evidence of Dr. Butler.

The learned trial judge determined that he would not recharge the jury but later the jury returned with a question framed by the foreman as follows:

THE FOREMAN: Yes, sir. I have a statement here to read which we have agreed on and it says we the jury request a redefinition of the law regarding the possible verdicts in this case.

And the foreman then replied to the learned trial judge’s query:

THE FOREMAN: No, sir, we require something considerably further than that. As an example, we would like you to repeat your remarks regarding provocation, regarding insanity and regarding intent. In short, what we are asking you to do is to repeat your remarks in the last ten minutes or so of your address to us.

The learned trial judge then recharged the jury. Again, he referred to the evidence of Dr. Butler

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upon the insanity issue but in his one paragraph he refers to the issue of drunkenness and made no reference to any of the evidence.

It is the submission of counsel for the appellant, and I am inclined to agree with that statement, that this course of the charge is very close to directing the jury that on the issue of insanity they should consider particularly the evidence of Dr. Butler as to dissociative state but that when the jury turned to consider the defence of drunkenness they should not consider that evidence and confine themselves to the evidence of the associates of the appellant and the police officers chiefly concerned with the quantity of alcohol which it was alleged by those very associates the appellant had consumed and with his display of or failure to display signs of intoxication.

Dr. Butler had dealt to a considerable extent in his evidence with alcohol and its effects. He had referred to the appellant’s addiction to the drug known as “speed” and to the appellant’s addiction to alcohol from the time he was sixteen years old and that he had undergone a course of treatment in an institution for alcoholism. Dr. Butler stated that some alcoholics become disturbed or deranged on a relatively small amount of alcohol. He had further stated in cross-examination:

A. It is frequently a blackout, it is frequently similar to a blackout. You can confuse the two. I don’t know if you had a chance to read the book overnight. You probably noticed they say it is difficult to distinguish an acute dissociative reaction from an alcoholic blackout and they may take place at the same time.

Q. Did that happen in this instance? A. I believe so.

And further in the cross-examination he had stated:

A. I may have given you the wrong impression. What I said was that he had an acute dissociative reaction and alcohol had been a factor. I didn’t say it had been a major factor.

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Q. What was the major factor?

A. The major factor was the personality structure, impulsive, rigid, together with this overwhelming stress of finding his wife about to do something that was an anathema to him.

At the close of the examination of Dr. Butler by counsel for the appellant and cross-examination by counsel for the Crown, the learned trial judge addressed to him further questions, and for the present purpose those questions and answers are most enlightening. The first of which is this:

HIS LORDSHIP: Q. Doctor, you say this man was in a dissociative state which he went into at about the time when he found out he couldn’t dissuade his wife from using the coat hanger. Is this what triggered the dissociative state or was it alcohol or a combination of both?

A. A combination of both.

I also quote the following:

Q. Is that terminology applicable here?

A. Yes. Throughout I have tried to stress there are both factors, the alcohol and the psychological stress.

Q. Then let me ask you this. From the evidence that has been recounted to you by Mr. Kielb and Mr. McMurtry and from what you have been told by the accused, is it your view that the accused was intoxicated from the consumption of alcoholic beverages to such a degree that he was incapable of forming the intent at that time, forgetting about the dissociative state?

A. No, I don’t think so. He had been functioning fairly well up to the point where he was faced with this emotional crisis. He apparently functioned fairly well after that. I have seen people playing the piano when they were drunk who would pass out and stay put for a few minutes and then continue on. They would have no memory for the time they had passed out and there was nothing else involved.

Q. Like a man who drives a car home, puts it in the garage, closes the door and has no recollection of doing it?

A. That is right.

Q. Then from your analysis and opinion, the accused was not intoxicated, that he was incapable of forming the intent to kill as a result of the con-

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sumption of alcohol? You say it is this dissociative state?

A. I think it is a combination of the two.

Q. If one leaves aside the dissociative situation, you say he was intoxicated?

A. Yes, I think he was intoxicated.

The task of the jury in reference to the defence of drunkenness was to determine whether that particular accused person at about 2:30 a.m. on November 11, 1972, was able to and did form the intent of killing the deceased or of administering to her such bodily harm which he knew was likely to cause her death and was reckless whether death ensued or not. For the jury to determine this, they had to consider all of the evidence relevant to the subject. That evidence included not only evidence as to the quantity of alcohol which the appellant had consumed prior to the deed and its observed effect upon his actions and appearance, but the evidence as to his personality, the evidence of what Dr. Butler referred to as external stress, and Dr. Butler’s skilled evidence of the effect of alcohol upon such person under such stress. If the jury, due to the course of the charge which I have outlined, could come to the conclusion that they should arrive at their decision by reference to only part of that evidence and exclude other evidence, and particularly the important evidence which I have cited above, then the jury did not receive a proper outline of their duties. I am of the opinion that under the particular circumstances in this case such an unfortunate result may well have occurred.

I, therefore, am of the opinion that there should be a new trial.

The judgment of Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ. was delivered by

MARTLAND J.—This is an appeal from a judgment of the Court of Appeal for Ontario, which unanimously dismissed an appeal by the appellant from his conviction at trial by a jury on a charge of non-capital murder. The present appeal is brought by leave of this Court on the following question of law:

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Did the Court of Appeal err in law in failing to hold that the trial Judge erred in law in failing to put to the jury on the issue of drunkenness the medical evidence as to the accused’s dissociative state of mind as having a bearing on the issue of intent arising out of the defence of drunkenness?

The facts of the case are related in the judgment of Martin J.A., who delivered the reasons of the Court of Appeal, which are reported in (1974), 18 C.C.C. (2d) 270. It is unnecessary to repeat them in full.

The appellant was charged with the murder of his wife to whom he had been married for approximately one week at the time of her death on November 11, 1972. She was killed at the apartment of a friend, Miss Giselle Clouthier, and her brother, where the appellant and his wife were to spend the night. Her death resulted from stab wounds.

During the previous evening and in the early hours of the morning of November 11 the appellant consumed a substantial amount of beer and some whiskey. At about 2:30 a.m. Miss Clouthier was awakened by the deceased, who said “Billy stabbed me” and then fell across Miss Clouthier’s bed. She was removed from the apartment by ambulance, but died before she reached the hospital.

The appellant made two statements to the police, one oral and one written, which were admitted in evidence, in which he said that he did not mean to kill the deceased; that he went “berserk” when she attempted to induce a miscarriage with a wire coat-hanger and that he got the knife to scare her. There was some evidence tending to confirm the appellant’s statement that the deceased had expressed an intention to induce a miscarriage by the use of a wire coat-hanger. Miss Clouthier testified that during the previous evening the deceased had told her that she thought she was pregnant and that she was going to abort herself with a coat‑hanger. A length of metal wire which appeared to be an untwisted coat-hanger was found in the hall outside the bedroom where the handle part of a broken knife and most of the blood were found. On the other hand, the patholo-

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gist who performed the autopsy upon the deceased testified that she was not pregnant. Both the ambulance driver who arrived at the apartment at 2:40 a.m. and the police officer who arrived at 2:49 a.m. in response to a call, observed the deceased lying on the bed and noticed that she was fully dressed and that she was wearing black slacks. The autopsy did not reveal any evidence of injury to the vagina or uterus.

The appellant did not give evidence on his own behalf at the trial. The only evidence presented by the defence was that of Dr. Butler, a psychiatrist, who had interviewed the appellant for about an hour and a half on May 3, 1973, almost six months after the appellant’s wife’s death. His opinion, based upon his interview with the appellant, the details of the evidence in the case given to him by counsel, and the statements made by the appellant to the police, was that the appellant was in dissociated state of reaction at the time of the stabbing which lasted from about 2:30 a.m. to 8 a.m. He stated that this reaction is a reaction to particular circumstances and particular stresses in a certain environment. It represented a gross personality disorganization. There would be an acute breakdown. He attributed the dissociated state to the reaction resulting from the threat made by the appellant’s wife to abort herself. He also stated that alcohol had been a factor, but not the major factor.

In reply to a question as to whether or not the appellant had the capacity to form the intention to either kill or seriously injure his wife at the time she apparently received the wounds that have been described, Dr. Butler answered as follows:

I don’t believe—to answer your question directly no, I don’t think he could. I don’t think he could form the intent satisfactorily…

The witness subsequently amplified his answer to indicate that in his view the accused was unable to appreciate the nature and consequence of his actions in the sense of being “sensitively” aware of the nature and consequence of his actions. In response to a number of questions put to the witness by the learned trial judge after counsel for the Crown and the defence had completed their

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examinations, he stated that in his opinion the dissociative state was caused by a combination of psychological stress and alcohol and constituted a disease of the mind which rendered the appellant incapable of appreciating the nature and quality of the act.

The learned trial judge, in his charge to the jury, before dealing with the defences of insanity, drunkenness and provocation, raised by the defence, made a detailed review of Dr. Butler’s evidence. He then proceeded to instruct the jury with respect to each of these specific defences. We are not concerned with the defences of insanity and provocation. The only issue before this Court is as to whether the learned trial judge, as a matter of law, should, when dealing with the issue of drunkenness, have put to the jury the medical evidence of Dr. Butler respecting the dissociative state of mind from which Dr. Butler said that he was suffering. In my opinion there was no error of law on the part of the trial judge in respect of this matter.

In his charge to the jury on the issue of drunkenness the learned trial judge made the following statements:

There is evidence of the accused man’s drinking in this case and the law as to the effect of consumption of alcohol is this. Drunkenness does not excuse the accused. The evidence of drunkenness which at the time of the alleged offence renders the accused incapable of forming the specific intent to constitute the crime charged should be taken into consideration by you with other facts proved in order to decide whether or not he had that intent…

The accused man’s capacity with regard to alcohol, capacity to form the necessary intent to kill in this case is a question of fact for you. The onus is not on the accused to establish that he was not drunk. It is sufficient if the evidence raises a reasonable doubt in your mind as to his mental capacity to form the necessary intent. But I should tell you this, that evidence of intoxication falling short of incapacity in the accused to form the necessary intent and merely showing his mind was affected by drink, that he more readily gave way to some violent urge or passion or more inclined to fight or do some other act while under the influence of alcohol, but not drunk in the legal sense, that does not constitute drunkenness in law.

.     .     .

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Has the Crown satisfied you on this part of the matter that despite the evidence of drinking by the accused, he had the capacity to mean to cause death? If your answer is no, then the verdict should be manslaughter. Has the Crown satisfied you that the accused was not so drunk as to be incapable of having the intent or reckless disregard for the consequences to cause bodily harm which he would appreciate would cause death? If your answer is no, the verdict should be manslaughter. If you have any real doubt as to whether or not accused has the necessary capacity to form the intent to murder, your verdict should be manslaughter.

As previously mentioned, the learned trial judge had already reviewed the evidence of Dr. Butler at some length. In the course of that review he said:

The doctor said it is hard to distinguish acute dissociative reaction from an alcohol blackout. They may take place at the same time. He said, “To the best of my knowledge and in all probability, he had a dissociative reaction”. In the doctor’s view, what the accused suffered from at the time was what he described to us when he says it is a disease of the mind.

This passage accurately summarizes the doctor’s evidence on this point. When referring to the part played by alcohol he said:

I may have given you the wrong impression. What I said was that he had had an acute dissociative reaction and alcohol had been a factor. I didn’t say it had been a major factor.

Dr. Butler said that this reaction began at 2:30 a.m.; i.e., at the time of or immediately prior to the commission of the offence. This is not, therefore, a case in which, because of a pre‑existing condition, the appellant was more likely to become incapable as a result of consuming alcohol. If that had been the case, Dr. Butler’s evidence would have significance in relation to the defence of drunkenness. His thesis was, however, that at the time of the commission of the offence the appellant was suffering from dissociative reaction, a disease of the mind, brought on by his wife’s threat to abort herself, in which alcohol was a factor, but not the major factor.

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The evidence of Dr. Butler, as appears clearly from his examination in chief, was directed to the issue of insanity. He gave the opinion that the appellant, by reason of disease of the mind, did not appreciate the nature and consequences of his action.

The learned trial judge, in sequence, dealt with the defences of insanity, drunkenness and provocation. There is no complaint about his charge in respect of the first defence. The success of that defence depended entirely upon whether or not the jury accepted Dr. Butler’s evidence about dissociative reaction as the cause of the appellant’s conduct. Having charged the jury on that issue, and having referred to the evidence, the learned judge then instructed the jury as follows:

If you come to the conclusion beyond a reasonable doubt that the accused was guilty of murder and has not proved on a balance of probabilities the defence of insanity, then you must also consider this, the defence of drunkenness.

He thus made it clear that it was only if the jury decided that the appellant had not proved the defence of insanity that they would need to go on to consider the defence of drunkenness. In substance this means that if Dr. Butler’s thesis of dissociative reaction was rejected, the defence of drunkenness would then require to be considered, because it is clear that, if that evidence were accepted by the jury, the defence of insanity would have been established. The jury, by its verdict, has made it clear that that evidence was not accepted.

In these circumstances, in my opinion, the learned trial judge was under no obligation to instruct the jury specifically to consider again, when dealing with the defence of drunkenness, Dr. Butler’s evidence concerning dissociative reaction.

I would dismiss the appeal.

DICKSON J. (dissenting)—I am in agreement with the reasons prepared for delivery by Mr. Justice Spence in this appeal but wish to add the following comment.

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In a serious charge of the nature of that which the accused appellant faced in the present case the criminal law very properly fastens on the requirement of mens rea before ascribing guilt. Section 212 of the Criminal Code makes specific provision for this in the words “means to cause his death.” Central to this determination is intention of the accused. Did the accused intend to commit the act with which he is charged? Full accountability depends upon an affirmative answer to that question. Did he have the necessary capacity to form the intent to kill? Did the accused intend to kill? These are the questions.

When deciding whether an accused can rely on the defence of drunkenness to negative capacity to form the intent to kill, one must consider the effect of the alcohol alleged to have been consumed, upon the particular accused, at the particular time, and in his then mental state. Mental condition is a relevant, indeed essential, consideration to a determination of mens rea if, in conjunction with alcohol, it affects capacity to form an intention. Mental condition as well as the effect of alcohol are relevant to the critical question, not placed before the jury in this case, of whether the accused had the necessary intent.

The predominant question is intent. A rigid categorization of defences, keeping medical evidence of insanity entirely separate from evidence of drunkenness is not only unrealistic but a departure from all that is embraced in the phrase ‘mens rea.’ The concern is with the particular accused and with his capacity to form the intent to kill when as here, for example, the defence contends the accused was in a dissociative state of mind, drunk and provoked. It was necessary for the jury to weigh and assess each of these elements separately; it was imperative also, in my view, to relate the evidence of drunkenness to the evidence of the mental state of the accused. These are not easy matters to explain to a jury. Obviously, the jury was confused here, as evidenced by the request for a recharge on provocation, insanity and intent. The attempt must, however, be made. If intent and capacity are to be anything more than catchwords, then all factors bearing upon capacity and intent,

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such as dissociative state, stress and drunkenness, must be considered jointly and severally as part of an overall picture and their respective influences, each upon the other, assessed.

I would allow the appeal and direct a new trial.

Appeal dismissed, LASKIN C.J. and SPENCE and DICKSON JJ. dissenting.

Solicitor for the appellant: M.A. Wadsworth, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto