The accused was convicted on a charge of second degree murder arising from the stabbing death of his wife. After drinking heavily throughout the course of the evening and in the early morning hours, he had returned to the apartment he shared with the victim and their five children. He was in a state of intoxication with a blood alcohol reading estimated by the expert witnesses to be some two and a half times the legal driving limit. When the victim returned about an hour later, a quarrel ensued. The accused went to the kitchen, got a knife, and stabbed or slashed the victim six times. The victim was pronounced dead at the hospital. At trial the only issue was whether the accused was guilty of second degree murder or manslaughter. After deliberating at some length, the jury asked for clarification on intent, and "drunken intent". In replying to the question the trial judge stated: "You should consider the effect of intoxication along with the other facts in deciding whether the accused intended to inflict an injury on the victim which he knew was likely to cause death or whether intoxication affected his ability to foresee the consequences of his actions." The jury found the accused guilty of murder. The Court of Appeal upheld the conviction in a majority decision.
Held: The appeal should be allowed and a new trial directed.
When charging with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, in determining the accused’s state of mind at the time the offence was committed, jurors may draw the common-sense inference that sane and sober persons intend the natural and probable consequences of their actions. Different considerations will apply, however, where there is evidence that the accused was intoxicated at the time of the offence. It is common knowledge that a significant degree of intoxication may affect a person’s state of mind and thus the ability to foresee the consequences of actions. It is therefore essential for a trial judge to link the instructions given pertaining to intoxication to those relating to the common sense inference so that the jury is specifically instructed that evidence of intoxication may rebut that inference. A trial judge is obliged to ensure that the jury understands two important conditions: (1) the reasonable common sense inference may be drawn only after an assessment of all of the evidence, including the evidence of intoxication; and (2) the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention.
Notwithstanding the general preference for a charge dealing only with "intent in fact", this was a case where a two‑step charge would have been preferable, in view of the primary reliance by the accused on a defence of incapacity to form the requisite intent, as well as the use of “capacity” language by the expert witness. Further, while the trial judge was correct to include in his recharge the issue of the accused’s ability to measure or foresee the consequences of his act, he erred in failing to remind the jury that the ultimate issue for its determination was whether the accused actually intended to cause bodily harm which he knew would be likely to cause death. Greater weight and significance must be attached to this error, as it was made in the course of responding to the jury’s question. Finally, at no time was the critical connection made between the common sense inference and the possible effect upon it of the evidence of intoxication. In responding to the jury’s question requesting clarification on intent, the trial judge again failed to link the inference to the evidence of intoxication. These errors all combine to make the holding of a new trial essential.
Cases Cited
Applied: R. v. Robinson, [1996] 1 S.C.R. 683; referred to: R. v. McMaster, [1996] 1 S.C.R. 740; R. v. Lemky, [1996] 1 S.C.R. 757; R. v. Canute (1993), 80 C.C.C. (3d) 403; R. v. MacKinlay (1986), 28 C.C.C. (3d) 306; MacAskill v. The King, [1931] S.C.R. 330; Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Giannotti (1956), 115 C.C.C. 203; Mulligan v. The Queen, [1977] 1 S.C.R. 612; R. v. S. (W.D.), [1994] 3 S.C.R. 521; R. v. Naglik, [1993] 3 S.C.R. 122; R. v. Pétel, [1994] 1 S.C.R. 3.
Statutes and Regulations Cited
Criminal Code , R.S.C., 1985, c. C‑46 , s. 229 (a)(ii).
APPEAL from a judgment of the British Columbia Court of Appeal (1995), 97 C.C.C. (3d) 36, 56 B.C.A.C. 173, 92 W.A.C. 173, affirming the accused's conviction of second degree murder. Appeal allowed.
B. Rory B. Morahan, for the appellant.
William F. Ehrcke, for the respondent.
The judgment of the Court was delivered by
1 Cory J. -- The question raised in this appeal is whether the trial judge properly charged the jury with respect to the effect of intoxication upon the requisite intent on a charge of murder. The appeal will be resolved by the application of the principles set out by this Court in the recent trilogy of cases dealing with the issue: R. v. Robinson, [1996] 1 S.C.R. 683, R. v. McMaster, [1996] 1 S.C.R. 740, and R. v. Lemky, [1996] 1 S.C.R. 757.
Factual Background
2 The appellant was found guilty, by a jury, on a charge of second degree murder arising from the stabbing death of his wife. The evidence at trial indicated that the appellant and the deceased had been drinking heavily throughout the course of the evening and early morning hours prior to the stabbing. At about 5:00 a.m., the appellant returned to the apartment which he shared with the deceased and their five children. He was in a state of intoxication with a blood alcohol reading estimated by the expert witnesses to be between .198 and .218. This would be some two and a half times the legal driving limit. He awakened the children and told them that they should pack, as he intended to move them back to their former home in another town. The deceased returned about an hour later, and objected to the removal of the two youngest children. A quarrel ensued. The appellant went to the kitchen and got a knife. He then sat on top of the deceased on the couch, and stabbed or slashed her six times, three times in the side of her neck. The deceased was able to rise and hold one of her children before returning to the couch, where she lapsed into unconsciousness. The appellant left the room then stabbed himself in the neck. These events were observed by some of the children, one of whom pulled the knife out of her father’s neck. The deceased was pronounced dead at the hospital while the appellant recovered from his wound.
3 At trial the only issue was whether the appellant was guilty of second degree murder or manslaughter. The jury found him guilty of murder. The appellant appealed on the basis that the trial judge had erred in his instructions to the jury as to his defence pertaining to the effect of drunkenness on his ability to form the requisite intent for murder. The majority upheld the conviction, while Lambert J.A. dissented and would have directed a new trial: (1995), 97 C.C.C. (3d) 36, 56 B.C.A.C. 173, 92 W.A.C. 173.
Decisions Below
The Trial Judge
4 The trial judge explained to the jury that they might draw the inference that people normally intend the natural consequences of their actions. He stated:
Thus, in deciding whether the accused intended or meant to cause the death of the victim you are entitled as a matter of common sense to draw an inference that a person intends the natural and probable consequences of his or her voluntary acts.
5 He went on to charge the jury that the offence of murder could be committed if the accused intended to cause bodily harm to the victim which he knew was likely to result in death and was reckless whether death ensued or not.
6 The trial judge instructed the jury that they could not convict the appellant of murder if they found that as a result of the consumption of alcohol he lacked the requisite intent to cause death or did not mean to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued.
7 After the charge was completed and the jury had retired, both counsel requested the judge to recharge the jury on the foreseeability element. The trial judge had instructed the jury in accordance with R. v. Canute (1993), 80 C.C.C. (3d) 403 (B.C.C.A.), but he omitted a passage dealing with foreseeability which required that the jury be directed to consider the effect of drunkenness on the accused’s knowledge that his acts were likely to cause death and on the accused’s ability to foresee the consequences of his actions. The trial judge denied the request because, in his opinion, the charge, when read as a whole, conveyed the required message.
8 The jury deliberated for many hours and then returned with the following questions: “Intent, clarification, please? What is drunken intent? What is intent, defined? . . .” In answering the jury’s questions, the trial judge reread most of the portion of his original charge that dealt with the defence of drunkenness and then added:
You should consider the effect of intoxication along with the other facts in deciding whether the accused intended to inflict an injury on the victim which he knew was likely to cause death or whether intoxication affected his ability to foresee the consequences of his actions.
British Columbia Court of Appeal (1995), 97 C.C.C. (3d) 36
McEachern C.J.B.C. (Gibbs J.A. concurring)
9 The Chief Justice held that the trial judge’s original charge to the jury was deficient in failing to give instructions concerning the foreseeability of the consequences of the acts of the accused and that the recharge in response to the jury’s questions was largely a repetition of his initial instructions. He went on to observe that the trial judge’s reference to “ability” was not fatal to the charge since there were numerous other passages where the defence of intoxication was explained and where the jury was asked to consider whether intoxication affected the appellant’s actual intent. The majority noted that jury charges should be regarded as a whole and, viewed in this manner, it was apparent that the jury was adequately instructed both on the question of the foreseeability of the consequences of the accused’s actions and on the necessary intent to commit the offence.
Lambert J.A. (dissenting)
10 Lambert J.A. held that it was necessary to charge the jury on the capacity of the accused to form the intention to commit murder, before charging them on intention itself, “in order to provide the basis for a permissible inference that the accused intended the natural and probable consequences of his or her acts” (p. 45). In addition, he was of the opinion that a direction must be given to the jury regarding s. 229 (a)(ii) of the Criminal Code , R.S.C., 1985, c. C‑46 , concerning the accused’s ability to foresee the consequences of his actions and not just his actual foresight of the consequences.
11 Lambert J.A. held that the two‑step analysis set out in R. v. MacKinlay (1986), 28 C.C.C. (3d) 306 (Ont. C.A.), is the correct approach and that the omission of the first step in relation to capacity will tend to leave the jury without adequate guidance in relation to the use of the inference that a person intends the natural consequences of his actions in situations when drunkenness must be considered. He concluded that the trial judge failed to link his instructions relating to the common sense inference which may be drawn from acts of the accused to his instructions pertaining to the drunkenness of the accused and to the effect of that drunkenness on the issue of intention to cause death or bodily harm. In his view, the same link should have been made between the drawing of the common sense inference and the effect drunkenness would have upon the accused’s ability to foresee the consequences of his acts and his knowledge as to whether those acts were likely to cause death. In his opinion, the recharge was also inadequate in that it diverted the jury’s attention away from the real question which was whether the appellant actually knew that his acts were likely to cause death.
Legislation
12 The relevant provision of the Criminal Code , R.S.C., 1985, c. C-46 , reads as follows:
229. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
Issues on Appeal
13 The issues may be framed as follows:
1.How should a trial judge charge a jury when the drunkenness of the accused must be taken into consideration?
2.Is it necessary for a trial judge to link the common sense inference that a person intends the natural and probable consequences of his or her actions to the drunkenness of the accused?
3.Did the trial judge err in his recharge to the jury by effectively instructing them that if they found that the appellant had the capacity to foresee the consequences of his actions, he must be taken to have actually foreseen them and to have known that his actions were likely to cause death or grievous bodily harm?
Analysis
Jury Charge on the Defence of Intoxication
14 In the recent trilogy of cases dealing with the effect of drunkenness upon the requisite intent to commit murder, this Court overruled the long‑standing decision in MacAskill v. The King, [1931] S.C.R. 330. It was found that the decision violated ss. 7 and 11( d ) of the Canadian Charter of Rights and Freedoms since it would allow an accused to be convicted of murder even in situations where the evidence raised a reasonable doubt as to the existence of the requisite intent necessary to commit the offence. The MacAskill case, which adopted the English rules established in Director of Public Prosecutions v. Beard, [1920] A.C. 479 (H.L.), had held that evidence of drunkenness could be taken into account in so far as it rendered the accused incapable of the state of mind required for the offence. In the trilogy this approach was rejected. It was held that once a judge is satisfied that the intoxication threshold is met (that is to say it is a live issue), instructions must be given to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the required intent to commit the offence.
15 The Chief Justice writing for the majority in Robinson observed that provincial courts of appeal had for some time recognized the problem posed by Beard and MacAskill and attempted to clarify and broaden the position adopted in these decisions. Unfortunately, there was a difference of opinion between the appellate courts of Ontario and British Columbia as to the method that should be followed when instructing juries as to the effect of intoxication on the requisite intent required for murder. In MacKinlay the Ontario Court of Appeal favoured a two‑step approach. First the jury were to consider whether as a result of consuming alcohol or drugs the accused was capable of forming the requisite intent. If they were left in doubt that the accused had the capacity to form the intent then they were to find the accused not guilty of murder and consider the offence of manslaughter. If the jury were satisfied beyond a reasonable doubt that the accused did have the capacity to form the requisite intent then the jury were to proceed to the second step. Namely, having regard to all the relevant evidence including that pertaining to alcohol, they were to determine whether they were satisfied beyond a reasonable doubt that the accused actually had the requisite intent. In Canute, supra, the British Columbia Court of Appeal decided that the two‑step approach was unnecessary and wrong. They determined that there was but one issue for the jury to decide and that is whether the accused had the requisite intent. On this issue it was thought to be confusing for a jury to have to consider the capacity of the accused to form the intent. Much of the reasons in Robinson are devoted to resolving the difference between these two appellate courts.
16 The trilogy generally approved the approach recommended by the British Columbia Court of Appeal in Canute, supra, but recognized that the two‑step approach put forward by the Ontario Court of Appeal in MacKinlay, supra, could also be utilized in appropriate circumstances. Canute held that in instructing a jury on the use to be made of evidence of intoxication all references to capacity should be removed. In Robinson, the Chief Justice observed that a charge given along the lines suggested by Canute is generally a useful model for trial judges to follow since the omission of any reference to “capacity” or “capability” focuses the jury on the question of “intent in fact”. It was determined that, practically speaking, in cases dealing with the foreseeability aspect of s. 229 (a)(ii) of the Criminal Code , a jury will rarely have to consider the issue of capacity to form the requisite intent, since a level of impairment falling short of incapacity will often be sufficient to raise a reasonable doubt that the accused actually foresaw that his or her actions were likely to cause the death of the victim.
17 Nonetheless, the Chief Justice pointed out that, in certain cases, because of the particular facts or the expert evidence called, it might be appropriate to charge both with regard to the capacity to form the requisite intent and with regard to the need to determine, in all the circumstances, whether the requisite intent was in fact formed by the accused. It was observed that situations where it may be appropriate for trial judges to use the two-step instructions recommended by the Ontario Court of Appeal in MacKinlay, supra, included but were not limited to:
(a) Cases where the only question is whether the accused intended to kill the victim (s. 229(a)(i) of the Code), since the defence that the accused was too drunk to form the requisite intent will be unlikely to succeed unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill;
(b) Cases where the accused’s defence is one of incapacity and therefore the accused specifically requests a “capacity” charge as part of his or her defence; and
(c) Cases where an expert has testified in terms of the effect of alcohol or other intoxicants on capacity, making a two-step charge more helpful to the jury.
18 In those cases where the two-stage process is followed, Robinson provides the following guidelines, at para. 54:
. . . a jury might be instructed that their overall duty is to determine whether or not the accused possessed the requisite intent for the crime. If on the basis of the expert evidence the jury is left with a reasonable doubt as to whether, as a result of the consumption of alcohol, the accused had the capacity to form the requisite intent then that ends the inquiry and the accused must be acquitted of the offence and consideration must then be given to any included lesser offences. However, if the jury is not left in a reasonable doubt as a result of the expert evidence as to the capacity to form the intent then of course they must consider and take into account all the surrounding circumstances and the evidence pertaining to those circumstances in determining whether or not the accused possessed the requisite intent for the offence. [Emphasis in original.]
It will not automatically constitute reversible error if a trial judge makes references to “capacity” or “capability”, even in those cases where it would have been preferable for the trial judge to have followed the one-step Canute‑type charge. If a charge is challenged on that basis, an appellate court will be required to review the charge and determine whether there is a reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry: see Robinson, at para. 53.
Linking the Common Sense Inference
19 When charging with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, in determining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane and sober persons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee the consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.
20 It used to be a standard instruction to juries that there was a presumption that a person intends the natural and probable consequences of his or her acts. However, the Ontario Court of Appeal wisely held in R. v. Giannotti (1956), 115 C.C.C. 203, that, rather than a presumption, it should be considered a reasonable inference which may be drawn but is not required to be drawn by juries. This reasoning was subsequently affirmed in Mulligan v. The Queen, [1977] 1 S.C.R. 612.
21 However, different considerations will apply where there is evidence that the accused was intoxicated at the time of the offence. The common sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determine the accused’s actual intent. That same common sense makes it readily apparent that evidence of intoxication will be a relevant factor in any consideration of that inference. It follows that the jury must be instructed to take into account the evidence of the accused’s consumption of alcohol or drugs, along with all the other evidence which is relevant to the accused’s intent, in determining whether, in all the circumstances, it would be appropriate to draw the permissible inference that the accused intended the natural consequences of his actions.
22 One of the effects of severe intoxication is an inability to foresee the consequences of one’s actions, much less intend them. It was for this reason that the Ontario Court of Appeal in MacKinlay, supra, at p. 322, held that the state of mind required to commit the crime described in s. 229(a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of his act and that, therefore, the jury should consider whether intoxication affected his ability to have the required foresight.
23 It is common knowledge that a significant degree of intoxication may affect a person’s state of mind and thus the ability to foresee the consequences of actions. It is, therefore, essential for a trial judge to link the instructions given pertaining to intoxication to those relating to the common sense inference so that the jury is specifically instructed that evidence of intoxication may rebut that inference. See Robinson, at para. 65. A trial judge is obliged to ensure that the jury understands two important conditions: (1) the reasonable common sense inference may be drawn only after an assessment of all of the evidence, including the evidence of intoxication; and (2) the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention.
24 In Canute, supra, Wood J.A. discussed the “natural flow” which a trial judge’s instructions should have. He stated that once intent had been defined and the burden on the Crown had been made clear, the next logical step was to discuss the common sense inference that a person intends the natural and probable consequences of his or her actions. He continued (at p. 420):
If the defence of intoxication has an evidentiary foundation, it should be explained next so that the jury may then be told they would not be entitled to draw the inference if, after a consideration of the evidence as a whole including that relating to the intoxication of the accused, they are left with a reasonable doubt whether the required intent has been proven by the Crown beyond a reasonable doubt.
In Robinson, the Chief Justice endorsed this “natural flow” approach, and in discussing the importance of the trial judge’s making this link, he gave the following caution, at para. 65:
This instruction is critical since in most cases jurors are likely to rely on the inference to find intent. Moreover, if no instruction is given, then a confused jury may see a conflict between the inference and the defence and resolve that conflict in favour of their own evaluation of common sense (see Korzepa at p. 505). Therefore, an instruction which does not link the common sense inference with the evidence of intoxication constitutes reversible error. [Emphasis added.]
Application of the Principles Enunciated in Robinson to this Case
Instructions on the Use to be Made of the Evidence of Intoxication
25 Counsel for the appellant argued that the trial judge should have followed the two-stage process endorsed in MacKinlay, supra, which would have allowed the jury to consider whether the degree of drunkenness was such as to negate the appellant’s capacity to form the intent. It was further submitted that the trial judge failed to instruct the jury adequately on the effect of drunkenness on the ability of the appellant to foresee the consequences of his acts, particularly whether he knew that his acts were likely to cause death. Yet, in recharging the jury in response to their question, the trial judge directed them only as to the appellant’s ability to know his act would be likely to cause death and failed to remind them that it was necessary to determine whether the appellant actually knew that his actions would be likely to cause death.
26 In light of the decisions in Robinson, McMaster and Lemky, the appellant’s argument that the trial judge erred in not referring to the capacity of the accused to form the requisite intent must overcome significant difficulties. Provided that a jury is properly instructed that they must find that the accused possessed the requisite intent, then an accused who was not capable of forming the specific intent for the offence obviously cannot be found to have formed that intent. The former is subsumed by the latter. In both Robinson and Lemky, it was noted that there will be situations where references to capacity may be appropriate. However, in Lemky, at para. 15, McLachlin J. stated that: “While the two-stage direction is sometimes helpful, a separate charge on capacity is not a legal requirement and its absence will not generally constitute reversible error.”
27 Yet, notwithstanding the general preference for a Canute-type charge, this appeal provides a good illustration of the type of case where a two-step instruction, including a reference to the appellant’s capacity to form the intent, would have been appropriate. The defence called a forensic alcohol specialist to provide the jury with expert evidence as to the manner in which alcohol affects the human body and the physiological effects of alcohol on the brain. The expert testified that alcohol can interfere with information processing and the transmission of impulses in the brain. This, in turn, can cause a person to perceive a situation incorrectly. The witness testified: “At this level the individuals are unable to foresee and evaluate the consequences of their behaviour due to alcohol-induced disruption of the information processing in the brain.” (Emphasis added.) Defence counsel continued his line of questioning by asking whether the research indicates at what range this inability starts. Therefore, since the expert testified in “capacity” terms, this is a case where a two-step charge would have been helpful to the jury.
28 Another factor favouring the use of a two-step instruction is that the appellant’s defence was that at the relevant time he had a profound inability to function adequately and that he was unable to understand the consequences of his actions because of his consumption of large quantities of alcohol. Following the trial judge’s charge, defence counsel specifically requested that the charge be amplified so as to include a portion from the MacKinlay case, supra, stressing the need for the jury to determine whether the accused had the ability to measure and foresee the consequences of his actions. In Robinson it was indicated that where the defence makes a specific request for a “capacity” charge it would be appropriate for the trial judge to employ the two-stage instruction. Therefore, in light of the primary reliance by the appellant on a defence of incapacity to form the requisite intent, as well as the use of “capacity” language by the expert witness, this was a case where a two-step charge given along the lines suggested in Robinson, at para. 54, would have been preferable.
The Recharge
29 After deliberating at some length, the jury returned with the following question:
Intent, clarification please? What is drunken intent? What is intent, defined? . . .
The trial judge repeated his earlier instructions on this issue and then added:
You should consider the effect of intoxication along with the other facts in deciding whether the accused intended to inflict an injury on the victim which he knew was likely to cause death or whether intoxication affected his ability to foresee the consequences of his actions.
Counsel for the appellant argued that this would indicate to the jury that, if they considered that the accused had the ability to foresee the consequences of his actions, he must be taken to have in fact foreseen them and thus to have known that his actions were likely to cause death or grievous bodily harm. I agree with this submission. If this direction were accepted as correct it would mean that the accused could be convicted in circumstances where there exists a reasonable doubt as to the proof of an essential element of that offence; in this case, the requisite intent. While the trial judge was correct to include in his recharge the issue of the appellant’s ability to measure or foresee the consequences of his act, he erred in failing to remind the jury that the ultimate issue for its determination was whether the appellant actually intended to cause bodily harm which he knew would be likely to cause death.
30 Greater weight and significance must be attached to this error, as it was made in the course of responding to the jury’s question. A question indicates and emphasizes the area in which a jury is experiencing difficulty and requires assistance. In R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 530, it was held that where a jury asks a question, “[n]o matter how exemplary the original charge may have been, it is essential that the recharge on the issue presented by the question be correct and comprehensive”. It was stated (at pp. 530‑31):
If an error is made, then as a general rule, the correctness of the original charge cannot be used to excuse the subsequent error on the very issue upon which the jury seeks clarification. It would be irrational to conclude that although the trial judge has erred on a recharge on the very point on which the jury had been confused or forgetful, the mistake is of little consequence because some time ago a correct charge was given. . . . When the jury submits a question it must be assumed that the jurors have forgotten the original instructions or are in a state of confusion on the issue. Their subsequent deliberations will be based on the answer given to their question. That is why the recharge must be correct and why a faultless original charge cannot as a rule rectify a significant mistake made on the recharge.
This principle has been adopted by the Court in other decisions. In R. v. Naglik, [1993] 3 S.C.R. 122, Lamer C.J. stated, at p. 139, that: “Answers to questions from the jury are extremely important, and carry influence far exceeding instructions given in the main charge.” Similarly, in R. v. Pétel, [1994] 1 S.C.R. 3, at p. 15, Lamer C.J. again wrote that where a question is posed by the jury, “[t]he question will generally relate to an important point in the jury’s reasoning, so that any error the judge may make in answering it becomes all the more damaging”.
31 In the case at bar, the trial judge’s recharge was necessitated by the jury’s question which sought clarification on the central issue of the intent required for murder. Moreover, the jury had retired at 11:35 a.m. the day before to commence their deliberations and were not recharged until the following day at 10:50 a.m. This very significant time lapse clearly indicates that even if the original charge had been error‑free it would no longer have been fresh in the jurors’ minds. It was essential that the question be answered completely and correctly. In my view, the error made in the recharge is such that a new trial is required.
Common Sense Inference
32 The trial judge instructed the jury on the common sense inference in the following terms:
It can be difficult to decide what someone intends to do because intention is really a state of mind. We cannot see inside the minds of people to decide whether or not they intend to do things. However, your common sense will tell you that people normally intend the natural consequences of their actions.
33 After providing an example to illustrate how the inference operates, the trial judge then related it to this case and continued:
If you decide that the victim’s death would be a natural consequence of the accused’s actions, you are entitled to conclude the accused intended to kill Nora Seymour by those actions. However, you are not required to make this conclusion. You may decide the accused did not intend to kill Nora Seymour even though her death was the natural consequence of his action. In the end you will have to consider all the surrounding circumstances, including what the accused said and did in order to decide whether the Crown has proved that he did in fact mean to cause the death of Nora Seymour.
34 The trial judge then went on to explain to the jury that if it had a reasonable doubt as to whether the accused actually intended to kill his wife, it would still have to consider whether the Crown had satisfied s. 229(a)(ii); namely, whether the accused meant to cause bodily harm which he knew was likely to cause death and was reckless whether or not death ensued. In relating the common sense inference to this second method of committing the offence, the trial judge largely repeated his earlier instructions. He charged the jury that while it was entitled to draw the inference it was not required to do so. He stated that, “[i]n the end you should look at all the surrounding circumstances in order to decide whether the accused actually intended to cause bodily harm”. The fact that the appellant was intoxicated at the time was never referred to as part of the surrounding circumstances to be taken into account.
35 Following these instructions on the common sense inference, which omitted any reference to the evidence of intoxication, the trial judge summarized his remarks on the element of intention. He then reviewed the evidence which the jury might wish to consider in deciding whether or not the accused had the requisite intention. This included the relationship between the accused and the deceased, the events of the day in question, the evidence of the witnesses, the nature and extent of the wounds, as well as statements made by the appellant following the commission of the offence. Once again, in this list of pertinent factors to be considered by the jury, no reference was made to the evidence pertaining to the appellant’s intoxication. The trial judge then charged the jury with respect to the elements of the offence of manslaughter. It was only after all of these intervening instructions that the trial judge referred to the evidence of intoxication:
I turn now to the defence of intoxication. Before you decide whether the Crown has proved beyond a reasonable doubt that he, the accused person, is guilty of second degree murder you must consider the defence of intoxication.
In the course of his ensuing discussion on the evidence of intoxication no further reference was made to the significance it could have in a consideration of the common sense inference. At no time was the critical connection made between the inference and the possible effect upon it of the evidence of intoxication as required by Robinson. In responding to the jury’s question requesting clarification on intent, the trial judge again failed to link the inference to the evidence of intoxication.
36 The failure of the trial judge to make the necessary connection may well have led the jury to find that there was proof of intent through reliance on the common sense inference, without having considered the impact of intoxication on the drawing of such an inference. Accordingly, I find that the absence of this required link in the instructions to the jury also requires that a new trial be directed. This error, when added to that made in the recharge and the failure to employ, in the circumstances of this case, the two‑step MacKinlay charge, all combine to make the holding of a new trial essential.
Disposition
37 In the result the appeal is allowed, the order of the Court of Appeal is set aside and a new trial is directed.
Appeal allowed.
Solicitors for the appellant: Morahan & Aujla, Victoria.
Solicitor for the respondent: The Ministry of the Attorney General, Vancouver.
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