Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Mens rea ‑‑ Murder -- Drunkenness ‑‑ Trial judge finding accused persons had capacity to form intent notwithstanding their being drunk ‑‑ Whether trial judge misdirecting himself on drunkenness ‑‑ Whether evidence of intoxication should be considered in isolation from consideration of the overall issue of criminal intent ‑‑ Whether trial judge misapprehended evidence concerning one accused so as to render his verdict unreasonable ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 229 .
The accused were convicted of second degree murder following a trial without jury. The charges arose from a severe beating. The trial judge was satisfied that neither accused was that much under the influence of alcohol as to be deprived of the capacity to form the intent to commit the crime. An appeal to the Court of Appeal was dismissed. At issue here are whether the trial judge erred in law (1) in misdirecting himself with respect to the defence of drunkenness, and (2) in considering the evidence of intoxication in isolation from his consideration of the overall issue of criminal intent; and (3) whether he misapprehended the evidence concerning Harley McMaster so as to render his verdict unreasonable.
Held: The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.: The trial judge misdirected himself on the law of intoxication. His reasons indicate a real possibility that he failed to address the critical issue of whether the accused had the actual intent to kill rather than the capacity to form the intent. While the trial judge did assert that the onus was on the Crown to prove intent beyond a reasonable doubt, his reasons following this assertion indicate that he was satisfied that the Crown had proven intent beyond a reasonable doubt because he was satisfied that the accused had the capacity to form the intent. This chain of reasoning was improper and denied the accused a defence to which they were entitled in law.
It would be wise for trial judges to write reasons setting out the legal principles upon which the conviction is imposed so that an error may be more easily identified if there be error.
The issue of whether the trial judge erred in considering the evidence of intoxication in isolation from his consideration of the overall issue of criminal intent did not need to be considered given that a new trial had to be ordered as a result of the trial judge's misdirection concerning drunkenness.
The trial judge did not misapprehend the evidence concerning Harley McMaster. The evidence connecting him to the assault was overwhelming and his counsel at trial conceded that he was present. The accused were found to be acting in concert; the trier of fact did not need to decide which accused actually struck the fatal blow.
The appeal had to be allowed and a new trial ordered. The respondent Crown did not raise s. 686(1)(b)(iii) of the Criminal Code in argument. This Court cannot apply it proprio motu.
Per L'Heureux‑Dubé J.: For the reasons given in R. v. Robinson, evidence of intoxication may be considered, together with all of the other evidence, in determining whether the accused had the requisite specific intent. Here, the trial judge erred in proceeding on the basis that evidence of intoxication could not be considered unless it reached a level at which the accused was no longer capable of forming the specific intent required to commit the offence. The appeal had to be allowed and a new trial ordered because the Crown conceded an air of reality to the theory that the accused may have acted without intent and expressly declined to rely on the curative provisions of s. 686(1)(b)(iii) of the Criminal Code .
Cases Cited
By Lamer C.J.
Applied: R. v. Robinson, [1996] 1 S.C.R. 683; overruled: R. v. MacAskill v. The King, [1931] S.C.R. 330; referred to: Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Burns, [1994] 1 S.C.R. 656; R. v. Barrett, [1995] 1 S.C.R. 752; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; R. v. Morrissey (1995), 97 C.C.C. (3d) 193; R. v. Morin, [1988] 2 S.C.R. 345; R. v. Isaac, [1984] 1 S.C.R. 74; R. v. Thatcher, [1987] 1 S.C.R. 652; R. v. Pétel, [1994] 1 S.C.R. 3.
By L'Heureux‑Dubé J.
Applied: R. v. Robinson, [1996] 1 S.C.R. 683; referred to: R. v. Burns, [1994] 1 S.C.R. 656; R. v. Barrett, [1995] 1 S.C.R. 752.
Statutes and Regulations Cited
Criminal Code , R.S.C., 1985, c. C‑46 , ss. 229 , 686(1) (b)(iii).
APPEAL from a judgment of the Alberta Court of Appeal, [1994] A.J. No. 754, dismissing an appeal from conviction by Brennan J. Appeal allowed.
Terence C. Semenuk, for the appellant Randy Andre McMaster.
James F. Gladstone, for the appellant Harley Howard McMaster.
Ken Tjosvold, for the respondent.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by
1 Lamer C.J. -- This appeal involves the application of principles set out in the companion case of R. v. Robinson, [1996] 1 S.C.R. 683. The principal issue raised by both appellants is whether the trial judge misdirected himself on the extent to which he was entitled in law to consider the evidence of drunkenness in relation to whether the appellants possessed the requisite intent for murder under s. 229 of the Criminal Code , R.S.C., 1985, c. C-46 .
I. The Facts
2 Since the appellant, Harley McMaster, is also asking this Court to assess the reasonableness of his verdict, I will set out the facts of this case in some detail.
3 Harley McMaster was convicted, along with his cousin Randy McMaster, of second degree murder following a trial without a jury before Brennan J. of the Alberta Court of Queen's Bench. The charges arose from a severe beating which occurred in the early hours of October 21, 1992, in an area behind a YWCA in downtown Calgary. The deceased was found lying on his back in a pool of blood. He had suffered severe facial lacerations; in fact, the deceased's face was so mutilated that the emergency medical technician was unable at first to tell whether the victim was a man or a woman. The deceased died some time later in the hospital.
(i) Evidence of the Assault
4 The main Crown witness, Art Collins, testified that in the early morning of October 21, 1992, he stopped at a set of traffic lights by the Cecil Hotel. He saw three men cross the street. The men appeared to be arguing. Collins felt there was going to be a confrontation so he parked his vehicle in the hotel parking lot and went across the street to the park beside the YWCA. At trial he estimated that he was about 30 feet away from the three men. He testified that the lighting was not too bad and that he had a pretty clear view.
5 He saw two men assaulting another individual. Both of the men were kicking and hitting the victim. Collins told them to stop, which they did momentarily, but then continued the beating. The taller of the assailants appeared to be kicking the victim in the head while the shorter one kicked him in the body. Before they moved off, the shorter one was on his knees hitting the victim with his fists. Collins testified that he could see the kicking and punching very clearly. The taller assailant had long dark hair. The shorter one had what appeared to be a black jacket with a long T-shirt hanging below it. In court, Collins misidentified Harley McMaster as the taller of the two assailants.
6 Collins went to a cab parked by the hotel and asked the driver to call the police. The driver moved his vehicle to shine its lights into the park area. The beating stopped at this point. The two assailants proceeded out the gate to the park, leaving the victim on the ground. The police arrived almost immediately and Collins pointed out, to the police, the assailants, who were moving away from the scene.
7 Godfrey Daniell, the cab driver, testified that while he was parked at the Cecil Hotel, he was approached by a man about the disturbance which had been going on across the street. Daniell called the police first. At some point, he moved his vehicle across the street to get his headlights onto the courtyard where the disturbance was taking place. He saw people beating on a person on the ground but could not say how many individuals were involved. Although there was some light in the area, the darkness prevented Daniell from seeing too many details.
8 Daniell saw two people walk away from the scene. The shorter of the assailants had an undershirt or T-shirt hanging down. They both seemed to have dark hair and dark features. Daniell thought that the one with the longest hair was a woman. After the police arrived at the scene, he got into his cab and drove to a library where he thought the assailants would be. He saw them proceeding at a steady pace. He followed them until he saw a police van and attempted to get the attention of one of the officers. The officers then apprehended the appellants.
9 Sergeant Sembo of the Calgary police was the first officer to arrive at the scene. As he approached, he observed two individuals leaving the YWCA courtyard. There was no one else on the street. He radioed their description to all downtown units. He described them as two native Canadians, one smaller than the other, the smaller possibly a female. Sembo thought that the larger individual wore a dark black leather jacket and had long thick black hair.
10 According to Sembo, the area where the victim was found was darker than the street but one could see without a flashlight. There was light from a street light and he thought that there were also lights on in the YWCA.
11 Constable Koenen, along with his partner, discovered the appellants at the library. Their clothing appeared to be wet with blood. Randy McMaster's clothing appeared to have more blood than that of his cousin. Harley McMaster appeared to have blood on his hands. He was wearing a white and black T-shirt and a black jacket. He had long black hair, weighed approximately 180 pounds and stood about 5 feet 8 or 9 inches tall. Randy McMaster had considerably more "red substance" on him. His boots were very wet with the "red substance", as if he had walked through a puddle. He was wearing a brown leather jacket with a blue denim shirt. He had shoulder length hair and was about three inches taller than his cousin.
12 The police also found at the scene a bundle of drawings bearing the names of Stimson and Randy McMaster.
(ii) The Expert Evidence
13 A hair and fibre expert testified that 12 hairs from the cowboy boots worn by Randy McMaster at the time of the assault and 14 hairs from the bag in which his boots were stored were consistent with having come from the deceased. No hair was found on the running shoes worn by Harley McMaster. A serologist testified that human blood was found on the boots, blue jeans, socks, shirt and jacket of Randy McMaster and it was consistent with the standard obtained from the deceased. Blood found on a running shoe worn by Harley McMaster was also consistent with having come from the deceased.
14 The hair and fibre expert also testified that he found 18 hairs on a piece of concrete block found at the scene and 16 hairs on another block. According to the serologist, blood consistent with that of the victim was found on these two pieces of concrete block.
(iii) The Evidence of Intoxication
15 Collins testified that when he first saw the assailants crossing the street the tallest assailant took a drink out of a bottle. Daniell testified that when the assailants left the scene, they walked with a bit of a stagger.
16 Constable Koenen testified that when he arrested Harley McMaster, he was very cooperative when read his rights and appeared to understand what the officer had read to him. He smelled of alcohol and in the opinion of the officer Harley was impaired but not intoxicated. After his arrest, Harley McMaster fell asleep on the floor of the police interview room.
17 Constable Fong testified that when he arrested Randy McMaster, he appeared to understand everything that was said to him and that he complied with the police demands. His eyes were glassy and bloodshot and his breath smelled of alcohol. He appeared drunk. Constable Koenen testified that Randy McMaster also smelled of alcohol and was impaired but not intoxicated. Another officer, Constable terKuile, assisting in the arrest, also testified that Randy McMaster appeared drunk. Later in the police interview room Randy McMaster was asked by terKuile if he had a lawyer? He replied that his lawyer was Karen Gainer. Randy McMaster then sat in a chair, leaned forward and fell asleep. terKuile testified that he concluded that Randy McMaster had passed out. Another officer, Constable Comber, wrote down in his notebook that Randy McMaster had "passed out very drunk". Some three hours later, Comber returned and noted that Randy McMaster was "still very drunk". During the course of the early morning, the police unsuccessfully tried to wake Randy a number of times.
18 Finally, when the police apprehended the appellants on the street, Randy McMaster was found carrying a gym bag as well as a wine bottle that was only half full. The gym bag and its contents were saturated with wine.
19 The appellants were both convicted at trial of second degree murder. The trial judge was satisfied that "the two accused were jointly involved in the very vicious and severe beating . . . and . . . that neither of the accused was that much under the influence of alcohol as to be deprived of the capacity to form the intent to commit the crime with which they have been charged" (emphasis added). The trial judge sentenced Randy McMaster to life imprisonment without eligibility for parole for 14 years. Harley McMaster was sentenced to life imprisonment without eligibility for parole for 12 years.
20 The Alberta Court of Appeal ([1994] A.J. No. 754) dismissed the appellants' appeal in brief reasons for judgment. The appellants have appealed that decision to this Court pursuant to leave having been granted on March 2, 1995 ([1995] 1 S.C.R. ix).
II. The Issues
21 The following issues are raised by the appellants in this case:
1. Did the trial judge err in law in misdirecting himself with respect to the defence of drunkenness?
2. Did the trial judge err in considering the evidence of intoxication in isolation from his consideration of the overall issue of criminal intent?
3. Did the trial judge misapprehend the evidence concerning Harley McMaster so as to render his verdict unreasonable?
III. Analysis
(i)Did the Trial Judge Err in Law in Misdirecting Himself with Respect to the Defence of Drunkenness?
22 The trial judge's reasons in this case chart the approach taken in Director of Public Prosecutions v. Beard, [1920] A.C. 479, and MacAskill v. The King, [1931] S.C.R. 330, the latter of which was overruled in the companion case of Robinson, supra. The following passages are taken from the trial judge's reasons for judgment on the issue of intoxication:
In my view, there can be no question but that the accused in administering the beating which they did to Mr. Prosper, knew that they were causing him bodily harm that would likely cause his death and were reckless whether death ensued or not.
There is one further matter which I must consider and that is the issue of drunkenness. When a person who commits culpable homicide, is so under the influence of alcohol as to be deprived of the capacity to form the specific intent to commit murder or to cause the victim bodily harm, that he knows is likely to cause his death and is reckless whether death ensues or not, that would have the effect of reducing the offence from one of second degree murder to that of manslaughter.
The onus is on the Crown throughout to prove all essential ingredients of this offence and one of those essential ingredients is, of course, the matter of intent. When there is evidence of drunkenness on the part of an accused charged with an offence such as this .... the Court must consider whether the drunkenness was to such an extent as to deprive the accused of the capacity to form the necessary intent to commit the crime in question.
In the case before me, there is, indeed, evidence of drunkenness on the part of each of the accused. . . .
Indeed, with respect to the accused Randy McMaster, on whose behalf the defence of drunkenness has been most strongly argued, when asked if he wished to consult a lawyer, he indicated that he did so and further indicated that his lawyer was Karen Gainer. It is my view that a person who is thinking that clearly is not that sufficiently under the influence of alcohol as to be deprived of the capacity to form the intent to intend the natural consequences of his actions. I am satisfied beyond a reasonable doubt that the Crown has established to my complete satisfaction and beyond a reasonable doubt that at the time in question, that while the two accused were each under the influence of alcohol, they were not that much under the influence that they were deprived of the capability of forming the specific intent required to commit the crime of murder.
In very brief summary, therefore, I am satisfied beyond a reasonable doubt that the two accused were jointly involved in the very vicious and severe beating that was administered to Mr. Prosper . . . and I am further satisfied beyond a reasonable doubt that neither of the accused was that much under the influence of alcohol as to be deprived of the capacity to form the intent to commit the crime with which they have been charged. [Emphasis added.]
23 In this case, the trial judge's reasons indicate a real possibility that he failed to address his mind to the critical issue of whether the accused had the actual intent to kill rather than the capacity to form the intent for the following reasons:
1. the trial judge refers only to "capacity to form intent" when discussing the effects of alcohol on the critical issue of intent;
2. he refers to capacity or capability to form the intent at five different times in his reasons;
3. his ultimate conclusion is that "neither of the accused was that much under the influence of alcohol as to be deprived of the capacity to form the intent to commit the crime with which they have been charged".
24 The Alberta Court of Appeal was satisfied that the trial judge knew that he was required to consider the issue of actual intent because he stated at one point that the onus is on the Crown to prove intent beyond a reasonable doubt. While the trial judge did assert this proposition, his reasons following this assertion indicate that he believed that intoxication was only relevant to the issue of capacity as per Beard and MacAskill. In other words, he was satisfied that the Crown had proven intent beyond a reasonable doubt because he was satisfied that the appellants had the capacity to form the intent. This chain of reasoning was improper and denied the appellants a defence to which they were entitled in law.
25 Before leaving this ground of appeal, I wish to address briefly the issue of a trial judge's obligation to write reasons in criminal cases since this case involved a trial before a judge sitting without a jury. The issue was recently considered in this Court in the cases of R. v. Burns, [1994] 1 S.C.R. 656, and R. v. Barrett, [1995] 1 S.C.R. 752. I do not interpret these cases as suggesting that there is no obligation on trial judges to write reasons. Indeed, in MacKeigan v. Hickman, [1989] 2 S.C.R. 796, I held at p. 806 that:
Of course, courts should normally disclose in their judgment the basis for their decisions and, when relevant, the evidence it has decided to rely upon. However, if a court chooses not to do so, it may well, in some circumstances though surely not in all, have failed in its adjudicative duties. . . .
So too in Barrett, Iacobucci J. held at p. 753:
While it is clearly preferable to give reasons and although there may be some cases where reasons may be necessary, by itself, the absence of reasons of a trial judge cannot be a ground for appellate review when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances. [Emphasis added.]
26 I am of the view that in cases where the law is well settled and the disposition turns on an application of the law to the particular facts of the case, it will be difficult for an appellant to argue that the failure to provide reasons requires appellate intervention. As Doherty J.A. held in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.), at p. 204:
Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.
27 However, in a case where it appears that the law is unsettled, it would be wise for a trial judge to write reasons setting out the legal principles upon which the conviction is based so that an error may be more easily identified, if error there be. In the case at bar, there is no doubt that at the time of the appellants' trial in October of 1993, the law of intoxication was in a very unsettled and unsatisfactory state. This is exemplified by the different approaches being applied, at that time, by the provincial appellate courts in this country which departed from this Court's decision in MacAskill; see Robinson at paras. 28-33. If the trial judge had not provided reasons in this case, we would not have been in a position to know whether he had applied the MacAskill approach as he in fact had done.
(ii)Did the Trial Judge Err in Considering the Evidence of Intoxication in Isolation from his Consideration of the Overall Issue of Criminal Intent?
28 Both appellants argue that the trial judge erred in considering the issue of intent in isolation from the evidence of intoxication contrary to this Court's decision in R. v. Morin, [1988] 2 S.C.R. 345. They argue that the trial judge looked first at the question of intent and then went on to look at the evidence of intoxication. Since I am of the view that a new trial must be ordered as a result of the trial judge's misdirection concerning the defence of drunkenness, there is no need to consider this ground of appeal.
(iii)Did the Trial Judge Misapprehend the Evidence Concerning Harley McMaster so as to Render his Verdict Unreasonable?
29 Harley McMaster submits that the trial judge misapprehended the evidence and therefore his verdict of second degree murder was unreasonable because there was:
(a) Insufficient Evidence that he was Present at the Scene
30 In my view, there was overwhelming evidence upon which the trial judge could conclude that Harley McMaster was one of the assailants, including the facts that:
1. he met the description of two witnesses at the scene whom the trial judge found to be credible;
2. blood found on his sneakers was consistent with having come from the deceased;
3. he was arrested shortly after the assault only three blocks from the scene. He was walking, when first observed by the arresting officers, side by side with his cousin Randy McMaster;
4. his cousin, Randy McMaster, had the deceased's blood on his clothes and Randy's name was found on documents found at the scene.
31 Moreover, at trial, Harley McMaster's counsel, not his counsel on appeal, conceded that his client was present. The transcript reveals that his counsel told the trial judge that "[y]ou may find from the evidence -- fairly find I think -- that he was present at the scene. . . . I think you can fairly find that on the evidence. There has been no suggestion in the evidence I think to lead you to any other conclusion quite frankly."
(b) Insufficient Evidence of the Acts of Harley McMaster
32 Again, I am of the view that there was sufficient evidence as to the actions of both Randy and Harley McMaster in the beating death of the victim. While some witnesses testified that it was too dark to see, the principal Crown witness -- Collins -- testified that he saw the assailants "hit and kick" the deceased. Collins testified that the lighting was not too bad and that he could see the kicking and punching. In regards to Harley McMaster, Collins testified that he saw the shorter assailant (Harley is shorter than Randy) kick the deceased in the body and punch him with his fists. The trial judge accepted the evidence of Collins and there is no reason for this Court to interfere with that finding.
(c)Insufficient Evidence as to Whether Harley McMaster's Acts were the Cause of Death
33 Counsel for Harley McMaster suggests that since the forensic evidence indicated that the deceased died because of a blow(s) to the head, the trial judge failed to consider whether Harley could have "caused" the death since the only evidence of his involvement was blows to the body. However, the trial judge made it clear in his reasons that he was satisfied that the cousins were acting in concert and "jointly involved" in causing the death. It is a well-established principle that where a trier of fact is satisfied that multiple accused acted in concert, there is no requirement that the trier of fact decide which accused actually struck the fatal blow. See R. v. Isaac, [1984] 1 S.C.R. 74, at pp. 80-81, and R. v. Thatcher, [1987] 1 S.C.R. 652.
(d) Insufficient Evidence of Intent
34 The trial judge's error in this case was his misdirection of the law of intoxication. In my opinion, he did not err in not setting out all of the facts upon which he relied in finding that the appellant did have the requisite intent for murder.
35 In light of the fact that this Court has established a new framework for the relevance of intoxication evidence, the issue of whether the appellant had the requisite intent is better left for the new trial judge or jury who will be in a better position to assess the evidence. Moreover, counsel for the defence and Crown may decide that additional evidence should be introduced given that the issue is no longer solely one of capacity but rather intent in fact.
36 I would therefore conclude that the verdict regarding Harley McMaster was not unreasonable and dismiss this ground of appeal.
IV. Disposition
37 In conclusion, I am of the view that the trial judge's misdirection on the law of intoxication constituted an error of law. The respondent has not raised s. 686(1)(b)(iii) of the Code in argument. As I held in R. v. Pétel, [1994] 1 S.C.R. 3, at p. 17, "[t]he Crown has the burden of showing that this provision is applicable. . . . This Court cannot apply it proprio motu." Moreover, for the reasons stated in Robinson, I am of the view that the curative proviso should not be applied in this type of a case. Consequently, I would allow the appeal, quash the convictions and order a new trial for both appellants.
The following are the reasons delivered by
38 L'Heureux-Dubé J. -- I have had the opportunity to read the reasons of Chief Justice Lamer and I agree with his conclusion that the trial judge in this case misdirected himself with respect to the evidence of intoxication. The trial judge appears to have proceeded on the basis that evidence of intoxication could not be considered unless it reached a level at which the accused was no longer capable of forming the specific intent required to commit the offence. In so doing, the trial judge fell into error. For the reasons I give in R. v. Robinson, [1996] 1 S.C.R. 683, evidence of intoxication may be considered, together with all of the other evidence, in determining whether the accused had the requisite specific intent.
39 Both at trial and at the hearing of this appeal, Crown counsel conceded that there was sufficient evidence of intoxication to give an air of reality to the theory that the accused may have acted without intent. Before this Court, the Crown also expressly declined to rely on s. 686(1)(b)(iii) of the Criminal Code , R.S.C., 1985, c. C-46 , which otherwise would have allowed us to consider whether, in spite of the trial judge's misdirection, no substantial wrong or miscarriage of justice occurred in this case. For these reasons, this Court has no option but to allow the appeal and order a new trial for both appellants.
40 There is, however, one additional matter on which I must comment. The Chief Justice, after reaching the conclusion that the trial judge misdirected himself on the issue of intoxication, goes on to address the question of whether a trial judge, sitting alone, has the obligation to set out the propositions of law upon which the verdict rests. This issue was addressed in R. v. Burns, [1994] 1 S.C.R. 656, and R. v. Barrett, [1995] 1 S.C.R. 752, in which we held that the absence of reasons is not, in itself, a ground of appeal. The Chief Justice now expresses the view, at para. 27, that, "where it appears that the law is unsettled, it would be wise for a trial judge to write reasons setting out the legal principles upon which the conviction is based so that an error may be more easily identified, if error there be". I do not doubt that it is always wise for a trial judge to provide reasons. However, I wish to emphasize that the Chief Justice's statement refrains, and rightly so, from imposing any legal obligation on the trial judge to give detailed reasons in every case.
41 I would dispose of the appeal in the manner proposed by the Chief Justice.
Appeal allowed.
Solicitors for the appellant Randy Andre McMaster: Singleton, Urquhart, Macdonald, Calgary.
Solicitor for the appellant Harley Howard McMaster: James L. F. Gladstone, Stand Off, Alberta.
Solicitor for the respondent: The Attorney General for Alberta, Edmonton.
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