R. v. Cooper, (1993) 103 Nfld. & P.E.I.R. 209 (SCC)

• Judge: Lamer, C.J.C., L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 06, 1992
• Jurisdiction: Canada (Federal)
• Citations: (1993), 103 Nfld. & P.E.I.R. 209 (SCC);78 CCC (3d) 289;326 APR 209;18 WCB (2d) 367;103 Nfld & PEIR 209;[1993] 1 SCR 146;146 NR 367;JE 93-248;18 CR (4th) 1;1993 CanLII 147 (SCC);[1993] SCJ No 8 (QL)

R. v. Cooper (1993), 103 Nfld. & P.E.I.R. 209 (SCC);

    326 A.P.R. 209

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Her Majesty The Queen v. Lyndon Paul Cooper

(No. 22395)

Indexed As: R. v. Cooper

Supreme Court of Canada

Lamer, C.J.C., L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ.

January 21, 1993.

Summary:

The accused was convicted of second degree murder after trial by judge and jury. He appealed on the ground of inadequate charge to the jury on the defence of intoxi­cation.

The Newfoundland Court of Appeal, in a decision reported at 89 Nfld. & P.E.I.R. 1; 278 A.P.R. 1, allowed the appeal and ordered a new trial. The Crown appealed.

The Supreme Court of Canada, Lamer, C.J.C., dissenting, allowed the appeal and restored the conviction.

Criminal Law - Topic 1263

Murder - General principles - Intention - The Supreme Court of Canada discussed the nature of the intent required to secure a conviction for murder under s. 212(a)(ii) of the Criminal Code - The court stated that the intent has two aspects, namely, the subjective intent to cause bodily harm and, secondly, the subjective knowledge that the bodily harm is of such a nature that it is likely to result in death - There is only a "slight relaxation" in the mens rea required for a conviction for murder under s. 212(a)(ii) as compared to s. 212(a)(i) - See paragraphs 9 to 15.

Criminal Law - Topic 1263

Murder - General principles - Intention - The Supreme Court of Canada stated that intent be present in order to convict a person of murder - Not only must the intent be present, but it must be concurrent with the impugned act - They need, how­ever, only coincide at some point - An act which was innocent or no more than care­less at the outset may become criminal at a later stage when the accused acquires the knowledge of the nature of the act and still refuses to change his course of action - The determination of whether intent coincides with the wrongful act depends largely upon the nature of the act - See paragraphs 16 to 22.

Criminal Law - Topic 1263

Murder - General principles - Intention - The victim was strangled and death likely occurred within two minutes after she was grabbed by the neck - The accused tes­tified that he grabbed the victim and then "blacked out" - The Supreme Court of Canada affirmed the accused's conviction for murder under the Criminal Code, s. 212(a)(ii) - The jury could infer that the intent and wrongful act coincided when the accused grabbed the victim by the neck - The intent need not continue until the death occurred - When death results from a series of wrongful acts that are part of a single transaction, it must be established that intent and the wrongful acts coincided at some point - See paragraphs 23 to 31.

Criminal Law - Topic 1265

Murder - General principles - Jury charge - General - The Supreme Court of Canada stated that a jury charge should be read as a whole - The charge must set out the positions of the Crown and the defence, the legal issues involved and the evidence that might be applied in resolving the legal issues and ultimately in determining guilt or innocence of the accused - See para­graph 35.

Criminal Law - Topic 1299

Murder - Defences - Jury charge - Re intent and drunkenness - The accused pleaded drunkenness to a charge of murder - The trial judge repeatedly instructed the jury that, if they were not satisfied beyond a reasonable doubt that the accused had the capacity to form the requisite intent as a result of the consumption of alcohol, they were to acquit; if the accused had the capacity to form the intent, they had to be satisfied beyond a reasonable doubt that he did in fact have the requisite intent and, in determining that issue, they could take into account the alcohol that had been con­sumed - The Supreme Court of Canada held that the jury charge was adequate - See paragraph 36.

Cases Noticed:

R. v. Nygaard and Schimmens, [1989] 2 S.C.R. 1074; 101 N.R. 108; 102 A.R. 186, refd to. [para. 7].

R. v. Sansregret, [1985] 1 S.C.R. 570; 58 N.R. 123; 35 Man.R.(2d) 1; 18 C.C.C.(3d) 223, refd to. [para. 12].

R. v. Vaillancourt, [1987] 2 S.C.R. 636; 81 N.R. 115; 10 Q.A.C. 161; 68 Nfld. & P.E.I.R. 281; 209 A.P.R. 281; 60 C.R.(3d) 289; 39 C.C.C.(3d) 118, refd to. [para. 16].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353, refd to. [para. 17].

R. v. Droste (1979), 49 C.C.C.(2d) 52 (Ont. C.A.), refd to. [para. 18].

Fagan v. Metropolitan Police Commis­sioner, [1968] 3 All E.R. 442 (Q.B.), refd to. [para. 19].

R. v. Meli, [1954] 1 W.L.R. 228 (P.C.), refd to. [para. 22].

R. v. MacKinlay (1986), 15 O.A.C. 241; 28 C.C.C.(3d) 306 (C.A.), refd to. [para. 37].

R. v. Korzepa (1991), 64 C.C.C.(3d) 489 (B.C.C.A.), refd to. [para. 37].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 212(a)(i) [paras. 14, 45]; sect. 212(a)(ii) [paras. 1, 40]; sect. 245.1, sect. 245.3, sect. 246.2 [para. 42].

Criminal Code, R.S.C. 1985, c. C-46, sect. 229(a)(ii) [paras. 1, 40]; sect. 267, sect. 269, sect. 272 [para. 42].

Authors and Works Noticed:

Stuart, Don, Canadian Criminal Law (2nd Ed. 1987), p. 305 [para. 18].

Counsel:

J. Thomas Eagan, for the appellant;

Ernest L. Gittens, for the respondent.

Solicitors of Record:

Department of Justice, St. John's, New­foundland, for the appellant;

Gittens, Casey, St. John's, Newfoundland, for the respondent.

This appeal was heard on October 6, 1992, before Lamer, C.J.C., L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci, JJ., of the Supreme Court of Canada. On January 21, 1993, the decision of the court was delivered in both official languages and the following opinions were filed:

Cory, J. (L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and Iacobucci, JJ., concurring) - see paragraphs 1 to 39;

Lamer, C.J.C., dissenting - see paragraphs 40 to 47.