R. v. Lemky (T.R.), (1996) 194 N.R. 1 (SCC)

• Judge: Iacobucci and Major, JJ.
• Court: Supreme Court of Canada
• Case Date: Thursday March 21, 1996
• Jurisdiction: Canada (Federal)
• Citations: (1996), 194 N.R. 1 (SCC);[1996] 4 WWR 650;[1996] 1 SCR 757;1996 CanLII 235 (SCC);105 CCC (3d) 137;46 CR (4th) 55;73 BCAC 1;194 NR 1

R. v. Lemky (T.R.) (1996), 194 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Timothy Randall Lemky (appellant) v. Her Majesty The Queen (respondent)

(24454)

Indexed As: R. v. Lemky (T.R.)

Supreme Court of Canada

Lamer, C.J.C., La Forest, L'Heureux-Dubé,

Sopinka, Gonthier, Cory, McLachlin,

Iacobucci and Major, JJ.

March 21, 1996.

Summary:

The accused appealed his second degree murder conviction on the grounds that the trial judge failed to exclude inadmissible evidence, admitted formal admissions con­taining hearsay, failed to charge the jury on drunkenness and failed to provide the jury with a copy of the manslaughter provisions of the Criminal Code (s. 234).

The British Columbia Court of Appeal, in a judgment reported 17 B.C.A.C. 71; 29 W.A.C. 71, dismissed the appeal. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (re intent and drunkenness) - The accused was convicted of second degree murder following the shooting death of his com­mon law spouse - The accused claimed the trial judge erred in failing to instruct the jury on drunkenness - The defence was not raised at trial, nor did the accused request that the jury be instructed on the issue - Drunken­ness and consumption of alcohol was relied on solely to bolster the defence of accidental shooting - The British Colum­bia Court of Appeal stated that there was insufficient evidence of drunkenness to give the defence an air of reality, accord­ingly, the trial judge did not err in failing to instruct the jury on the issue - The Supreme Court of Canada held that "there is nothing on the facts of this case which lends an air of reality to the defence that the appellant lacked the nec­essary mens rea for the offence of murder because intoxication prevented him from foreseeing that the act of shooting was likely to cause [his common law spouse's] death".

Criminal Law - Topic 1299

Murder - Defences - Jury charge (re intent and drunkenness) - The Supreme Court of Canada stated the threshold for when a jury must be directed on drunken­ness relating to intent: "the question is whether the evidence of drunkenness was sufficient to permit a reasonable inference that the accused may not in fact have foreseen that his act of firing the gun at the deceased would cause her death" - See paragraph 17.

Criminal Law - Topic 1299

Murder - Defences - Jury charge (re intent and drunkenness) - The Supreme Court of Canada stated that "the jury must be instructed that the ultimate issue is whether they are satisfied beyond a rea­sonable doubt that the accused actually intended the consequence of his act. Beyond this, ritualistic formulae are mis­placed. In many cases, the trial judge may find it useful to direct the jury to consider capacity as a preliminary step in the ulti­mate inquiry. In others, the trial judge may not. The nature of the case dictates what direction should be given. 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. In the final analysis, the jury must (1) understand that the Crown must prove beyond a rea­sonable doubt that the accused, at the time of the offence, actually foresaw the natural consequences of his or her act, i.e., the death of the victim, and (2) understand how the evidence in the case relates to this legal requirement." - See paragraph 15.

Cases Noticed:

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81, refd to. [para. 12].

R. v. Laybourn, Bulmer and Illingworth, [1987] 1 S.C.R. 782; 75 N.R. 271, refd to. [para. 12].

R. v. Park (D.G.), [1995] 2 S.C.R. 836; 183 N.R. 81; 169 A.R. 241; 97 W.A.C. 241, refd to. [para. 12].

Director of Public Prosecutions v. Beard, [1920] A.C. 479 (H.L.), refd to. [para. 13].

R. v. Korzepa (1991), 64 C.C.C.(3d) 489 (B.C.C.A.), refd to. [para. 13].

R. v. Canute (S.F.) (1993), 25 B.C.A.C. 277; 43 W.A.C. 277; 80 C.C.C.(3d) 403 (C.A.), refd to. [para. 14].

R. v. Robinson (D.) (1996), 194 N.R. 181 (S.C.C.), appld. [para. 15].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 229(a) [para. 10].

Counsel:

Adrian Brooks, for the appellant;

William F. Ehrcke, for the respondent.

Solicitors of Record:

Brooks, Purves, McKimm & Marshall, Victoria, British Columbia, for the ap­pellant;

The Attorney General of British Columbia, Vancouver, British Columbia, for the respondent.

This appeal was heard on December 8, 1995, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.

The judgment of the Supreme Court of Canada was delivered in both official lan­guages on March 21, 1996, and the follow­ing opinions were filed:

McLachlin, J. (Lamer, C.J.C., La Forest, Sopinka, Gonthier, Cory, Iacobucci and Major, JJ., concurring) - see paragraphs 1 to 25;

L'Heureux-Dubé, J. - see paragraph 26.