R. v. Robinson (D.), (1994) 48 B.C.A.C. 161 (CA)

• Judge: Gibbs, Rowles and Prowse, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 02, 1994
• Jurisdiction: British Columbia
• Citations: (1994), 48 B.C.A.C. 161 (CA)

R. v. Robinson (D.) (1994), 48 B.C.A.C. 161 (CA);

    78 W.A.C. 161

MLB headnote and full text

Regina (respondent) v. Donald Robinson (appellant)

(CA014636)

Indexed As: R. v. Robinson (D.)

British Columbia Court of Appeal

Gibbs, Rowles and Prowse, JJ.A.

September 2, 1994.

Summary:

A jury found the accused guilty of second degree murder. The accused appealed from conviction.

The British Columbia Court of Appeal, Gibbs, J.A., dissenting, allowed the appeal and ordered a new trial.

Criminal Law - Topic 33

General principles - Mens rea or intention - Crimes of specific intent v. crimes of general or basic intent - The British Col­umbia Court of Appeal traced the history of the present law on intoxication as a defence to a specific intent offence - See paragraphs 17 to 30.

Criminal Law - Topic 113

General principles - Insanity, automatism, etc. - Intoxication - [See Criminal Law - Topic 133 ].

Criminal Law - Topic 1265

Offences against person and reputation - Murder - General principles - Jury charge - General - The British Columbia Court of Appeal held that a trial judge erred in his jury charge by not clearly explaining or distinguishing between the two intents for murder, as specified in ss. 229(a)(i) and 229(a)(ii) of the Criminal Code - See paragraphs 45 to 50, 61 to 62.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (re intent and drunkenness) - An accused's defence to murder was intoxication - The British Columbia Court of Appeal held that the trial judge's jury instruction sug­gested that there was a threshold test which must be met before the defence of intoxication could succeed - The court held that this was an error - The judge also introduced the concept of insanity in relation to the defence of intoxication - This the court held was also an error - See paragraphs 51 to 59, 64 to 68.

Criminal Law - Topic 4356

Procedure - Jury charge - Directions re­garding intent or mens rea - An ac­cused's defence to murder was intoxication - The British Columbia Court of Appeal held that the trial judge erred in referring to the common sense inference that a person intended the natural consequences of his acts as a "presumption" - The court held that failure to adhere to a particular sequence of instructions was not, of itself, error - The instruction on proof of inten­tion was not linked to that on drunkenness - The court held that this failure might well have left the jury without a clear understanding that the inference could: (1) be drawn only after assessment of all evidence, including intoxication and (2) not be applied if they were left with a reasonable doubt about the accused's in­tention - See paragraphs 32 to 44, 62 to 63.

Criminal Law - Topic 4378

Procedure - Jury charge - Judicial review of - The British Columbia Court of Appeal stated that when an appeal was based on alleged error in the jury charge, the test to be applied was not whether the charge was free of imperfection, but whether the charge, when viewed as a whole, consti­tuted an adequate instruction on the law - See paragraph 34.

Cases Noticed:

R. v. Korzepa (1991), 64 C.C.C.(3d) 489 (B.C.C.A.), consd. [para. 16].

R. v. Canute (S.F.) (1993), 25 B.C.A.C. 277; 43 W.A.C. 277; 80 C.C.C.(3d) 403; 20 C.R.(4th) 312 (C.A.), consd. [para. 16].

R. v. Larose (R.) (1993), 25 B.C.A.C. 264; 43 W.A.C. 264 (C.A.), consd. [para. 16].

Director of Public Prosecutions v. Beard, [1920] A.C. 479; [1920] All E.R. Rep. 21; 14 Cr. App. Rep. 159; 89 L.J.K.B. 437; 122 L.T. 625; 84 J.P. 129; 26 Cox C.C. 573 (H.L.), consd. [para. 17].

MacAskill v. R., [1931] S.C.R. 330; [1931] 3 D.L.R. 166; 55 C.C.C. 81, refd to. [para. 19].

Malanik v. R. (No. 3), [1952] 2 S.C.R. 335; 103 C.C.C. 1; 14 C.R. 367, refd to. [para. 19].

R. v. Giannotti, [1956] O.R. 349; 115 C.C.C. 203 (C.A.), refd to. [para. 20].

R. v. MacKinlay (1986), 15 O.A.C. 241; 28 C.C.C.(3d) 306; 53 C.R.(3d) 105 (C.A.), consd. [para. 21].

R. v. Laisa, [1993] N.W.T.R. 199 (C.A.), refd to. [para. 30].

R. v. Smoke, [1993] A.J. 758 (C.A.), refd to. [para. 30].

R. v. Dumais (A.V.) (1993), 116 Sask.R. 217; 87 C.C.C.(3d) 281 (C.A.), refd to. [para. 30].

R. v. Cormier (R.), [1993] R.J.Q. 2723; 59 Q.A.C. 1; 86 C.C.C.(3d) 163 (C.A.), refd to. [para. 30].

R. v. Keller (M.F.) (1993), 66 O.A.C. 388 (C.A.), refd to. [para. 30].

Preston v. R., [1949] S.C.R. 156; 93 C.C.C. 81; 7 C.R. 72, refd to. [para. 34].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451; 98 D.L.R.(3d) 111; 47 C.C.C.(2d) 24; 10 C.R.(3d) 299, refd to. [para. 34].

R. v. Vezeau, [1977] 2 S.C.R. 277; 8 N.R. 235; 66 D.L.R.(3d) 418; 28 C.C.C.(2d) 81; 34 C.R.N.S. 309, refd to. [para. 34].

R. v. Cooper, [1993] 1 S.C.R. 146; 146 N.R. 367; 103 Nfld. & P.E.I.R. 209; 326 A.P.R. 209; 78 C.C.C.(3d) 289; 18 C.R.(4th) 1, refd to. [para. 34].

R. v. McColeman (1991), 5 B.C.A.C. 128; 11 W.A.C. 128 (C.A.), refd to. [para. 78].

R. v. Fehr (1992), 8 B.C.A.C. 306; 17 W.A.C. 306 (C.A.), refd to. [para. 78].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 229(a) [paras. 46, 48]; sect. 229(a)(i) [paras. 36, 45, 47, 74, 83, 96]; sect. 229(a)(ii) [paras. 13, 36, 45, 47, 50, 61, 74, 83, 96]; sect. 686(1)(b)(iii) [para. 70].

Counsel:

G.D. McKinnon, Q.C., for the appellant;

W.F. Ehrcke, for the respondent.

This appeal was heard on November 18, 1993, before Gibbs, Rowles and Prowse, JJ.A., of the British Columbia Court of Appeal.

On September 2, 1994, the judgment of the Court was rendered and the following opin­ions were filed:

Rowles, J.A. (Prowse, J.A., concurring) - see paragraphs 1 to 71;

Gibbs, J.A., dissenting - see paragraphs 72 to 101.