R. v. W.J.D., (2007) 369 N.R. 225 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 18, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 369 N.R. 225 (SCC);2007 SCC 53

R. v. W.J.D. (2007), 369 N.R. 225 (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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Temp. Cite: [2007] N.R. TBEd. DE.002

W.J.D. (appellant) v. Her Majesty The Queen (respondent)

(31616; 2007 SCC 53; 2007 CSC 53)

Indexed As: R. v. W.J.D.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

December 13, 2007.

Summary:

The accused was convicted of second degree murder and sentenced to life imprisonment without the possibility of parole for 14 years. He appealed against conviction and sentence.

The Saskatchewan Court of Appeal, Smith, J.A., dissenting, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, Fish, Binnie, LeBel and Charron, JJ., dissenting, dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Criminal Law - Topic 113

General principles - Mental disorder - Insanity, automatism, etc. - Intoxication - The Supreme Court of Canada stated that "there are three legally relevant degrees of intoxication. First, there is what we might call 'mild' intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea. ... Second, there is what we might call 'advanced' intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused's foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. ... A defence based on this level of intoxication applies only to specific intent offences. ... The third and final degree of legally relevant intoxication is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility. ... [S]uch a defence would be extremely rare, and by operation of s. 33.1 of the Criminal Code, limited to non-violent types of offences." - See paragraphs 41 to 43.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - The Supreme Court of Canada discussed what constituted an adequate charge on advanced intoxication - The court stated that "While this Court endorsed the Canute-type [R. v. Canute (1993, B.C.C.A.)] charge as that which should generally be given, it left the door open for trial judges to instruct along the lines of the model charge set out in MacKinlay [R. v. MacKinlay (1986, Ont. C.A.)]. The essential difference between the Canute-and MacKinlay-type charges is that the later makes an explicit distinction between findings on capacity and findings of actual intent. In the MacKinlay-type charge, the jury is told that if it entertains a reasonable doubt whether the accused by reason of intoxication had the capacity to form the necessary intent, then the necessary intent has not been proven. The trial judge must then go on to say that, even if they are satisfied beyond a reasonable doubt that the accused had the capacity to form the necessary intent, they must then go on to consider whether, taking into account the consumption of liquor and the other facts, the prosecution has satisfied them beyond a reasonable doubt that the accused in fact had the requisite intent. On the other hand, the Canute model charge focuses only on the issue of whether the accused possessed actual intent and omits any references to capacity. ... The Canute-type charge underwent one further modification in R. v. Seymour, [1996. S.C.C.]. There, this Court held that while it is necessary for trial judges to instruct on the common sense inference for specific intent offences, where there is evidence of intoxication, there must be a direct link drawn between the effect of intoxication and the common sense inference." - See paragraphs 47 to 53.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused and the victim (his common law partner) went out drinking - They came home and the accused left with friends to go drinking some more - When he returned home, the house was locked and neighbours heard him cursing and trying to get into the house - The next morning, the victim was found in the house, lying in a pool of blood, dead from a stab wound and naked from the waist down - The accused was convicted of second degree murder - The accused appealed, asserting that the trial judge failed to properly present the issue of intoxication to the jury - The Supreme Court of Canada dismissed the appeal - It was clear that the trial judge was following the Canute (R. v. Canute (1993, B.C.C.A.))  model charge, with the further addition of the modified instruction on the common sense inference suggested in Seymour (R. v. Seymour, (1996, S.C.C.)) - After identifying that the main issue in the case was whether the accused had the intent to kill the victim, he went on to explain how this would be proven - He then proceeded to identify the evidence that would assist the jury in assessing whether the accused had this intent - He next explained the common sense inference and linked this to the evidence of intoxication - The trial judge then proceeded to identify evidence relevant to the jury's determination of whether to draw the common sense inference or not - After this review, he again instructed the jury on the legal conclusions they could reach after assessing the evidence - On a functional review of the charge, the jury properly understood that one of the main questions before them was whether the accused was so intoxicated that he could not foresee that stabbing the victim would result in her death - See paragraphs 63 to 68.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused and the victim (his common law partner) went out drinking - They came home and the accused left with friends to go drinking some more - When he returned home, the house was locked and neighbours heard him cursing and trying to get into the house - The next morning, the victim was found in the house, lying in a pool of blood, dead from a stab wound and naked from the waist down - The accused was convicted of second degree murder - The accused appealed, asserting that the trial judge failed to explain the real implication of the expert's evidence - The Supreme Court of Canada dismissed the appeal - The trial judge's summary of the expert's evidence was adequate - The trial judge was under no obligation to read more into, or to interpret for the jury, what was presented - The trial judge's summary was not so incomplete or biased in favour of one position that it gave rise to reversible error - The expert testified that there was a correlation between alcohol-induced amnesia and a lack of judgment and assessment of appropriateness - The trial judge summarized that properly, separately from that portion of the charge dealing specifically with the issue of intoxication, with the rest of the expert testimony - Because what clearly came out of the expert's testimony was not particularly helpful in determining the central issue of whether the accused lacked the requisite intent and because the sequence to be followed in a jury charge was generally a matter within the trial judge's discretion, there was no error - Had the expert testified in clear terms, there would have been serious concerns about the adequacy of the summary and presentation of this evidence, but the evidence was lacking and appellate courts should not attempt to fill in the gaps or make inferences that end up changing the evidence that the jury was to consider - See paragraphs 81 to 89.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused and the victim (his common law partner) went out drinking - They came home and the accused left with friends to go drinking some more - When he returned home, the house was locked and neighbours heard him cursing and trying to get into the house - The next morning, the victim was found in the house, lying in a pool of blood, dead from a stab wound and naked from the waist down - The accused was convicted of second degree murder - The accused appealed, asserting that the trial judge misled the jury with respect to the significance of alcohol amnesia - The Supreme Court of Canada dismissed the appeal - Not all elements of this theory were established on the evidence - Most importantly, the link between loss of the capacity for judgment and evaluation of appropriateness and loss of the ability to foresee the consequences of one's actions was never clearly addressed in the expert's testimony and the trial judge had no duty to filter it out - See paragraphs 90 to 92.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused and the victim (his common law partner) went out drinking - They came home and the accused left with friends to go drinking some more - When he returned home, the house was locked and neighbours heard him cursing and trying to get into the house - The next morning, the victim was found in the house, lying in a pool of blood, dead from a stab wound and naked from the waist down - The accused was convicted of second degree murder - The accused appealed, asserting that the trial judge erred in failing to give a two step charge as set out in R. v. MacKinley (1986, Ont. C.A.) - The two step charge first instructed on the capacity to form the requisite intent and then went on to say that if the jury found beyond a reasonable doubt that the accused possessed the capacity to form the requisite intent, they had to still go on to determine whether the accused possessed the actual intent - The Canute (R. v. Canute (1993, B.C.C.A.)) model charge applied by the trial judge focused only on whether the accused possessed actual intent - The Supreme Court of Canada dismissed the appeal - The expert only clearly testified about lack of capacity for judgment and evaluation of appropriateness, not about lack of capacity for specific intent, specifically the capacity to foresee the consequences of one's act - Therefore, the expert did not testify in the relevant capacity language and a MacKinlay-type charge was not called for - The accused's counsel did request that a MacKinlay-type instruction be given on the recharge and the trial judge declined to recharge on this issue, primarily on the basis that he thought this would only serve to confuse the jury - Given the expert evidence, there was  no reversible error in his refusal to do so - See paragraphs 97 to 102.

Criminal Law - Topic 1299

Offences against person and reputation - Murder - Defences - Jury charge (incl. intent and drunkenness) - The accused and the victim (his common law partner) went out drinking - They came home and the accused left with friends to go drinking some more - When he returned home, the house was locked and neighbours heard him cursing and trying to get into the house - The next morning, the victim was found in the house, lying in a pool of blood, dead from a stab wound and naked from the waist down - The accused was convicted of second degree murder - The accused appealed, asserting that the trial judge should have done more to prevent the jury from readily applying the common sense inference - The Supreme Court of Canada dismissed the appeal - The trial judge had to do no more than link the common sense inference to the evidence of intoxication - It was necessary to instruct the jury on the common sense inference in most cases, for it assisted the jury in understanding how they were to conclude whether or not there was the necessary intent - So long as the members of the jury were instructed that they were not bound to draw this inference, particularly in light of the evidence of intoxication, which the trial judge did in this case, there was nothing objectionable about instructions on the common sense inference - The trial judge did not have to take pains to tell the jury they were not bound to draw the inference where there was evidence of a significant degree of intoxication, as this was a matter of common sense - See paragraphs 103 and 104.

Criminal Law - Topic 4350

Procedure - Charge or directions - Jury or judge alone - General - At issue in this case was the trial judge's final charge to the jury - The Supreme Court of Canada set out "eight elements that should be covered: 1. instruction on the relevant legal issues, including the charges faced by the accused; 2. an explanation of the theories of each side; 3. a review of the salient facts which support the theories and case of each side; 4. a review of the evidence relating to the law; 5. a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations; 6. instruction about the burden of proof and presumption of innocence; 7. the possible verdicts open to the jury; and 8. the requirements of unanimity for reaching a verdict. When considering the adequacy of a trial judge's charge on these elements, it is important for appellate courts to keep in mind the following. The cardinal rule is that it is the general sense which the words used must have conveyed, in all probability, to the mind of the jury that matters, and not whether a particular formula was recited by the judge. The particular words used, or the sequence followed, is a matter within the discretion of the trial judge and will depend on the particular circumstances of the case. ... The accused is entitled to a properly instructed jury, not a perfectly instructed jury. ... It is the overall effect of the charge that matters." - See paragraphs 27 to 31.

Criminal Law - Topic 4352

Procedure - Charge or directions - Jury or judge alone - Direction on evidence generally - The accused and the victim (his common law partner) went out drinking - They came home and the accused left with friends to go drinking some more - When he returned home, the house was locked and neighbours heard him cursing and trying to get into the house - The next morning, the victim was found in the house, lying in a pool of blood, dead from a stab wound and naked from the waist down - The accused was convicted of second degree murder - The accused appealed, asserting that the trial judge gave a one sided summary of the evidence - The Supreme Court of Canada dismissed the appeal - The trial judge related the evidence to the jury at various points in his charge - The trial judge's obligation was only to provide a summary of the evidence - This was a relatively short trial, lasting only seven days - The testimony of the witnesses would have been still fresh in the minds of the jurors and counsel had reviewed the evidence in support of their case immediately before the jury charge - The trial judge did not have to review all the evidence that was given at trial - See paragraphs 69 to 80.

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - [See third Criminal Law - Topic 1299 ].

Cases Noticed:

R. v. MacKinlay (1986), 15 O.A.C. 241; 28 C.C.C.(3d) 306 (C.A.), consd. [para. 20].

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

R. v. Jacquard (C.O.), [1997] 1 S.C.R. 314; 207 N.R. 246; 157 N.S.R.(2d) 161; 462 A.P.R. 161, refd to. [para. 28].

D.P.P. v. Beard, [1920] A.C. 479 (H.L.), refd to. [para. 34].

R. v. Bernard, [1988] 2 S.C.R. 833; 90 N.R. 321; 32 O.A.C. 161, refd to. [para. 35].

R. v. George, [1960] S.C.R. 871, refd to. [para. 35].

R. v. Leary, [1978] 1 S.C.R. 29; 13 N.R. 592, refd to. [para. 36].

R. v. Daviault (H.), [1994] 3 S.C.R. 63; 173 N.R. 1; 64 Q.A.C. 81, refd to. [para. 37].

R. v. Stone (B.T.), [1999] 2 S.C.R. 290; 239 N.R. 201; 123 B.C.A.C. 1; 201 W.A.C. 1, refd to. [para. 38].

R. v. Robinson (D.), [1996] 1 S.C.R. 683; 194 N.R. 1; 72 B.C.A.C. 161; 119 W.A.C. 161, refd to. [para. 40].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 50].

R. v. Berrigan (1998), 108 B.C.A.C. 224; 176 W.A.C. 224; 127 C.C.C.(3d) 120 (C.A.), refd to. [para. 52].

R. v. Hannon (J.J.) (2001), 158 B.C.A.C. 214; 258 W.A.C. 214 (C.A.), refd to. [para. 52].

R. v. Simpson (P.W.) (1999), 125 B.C.A.C. 44; 204 W.A.C. 44; 1999 BCCA 310, refd to. [para. 53].

R. v. Azoulay, [1952] 2 S.C.R. 495, refd to. [para. 54].

R. v. Demeter (1975), 25 C.C.C.(2d) 417 (Ont. C.A.), refd to. [para. 55].

R. v. Young, [1981] 2 S.C.R. 39; 36 N.R. 463, refd to. [para. 55].

R. v. Thériault, [1981] 1 S.C.R. 336; 37 N.R. 361, refd to. [para. 55].

R. v. Girard (1996), 109 C.C.C.(3d) 545 (Que. C.A.), refd to. [para. 56].

R. v. Jack (B.) (1993), 88 Man.R.(2d) 93; 51 W.A.C. 93 (C.A.), affd. [1994] 2 S.C.R. 310; 168 N.R. 13; 95 Man.R.(2d) 158; 70 W.A.C. 158, refd to. [para. 57].

The King v. Collins (1907), 38 N.B.R. 318 (S.C.), refd to. [para. 61].

R. v. Cooper, [1980] 1 S.C.R. 1149; 31 N.R. 234, refd to. [para. 62].

R. v. Tipewan (L.C.), [1998] Sask.R. Uned. 203 (Q.B.), refd to. [para. 86].

R. v. Lemky (T.R.), [1996] 1 S.C.R. 757; 194 N.R. 1; 73 B.C.A.C. 1; 120 W.A.C. 1; 105 C.C.C.(3d) 137, refd to. [para. 98].

R. v. Courtereille (S.F.) (2001), 147 B.C.A.C. 125; 241 W.A.C. 125; 40 C.R.(5th) 338 (C.A.), refd to. [para. 104].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 105].

R. v. Good (J.S.) (1998), 102 B.C.A.C. 177; 166 W.A.C. 177 (C.A.), refd to. [para. 106].

Bray v. Ford, [1896] A.C. 44 (H.L.), refd to. [para. 117].

Spencer v. Alaska Packers (1905), 35 S.C.R. 362, refd to. [para. 117].

R. v. MacKay (K.D.), [2005] 3 S.C.R. 607; 343 N.R. 398; 275 Sask.R. 40; 365 W.A.C. 40; 2005 SCC 75, refd to. [para. 118].

Kelsey v. R., [1953] 1 S.C.R. 220, refd to. [para. 121].

R. v. Clayton-Wright, 33 Cr. App. R. 22, refd to. [para.121].

R. v. Pappajohn, [1980] 2 S.C.R. 120; 32 N.R. 104, refd to. [para. 122].

Wu v. R., [1934] S.C.R. 609, refd to. [para. 123].

Authors and Works Noticed:

Ferguson, Gerry A., Dambrot, Michael R.,

and Bennett, Elizabeth A., Canadian Criminal Jury Instructions (4th Ed.) (2005 Looseleaf) (2006 Update), p. 8.36-11 [para. 66].

Der, Balfour Q.H., The Jury - A Handbook of Law and Procedure (1989) (2006 Looseleaf Update), p. 14-1 [para. 29].

Granger, Christopher, The Criminal Jury Trial in Canada (2nd Ed. 1996), pp. 6 [para. 27]; 249 [para. 57].

Popple, A.E., Canadian Criminal Procedure (Annotations) (1952), p. 16 [para. 124].

Stuart, Donald, Canadian Criminal Law: A Treatise (4th Ed. 2001), p. 427 [para. 102].

Watt's Manual of Criminal Jury Instructions (2005), pp. 827, 828 [para. 63]; 829 [para. 135].

Counsel:

Hersh E. Wolch, Q.C., for the appellant;

Anthony B. Gerein, for the respondent.

Solicitors of Record:

Wolch, Ogle, Wilson, Hursh & deWit, Calgary, Alberta, for the appellant;

Attorney General for Saskatchewan, Regina, Saskatchewan, for the respondent.

This appeal was heard on May 18, 2007, by McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on December 13, 2007, and included the following opinions:

Bastarache, J. (McLachlin, C.J.C., Deschamps, Abella and Rothstein, JJ., concurring) - see paragraphs 1 to 107;

Fish, J. (Binnie, LeBel and Charron, JJ., concurring), dissenting - see paragraphs 108 to 164.