R. v. Wallen, (1988) 84 A.R. 12 (CA)

• Judge: Lieberman, Harradence and Hetherington, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 01, 1988
• Citations: (1988), 84 A.R. 12 (CA)

R. v. Wallen (1988), 84 A.R. 12 (CA)

MLB headnote and full text

R. v. Darel Grant Wallen

(Appeal No. 8503-8840-A6)

Indexed As: R. v. Wallen

Alberta Court of Appeal

Lieberman, Harradence and Hetherington, JJ.A.

February 1, 1988.

Summary:

The accused was convicted of first degree murder following trial before a judge and jury. The accused appealed. The accused submitted that the trial judge's response to questions from the jury and his charge respecting planning and deliberation and the cumulative effect of evidence of drunkenness, provocation and psychiatric disorder on the capacity to inform the intent to murder were insufficient.

The Alberta Court of Appeal, Harradence, J.A., dissenting, dismissed the appeal.

Criminal Law - Topic 1270

Murder - First degree - "Planned" and "deliberate" defined - An accused convicted of first degree murder submitted that if his degree of intoxication was insufficient to negative the intent to murder the trial judge failed to instruct the jury that a lesser degree of intoxication could negate "planning and deliberation" - The Alberta Court of Appeal held that the trial judge clearly differentiated between the levels of intoxication - Alternatively, the court held that if the distinction was not made clear the appeal would be dismissed under s. 613(1)(b)(iii) of the Criminal Code on the ground that there was no miscarriage of justice - See paragraphs 11 to 15.

Criminal Law - Topic 1270

Murder - First degree - "Planned" and "deliberate" defined - The Alberta Court of Appeal stated that "once there is a finding of planning and deliberation, and a murder is thereafter committed, it matters not that the accused departed from the specifics of the original plan in carrying out the killing ... It is the objective of the planning and deliberation, rather than the exact performance of details of the original plan that must be examined" - See paragraph 7.

Criminal Law - Topic 1270

Murder - First degree - "Planned" and "deliberate" defined - The Alberta Court of Appeal held that where an accused was charged with first degree murder under ss. 212(a)(i) or 212(a)(ii), planning and deliberation were essential elements under both sections - The court stated that the trial judge was therefore not required to distinguish between the two sections with respect to planning and deliberation - See paragraph 34.

Criminal Law - Topic 1270

Murder - First degree - "Planned" and "deliberate" defined - Previous to killing his wife the accused had stated "I'll get you, but not now" - The Alberta Court of Appeal held that the threat not only supported an inference of intent, but also constituted evidence from which the jury could infer planning - See paragraphs 35 to 36.

Criminal Law - Topic 1299

Murder - Defences - Jury charge - An accused charged with first degree murder raised as defences his consumption of alcohol and drugs, presence of a psychiatric disorder and possible provocation - The Alberta Court of Appeal held that it was preferable for the trial judge to instruct the jury to consider the cumulative effect of each defence upon the accused's capacity to formulate intent - The court stated although such a direction was not mandatory in every case, the circumstances here mandated such a direction - The court held that the trial judge adequately instructed the jury, where they were told to consider all the evidence - See paragraphs 37 to 43.

Criminal Law - Topic 4336.5

Procedure - Jury - The law - Questions by jury - A jury, one hour after deliberations began, asked the trial judge for a written explanation of what constituted first and second degree murder - The trial judge advised the jury that it was not customary to deliver a written explanation and that an explanation had already been given, but that the jury was at liberty to come back and ask for a further explanation if they were confused - The Alberta Court of Appeal held that the trial judge's response was sufficient - The court stated that the question was not ambiguous, it was apparent the jury was not confused, but only wanted something in writing - Alternatively, if the jury was confused, the trial judge made it clear that they could ask for further clarification, which they never did - See paragraphs 2 to 5.

Criminal Law - Topic 5035

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - [See first Criminal Law - Topic 1270 above].

Cases Noticed:

R. v. Fleiner (1985), 11 O.A.C. 181; 23 C.C.C.(3d) 415 (C.A.), dist. [para. 4].

R. v. Desveaux (1986), 13 O.A.C. 1; 26 C.C.C.(3d) 88 (C.A.), dist. [para. 4].

R. v. Beaudoin (1980), 18 C.R.(3d) 58 (Que. S.C.), refd to. [para. 8].

R. v. Knuff (1980), 19 A.R. 168; 52 C.C.C.(2d) 523 (C.A.), refd to. [para. 11].

R. v. Kematch and Campeau (1979), 3 Sask.R. 295; 48 C.C.C.(2d) 179 (C.A.), refd to. [para. 11].

R. v. Howard (1986), 15 O.A.C. 255; 29 C.C.C.(3d) 544 (C.A.), refd to. [para. 11].

R. v. Ancio (1984), 52 N.R. 161; 10 C.C.C.(3d) 385 (S.C.C.), refd to. [para. 34].

R. v. Droste (1984), 52 N.R. 176; 10 C.C.C.(3d) 404 (S.C.C.), refd to. [para. 34].

R. v. Nygaard and Schimmens, (1987), 78 A.R. 389 (C.A.), folld. [para. 34].

Perreault v. The Queen, [1971] S.C.R. 196, refd to. [para. 38].

R. v. Mulligan (1976), 9 N.R. 27; 28 C.C.C.(2d) 266 (S.C.C.), refd to. [para. 38].

R. v. Clow (1985), 44 C.R.(3d) 228, refd to. [para. 39].

R. v. Nealy (1987), 17 O.A.C. 164 (C.A.), refd to. [para. 39].

R. v. Wong (1978), 41 C.C.C.(2d) 196 (B.C.C.A.), refd to. [para. 47].

R. v. Smith (1979), 1 Sask.R. 213; 51 C.C.C.(2d) 381 (C.A.), refd to. [para. 54].

R. v. Hayes (1985), 67 N.S.R.(2d) 234; 155 A.P.R. 234 (C.A.), refd to. [para. 54].

R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. H.C.J.), refd to. [para. 54].

R. v. Reynolds (1978), 22 O.R. 353; 44 C.C.C.(2d) 129 (C.A.), refd to. [paras. 15, 54, 56].

R. v. Mitchell, [1964] S.C.R. 471, refd to. [para. 56].

Colpitts v. The Queen, [1966] 1 C.C.C. 146 (S.C.C.), refd to. [para. 59].

R. v. Miller and Cockriel, [1977] 2 S.C.R. 680; 11 N.R. 386, refd to. [para. 59].

R. v. Mahoney (1982), 41 N.R. 582 (S.C.C.), refd to. [para. 59].

R. v. Cooper, [1983] 1 S.C.R. 240; 47 N.R. 60, refd to. [para. 59].

Statutes Noticed:

Criminal Code, R.S.C. 1970, c. C-34, sect. 212(a)(i), sect. 212(a)(ii), sect. 613(1)(b)(iii).

Counsel:

A.D. Pringle, for the appellant;

Jack Watson, for the respondent.

This appeal was heard before Lieberman, Harradence and Hetherington, JJ.A., of the Alberta Court of Appeal.

On February 1, 1988, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Lieberman, J.A. (Hetherington, J.A., concurring) - see paragraphs 1 to 18;

Harradence, J.A., dissenting - see paragraphs 19 to 59.