R. v. Wallen, (1990) 107 A.R. 114 (SCC)

• Judge: Lamer, La Forest, L'Heureux-Dubé, Cory and McLachlin, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 12, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 107 A.R. 114 (SCC);[1990] 3 WWR 481;73 Alta LR (2d) 30;75 CR (3d) 328;107 AR 114;54 CCC (3d) 383;[1990] 1 SCR 827;1990 CanLII 146 (SCC)

R. v. Wallen (1990), 107 A.R. 114 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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

Darel Grant Wallen (appellant) v. Her Majesty The Queen (respondent)

(20762)

Indexed As: R. v. Wallen

Supreme Court of Canada

Lamer, La Forest, L'Heureux-Dubé, Cory and McLachlin, JJ.

April 12, 1990.

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 form the intent to murder were insufficient.

The Alberta Court of Appeal, Harradence, J.A., dissenting, in a judgment reported 84 A.R. 12, dismissed the appeal. The accused appealed.

The Supreme Court of Canada, McLachlin and L'Heureux-Dubé, JJ., dissenting, allowed the appeal and ordered a new trial.

Criminal Law - Topic 1265

Murder - Jury charge - Re intoxication and "planning" and "deliberation" - [See Criminal Law - Topic 1270].

Criminal Law - Topic 1270

Murder - First degree - "Planned" and "deliberate" defined - The Supreme Court of Canada held that there was no absolute rule that the trial judge must always explicitly instruct the jury that a lesser degree of intoxication may suffice to negative planning and deliberation than to negative the intent to kill - Such direction was preferable, but it was sufficient that the jury be directed to the question of whether the accused was too intoxicated to plan or deliberate murder - The court ordered a new trial, where there was no explicit instruction and the jury charge as a whole was insufficient on the issue.

Criminal Law - Topic 1299

Murder - Defences - Jury charge - Re intent and drunkenness - [See Criminal Law - Topic 1270].

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 do so, but they were free to seek further explanation if they were confused - A judge of the Supreme Court of Canada agreed that there was no reason to treat the jury's request other than as a request for written explanations (i.e., as opposed to signifying confusion) - The judge agreed the response was adequate absent any suggestion that the jury did not understand the distinction between first and second degree murder.

Criminal Law - Topic 5041

Appeals - Indictable offences - Dismissal of appeal if error resulted in no miscarriage of justice - Where jury charge in error - The Supreme Court of Canada refused to invoke s. 686(1)(b)(iii) of the Criminal Code to dismiss an accused's appeal from a first degree murder conviction, where the trial judge erred in instructing the jury on the issue of intoxication as it related to the issue of "planning" and "deliberation" - The court stated that the verdict would not necessarily have been the same absent the error.

Cases Noticed:

R. v. Mitchell, [1964] S.C.R. 471, appld. [para. 3].

R. v. Kematch and Campeau (1979), 48 C.C.C.(2d) 179 (Sask. C.A.), refd to. [para. 4].

R. v. Knuff (1980), 19 A.R. 168; 52 C.C.C.(2d) 523 (C.A.), refd to. [para. 4].

R. v. Reynolds (1978), 44 C.C.C.(2d) 129 (Ont. C.A.), refd to. [para. 5].

R. v. Howard (1986), 15 O.A.C. 255; 29 C.C.C.(3d) 544 (C.A.), refd to. [para. 5].

R. v. Howard, [1989] 1 S.C.R. 1337; 96 N.R. 81; 34 O.A.C. 81, refd to. [para. 5].

Colpitts v. The Queen, [1965] S.C.R. 739, refd to. [para. 8].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 8].

Counsel:

Alex Pringle, for the appellant;

Jack Watson, for the respondent.

Solicitors of Record:

Alexander D. Pringle, Edmonton, Alberta, for the appellant;

Attorney General for Alberta, Edmonton, Alberta, for the respondent.

This appeal was heard on February 23, 1990, before Lamer, La Forest, L'Heureux-Dubé, Cory and McLachlin, JJ., of the Supreme Court of Canada.

On April 12, 1990, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Lamer, J. (Cory, J., concurring) - see paragraphs 1 to 9;

La Forest, J. - see paragraphs 10 to 12;

McLachlin, J. (L'Heureux-Dubé, J., concurring), dissenting - see paragraphs 13 to 41.