COURT OF APPEAL FOR ONTARIO

DATE: 20011030 DOCKET: C28482

DOHERTY, GOUDGE and CRONK JJ.A.

B E T W E E N :

David M. Tanovich

HER MAJESTY THE QUEEN

for the appellant

Respondent

• and -

Renee Pomerance

for the respondent

PIERRE JOSEPH CARRIÈRE

Appellant

Heard: September 19, 2001

On appeal from the conviction imposed by Justice Charles F. Doyle, sitting with a jury, on October 26, 1996 and the sentence imposed on November 5, 1996.

DOHERTY J.A.:

I

[1] The appellant was convicted of second degree murder and sentenced to life imprisonment without eligibility for parole for 23 years. He was also convicted of robbery and received a concurrent life sentence. He appeals his murder conviction.

[2] Counsel’s submissions were directed to three aspects of the trial judge’s instructions to the jury. He alleges error in the intoxication instruction, the reasonable doubt instruction and the instruction as to how the jury should approach its task.

[3] I think the intoxication instruction amounts to misdirection and I would quash the conviction.

II

[4] As the grounds of appeal all arise out of the trial judge’s instruction to the jury, only a brief summary of the evidence is necessary.

[5] The deceased was shot and killed in the course of the robbery of his convenience store. It was the Crown’s position that the appellant, armed with a .357 magnum handgun, entered the deceased’s store with an accomplice, Marc Dubois. The appellant chased the deceased to the back of the store while Dubois remained near the front. The appellant struggled with the deceased and fired three shots. Two shots hit the deceased and one struck the appellant in the finger and eventually lodged in the ceiling. The appellant, who was bleeding, and Dubois completed the robbery and fled the scene.

[6] The defence position came from the evidence of the appellant. He testified that after drinking most of the day, he and Dubois agreed to rob a convenience store. The appellant said he was not armed and did not know that Dubois was armed at the time of the robbery. The appellant did not anticipate that there would be any violence in the course of the robbery, much less a shooting. He anticipated a quick “boost”. Based on his prior experience as a robber, the appellant did not think that the proprietor would offer any resistance.

[7] According to the appellant, while the robbery was in progress, the deceased and Dubois became involved in a struggle at the back of the store. The deceased was attempting to strike Dubois with a stick. The appellant went to Dubois’ assistance and in the struggle which followed, Dubois fired the weapon, hitting the appellant in the finger. The appellant ran from the store taking the cash register as he left. He said that he did not hear any further shots fired.

[8] Forensic evidence confirmed that the appellant was shot while in the back of the store.

[9] The Crown’s case rested largely on the evidence of Derek Day, the deceased’s son. He was working in the store when the robbery occurred. According to him, two masked robbers entered the store shortly before closing. One robber was armed with a gun. That robber chased his father into the back of the store while the other robber remained at the counter near the front. Mr. Day heard three shots and saw his father fall to the floor. The robbers fled the scene.

[10] Mr. Day did not see the face of either robber. He later picked out the appellant as the armed robber based on his build and the way he moved. This evidence had little probative value.

[11] On Mr. Day’s version of the events, the deceased was struggling with only one robber when the shots were fired. If there was only one robber involved in that struggle, it had to be the appellant, as it was conceded that one of the three shots fired during that struggle struck the appellant in the finger. If the appellant was the shooter he was guilty of either murder or manslaughter.

[12] On the appellant’s version, he was not armed, did not shoot the deceased, and did not anticipate that the deceased would be shot. The trial judge instructed the jury that on the appellant’s version he could not be convicted of murder but could be either acquitted or convicted of manslaughter depending on the application of s. 21(2) of the Criminal Code. No objection is taken to this instruction.

III

The Intoxication Instruction

[13] The appellant testified that in the 10 hours prior to the robbery, he consumed about 12 beers and 6 ounces of whiskey. He said that he was very drunk at the time of the robbery and did not think of the consequences of what he was doing. There was expert evidence that assuming the appellant consumed the amount of alcohol that he said he did, his blood alcohol level would have been three or four times the legal limit. At those amounts, the expert said there could well be signs of gross impairment. In cross-examination, that expert indicated that he could not comment on the appellant’s ability to form any particular intention. Against this evidence was the appellant’s own testimony that despite his intoxication, he planned the robbery and contemplated the consequences, believing that the victim would offer no resistance. It is accepted that the evidence made the appellant’s state of intoxication a legitimate issue at trial.

[14] Counsel for the appellant alleged three discrete errors in the instruction on intoxication. While there is merit in each argument, I see the instruction as containing a single overriding error. The trial judge treated the evidence of intoxication as giving rise to a separate and distinct defence instead of relating that evidence, in combination with the other relevant evidence, to the question of whether the Crown had proved beyond a reasonable doubt that the appellant had one of the requisite intents for murder set out in s. 229(a) of the Criminal Code.

[15] The trial judge introduced the notion of intention to the jury and indicated that they must consider “the whole of the evidence” in determining the intention of the appellant. He made no reference to intoxication. The trial judge then referred to the relevant sections of the Criminal Code and instructed the jury that the Crown had to prove one of the required mental states beyond a reasonable doubt. He then said:

There was a question of alcohol as well – I am going to deal with that – and an allegation that intoxication would be a defence in this particular matter. [Emphasis added.]

[16] Having set up the “defence” of intoxication as a separate issue from intent, the trial judge then returned to the question of intent telling the jury:

In many, if not most of the criminal cases, the person said to be responsible for the crime doesn’t speak or doesn’t write directly of his or her intention. He or she may, however, say or do certain things from which inferences as to their state of mind at the relevant time may be drawn. In other words, you can infer the intent or state of mind of an accused from his or her words, actions, conduct or demeanour, viewed in the light of the circumstances of the crime that is alleged to have been committed.

It is a reasonable inference that a sane and sober person intends the natural consequences of his or her acts. That is an inference that may be drawn, not a conclusion that inevitably follows or that must be drawn in all cases.

Second degree murder is committed when the person who causes the death of the deceased means to cause his death – that is one aspect of it – or means to cause him bodily harm that he knows is likely to cause death and is reckless whether death ensues or not. So that is what it is.

[17] At no stage in the instruction did the trial judge link the common sense inference described above to the evidence of intoxication. He did not tell the jury that in deciding whether that inference should be drawn they should take into consideration all of the evidence, including the evidence of intoxication. The failure to make this link will in many cases amount to reversible error: R. v. Seymour (1996), 1996 201 (SCC), 106 C.C.C. (3d) 520 at 529-30 (S.C.C.); R. v. Robinson (1996), 1996 233 (SCC), 105 C.C.C. (3d) 97 at 122-23 (S.C.C.); R. v. Peavoy (1997), 1997 3028 (ON CA), 117 C.C.C. (3d) 226 at 235-36 (Ont. C.A.). However, even if the failure to draw the link is not per se error, it contributes significantly to the erroneous distinction drawn by the trial judge between the question of intent and the “defence” of intoxication.

[18] In a subsequent portion of his instruction, where the trial judge dealt specifically with intoxication, he did say that the evidence of intoxication should be considered along with the other facts in determining whether the accused had the intent necessary for murder. Unfortunately, this connection between intoxication and intent was severed in three subsequent parts of the instruction where the trial judge referred exclusively to intoxication when he should have been referring to intent. For example, after telling the jury that if they were satisfied beyond a reasonable doubt that the appellant was the shooter, the trial judge said:

… I would think that the only verdict that you have is to bring the verdict of guilty against Mr. Carrière, and it would be murder in the second degree, except that, of course, you still have to deal with the matter of the intoxication that he has spoken about. [Emphasis added.]

[19] Still later in his instruction, the trial judge said:

… If he – if you find that scenario one was beyond a reasonable doubt, that that is what happened, then, of course, this means that this accused person had fired the gun and had been the cause of the death of Mr. Dai. If that is the case then, well then, it is murder in the second degree, subject, of course, to the matter of intoxication. [Emphasis added.]

[20] I agree that if the jury found that the appellant was the shooter, it would inevitably find him guilty of either murder or manslaughter. The choice between the two verdicts did not, however, turn on the question of intoxication, but rather on the question of intent. Intent had to be determined by reference to all of the relevant evidence including, but not limited to, the evidence of intoxication. The trial judge misdirected the jury by treating the issues of intent as distinct from intoxication and failing to relate the latter to the former. That error is fatal to the conviction for murder unless the Crown can show that the error occasioned no substantial wrong or miscarriage of justice.

[21] Crown counsel vigorously argued that the curative proviso could be applied to any error in the intoxication instruction. She submitted that on the instructions given to the jury, it could only have convicted of murder if satisfied beyond a reasonable doubt that the appellant was the shooter. She argues, correctly in my view, that any error in the intoxication instruction does not undermine this finding by the jury. She goes on to contend that the jury must have rejected the appellant’s evidence in its entirety, including his evidence going to the issue of intoxication. I cannot agree with this assertion. In my view, a finding that the appellant was the shooter does not imply a rejection of his evidence concerning his alcohol consumption.

[22] I think that the appellant’s evidence in its entirety offers little, if any, support for the contention that he did not have the capacity to form one of the requisite intents for murder in s. 229(a). I do think, however, on the entirety of the evidence, including the circumstances in which the shots were fired and the evidence of the appellant’s intoxication that a properly instructed jury could have had a reasonable doubt as to whether the appellant had either of the requisite intentions for murder. The curative proviso cannot be applied.

The Reasonable Doubt Instruction

[23] This is yet another appeal in which the court must assess the adequacy of a reasonable doubt instruction given prior to the decision in R. v. Lifchus (1997), 1997 319 (SCC), 118 C.C.C. (3d) 1 (S.C.C.). [1] The trial judge said two things in the course of his reasonable doubt instruction which after R. v. Lifchus, supra, he should not have said. He told the jury that a reasonable doubt was a doubt for which they could ascribe a reason. He also referred to the “timid juror” who might use reasonable doubt to acquit as a means of avoiding an unpalatable duty. The trial judge also did not tell the jury that proof beyond a reasonable doubt was more than proof of probable guilt and was much closer to certainty than to probable guilt.

[24] Counsel submitted that the trial judge’s instruction that a reasonable doubt was one for which a juror could ascribe a reason is wrong in law. He contends that several decisions from this court have identified this instruction as misdirection, which in and of itself constitutes reversible error: R. v. Ford (1991), 12 W.C.B. (2d) 576 (Ont. C.A.); R. v. Collings (1998), 1998 6223 (ON CA), 129 C.C.C. (3d) 218 (Ont. C.A.); R. v. Kathiresu (2000), 2000 6008 (ON CA), 129 O.A.C. 291 (C.A.); R. v. Jenkins (1996), 1996 2065 (ON CA), 107 C.C.C. (3d) 440 (Ont. C.A.), leave to appeal to the Supreme Court of Canada refused February 27, 1997.

[25] In describing reasonable doubt to the jury, the trial judge said in part:

… It has been described as a real doubt, a genuine doubt, an honest and a sensible doubt. It is one founded on reason. There has to be a reason, I would think, for a person to feel, “Well, I have a reasonable doubt and it’s because of this particular reason.” There may be – and that reason might arise from evidence or maybe from the lack of evidence. … [Emphasis added.]

[26] This direction was wrong. As Laskin J.A. said in R. v. Jenkins, supra, at p. 469:

… This court is of the view that such an instruction tends to shift the burden of proof to the accused. It directs jurors to subject any doubt they may have to further evaluation and yet it does not contain any standards for determining what kind of reason may suffice. Most important, jurors may have a reasonable doubt but not be able to articulate a reason. …

[27] Although I agree with the submission that it was wrong to tell the jury that a reasonable doubt was one for which a juror could ascribe a reason, I cannot agree that this defect standing alone necessarily requires reversal. Even if prior decisions of this court support that position, it cannot be sustained after the recent pronouncements of the Supreme Court of Canada: R. v. Russell (2000), 2000 SCC 55, 149 C.C.C. (3d) 66 (S.C.C.); R. v. Beauchamp (2000), 2000 SCC 54, 149 C.C.C. (3d) 58 (S.C.C.); R. v. Avetysan (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.); R. v. Pan (2001), 2001 SCC 42, 155 C.C.C. (3d) 97 at 149-50 (S.C.C.).

[28] According to those recent authorities, it is wrong to find error in the reasonable doubt instruction based on isolated passages in that instruction. The adequacy of the instruction depends on whether, after an assessment of the entirety of the charge relating to reasonable doubt, the appellate court concludes that there is a reasonable likelihood that the jury misapprehended the proper burden of proof. As Iacobucci J. put it in R. v. Russell, supra, at p. 76:

The appellate assessment of substantial compliance with the Lifchus principles in cases where the trial judge did not have the benefit of that decision, and may have used, in parts of the charge, language that will likely be discontinued in the future or omitted parts recommended in Lifchus, is not a mechanical task. Rather, it is a judgment call on whether the deficiencies in the charge fall below the Lifchus standard such as to cause serious concern about the validity of the jury’s verdict, and lead to the conclusion that the accused did not have a fair trial. [Emphasis added.]

[29] In light of those authorities, it cannot be said that a single error in the reasonable doubt instruction automatically requires reversal. Indeed, in two of the cases, R. v. Russell, supra, and R. v. Beauchamp, supra, the trial judge told the jury that a reasonable doubt was a doubt for which they could articulate a reason. Despite this instruction and other instructions which, after Lifchus, should not be given, the Supreme Court of Canada upheld the provincial appellate courts’ holdings that the instructions were in substantial compliance with the principles set down in R. v. Lifchus, supra.

[30] I turn next to the question of whether the appellant has demonstrated that the three defects identified above were such as to compel the conclusion that the instruction was not in substantial compliance with the principles in R. v. Lifchus, supra. In making that “judgment call” (R. v. Russell, supra), I consider the defects in the instruction in the context of the entire charge on reasonable doubt.

[31] Although the trial judge did not expressly tell the jury that probable guilt was insufficient, he also did not tell the jury that reasonable doubt had an ordinary everyday meaning. To the contrary, he stressed the importance and onerous nature of the decision that the jury had to make. There was no possibility that the jury would confuse this decision with the kind of decision they made in their everyday lives. I think they would have understood that the verdict must reflect a much higher level of certainty than would be required in day-to-day decision making.

[32] The trial judge also told the jury on no less than three occasions that if it did not believe the accused, it must still acquit him if his evidence left it with “a doubt”. The instruction clearly told the jury that the case was not to be decided based on who was more likely to be telling the truth, but had to be decided in the appellant’s favour if the jury had any doubt about the veracity of his version.

[33] Finally, in considering whether the jury properly understood the heavy onus on the Crown, I note that the trial judge told the jury that they could convict only if they had an “abiding assurance” of the appellant’s guilt. This phrase suggests to me a high standard of proof.

[34] Taking all of these factors into consideration, I am satisfied that the jury understood the heavy onus placed on the Crown.

[35] I also do not think that the trial judge’s reference to a reasonable doubt being a doubt for which there was a reason is fatal. The trial judge did not suggest that a juror should be able to articulate a reason for any doubt he or she had, but rather said there must be a reason for the juror “to feel, well I have a reasonable doubt and it’s because of this particular reason”. The trial judge then went on to indicate that the reason might arise from the evidence or the lack of evidence. I think the trial judge was trying to make the point to the jury that a reasonable doubt must flow from the presence or absence of evidence and could not be based on something else, such as speculation or prejudice.

[36] Lastly, while the reference to “a timid juror” is inappropriate, I do not think it would have led the jury to misapply the burden of proof. The trial judge made two references to the “timid juror”. The first was neutral in the sense that it suggested that the timid juror could convict or acquit for improper reasons. The second reference was directed at an improper acquittal. This reference was prefaced, however, by the trial judge’s indication that “of course” the “timid juror” approach was not an appropriate one. I do not think that this reference would cause a juror to depart from his or her oath. The trial judge read that oath to the jury at the outset of his instructions and stressed its importance. While it may be that one or more jurors may have taken some offence to the “timid juror” instruction, I do not think there is any realistic possibility that any juror was misled by it.

[37] Applying the standard described in R. v. Russell, supra, I would describe the reasonable doubt instruction as flawed, but in substantial compliance with the principles identified in R. v. Lifchus, supra.

The Instruction on the Approach to be Taken to the Jury’s Task

[38] Counsel for the appellant contends that the trial judge erroneously instructed the jury to look first at the Crown’s case, and in particular Mr. Day’s evidence, and if satisfied beyond a reasonable doubt based on that evidence, to convict the appellant. Counsel submits that on this direction the jury may never have reached the appellant’s evidence in the course of their deliberations. He points to the conduct of the jury after their deliberations commenced as offering some support for this position. The jury wanted the evidence of several witnesses read to them. They indicated that they would like to hear Mr. Day’s evidence first. After an overnight adjournment, the jury heard Mr. Day’s evidence in-chief. They then indicated that they had no need to hear the rest of the evidence they had requested. They retired to deliberate and returned with a verdict about fifty minutes later. Counsel suggests that the jury followed the erroneous instruction given to them by the trial judge, considered Mr. Day’s evidence first, accepted it, and convicted.

[39] Alternatively, counsel submits that the charge to the jury compels the conclusion that the jury was told to consider the Crown’s evidence first and if satisfied beyond a reasonable doubt of the appellant’s guilt, then and only then should the jury consider the defence evidence.

[40] Crown counsel responds that while some of the passages in the instruction lend credence to the appellant’s position, the charge when read in its entirety does not bear that interpretation. She contends that read in its entirety, the charge directed the jury to consider all of the evidence and to determine first whether the appellant was the shooter (referred to as scenario 1 in the charge) and, if not, whether he was a party to the homicide under s. 21(2) (referred to as scenario 2 in the charge). She submits that given the position of the parties and the evidence adduced at trial, this instruction was appropriate and would have assisted the jury in applying the relevant legal principles to the facts as it found them.

[41] These submissions require a detailed review of the entire charge. Parts of the charge do support the position taken by counsel for the appellant. Other parts are somewhat confusing. It is important, however, to put these parts of the charge in the context of the entire charge and in the context of the issues raised at trial, the positions taken by the parties, and the evidence heard by the jury: R. v. Cooper (1993), 1993 147 (SCC), 78 C.C.C. (3d) 289 at 301 (S.C.C.).

[42] It is equally important to bear in mind that jurors are intelligent people who do not park their brains outside the jury room when they begin to deliberate: see R. v. W.(D.) (1991), 1991 93 (SCC), 63 C.C.C. (3d) 397 at 411 (S.C.C.). It seems to me that unless clearly told to do so, a jury would not readily understand that it should ignore an accused’s evidence in arriving at a verdict. Nor, as a matter of common sense, would a jury readily understand how it could determine whether it should come to any conclusion as to the veracity of the Crown’s evidence without also considering the veracity of the contradictory evidence tendered by the defence.

[43] The trial judge told the jury at the outset of his instructions that they must assess the entirety of the evidence and the arguments of counsel. Shortly afterwards, he said:

You are going to have to deal with the testimony or the evidence given by each witness. Often in a criminal case, the evidence is disputed by witnesses on the opposite sides. We have that in the present case. Obviously, the two versions of what transpired inside the store cannot be reconciled. You are going to have to take a good look at these two versions and then make your decision about what you should be doing about that. [Emphasis added.]

[44] The two versions referred to are the version of Mr. Day in which his father was struggling with a single robber when he was shot, and the version of the accused in which the deceased was struggling with both robbers when he was shot. I see nothing wrong with the trial judge’s introduction of the concept of two versions of the relevant events. This provided an apt shorthand description of the crucial evidentiary conflict raised in this case.

[45] In explaining reasonable doubt, the trial judge again reminded the jury that their verdict must turn on an assessment of the entire case. He said:

… You sit back for a moment and examine the whole situation and, once you have the whole case in front of you, then it is that burden. …

[46] Immediately after this instruction, the trial judge turned to the accused’s credibility. He instructed the jury in accordance with R. v. W.(D.), supra, on three occasions. This instruction is important to the validity of this submission because in my view the instruction makes it clear that before the jury could convict the appellant, it had to not only reject his evidence totally, but also be satisfied beyond a reasonable doubt of his guilt based on the rest of the evidence. The approach outlined in R. v. W.(D.), supra, and repeated on three occasions by the trial judge, is inconsistent with the contention that the jury was instructed to consider the Crown’s case first and to convict if satisfied beyond a reasonable doubt based only on the Crown’s case. It is also equally inconsistent with the alternative submission made by the appellant that the jury was told that the appellant’s evidence should be considered only after the Crown’s case was assessed and determined to have established the appellant’s guilt.

[47] I pause in my review of the trial judge’s instructions to address a submission made by counsel in oral argument. If I understand him correctly, he argues that the decision in R. v. W.(D.), supra, mandates that where the accused testifies, the jury must first consider the appellant’s evidence and decide whether that evidence is believed or raises a reasonable doubt before going on to the rest of the evidence.

[48] I do not think that R. v. W.(D.), supra, stands for that proposition. As a matter of common sense, a jury could not assess an appellant’s evidence, except in the context of the rest of the evidence. A jury’s verdict must flow from an application of the burden of proof to the entirety of the evidence. The jury must apply the legal principles given to them by the trial judge. The trial judge must also provide certain instructions as to how the jury should assess credibility. R. v. W.(D.), supra, is one such instruction. The trial judge must not, however, tell the jury how to deliberate. The order in which a jury chooses to approach the evidence, like the other mechanics of deliberation, is for the jury. As Sopinka J. said in R. v. Morin (1988), 1988 8 (SCC), 44 C.C.C. (3d) 193 at 211 (S.C.C.):

The reason we have juries is so that lay persons and not lawyers decide the facts. To inject into the process artificial legal rules with respect to the natural human activity of deliberation and decision would tend to detract from the value of the jury system.

[49] R. v. W.(D.), supra, has nothing to do with how the jury should proceed with its deliberations, but is directed to how the jury should apply the burden of proof when considering the evidence of the accused. In R. v. W.(D.), supra, Cory J., applying earlier authority (eg. R. v. Morin, supra and R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.)), observed that it is wrong to tell the jury that it must choose between the competing versions of events advanced by the Crown and defence. He said, at p. 409:

Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [Emphasis added.]

[50] The instruction suggested by Cory J. does not advise the jury to begin with the evidence of the accused. Rather, it tells them that when assessing the credibility of the accused, they should approach it in the three stages outlined in the model charge. Properly understood, R. v. W.(D.), supra, does not impose any limits on how the jury proceeds with its deliberative process.

[51] Like Sopinka J. in R. v. Morin, supra, I think attempts to structure jury deliberations by the imposition of “artificial legal rules” diminishes the value of the jury system and raises difficult practical problems. Nothing would be gained by such rules, except perhaps more appeals.

[52] I return now to the trial judge’s instructions. The trial judge revisited the “two versions” he had described earlier in his instructions. He described the first version, in which the deceased struggled with only one robber, as supported by the evidence of Mr. Day. He described the second version in which both robbers were involved in the struggle with the deceased as supported by the evidence of the appellant. The trial judge explained that on the first version, the appellant would be a principal in the homicide and would be guilty of either murder or manslaughter. On the second version, the appellant’s liability, if any, depended on s. 21(2) of the Criminal Code and was limited to manslaughter. [^2] I think this instruction was appropriate on the facts and correct in law.

[53] After a detailed review of the evidence, the trial judge cautioned the jury against becoming bogged down in the minutiae of some of the exhibits. He said:

You have got to at least go back and decide which of the two versions – these are the only two areas in which we have viva voce evidence, that is, the witness evidence about what transpired at that time. That is, Mr. Derek Day, who has given us one aspect of what he thinks happened, and we have Mr. Carrière, the accused, who, of course, went into detail on what actually – what he says actually did happen. And so, you are going to have to get down to these two versions at one time or another. …

[54] He then referred to what he called the version of Derek Day, that is, the version advanced in the case for the Crown. He said:

… [I]f it’s Mr. Carrière that goes in there, because of the fact that the bullet hit his finger, went up in the ceiling and put blood on the ceiling, that is exactly like a signature, if nothing more. What happens then, in a case like that, you have to consider, if you accept that kind of evidence, and it is beyond a reasonable doubt. I am going to go back over the way that you treat the evidence by Mr. Carrière. He has to be given – I think there are three ways of dealing with his case – with this case then, when he has testified. But, if that evidence stands up beyond a reasonable doubt to your satisfaction, then, I would think that the only verdict that you have is to bring the verdict of guilty against Mr. Carrière, and it would be murder in the second degree, except that, of course, you still have to deal with the matter of the intoxication that he has spoken about. [Emphasis added.]

[55] This instruction may well have sounded better when heard in the context of the full charge than it reads taken in isolation. I take it to be an instruction that in considering the first version, whereby the appellant would be the principal in the homicide, the jury had to consider Mr. Carrière’s evidence and apply the three-step approach mandated in R. v. W.(D.), supra, as described to the jury earlier by the trial judge. The trial judge repeated this three-step approach immediately after this instruction.

[56] The trial judge then referred to the “other scenario” whereby the appellant’s liability, if any, would be as a party under s. 21(2) of the Criminal Code and told the jury that it must give the evidence in support of that scenario “equal consideration to that of Mr. Day’s evidence”. The trial judge repeated his instruction that both versions had to be given “equal consideration” later in his charge.

[57] Having said all this, the trial judge gave the instruction which is most heavily relied on by the appellant. He said:

I think you should look at the scenario with respect to Mr. Derek Day’s evidence and deal with that first. Because, if it is – if you are convinced about that beyond a reasonable doubt, then, of course, that is the end of it. You don’t need to consider the other matter of the second scenario, because you would have, in effect, believed everything that happened. [Emphasis added.]

[58] This passage read alone is troubling. I think, however, that read in the context of the instructions that preceded it, the jury would have understood the reference to “the scenario with respect to Mr. Derek Day’s evidence” as a reference to the Crown’s contention that the appellant was the shooter and not a reference to the evidence of Mr. Day exclusively. I think the jury would have understood that it was being told to first decide whether it was satisfied beyond a reasonable doubt that the appellant was the shooter. I do not understand the trial judge to be telling the jury that it could make this assessment based only on Mr. Day’s evidence. I am strengthened in this conclusion by the trial judge’s brief summary of the pertinent evidence following this instruction. In that summary, he outlined not only the Crown evidence, but also the evidence of the appellant. If, as I would hold, the trial judge was telling the jury that it should first decide whether the appellant was the shooter, there can be no quarrel with his direction that if it was so satisfied, it need not consider the second scenario wherein the appellant was not the shooter.

[59] Counsel did not raise this objection at trial. Where a ground of appeal depends on the overall impression conveyed by jury instructions, parts of which are problematic, I think that trial counsel’s reaction to that instruction is a helpful barometer as to the meaning conveyed by the entirety of the instruction. If this instruction had conveyed the meaning counsel for the appellant suggests, trial counsel would certainly have raised an objection to what would have been a fundamental error in the charge. The absence of any objection lends some support to the Crown’s interpretation of the passage.

[60] Considering the entirety of the charge, I am satisfied that the trial judge did not fall into the error alleged by the appellant.

IV

The Appropriate Order

[61] In the normal course, reversible error in the jury instruction results in a new trial. Counsel for the appellant and the Crown took the position in oral argument that if the verdict was quashed because of misdirection relating to intoxication, this court should dismiss the appeal and enter a conviction on the included offence of manslaughter. The court’s power to make that order is found in s. 686(1)(b)(i) which provides:

686.(1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(b) may dismiss the appeal where

(i) the court is of the opinion that the appellant, although he was not properly convicted on a count or part of the indictment, was properly convicted on another count or part of the indictment. [Emphasis added.]

[62] If the court dismisses an appeal under s. 686(1)(b)(i), its remedial powers are found in s. 686(3):

686(3) Where a court of appeal dismisses an appeal under subparagraph (1)(b)(i), it may substitute the verdict that in its opinion should have been found and

(a) affirm the sentence passed by the trial court; or

(b) impose a sentence that is warranted in law or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law. [Emphasis added.]

[63] The scope of the power of the appellate court to substitute a conviction for an included offence pursuant to s. 686(1)(b)(i) is the subject of some debate in the authorities: R. v. Popoff (1960), 1960 443 (BC CA), 129 C.C.C. 250 (B.C.C.A.); R. v. Nantais, 1966 182 (ON CA), [1966] 4 C.C.C. 108 (Ont. C.A.); R. v. Morris (1975), 1975 1269 (NB CA), 29 C.C.C. (2d) 540 at 556-57 (N.B.C.A.), leave to appeal to the Supreme Court of Canada refused January 27, 1976; R. v. Kent (1986), 1986 4745 (MB CA), 27 C.C.C. (3d) 405 at 436-37 (Man. C.A.).

[64] It is clear from these authorities that where the court is asked to substitute a manslaughter conviction on a murder appeal it can do so only if a properly instructed jury could not have returned a verdict that was more favourable to the accused than a manslaughter conviction: R. v. Kent, supra, at pp. 437-38. That requirement is met here. The jury was satisfied beyond a reasonable doubt that the appellant was the shooter. Had they been properly instructed with respect to intoxication, the appellant could have done no better than a manslaughter verdict.

[65] Some of the cases suggest that if, on a proper instruction, the jury could have convicted of murder, the court of appeal cannot substitute a conviction for manslaughter: R. v. Morris, supra. It is said in these cases that where a reasonable jury could have convicted of murder, the appellate court cannot be satisfied that a manslaughter conviction is the proper verdict. There is merit to this contention absent a concession by the Crown that manslaughter is the appropriate result. Where, however, as here, the Crown makes that concession, I think it is open to the appellate court to conclude that while the appellant was not properly convicted of murder, given the misdirection, manslaughter is the proper conviction given the Crown’s concession that it does not seek a retrial on the murder charge. This was the course followed by the Supreme Court of Canada in R. v. Wigman (1987), 1985 1 (SCC), 33 C.C.C. (3d) 97 at 109 (S.C.C.). In so holding, I do not suggest that the appellate court is bound by the Crown’s concession, but only that such a concession enables the court, if it deems it appropriate, to exercise its powers under s. 686(1)(b)(i).

[66] The appellant’s evidence of his alcohol consumption stands uncontradicted. The circumstances in which the homicide occurred also lend some support to the contention that the appellant did not have the intention necessary to commit murder. In these circumstances, I would accede to the position taken by both counsel and substitute a conviction for manslaughter rather than ordering a retrial on the murder charge.

[67] Counsel also take the position that this court should impose the appropriate sentence. While generally speaking, I think sentences should be imposed in the trial court, there is a special circumstance here. The appellant is serving a concurrent life sentence on his robbery conviction. That sentence may have to be varied depending on the appropriate sentence for manslaughter. Only this court can vary the sentence imposed on the robbery conviction. Consequently, I agree with counsel that this court should sentence the appellant on the manslaughter conviction.

[68] Counsel should contact the Registrar to make arrangements to discuss with me the manner in which the sentencing should proceed.

[69] I would dismiss the appeal pursuant to s. 686(1)(b)(i), quash the conviction for second degree murder and enter a conviction for manslaughter. I would further direct that the appellant be sentenced at a time to be fixed.

RELEASED: “OCT. 30 2001”

“DD”

“Doherty J.A.”

“I agree S.T. Goudge J.A.”

“I agree Cronk J.A.”

[^1]: R. v. Lifchus, supra, was decided four years ago. The appellant was convicted five years ago. It is not unusual for it to take four to five years for appeals from murder convictions to reach this court, despite the fact that the court sets hearing dates within about three to four months of perfection. Delay in transcript preparation is the usual excuse offered for what would appear to be an inordinate delay in the perfection of murder appeals.

[^2]: In the main charge, the trial judge did not limit s. 21(2) liability to manslaughter but in his recharge he told the jury that the appellant could only be convicted of manslaughter if his liability was based on s. 21(2).