DATE: 20050630
DOCKET: C38115
COURT OF APPEAL FOR ONTARIO
SHARPE, BLAIR and MACFARLAND
B E T W E E N :
HER MAJESTY THE QUEEN
Christopher Hicks, for the appellant
(Respondent)
- and -
MICHAEL JUANETTY
Roger A. Pinnock, for the respondent
(Appellant)
Heard: June 23, 2005
On appeal from the conviction entered on June 21, 2001 and the sentence imposed on June 28, 2001 by Justice D. Taliano of the Superior Court of Justice, with a
juryR.A.BLAIR J.A.:
Overview
[1] Mr. Juanetty was convicted of second-degree murder for the killing of his ex-girlfriend. The couple’s relationship had deteriorated and the victim had advised the appellant she wished to end it. The appellant had difficulty accepting this rejection. He attended at the victim’s home, broke into her house by smashing a window, retrieved a knife from the kitchen, struggled with her and assaulted her, and finally slit her throat, literally, from ear to ear on her front step in full view of several witnesses.
[2] There was evidence that the appellant had a drinking problem and that he had been drinking on the day in question.
[3] At trial, the appellant’s counsel conceded that he was guilty of the offence of manslaughter, but argued that there was a reasonable doubt as to whether Mr. Juanetty had the requisite intent for second degree murder, as a result of a combination of his alcohol consumption and emotional upset from the break up of the relationship.
[4] On behalf of the appellant, Mr. Hicks makes two principal arguments. First, he submits that the trial judge erred in his charge to the jury concerning the effect intoxication may have had on the requisite intent for murder. Secondly, he argues that the trial judge erred in the answer he gave to a jury question regarding the difference in meaning between the intent required for murder and that required for manslaughter.
[5] The appeal is dismissed for the following reasons.
Did the Trial Judge Err in his Charge to the Jury Concerning How They Should Approach Evidence of Intoxication?
[6] The trial judge used both “capacity” language and “actual intent” language in charging the jury with respect to how they should deal with the evidence of intoxication. In doing so, he was following the two-step model for intoxication charges established by Martin J.A. in R v. MacKinlay (1986), 1986 111 (ON CA), 28 C.C.C. (3d) 306 (Ont. C.A.). The appellant argues that this approach contravenes the dictates of the later Supreme Court of Canada decision in R. v. Robinson (1996), 1996 233 (SCC), 105 C.C.C. (3d) 97 (S.C.C.) and that it constitutes an error in law requiring a new trial, notwithstanding the lack of any objection to this part of the charge on the part of defence counsel at trial.
[7] I do not read Robinson as prohibiting the so-called “two-step” approach to a charge on intoxication enunciated in MacKinlay. In Robinson, the Supreme Court overruled its earlier decision in McAskill v. The King (1931), 1931 58 (SCC), 55 C.C.C. 81 (S.C.C.) which had, in turn, adopted the classic English approach to intoxication set out in D.P.P. v. Beard (1920, 14 Cr. App. R. 159 (H.L.). The Beard rule focussed on capacity and held that evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not the accused had the intent.
[8] Chief Justice Lamer rejected this approach in Robinson, concluding that it placed too much emphasis on capacity as the only relevant inquiry. Rather, he said, the trial judge must make clear to the jury that “the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent” (para. 48). In this respect, he expressed a preference for the model charge espoused in R v. Canute (1993), 89 C.C.C. (3d) 403 (B.C.C.A.) over the two-staged model from MacKinlay, since the former omits any reference to “capacity” or “capability” and focuses the jury on the question of “intent in fact” (para. 49).
[9] Nonetheless, Chief Justice Lamer acknowledged that there may be some cases where a two-step charge will be helpful to the jury (para. 53) and expressly disclaimed the suggestion that “reference to ‘capacity’ as part of a two-step procedure will never be appropriate in a charge to the jury” (para. 52). Continuing at para. 52, in a passage that is particularly pertinent to this case, he said:
Indeed, in cases where the only question is whether the accused intended to kill the victim (s. 229(a)(i) of the Code), while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming, of course, that there is an “air of reality” to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of the jurors. For example, in a case where an accused points a shotgun within a few inches from someone’s head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill. It is in these types of cases where it may be appropriate for trial judges to use a two-step MacKinlay-type charge. In addition, I suspect that most accused will want the trial judge to refer to capacity since his or her defence will likely be one of incapacity. [emphasis added]
[10] On behalf of the Crown, Mr. Pinnock argues that this case is exactly the kind of case that calls for a MacKinlay-like charge, as contemplated by Lamer C.J. in the above passage. The appellant conceded that he was guilty of manslaughter and the only issue for the jury to decide was whether he had the specific intent required for second-degree murder. Factually, moreover, the circumstances parallel the very example that the Chief Justice gave. Slicing the victim’s throat from ear to ear with a knife is akin to pointing a shotgun a few inches from someone’s head and pulling the trigger. It is unlikely that an intoxication defence would be successful unless the jury was satisfied the appellant was so drunk that he was not capable of forming the intent to kill.
[11] Thus, I am satisfied that in the circumstances of this case it was not an error in law for the trial judge to build his charge on intoxication around the two-step approach. In such a case, Robinson makes it clear that where the charge is challenged on appeal, “the role of the appellate court [is] to review the charge and determine whether there is a reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry” (para. 53) [emphasis in original].
[12] Here, the trial judge made numerous references in his charge to the way in which the jury should deal with the appellant’s intoxication defence, and to that defence in conjunction with the issue of the appellant’s emotional and mental state of mind. In some instances he did so with reference to capacity, but never, in my view, in a fashion that indicated that capacity alone was the only relevant inquiry. In at least five places, the trial judge clearly and specifically instructs the jury that they must be persuaded beyond a reasonable doubt that the appellant had both the capacity to formulate the necessary intent for murder and the actual intent to do so.
[13] This culminated, at the conclusion of his charge, with the following statement finishing off his outline of the position of the Crown:
The Crown urges you to consider that [the appellant] had the capacity to formulate the intent and, in fact, had the intent to take the life of Robin Pope,
Followed immediately by this summary:
To summarize briefly ladies and gentlemen: if after you consider all of the relevant evidence going to the issue of intent, you are not convinced or you are in reasonable doubt that Mr. Juanetty had both the capacity to formulate the intent and the actual intent, as I have previously defined it, for second degree murder, you must acquit him of that offence and fine him guilty of manslaughter. [emphasis added]
If, on the other hand, you are satisfied beyond a reasonable doubt that Mr. Juanetty had the capacity for [sic] formulate the intent, and did in fact have the intent to cause the death of Robin Pope, or to cause her bodily harm that would likely cause her death and was reckless as to whether death ensued, then you will find him guilty of second degree murder. [emphasis added]
[14] Having reviewed the trial judge’s charge as a whole, I do not believe there is any reasonable possibility that the jury may have been misled into believing that a determination of capacity was the only relevant inquiry for them to make. I am satisfied that the jury clearly understood its primary function was to determine whether they were satisfied beyond a reasonable doubt that the appellant actually had the requisite intent required for a conviction for second degree murder: Robinson, para. 53.
[15] This ground of appeal cannot succeed.
The Jury’s Question
[16] With the agreement of counsel, the trial judge gave the jurors a binder of materials containing a copy of the indictment, a list of witnesses, relevant sections of the Criminal Code, a decision tree and a verdict sheet. After five and a half hours of deliberation, the jury came back with a question:
What is the difference between section 236(ii) “intended to commit” and section 229(ii) “means to cause”?
[17] Neither the trial judge nor counsel was entirely clear on what the jury was asking, but the trial judge interpreted the question to mean that the jury was inquiring about the difference, if any, between the meanings of the two operative verbs “intends” and “means” in the referenced passages. He told the jury that the meaning of the two verbs was essentially the same, that the words were “virtually interchangeable”. Mr. Hicks argues this was a fatal error because it left the jury with the impression that there was no difference between the “intent” required for second degree murder and that required for manslaughter. He points out that the “intent” required for manslaughter relates only to the unlawful act itself, namely the “objective foreseeability of the risk of bodily harm which is neither trivial nor transitory, in the context of a dangerous act”: R. v. Creighton (1993), 1993 61 (SCC), 83 C.C.C. (3d) 346 (S.C.C.) at p. 373.
[18] I do not agree that the trial judge erred in responding to the jury’s question.
[19] Counsel and this court are hampered considerably by the fact that the materials provided to the jurors were not made part of the record and are not before us. Both counsel have made efforts, but unsuccessfully, to locate the documents and to determine to what, specifically, the reference to “section 236(ii) ‘intended to commit’” relates. The difficulty arises because s. 236(ii) of the Criminal Code does not contain the words “intended to commit”. However, from the transcript of the trial judge’s discussion with counsel, it appears that the jury was referring to some document that alluded to s. 236(ii) and that said, “the accused person intended to commit the ‘unlawful act’ (‘assault’)”.
[20] In this context, the trial judge was correct to tell the jury that the word “intended” in the foregoing reference and the word “means” in the phrase “means to cause bodily harm” in s. 229(ii) of the Code have essentially the same meaning. The jury would not have been misled by that into assuming that the trial judge was conflating the test for “intent” to murder with that of “intent” regarding manslaughter. The trial judge was at pains during his recharge to ensure that the jury understood they were dealing with two different offences. Finally, the trial judge also emphasized during his recharge that if he had misconceived their question and not answered it, they were to tell him and he would respond accordingly. The jury did not indicate that he had failed to respond to their question.
[21] I would not give effect to the second ground of appeal either.
Disposition
[22] For the foregoing reasons, therefore, the conviction appeal is dismissed. The appellant did not pursue the sentence appeal.
“RA. Blair J.A.”
“I agree Robert J. Sharpe J.A.”
“I agree J.L. MacFarland J.A.”