Court of Appeal for Ontario

Citation: R. v. MacDonald, 2007 ONCA 717

Date: 20071019

Docket: C38760

Before: DOHERTY, BLAIR JJ.A. and THEN J. (ad hoc)

Between:

HER MAJESTY THE QUEEN Respondent

and

ALLAN MacDONALD Appellant

Counsel: Michael Dineen for the appellant Jennifer Woollcombe for the respondent

Heard and orally released: October 16, 2007

On appeal from the conviction entered by Justice P. Howden of the Superior Court of Justice, sitting with a jury, dated May 2, 2000.

ENDORSEMENT

[1] The appellant was convicted of first degree murder after a lengthy trial. There is one issue raised on appeal. Counsel for the appellant in his able submissions contends that the trial judge did not adequately instruct the jury as to the relevance of the evidence of alcohol consumption as it related to the issue of deliberation on the charge of first degree murder.

[2] There was some evidence of alcohol consumption in the hours preceding the homicide. The evidence is not entirely clear, but we think it is fair to describe the evidence as indicating that the alcohol consumption was relatively moderate. There is no evidence from anyone who interacted with the appellant in the hours before the murder that he was in any way affected by or under the influence of alcohol.

[3] The appellant’s alcohol consumption was a minor feature of the case presented by the defence. That case presented through the expert evidence of a psychiatrist and a psychologist was to the effect that the appellant did not have the capacity to, and did not intend to commit murder, or alternatively did not have the capacity to, and did not plan and deliberate the murder principally because of a major depressive episode suffered by him at the time of the homicide.

[4] Although alcohol consumption was a minor feature of the case, the trial judge referred to it several times in the course of his lengthy instructions. He did so initially in outlining the position of the defence as it related to the requisite mental states for murder and first degree murder (see p. 9288). The trial judge made a second reference to the evidence of alcohol consumption when summarizing the evidence of the defence experts, and particularly Dr. Turrall (see p. 9309). The trial judge made a third reference when referring to the parts of Dr. Turrall’s evidence that were relevant to the issues of planning and deliberation (see p. 9410). Finally, the trial judge also referred to the evidence of alcohol consumption in the context of planning and deliberation when referring to the evidence of Dr. Orchard. It may well be that he overstated the evidence as it related to Dr. Orchard’s opinion, but if he did so it benefitted the appellant.

[5] Experienced trial counsel raised no objection to the charge. That is some indication that the trial judge put the evidence of alcohol consumption fairly in his instructions to the jury.

[6] We see no error in the instructions and are satisfied that the jury would understand the significance, if any, of alcohol consumption to the issues that the jury had to decide in order to return a verdict.

[7] The appeal must be dismissed.

Doherty J.A.”

“R.A. Blair J.A.”

“Edward Then J. (ad hoc)”