Supreme Court of Canada

Young v. R., [1981] 2 S.C.R. 39

Date: 1981-05-11

Robert George Young (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1980: June 17; 1981: May 11.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Murder—Manslaughter—Non-direction by trial judge—Review of evidence by trial judge—Defence of drunkenness—Other defence not put to jury—Criminal Code, ss. 212(a)(ii), 618(1).

The appellant and the deceased, both alcoholic, respectively 27 and 64 years old, had been drinking all day. An argument developed. The appellant was kicked twice and then proceeded to both beat and kick the deceased. The actual cause of death was suffocation, occasioned by the fact that as a result of a blow which fractured the jaw of the deceased, his denture was broken in two, and lodged at the back of his throat. The appellant was charged with murder and convicted.

Counsel for the appellant, in his opening statement to the jury stated that how the deceased had died was not in issue. He stated that the only issue raised by the defence was as to whether the appellant was too intoxicated to form the intent to kill, or the intent to cause bodily harm that he knew was likely to cause death.

The appellant’s appeal was dismissed by the Court of Appeal.

Three grounds of appeal were raised in this Court: 1) Failure by the trial judge to relate the cause of death and the quality of actual bodily harm caused to the requisite intent under s. 212(a)(ii); 2) Failure by the trial judge to instruct the jury that a verdict of manslaughter was available apart from the defence of drunkenness and that if the appellant lacked the knowledge that the bodily harm occasioned to the deceased was likely to cause death the appellant could not be convicted of murder; 3) Misdirection with respect to the defence of drunkenness.

Held (Laskin C.J. and Dickson, Estey and Lamer JJ. dissenting): The appeal should be dismissed.

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Per Martland, Ritchie, Beetz, McIntyre and Chouinard JJ.: In relation to the first point: Every summing up must be regarded in: the light of the conduct of the trial and the questions which have been raised by counsel for the prosecution and for the defence respectively. In a case which has not occupied a great deal of time and in which the issue, guilt or innocence can be simply and clearly stated, it is not a fatal defect to the summing-up that the evidence has not been discussed by the trial judge. Here, the jury knew from the evidence of the accused that he had delivered kicks to the head of a frail and elderly man and desisted only when his body was still. Error in law was not established with respect to the first point.

In relation to the second point: The trial judge made it clear to the jury that they could not convict the appellant of murder unless they were satisfied beyond a reasonable doubt that the appellant knew that the bodily harm was likely to cause death and that otherwise a verdict of manslaughter was available. In this case, where the sole defence was that the accused was too drunk to be able to form either the intent necessary to convict him of murder, it was not necessary to leave before the jury the defence, which had never been raised, that the accused, apart from drunkenness, did not know that the bodily harm was likely to cause death.

In relation to the third point: The instruction to the jury in respect of the defence of drunkenness was in accordance with the decisions of this Court and was not seriously challenged by the appellant whose real submission was that the law as to drunkenness should be reconsidered. This is not a proper case to undertake that reconsideration.

Per Laskin C.J. and Dickson, Estey and Lamer JJ., dissenting: The trial judge’s charge to the jury as regards the defence of drunkenness conformed to the law as laid down by the House of Lords and by this Court. This is not a proper case to reconsider this area of the law as the Court has been invited to reconsider only the test of “capacity” and not the logic and desirability of categorizing offences as of general or specific intent.

However, the trial judge had the duty to submit to the jury any defence other than that of drunkenness which had been revealed by the evidence or which could have been reasonably inferred from the evidence. As the injuries inflicted upon the deceased were not of a fatal type and as they were the cause of the victim’s death only because he had dentures that broke and obturated

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his larynx, the jury should have been told that even if they were of the view that the accused had the capacity to know that the blows were likely to cause death, they should nevertheless acquit of murder and reach a verdict of manslaughter if, when considering circumstances other than intoxication, such as, the very nature of the blows, and the position the blows in fact occupied in the chain of causation, they had a reasonable doubt that he did in fact know. When considering the charge as a whole, one cannot but conclude that the jury was probably left with the impression that a verdict of manslaughter was dependent only upon the success of the defence of drunkenness. A new trial should be ordered.

[R. v. Warner, 1960 85 (SCC), [1961] S.C.R. 144; R. v. Demeter (1975), 1975 685 (ON CA), 10 O.R. (2d) 321; MacAskill v. The King, 1931 58 (SCC), [1931] S.C.R. 330; Perrault v. The Queen, 1970 170 (SCC), [1971] S.C.R. 196; Mulligan v. The Queen, 1976 23 (SCC), [1977] 1 S.C.R. 612; Director of Public Prosecutions v. Beard, [1920] A.C. 479, referred to]

APPEAL from a judgment of the Court of Appeal for Ontario, dismissing the appellant’s appeal from his conviction on a charge of murder. Appeal dismissed, Laskin C.J. and Dickson, Estey and Lamer JJ., dissenting.

Brian H. Greenspan, for the appellant.

Ross B. Lundy, for the respondent.

The reasons of Laskin C.J. and Dickson, Estey and Lamer JJ. were delivered by

LAMER J. (dissenting)—This is an appeal from a judgment of the Court of Appeal for Ontario. By that judgment the Court dismissed Robert George Young’s appeal from a conviction for murder at the Assizes at Cobourg, Ontario, on an indictment charging that he: “…on or about the 3rd day of June, 1975, at the Town of Port Hope, in the County of Northumberland did murder Joseph Anthony MacNeill contrary to the Criminal Code of Canada”. Leave to appeal to this Court was granted at large.

The evidence led at trial disclosed that the appellant, a young alcoholic, and the deceased, an elderly alcoholic, had met a couple of weeks previ-

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ous to the evening of the latter’s death, and had become drinking partners in that period of time. On June 2, 1975, the pair commenced a bout of drinking early in the morning and continued to imbibe throughout the day. There is evidence of steady alcohol consumption up until the time of death early the next morning (i.e., approximately 3:00 a.m.).

A third party resident of the apartment had returned at about that hour, to find the appellant crying and repeating that he had killed the deceased but had not meant to do it. The autopsy revealed the cause of death as suffocation. A broken piece of denture had lodged in the throat of the deceased to block entrance to the throat and larynx. The unusual way in which the deceased had met his death had been the result of a skirmish and fisticuffs with the appellant. The medical examination showed various external marks of violence on the body of the deceased. There were small cuts and bruises about his head and forearms. The major injury, though, was a broken jaw.

At trial the appellant testified that, though his inebriation interfered with a clear recollection of what had transpired, he thought he and the deceased had argued. He could not remember the cause or duration of the argument. He testified that the deceased kicked him twice, that he started kicking back and that the next thing he knew, the deceased was lying on the floor. The appellant had no idea how many times he kicked him but stated he stopped kicking him after he saw blood; then said he, he telephoned the police.

He was convicted for murder under the following definition of that offence (R.S.C. 1970, c. C‑34, s. 212):

212. Culpable homicide is murder

(a) where the person who causes the death of a human being

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

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The trial judge’s charge to the jury as regards the defence of drunkenness conformed to the law as laid down by the House of Lords in Director of Public Prosecutions v. Beard[^1] and later clarified and modified by this Court in MacAskill v. The King[^2], Malanik v. The Queen[^3] and in Capson v. The Queen[^4].

Whilst acknowledging this, appellant invites us to reconsider this area of the law dealing with drunkenness, and order a new trial because of misdirection as to the proper test as regards the effect of intoxication on mens rea. As I am of the opinion that appellant should succeed on another ground, there is here no compelling reason to do so. Furthermore, I do not think that this is the proper case to reconsider that question as we have been invited to reconsider only the test, and, as a result have had the benefit of argument solely on that aspect of the question. Indeed, if and when we do so, it would then be desirable that we consider not only the test set out in Beard (capacity) but also, as was done by my brother Dickson in Leary v. The Queen[^5], the logic and desirability of categorizing offences as of general or specific intent. A departure from the “capacity test”, without reconsideration of the very existence of those categories, could lead to erratic and undesirable results when the defence of intoxication is applied.

At trial the defence pleaded drunkenness and nothing else. Appellant now argues before us that the judge’s charge to the jury amounted to misdirection in law because it left the jury with the impression that, if the defence of drunkenness did not succeed, the jury could not find manslaughter.

The duties of a trial judge as regards which defences juries should be apprised of has long been

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established and was recently restated by this Court in the case of R. v. Squire[^6] where Spence J. speaking for the Court, said (at p. 19):

It is, of course, the duty of a trial judge to submit to the jury in his charge any defence available to the accused which had been revealed by the evidence whether or not counsel for the accused chose to advance that defence in his address to the jury: Mancini v. Director of Public Prosecutions (1941), 28 Cr. App. R. 65. And, of course, in many cases, there are alternative defences and counsel for the accused feels that his presentation to the jury would only be weakened if he presented alternatives requiring the jury to make two different findings of fact. It is, however, equally plain that a trial judge is under no duty to invite the jury to consider defences of which there is no evidence or which cannot reasonably be inferred from the evidence: Mancini v. Director of Public Prosecutions, supra, at p. 72, Lee Chun-Chuen v. The Queen, [1963] A.C. 220 at p. 233 Wu v. The King, 1934 28 (SCC), [1934] S.C.R. 609 at pp. 616 and 617.

See also: Charbonneau v. The Queen[^7]; Rustad v. The Queen[^8]; Workman and Huculak v. The Queen[^9]; Kelsey v. The Queen[^10]; Azoulay v. The Queen[^11]; Markadonis v. The King[^12]; MacAskill v. The King[^13].

Therefore two questions must here be considered:

—Whether the evidence reveals a defence other than that of drunkenness or whether such a defence can be reasonably inferred from the evidence;

—If so, whether the trial judge in his charge adequately put such a defence to the jury.

First question:

The Court of Appeal for Ontario thought not. With this conclusion I cannot, with deference, agree.

Of prime importance, when answering this first question, is the fact that the injuries inflicted upon

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the deceased were not of a fatal type whether considered individually or cumulatively, and that they were the cause of the victim’s death only because he had dentures, that those dentures broke, and that in breaking a piece of denture, having the required size to do so, lodged itself in such a way as to hold the victim’s glottis shut, thus obturating the larynx, somewhat like a plug in a sink.

It is from these peculiar circumstances that can be reasonably inferred a defence available to the accused other than that of drunkenness: even if the jurors were of the view that the accused had the capacity to know that the blows were likely to cause death, they should nevertheless acquit of murder and reach a verdict of manslaughter if, when considering circumstances other than intoxication, such as, the very nature of the blows, and the position the blows in fact occupied in the chain of causation, they had a reasonable doubt that he did in fact know.

Second question:

This then leads us to the second question. Were the jurors adequately apprised of this defence?

When considering the adequacy of a judge’s charge to a jury it is wrong to single out a passage of his charge, and then, if some error was committed, out of context, find misdirection. A judge’s charge should be considered in its entirety and be examined in the light of what was effectively conveyed to the jurors. Also it is not because a judge might have said something which was wrong that a new trial should necessarily as a result be ordered; if, when considering all of the charge, the end result is that the jury was properly instructed, no effect should then be given to such a mistake. This sound approach is usually taken to deal with the result of nitpicking by appellants; were this to be otherwise, very few charges could survive their scrutiny. The present case offers an illustration of such a situation. In the course of his charge, the judge said this to the jury:

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The mere fact that he was intoxicated, even to a high degree, offers no excuse unless the consumption of alcohol destroyed his capacity to develop the intent to kill or the intent to do bodily harm in reckless disregard of the likelihood that death was a probable consequence.

In saying this, he had overlooked an essential element of the offence, namely, foresight of the consequences of the violent conduct.

Appellant made this one of his grounds of appeal. Having regard to many other passages of the charge and indeed to the entirety of the charge, the Court of Appeal for Ontario found that:

…it is obvious, taking the charge as a whole, that the jury could not have been misled, but in addition the sequence of events is such that on the crucial questions—at least in the minds of the jury—the trial judge on the re-charge put the matter in a form to which no exception can be taken. We therefore reject that ground of appeal.

I am in full agreement with the Court of Appeal and consider that their rejection of that ground of appeal was the proper way to deal with that type of situation.

This approach should not however be limited to overriding mistakes in charges but should also be taken when considering a charge that is, when examined in a piecemeal way, technically correct, but which when considered in its entirety, does not properly give the jury the law or, as in this case, overlooks a defence available to the accused.

The trial judge, after having explained the difference between culpable homicide and not culpable, then said:

Culpable homicide is murder where a person who causes the death of a human being means to cause his death or means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.

Those are the precise words of s. 212(a) of the Code. He then explained the theory of the Crown:

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…the theory of the prosecution is that the accused man did cause the death of the deceased or meant to cause him bodily harm knowing it was likely to cause death, and he was reckless whether death ensued or not.

Further on he noted an error by the Crown and corrected it:

I made a note and underlined it while counsel for the Crown was speaking to you—he asked the question, “Was the mind of the accused so befuddled by alcohol that he was incapable of forming the intention of causing injury”? It is more than that before it is manslaughter. You have to take all the words of the section; bodily harm, knowing it was likely to cause death and was reckless whether death ensured [sic] or not.

Accordingly, to secure a conviction for murder, the Crown must prove to the exclusion of any reasonable doubt, that the accused caused the death of the deceased by means of an unlawful act or by criminal negligence and that the accused meant to cause the death or meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensured [sic] or not.

The third element of the charge of murder is that the accused man caused death or caused bodily harm that he knew was likely to cause death and was reckless whether death ensued or not…

The judge went on to deal at some length with the defence of drunkenness, after which he told the jury what was the theory of the defence:

The theory of the defence is that the accused was under the influence of alcohol to such an extent that he was incapable of forming the intent to kill or cause bodily harm in reckless disregard of the likelihood that death was a probable consequence. In other words, what the defence is suggesting to you is that the accused was not guilty of murder but guilty of manslaughter and saying, if you have any doubt as to his ability or capacity to form intent, then he is entitled to the benefit of that doubt and you should find him not guilty of murder but guilty of manslaughter.

This statement of the theory of the defence was followed by a thorough review of the evidence as

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regards appellant’s and the victim’s intoxication. Then he summed up in this way:

Now has the Crown satisfied you beyond a reasonable doubt on the truth of the charge? I point out that the three ingredients are; the accused caused the death of the deceased, 1; and 2; by an unlawful act or by criminal negligence; and 3; that the accused meant to cause death or meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.

If the Crown has satisfied you beyond a reasonable doubt as to each element of that offence, then you should find the accused guilty as charged. If the Crown has not satisfied you beyond a reasonable doubt as to each element, or if you have a reasonable doubt as to any of the elements, then you must find the accused not guilty.

If you find the accused not guilty of the murder, then you must consider the included offence of manslaughter. Now for this it is: The accused caused the death of the accused [sic] by means of an unlawful act or by criminal negligence. If the Crown has satisfied you beyond a reasonable doubt as to each of those two elements, then you should convict the accused of manslaughter. However, if the Crown has not satisfied you beyond a reasonable doubt as to each of those elements, or if you have a reasonable doubt as to any of them, then you must acquit the accused. But I say in this case there isn’t much doubt because there is an admission by the man as to those two.

Then, coming to the theory of the defence: It is drunkenness. In effect, it was that if you have the view that he had so much alcohol he didn’t have the capacity to form the judgment to form the intent to cause death or cause bodily harm that he knew was likely to cause death, then you should find him not guilty of murder but guilty of manslaughter. That in effect was the defence.

If you accept the evidence of the defence, and especially the evidence of Mr. Young, or if it creates a reasonable doubt in your minds, then you should acquit him of murder but find him guilty of manslaughter.

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You may return any of the following verdicts: Not guilty—if you believe that he didn’t cause the death, even. Guilty as charged—if you—and that would be if you find all three of these elements including the intent. If you find that because of drunkenness or you have a reasonable doubt as to it—that there was some doubt as to his capacity to form intent, then you would find him not guilty of murder but guilty of manslaughter.

About an hour later the jury came back with a question:

…We would just like re-clarification, please, on the difference between murder and manslaughter.

Complying with this request, the judge told the jurors:

All right. Murder: The Crown must prove to the exclusion—beyond a reasonable doubt that the accused caused the death of the deceased by means of an unlawful act and that the accused meant to cause death or meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. That is murder, with the three elements; that the accused [sic] the death by an unlawful act, and “intent”, as I have just described it.

Manslaughter is where an accused caused the death of a deceased by an unlawful act—in other words; if you have a reasonable doubt as to his capacity because of drunkenness, then you should give him the benefit of that doubt and find him not guilty of murder but guilty of manslaughter, because there is no doubt that the accused caused the death of the deceased by means of an unlawful act. There is no great dispute as to that, so it is merely between murder and manslaughter, and if you have any doubt at all on that evidence—any reasonable doubt as to his capacity to form intent to do these things because of drunkenness, then you give him the benefit of that doubt.

The judge undoubtedly and more than once told the jury that any reasonable doubt as to one of the essential elements of a combination of ss. 205(5) and 212(a)(ii) should be resolved in favour of the accused, and, given that causation was not in issue, result in a verdict of manslaughter. However, when considering the charge as a whole and when considering his very last remarks and the fact that throughout his charge he reviewed the evidence in such a way as to relate the facts nearly exclusively

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to the defence of drunkenness, I cannot but conclude that the jury was probably left with the impression that a verdict of manslaughter was dependent only upon the success of that defence. Before concluding, I should, in all fairness to the trial judge, mention that no objection in that regard to the charge was made by counsel for the accused.

Nevertheless, I am of the opinion that this appeal should succeed and that a new trial should be ordered.

The judgment of Martland, Ritchie, Beetz, McIntyre and Chouinard JJ. was delivered by

MARTLAND J.—The appellant is appealing from the unanimous judgment of the Court of Appeal for Ontario which dismissed his appeal from his conviction on a charge of murder.

The following recital of the facts is taken from the reasons for judgment delivered by Arnup J.A. on behalf of the Court of Appeal:

The appellant is a 27 year old alcoholic. The deceased was a 64 year old alcoholic. The appellant had known the deceased for about two weeks before the death of the latter and had had occasion to drink with him on a number of occasions.

On June 2, 1975, the appellant and the deceased consumed enormous quantities of wine and other intoxicating beverages in the course of the day. Around 3 a.m. on June 3, 1975, the events took place which gave rise to the charge. Both the appellant and the deceased had continued to drink heavily during the evening.

The call to the police occurred about 3:30 in the morning of June 3rd. In the meantime, the appellant had met some friends to whom he had said that he “thought he had murdered somebody”. Later he stated he had killed the deceased but he didn’t mean to do it.

It appears that there had been an argument between the two men. The appellant says that he was kicked twice by the deceased and that he then “fought back”, but it is obvious from his testimony that his memory of the events is hazy indeed. What is clear, is that he proceeded to both beat and kick the deceased. The actual cause of death was suffocation, occasioned by the fact that as a result of a blow which fractured the jaw of

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the deceased, his denture was broken in two, and lodged at the back of his throat, and he suffocated. He had a number of bruises on his head, his face, his arms and his chest, but no one of them in itself was the cause of death.

Dr. Dutkevich, the pathologist who conducted the post mortem examination of the deceased, Joseph Anthony MacNeill, certified that there were nine external signs of violence done to the body, all but one of which occurred on the head:

1. A superficial cut behind the ear measuring two centimetres by one centimetre, and covered with dried blood.

2. A diamond-shaped abrasion on the jaw, also covered with blood.

3. A bruise and swelling on the neck below the jaw.

4. A superficial abrasion on the tip of the nose.

5. A vertical cut over the upper lip; the entire lip was swollen, and was badly bruised.

6. A very considerable swelling and bruise on the left cheek.

7. A bruise and small swelling on the chin.

8. A superficial abrasion on the top of the head.

9. Bruises over a two-inch area on the right forearm.

The jaw had been broken as well, undoubtedly the cause of the broken denture.

The autopsy revealed that the deceased had been in an extremely fragile state of health, that there were lesions on the lungs, and biliary cirrhosis was present in the liver. The deceased had an alcohol level in his blood of 210 milligrams per cent.

This clinical description of the deceased was supplemented by evidence of the coroner and the policeman who attended the call. Constable Zweerink, who had known the deceased, testified that “I couldn’t identify him at the time. He was quite battered”. The coroner, Wrathall, stated that “He had some cuts and bruises around his head, behind

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his ear and in his mouth”. Furthermore, “there was a puddle of blood on the floor near the head”.

This evidence, coupled with that of the accused, leads to the conclusion that the appellant knocked MacNeill to the ground and then kicked him on the head until the body was still.

In considering the criticisms of the charge to the jury by the trial judge made on appeal, but not at the trial, it is important to examine what were the real questions raised at the trial before the judge and jury. The position taken by the defence was made abundantly clear in the opening statement to the jury made by counsel for the appellant. He said:

My lord. Ladies and gentlemen of the jury, at this point it is my opportunity to address you to indicate to you the nature of the case that is going to be presented to you for the defence.

My learned friend has quite fairly pointed out to you that the issue of how Mr. MacNeill died is not really something that is being contested here. We are not suggesting and it is not being argued, and you were able to tell this by the nature of the Examination‑in‑Chief and Cross-examination,—it is not really being contested how Mr. MacNeill died. But the Crown Attorney has to prove in his case that not only did Mr. Young kill Mr. MacNeill, but he has to prove beyond a reasonable doubt that at the time he killed him he intended to kill him or he intended to cause him bodily harm that was likely to kill him.

The defence, very simply—and my friend has stated this, is: That at the relevant time—at the time Mr. MacNeill died—Mr. Young was too intoxicated to be able to form either one of those intentions—either the intent to kill or the intent to cause that bodily harm I referred to, and in order to put this defence before you, part of that evidence obviously is covered in Cross-examination, and it is my intention to call Mr. Young who will tell you what he recalls of the events and of the time in question. And following Mr. Young I am going to call a toxicologist in this case, a woman who is an expert in assessing the effects of alcohol, and who will be called to give evidence—to give her opinion of the possible or probable effects of alcohol on Mr. Young.

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At the conclusion of the judge’s charge to the jury, no objection to it was made by counsel for the appellant.

Counsel for the appellant argued three grounds of appeal before the Court of Appeal. Arnup J.A. dealt with the first ground as follows:

The first ground of appeal argued before us was that no reasonable jury on the set of facts I have mentioned, and particularly those directly leading to the death, could find that the accused knew that the bodily harm was likely to cause the death of the deceased: the Criminal Code, s. 212(a)(ii), quoted below. The defence sought to be made out at the trial rested solely on drunkenness sufficient to reduce the charge from murder to manslaughter. At no time was it suggested to the trial judge that a defence resting on the submission now made by counsel for the appellant was an alternative ground of defence and that the trial judge should put that defence to the jury. It is, of course, the law that a trial judge is obligated to put to the jury a defence which reasonably arises from the evidence, whether or not that defence is put forward by counsel for the accused.

We are all of the opinion that this particular defence does not reasonably arise from the evidence as I have outlined it, and that in the circumstances the trial judge was not obliged to put it to the jury. Moreover, we are further of the view that there was ample evidence from which the jury could conclude that the appellant meant to cause the deceased bodily harm and that he knew it was likely to cause the death of the deceased.

In raising this ground of appeal, the appellant was seeking to invoke the power given to the Court of Appeal by s. 613(1)(a)(i) of the Criminal Code which permitted that Court to allow an accused’s appeal if it was of the opinion that:

the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence.

The judgment of the Court of Appeal on that issue was not a judgment on a question of law and so an appeal from that decision to this Court would not lie under s. 618(1) of the Criminal Code (R. v. Warner[^14]).

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The second ground of appeal related to misdirection in the charge to the jury with respect to s. 212(a)(ii) of the Criminal Code, which reads:

212. Culpable homicide is murder

(a) where the person who causes the death of a human being

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

This submission was based on the fact that when discussing the defence of drunkenness the trial judge had said:

The mere fact that he was intoxicated, even to a high degree, offers no excuse unless the consumption of alcohol destroyed his capacity to develop the intent to kill or the intent to do bodily harm in reckless disregard of the likelihood that death was a probable consequence.

He had also said, on a further occasion, and used the expression: “incapable of forming the intent to kill or cause bodily harm in reckless disregard of the likelihood that death was a probable consequence”.

In each case, there was omitted the phrase “that he knows is likely to cause death”.

The judgment of the Court of Appeal pointed out that on four occasions prior to these passages, the judge had correctly defined the purport of subpara. (ii) of s. 212(a), and did so again on two occasions thereafter. No objection was taken to the charge. The jury returned later seeking “re-clarification on the difference between murder and manslaughter”. On the recharge, the trial judge again put the relevant section to the jury in precise terms. There were no objections from counsel.

Arnup J.A. dealt with this ground of appeal as follows:

We are all of the opinion that in the circumstances I have outlined, it cannot be said that there was an error in the charge to the jury such that a new trial is required. In our view it is obvious, taking the charge as a whole, that the jury could not have been misled, but in addition the sequence of events is such that on the

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crucial questions—at least in the minds of the jury—the trial judge on the recharge put the matter in a form to which no exception can be taken. We therefore reject that ground of appeal.

I agree with this conclusion.

The third ground of appeal was that the trial judge had failed to charge the jury on the question of provocation by the deceased. The Court held that the evidence did not raise a possible defence of provocation. The issue of provocation was not raised before this Court.

Before this Court, counsel for the appellant adopted a different approach. Three grounds of appeal were raised which can be summarized as follows:

1. The trial judge failed to relate the cause of death and the quality of actual bodily harm caused to the requisite intent under s.212(a)(ii).

2. The trial judge failed to instruct the jury that a verdict of manslaughter was available apart from the defence of drunkenness and that if the appellant lacked the knowledge that the bodily harm occasioned to the deceased was likely to cause death the appellant could not be convicted of murder.

3. There was misdirection with respect to the defence of drunkenness.

The first two grounds of appeal allege non-direction by the trial judge. In substance, the first ground is a contention that the trial judge should have reviewed the evidence as to the circumstances of MacNeill’s death and, particularly, the fact that death resulted from suffocation because his denture lodged in his throat, in relation to the appellant’s intent when he caused bodily harm to MacNeill. The second ground is an allegation that the trial judge failed to instruct the jury that apart from drunkenness if the appellant lacked the knowledge that the bodily harm he inflicted on MacNeill was likely to cause death the jury could not convict him of murder.

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With respect to the first point, in my opinion the comments made by the Court of Appeal for Ontario in R. v. Demeter[^15] at pp. 340-41 apply aptly to the circumstances of the present case:

There will probably never be a perfect charge or one that cloistered appellate counsel cannot find objectionable after minute scrutiny. However, no case has been cited to us where non-direction on a matter of evidence has been held to be misdirection requiring a new trial except where a single item of evidence is the foundation of the defence. In R. v. Price and Hansen, 1968 232 (ON CA), [1969] 1 O.R. 24, [1969] 1 C.C.C. 226, both this Court and the Supreme Court of Canada [[1968] S.C.R. vi] refused to order a new trial by reason of non-direction going only to credibility. In that case this Court again adopted, as expressing the principles applicable to non-direction on evidence, what was said by Lord Justice Ashworth in R. v. Attfield, [1961] 3 All E.R. 243 at pp. 245-6 [at pp. 30-1 O.R., pp. 233-5 C.C.C]:

“In most cases what the trial judge endeavours to do is by reference to the evidence to direct the jury’s attention to what may be called the salient features for and against the accused man. No case has laid down, so far as we are aware, that it is essential for the validity of a summing-up that there should be a reference to the evidence, but equally there is no case that, so to speak, absolves a court from what is normally its function of assisting the jury by dealing with the evidence. Some assistance is to be gained from a passage cited in R. v. Stoddart (1909), 2 Cr. App. Rep. at p. 246. In that case a trial had taken place over a period of twenty days, and there was an omission to direct the jury on many of the no doubt complex issues which had been considered in the course of it, but this court cited the words of SIR WILLIAM BRETT, M.R. [later Lord Esher], in Abrath v. North Eastern Ry. Co. (1883), 11 Q.B.D. 440 at p. 453, as follows:

‘It is no misdirection not to tell the jury everything which might have been told them: there is no misdirection, unless the judge has told them something wrong, or unless what he has told them would make wrong that which he has left them to understand. Non-direction merely is not misdirection, and those who allege misdirection must show that

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something wrong was said or that something was said which would make wrong that which was left to be understood.’

“That is the end of the quotation, and this court then went on:

‘Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively. This court does not sit to consider whether this or that phrase was the best that might have been chosen, or whether a direction which has been attacked might have been fuller or more conveniently expressed, or whether other topics which might have been dealt with on other occasions should be introduced. This court sits here to administer justice and to deal with valid objections to matters which may have led to a miscarriage of justice. (Cf. R. v. Cohen and Bateman, (1909), 2 Cr. App. Rep. at p. 207.)’

“Nothing that this court is saying today is intended to put forward the suggestion that a judge is entitled to refrain from discussing the evidence if the circumstances of the case and the conduct of the trial demand that he should. The words that are important in R. v. Stoddart [supra] are that each case must depend on its own facts. Clearly, in a complicated and lengthy case it is incumbent on the court to deal with the evidence. Conversely, in a case which has not occupied a great deal of time and in which the issue, guilt or innocence, can be simply and clearly stated, this court is not prepared to hold that it is a fatal defect to the summing-up that the evidence has not been discussed.”

I must stress the words “Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively”, and again “in a case which has not occupied a great deal of time and in which the issue, guilt or innocence can be simply and clearly stated this court is not prepared to hold that it is a fatal defect to the summing-up that the evidence has not been discussed”.

This was not a lengthy trial. The issues had been limited by counsel for the defence to one only, i.e. was the appellant too intoxicated to form the intent to kill or to cause bodily harm that he knew was likely to cause death.

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The jury knew from the evidence of the accused that he had delivered kicks to the head of a frail and elderly man while prone on the floor and desisted only when his body was still. The trial judge had properly instructed them as to the burden resting upon the Crown in order to prove the appellant was guilty of murder.

In my opinion the appellant has not established any error in law in the charge to the jury in relation to the first point.

As to the second point, in my opinion the trial judge did make it clear to the jury that they could not convict the appellant of murder unless they were satisfied beyond a reasonable doubt that the appellant knew that the bodily harm which he inflicted upon MacNeill was likely to cause his death and that otherwise a verdict of manslaughter was available.

In the following passage in the charge the trial judge listed the three elements which the Crown was required to prove:

In the alternative, the theory of the prosecution is; if the accused didn’t have the necessary intent or there was reasonable doubt about the intent of the kind I have referred to, then he was automatically guilty of manslaughter.

Accordingly, to secure a conviction of murder, the Crown must prove to the exclusion of any reasonable doubt, that the accused caused the death of the deceased by means of an unlawful act or by criminal negligence and that the accused meant to cause the death or meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.

After reviewing the evidence of drunkenness, the trial judge addressed the jury as to the possible verdict of murder or manslaughter:

I mention to you the two decisions the Crown offer. If you are satisfied that all three elements have been proved beyond a reasonable doubt, then the accused would be guilty of murder. If you have any question as to the third element—a reasonable doubt as to it,—then it is manslaughter. I point out to you manslaughter is really an included offence in the charge of murder.

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When a person is charged with murder, if the Crown cannot prove all three elements but only the other two, then the accused would be automatically guilty of murder—I am sorry, automatically guilty of manslaughter.

Now has the Crown satisfied you beyond a reasonable doubt on the truth of the charge? I point out that the three ingredients are; the accused caused the death of the deceased, 1; and 2; by an unlawful act or by criminal negligence; and 3; that the accused meant to cause death or meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.

If the Crown has satisfied you beyond a reasonable doubt as to each element of that offence, then you should find the accused guilty as charged. If the Crown has not satisfied you beyond a reasonable doubt as to each element, or if you have a reasonable doubt as to any of the elements, then you must find the accused not guilty.

If you find the accused not guilty of the murder, then you must consider the included offence of manslaughter. Now for this it is: The accused caused the death of the accused [sic] by means of an unlawful act or by criminal negligence. If the Crown has satisfied you beyond a reasonable doubt as to each of those two elements, then you should convict the accused of manslaughter. However, if the Crown has not satisfied you beyond a reasonable doubt as to each of those elements, or if you have a reasonable doubt as to any of them, then you must acquit the accused. But I say in this case there isn’t much doubt because there is an admission by the man as to those two.

Then, coming to the theory of the defence: It is drunkenness. In effect, it was that if you have the view that he had so much alcohol he didn’t have the capacity to form the judgment to form the intent to cause death or cause bodily harm that he knew was likely to cause death, then you should find him not guilty of murder but guilty of manslaughter. That in effect was the defence.

If you accept the evidence of the defence, and especially the evidence of Mr. Young, or if it creates a

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reasonable doubt in your minds, then you should acquit him of murder but find him guilty of manslaughter.

It will be observed that in this passage the reference to drunkenness does not appear until the judge turns to the theory of the defence, which he describes briefly and accurately in the first sentence: “Then, coming to the theory of the defence: It is drunkenness”.

Counsel for the appellant refers to the passages in the charge dealing with possible verdicts and the recharge. The first passage is as follows:

You may return any of the following verdicts: Not guilty—if you believe that he didn’t cause the death, even. Guilty as charged—if you—and that would be if you find all three of these elements including the intent. If you find that because of drunkenness—or you have a reasonable doubt as to it—that there was some doubt as to his capacity to form intent, then you would find him not guilty of murder but guilty of manslaughter.

The second passage is as follows:

All right. Murder: The Crown must prove to the exclusion—beyond a reasonable doubt that the accused caused the death of the deceased by means of an unlawful act and that the accused meant to cause death or meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. That is murder, with the three elements; that the accused [sic] the death by an unlawful act and “intent”, as I have just described it.

Manslaughter is where an accused caused the death of a deceased by an unlawful act—in other words; if you have a reasonable doubt as to his capacity because of drunkenness, then you should give him the benefit of that doubt and find him not guilty of murder but guilty of manslaughter, because there is no doubt that the accused caused the death of the deceased by means of an unlawful act. There is no great dispute as to that, so it is merely between murder and manslaughter, and if you have any doubt at all on that evidence—any reasonable doubt as to his capacity to form intent to do these things because of drunkenness, then you give him the benefit of that doubt.

Counsel contends that the effect of these instructions was to direct the jury that the exclu-

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sive foundation for a reduction of the charge from murder to manslaughter was on the basis of the defence of drunkenness.

In my opinion a new trial should not be ordered on this ground. The trial judge in the passages quoted earlier had properly stated the general law as to the circumstances in which a charge of murder should be reduced to manslaughter. The references to drunkenness in the last two passages cited were made in the context of the sole issue raised by the defence, the course which the trial had taken and the evidence adduced. In this case, the trial judge made it clear that the jury had to find the requisite intent to hold the accused guilty of murder, and also put to the jury the principal defence of drunkenness. In my opinion these two passages in the charge must be considered in relation to the rest of the charge, and when so considered did not effect the removal of the defence that one of the requisite elements of murder had not been proven by the Crown, nor did they constitute a direction that a reduction of the charge from murder to manslaughter could only be made on the basis of the defence of drunkenness.

Notwithstanding that I am of the view that the jury was left free to find a verdict of manslaughter aside from the defence of drunkenness, all the circumstances of the offence and the course of the trial indicate that the only valid issue to be put to the jury was as stated by the trial judge in the latter part of his recharge “if you have any doubt at all on that evidence—any reasonable doubt as to his capacity to form intent to do these things because of drunkenness, then you will give him the benefit of that doubt”. As I noted earlier in these reasons, the evidence of the accused and that of the medical witnesses showed that the accused had delivered kicks to the head of a frail and elderly man lying prone on the floor. In my opinion that conduct is such as to, in the normal course of events, give rise to a probability of serious injury that is likely to cause death. In the absence of any indication that the accused lacked the normal

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intent which accompanies such conduct, the inference to be drawn from the facts, absent drunkenness, is that the accused intended to cause bodily harm which he knew was likely to cause death and was reckless as to whether death ensued or not. The accused did not say that he did not know what he was doing was likely to cause death. His sole defence was that he was too drunk to be able to form either of the intents necessary to convict him of murder. In these circumstances, it was not necessary to leave before the jury the defence, which had never been raised, that the accused, apart from drunkenness, did not know that the bodily harm which he was inflicting was likely to cause death.

In my opinion, the appeal should not be allowed on the basis of the second ground of appeal.

The third ground of appeal was that the trial judge misdirected the jury in respect of the defence of drunkenness. His instruction to the jury on this issue was as follows:

I next deal with the matter of drunkenness. The law as to the effect of the consumption of alcohol is this: drunkenness does not exonerate an accused. It does not excuse him entirely, but evidence of drunkenness which at the time of the alleged offence, rendered an accused incapable of forming the intent to kill or to cause bodily harm that he knew was likely to cause death, should be taken into consideration by you, with the other facts proven, in order to decide whether or not he had that intent.

There are varying degrees of intoxication. The mere fact that he was intoxicated, even to a high degree, offers no excuse unless the consumption of alcohol destroyed his capacity to develop the intent to kill or the intent to do bodily harm in reckless disregard of the likelihood that death was a probable consequence. A man may be intoxicated and yet be able to perform [sic] the intent to act as he does. For example; he may be a great danger to the public if he drives and yet be quite capable of forming the intent to drive. The accused’s capacity is a question of fact for you and you alone to decide.

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The onus is not on the accused to prove the required incapacity. The Crown is the one that must satisfy you that the accused had the capacity. In other words; that he was not so affected by alcohol that he could not form the intent, either the intent to kill, or the intent to cause bodily harm that he knew was likely to cause death. And I point out to you that it is sufficient if the evidence raises a reasonable doubt in your minds as to his mental capacity to form the necessary intent.

This statement of the law is in accordance with the decisions of this Court in MacAskill v. The King[^16], Perrault v. The Queen[^17] and Mulligan v. The Queen[^18]. This was not seriously challenged by counsel for the appellant whose real submission was that the law as to drunkenness as stated by the House of Lords in Director of Public Prosecutions v. Beard[^19], and followed in judgments in this Court, should be reconsidered. I agree with my brother Lamer that this is not a proper case in which to undertake that task.

In my opinion, the third ground of appeal also fails.

I would dismiss the appeal.

Appeal dismissed, LASKIN C.J. and DICKSON, ESTEY and LAMER JJ. dissenting.

Solicitor for the appellant: Brian H. Greenspan, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.

[^1]: [1920] A.C. 479.

[^2]: 1931 58 (SCC), [1931] S.C.R. 330.

[^3]: 1952 43 (SCC), [1952] 2 S.C.R. 335.

[^4]: 1952 50 (SCC), [1953] 1 S.C.R.44.

[^5]: 1977 2 (SCC), [1978] 1 S.C.R. 29.

[^6]: 1976 26 (SCC), [1977] 2 S.C.R. 13.

[^7]: 1977 18 (SCC), [1977] 2 S.C.R. 805.

[^8]: 1965 53 (SCC), [1965] S.C.R. 555.

[^9]: 1963 55 (SCC), [1963] S.C.R. 266.

[^10]: 1953 5 (SCC), [1953] 1 S.C.R. 220.

[^11]: 1952 4 (SCC), [1952] 2 S.C.R. 495.

[^12]: 1935 44 (SCC), [1935] S.C.R. 657.

[^13]: 1931 58 (SCC), [1931] S.C.R. 330.

[^14]: 1960 85 (SCC), [1961] S.C.R. 144.

[^15]: (1975), 1975 685 (ON CA), 10 O.R. (2d) 321.

[^16]: 1931 58 (SCC), [1931] S.C.R. 330.

[^17]: 1970 170 (SCC), [1971] S.C.R. 196.

[^18]: 1976 23 (SCC), [1977] 1 S.C.R. 612.

[^19]: [1920] A.C. 479.