R. v. Cooper, [1993] 1 S.C.R. 146

Her Majesty The Queen Appellant

v.

Lyndon Paul Cooper Respondent

Indexed as: R. v. Cooper

File No.: 22395.

1992: October 6; 1993: January 21.

Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.

on appeal from court of appeal for newfoundland

Criminal law ‑‑ Second degree murder ‑‑ Defences ‑‑ Mens rea and actus rea ‑‑ Accused and victim intoxicated ‑‑ Accused strangling victim but blacking out before death occurred ‑‑ Whether subjective intent to cause bodily harm ‑‑ Whether subjective knowledge that the bodily harm is of such a nature that it is likely to result in death ‑‑ Whether mens rea coincided with actus rea ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 212(a)(ii).

Respondent was convicted of second degree murder pursuant to s. 212(a)(ii) of the Criminal Code ‑‑ causing bodily harm knowing it is likely to cause death and nevertheless being reckless whether death ensues or not. He and his victim had been drinking. He became angry after being hit during an argument, struck the deceased and grabbed her by the throat with both hands and shook her. Respondent stated that this occurred in the front seat of the Jeep and that he could recall nothing else until he woke in the back seat and found the body of the deceased beside him. He had no recollection of causing her death. The expert evidence established that death was caused by one‑handed manual strangulation and that death probably occurred after two minutes of pressure. The Court of Appeal indicated conviction required that the accused have a persisting or continuing knowledge that the act was likely to cause death. It set aside the conviction and directed that a new trial be held. At issue here was the nature of the intent required to found a conviction for murder pursuant to s. 212(a)(ii) of the Criminal Code.

Held (Lamer C.J. dissenting): The appeal should be allowed.

Per L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.: The intent that must be demonstrated in order to convict under s. 212(a)(ii) has two aspects. There must be (a) subjective intent to cause bodily harm, and (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. There is only a "slight relaxation" in the mens rea required for a conviction for murder under s. 212(a)(ii) as compared to s. 212(a)(i).

Mens rea must not only be present but also must be concurrent with the impugned act. It is not always necessary, however, for the guilty act and the intent to be completely concurrent; they need only coincide at some point. An act (actus reus) which may be innocent or no more than careless at the outset can become criminal at a later stage when the accused acquires knowledge of the nature of the act and still refuses to change his or her course of action. The determination of whether the mens rea coincides with the wrongful act depends to a large extent upon the nature of the act.

To obtain a conviction the Crown had to demonstrate that the accused intended to cause bodily harm that he knew was ultimately so dangerous and serious that it was likely to result in the death of the victim. But that intent did not need to persist throughout the entire act of strangulation. The jury could infer that respondent, by seizing the victim by the neck, intended to cause her bodily harm that he knew that was likely to cause her death. The jury could reasonably infer that the actus reus and mens rea coincided at the moment when the accused grabbed the victim by the neck and shook her ‑‑ the necessary coincidence of the wrongful act of strangulation and the requisite intent to do bodily harm that the accused knew was likely to cause her death. Respondent was aware of these acts before he "blacked out". It was not necessary that the requisite intent continue throughout the entire time required to cause the death of the victim. If death results from a series of wrongful acts that are part of a single transaction then it must be established that the requisite intent coincided at some point with the wrongful acts.

Looking at the charge as a whole, the jurors would adequately understand the issues involved, the law relating to the charge the accused faced, and the evidence to be considered in resolving the issues. Directions to the jury need not, as a general rule, be endlessly dissected and subjected to minute scrutiny and criticism. Rather the charge must be read as a whole. The directions to the jury must, of course, set out the positions of the Crown and defence, the legal issues involved and the evidence that may be applied in resolving the legal issues and ultimately in determining the guilt or innocence of the accused. The trial judge repeatedly and adequately instructed the jury about the consequences of respondent's consumption of alcohol, about the capacity to form the required intent, and assuming capacity, about the need for that intent in the circumstances.

Per Lamer C.J. (dissenting): The jury must understand that there must be intention to cause bodily harm which the accused knows is likely to cause death for there to be a correct charge under s. 212(a)(ii). The charge must make it clear that intention to cause bodily harm, without knowledge that such is likely to cause death, is not sufficient. Upon examination of the charge as a whole, this was not done adequately.

Intentionally and consciously choking someone for only a few seconds might or might not constitute the infliction of bodily harm within the meaning of s. 212(a)(ii). While "bodily harm" is not defined in that section, the definition in s. 245.1 ‑‑ any hurt or injury to the complainant that interferes with his or her health or comfort and that is more than merely transient or trifling in nature ‑‑ provides some general guidance about its interpretation in s. 212(a)(ii) and makes the point that bodily harm includes a broad spectrum of hurts and injuries.

Intention to cause bodily harm does not inexorably lead to the conclusion that the accused knew that the bodily harm was likely to cause death. This second aspect is essential to a finding of guilt of murder under s. 212(a)(ii). Particularly with respect to an action such as grabbing by the neck, there may be a point at the outset when there is no intention to cause death and no knowledge that the action is likely to cause death. But there comes a point in time when the wrongful conduct becomes likely to cause death. At that moment or thereafter, the accused must have a conscious awareness of the likelihood of death. This awareness need not continue until death ensues.

Cases Cited

By Cory J.

Considered: R. v. Nygaard, [1989] 2 S.C.R. 1074; Meli v. The Queen, [1954] 1 W.L.R. 228; referred to: Sansregret v. The Queen, [1985] 1 S.C.R. 570; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Droste (1979), 49 C.C.C. (2d) 52; Fagan v. Metropolitan Police Commissioner, [1968] 3 All E.R. 442; R. v. MacKinlay (1986), 28 C.C.C. (3d) 306; R. v. Korzepa (1991), 64 C.C.C. (3d) 489.

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C-34, ss. 212(a)(i), (ii), 245.1 [ad. by S.C. 1980-81-82-83, c. 125, s. 19], 245.3 [ad. by idem] and 246.2 [ad. by idem] [now R.S.C., 1985, c. C‑46, ss. 229(a)(i), (ii), 267, 269, 272].

Authors Cited

Stuart, Don. Canadian Criminal Law, 2nd ed. Toronto: Carswell, 1987.

APPEAL from a judgment of the Newfoundland Court of Appeal (1991), 89 Nfld. & P.E.I.R. 1, 278 A.P.R. 1, setting aside a conviction by O'Regan J. sitting with jury and ordering a new trial. Appeal allowed, Lamer C.J. dissenting.

J. Thomas Eagan, for the appellant.

Ernest L. Gittens, for the respondent.

//Lamer C.J.//

The following are the reasons delivered by

Lamer C.J. ‑‑ I have read the reasons of my colleague, Justice Cory, and adopt his exposition of the facts, the law and, save what is hereinafter said, his comments with respect to s. 212(a)(ii) of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C., 1985, c. C-46, s. 229(a)(ii)).

It is crucial to a correct charge under s. 212(a)(ii) that the jury understand that there must be intention to cause bodily harm which the accused knows is likely to cause death. Intention to cause bodily harm, without knowledge that such is likely to cause death, is not sufficient. Given the position of the defence in this case, a clear understanding of this aspect was essential to a fair trial.

Intentionally and consciously choking someone for only a few seconds might or might not constitute the infliction of bodily harm within the meaning of s. 212(a)(ii). While the term "bodily harm" is not defined in that section, there is a statutory definition in s. 245.1 (now s. 267) which also applies to ss. 245.3 (now s. 269) and 246.2 (now s. 272):

245.1

(2) . . . "bodily harm" means any hurt or injury to the complainant that interferes with his or her health or comfort and that is more than merely transient or trifling in nature.

This definition provides some general guidance about the interpretation of the term "bodily harm" in s. 212(a)(ii) and makes the point that bodily harm includes a broad spectrum of hurts and injuries.

I do not raise this point to question whether the accused here intended to cause bodily harm. That was conceded in the argument before us. I raise it rather to emphasize that the intention to cause bodily harm by no means leads inexorably to the conclusion that the accused knew that the bodily harm was likely to cause death. It is, of course, this second aspect which is essential to a finding of guilt of murder under s. 212(a)(ii). Particularly with respect to an action such as grabbing by the neck, there may be a point at the outset when there is no intention to cause death and no knowledge that the action is likely to cause death. But there comes a point in time when the wrongful conduct becomes likely to cause death. It is, in my view, at that moment or thereafter, that the accused must have a conscious awareness of the likelihood of death. This awareness need not, however, continue until death ensues.

Cooper intended to choke the deceased and cause her bodily harm. Under s. 212(a)(i), it was open to the jury to infer from his conduct and on all of the evidence that in doing so he intended to kill her. To be found guilty under s. 212(a)(ii), however, he must have been aware of the fact that he persisted in choking her long enough for it to become likely that death would ensue.

This instruction, given the particular facts of this case and the nature of the defence presented by the accused, had to be given. Additionally, the jury should have been instructed to consider the evidence of drunkenness in relation to this awareness. In my respectful view, upon a reading of the whole charge, this was not done adequately.

I would dismiss the appeal.

//Cory. J.//

The judgment of L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ. was delivered by

Cory J. ‑‑ At issue, on this appeal, is the nature of the intent required to found a conviction for murder pursuant to s. 212(a)(ii) of the Criminal Code, R.S.C. 1970, c. C‑34, (now R.S.C., 1985, c. C‑46, s. 229(a)(ii)).

Factual Background

The respondent Lyndon Cooper and the deceased Deborah Careen lived in Labrador City, Newfoundland. At one time, they had been friends and lovers. On January 30, 1988, they met at a gathering place known as the K-Bar in Labrador City. Although by this time, the respondent was living with somebody else, they spent the evening together at the bar. There is no doubt that they consumed a considerable amount of alcohol. Eventually, Cooper, the deceased and a mutual friend left the bar in a taxi. After they dropped off the friend they continued in the cab to the residence of another of Cooper's friends where he borrowed a Jeep. Cooper then drove the deceased to the secluded parking lot of a power station.

At the parking lot the respondent testified that he and the deceased engaged in some form of consensual sexual activity. He said that they began to argue at one point and that the deceased struck him. At this he became angry. He hit the deceased and grabbed her by the throat with both hands and shook her. He stated that this occurred in the front seat of the Jeep. He then said that he could recall nothing else until he woke in the back seat and found the body of the deceased beside him. He had no recollection of causing her death. He pushed her body out of the Jeep and drove away. Later during the drive to his home he found one of her shoes in the vehicle and threw it out the window into the snow.

The expert evidence established that the deceased had in fact been struck twice. However, these blows could not have killed her. Rather death was caused by "a classic pattern of one-handed manual strangulation". That same evidence confirmed that death by strangulation can occur as quickly as 30 seconds after contact with the throat and that a drunken victim is likely to die from asphyxiation more quickly than a sober one. Nonetheless, the presence of petechial haemorrhages on the neck of the deceased and the finding that the hyoid bone in her throat was not fractured suggested to the expert that death occurred rather more slowly, probably after two minutes of pressure.

The position of the defence was that the respondent was so drunk that he blacked out shortly after he started shaking her with both hands. Thus, it was said that the respondent did not have (i) the required intent to commit murder, or (ii) alternatively did not foresee that holding someone by the neck was likely to cause death.

Courts Below

Newfoundland Supreme Court

O'Regan J. withdrew the first degree murder charge from the jury. He left open to them three possible verdicts; not guilty, guilty of second degree murder or guilty of manslaughter. He explained that s. 212(a)(ii) of the Criminal Code dealt with those situations where an accused intended to cause bodily harm knowing that it was likely to cause death. At one point, the jury asked for further instruction with regard to the difference between second degree murder and manslaughter. O'Regan J. advised that once the accused had formed the intent to cause her bodily harm which he knew would likely cause her death, he need not be aware of what he was doing at the moment she actually died. The jury convicted the respondent of second degree murder.

Newfoundland Court of Appeal (1991), [89 Nfld. & P.E.I.R. 1](https://www.canlii.org/en/nl/nlca/doc/1991/1991canlii6833/1991canlii6833.html)

The Court of Appeal concluded that the trial judge dealt quite properly with the issue of intoxication and adequately reviewed the evidence during the course of his charge to the jury. However, Gushue J.A., writing on behalf of the court, held that the trial judge had not adequately explained the intent required for murder. He expressed the view that the trial judge had not complied with the reasons of this Court given in R. v. Nygaard, [1989] 2 S.C.R. 1074. Gushue J.A. put his position in this way at p. 5:

Further, was it established beyond a reasonable doubt that he "persist(ed) in that conduct despite the knowledge of the risk". While from the forensic evidence it appears the appellant persisted in his conduct, was continuing awareness on his part of what he was doing and its probable result established? [Emphasis in original.]

He concluded that:

A simple reading of what the Supreme Court said in this regard in Nygaard makes it very clear that an extremely high degree of knowledge by an accused of what he is doing and persisting in must be demonstrated before the requisite intent may be found to exist.

The Court of Appeal set aside the conviction and directed that a new trial be held.

Analysis

The Nature of the Intent Required to Secure a Conviction Under s. 212(a)(ii).

Section 212(a)(ii) provides:

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 section was considered in R. v. Nygaard, supra. On the issue of the requisite intent the Court was unanimous. At pages 1087-88, it was said:

The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in death of the victim. The aspect of recklessness is almost an afterthought . . .

The aspect of recklessness can be considered an afterthought since to secure a conviction under this section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not.

The concept of recklessness was considered by this Court in Sansregret v. The Queen, [1985] 1 S.C.R. 570. At page 582 it was said

[Recklessness] is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.

The same words can apply to s. 212(a)(ii) with this important addition: it is not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim.

It is for this reason that it was said in Nygaard that there is only a "slight relaxation" in the mens rea required for a conviction for murder under s. 212(a)(ii) as compared to s. 212(a)(i). The position was put in this way at p. 1089:

. . . [where] two accused form the intent to repeatedly and viciously strike a person in the head with a baseball bat realizing full well that the victim will probably die as a result. Nonetheless they continue with the bone-splintering, skull-shattering assault. The accused . . . must have committed as grave a crime as the accused who specifically intends to kill . . . I would conclude that the crime defined in s. 212(a)(ii) [now 229(a)(ii)] can properly be described as murder and on a "culpability scale" it varies so little from s. 212(a)(i) as to be indistinguishable

The intent that must be demonstrated in order to convict under s. 212(a)(ii) has two aspects. There must be (a) subjective intent to cause bodily harm; (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death. It is only when those two elements of intent are established that a conviction can properly follow.

What Degree of Concurrency is Required Between the Wrongful Act and the Requisite Mens Rea?

There can be no doubt that under the classical approach to criminal law it is the intent of the accused that makes the wrongful act illegal. It is that intent which brings the accused within the sphere of blameworthiness and justifies the penalty or punishment which is imposed upon him for the infraction of the criminal law. The essential aspect of mens rea and the absolute necessity that it be present in the case of murder was emphasized by Lamer J. (as he then was) in R. v. Vaillancourt, [1987] 2 S.C.R. 636. At p. 653 he stated:

It may well be that, as a general rule, the principles of fundamental justice require proof of a subjective mens rea with respect to the prohibited act, in order to avoid punishing the "morally innocent".

The essential element of a subjectively guilty mind in order to convict a person of murder was again emphasized in R. v. Martineau, [1990] 2 S.C.R. 633.

However, not only must the guilty mind, intent or mens rea be present, it must also be concurrent with the impugned act. Professor D. Stuart has referred to this as "the simultaneous principle": see Canadian Criminal Law (2nd ed. 1987), at p. 305. The principle has been stressed in a number of cases. For example in R. v. Droste (1979), 49 C.C.C. (2d) 52 (Ont. C.A.), the accused had intended to murder his wife by pouring gasoline over the interior of the car and setting fire to it while she was within it. Before he could light the gasoline the car crashed into a bridge and ignited prematurely. As a result both his children were killed rather than his wife. He was charged with their murder and convicted. On appeal Arnup J.A., speaking for the Court of Appeal in directing a new trial, stated at pp. 53‑54:

. . . the trial Judge did not instruct the jury of the necessity of the Crown showing that at the time of the occurrence at the bridge, the appellant, intending to kill his wife, had done an act with that intention, and in the course of doing so his children were killed. In short, he did not tell them that the mens rea and the actus reus must be concurrent . . . . [Emphasis added.]

Yet, it is not always necessary for the guilty act and the intent to be completely concurrent. See for example Fagan v. Metropolitan Police Commissioner, [1968] 3 All E.R. 442 (Q.B.). In that case a motorist stopped his car on the foot of a police officer. This was apparently done by accident. When the officer, not unreasonably, asked the accused to move the car, he at first refused but eventually did move on. It was determined that while the first action of stopping was innocent of criminal intent, it acquired the necessary mens rea when the accused was made aware that the car was resting on the officer's foot and still refused to move. James J. concurring in the result stated at p. 445:

It is not necessary that mens rea should be present at the inception of the actus reus; it can be superimposed on an existing act.

There is, then, the classic rule that at some point the actus reus and the mens reas or intent must coincide. Further, I would agree with the conclusion of James J. that an act (actus reus) which may be innocent or no more than careless at the outset can become criminal at a later stage when the accused acquires knowledge of the nature of the act and still refuses to change his course of action.

The determination of whether the guilty mind or mens rea coincides with the wrongful act will depend to a large extent upon the nature of the act. For example, if the accused shot the victim in the head or stabbed the victim in the chest with death ensuing a few minutes after the shooting or stabbing, then it would be relatively easy to infer that the requisite intent or mens rea coincided with the wrongful act (actus reus) of shooting or stabbing. As well, a series of acts may form part of the same transaction. For example the repeated blows of the baseball bat continuing over several minutes are all part of the same transaction. In those circumstances if the requisite intent coincides at any time with the sequence of blows then that could be sufficient to found a conviction.

An example of a series of acts that might be termed a continuous transaction appears in Meli v. The Queen, [1954] 1 W.L.R. 228 (P.C.). There the accused intended to kill the deceased, and to this end struck a number of blows. The effect of the blows was such that the accused thought the victim was dead and threw the body over a cliff. However, it was not the blows but rather the exposure suffered by the victim while he lay at the base of the cliff that resulted in the death. It was argued on behalf of the accused that when there was the requisite mens rea (during the beating) death did not ensue and when death did ensue there was no longer any intention to kill. The Judicial Committee of the Privy Council concluded that the entire episode was one continuing transaction that could not be subdivided in that way. At some point, the requisite mens rea coincided with the continuing series of wrongful acts that constituted the transaction. As a result, the conviction for murder was sustained. I agree with that conclusion.

Application of the "Contemporaneous" Principles to This Case

Gushue J.A. indicated that persisting or continuing knowledge by the accused that the act he was performing was likely to cause death was required in order to obtain a conviction. He wrote at p. 5:

A simple reading of what the Supreme Court said in this regard in Nygaard makes it very clear that an extremely high degree of knowledge by an accused of what he is doing and persisting in must be demonstrated before the requisite intent may be found to exist. [Emphasis added.]

Yet, with respect, I do not think that it is always necessary that the requisite mens rea (the guilty mind, intent or awareness) should continue throughout the commission of the wrongful act. There is no question that in order to obtain a conviction the Crown must demonstrate that the accused intended to cause bodily harm that he knew was ultimately so dangerous and serious that it was likely to result in the death of the victim. But that intent need not persist throughout the entire act of strangulation. When Cooper testified that he seized the victim by the neck, it was open to the jury to infer that by those actions he intended to cause her bodily harm that he knew that was likely to cause her death. Since breathing is essential to life, it would be reasonable to infer the accused knew that strangulation was likely to result in death. I would stress that the jury was, of course, not required to make such an inference but, on the evidence presented, it was open to them to do so.

Did the accused possess such a mental state after he started strangling the victim? Here death occurred between 30 seconds and 2 minutes after he grabbed her by the neck. It could be reasonably inferred by the jury that, when the accused grabbed the victim by the neck and shook her, there was, at that moment, the necessary coincidence of the wrongful act of strangulation and the requisite intent to do bodily harm that the accused knew was likely to cause her death. Cooper was aware of these acts before he "blacked out". Thus although the jury was under no compulsion to do so, it was nonetheless open to them to infer that he knew that he was causing bodily harm and knew that it was so dangerous to the victim that it was likely to cause her death. It was sufficient that the intent and the act of strangulation coincided at some point. It was not necessary that the requisite intent continue throughout the entire two minutes required to cause the death of the victim.

Gushue J.A. in his reasons relied upon and stressed the following quotation from R. v. Nygaard, supra, at p. 1088

Thus the section requires the accused to intend to cause the gravest of bodily harm that is so dangerous and serious that he knows it is likely to result in death and to persist in that conduct despite the knowledge of the risk. [Emphasis added.]

The emphasized words refer to the conduct of an accused. Those words should not be taken as requiring a persistent or continued awareness of a likelihood of death right up to the moment of death or until the precise moment when it is established that death was likely to occur. Once it is demonstrated beyond a reasonable doubt that an accused has knowingly caused bodily harm that he knew was likely to cause the death of the victim and the victim dies as a result of the injuries inflicted, then he may be found guilty of murder under s. 212(a)(ii).

The Court of Appeal asked, at p. 5, whether "continuing awareness on his part of what he was doing and its probable result [was] established". The accused argued that in using this expression the Court of Appeal was not going so far as to require the presence of a continuous intent up to the moment of death. Rather, he contended that the court was merely stating that in order for there to be a conviction under this section the mens rea must be present at or after the point at which it becomes likely the death will ensue. It was his position that if the intent to cause bodily harm that the accused knew was likely to cause death should disappear before the point was reached at which death became likely then the accused could not be found guilty. He stated that it was only at this point that the mens reas and actus reus could coalesce into the crime described in s. 212(a)(ii).

This argument should not be accepted. It would require the Crown to provide expert evidence as to the moment at which death physiologically became a likelihood. It would be impossible to fix the time of the "likelihood" of death and difficult to provide evidence as to the duration of the requisite intent of the accused. That cannot be the meaning of this section. Neither the plain wording of this section nor any concept of fairness require the Crown to demonstrate such a complex chronological sequence. In order to obtain a conviction under s. 212(a)(ii) the Crown must prove that the accused caused and intended to cause bodily harm that he knew was likely to cause the death of the victim. If death results from a series of wrongful acts that are part of a single transaction then it must be established that the requisite intent coincided at some point with the wrongful acts.

On this issue the trial judge correctly instructed the jury when he stated:

When he grabbed her by the neck and shook her, did he intend to cause her bodily harm, which he knew was likely to cause her death and was reckless whether death ensued or not. In other words, he wouldn't have to be there until she died . . . . He could formulate all of that intent at that point in time, even th[o]ugh he doesn't remember the final outcome.

It was on this ground that the Court of Appeal directed the new trial. Although it can never be determinative of the issue, it is significant that defence counsel at trial took no objection to this or any other aspect of the charge. In any event for the reasons set out earlier, I must disagree with the Court of Appeal's conclusion on this issue. A new trial should not have been granted on this ground.

The Knowledge of the Likelihood of Death

The appellant seeks to uphold the order directing a new trial on two other grounds. The first, and the more important of these, is the issue raised before the Court of Appeal that the trial judge did not adequately instruct the jury that the Crown must establish that Cooper knew that the bodily injury that he was inflicting was likely to cause the death of the victim. I cannot agree with that contention.

It is true that from one or two excerpts from the charge the jury could have inferred that an intent to cause bodily harm was all that was required in order to convict. Yet on numerous occasions the trial judge stated and repeated that the jurors had to be satisfied beyond a reasonable doubt that Cooper meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. If there was any question as to the adequacy of the charge it was put to rest by the trial judge's reply to a question from the jury enquiring as to the difference between second degree murder and manslaughter. At that time, when the jury's mind was focused upon this very issue, the trial judge adequately instructed the jury as to the intent the Crown was required to establish in order to convict under s. 212(a)(i) or 212(a)(ii).

The following portions of the response to the question are significant.

The things that you have to remember, we need, in order to have anything, we need an unlawful act. I said I don't think you will have any difficulty in finding an unlawful act. The unlawful act has to be done by the accused and there has to be a deceased. So, take that out, let's assume we have an unlawful act. Then you have murder, second-degree murder if the accused, the person who did it, means to cause death or means to cause bodily harm that he knows is likely to cause death and is reckless whether death ensures or not.

Not only do you need intention, but you need the capability of forming the intent. You have to be capable of intending. This is where drunkenness comes in, whether or not he was capable of forming the intent. Even if he is capable for forming the intent, he has to intend it. The intent of a person can come from his actions, or from what he says. You can infer certain intention, but you always have to give the doubt to the accused. Now, in relation to intention, the Crown has to prove the intention beyond a reasonable doubt. And the onus is on the Crown to do that and it never shifts. Manslaughter, the second one, doesn't require intention. Manslaughter only requires the unlawful act and there is no intention necessary.

Two things we need for intent is we need the capability of forming the intent. It has to be a specific intent. You know, a person has to say, I intend, subjectively. And, you have to be capable of doing that. Drunkenness can reduce that capability. But even if a person was drunk, they could still be capable of intending their actions, but you still have to find that he intended the actions. Capability plus intent. But, even if there is no intent and no capability, and you find by the unlawful act that the deceased died, which was the grabbing, then it is manslaughter. So, for murder it is the intent, but you have to remember capability as well.

When the charge is looked at as a whole, there can be no doubt that the jury understood what was required in order to convict under s. 212(a)(ii). It has been said before but it bears repeating that it would be difficult if not impossible to find a perfect charge. Directions to the jury need not, as a general rule, be endlessly dissected and subjected to minute scrutiny and criticism. Rather the charge must be read as a whole. The directions to the jury must, of course, set out the position of the Crown and defence, the legal issues involved and the evidence that may be applied in resolving the legal issues and ultimately in determining the guilt or innocence of the accused. At the end of the day, the question must be whether an appellate court is satisfied that the jurors would adequately understand the issues involved, the law relating to the charge the accused is facing, and the evidence they should consider in resolving the issues. I am satisfied that in this case the charge meets all these basic requirements. Particularly, the law pertaining to the legal issues was correctly placed before the jury. Any errors were immediately and repeatedly corrected.

The respondent also contended that the trial judge did not adequately instruct the jury with regard to the consequences of the consumption of alcohol by Cooper. I agree with the Court of Appeal that the respondent has no grounds for complaint on this issue. The trial judge repeatedly instructed the jury that if they were not satisfied beyond reasonable doubt that the accused had the capacity to form the requisite intent as a result of consumption of alcohol that they were to acquit. He went on to advise the jury that even if the accused had the capability to form the intent, they had to be satisfied beyond a reasonable doubt that he did in fact have the requisite intent and that in determining that issue, they could take into account the alcohol that had been consumed. In light of those instructions, there is no basis for this complaint.

There is a difference of opinion among appellate courts as to the effect of evidence as to intoxication. In R. v. MacKinlay (1986), 28 C.C.C. (3d) 306 (Ont. C.A.), Martin J.A. held that evidence of intoxication which did not deprive the accused of the capacity to form the intent should still be taken into consideration in determining whether the accused did in fact form the requisite intent to commit the offence. In R. v. Korzepa (1991), 64 C.C.C. (3d) 489, the British Columbia Court of Appeal rejected the MacKinlay decision. It was suggested that the reasoning of Martin J.A. was contrary to decisions of this Court. This is an issue that has not as yet been addressed. It would be inappropriate to do so in this case, as its validity was not raised or addressed before us. For the purpose of this case it is enough to note that the respondent had the benefit of a charge that was the most favourable to his position. As a result, the respondent cannot complain of the directions of the trial judge on this issue.

Upon a careful reading and review of the charge as a whole, I am satisfied that there were no errors committed by the trial judge that would justify a new trial.

In the result, I would set aside the order of the Court of Appeal directing a new trial and restore the conviction.

Appeal allowed, Lamer C.J. dissenting.

Solicitor for the appellant: The Department of Justice, St. John's.

Solicitors for the respondent: Gittens, Casey, St. John's.