R. v. Lemky, [1996] 1 S.C.R. 757

Timothy Randall Lemky Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Lemky

File No.: 24454.

1995: December 8; 1996: March 21.

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

on appeal from the court of appeal for british columbia

Criminal law ‑‑ Mens rea ‑‑ Murder ‑‑ Drunkenness ‑‑ Evidence that accused drunk when victim shot ‑‑ Jury not instructed on separate defence of want of intent to kill because too intoxicated to appreciate probable consequences of act ‑‑ Threshold necessary to permit jury to consider reduction to lesser included offence ‑‑ Whether jury should have been instructed on drunkenness as separate defence ‑‑ Criminal Code, R.S.C., 1985, c. C‑46, s. 229.

The accused fatally shot his companion during a domestic argument and was convicted of second degree murder. He had maintained at trial that the gun had gone off by accident. Evidence was conflicting as to his state of inebriation at the time: the police noted several physical characteristics of drunkenness and a breathalyzer taken shortly after his arrest registered .130. An appeal to the Court of Appeal was dismissed. The issue on this appeal is whether the trial judge should have instructed the jury on the separate defence that the accused did not possess the necessary legal intention to kill his companion because he was too intoxicated to appreciate the probable consequences of his acts. If accepted, this defence would have resulted in a conviction for manslaughter instead of murder.

Held: The appeal should be dismissed.

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ: The trial judge must instruct the jury on any defence that on the evidence has an air of reality. The threshold test is met when there is an evidentiary basis for the defence which, if believed, would allow a reasonable jury properly instructed to acquit.

The Beard test (Director of Public Prosecutions v. Beard) no longer governs. Drunkenness may afford a defence where the evidence falls short of reasonably supporting the inference that the accused lacked the capacity to form the intent required by the relevant Criminal Code provision. The jury must be instructed that the ultimate issue is whether they are satisfied beyond a reasonable doubt that the accused actually intended the consequences of his or her act.

The threshold for putting the defence to the jury must be evidence sufficient to permit a reasonable inference that the accused did not in fact foresee the consequences of his or her act. While capacity and actual intent may be related, cases exist where evidence, which falls short of establishing that the accused lacked the capacity to form the intent, may still leave the jury with a reasonable doubt that the accused did in fact foresee the likelihood of death when the offence was committed.

The evidence was insufficient to raise a reasonable inference that the accused did not foresee the consequences of his act.

Per L'Heureux-Dubé J.: General agreement, subject to the reasons in R. v. Robinson, was expressed for the reasons of McLachlin J.

Cases Cited

By McLachlin J.

Applied: R. v. Robinson, 1996 SCC 233, [1996] 1 S.C.R. 683; referred to: R. v. Osolin, 1993 SCC 54, [1993] 4 S.C.R. 595; R. v. Bulmer, 1987 SCC 56, [1987] 1 S.C.R. 782; R. v. Park, 1995 SCC 104, [1995] 2 S.C.R. 836; Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Canute (1993), 1993 BC CA 403, 80 C.C.C. (3d) 403; R. v. Korzepa (1991), 1991 BC CA 1915, 64 C.C.C. (3d) 489.

By L'Heureux-Dubé J.

Applied: R. v. Robinson, 1996 SCC 233, [1996] 1 S.C.R. 683.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 7, 11(d).

Criminal Code, R.S.C., 1985, c. C‑46, ss. 229(a)(i), (ii).

APPEAL from a judgment of the British Columbia Court of Appeal (1992), 1992 BC CA 431, 17 B.C.A.C. 71, 29 W.A.C. 71, dismissing an appeal from conviction by Scarth J. sitting with jury. Appeal dismissed.

Adrian Brooks, for the appellant.

William F. Ehrcke, for the respondent.

McLachlin J.

The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. was delivered by

McLachlin J. --

Introduction

[1] The appellant, Timothy Randall Lemky, stands convicted of second degree murder of his live-in companion in Hazelton, British Columbia. Lemky shot her in the neck in the course of an argument. At the trial, he maintained that the gun had gone off by accident. The jury rejected that defence and found him guilty of murder. The issue on this appeal is whether the trial judge should have instructed the jury on the separate defence that Lemky did not possess the necessary legal intention to kill his companion because he was too intoxicated to appreciate the probable consequences of his acts. If accepted, this defence would have resulted in a conviction for manslaughter instead of murder.

The Facts

[2] On the evening of October 21, 1989, the appellant Timothy Lemky and his live-in companion, Michelle Cummins, were visited at their residence by three friends, Daniel Valachy, Mike Glover and Heidi Lemky. At about 7:45, after helping Timothy Lemky to install some wall panelling in the living room, the group began drinking from a 40 oz. bottle of Gibson’s whisky “with a drink or two" out of it which Daniel Valachy had brought along with him. Heidi Lemky and Mike Glover left at about 8:00 p.m. By 9:30, the entire bottle had been consumed, mainly by Timothy Lemky and Daniel Valachy. Shortly before ten, Timothy Lemky and Michelle Cummins left the house together and went to a local Oktoberfest dance. An hour or so later, the couple left the dance and returned home. Shortly before eleven o’clock, Lemky telephoned his mother, told her that Michelle Cummins was dead, and asked her to call the police. At 11:04, he himself called the police. He said, “My name is Randy Lemky and there has been a manslaughter here.” Asked whether he was involved, he said, “Yes, I am. I am the one to blame. Yes, I am.” He told the operator that he had used a 30.30 rifle and said, “It was an accident.” He went on to say, “I just meant to make a point.” As the call was taking place, the police arrived at the house. Lemky walked out the front door and said, “It’s all over. It’s all over. Nothing will bring her back.”

[3] Later, at the police station, Lemky volunteered this comment:

We were arguing, we had done this before, and I just went and got my rifle and there was a bullet in it, I didn’t think it was loaded, and it went off. I went and tried to help her. I couldn’t do anything for her.

After taking breathalyzer tests, the police took a further statement at 11:49, in which Lemky gave a complete account of the killing. After describing the argument, he said:

So, we argued and we .. I had done as much as I could do, physically trying to make the point. I reached up on the wall and I took the rifle down. The rifle was a game, the rifle was a toy, it meant nothing. All of a sudden, I was playing with the rifle. My girlfriend was there, and the gun went off. Next thing I knew, I was grasping her in my arms and the blood was, the blood was coming out .. and I was crying and I was screaming for help.

The next day at 1:07 p.m., the appellant gave a second exculpatory statement, this time explaining that the gun had been accidentally knocked to the floor and went off accidentally as he was trying to pick it up. There was evidence that the rifle was, as a matter of course, kept loaded in the bedroom.

[4] The evidence on the appellant’s state of inebriation before the shooting was conflicting. Some saw him as loud and obnoxious at the dance. The bartender at the dance served Lemky some beer and noticed that "he had had a few drinks before that". Another witness testified that the appellant showed no signs of intoxication, and seemed "very straight". At 11:03, immediately after the shooting, the police noted alcohol on his breath and that his eyes were watery and bloodshot. The breathalyzer test taken about three-quarters of an hour later showed a reading of 130 milligrams of alcohol per 100 millilitres of blood. When asked about his consumption of alcohol that evening in the course of his initial interview with the police following the shooting, Lemky responded that he had consumed about one-half of the bottle of whisky brought by Valachy, followed by about three more drinks at the dance, and said, "Oh, uh, I had quite a bit to drink."

The Courts Below

[5] The defence relied on accident in seeking the acquittal of the appellant. In defence counsel’s submission to the jury, intoxication was presented only as a factor relevant to the likelihood of an accident having occurred.

[6] The trial judge did not instruct the jury on the law relating to intoxication in crimes of specific intent, confining his remarks on intoxication to its bearing on the defence of accident: "the accused showed signs of being drunk. He was clumsy and distracted by the argument he was having with Miss Cummins."

[7] The trial judge’s only reference to intoxication in relation to intent was the following observation:

You are not exclusively restricted to the particular defence of accident in deciding whether or not the accused should be found guilty of murder or guilty of manslaughter. All of the evidence is available for you to consider.

[8] On intent, the trial judge advised the jury:

If you decide that Miss Cummins’ death would be a natural consequence of the accused’s actions, you are entitled to conclude that he intended to kill her by those actions. However, you are not required to make this conclusion. You may decide that the accused did not intend to kill Miss Cummins, even though her death was a natural consequence of his actions. In the end you will have to consider all of the surrounding circumstances, including what the accused said and did. In order to decide whether the Crown has proved that the accused did in fact mean to cause the death of Miss Cummins, and before you can find that the accused had the necessary criminal intent, you must be satisfied beyond a reasonable doubt that this intent is the only reasonable inference to be drawn from the proven facts. Remember that the question for you to decide is: What did the accused in fact intend? On the other hand, if you have a reasonable doubt about whether or not the accused actually intended or meant to cause the death of Miss Cummins, you must consider whether or not the Crown has proved this ingredient the second way.

[9] The appellant appealed to the Court of Appeal of British Columbia ((1992), 1992 BC CA 431, 17 B.C.A.C. 71). He argued that the trial judge erred in failing to charge the jury that the appellant’s state of intoxication at the material times could leave them with a reasonable doubt as to whether he possessed the necessary intent to commit murder. Such an instruction, he contended, might have led the jury to deliver a verdict of manslaughter rather than murder. The Court of Appeal agreed that it is the duty of a trial judge to instruct the jury on all available defences whether or not the defence raises them, but concluded that the evidence was insufficient to give an air of reality to the defence of drunkenness. It followed that the trial judge did not err in failing to charge the jury on the defence of drunkenness.

Legislation

[10] The relevant provision of the Criminal Code, R.S.C. 1985, c. C-46, reads as follows:

229. Culpable homicide is murder

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

(i) means to cause his death, or

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

The Issue

[11] The issue in this case is when a trial judge must leave the defence of drunkenness vitiating intent to the jury. To put it another way, what is the threshold for permitting the jury to consider whether to reduce murder to manslaughter on account of drunkenness?

Analysis

[12] It is common ground that the trial judge must instruct the jury on any defence that on the evidence has "an air of reality": R. v. Osolin, 1993 SCC 54, [1993] 4 S.C.R. 595. The threshold test is met when there is an evidentiary basis for the defence which, if believed, would allow a reasonable jury properly instructed to acquit. See R. v. Bulmer, 1987 SCC 56, [1987] 1 S.C.R. 782; R. v. Park, 1995 SCC 104, [1995] 2 S.C.R. 836.

[13] The Court of Appeal in this case applied the rule in Director of Public Prosecutions v. Beard, [1920] A.C. 479, at pp. 500-502, which it had recently followed in R. v. Korzepa (1991), 1991 BC CA 1915, 64 C.C.C. (3d) 489, holding that the defence of intoxication vitiating intent does not arise unless there is sufficient evidence to show that the accused’s capacity to form the intent to kill may have been impaired. On this view, intoxication that is not sufficient to affect the accused's capacity to form intent is immaterial and need not be put to the jury.

[14] The appellant submits that evidence of intoxication falling short of proving incapacity may still be relevant in determining whether he in fact possessed the necessary intent under s. 229(a)(ii) of the Code. He relies on the recent decision of the British Columbia Court of Appeal in R. v. Canute (1993), 1993 BC CA 403, 80 C.C.C. (3d) 403, released following the Court of Appeal's judgment in this case, which held that restricting consideration of evidence of intoxication to the accused's capacity to form the requisite intent infringed his right to the presumption of innocence as enshrined in s. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The appellant accepts that the evidence here may have been insufficient to cast doubt on his capacity to form the necessary intent, but he argues that it was sufficient to warrant an instruction on its continuing relevance to his actual intent.

[15] In order to resolve the issue, it is necessary to determine whether the Beard capacity test should determine the evidentiary threshold for instructing a jury on the defence of drunkenness as it relates to crimes of specific intent, or whether drunkenness may additionally afford a defence in circumstances where the evidence falls short of reasonably supporting the inference that the accused lacked the capacity to form the intent required by the relevant Code provision. This issue is resolved by the Chief Justice's reasons in R. v. Robinson, 1996 SCC 233, [1996] 1 S.C.R. 683, released concurrently, with which I agree. The Beard test no longer governs. As the Chief Justice observes, the jury must be instructed that the ultimate issue is whether they are satisfied beyond a reasonable doubt that the accused actually intended the consequence of his or her act. Beyond this, ritualistic formulae are misplaced. In many cases, the trial judge may find it useful to direct the jury to consider capacity as a preliminary step in the ultimate inquiry. In others, the trial judge may not. The nature of the case dictates what direction should be given. While the two-stage direction is sometimes helpful, a separate charge on capacity is not a legal requirement and its absence will not generally constitute reversible error. In the final analysis, the jury must (1) understand that the Crown must prove beyond a reasonable doubt that the accused, at the time of the offence, actually foresaw the natural consequences of his or her act, i.e., the death of the victim, and (2) understand how the evidence in the case relates to this legal requirement.

[16] Against this background, I come to the issue which is fundamental to the determination of this appeal -- the threshold for when a jury must be directed on drunkenness relating to intent. Under the Beard rules, capacity to form the necessary intent marked the threshold. Only if the evidence of drunkenness was reasonably capable of supporting an inference that the accused lacked the capacity to foresee the natural consequences of his or her act was it necessary to leave it to the jury with the appropriate instruction. The emphasis in modern jurisprudence on actual intent as the ultimate issue argues against perpetuating capacity as the appropriate signpost informing the trial judge when the jury must be instructed on the defence of drunkenness. If the real question is whether the accused was prevented by drunkenness from actually foreseeing the consequences of his or her act, it follows that the threshold for putting the defence to the jury must be evidence sufficient to permit a reasonable inference that the accused did not in fact foresee those consequences. While capacity and actual intent may be related, it is possible to envisage cases where evidence which falls short of establishing that the accused lacked the capacity to form the intent, may still leave the jury with a reasonable doubt that, when the offence was committed, the accused in fact foresaw the likelihood of death. In such a case, the defence must be put to the jury, notwithstanding that the Beard threshold is not met.

[17] This then is the legal standard by which the charge at issue on this appeal must be judged. The question is whether the evidence of drunkenness was sufficient to permit a reasonable inference that the accused may not in fact have foreseen that his act of firing the gun at the deceased would cause her death.

Application of the Law to this Appeal

[18] As discussed earlier, the trial judge did not instruct the jury on the defence of drunkenness reducing murder to manslaughter. Like counsel for the defence, he was content to put the case to the jury on the basis of accident. The Court of Appeal correctly observed that the trial judge has a duty to put to the jury defences which are raised on the evidence, even where counsel for the defence does not raise them. However, applying the Beard test, it ruled that the evidence was insufficient to raise the defence of drunkenness reducing murder to manslaughter, and hence that the trial judge was right not to put it to the jury.

[19] On the law discussed above, was there sufficient evidence to permit a reasonable inference that the accused might not have known that shooting Michelle Cummins was likely to result in her death? Was the evidence sufficient, to use the common legal phrase, to give this defence an "air of reality"? Neither party disputes the conclusion of the Court of Appeal that the evidence was insufficient to raise a reasonable inference that the accused lacked the capacity to foresee the consequences of his act. The only question is whether, accepting the law as stated above, there was nevertheless sufficient evidence to permit a reasonable inference that, notwithstanding his capacity to foresee the consequences of his acts, the accused in fact did not foresee them. If there was, then the jury should have been instructed that if they entertained a reasonable doubt about this element of the offence they must acquit the accused of second degree murder and return a verdict of guilty of the included offence of manslaughter.

[20] In my view, the evidence, considered most favourably for the accused, falls short of supporting such an inference. His blood alcohol level shortly after the shooting was only slightly over the legal limit for driving an automobile. He carried out purposeful actions both before and after the shooting, actions which ranged from ordering drinks at the dance beforehand to calling his mother and the police immediately afterward. His conduct before and after the shooting demonstrated an awareness of the consequences of what he was doing. This demonstrates that he in fact foresaw the consequences of what he was doing immediately before and after the shooting.

[21] The next question is whether there is anything on the evidence to support the conclusion that, contrary to his state of mind before and after the shooting, the appellant at the moment of the shooting did not foresee the consequences of that particular act. In considering this question, it is important to analyze the evidence in relation to the theory of the defence on the particular facts of the case. The appellant’s explanation for the shooting and his defence at trial was accident. That defence was properly put to the jury and the jury rejected it. Now, on appeal, the appellant asserts the quite different defence that he was too drunk to realize that shooting Michelle Cummins would cause her death. The actus reus of non-accidental, i.e., intentional, shooting is conceded for the purposes of this defence. The defence goes rather to mens rea. It asserts that, notwithstanding that the act of shooting was willed and deliberate, the fatal consequences of the act were by reason of drunkenness unforeseen by the appellant, and hence he lacked the subjective foresight of death required by s. 229(a)(ii) of the Code.

[22] Was there, assuming the appellant to have deliberately shot Michelle Cummins, any evidence to support the inference that he was too drunk to know that this might cause her death? In my view, there was none. Viewed in the context of the appellant’s intentional and purposive conduct before and after the act of pulling the trigger, the notion that he might not have known what the consequences of pulling the trigger were by reason of drunkenness has about it an air of unreality. There is nothing in the evidence of what happened at the moment of shooting to detract from this conclusion. The appellant never asserted that he shot Michelle Cummins without realizing or foreseeing that he would kill her; his defence was rather that he never shot her at all, but that the gun went off by accident. Moreover, the gun was of a type that required two separate muscular forces to be exerted in order to discharge a round; simply pulling the trigger was not enough. It had to be removed from the rack where it was stored, and, assuming a deliberate shooting, generally levelled or aimed at the deceased. These facts tend to belie the notion that, at that very moment of shooting Ms. Cummins, the appellant did not know that the shot would be likely to kill her. One searches in vain for any evidence which would indicate that despite his purposive actions proximal to the shooting, he failed to foresee the consequences of the shot itself. In short, there is nothing on the facts of this case which lends an air of reality to the defence that the appellant lacked the necessary mens rea for the offence of murder because intoxication prevented him from foreseeing that the act of shooting was likely to cause Ms. Cummins' death.

[23] Although not established here, it remains that, in the proper case, evidence of intoxication which fails to demonstrate incapacity may still have an air of reality about it capable of leaving the jury with a reasonable doubt that the accused knew that death was likely to ensue from his or her actions. The defence commonly arises, for example, in the “barroom brawl” situation. A fight breaks out. One inebriated person strikes another. The actus reus and the intent to commit the act are established by the deliberate blow. But the knowledge component of the mens rea required by s. 229(a)(ii) may be put in doubt by evidence suggesting that the accused did not realize, by reason of his or her drunkenness, that the blow was likely to cause the death of the victim. In such a case, murder might well be reduced to manslaughter because the trier remained doubtful that the accused knew the probable consequences of his or her actions. The same cannot be said in the instant case, where there is nothing in the circumstances or the evidence to support the inference that the accused might have pulled the trigger without realizing, by reason of his drunkenness, that it might cause her death.

[24] I conclude that the Court of Appeal did not err in holding that the trial judge did not err in failing to leave the defence of drunkenness vitiating the specific intent for murder to the jury.

Disposition

[25] Accordingly, I would dismiss the appeal and affirm the conviction.

L'Heureux-Dubé J.

The following are the reasons delivered by

[26] L'Heureux-Dubé J. -- I have had the opportunity to read the reasons of my colleague Justice McLachlin and, subject to my reasons in R. v. Robinson, 1996 SCC 233, [1996] 1 S.C.R. 683, released concurrently, I generally agree with them. Therefore, I would dispose of this appeal in the manner proposed by McLachlin J.

Appeal dismissed.

Solicitors for the appellant: Brooks, Purves, McKimm & Marshall, Victoria.

Solicitor for the respondent: The Attorney General of British Columbia, Vancouver.