SUPREME COURT OF CANADA

[2008] 1 S.C.R. 454, 2008 SCC 17

Date : 20080417

Docket : 32202

Between:

Roseanne Andrea Turningrobe

Appellant

and

Her Majesty The Queen

Respondent

Coram : McLachlin C.J. and LeBel, Deschamps, Fish and Abella JJ.

Reasons for Judgment: (para. 1)

McLachlin C.J. (LeBel, Deschamps, Fish and Abella JJ. concurring)

R. v. Turningrobe, [2008] 1 S.C.R. 454, 2008 SCC 17

Roseanne Andrea Turningrobe Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Turningrobe

Neutral citation: 2008 SCC 17.

File No.: 32202.

2008: April 17.

Present: McLachlin C.J. and LeBel, Deschamps, Fish and Abella JJ.

on appeal from the court of appeal for alberta

Criminal law — Charge to jury — First degree murder — Intoxication — Planning and deliberation — Trial judge’s instructions may have confused jury about role of accused’s intoxication in assessing intent, planning and deliberation — Curative proviso not applicable — New trial ordered.

APPEAL from a judgment of the Alberta Court of Appeal (Fraser C.J.A. and Hunt and O’Brien JJ.A.), [2007] 12 W.W.R. 64, 78 Alta. L.R. (4th) 220, 409 A.R. 334, 402 W.A.C. 334, 222 C.C.C. (3d) 417, [2007] A.J. No. 771 (QL), 2007 CarswellAlta 931, 2007 ABCA 236, upholding the accused’s conviction for first degree murder. Appeal allowed.

Jennifer Ruttan and Michael Bates, for the appellant.

Goran Tomljanovic, Q.C., for the respondent.

The judgment of the Court was delivered orally by

[1] The Chief Justice — We are all of the view that the appeal should be allowed. Substantially for the reasons given by Fraser C.J.A., we conclude that the trial judge’s instructions on planning and deliberation, including repeated references to capacity, may have confused the jury about the role of the accused’s intoxication in assessing the intent, planning and deliberation required for first degree murder. We are unable to conclude that the result would necessarily be the same but for these errors, and therefore would decline to apply the curative proviso. We would therefore allow the appeal and order a new trial.

Judgment accordingly.

Solicitors for the appellant: Ruttan Bates, Calgary.

Solicitor for the respondent: Attorney General of Alberta, Calgary.