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Supreme Court of Canada

Criminal law—Non-capital murder—Defences—Provocation—Drunkenness—Finding that legal tests of defences not met—Finding that there was a loss of self-control—Conviction of manslaughter not justified—Criminal Code, 1953-54 (Can.), c. 51, ss. 201, 203, 417.

The appellant was charged with the non-capital murder of his common law wife, by strangulation. Provocation and drunkenness were the basic defences raised. The trial judge, who dealt with the charge without a jury, rejected the defence of provocation, as he found that the words attributed to the victim and relied on by the accused were not of such a nature as to be sufficient to deprive an ordinary

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person of the power of self-control. He also rejected the defence of drunkenness, as he found that it did not render the appellant incapable of forming the specific intent to kill. However, he convicted him of the lesser offence of manslaughter because he found that the combination of the two factors was sufficient to make the appellant lose his self-control. On an appeal by the Crown, the Court of Appeal substituted a verdict of non-capital murder. The accused appealed to this Court.

Held (Hall, Spence and Laskin JJ. dissenting): The appeal should be dismissed.

Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie and Pigeon JJ.: The Court of Appeal has rightly held that the trial judge made an error in law in holding that the combination of the defence of provocation and the defence of drunkenness, neither of which he found to be a defence in itself on the facts of the case, constituted a defence to the charge of non-capital murder. When the trial judge found that the words attributed to the victim and relied on by the appellant were not of such a nature as to deprive an ordinary person of the power of self-control, that was the end of the matter so far as the defence of provocation was concerned. Any further inquiry with respect to provocation became of no moment. When the trial judge also found that the appellant was not incapacitated by drunkenness to form the intent to kill, the fact that the mind of the appellant was found to be affected by drink so that he lost control and more readily gave way to some violent passion, did not rebut the presumption that, by applying pressure on the throat of the victim to the point of leaving marks on her neck, he had intended to kill her. The error of the trial judge, as was pointed out in the Court of Appeal, permeated and governed what he said as to intent. In this error of law lies the ratio decidendi of his verdict. In the circumstances of this case, there is no justification to disturb the verdict entered by the Court of Appeal pursuant to s. 592(4) of the Code.

Per Hall, Spence and Laskin JJ., dissenting: The trial judge clearly rejected provocation and drunkenness as defences. But he came to the conclusion that the appellant was not guilty of non-capital murder because of his finding of lack of intent. Having said that there was a loss of self-control, he went on to consider whether there was the requisite intent to underpin a conviction of non-capital murder. How-

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ever, he misdirected himself on the law on this issue, when he ignored the prescription of intent, sufficient to support a charge of murder, as including an intent to cause bodily harm that the accused knows is likely to cause death and he is reckless whether death ensues or not. There should be a new trial for non-capital murder.

APPEAL from a judgment of the Supreme Court of Alberta, Appellate Division, setting aside a conviction of manslaughter and substituting thereto a verdict of non-capital murder. Appeal dismissed, Hall, Spence and Laskin JJ. dissenting.

Oskar H. Kruger, for the appellant.

B.A. Crane, for the respondent.

The judgment of Fauteux C.J. and of Abbott, Martland, Judson, Ritchie and Pigeon JJ. was delivered by

THE CHIEF JUSTICE—The appellant was charged with having, on or about the 30th day of July 1968, at the City of Edmonton, in the province of Alberta, unlawfully killed and slain Eileen Perrault, his common-law wife, thereby committing the offence of non-capital murder. On the 9th of March 1969, he was convicted of the lesser offence of manslaughter by Déchêne J., sitting without a jury as permitted by s. 417 of the Criminal Code.

On the appeal of the Attorney-General of the province, the Appellate Division of the Supreme Court of Alberta, by a unanimous judgment, set aside this conviction and substituted thereto a verdict of non-capital murder.

Perrault now appeals from this decision, pursuant to s. 597(2)(a) Cr. Code. Under this section, the appeal, from the judgment a quo, is strictly limited to pure questions of law.

The issue is a simple one. The facts relevant thereto may be briefly stated.

The appellant and Eileen Perrault lived together, as man and wife, at the apartment of the latter, for nearly two years. The appellant wanted to marry her and build a home. Some few weeks

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prior to Tuesday the 30th of July 1968, the day of the fatal occurrence, they separated but, nonetheless, continued to consort with one another. On Monday, the 29th, after having visited the mother of the victim from 11 a.m. to 6 p.m., they went to the Dover Hotel until 8 p.m. and then to the Bonaventure Hotel, until closing time. At both places, they played a few games of shuffleboard and each one consumed several glasses of beer. At midnight, they arrived at the apartment. They then had a conversation during which slightly less than two bottles of beer were consumed. The relevant parts of this conversation which was brought to an end by the death of the woman, appear in the following quotations from two statements made the same day by Perrault to the police and from the evidence he gave at the trial.

In the first statement:

I recall Eileen asking me to go and get some cigarettes and I said ‘what am I some kind of slave or something’ and then she was on the floor and my hands were around her neck. After that I used the belt.

In the second statement:

We had a couple of bottles of beer at home… I am not too sure how many… but I recall sitting on the foot-stool arguing with Eileen and the next thing I remember I had the belt around her neck. In the three weeks that we’ve been separated I have felt that if I can’t have her nobody else will.

In his evidence at trial:

A. Well at one point during our conversation I recall telling Eileen that the previous weekend I had taken the car and said I was going to kill myself and use the car to do it. I said if I couldn’t live with her I didn’t want to live.

Q. Yes, any further conversation that you recall?

A. She said something about if you want to kill somebody why don’t you go to Vietnam where they have got a war on, she said you haven’t got the guts to kill anybody.

Q. What happened then Mr. Perrault?

A. I don’t remember.

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Q. What is your next recollection of the events of that evening.

A. I remember taking a belt from around Eileen’s neck.

He testified that he then endeavoured to resuscitate the woman by mouth-to-mouth respiration, that he awoke Délia Cousineau, a room-mate of the deceased, telephoned the police, told them what he had done and asked them for an ambulance.

The learned trial judge found that appellant killed Eileen Perrault by strangulation. It is not disputed that appellant first applied his hands to the throat of his victim, then took off the belt he was wearing, wound it around her neck and applied a pressure which left marks of ligature and resulted in death.

Provocation and drunkenness were the basic defences raised by the accused.

With respect to provocation, the trial judge held:

The test is not whether this (the words attributed to the victim and relied on by the accused, at trial) deprived this accused of his self-control, but whether it is sufficient to deprive an ordinary person of the power of self-control. We must go further and must show that the accused acted upon it on the sudden and before there was time for his passion to cool. That by itself, in my view, does not in this case constitute a defence because I don’t think the provocation was of that type.

With respect to drunkenness, the trial judge found that:

…his state of intoxication, which, while not slight, was far from an extreme case…

As to both defences, he concluded:

In the view that I take, it is my opinion that neither of these defences by itself is available to the accused on the facts of this case.

Thus, on the facts of the case, the trial judge found that the legal test of validity of a defence of provocation, stated in s. 203 Cr. C., had not been met, in that, particularly, the words attributed to the victim and relied on by the accused were not of such a nature as to be sufficient to deprive an ordinary person of the power of self-control. Thus, also, on the facts of the case, the

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trial judge found that the legal test of a valid defence of drunkenness had not been met. The test is embodied in the two well-known propositions of Lord Birkenhead, in Director of Public Prosecutions v. Beard[1]:

That evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whether or not he had this intent.

That evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime, and merely establishing that his mind was affected by drink so that he more readily gave way to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.

However, having so found on the facts, the learned trial judge went on to say:

In my view, the combination of that provocation however slight, and his consumption of alcohol, his state of intoxication, while not slight, was far from an extreme case, those two factors were sufficient that he lost his self-control. That he did not intend to cause the death I think is shown by his actions immediately after. He woke Delia and said: ‘Come and see what I have done to Eileen’. He phoned the police and told them that there was a strangled woman there and that he had done it, he wanted an ambulance and the police. His statement to Constable Hollinshead when that constable arrived and he says: ‘I am the bastard that did it’. His action in endeavouring to resuscitate her with mouth-to-mouth respiration, in my view all indicate that he suddenly realized the enormity of his act and lead me to believe that he did not intend the result which ensued.

* * *

and the trial judge concluded his reasons by saying:

Looking at the case therefor in its entirety I have come to the conclusion that the Crown have failed

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to satisfy me beyond a reasonable doubt that the accused intended the death of the deceased and I therefore do not find him guilty of non-capital murder as charged. However, it appears clear that the culpable homicide which he has committed is within the definition of manslaughter and I find him guilty of that offence.

(The italics are mine.)

In the view of the Court of Appeal, the trial judge made an error in law in thus holding that the combination of the defence of provocation and the defence of drunkenness, neither of which he found to be a defence in itself on the facts of the case, constituted a defence to the charge of non-capital murder. With this view of the Court of Appeal, I am in respectful agreement.

The trial judge having found, particularly, that the words attributed to the victim and relied on by the accused were not of such a nature as to deprive an ordinary person of the power of self-control, that was the end of the matter so far as the defence of provocation was concerned; for, under s. 203 Cr. C., the words of provocation are to be assessed according to the effect they would have on a reasonable man and when this objective test is found not to have been met on the facts of the case, any further enquiry with respect to provocation becomes of no moment.

The trial judge having also found that the accused was not incapacitated by drunkenness to form the intent to kill the woman, the fact that the mind of the accused was found to be affected by drink so that he lost control and more readily gave way to some violent passion, did not rebut the presumption that, by applying pressure, first with his hands and then with his belt, on the throat of the victim, to the point of leaving on her neck marks of ligature, he intended to kill her or, to say the least,—a point which the trial judge failed to consider though, had he done so, the result must be expected to have been the same,—he intended to cause her bodily harm known to him to be likely to cause death and being reckless whether death ensued or not.

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In Attorney General for Northern Ireland v. Gallagher[2], the law on drunkenness as a defence to a crime is restated in these terms by Lord Denning, at pp. 380 and 381:

(a) It may impair a man’s powers of perception so that he may not be able to foresee or measure the consequences of his actions as he would if he were sober. Nevertheless he is not allowed to set up his self-induced want of perception as a defence. Even if he did not himself appreciate that what he was doing was dangerous, nevertheless if a reasonable man in his place, who was not befuddled with drink, would have appreciated it, he is guilty: see Rex v. Meade (1909) 1 K.B. 895, as explained in Director of Public Prosecutions v. Beard (supra).

(b) It may impair a man’s power to judge between right or wrong, so that he may do a thing when drunk which he would not dream of doing while sober. He does not realize he is doing wrong. Nevertheless he is not allowed to set up his self-induced want of moral sense as a defence. In Beard’s case (supra) Lord Birkenhead L.C. distinctly ruled that it was not a defence for a drunken man to say he did not know he was doing wrong.

(c) It may impair a man’s power of self-control so that he may more readily give way to provocation than if he were sober. Nevertheless he is not allowed to set up his self‑induced want of control as a defence. The acts of provocation are to be assessed, not according to their effect on him personally, but according to the effect they would have on a reasonable man in his place. The law on this point was previously in doubt (see the cases considered in Beard’s case), but it has since been resolved by Reg. v. McCarthy (1954) 38 C.A.R. 74, Bedder v. Director of Public Prosecutions (1954) 38 C.A.R. 133, and section 3 of the Homicide Act, 1957.

Lord Denning then indicated that the general principle of English law as to drunkenners, illustrated as above in (a), (b) and (c), is subject to two exceptions which, in my opinion, in view of the finding of facts in this case, have no application in this instance.

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I cannot convince myself that the error of the trial judge, which was pointed out in the Court of Appeal, does not permeate and govern what, as above indicated, he said, as to intent, either in the reasons he gave to render a verdict of manslaughter or in what he said thereafter in proceeding to sentence the accused. In this error of law lies the ratio decidendi of the verdict of the trial judge.

Section 592(4) of the Criminal Code provides that

(4) Where an appeal is from an acquittal the court of appeal may

(a) dismiss the appeal; or

(b) allow the appeal, set aside the verdict and

(i) enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or

(ii) order a new trial.

Pursuant to that section, the Court of Appeal allowed the appeal, set aside the verdict and entered a verdict of guilty with respect to the offence of non-capital murder of which, in its opinion, the accused should have been found guilty but for the above error in law.

Under all the circumstances of this case, I am unable to find any justification to disturb the unanimous conclusion arrived at in the Court of Appeal. I would dismiss the appeal.

The judgment of Hall, Spence and Laskin JJ. was delivered by

LASKIN J. (dissenting)—In allowing the Crown’s appeal against the acquittal of the accused of non-capital murder, and in itself entering a conviction on that charge (in place of the conviction at trial of manslaughter), the Alberta Appellate Division founded itself on an alleged error of law by the trial judge which, even if it occurred, was not, in my view, at the heart of his ruling of acquittal. There was a proper ground upon which the acquittal should have been set aside, but it was a ground not taken by the

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Appellate Division and, moreover, it was one which called for a new trial and not for a conviction on the original charge.

I am confirmed in this appraisal by the Crown’s notice of appeal to the Alberta Appellate Division as well as by the reasons of the trial judge. Only two grounds of appeal were taken by the Crown in challenging the acquittal of non-capital murder, and they were as follows:

The learned trial Judge erred in law in misdirecting himself, to the effect that the Respondent’s loss of self control was a factor, when it did not amount to provocation.

The learned trial Judge erred in law in failing to direct himself to consider the question whether the Respondent meant to cause bodily harm to the deceased that he knew was likely to cause her death, and was reckless whether death ensued or not.

The reasons of the Appellate Division were, I am bound to say, unusually brief. They consisted of six sentences of which three were what might properly be called formal. The substance of the reasons was in the remaining three sentences which were these:

The learned trial judge found that neither the defence of provocation nor of drunkenness taken by itself was available to the accused on the facts of the case.

Notwithstanding these findings, he held there was a combination of provocation and drunkenness and accordingly found the accused not guilty of murder but guilty of manslaughter.

In our view, he made an error in law in holding that a combination of these two defences, neither of which was a defence in itself, constituted a defence to the charge of non-capital murder.

The trial judge who dealt with the charge of non-capital murder without a jury (pursuant to the election or consent of the accused as permitted in Alberta under s. 417 of the Criminal Code) did clearly reject provocation and drunkenness as defences. To this extent, the Appellate

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Division was correct. But just as clearly the trial judge came to the conclusion that he did because of his finding of lack of intent. I think the Appellate Division took too great a liberty of construction of the single sentence in the trial judge’s reasons where he said that the facts upon which the defences of provocation and drunkenness were posited were sufficient to show a loss of self-control. Earlier in his reasons he had adverted to the question of intent as the distinguishing element between murder and manslaughter. Having said that there was a loss of self-control, he went on to consider whether there was the requisite intent to underpin a conviction of non-capital murder.

I think that he misdirected himself on the law on this issue, as the Crown in its notice of appeal to the Appellate Division pointed out. But on his assessment of the facts he concluded that there was no intent to cause death. He summed up his review of the evidence in these words:

Looking at the case therefore in its entirety I have come to the conclusion that the Crown have failed to satisfy me beyond a reasonable doubt that the accused intended the death of the deceased… (The underlining is mine.)

In the result, he acquitted of non-capital murder and convicted of manslaughter.

Were it not for the error of law on the question of intent, the finding of the trial judge on this issue would not alone have given the Crown a right of appeal: see Criminal Code, s. 584 (1) (a). The reasons at the trial also disclose a serious error against the accused in the statement that “in law everyone is presumed to intend the natural and reasonable consequences of his act”, but in view of the trial judge’s verdict, this misdirection had no adverse effect.

Nothing said by the trial judge appears to me to justify the Appellate Division’s assertion that “notwithstanding these findings [against the defences of provocation or drunkenness], he held there was a combination of provocation and

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drunkenness and accordingly found the accused not guilty of murder but guilty of manslaughter”. (The underlining is mine.) This is a far too selective piece of interpretation which ignores the considerable portion of the reasons that concentrated on the issue of intent. The evidence may very well have supported a finding of the requisite intent, but I do not think that it was open to the Appellate Division on the record in this case to make that finding on the appeal that was before it. Indeed, I am of the opinion that the Appellate Division ought to have treated the verdict rendered by the trial judge alone with at least as much respect as it would accord to the verdict of a jury in a like case. Had it done so, it could not have substituted another verdict of its own for that of the trial judge on what is essentially a matter of fact.

It is necessary, of course, in cases where drunkenness is raised as a defence, or where on the evidence it may be a defence, to a charge of murder, to avoid confusing the effect of drunkenness on the capacity to form the requisite intent with the question whether there was such intent in fact. The rejection of the one (that is, as a defence) does not automatically result in the establishment of the other. The distinction is evident in the opposing views taken in the judgments of this Court in The Queen v. Lupien[3], where the issue revolved around the admissibility of certain psychiatric evidence, and turned on whether, on one view of the evidence, it went to show that the accused was mentally incapable of forming the intent to commit a homosexual offence or whether, on another view, it was offered to show that he did form the intent in that case.

In the present case, the trial judge left drunkenness (as referable to capacity to form the requisite intent) behind when he rejected it as a defence; and, in going on to deal with intent in fact, he was concerned with a different issue. It may be that his literary expression was deficient, but there can be no mistaking the burden of his remarks. Crown counsel certainly did not mistake

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them if regard is had to the formulation of his notice of appeal to the Appellate Division. He was, I may note, counsel for the Crown at the trial.

I referred earlier to the trial judge’s error of law on the question of intent, an error which removed a possible prop of the Crown’s case. What he said on the matter was this (and I may say here that the same appreciation of intent was repeated in other portions of the reasons):

If the acts of the accused which caused the death were done with the intention of causing that death or were done recklessly without any regard as to whether death followed or not, then it is murder.

It is evident from this that the trial judge ignored the prescription of intent, sufficient to support a charge of murder, as including an intent to cause bodily harm that the accused knows is likely to cause death and he is reckless whether death ensues or not: see s. 201(a)(ii) of the Criminal Code. If it be said that despite the inapt formulation he must undoubtedly have had the correct principles in mind, we are left with a finding of fact which, on the view of the matter I have taken, would deprive the Appellate Division of the power to interfere. I think I should in this case take the trial judge at his word.

For the foregoing reasons, I would allow the appeal and direct a new trial for non-capital murder.

Appeal dismissed, HALL, SPENCE and LASKIN JJ. dissenting.

Solicitors for the appellant: Bassie, Shewchuk, Kruger & Kilt, Edmonton.

Solicitor for the respondent: The Attorney General of Alberta, Edmonton.

 



[1] [1920 A.C. 479 at 501-502.

[2] [1963] A.C. 349.

[3] [1970] S.C.R. 263, 9 D.L.R. (3d) 1, [1970] 2 C.C.C. 193, 9 C.R.N.S. 165.

 

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