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Mens Rea- Inference - Person usually knows what the predictable consequences of his or her actions are, and means to bring them about.

R. v. Walle, 2012 SCC 41 (CanLII)


W shot S in the chest at close range with a .22-calibre rifle and killed him.  He was charged with and convicted of second degree murder.  The outcome of the trial turned on W’s intent at the time of the shooting.  

The trial judge, sitting alone, rejected as not credible W’s theory that his act of pulling the trigger was involuntary and that the discharge of the gun had therefore been unintentional.  He considered the salient features of the evidence that could have impacted W’s awareness of the consequences of his actions, but was left in no doubt that W was fully aware of the fatal consequences that were likely to follow when he pulled the trigger.  He then reverted to the “common sense inference” that a sane and sober person intends the reasonable and probable consequences of his acts, and found that W had the requisite intent for second degree murder.

                   On appeal, W claimed that in assessing whether he was aware of the consequences of shooting S — and thus possessed one or the other of the specific intents for murder —, the trial judge failed to consider evidence bearing on W’s mental state on the night of the shooting, such as his developmental delays and alcohol consumption.  The Court of Appeal dismissed the appeal.  It found that no evidence had been led at trial as to W’s mental state that could call into question whether he was able to or did in fact foresee the consequences of his actions when he pulled the trigger.

                   Held:  The appeal and the motion to adduce fresh evidence should be dismissed.

                   A failure of a judge to consider all the evidence relating to an ultimate issue of guilt or innocence constitutes an error of law.  However, there is no obligation in law on a trial judge to record all or any specific part of the process of deliberation on the facts.  Unless the reasons demonstrate that a consideration of all the evidence in relation to the ultimate issue was not done, the failure to record the fact of it having been done is not a proper basis for concluding that there was an error of law in this respect.

                   Here, the trial judge did not fail to consider all the relevant evidence.  To determine whether the Crown had met its onus of proving that W possessed one or the other requisite intents for murder, the trial judge considered that the rifle was working normally; it had a safety mechanism; it required over six pounds of pressure to fire; W was familiar with the rifle and had previously used it; he knew the gun would fire when he pulled the trigger; he knew the safety was off; he was pointing the gun at S’s chest; he fired from a distance of only five feet; he knew the gun was loaded; he had been drinking but it was clear from the evidence as a whole that he was not impaired.  

The judge then applied the “common sense inference” and was satisfied beyond a reasonable doubt that when W deliberately pulled the trigger, in the circumstances, he knew that the reasonable and probable consequence was that he would kill S or would cause him grievous bodily harm which he knew would likely cause his death, and was reckless as to whether or not death ensued.  

At trial, there was no evidence, forensic or otherwise, that could realistically have impacted on the issue of W’s mental state at the time of the shooting.  In particular, no evidence was directed at whether in shooting the deceased in the chest at close range, W was aware of — and thus can be said to have intended — the consequences that were likely to follow from his action.  

Furthermore, W did not suggest that his mental state prevented him from knowing the likely consequences of his acts — nor could he, realistically.  The evidence pointed overwhelmingly in the opposite direction.  Moments before the shooting, W made it clear to his pursuers that he was aware that the weapon he was holding was lethal.  Shortly after, he talked about killing himself with that very weapon.  None of the evidence W points to on appeal — his developmental delays, his hospitalization under a mental health warrant, his “blank” affect prior to the shooting, his hand gestures and demeanour while testifying, and the fact that he was waving the rifle around before it was discharged — could have assisted him at trial.  While it might have been preferable had the trial judge referred specifically to those items of evidence, he was not obliged to do so.  He made no error.

                   The fresh evidence consisting of a report prepared by a forensic psychiatrist for the sentencing hearing and subsequent testimony, which states that W suffers from Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult antisocial disorder and alcohol abuse disorder, does not meet the test for admission set out in Palmer v. The Queen, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759.  Apart from the diagnosis of Asperger’s disorder, there is little evidence in the report that could not have been adduced at the trial.  W had long been suspected of suffering from Asperger’s disorder, and medical professionals had noted his social difficulties, aggressiveness, fascination with guns and problems with alcohol for a very long time.  A comprehensive report that mirrors the evidence W now seeks to tender had been prepared for sentencing purposes on W’s first trial, yet W made no effort to introduce it at the trial proper.  In any event, the evidence, taken together with the other evidence adduced at trial, could not reasonably be expected to have affected the result.  It does not suggest that W, by virtue of his diagnosed disorders, may not have been aware of the consequences that were likely to follow upon shooting someone in the chest at close range.  Nor does it provide additional information that may have shed light on the unintentional discharge theory advanced at trial.

                    In jury trials where impairment by intoxication or otherwise might have contributed to the accused’s actions, the common sense inference instruction need not be tied to a rigid formula.  While trial judges may choose to refer to the “sane and sober” person, a simple instruction along the lines that a person usually knows what the predictable consequences of his or her actions are, and means to bring them about, would suffice.  What is critical is that the jury be made to understand, in clear terms, that in assessing the specific intent required for murder, it should consider the whole of the evidence that could realistically bear on the accused’s mental state at the time of the alleged offence.

Jim O'Neil, LL.B.

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