A Fish to Fry: Another Sharply Divided Court in R v Daley

The Supreme Court of Canada (“SCC”) recently released its decision in R v Daley, 2007 SCC 53 [Daley]. Though the majority and dissenting camps agreed upon the content of an appropriate jury instruction for the defence of intoxication, the two sides differed sharply when judging whether or not the trial judge delivered a fair and balanced assessment of the evidence in this case. Such diametrically opposed views towards the trial judge’s words indicate that jury instruction remains highly contentious and a viable ground for appeal.


Mr. Daley and his common law wife, Teanda Manchur, went out socializing and drinking with friends, and the group returned to the couple’s home early in the morning. After more drinking and socializing, Mr. Daley and a friend left the house on motorcycles in search of another party, leaving Ms. Manchur at home. Mr. Daley returned around five in the morning, but the house was locked and neighbours heard him cursing and trying to get into the house and his vehicles. Later in the morning, Ms. Manchur was found in the kitchen, dead from a stab wound. Mr. Daley was found drunk in a bedroom and was arrested for murder.

At trial, Mr. Daley testified that, due to his alcohol consumption on that night, he was unable to remember the events that took place after he arrived home. Many witnesses testified about Mr. Daley’s state of drunkenness before and after the killing, and an expert witness was called by the defence and testified about the effect of alcohol on judgment and brain function. The jury found Mr. Daley guilty of second degree murder, a verdict upheld by the majority of the Court of Appeal for Saskatchewan. At issue in the SCC appeal was the adequacy of the trial judge’s instruction on the defence of intoxication. In a 5-4 decision, the SCC held that the appeal should be dismissed.

The SCC Decision

The majority judgment was delivered by Bastarache J., who began by stating that an appellate tribunal should consider the trial judge’s charge to the jury as a whole, and that the trial judge’s instructions are not to be held to a standard of perfection. While the accused is entitled to a properly instructed jury, he or she is not entitled to a perfectly instructed jury. He referred to this as the functional assessment of a jury instruction.

Bastarache J. first reviewed the three legally relevant degrees of intoxication and applied them to Daley. Mild drunkenness, which induces relaxation of both inhibitions and socially acceptable behaviour, has never been accepted as a factor in determining whether the accused possessed the requisite mens rea. Advanced intoxication, the next degree, is that which renders the accused lacking in specific intent; the accused’s foresight of the consequences of his or her act is impaired enough to raise a reasonable doubt about the requisite mens rea. A defence based on this level of intoxication applies only to specific intent offences and the extent of intoxication required to advance it successfully may vary, depending on the type of offence involved. Finally, the (very rare) third degree is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility. What concerns the courts in Daley is the second degree, that of advanced intoxication.

These degrees of intoxication correlate to the elements of a jury charge. The threshold for instructing juries on advanced drunkenness was addressed in R v Robinson, [1996] 1 SCR 683 [Robinson]: “before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight of consequences sufficiently to raise a reasonable doubt.”

Robinson also held that once the threshold for instructing on the defence of intoxication was met, the trial judge “must then make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent.” In a murder case such as Daley, the issue was whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death.

Two Models

The SCC in Robinson endorsed the model charge set out by the BC Court of Appeal in R v Canute (1993), 80 CCC (3d) 403 [Canute], as that which should normally be given. The specific wording was set out at para 48 of the Daley judgment, but briefly, it amounts to the trial judge describing the intent offence charged, and then instructing the jury that this offence is not committed if the accused lacked the specific intent the offence requires. The jury is also told to take into account the accused’s consumption of alcohol or drugs, along with other facts that throw light on his/her intent. If this analysis leaves a reasonable doubt as to whether the accused had the required intent, then the jury must acquit the accused; if the jury is satisfied beyond a reasonable doubt that the accused had the intent, then they must find the accused guilty as charged.

Complicating this format is the opportunity for judges to instruct the jury along the lines laid out in the Ontario Court of Appeal’s decision in R v MacKinlay (1986), 28 CCC (3d) 306 [MacKinlay], which differ slightly from Canute in that MacKinlay distinguished between findings on capacity and findings of actual intent. The jury is told that even if they are satisfied beyond a reasonable doubt that the accused had the capacity to form the necessary intent, they must consider whether the Crown has satisfied them beyond a reasonable doubt that the accused in fact had this intent. The main difference is that the Canute model focuses only on the issue of whether the accused possessed actual intent, and omits any reference to capacity; otherwise, the charges are identical.

It is important to note that the majority and dissent were, at this point in the analysis, in general agreement. However, when it came to the application of these principles to the present case, the judicial divide widened quite notably. For the majority, Bastarache J. first considered whether the trial judge presented the issue properly to the jury; he did this by utilizing the functional assessment, endorsed above by the SCC, which measures the effect of the jury charge as a whole. Following the Canute model in Daley, the trial judge identified the main issue in the case for the jury, explained how it could be proven, and pointed out the evidence that would assist the jury in assessing whether Mr. Daley specifically had this intent.

Bastarache J. also cited the trial judge’s repeated reference to the state of mind to be proven by the Crown as “the intent to kill or the intent to cause bodily harm knowing it was likely to cause the death.” The trial judge emphasized that the jury could only come to this conclusion after considering Mr. Daley’s consumption of alcohol and the rest of the evidence that threw light on his state of mind at the time.

Though the dissenting judge at the Court of Appeal raised an issue with the trial judge’s instruction, the SCC majority found that, as a whole, the jury properly understood that one of the main questions before them was whether Mr. Daley was so intoxicated that he could not foresee that stabbing Ms. Manchur would result in her death. The SCC majority held that the trial judge’s repetition of the effect of drunkenness on foreseeability was satisfactory under a functional assessment.

Other issues raised by the dissenting judge at the Court of Appeal are similarly rebuffed by the majority here, and I will summarize a few of these issues briefly. On the question of whether the trial judge gave a one-sided summary of the evidence, the majority found that the evidence was summarized in a concise and fair manner, holding that the duty of a trial judge is not to undertake an exhaustive review of the evidence. In this case, the trial judge focused on the evidence central to deciding whether Mr. Daley was so intoxicated that he could not foresee the consequences of his actions, and the SCC deems this review to be appropriate.

With regard to the issue of whether the trial judge confused the jury about the degree of intoxication needed to make out the defence, Bastarache J. said that the impugned evidence of Mr. Daley’s activities did indeed serve a purpose and was meant to clarify Mr. Daley’s intention and awareness. The trial judge was correct to include it. Finally, the dissenter opined that the more appropriate jury charge would have been the two-step charge endorsed in MacKinlay, rather than the Canute model utilized by the trial judge; the majority also deflated this claim, arguing that such an instruction would only serve to confuse the jury into considering something other than the actual intent of the accused. Ultimately, in light of these findings, the majority would dismiss the appeal.

The Dissent

The four dissenters in Daley (Binnie, Lebel, Fish and Charron JJ.), however, provide a persuasive argument to the contrary. Fish J., in his oft-italicized and forceful reasons, heavily criticized the trial judge for not referring to any of the witness and expert evidence of Mr. Daley’s extremely intoxicated state, nor to the effect of his state on the requirement of foresight that was an essential element of the charge. The dissent agreed with the findings of the dissenter at the Court of Appeal, and would have allowed the appeal.

Fish J. set out by referring to several authorities that support the principle that the trial judge should put before the jury clearly and fairly the contentions on either side. The relevant cases (cited at paras 118-124 of the judgment), in sum, demonstrate that the trial judge must preserve the balance between the case for the prosecution and that of the defence that is essential to a fair trial.

Fish J. agreed with Bastarache J. in that the central issue in Daley was whether the appellant, by reason of his intoxication, lacked the culpable intent that is an essential element of murder. The decisive question was indeed whether the jury was satisfied beyond a reasonable doubt that the intoxicated appellant either meant to cause the victim’s death or meant to cause her bodily harm that he knew was likely to cause her death. Accordingly, much of the defence evidence related to the accused’s extreme intoxication and its likely effect on his capacity to form the requisite culpable intent. The defence also called an expert witness (interestingly referred to as an “alcohol expert” by the Court of Appeal) to testify to the effect of extreme intoxication on Mr. Daley’s mental state, including this very ability to foresee the consequences of his actions.

In light of this helpful evidence, the dissent therefore found it fatal to the judge’s charge that it included no mention at all of the appellant’s position that he lacked the requisite mens rea to commit murder due to his extreme intoxication and consequent inability to foresee the consequences of his actions. The trial judge’s only references to intoxication, according to the dissenters, were couched in general terms and absent any specifics that would support a defence in this case. Such generalities do not pass muster for the dissent under the authorities mentioned by Bastarache J. in his majority decision, and Fish J. clearly pointed out a disconnect between the rule and its application by the majority in this case.

Though the dissent did go into greater detail with regard to the defence evidence seemingly ignored by the trial judge, including specific references to witness testimony and expert evidence and the consequences of their exclusion from the jury charge, this post grows frighteningly long, so I will refrain from further discussion. Ultimately, this case demonstrates a common, and consistently compelling, theme in Supreme Court jurisprudence: while the justices can agree on a rule, they often deviate sharply in its application. This appears to be particularly true within the area of jury instruction, and if Daley is any indication of things to come, arguments over the adequacy of jury charges will persist into the future of appellate review.

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