The SCC in R v Walle – A Stark Contrast to the Recent Execution of Marvin Wilson

On August 7, 2012, Marvin Wilson, a mentally disabled man, was executed in the state of Texas. This execution took place despite a 2002 Supreme Court of the United States (“SCOTUS”) ruling that said otherwise. Wilson’s IQ was at 61, which is below the first percentile of functioning; he had the mental capacity of a six-year old essentially. Other tests and experts diagnosed Wilson with “mild mental retardation.” In Atkins v Virginia 536 US 304 (2002), SCOTUS banned the execution of mentally handicapped individuals. The Court instead gave states discretion in deciding who qualified for protection. Even before Wilson’s execution, many considered it an injustice to put such power in the hands of the states. Amnesty International called the state of Texas’ decision to execute Wilson “utterly shameful.”

In contrast, the Supreme Court of Canada (“SCC”) recently examined the standard of the common sense inference for homicide, whereby the individual is charged with murder and faces incarceration rather than execution. In a further distinction from the American judiciary, the SCC ruled unanimously in R v Walle, [2012] 2 SCR 438 [Walle]. The Court conferred the charge of second degree murder on the accused, a developmentally-disabled individual. This decision came down days before Texas executed Martin, further highlighting the distinction between the Canadian and American approaches to justice.

Facts

Walle shot and killed Mr. Shuckburgh with a sawed off .22 calibre rifle in January 2004 after being escorted from the bar. At trial, Justice Hart rejected Walle’s story. According to Walle, he involuntary pulled the trigger – the gun discharged unintentionally. The trial judge, on the other hand, concluded that Walle was fully aware of the consequences of his actions when he pulled the trigger on Shuckburgh; the judge was relying on the “common sense inference” of a sane and sober person. Thus, the trial judge found that Walle had the requisite intent for second degree murder. Section 229(a) of the Criminal Code, RSC 1985, c C-46 states that second degree murder is:

(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;

Walle appealed this decision on the basis of the trial judge failing to consider his mental state at the time of the shooting. Walle’s mental state would indicate whether or not he had the requisite intent for murder. The standard for a s. 229(a) offence is stated as comprising “an intent to kill or an intent to cause bodily harm that the offender knows is likely to cause death and is reckless as to whether or not death ensues” (para 3). According to Walle, the trial judge erred in applying the common sense inference – the common sense inference being the standard of a sane and sober person who intends the natural and probable consequences of his or her actions. Walle is developmentally delayed.  On top of that, he had consumed alcohol at the time of the murder. His lawyer submitted that these factors had a bearing on Walle’s mental state on the night of the shooting.

The Crown countered, stating that Walle was angry and resentful towards the bar staff, as they had removed him from the bar multiple times that night. Further, there was no medical evidence that suggested reduced brain functionality. Walle did not have enough to drink to affect his brain functionality (para 32).

At the Court

At the first trial, the court sided with the Crown, rejecting Walle’s theory of “accidental discharge” (para 35). The trial judge considered the functionality of the gun and Walle’s familiarity with the gun and circumstances of the shooting. Specifically, Walle knew the safety was off of his gun and knowingly pointed his loaded gun at the victim’s chest from only five feet away. And despite the fact that he was drinking, Walle was not impaired. These factors gave way for the trial judge to apply a common sense inference that the victim’s death, or grievous bodily harm which would likely cause his death, was done recklessly, whether or not death actually ensued. At the time of the shooting, the appellant possessed the requisite intent for second-degree murder (para 37). The Alberta Court of Appeal concluded that no evidence had been led at trial that could call into question Walle’s mental state. There were no questions raised as to whether he was able to or did foresee the consequences of his own actions. Therefore, his appeal and his motion to adduce fresh evidence, including testimony from a forensic psychiatrist, were dismissed by the Alberta Court of Appeal.

The SCC similarly dismissed both claims. On appeal, the SCC dealt with two issues. The first asked whether the trial judge correctly resorted to the “common sense inference.” Justice Moldaver, a newcomer on the bench, wrote for the unanimous Court. He found that “nowhere in his submissions to the trial judge, did defence counsel argue that the appellant was unaware of the consequences of his actions” (para. 44). Regardless, the SCC found that none of the evidence would have assisted the trial judge on the issue of Walle’s awareness of firing a gun into a person’s chest at close range. Though it may have been preferable for the trial judge to directly address these points, he was not required to do so; he considered the aspects of the available evidence, and was left with no doubt as to whether Walle was aware of the fatal consequences that would ensue if he fired the gun. The SCC subsequently turned to Palmer v The Queen, [1980] 1 SCR 759 to determine whether the fresh evidence should be adduced. That was the second issue in this appeal. The Court found that the proposed evidence, when taken in combination with the other evidence, could not have reasonably been expected to affect the result (para 84).

Wilson vs. Walle

SCOTUS simply rejected a last minute appeal by Wilson’s lawyers. They did not even provide comments as to why it was rejected. Canada eliminated the death penalty for murder on July 14, 1976. Canada’s sentencing provisions are designed such that the more severe the punishment, the harder it is to prosecute. More severe sentencing comes with a higher standard of proof. Perhaps if the death penalty were still around in Canada, the standard of proof would not have been met and the additional evidence would have been permitted by the Court in the case of Walle. But Walle never faced the prospect of dying for his crime. I’m glad that matter was resolved in 1976.