R. v. Edgar

R. v. Edgar Collection Decisions of the Court of Appeal Date 2000-01-24 Docket numbers C26551 Judges Carthy, James Joseph; Charron, Louise Vivianne; Sharpe, Robert J. Subject Criminal Decision Content DATE: 20000124 DOCKET: C26551 COURT OF APPEAL FOR ONTARIO CARTHY, CHARRON and SHARPE JJ.A. BETWEEN: ) ) Marie Henein and HER MAJESTY THE QUEEN ) John McInnes, ) for the appellant Respondent ) ) - and - ) Gary T. Trotter, ) for the respondent DENNIS JAMES EDGAR ) ) Appellant ) ) Heard: December 13 and 14, 1999 On appeal from his conviction by Mr. Justice Anthony E. Cusinato, sitting with a jury, on February 21, 1996 and from the sentence imposed on March 1, 1996 CHARRON J.A.: [1] The appellant was tried before Cusinato J. and a jury on a charge of second degree murder in relation to the death of Tracey Kelsh. The jury found him guilty as charged and recommended that the period of parole ineligibility be increased from ten to twenty-five years. The trial judge agreed with the jury‘s recommendation and sentenced the appellant to life imprisonment with no eligibility for parole for twenty-five years. The appellant appeals his conviction and seeks leave to appeal his sentence. [2] The appeal against conviction raises two issues about the admissibility of prior statements made by the appellant that the defence sought to introduce at trial and several further issues about the sufficiency and correctness of the trial judge’s instructions to the jury on the various defences advanced at trial. [3] The appellant submits that the trial judge erred in excluding evidence of statements made by him to the police both shortly after his arrest and a few hours later. He argues that the utterances made shortly after his arrest were relevant to, and admissible in support of, the psychiatric evidence called by the defence at trial. He argues further that evidence of the prior consistent statement made to the police a few hours later was admissible to rebut Crown counsel’s allegation of recent fabrication both during the course of counsel’s cross-examination of the appellant and in his jury address. [4] The appellant further submits that the trial judge’s instructions to the jury were both incomplete and incorrect. He argues that the trial judge erred in failing to charge the jury on the defence of provocation and on the absence of motive and that he misdirected the jury on self-defence and intoxication. [5] In my view, the appeal against conviction must succeed on two grounds. First, the trial judge erred in excluding the evidence of the utterances made by the appellant shortly after his arrest. I agree with the appellant’s position that this evidence was relevant to and admissible in support of the psychiatric expert opinion proffered at trial. Second, the trial judge erred in refusing to charge the jury on the defence of provocation. Contrary to his ruling, the record demonstrates that there was evidence in support of the defence of provocation and that it formed an important part of the defence theory at trial. [6] I will deal with these two grounds in more detail and will also comment briefly on the other grounds of appeal against conviction. In view of this result, however, it will not be necessary to deal with the sentence appeal and I do not propose to give any opinion on the issue of parole eligibility. 1. Overview of the Evidence at Trial [7] The appellant and the deceased, Tracey Kelsh, had recently begun a relationship and were planning to move in together. There was no evidence of acrimony between them. On October 8, 1994, they spent the evening at the deceased’s apartment in the company of some friends, drinking alcohol and taking cocaine. One of the guests testified that the appellant and Ms. Kelsh were affectionate with each other during the course of the evening and that they were “very quiet, very mellow”. The party broke up sometime after 3:00 a.m. and the appellant was left alone with Ms. Kelsh in the apartment. [8] The appellant testified that, after the departure of the guests, he and Ms. Kelsh continued to be physically intimate for a long period of time. Periodically, they snorted more cocaine. At one point, immediately after Ms. Kelsh snorted a line of cocaine, she got up and went to the kitchen. When she failed to return, the appellant called out to her and, when she failed to respond, he went to the kitchen to find her. As he approached the kitchen door, Ms. Kelsh suddenly ran out of the kitchen toward him, holding a knife in each hand, yelling that it was all his fault, swinging the knives at him and threatening to kill him. Ms. Kelsh also said something about bikers and words to the effect that “I can get paid for this.” The appellant testified that he had no idea what Ms. Kelsh was talking about. He instinctively backed up and then tried to get the knives away from Ms. Kelsh. They both ended up in the unlit bathroom with the door closed. [9] The appellant further testified about a lengthy and very violent struggle in the bathroom. Ms. Kelsh continued to say things that made no sense and to fight with him. The appellant repeatedly told her to “shut up” and continued in his attempts to disarm her. At one point, he bit her right arm in an attempt to get her to release the knife. At another point, he grabbed the knife’s blade and cut his hand. He was finally successful in getting one of the knives. The struggle continued for some time. During the course of the struggle Ms. Kelsh was further bitten and stabbed a number of times. [10] The fight was overheard by neighbours who called the police. Two police officers arrived at about 7:40 a.m. and entered the apartment. The appellant and Ms. Kelsh were still in the bathroom with the door closed. The police stood outside the bathroom door and heard scuffling sounds and grunts from inside. The door to the bathroom did not open when they turned the handle. They called for assistance. The police officers testified that they heard the appellant say “I’m going to stab you. I’m going to kill you” and the word “don’t” twice repeated. They repeatedly kicked the door in an attempt to open it and yelled “open the door, police”. The door was opened a few inches and the police sprayed pepper spray into the bathroom. The door was slammed shut again and the police heard the appellant say “I’m going to kill her. I’m going to cut her throat.” Two other police officers arrived and they too kicked the door. A scream was heard from the bathroom. Finally the door was forced open, the police entered and turned on the bathroom light. [11] The appellant was lying on his back. Ms. Kelsh was lying on top of him with her back on top of his stomach. The police delivered several blows to the appellant, handcuffed him with his arms behind his back and took him out of the bathroom. One of the police officers recognized the appellant and called him by name. At that point, the appellant became enraged and began screaming inaudible things and moving on the floor. The police administered numerous “hammer” blows to the appellant and he was again subdued. [12] The police officers determined that Ms. Kelsh was dead. It was apparent that she had been stabbed, beaten and bitten. Her throat had been slashed, severing her jugular vein. A triangular shard of glass was imbedded in her right eye. The police therefore arrested the appellant for murder. At that point, the appellant resumed his struggle. He was further struck by the police several times in order to subdue him, his feet were eventually cuffed and he was finally carried out of the apartment by four police officers. [13] The police found nothing unusual about the apartment except for the state of the bathroom. The mirror from the medicine cabinet was broken and pieces of glass were scattered about the floor. The vanity counter-top was demolished. The sink had been ripped off the wall and the pipes were bent. The doors of the medicine cabinet were off. Water was streaming out of the pipes and the bathtub taps were turned on full. A steak knife blade without a handle and another knife with a portion of the handle were located in the bathroom. Both blades had bent tips, and one had a broken tip. [14] The appellant arrived at the police station at approximately 8:00 a.m., some six minutes after leaving the apartment. At that time, he made certain statements to the police. These statements were not introduced in evidence by the Crown. Counsel for the appellant at trial, conceding that some of these statements were self-serving and inadmissible as part of the defence, sought to introduce in evidence only those statements that appeared irrational or delusional to establish the foundation of the expert opinion evidence of one of its witnesses. I have underlined the statements sought to be introduced and reproduced them in their context as follows. [15] Upon arriving at the station, the appellant said “she had the knife. The bikers are going to kill me. I’m telling you.” Shortly after, the appellant started yelling “the bikers are going to kill me. She had the knife. She was trying to kill me.” He also yelled “she kissed me and tried to kill me. I took the knife out of her hands. I got one of the knives out of her hands. She was trying to kill me. Why would she try to kill me? She had two knives.” At 8:17 a.m. the appellant further stated: “I will testify they are going to kill me. She tried to kill me. I’m done. I’m done. The police are going to cut my dick off. They’re the ones who are going to kill me. The bikers want to kill me. You get the knife. You will have her prints all over it. I’m telling you right now I could tell you guys so fucking much. I’ll tell you everything. They are killing me. They are stabbing me. The police will tell you everything. Why would they do this to me? Because they are bikers. They are trying to kill me I’ll tell you something, I could tell you everything. Why would they want to kill me because they’re bikers. The police are killing me. They’re stabbing me. They are killing me. They are –they were the bikers. I’ll tell you everything. The police are stabbing me. They’re killing me. [16] Later that morning, while at the hospital, the appellant made a further statement to the two investigating officers, briefly stating his version of the events of the night. The defence also sought to introduce this statement in evidence. It is not necessary for our purposes to reproduce the whole statement. It is sufficient to note that, in contrast to the earlier utterances, the statement appeared to be coherent and was generally consistent with the appellant’s testimony at trial, except that at trial the appellant testified that he stabbed the deceased just once. The description of the main events contained in the statement reads as follows: Before you know she pulled out two knives and got me in the hand. Somehow we ended up in the bathroom. I smashed the mirror. She dropped the knife. I grabbed it. I started sticking her with the knife everywhere. The lights were out. Why are you doing it? I got paid to do it. It doesn’t make sense to me. Someone was outside the door. They said “who is it?” I thought they were out to fuck her. She had one knife. I had the other. She wouldn’t stop. She kept up picking up pieces of glass. She wouldn’t stop. I can’t believe it. [17] A post-mortem examination of the deceased revealed the following injuries: multiple cuts to the face consistent with cuts caused by broken glass; glass imbedded in the eye; split lip; small cuts to the side of the neck and back of the head; scratches to the neck that appeared to be caused by a necklace deeply embedding the skin; a very deep cut to the left side of the neck cutting through the jugular vein, nicking the carotid artery and causing her death; several stab wounds in her mid- section that did not cause her death; defensive wounds on the hands and forearm; two bite marks on her arm; and, several bruises over various parts of her body. [18] The appellant also suffered several injuries. Most notably, there were deep cuts to his hands that required re-constructive surgery. The evidence supported two different explanations for these wounds. They could have been caused by the appellant acting offensively, by stabbing with a knife with a broken handle or while holding the blade of a knife. Alternatively, they could have been caused by the appellant acting defensively, by warding off a knife attack with his hands and arms or trying to grab a knife from someone. 2. Admissibility of the Appellant’s Prior Statements a) Statements made shortly after the arrest [19] Counsel for the appellant at trial argued that the utterances made by the appellant shortly after his arrest about bikers and the police trying to kill him were relevant to his state of mind and were properly admissible to establish the foundation of the expert opinion evidence he intended to elicit from Dr. Ronald Kolito. Counsel did not seek to introduce the other statements made at the time, conceding that they were self- serving and inadmissible. Dr. Kolito is a psychologist with particular expertise on how substance abuse, in particular cocaine intoxication, can affect a person’s capacity to form a criminal intent. [20] Counsel for the appellant at trial also argued that the utterances in question were relevant with respect to the expert opinion evidence of Dr. Colin Buckman. Dr. Buckman is a psychiatrist with particular expertise on the psychiatric effects of cocaine ingestion. He had testified earlier in the trial for the defence and had described a condition known as cocaine psychosis that occurs in some individuals following the ingestion of cocaine. He testified that cocaine psychosis produces a behavioural state known as agitated delirium that involves hallucinations, intense paranoia, “word salad” –meaning that the words used by the subject do not seem to make sense, an inclination toward violence, and periods of extreme strength. A hypothetical case based on the actions and circumstances of the deceased was put to Dr. Buckman. In response, he gave the opinion that it would be “probable” that a person like the deceased was experiencing a cocaine psychosis. Although Dr. Buckman was not questioned on the condition of the appellant, counsel argued before the trial judge that, because the above-noted statements of the appellant appeared to make no sense, the evidence was also relevant as a foundation to this expert opinion as it may apply to the appellant. [21] Crown counsel at trial objected to the introduction of these utterances on the ground that they were not relevant to the appellant’s state of mind. It was argued that the statements were simply a self-serving explanation for what happened, given some six to ten minutes after the appellant was removed from the scene. [22] The trial judge ruled that the statements were inadmissible because they were not made at a sufficiently proximate time to be relevant to the appellant’s state of mind at the time of the offence. He was also concerned that, in excising certain parts of the statements, the jury could misconstrue the statements. [23] With respect, it is my view that the trial judge failed to appreciate the relevance of the proposed evidence. In the circumstances of this case, where intent was in issue and intoxication was raised as a defence, utterances made by the appellant that could support an inference that he was irrational or delusional shortly after the commission of the offence were highly relevant. [24] The trial judge placed too much emphasis on the fact that some time had passed between the time of the arrest and the making of the utterances. The defence was not seeking to admit the utterances as spontaneous declarations. The probative value of the utterances did not lie in the fact that they were made contemporaneously with the event in circumstances where the appellant would have had no opportunity to reflect upon what was best for him to say. Clearly they were not. The probative value lay in the fact that the utterances appeared to be irrational or delusional, and hence potentially supportive of the defence being advanced. The passage of time, or, for that matter, the fact that there may have been a rational explanation for the statements, were simply matters going to the weight of the evidence, not its admissibility. [25] It is also my view that the further concern expressed by the trial judge that the jury could misconstrue the statements if they were excised from other statements made at the same time did not justify their exclusion. It would have been open to the Crown in cross-examination of the witnesses called to give this evidence to elicit such part of the context as deemed necessary for the jury to properly interpret the evidence. [26] The significance of this evidence in the context of this trial can further be assessed by considering the evidence of Dr. Kolito. Following the trial judge’s ruling, Dr. Kolito testified and gave extensive evidence on cocaine psychosis and cocaine intoxication. In his opinion, a person in a state of cocaine psychosis would not be able to form the required intent for murder and a person in a state of cocaine intoxication might or might not have this capacity depending on the level of intoxication. He described some objective criteria that can assist in making the determination whether or not an intoxicated person would have the required capacity. These included hallucinations, delusions, agitation, paranoia, disorganized or irrational behaviour, and confusion. [27] A lengthy hypothetical situation was put to Dr. Kolito with respect to the appellant’s condition and behaviour at the time of the offence, excluding any reference to the utterances made following his arrest. Dr. Kolito expressed the opinion that the appellant’s behaviour, as described by counsel, was consistent with both cocaine intoxication and cocaine psychosis. [28] At a further point in the examination-in-chief, defence counsel asked Dr. Kolito a series of questions on whether it would assist, in giving his opinion, to know if this hypothetical person made irrational statements at the time about unrelated persons or organizations trying to kill him. Dr. Kolito testified that evidence of such statements would make it more likely that the person was in a cocaine psychotic state. It is noteworthy that counsel prefaced this series of questions by the remark “obviously, other things that we haven’t been able to present to you…” In cross-examination, Dr. Kolito, in answer to Crown counsel’s questions, confirmed that the absence of any evidence of hallucinations, delusions or paranoid beliefs in this case was a significant point that detracted from the opinion of lack of capacity or cocaine psychosis. Further reference was made to the absence of such evidence by Crown counsel in his closing address. [29] Counsel for the appellant, who was not counsel at trial, placed much reliance on Crown counsel’s cross-examination and closing address on this latter point to demonstrate the prejudice occasioned by the exclusion of this evidence. In my view, Crown counsel’s approach to this issue must be considered in context. The further series of hypothetical questions put to Dr. Kolito by defence counsel, prefaced as they were with the remark that there were “other things” that were not before the jury, would inevitably lead the jury to infer that the appellant had made the irrational statements referred to in counsel’s questions. Whether intended or not, this course of questioning had the effect of circumventing the trial judge’s ruling and was highly improper. Faced with this situation, it would perhaps have been preferable for Crown counsel to have simply objected to the course taken by defence counsel in his examination and for the trial judge to instruct the jury to disregard counsel’s remark and to remind them that counsel’s questions did not constitute evidence. However, in all the circumstances, it is my view that it is not open now to the appellant to rely on the outcome of defence counsel’s ill-advised tactic in support of this ground of appeal. [30] However, regardless of the impact of the evidence elicited by the further series of questions, it cannot be said that the exclusion of the appellant’s prior statements would not have affected the verdict. I would therefore give effect to this ground of appeal. b) Statements made at the hospital [31] At the close of the defence case, counsel for the appellant sought to introduce evidence of the statement made by the appellant to the police on the morning of his arrest while he was in the hospital, on the basis that the prosecution was implicitly alleging recent fabrication by the appellant. The application was dismissed by the trial judge. In his reasons, he succinctly set out the question for determination in the following words: If a story is given by an accused immediately after an event or upon his arrest, and the story later given at trial is one and the same but challenged by the crown in cross-examination, does that in itself indicate or permit the earlier statement to be admitted on the basis of consistency, even if the statement is self-serving? In my view, it does not. [32] On appeal, the appellant submits that the Crown was clearly implying that he was fabricating his version of events to conform to his acquired understanding of the case against him. Counsel for the appellant relies more particularly on the following excerpt from the appellant’s cross-examination by Crown counsel in support of this position. Q. I asked you about that morning. You were aware of everything that went on that morning. A. No, I’m not, not the whole morning, I’m not. Q. You have a good memory of what happened. A. Of some of it, yes, I do. Q. What do you have, just sort of convenient memory loss, maybe. A. I don’t find any of this convenient. [33] Previous consistent statements of a witness, including an accused person, are generally inadmissible because they are considered to be superfluous and of no probative value. The rule is based on the rationale that the credibility of the witness is not enhanced simply because the same statement was made before. In some instances, the rule does not apply. One such instance occurs when a witness’s testimony is challenged in cross- examination as being a recent fabrication. In such a case, it is not superfluous to lead evidence that the witness, on an earlier occasion, made a statement consistent with the challenged testimony because it serves to rebut the allegation of recent fabrication. [34] In my view, the trial judge was correct in refusing to admit the statement in this case. Throughout the cross-examination of the appellant, Crown counsel generally challenged the credibility of his testimony but there was no allegation, either express or implied, that the appellant had recently made up the story. [35] The defence renewed its application to introduce the appellant’s statement after Crown counsel delivered his closing address. In his application to reopen the case, counsel argued that Crown counsel had clearly alleged that the appellant’s testimony was recently fabricated when he referred to it at one point as having “a sense of tailoring” and later as being “too tailored”. In the alternative, counsel moved for a mistrial. [36] The trial judge refused the application. In his view, the comments of Crown counsel in the context of the case did not create a suggestion of recent fabrication but, rather, raised the question “whether or not the events occurred as described by the accused on the date in question”. He held that it was not appropriate to reopen the case or to declare a mistrial. [37] I see no reason to interfere with the trial judge’s exercise of discretion. While the suggestion that certain testimony is “tailored” can mean, depending on the context, that the witness is adapting his story to suit the other evidence in the case, it can also mean that the witness is simply adapting his story to suit his purpose in explaining the events in question. In the context of the evidence adduced at trial and Crown counsel’s address as a whole, it is my view that the trial judge’s interpretation was reasonable. [38] Furthermore, I note that defence counsel’s main argument at trial in support of the contention that the statement would serve to rebut any allegation of recent fabrication was the fact that his client could not have known at the time that he made his statement in the hospital all the details of the evidence including the fact that the neighbours had overheard him repeatedly yelling “shut up”. In fact, the statement in question is not very detailed. It simply referred to matters that the appellant would obviously have known at the time because he was there. And the statement certainly does not make any reference to the fact that the appellant yelled “shut up” as contended. [39] I therefore see no merit to this ground of appeal. 3. Trial Judge’s Instructions to the Jury a) Provocation [40] The trial judge did not instruct the jury on the defence of provocation. Defence counsel objected and submitted that it was mandatory that such an instruction be given in the circumstances of this case. The trial judge indicated that he had not instructed the jury on provocation because he was of the view that there was no air of reality to the defence and because defence counsel had not made submissions concerning provocation at the end of the trial. [41] Section 232 of the Criminal Code, R.S.C. 1985, c.C-46, provides that murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. The language of s. 232 was considered in R. v. Hill, [1986] 1 S.C.R. 313 where the Supreme Court set out three questions that must be answered in determining whether the defence of provocation is available: 1. Would an ordinary person be deprived of self control by the act or insult? 2. Did the accused in fact act in response to those “provocative” acts; in short, was he or she provoked by them whether or not an ordinary person would have been? 3. Was the accused’s response sudden and before there was time for his or her passion to cool? These questions are questions of fact for the jury to determine. However, before the defence is put to the jury, the trial judge must determine whether there is any evidence to support it. Cory J. in R. v. Thibert (1996), 104 C.C.C. (3d) 1 at 6 (S.C.C.) set out the trial judge’s function as follows: None the less, the trial judge must still determine if there is any evidence upon which a reasonable jury properly instructed and acting judicially could find that there had been provocation. If the trial judge is satisfied that there is such evidence, then the defence must be put to the jury to determine what weight, if any, will be attached to the evidence. Obviously, the trial judge should not weigh the sufficiency of the evidence. This is the function reserved for the jury. A trial judge considering whether the evidence has met the threshold test must also take into account the nature of the wrongful act or insult and how that act or insult should be viewed in the context of the case. [42] In my view, the trial judge effectively usurped the function of the jury when he determined that the defence of provocation had no “air of reality”. The defence may well have no air of reality if the appellant’s testimony is disbelieved. However, that is a matter for the jury to determine. [43] In this case, there was some evidence in support of the partial defence of provocation. Counsel for the appellant noted the following in her submissions: the appellant’s evidence that he was attacked by the deceased with two knives; his evidence that he became enraged; the absence of other evidence of motive for the killing; evidence that this was one continuous transaction with no opportunity for his passion to cool; the appellant’s own injuries, some of which were consistent with being defensive wounds; and the evidence of cocaine and alcohol intoxication that may be relevant to the subjective elements of the defence. [44] I agree with counsel for the appellant when she states that the appellant’s evidence, depending on the view taken of it by the jury, could support either self-defence or provocation. It would have been open to the jury to accept the appellant’s evidence as to how the struggle began but still conclude that the appellant acted outside the scope of self-defence under s. 34(2). [45] The trial judge was also incorrect in stating that the defence had not relied on provocation. At the end of the case, in the absence of the jury, the trial judge asked both counsel to set out their respective positions so as to assist him in the preparation of his charge. In response, defence counsel set out his position and expressly included provocation as part of the theory of the defence. The Crown took the position that provocation did not apply to the facts of the case. Defence counsel also expressly referred to provocation in his address to the jury and advised the jury that the trial judge would instruct them on that issue. [46] For these reasons, I would give effect to this ground of appeal. b) Self-defence [47] Both parties agreed at trial s. 34(2) of the Criminal Code was the only applicable provision to the facts of this case. The trial judge instructed the jury accordingly. The appellant, however, notes two difficulties with the charge. [48] First, the appellant submits that the trial judge erred in making any reference to the use of excessive force in his instructions because, so long as the appellant meets the requirements set out in s. 34(2), it does not matter if the force used is excessive. The appellant notes more particularly the following instruction given to the jury: To fall within this subsection, the force used cannot be excessive in self-defence unless the accused acted under reasonable apprehension of death or grievous bodily harm to his person. To consider this question you will have regard to the nature of the assault, if you accept the accused’s evidence and whether the force used by him to resist the assault was no more than reasonable to protect himself, or if, in the alternative, upon the facts accepted the accused had a reasonable apprehension of grievous bodily harm. [49] The appellant relies on R. v. Hebert (1996), 107 C.C.C. (3d) 42 at 50 (S.C.C.) where the Court states: Under s. 34(2), the use of excessive force by the accused will not take away self-defence. In R. v. Ward (1978), 4 C.R. (3d) 190 (Ont. C.A.), it was properly found that it is not a requirement of s. 34(2) that the force used must be proportionate to the assault against which the accused is defending him or herself. As well in R. v. Mulder (1978), 40 C.C.C. (2d) 1 (Ont. C.A.), it was correctly held that there is no requirement that the force be no more than is necessary to prevent death or grievous bodily harm. [50] It is clear from Hebert that the appellant is correct in stating that whether an accused, from an objective standpoint, actually uses excessive force, or more force than necessary, is not the issue under s. 34(2). The question is, rather, whether the accused, in causing the death, acted under reasonable apprehension of death or grievous bodily harm and in the belief, on reasonable grounds, that he could not otherwise preserve himself from death or grievous bodily harm. [51] I agree that the above-noted excerpt from the trial judge’s instructions was not very clear on this issue. Even though the words “the force used cannot be excessive in self-defence” were qualified, it would have been preferable to avoid this phraseology and to instruct the jury more in accordance with the language used in s. 34(2). [52] The second difficulty noted by the appellant with respect to the instructions on self-defence is the failure to relate the facts to the requirements under s. 34(2). Again, I do agree that it would have been preferable to do so. [53] However, while I agree that the appellant’s submissions have merit, in view of the conclusion I have reached that the conviction must be set aside on other grounds, it is not necessary for me to decide whether to give effect to the submission that the instructions on self-defence amounted to reversible error. c) Intoxication [54] The appellant submits that the trial judge committed a reversible error by failing to link his instruction on intoxication to his instruction on the common sense inference that a sane and sober person intends the natural consequences of his acts. The appellant relies on R. v. Robinson (1996), 105 C.C.C. (3d) 97 at 122-23 (S.C.C.) where Lamer C. J. states as follows: The respondent correctly argues, in my view, that where there is some evidence of intoxication, a trial judge must link his or her instructions on intoxication with the instruction on the common sense inference so that the jury is specifically instructed that evidence of intoxication can rebut the inference. In both the model charges set out in MacKinlay and Canute, this approach is taken. This instruction is critical since in most cases jurors are likely to rely on the inference to find intent. Moreover, if no instruction is given, then a confused jury may see a conflict between the inference and the defence and resolve that conflict in favour of their own evaluation of common sense: see Korzepa, at p.505. Therefore, an instruction which does not link the common sense inference with the evidence of intoxication constitutes reversible error. [55] The charge in this case was given before the decision in Robinson. While the trial judge did not specifically relate the evidence of intoxication to the common sense inference, he made it clear to the jury that all the evidence should be considered on the question of intent and specifically told them that the inference should not be made if, on all the facts of this case, it was their opinion that it was not a correct inference or if they had any reasonable doubt on this issue. When viewed in context, it is my view that there was no reversible error in this case. [56] This charge was also given before this court’s decision in R. v. Rathwell (1998), 130 C.C.C. (3d) 302 (Ont. C.A.). It may be worth noting the court’s remarks in Rathwell at pp. 314-15 where it is indicated that “[c]harges would generally improve if the sane sober person boilerplate were eliminated, or at least adjusted to the particular circumstances.” d) Motive [57] The appellant submits that it was incumbent upon the trial judge to instruct the jury that the absence of evidence of motive in this case tended to support the appellant’s evidence. Reference is made to R. v. Lewis (1979), 47 C.C.C. (2d) 24 at 34- 8 (S.C.C.) where the Supreme Court gives guidance with respect to jury instructions on motive. [58] In my view, the trial judge was under no duty to instruct the jury on the absence of motive on the facts of this case nor was he asked to do so by defence counsel at trial. I see no reason to interfere with the exercise of his discretion on this issue. 4. Disposition [59] For these reasons, I would allow the appeal against conviction, quash the conviction and order a new trial. In view of this result, it is not necessary to deal with the leave application to appeal the sentence. (signed) "Louise Charron J.A." (signed) "I agree J. J. Carthy J.A." (signed) "I agree Robert J. Sharpe J.A." RELEASED: January 24, 2000