CASE: R. v. Lemky [1996] 1 S.C.R. 757

LOCATION:

R v Lemky

See text page 257

CASE RELATES TO:

Common Law Intoxication – Being too drunk to form mens rea

FACTS OF THE CASE:

The accused fatally shot his companion during a domestic argument and was convicted of second degree murder. He had maintained at trial that the gun had gone off by accident. Evidence was conflicting as to his state of inebriation at the time: the police noted several physical characteristics of drunkenness and a breathalyzer taken shortly after his arrest registered .130. An appeal to the Court of Appeal was dismissed. The issue on this appeal to the Supreme Court is whether the trial judge should have instructed the jury that the accused did not possess the necessary legal intention to kill his companion because he was too intoxicated to appreciate the probable consequences of his acts. If accepted, this defence would have resulted in a conviction for manslaughter instead of murder.

HELD:

The appeal was dismissed and the conviction upheld.

REASONING AND LEGAL SIGNIFICANCE:

The court ruled that,

“The trial judge must instruct the jury on any defence that on the evidence has an air of reality. The threshold test is met when there is an evidentiary basis for the defence which, if believed, would allow a reasonable jury properly instructed to acquit…

The threshold for putting the defence to the jury must be evidence sufficient to permit a reasonable inference that the accused did not… foresee the consequences of his or her act… Cases exist where evidence, which falls short of establishing that the accused lacked the capacity to form the intent, may still leave the jury with a reasonable doubt that the accused did in fact foresee the likelihood of death when the offence was committed.”

But in this case the court ruled that there wasn’t enough evidence to suggest that the accused couldn’t foresee the consequences. The main reason was because he carried on actions before and after he pulled the trigger in a sensible fashion, which would suggest that the notion that he was too drunk when he pulled the trigger was untrue.