



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Kahnapace,









2013 BCCA 45




Date: 20130122

Docket:
CA039658

Between:

Regina

Respondent

And

Martha May
Kahnapace

Appellant




Before:



The Honourable Mr. Justice Tysoe





The Honourable Madam Justice Neilson





The Honourable Madam Justice Bennett




On appeal from: 
Supreme Court of British Columbia, June 17, 2011
(
R. v. Kahnapace
, Vancouver Registry 23674)

Oral Reasons for Judgment




Counsel for the Appellant:



S.J. Rauch





Counsel for the Respondent:



M.T. Ainslie





Place and Date of Hearing:



Vancouver, British
  Columbia

January 22, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 22, 2013








[1]

NEILSON J.A.:

On
June 17, 2011, following a trial before a judge and jury,
Ms. Kahnapace was convicted of the second degree murder of Donald Wall,
her former common law husband. She appeals that conviction arguing, among other
things, that the trial judge erred in his instructions to the jury on the
mental element of the crime and on the impact of intoxication on her mental
state.

[2]

The Crown agrees the trial judge erred in charging the jury in these
areas, and that these errors are cumulatively of such significance that they
cannot be remedied by the curative proviso in s. 686(1)(b)(iii) of the
Criminal
Code
. It therefore concedes the appeal must be allowed and a new trial
ordered.

[3]

For the following reasons, I am satisfied the Crowns concession is
appropriate.

Background

[4]

As there is to be a new trial I will not deal with the facts in detail.
Briefly, on November 29, 2005, following a day of drinking alcohol, taking
cocaine, and arguing in the apartment they had shared, Ms. Kahnapace
stabbed Mr. Wall in the chest with a knife. The knife punctured his heart.
Assistance was summoned promptly, but he died of his wound several days later.

[5]

Ms. Kahnapace was initially tried before a judge and jury in June
2007. The sole issue was whether the Crown had established she had the
requisite intent for second degree murder, or whether she was guilty of the
lesser offence of manslaughter. The jury convicted her of second degree murder.
Ms. Kahnapace successfully appealed that conviction to this Court, and a
new trial was ordered: 2010 BCCA 227, 255 C.C.C. (3d) 342 [
Kahnapace #1
].

[6]

At that trial, which is the basis for this appeal, Ms. Kahnapace
admitted stabbing Mr. Wall and conceded she was guilty of manslaughter.
She again maintained, however, that the Crown had not established the requisite
intent for second degree murder, either because of her alcohol and drug consumption,
or because Mr. Wall had provoked her within the meaning of s. 232 of
the
Criminal Code
and she was acting in the heat of the moment. She was
again convicted of second degree murder.

Discussion

[7]

In conducting review of a trial judges charge an appellate court must
not examine whether the judge recited a particular formula, but instead should
consider the general sense that the judges words conveyed to the jury. It must
look to the charge as a whole in the context of the entire trial and consider
its overall effect:
R. v. Daley
, 2007 SCC 53 at paras. 30-31,
58, [2007] 3 S.C.R. 523.

[8]

The Crowns case against Ms. Kahnapace focussed on the secondary
definition of murder in s. 229(a)(ii) of the
Criminal Code
:

229. Culpable homicide is murder

(a)
where the person who causes the death of a human being

...

(ii)
means to cause him bodily harm that he knows is likely to cause his death, and
is reckless whether death ensues or not ...

[9]

Thus, the Crown had to prove not only that Ms. Kahnapace intended
to cause Mr. Wall bodily harm, but also that she knew that stabbing him
was likely to cause his death, and she was reckless as to whether death would
result from her actions. This is a subjective intent, and the Crown was obliged
to prove that Ms. Kahnapace actually intended to cause bodily harm that
she knew or actually foresaw was likely to cause death:
Kahnapace #1
at paras. 25-26.

[10]

As well, it was undisputed that there was evidence of intoxication
which, if accepted, could have impaired Ms. Kahnapaces ability to foresee
the consequences of her actions, and thus preclude a conviction for second
degree murder.

[11]

The Crown concedes that, in instructing the jury, the trial judge erred
in three respects. Ironically, these errors mirror some of those that led to an
order for a new trial in
Kahnapace #1
.

[12]

First, the Crown concedes the trial judge, in his charge and in his
other communications to the jury, erred in law by repeatedly using an abbreviated
description of the intent for second degree murder required under
s. 229(a)(ii). Instead of setting it out fully, he used the phrase intent
to wound to describe this intent. At no time did he define this term for the
jury, or explain that it was a convenient abbreviation for the more extensive
intent that the Crown must establish. Of particular significance, this error
was evident in both his instructions on intent, and on the impact of
intoxication on Ms. Kahnapaces state of mind.

[13]

In
R. v. Dove

(#1)
, 2004 BCCA 338, 187 C.C.C. (3d) 506, this
Court commented adversely on the practice of using abbreviations for a critical
element in s. 229(a):

[23]      I
am also sympathetic to the trial judges desire to condense his charge
following such a lengthy trial. In my view, however, the use of abbreviations
for the critical element the jury had to decide was a form of false economy
which had the potential to jeopardize the entire process. While stating and
restating the full intent under s. 229(a) of the
Code
is somewhat
cumbersome, I think the repetition of the elements of the second intent, in
particular, is important in bringing home to the jury the essential elements of
the second intent. Abbreviating this aspect of the charge, where intent is the
most critical issue in the trial, poses a potential danger which can, and
should, be avoided.

[14]

The impact of such unwarranted abbreviation was also dealt with in
Kahnapace #1
,
where a similar error was made:

[34]      The
next issue arises in the trial judges recharge to the jury on the link between
the evidence of intoxication and the intent for murder (see para. 11
above). There, the trial judge erroneously described the secondary intent for
murder under s. 229(a)(ii) in an abbreviated form by stating that murder is
not committed if Martha Kahnapace lacked the required intent, that is that she
intended to kill Donald Wall or that she intended to cause him bodily harm that
was likely to cause death. This instruction erroneously makes no reference to
an essential element of s. 229(a)(ii) being that of the accuseds knowledge or
subjective foreseeability of the likely consequence of death or risk of death.
In the next passage (in para. 11 above) the trial judge then instructed the
jury to consider this intent (referring to the abbreviated version of s.
229(a)(ii)) in deciding what effect, if any, the evidence of intoxication may
have had on [Ms. Kahnapaces] state of mind ... at the time that the unlawful
act occurred, that is the stabbing. This instruction repeats the error by
instructing the jury to consider the evidence of intoxication in reference to
the abbreviated instruction on the secondary intent for murder and failing to
link the evidence of intoxication to the element of knowledge or subjective
foreseeability in s. 229(a)(ii).

[15]

I appreciate the trial judge did give the jury a copy of
s. 229(a)(ii), and occasionally described the required intent in full in
his instructions. I am nevertheless satisfied that, when the charge is
considered as a whole, his pervasive use of the abbreviated description of
intent presents a significant danger that the jury may have collapsed the issue
of intent to the sole question of whether Ms. Kahnapace intended to wound
Mr. Wall, and may not have appreciated that the Crown also had to prove
that she subjectively knew or foresaw that his death was a likely consequence
of her action, and she was reckless as to whether death occurred.

[16]

The second error arises from the trial judges repeated reference to the
common sense inference that a person usually intends the natural consequences
of their acts as a presumption in his charge to the jury, and his failure to
properly instruct them on how to apply that inference, in light of the evidence
concerning Ms. Kahnapaces consumption of alcohol and cocaine.

[17]

While the term presumption was used in this context historically, the
Supreme Court of Canada in
R. v. Robinson,
[1996] 1 S.C.R. 683
at para. 62, 105 C.C.C. (3d) 97, and
R. v. Seymour
,
[1996] 2 S.C.R. 252 at para. 20, 106 C.C.C. (3d) 520, rejected this term,
and found it preferable to refer to a common sense inference that juries may,
but not must, draw. That Court recently affirmed this view in
R. v. Walle
,
2012 SCC 41, 284 C.C.C. (3d) 153:

[63]      In
my view, instructing a jury on the common sense inference serves a useful
purpose. It provides the jury with a marker against which to measure the rather
amorphous concept of intent. A proper instruction also sounds a cautionary note.
The jurors are admonished that the inference is permissive, not presumptive,
and that before acting on it, they must carefully consider the evidence that
points away from it. That is important. Left to its own devices, a jury might
too readily turn to common sense for an answer, especially in cases like the
present one, where common sense might suggest that anyone who fires a gun into
a persons chest at close range would surely be aware of the consequences.

[18]

Furthermore, where there is evidence of intoxication,
Seymour
and
Robinson
hold that the trial judge must provide instructions that draw a
direct link between the effect of intoxication and the common sense inference.
In
Kahnapace #1,
this Court referred to the relevant parts of these
decisions:

[39]      The
trial judge further erred in law in instructing the jury on the link between
the evidence of intoxication and the use of the common sense inference. Where
the defence of intoxication is put to the jury,
Seymour
has stated that
two further instructions are required: (i) that the evidence of intoxication
may rebut the common sense inference, and (ii) if the jury has a reasonable
doubt about the accuseds intention it must not apply the common sense
inference. At para. 23 of
Seymour
the Court described the requirements
as follows:

It
is common knowledge that a significant degree of intoxication may affect a
persons state of mind and thus the ability to foresee the consequences of
actions. It is, therefore, essential for a trial judge to link the instructions
given pertaining to intoxication to those relating to the common sense
inference so that the jury is specifically instructed that evidence of
intoxication may rebut that inference. See
Robinson
, at para. 65.
A
trial judge is obliged to ensure that the jury understands two important
conditions: (1) the reasonable common sense inference may be drawn only after
an assessment of all of the evidence, including the evidence of intoxication;
and (2) the inference cannot be applied if the jury is left with a reasonable
doubt about the accuseds intention
. [Emphasis added.]

...

[41]      Here,
the trial judge did not provide the specific instructions on the direct link
between the effect of intoxication and the common sense inference as outlined
in
Seymour
and reiterated in
Daley
. The failure to do so was said
in
R. v. Robinson
, [1996] 1 S.C.R. 683 to amount to reversible error:

[65]      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
MacKinley
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. In this case, the trial judges failure to make
this linkage constitutes reversible error. [Emphasis added.]

[19]

In
Kahnapace #1
, the Court

concluded the trial judges use
of the word presumption, and her failure to draw the necessary link,
constituted two of the cumulative errors that led to the order for a new trial.

[20]

The trial judges charge in this case contained similar errors. While he
occasionally referred to the common sense inference, he more frequently used
the terms common sense presumption, or provisional presumption. This leads to
a concern that the jury may have erroneously presumed what Ms. Kahnapace
intended when she stabbed Mr. Wall, instead of properly assessing her
actual intent, and then deciding whether they could draw the common sense
inference, a matter that lay in their discretion only after they had assessed
all of the evidence.

[21]

As well, the trial judge failed to instruct the jury at all on the
second element required by
Seymour
, that they could not rely on the
inference if they had a reasonable doubt about Ms. Kahnapaces intention.

[22]

The third error on which there is consensus is the trial judges failure
to properly instruct the jury on how Ms. Kahnapaces consumption of
alcohol could have affected her ability to subjectively appreciate and foresee
the consequences of her actions.

[23]

This was a case in which the evidence established advanced intoxication.
The law is clear that in such circumstances the jury must be told about the
potential effect of intoxication on the accuseds ability to foresee the
natural consequences of her actions, in particular that the bodily harm
inflicted was likely to cause death. The Supreme Court gave guidance on the
appropriate charge to be given in such circumstances in
Daley
at
paras. 51-53. As well, in
Kahnapace #1
this Court affirmed the
importance of instructing the jury on the link between intoxication and each
element of intent under s. 229(a)(ii):

[37]      Although
the trial judge summarized for the jury the Crowns address that did include a
link between the evidence of intoxication and Ms. Kahnapaces ability to
foresee the natural and probable consequences of her actions, this was not
sufficient, in my view, to overcome the trial judges omission in her
instructions to make the link between the evidence of intoxication and Ms.
Kahnapaces knowledge or subjective foreseeability of the likely consequences
of her conduct. I am also not persuaded that this omission is rectified by the
functional approach to jury instructions as suggested by the Crown. While the
language employed to instruct a jury need not follow the exact words of the
relevant case authorities, it must still convey the meaning of the required
directions. That did not occur with this instruction as it did not make the
required link between the evidence of intoxication and each of the elements of
the intent under s. 229(a)(ii), namely that the accused meant to cause bodily
harm, that she knew was likely to cause death, and was reckless whether death
ensued or not.

[24]

Here, the trial judges use of the abbreviated phrase intent to wound
precluded an instruction that complied with that principle. This segment of his
charge exemplifies the difficulty this presented in describing the
interrelationship between the required intent and intoxication:

In
other words, members of the jury,
you must not convict unless you are sure
that the defendant, when she did the act, intended specifically to wound. In
deciding whether she intended, you must take into account the evidence that she
may have been drunk and/or affected by drugs
. If you think that because she
was so intoxicated by drink and drugs that she did not intend or may not have
intended then you must find her not guilty of that specific offence. But if you
are sure that
despite her drunkenness and the effect of the drugs she did
intend to specifically wound
then this part of the offence is proved
against her. As I said earlier, a drunk or drugged intent is still an intent.


So I think 
this is the reason why I think you should deal with the defence of intoxication
first, because if you accept Ms. Kahnapaces evidence that she did not intend
specifically to wound then that ends the matter
.

[Emphasis
added.]

Conclusion

[25]

I am satisfied the errors of law identified by the parties are
significant and cannot be saved by the curative proviso in
s. 686(1)(b)(iii) of the
Code
:
R. v. Khan
, 2001
SCC 86 at paras. 29-31, [2001] 3 S.C.R. 823. I would therefore set aside Ms. Kahnapaces
conviction and order a new trial. That result renders it unnecessary to deal
with the balance of her grounds of appeal.

[26]

It is most unfortunate that Ms. Kahnapace must face a third trial
due to errors in the charge to the jury that so closely resemble the errors
that led to an order for a new trial in
Kahnapace #1
. This pattern
raises the question of whether trial judges may be relying too heavily on
outdated precedents in preparing their charges, instead of taking advantage of
the contemporary model jury charges available in both
CRIMJI:

Canadian
Criminal Jury Instructions
(4
th
ed. 2005) and Canadian Judicial
Council,
Model Jury Instructions
(2012) (online). Reference to the
suggested instructions in either of those sources may well have avoided these
errors.

[27]

I would allow the appeal from conviction and order a new trial.

[28]

TYSOE J.A.:
I agree.

[29]

BENNETT J.A.:
I agree.

[30]

TYSOE J.A.:
The appeal is allowed and a new trial is ordered.

The Honourable Madam Justice Neilson


