2010 QCCA 2211, 2010 QCCA 2211

Unofficial English Translation Charette v. R. 2010 QCCA 2211 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004061-089 (505-01-056953-058) DATE: December 3, 2010 CORAM: THE HONOURABLE BENOÎT MORIN, J.A. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. MARC CHARETTE APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix JUDGMENT [ 1 ] The appellant appeals from a verdict rendered February 2, 2008, by a jury presided over by the Honourable Mr.

Justice Richard Mongeau of the Superior Court, District of Longueuil, finding him guilty of second degree murder; [ 2 ] For the reasons of Doyon J.A., with which Morin and Bich JJ.A. agree, the Court: [ 3 ] ALLOWS the appeal; [ 4 ] SETS ASIDE the guilty verdict; [ 5 ] ORDERS a new trial on the charge of second degree murder. BENOÎT MORIN, J.A. FRANÇOIS DOYON, J.A. MARIE-FRANCE BICH, J.A. Mtre Daniel Royer Mtre Martin Latour Labelle, Boudrault, Côté & Associates For the appellant Mtre Julie Beauchesne Criminal and Penal Prosecuting attorney For the respondent Date of hearing: November 10, 2010

REASONS OF DOYON J.A. [ 6 ] Initially charged with first degree murder, attempted murder, and death threats, the appellant was acquitted on the last two counts but found guilty of second degree murder. He appeals this verdict, raising several grounds of appeal as to both the instructions and some interlocutory decisions. [ 7 ] The analysis of these grounds of appeal does not require a

summary of all the evidence; some background will suffice. It is noteworthy that the appellant did not submit a defence. BACKGROUND [ 8 ] On July 22, 2005, around 11:40 PM, the appellant arrived with his cousin at the bar of the Oscar motel in Longueuil. Their arrival was caught on surveillance camera, which showed the appellant stepping out of his car, tripping on the sidewalk, and falling to the ground. He is then seen getting up and staggering to the entrance of the bar.

Mélanie Beaupré, an employee, confirmed at trial that the appellant and his companion were already [translation] "pretty plastered" and that they were [translation] "intoxicated by alcohol". [ 9 ] They stayed for about an hour and each drank three [translation] "large bottles of beer", which is equivalent, according to Ms. Beaupré, to a little over seven regular bottles. [ 10 ] At some point, the appellant used a communications device, like a walkie-talkie, and spoke for some minutes to a woman. He was loud, he shouted, he was aggressive. In short, the conversation was stormy. Ms.

Beaupré asked him to keep it down. His only answer was to insult her, at which point she demanded that he leave the premises, which he did, but not without threatening to kill A. T., a bar patron, on his way out. [ 11 ] Ten to fifteen minutes later, the appellant returned to the premises where he met Donovan Duguay, at whom he hurled insults. Mr. Duguay’s father, Jocelyn L'Écuyer, intervened. A brawl ensued and the appellant, who was carrying a sidearm, fired on L'Écuyer, who later died. The appellant fired more shots but there were no other victims.

A knife was later found under the victim. [ 12 ] The appellant immediately fled in his car. He was intercepted by police officers a little over an hour later, at 1:53 AM, for failing to make a mandatory stop. He gave the officer false identification. The intercepting officer stated that she could smell alcohol but had noticed no other symptoms, thereby explaining why she did not arrest him at the time. [ 13 ] The appellant then went to Vancouver and returned in early November of 2005.

On December 6, 2005, he was once again intercepted by police officers and once again gave false identification by giving two fake names. At the police station, however, he changed his mind and gave his real name. He then gave a statement, which was filed into evidence. In this statement, he essentially stated that he had acted in self-defence and also raised the issue of provocation. He added that he was [translation] "pretty drunk too", though [translation] "because some time had gone by" when he was intercepted by the police, he wasn't drunk and wasn't [translation] "walking on all fours".

GROUNDS OF APPEAL [ 14 ] The appellant raises several grounds of appeal that I will rephrase as follows: 1. The trial judge erred in law by refusing to rule on the motion for a directed verdict of acquittal after the respondent's evidence on the ground that it was premature and that he first had to hear the defence. 2. He erred in law first by refusing to rule on the appellant's Corbett application before the prosecution's witnesses were cross-examined and then, by refusing to expurgate the violent offences from the appellant's criminal record on the ground that they were relevant. 3.

He erred by refusing to instruct the jury on the defence of voluntary intoxication despite abundant evidence and erred in his instructions concerning criminal intent. 4. He erred first by allowing the respondent to present evidence of postdelictual behaviour that had no probative value, thereby rendering the trial unfair and, second, by giving erroneous instructions on the use that could be made of this evidence. 5. He erred in his instructions on the issue of self-defence. 6.

He erred in his instructions on the defence of provocation. [ 15 ] For the following reasons, I am of the opinion that the first three grounds are sufficient to justify the intervention of this Court. MOTION FOR A DIRECTED VERDICT OF ACQUITTAL [ 16 ] At the close of the respondent's evidence, the appellant requested that the trial judge direct a verdict of acquittal on the first degree murder charge. In his view, absolutely no evidence of premeditation had been adduced, which called for an immediate acquittal so that the trial continues on the charge of second degree murder.

[17] Relying on preliminary inquiry case law, which states that the judge must take into account all of the evidence, the trial judgedeemed the motion to be premature and that all the evidence should be heard, including that of the defence, before he could decide.Consequently, he dismissed the motion [translation] "for the time being" on the grounds that [translation] "it was premature". [18] Though the test to determine if a non-suit motion or a directed verdict of acquittal should be granted is identical[1] to the onewhich determines the standard for committal after a preliminary inquiry, the similarities stop there.

While a judge presiding an inquirymust assess the evidence as a whole: R. v. Arcuri, 2001 SCC 54 , [2001] 2 S.C.R. 828; R. v. Belleville, J.E. 2008-79; 2007QCCA 1704, this is not the case for a judge presiding a trial. The accused must know the offence to which he must answer before beingcalled on to elect whether or not to call defence evidence. As Tim Quigley writes: At some time, the crown will have to introduce its entire case.

Once this has been indicated to the court, the defence may respond.Before electing whether or not to call defence evidence, the defence may make a motion to the trial judge to dismiss the case at thatpoint. This motion is called a directed verdict or non-suit motion. It involves an assertion that the crown has not offered a case to meetand that therefore there should be a directed verdict of acquittal.[2] [Emphasis added.] [19] More particularly, E.G. Ewaschuk observed that the judge should not wait to know if the accused intends to call defenceevidence but should decide the motion immediately.

He noted that the accused could not be forced to decide before knowing the judge'sdecision: Thus, an accused cannot be put "to his election" whether or not to call evidence until after the trial judge decides to disallow the motionfor nonsuit for lack of a prima facie case.[3] [20] For their part, Pierre Béliveau and Martin Vauclair assert that: [translation] In addition, common law has identified a material procedural consequence of the presumption of innocence: the burden of proof isattributed to the State.

Indeed, following the prosecution's evidence at trial but before the accused has elected whether to make a defence,there must be sufficient evidence before the court for an adequately instructed jury to reach a guilty verdict.

Failing such evidence on oneof the essential elements of the charge, the accused may present, after the prosecution has called evidence, a non-suit motion or a motionfor a directed verdict of acquittal.[4] [21] While the trial judge clearly erred in law by refusing to decide the motion after the respondent had concluded its evidence, Ibelieve that this error, in itself, would not have justified the intervention of this Court.

Admittedly, as the appellant argues, this placedhim in the uncomfortable position of having to decide how to proceed without the benefit of a judicial decision on the existence orabsence of evidence of premeditation. As the jury acquitted him on the charge of first degree murder, however, the prejudice he mayhave suffered as a result is not self-evident. [22] As I will now show, however, this error in addition to two much more serious ones under the circumstances require, in myopinion, that this Court intervene.

THE CORBETT APPLICATION [23] The appellant presented a motion before the trial judge seeking to prohibit the prosecution from using the violent offenses inhis criminal record to cross-examine him should he testify.

He argued that his numerous other convictions involving dishonesty would besufficient for the jury to correctly assess his credibility without running the risk of convicting him merely because he is a violentindividual who is thus more likely to have committed murder. [24] More precisely, the appellant sought to exclude the convictions related to indecent assault, robbery, threats, assault, use of afirearm, forcible confinement, and escape.

It should be pointed out, however, that, when questioned at the appeal hearing, counsel for theappellant conceded that there was no reason to limit the use of the escape convictions. [25] According to a document submitted by the parties for the purposes of the appeal, between 1982 and 2005, the appellant wasfound guilty of 85 counts. Through the application, he sought to have the judge remove 28 of them, including the four counts of escapeor attempted escape.

Thus, there would still have remained an impressive amount of convictions, about 60 of them, including theft,conspiracy, breaking and entering, possession of break-in instruments, possession of stolen property, mischief, arson, personation withintent, breach of an order and of parole, impaired driving, obstruction, and because of the appellant's concession, escape. In short, theprosecution was not without arguments to contend that the appellant has little respect for the law, even without the convictions forrobbery, assault, and threats. As O'Connor A.C.J. pointed out in R. v.

Bomberry (2010), 2010 ONCA 542 , 258 C.C.C. (3d) 117(Ont. C.A.), a case involving a second-degree murder charge: 47 In my view, the trial judge erred in admitting the appellant's record of convictions for the four assault charges. Those convictionswould not add anything to the jury's analysis of the appellant's credibility.

The balance of the appellant's criminal record, as edited,together with the other evidence that had been admitted about her background and lifestyle, was more than enough to alert the jurors thatthey should exercise great caution in assessing the appellant's credibility. [26] On January 28, 2008, the trial judge orally dismissed the application except for one count of indecent assault from 1983. OnFebruary 5, 2008, the judge filed his written arguments. [27]

Section 12 of the Evidence Act provides that a witness may be cross-examined on his or her criminal record. In R. v. Corbett, (SCC), [1988] 1 S.C.R. 670, the Supreme Court ruled that this provision does not contravene sections 7 and 11(

d) of the

Canadian Charter of Rights and Freedoms when the accused chooses to testify in his or her own defence. The judge has the discretion tolimit cross-examination, however, when the prejudicial effect of disclosure would outweigh the probative value of the evidence. Inaddition, any disclosure of prior convictions must be accompanied by an instruction to the jury as to the limited use that may be made ofsuch evidence, as it may only be used to assess the credibility of the accused and not as proof of his or her propensity to commit criminaloffences or, more specifically, to commit the offence charged.

In Corbett, Dickson C.J. explains the relevance of an accused's priorconvictions to his or her credibility: …Cross-examination of an accused with respect to prior convictions has been permitted in Canada since an accused first becamecompetent to testify on his own behalf in 1893: R. v. D'Aoust (1902), (ON CA), 5 C.C.C. 407 (Ont. C.A.). What liesbehind s. 12 is a legislative judgment that prior convictions do bear upon the credibility of a witness. In deciding whether or not tobelieve someone who takes the stand, the jury will quite naturally take a variety of factors into account.

They will observe thedemeanour of the witness as he or she testifies, the witness' appearance, tone of voice, and general manner. Similarly, the jury will takeinto account any information it has relating to the witness' habits or mode of life. There can surely be little argument that a prior criminalrecord is a fact which, to some extent at least, bears upon the credibility of a witness.

Of course, the mere fact that a witness waspreviously convicted of an offence does not mean that he or she necessarily should not be believed, but it is a fact which a jury mighttake into account in assessing credibility. [28] Moreover, persistent contempt of the law is relevant to assess the credibility of a witness. It can certainly be inferred that anindividual who constantly infringes the law has little respect for the truth and is thus more likely to lie: R. v.

Gibson, 2001 BCCA 297, 153 C.C.C. (3d) 465 (BCCA) at para. 30. [29] It is possible that the prejudicial effect of admitting an accused's criminal record into evidence may lead the judge to concludethat certain convictions should be concealed from the jury. In R. v.

Charland, (1996), (AB CA), 110 C.C.C. (3d) 300at 309 (appeal dismissed by the Supreme Court, [1997] S.C.R. 1006), the Court of Appeal of Alberta described the risk of prejudicewhen an accused's criminal record is disclosed to the jury as follows: In Corbett, the Supreme Court discussed the nature of the prejudice which could arise from the disclosure to the jury, of the previouscriminal behaviour of the accused. The prejudice arises from the risk that the jury might improperly use the evidence admitted for thelimited purpose of credibility, in deciding on the guilt of the accused.

There is a risk that the jury will rely on unfounded and unreliableassumptions which arise from evidence of bad character, such as propensity: that an accused who previously committed a crime is morelikely to commit other crimes, including the offence with which he is charged; … [30] In R. v.

Tremblay, 2006 QCCA 75; (2006), 209 C.C.C. (3d) 212, I wrote: [translation] [20] When it comes to determining whether a prior conviction should be excluded, the judge must consider whether, on a balance ofprobabilities, the accused has demonstrated that the prejudicial effect of admitting the prior conviction would outweigh the probativevalue of this evidence. There is no absolute rule, and the exercise must take into account several factors and criteria. Each case standsalone and turns on its own facts. In R. v.

Corbett, supra at 697, Justice Dickson noted that when in doubt, the evidence should beadmitted: [31] In R. v. Trudel, (QC CA), [1994] R.J.Q. 678 (C.A.), at 682-683, my colleague Brossard J.A. listed thefactors to be considered: [translation] - It is appropriate, however, to weigh the probative value of this evidence against the prejudice it is likely to cause the accused…; - "[T]he more similar the offence to which the previous conviction relates to the conduct for which the accused is on trial, the greater theprejudice harboured by its admission".

Furthermore, a prior record of fraud, deception or cheating, indicating a lack of honesty orintegrity, bears directly on the credibility of the testimony of the accused...; - The Court should therefore be quite reluctant to admit into evidence a conviction for a similar crime, the nature of which has no bearingon the credibility or possible veracity of the testimony of the accused; - It is therefore the connection between credibility and the nature of the prior conviction that must be considered, and not that betweenthe nature of the prior conviction and the nature of the crime in the present case; - The temporal proximity between the two offences is also a factor likely to affect either its relevance or the degree of prejudice it causesthe accused; - Finally, is the evidence of the prior conviction so essential or useful to the Crown that the outcome of the case may depend on it? [32] Moreover, as the defence may have cross-examined the witnesses for the prosecution by using their criminal records, the factof [translation] "editing" the accused's criminal record, or worse, of completely silencing its very existence, could paint a false picture ofthe facts for the jury.

Indeed, the jury might be led to believe that only the prosecution's witnesses have criminal records and that theircredibility is weakened in comparison to that of the accused, who appears to have no criminal record or not to have been convicted asoften as he was and for crimes that differ from actuality. In R. v.

Charland, supra, the Alberta Court of Appeal indicated that the jurymust not be given the false impression that the accused led an exemplary life: Generally, previous convictions for violent offences such as sexual assault do not directly reflect on honesty and truthfulness and,depending on the circumstances of the case, have limited probative value in assessing credibility. However, particularly in the context ofa lengthy criminal record, such prior convictions have probative value that is greater than trifling because a jury could reasonably

conclude that the convictions reflect a disregard for the laws and rules of society, making it more likely that the person who harbours such attitudes would lie. Here, excluding the sexual assault convictions from the cross-examination could leave the jury with an erroneous impression that the accused had not been convicted of any offences since 1988. The accused would have appeared to have lived a "crime free" life in the community for six years, when a substantial portion of that time was spent in jail.

In the circumstances of this case, I cannot say that the trial judge's finding that the probative value of the accused's prior sexual assault convictions outweighed the prejudicial effect, constituted a clear or palpable error. [ 33 ] In the present case, the appellant decided not to testify and informed the Court of this fact on January 29, 2008, before the trial judge had filed his written reasons. He was nonetheless aware of the gist of the oral decision.

Yet, in his oral decision and, to a lesser extent, in his written reasons, the judge committed the very error that case law seeks at all costs to avoid: to find that, based on his criminal record, the accused had a propensity to commit crimes of the very same nature as those with which he was then charged and that, for that reason, the accused was more likely to have committed them. Indeed, to justify dismissing the application, the trial judge stated the following: [translation] The Court deems that the acts of deceit and theft, to name only those, impact the honesty and integrity of an individual.

The convictions related to acts of violence are also relevant in that, when questioned on the day of his arrest, the accused justified shooting Jocelyn Lécuyer by claiming self-defence, that he had been attacked. ... The credibility of all the witnesses and that of the accused in particular, should he testify, will be at issue. [ 34 ] One might believe that he only intended that the jury would be entitled to use the criminal record to assess the accused's credibility.

Yet, the following excerpt indicates that this was not the case: [translation] The Court is convinced that the records regarding convictions for uttering threats, assault, robbery, use of a firearm, forcible confinement, and escape reflect reality as it should be presented to the jury.

The probative value of this evidence greatly outweighs the prejudice to the accused, particularly in the context of his denying any premeditation or intention concerning the commission of the crimes with which he is charged and also, as previously indicated, in the context of self-defence. [Emphasis added.] [ 35 ] According to the judge, the prior convictions for violent offences are thus particularly significant because the accused denies intent and premeditation. In other words, admitting these prior convictions for violent offences would make it possible to prove premeditation and intent.

This constitutes an exercise prohibited by case law. It is also possible that these prior convictions would contradict the possibility that the accused was in fact acting in self-defence. At the very least, the appellant may have believed that this was the judge's point of view, which would go against the rule. [ 36 ] If that was indeed the case, the appellant had two considerations to take into account when electing whether or not to testify. First, the judge's instructions would be in the same vein as his thoughts, which might lead the jury to convict him because of his criminal record.

Second, if the judge himself held this opinion, it was highly likely that the members of the jury would share it. It is thus easily understood why the appellant chose to not testify.

Yet, when self-defence is raised, the decision to not testify may have devastating consequences. [ 37 ] The written reasons of the judgment (revised and transcribed on February 5, 2008) without being quite as clear, are nonetheless along the same lines: [ translation ] [38] The convictions related to violent acts are relevant in that the accused, during questioning by the investigator Alain Moreau, raised self-defence to justify his actions. [ 38 ] The prior convictions for violent offences could be used to contradict the accused on the issue he raised of self-defence.

In other words, if he was violent in the past, it could lead the jury to believe that he was not truly acting in self-defence. Then again, that thinking is in direct contrast to the teachings of the Supreme Court. [ 39 ] The trial judge relied in part on Tremblay , supra . Yet, with great respect, the circumstances of the two cases are fundamentally different. [ 40 ] For example, in Tremblay , the defence had attacked the credibility of the two witnesses for the prosecution by cross- examining them in detail concerning their criminal records and lifestyles.

Therefore, as I was saying earlier, it was necessary to avoid letting the jury believe that only the witnesses for the prosecution had questionable lifestyles and the accused appear to be an angel, which would have been unfair to the prosecution. Through his judgment, the trial judge established that this was not the case here: [translation] [31] The accused attacked the credibility of an important witness for the prosecution, the alleged victim at the centre of the second count, Donavan Duguay, by questioning him about his criminal record and that of his father.

Even in the absence of such a record, there may always remain something of an impression in the minds of the jurors. [ 41 ] Both witnesses were without criminal records, thus the imbalance contemplated in Tremblay could not surface here. Moreover, to affirm that there may [translation] "always remain something of an impression in the minds of the jury", one must believe that the jury would not follow the judge's instructions. That is not the state of the law.

[42] Also, the accused in Tremblay wanted to hide from the jury a prior conviction for manslaughter for which he had served atwelve-year prison term. The trial judge had observed that, if he were to allow it, the jury might mistakenly believe that the appellant hadled an exemplary life during that long period of time. That is not the case here. The sheer number of prior convictions and the defence’sapplication could not lead the jury to believe that the accused had led an exemplary life for a long period of time.

In truth, the 60 or soremaining convictions were more than enough for the jury to have a clear and complete picture of the situation, while protecting theappellant from a verdict based on a reasoning that must be proscribed. [43] According to paragraphs 36 and 37 of his judgment, the trial judge felt that the prior convictions taken as a whole wouldallow the jury to observe the accused's lack of respect for the truth.

I find that the records that would have remained would have beensufficient to achieve that goal. [44] I am aware that an appellate court must show deference toward these kinds of decisions, which result first and foremost fromthe exercise of discretionary power. Nevertheless, the reasons of the judge and the circumstances of the case have convinced me that hisdecision was not the result of a judicious exercise of his discretionary power. If Corbett is to have meaning, the mere fact that the entiretrial hinged on the credibility of the witnesses could not justify the judge's refusal.

Nevertheless, that is exactly what occurred, accordingto the very words of his judgment. In my opinion, the appellant had proved that his prior convictions for violent offences should beexcluded from his cross-examination on the ground that their probative value did not outweigh the prejudice that he could suffer as aresult. [45] Finally, I would address the respondent's argument that the submission is moot since the appellant did not testify.

In otherwords, the Court of Appeal cannot correctly assess the impact of the trial judge's decision because, in not testifying, the appellantdeprived the trial judge of the possibility of adequately instructing the jury, which might have led to an acquittal. [46] It should be noted that such an argument is not without consequence. Should an accused elect not to testify, he or she wouldbe precluded from raising the argument on appeal. In itself, this observation is troubling. [47] Again in Tremblay, referring to R. v.

Atouani, [2002] (QC CA), REJB 2002-35786, I wrote: [translation] Finally and alternatively, we must address the issue of whether the appeal is moot, given the appellant's decision not to testify in his owndefence. This is a hypothetical argument, since it cannot be affirmed with certainty that the appellant would have testified if the judge'sdecision had been different. In R. v. Atouani, supra, Justice Proulx made the following comments in a similar context: [translation] [17] I would add that, even if the trial judge did err on this point, the appellant is hard-pressed to complain.

The appellant did not makehimself heard as a witness, and he now asks this Court to assume the prejudice that would have been caused by a guilty verdictcontaminated by evidence of his prior convictions. We will never know why the appellant did not testify. The Court of Appeal cannotspeculate on the true motive, although it may be reasonable to believe that he feared disclosing his record or, as his counsel stated at thehearing, he feared that the jury would not be properly warned.

Nor can we know what a jury would have decided if the appellant hadtestified, and, if we do accept that an error was committed, how can we apply the curative provision and find that there was a substantialwrong on the basis of hypotheses? [33] While this may not be sufficient to determine the outcome of the appeal (see in particular R. v.

Sark (2004), 2004 NBCA 2 ,182 C.C.C. (3d) 530 (N.B.C.A.)), I have chosen to mention it because it constitutes an additional difficulty along with the other relevantcircumstances [Emphasis added.] [48] Thus, I addressed the issue merely in the alternative, without stating a general principle according to which a ground of appealwould always be moot. This was in addition to the other arguments and was not enough to [translation] "determine the outcome of theappeal". I cited R. v.

Sark, where the New Brunswick Court of Appeal dismissed such an argument and ordered a new trial despite theaccused not testifying because of the errors committed by the trial judge. I could also have cited R. v. Riehm, [1993] O.J. No. 3922 (Ont.C.A.) and R. v. Brown (ON CA), [2002], 166 C.C.C. (3d) 570 (Ont. C.A.). [49] In short, this ground of appeal cannot be dismissed simply because the accused did not testify.

It is at most one of thenumerous circumstances that must be considered. [50] Furthermore, as I believe I have shown, the possibility of erroneous instructions, which Proulx J.A. referred to as hypothetical,is not hypothetical in this case. [51] We must also recall that Proulx J.A. began his remarks with [translation] "I would add that ..." after having clearly expressedin the preceding paragraph that the trial judge had been right to dismiss the application: [translation] [16] Applying these principles to the case at hand, the trial judge rightly dismissed this application. ... [52] There, too, the issue was addressed by Proulx J.A. purely in the alternative.

Finally, I cannot help but note his observationthat that appellant had attacked the reputation and behaviour of the victim, so that all of his recent convictions had to be disclosed toavoid the aforementioned imbalance. [53] There remains the appellant's argument according to which the trial judge erred in law by refusing to deal with the application

before deciding whether to cross-examine the witnesses for the prosecution himself concerning their own criminal records, if they hadany. This argument must fail. [54] On the one hand, case law, R v. Underwood [1989] 1 S.C.R. 77 in particular, considers the right moment to determine thisissue to be once the prosecution is done presenting its evidence. [55] On the other hand, the extent, the scope, and the intensity of the cross-examination administered to the witnesses for theprosecution form part of the considerations taken into account by the trial judge in determining the application.

It appears incoherenttherefore for the judge to render judgement prior to the cross-examination of the witnesses for the prosecution. Nonetheless, the mere actof cross-examining the witnesses for the prosecution on the veracity and reliability of their accounts does not justify the dismissal of theCorbett application, as noted in Bomberry, supra: 50 In any event, the appellant's trial counsel did not challenge the good character of any of the Crown witnesses, including DetectivesTurner and Aherns.

Defence counsel only challenged the accuracy and reliability of the evidence of the Crown witnesses, not their goodcharacter. There is a distinction. Questioning witnesses' accounts of events and challenging the accuracy of those accounts does notcreate the potential for the kind of imbalance discussed in Corbett: DEFENCE OF VOLUNTARY INTOXICATION [56] Despite the request by the defence and the evidence I have already noted, the trial judge refused to instruct the jury on thedefence of voluntary intoxication.

He stated: [translation] Relying on exhibit P-16, that is, the transcript of the examination that took place on December 6, 2005, we might conclude that Mr.Charrette, the accused in these proceedings, says black and then says white. He says that he was drunk; he then says that he wasn't. On the whole of the evidence, including the evidence of his consumption, I think that this ground of defence cannot be considered ashaving an air of reality. [57] Thus, the judge is not convinced of the air of reality of this defence because, in particular, the appellant gave two possiblycontradictory versions in his statement.

Yet, as previously noted, the appellant was offering the distinction between the time of theevents and that of his arrest, so the "contradictory" aspect of his statement is far from established. Regardless, it is not because evidenceis contradictory that it does not have the air of reality required to be put to the jury. Let us not forget that the accused does not bear aburden of persuasion. He must only meet the evidential burden to have the judge leave the defence to the jurors, who will decide itsmerits: R. v. Cinous, 2002 SCC 29 , [2002] 2 S.C.R. 3. [58] In R. v.

Daley, [2007] 3 S.C.R. 523, 2007 SCC 53, Bastarache J. writes, at para. 44. 44. It is apparent that where there is evidence of a mild degree of intoxication, since this has never been held to be a defence, the trialjudge is not required to give any instruction on intoxication; there would be no air of reality to the defence.

The threshold for instructingjuries on intoxication was set out in Robinson, at para. 48: “[B]efore a trial judge is required by law to charge the jury on intoxication, heor she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused’s foresight ofconsequences sufficiently to raise a reasonable doubt” (emphasis deleted). This is the threshold for instructing juries on advanceddrunkenness. [59] That being the case, was there an air of reality? In my opinion, there was. [60] The circumstances of the appellant's arrival at the bar are telling. Ms.

Beaupré said that he was already under the influence ofalcohol ([translation] "pretty plastered"), which would seem to explain his gait upon exiting his car. Add to that his consumption of someseven beers in the space of 60 to 90 minutes. The appellant stated that he was [translation] "pretty drunk" at the time of the events. Thathe stated he was no longer drunk when he was intercepted and the police officer did not observe any symptoms of intoxication at thattime does not cast doubt on the air of reality of his state of intoxication at the time of the altercation.

Indeed, the trial judge waspreoccupied by his state: [translation] I believe, however, that I must give instructions to the jury when I address the intent of committing a crime ... it is my intention to tell thejury: Here, concerning the accused's sobriety, I would refer you to the whole of the evidence you have heard ... [61] He added: [translation] Thus, ... the defence of intoxication does not, in the Court's opinion, hold an air of reality ... .

That said, the accused's sobriety, or ratherhis level of intoxication, is a very significant fact that could be argued by counsel and that will be a specific point on which I intend toinstruct the jury by referring to the extracts of evidence relating to the accused’s sobriety. [62] In fact, during his instructions, the judge spoke on a few occasions of [translation] "the influence that the level of theaccused's intoxication could have had on his intent" and also of the importance of taking into account [translation] "the state of hissobriety" to assess his awareness of the consequences of his actions. [63] The judge rightly deemed that the circumstances of the case required that the degree of intoxication be taken into account, aswell as the accused's [translation] "sobriety" (to use his word), when assessing his intent.

It would have been essential to see the analysis

through to its end, which would have irrevocably led to the conclusion that the defence of voluntary intoxication should have been put to the jury and that complete instructions, not partial ones, should have been given on the subject. The mere mention of the importance of taking into account the degree of the accused's [translation] "sobriety" was clearly insufficient.

CONCLUSION [ 64 ] Thus, I find that the cumulative effect of these decisions has made the trial unfair in that 1) the appellant did not benefit from a judgment on the motion for a directed verdict of acquittal before being faced with the decision of electing whether to adduce evidence for his defence, 2) the appellant decided to not testify after the judge had erroneously decided to not exclude some of his prior convictions, and 3) the appellant was not granted the benefit of a defence of intoxication, even though it had an air of reality. [ 65 ] In the circumstances, it is neither useful nor necessary to consider the remaining grounds raised by the appellant. [ 66 ] For these reasons, I would allow the appeal and order a new trial on the charge of second degree murder.

FRANÇOIS DOYON, J.C.A.