New & Notable: The Common Sense Inference

Adrian John Walle shot and killed Jeffrey Shuckburgh. He was standing about five feet away from him when he shot him. The bullet pierced Shuckburgh’s heart.


Walle was convicted (at a second trial) in a judge alone trial by Hart J of second-degree murder. He appealed unsuccessfully to the Alberta Court of Appeal. On appeal to the Supreme Court he argued that the trial judge erred in considering the impact of intoxication or his mental capacity on the issue of the common sense inference and his foresight of the consequences of his actions. The Supreme Court dismissed the appeal: 2012 SCC 41.


Walle had gone with a friend, Stewart, to a local bar – they had been planning to go to a field and shot a .22 calibre rifle that Walle had stolen from his uncle’s farm but decided to stop at the bar. Walle had concealed the rifle under his coat. Eventually he was confronted by a bartender and told to leave the rifle (that he said was a BB gun) outside. He did. Later Walle was asked to leave as he was apparently harassing female patrons.


Walle had left temporarily but decided to return. This time he took the gun back in with him. He was again confronted by staff including Shuckburgh. Prior to being confronted witnesses described him as looking stunned, that he had a blank look and that he looked nervous.


Shuckburgh and the other staff managed to get Walle outside. Once outside Walle pulled out the gun and told them it was not a BB gun. At times he pointed it at different members of the staff that ha ¸L:<3-=40-d escorted him out. Finally, he was pointing it at Shuckburgh. He had the barrel in his left hand the his right index finger on the trigger. As Shuckburgh approached him he shot Shuckburgh in the chest.


Walle testified that he didn’t mean to shot him.


Walle was convicted of second-degree murder.


On appeal to the Supreme Court Walle argued that the trial judge erred in resorting to the common sense inference without having proper regard to the whole of the evidence. In particular, Walle argued that the trial judge failed to properly take into account his mental state and intoxication.


With respect to his mental state, it was noted that Walle was apparently suffering from Asperger’s disorder, paranoid personality disorder, intermittent explosive disorder, adult anti-social disorder and alcohol abuse disorder [para 40]. However, as noted by Moldaver J, writing for the Court, there was no evidence placing these specific diagnoses before the court or the impact thereof.


Nonetheless, Walle argued that the trial judge erred by failing to consider the following aspects of evidence that was led: his developmental delays; his recent hospitalization under a mental health warrant; his “blank affect” at the bar; his hand gestures and demeanour while testifying; and the fact he was waving the rifle around before its discharge.


Moldaver J rejected this argument. In doing so he considered each piece of evidence and its possible relevance and impact on mens rea. He noted that the developmental delay and hospitalization were deficient of content or detail such that they could have realistically impacted on the issue of mens rea.


Moldaver J also  noted that there was evidence that showed Walle understood the consequences of his actions. For example, just before the shooting Walle told the employees that the gun was not just a BB gun; this showed his awareness that he was holding a real gun that was lethal [para 43]. Similarly, after his arrest he asked a police officer to kill him with the officer’s revolver; again, showing his awareness of the lethal nature of firearms.


Moldaver J concluded this issue with the following:


In short, none of the evidence that the appellant points to could have assisted him at trial on the issue of his awareness of the consequences of firing a gun into a person’s chest at close range.  Thus, while it might have been preferable had the trial judge referred specifically to the items of evidence that the appellant has identified, he was not obliged to do so any more than he was obliged to refer to all of the evidence that pointed in the opposite direction — of which there was a good deal [para 52].

With respect to the issue of intoxication, Moldaver J addressed it in the context of an argument advanced by the CCLA which they set out as follows:


In cases where there is an air of reality to the suggestion that impairment (by intoxication or otherwise) contributed to the accused’s actions, an instruction which incorporates a “sane and sober” common sense inference should never be given.  There is a real danger that juries will misuse the inference to incorporate objective mens rea into a specific intent offence and fail to focus on the accused’s actual intention at the time of his actions.  [Emphasis in original.]


Moldaver J, citing R v Daley, 2007 SCC 53, rejected this argument. In doing so he offered the following analysis:


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 person’s chest at close range would surely be aware of the consequences [para 63]

After cautioning that the instruction on the inference should not be tied to a rigid formula, he continued:

In the end, what is critical is that the jury be made to understand, in clear terms, that in assessing the specific intent required for murder, it should consider the whole of the evidence that could realistically bear on the accused’s mental state at the time of the alleged offence.  The trial judge should alert the jury to the pertinent evidence.  How detailed that recitation should be will generally be a matter for the trial judge, in the exercise of his or her discretion.

After the jurors have been alerted to the pertinent evidence, they should be told that if, after considering the whole of the evidence, they believe or have a reasonable doubt that the accused did not have one or the other of the requisite intents for murder at the time the offence was committed, then they must acquit the accused of murder and return a verdict of manslaughter.

If, however, there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence, or if the pertinent evidence does not leave the jury in a state of reasonable doubt about the accused’s intent, then the jury may properly resort to the common sense inference in deciding whether intent has been proved [paras 65-67].

With respect to the present case, Moldaver J noted that the trial judge did consider the relevant evidence and found it did not create a doubt that Walle knew about the consequences of his actions [para 68].


Appeal dismissed.