R. v. Daley

R. v. Daley
Collection
Supreme Court Judgments
Date
2007-12-13
Neutral citation
2007 SCC 53
Report
[2007] 3 SCR 523
Case number
31616
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Saskatchewan
Subjects
Criminal law
Notes
SCC Case Information: 31616
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Daley, [2007] 3 S.C.R. 523, 2007 SCC 53
Date: 20071213
Docket: 31616
Between:
Wayne Joseph Daley
Appellant
and
Her Majesty The Queen
Respondent
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Reasons for Judgment:
(paras. 1 to 107)
Dissenting Reasons:
(paras. 108 to 164)
Bastarache J. (McLachlin C.J. and Deschamps, Abella and Rothstein JJ. concurring)
Fish J. (Binnie, LeBel and Charron JJ. concurring)
______________________________
R. v. Daley, [2007] 3 S.C.R. 523, 2007 SCC 53
Wayne Joseph Daley Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Daley
Neutral citation: 2007 SCC 53.
File No.: 31616.
2007: May 18; 2007: December 13.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for saskatchewan
Criminal law — Charge to jury — Defence of intoxication — Accused convicted of second degree murder — Whether trial judge’s charge on defence of intoxication adequate — Whether trial judge’s one‑step charge on actual intent only appropriate — Criminal Code, R.S.C. 1985, c. C‑46, s. 229 (a)(ii).
Criminal law — Charge to jury — Expert testimony — Accused testifying having no memory of what happened at time of murder due to consumption of alcohol — Expert testifying about effect of alcohol on judgment, evaluation of appropriateness and memory — Whether trial judge should have interpreted expert evidence for jury.
Criminal law — Charge to jury — Credibility — Accused testifying having no memory of what happened at time of murder due to consumption of alcohol — Whether trial judge should have linked requirement for proof beyond a reasonable doubt to issue of accused’s credibility in charge to jury.
D and his common law wife M went out socializing and drinking with friends. The group returned to the couple’s home early in the morning. After more drinking and socializing, D and a friend rode on motorcycles on search for another party, leaving M in the house, dancing by herself to music which was playing on the computer. D returned around five in the morning. The house was locked and neighbours heard him cursing and trying to get into the house and his vehicles. Later in the morning, M was found in the kitchen, dead from a stab wound. D was found drunk in a bedroom and arrested for murder. At trial, D testified that, due to his alcohol consumption on that night, he was unable to remember the events that took place after he arrived home. Many witnesses testified about D’s state of drunkenness before and after the killing. An expert witness was called by the defence and testified about the effect of alcohol on judgment and brain function. The jury found D guilty of second degree murder and this verdict was upheld by the majority of the Court of Appeal. At issue here are the adequacy of the trial judge’s instruction on the defence of intoxication and whether the trial judge had to give a specific instruction on proof beyond reasonable doubt with respect to the credibility of the accused.
Held (Binnie, LeBel, Fish and Charron JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Bastarache, Deschamps, Abella and Rothstein JJ.: When considering the adequacy of a trial judge’s charge, the appellate tribunal will consider the charge as a whole and determine the general sense which the words used must have conveyed, in all probability, to the mind of the jury. It is the overall effect of the charge that matters, and not whether a particular formula was recited by the judge. [30‑31]
On the current state of the law, for a murder charge, the defence of intoxication will only be available to negate specific intent so as to reduce the charge to manslaughter. There are three legally relevant degrees of intoxication. First, there is mild drunkenness, which induces relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor in determining whether the accused possessed the requisite mens rea and the trial judge is not required to give any instruction on mild intoxication. Second, there is advanced intoxication, i.e. intoxication to the point where the accused lacks the specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. A defence based on this level of intoxication applies only to specific intent offences and the extent of intoxication required to advance it successfully may vary, depending on the type of offence involved. Third, there is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility, but such a defence would be extremely rare and, by operation of s. 33.1 of the Criminal Code , limited to non‑violent types of offences. [40‑44]
The trial judge’s instructions on advanced intoxication should cover eight elements: (1) instruction on the relevant legal issues, including the charges faced by the accused; (2) an explanation of the theories of each side; (3) a review of the salient facts which support the theories and case of each side; (4) a review of the evidence relating to the law; (5) a direction informing the jury they are the masters of the facts and it is for them to make the factual determinations; (6) instruction about the burden of proof and presumption of innocence; (7) the possible verdicts open to the jury; and (8) the requirements of unanimity for reaching a verdict. [29]
The trial judge must make it clear to the jury that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt that the accused had the requisite intent. In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death. In this case, the trial judge did present the issue properly, closely following a specimen charge on intoxication which incorporates all the recommendations from this Court’s recent cases. After identifying that the main issue in the case was whether D had the intent to kill M, the trial judge explained how this would be proven and proceeded to identify the evidence that would assist the jury in assessing whether D had this intent; he explained the common sense inference that sane and sober persons intend the natural and probable consequences of their actions and linked this to the evidence of intoxication; he identified evidence relevant to the jury’s determination of whether to draw the common sense inference and again instructed the jury on the legal conclusions they could reach after assessing the evidence. On a functional review of the charge, the jury properly understood that one of the main questions before them was whether D was so intoxicated that he could not foresee that stabbing M would result in her death. A clear and specific linkage between foreseeability and intoxication was not necessary so long as the charge as a whole conveyed the need to address the effect of drunkenness on foreseeability. [48] [63‑68]
Brevity in the jury charge is desired. The duty of a trial judge is not to undertake an exhaustive review of the evidence, which may confuse the jury. The extent to which the evidence must be reviewed will depend on each particular case. The test is one of fairness. Here, a concise and fair summary of the evidence, focussing on the evidence central to deciding whether D was so intoxicated that he could not foresee the consequences of his actions, was what was in order. Just as there was evidence supporting that D was very drunk, there was evidence to suggest that he was less drunk than alleged and was capable of acting rationally. Both sides were presented. It is also relevant that the defence did not raise any concerns with the adequacy of the summary of the layman witnesses’ evidence after the charge was delivered. In addition, concerns about omissions are tempered by the fact that the trial judge prefaced his summary by telling the jury they were to rely on their own recollections of the evidence in deciding the case and the fact that he repeatedly told them they were to consider the whole of the evidence in deciding whether D possessed the requisite intent. [56‑57] [76] [78] [80]
The trial judge summarized the expert evidence properly. Trial judges need only summarize and present to the jury what was clearly stated by the expert witness, nothing more. It is dangerous and in most cases inappropriate for trial judges to interpret the evidence of experts for the jury. Here, the expert testified that there was a correlation between alcohol‑induced amnesia and a lack of judgment and assessment of appropriateness. For his testimony to be relevant to the central issue, he had to clearly convey that someone in D’s state could not foresee the consequences of his actions. As he failed to do so, his testimony was not particularly helpful. The trial judge has the discretion to seek to clarify an expert testimony by posing further questions, but he is under no obligation to do so. It is the role of the parties to lead evidence and not that of the trial judge. Appellate courts should not attempt to fill in the gaps or make inferences that end up changing the evidence that the jury is to consider. [83] [87-89]
The trial judge did not mislead the jury with respect to the significance of alcoholic amnesia. Not all elements of the theory the defence sought to put forward were established on the evidence. Most importantly, the link between loss of the capacity for judgment and evaluation of appropriateness and loss of the ability to foresee the consequences of one’s action was never clearly addressed in the testimony of the expert. Without this link, it was acceptable for the trial judge to stipulate that amnesia is not a defence. [90‑92]
The trial judge did not give to the jury the impression that, if D was capable of voluntary action, his defence of intoxication was no longer relevant. The evidence that detracted or contradicted D’s alleged advanced degree of drunkenness was relevant to the issue of whether D was so intoxicated that he could not foresee the likely consequences of his action because it showed that D did these activities with apparent desire to come to a logical end. [93‑95]
It is recommended that a one‑step charge focusing only on whether the accused possessed actual intent be used in all future charges on intoxication. It is more problematic than beneficial to leave the door open for the possibility of giving a two‑step charge to the jurors, first instructing them on capacity to form the requisite intent, and then saying to them that if they find beyond a reasonable doubt that the accused possessed the capacity to form the requisite intent, they must still go on to determine whether the accused possessed the actual intent. No injustice is caused to the accused by only instructing the jury to consider actual intent. [97] [101‑102]
The trial judge did sufficient efforts to prevent the jury from readily applying the common sense inference. So long as the members of the jury are instructed that they are not bound to draw the common sense inference, particularly in light of the evidence of intoxication, there is nothing objectionable about instructions on the common sense inference. [103‑104]
There was no obligation on the trial judge to give a specific instruction linking the credibility of D with reasonable doubt, since this caution is mandatory only in cases where credibility is a central or significant issue and credibility was not in issue in this case. [106]
Per Binnie, LeBel, Fish and Charron JJ. (dissenting): The law presumes the collective wisdom and intelligence of the jurors but makes no assumption as to their knowledge of the legal principles they are bound to apply. Nor does the law assume that jurors will appreciate on their own the legal significance of the evidence they have heard. That is why appropriate instructions are and must be given by the trial judge. Unfortunately, in this case, the trial judge’s charge conveyed to the jury an inadequate and incomplete understanding of the issues it was required to consider in reaching its verdict. Brevity is no virtue where the charge lacks clear direction as to the issues, or fails to relate the issues to the material facts, or neglects to summarize the respective positions of the parties or to draw the jury’s attention clearly and fairly to the specific evidence that supports either position. That was the case here. [120] [130] [139]
The decisive question was whether the jury was satisfied beyond a reasonable doubt that D, drunk as he was, either meant to cause M’s death or meant to cause her bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not. It was fatal to the trial judge’s charge that it included no mention at all of D’s position that he lacked the requisite mens rea to commit murder because his extreme intoxication rendered him incapable of foreseeing the consequences of his actions. Nowhere did the trial judge draw the jury’s attention, however summarily, to the evidence capable of supporting that position. Nowhere in the “decision tree” he remitted to the jury is there any reference at all to D’s state of intoxication or its effect on the requirement of foresight that was an essential element of the charge. His references to the evidence were limited to discrediting D’s defence. [110] [126] [128]
When intoxication has been put to the jury as a defence to a murder charge under s. 229 (a)(ii) of the Criminal Code , it is insufficient for the jury to be told, in general terms, that alcohol may affect intention. There is no particular phrase that must be used, but a more specific instruction is mandatory to ensure that the jury understands the impact of intoxication on the foresight requirement under this provision. The jurors were never told that extreme intoxication was a defence to the charge of murder if it raised in their minds a reasonable doubt as to whether D appreciated that his assaultive behaviour was likely to cause the death of his partner, and that if D failed to realize that, on account of his extreme intoxication, he necessarily lacked the culpable intent that was an essential element of the murder charge. It was also fatal to the trial judge’s charge that it failed to adequately explain the link between an intoxication defence and the common sense inference that if a sane and sober person acts in a way that has predictable consequences that person usually intends, or means to intend, to cause those consequences. [133] [135‑137] [140‑142]
The trial judge’s review of the critical evidence as to the degree of D’s intoxication was incomplete and unbalanced. He failed to mention significant evidence that was favourable to D, capable of supporting his defence and entirely uncontradicted. Most importantly, he dealt summarily and dismissively with the expert evidence as to the impact of alcoholic consumption on behaviour and he did not relate this evidence at all to the question of whether D had the requisite mens rea for murder, more specifically, whether he knew that death was a likely consequence of his actions. Yet, the point of the expert’s testimony was precisely to convey his opinion that extremely intoxicated persons cannot judge the consequences of their actions. And if one cannot judge the consequences, one cannot foresee them. There was no need for the trial judge to interpret the expert testimony. He was simply required to draw the jury’s attention to it, since it related manifestly to the central issue in the case. Even if the expert testimony was not as clear as it might have been, its interpretation proposed by the defence was plausible at the very least and ought to have been put to the jury because, if accepted by the jury, it was capable of raising a reasonable doubt as to D’s foresight of the consequences of his acts. The judge’s duty to direct the jury’s attention to significant evidence capable of supporting a defence extends to any defence raised by the record, whether advanced by the accused or not. [122] [143‑147] [151] [154] [156] [159]
The trial judge’s statement that “[a]mnesia, while it may reflect extreme drunkenness, is not a defence” may well have confused the jurors as to the importance they could properly attach to the expert testimony. The expert did not testify about the legal consequences of amnesia, but rather about the relationship between alcohol‑induced amnesia and the defence of intoxication advanced by D. At the very least, it was the trial judge’s duty to remind the jury of the expert opinion that amnesia reflects a degree of extreme drunkenness that seriously impairs and perhaps destroys one’s ability to make appropriate judgments. [161] [163]
Cases Cited
By Bastarache J.
Referred to: R. v. MacKinlay (1986), 28 C.C.C. (3d) 306; R. v. Canute (1993), 80 C.C.C. (3d) 403; R. v. Jacquard, [1997] 1 S.C.R. 314; Director of Public Prosecutions v. Beard, [1920] A.C. 479; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. George, [1960] S.C.R. 871; Leary v. The Queen, [1978] 1 S.C.R. 29; R. v. Daviault, [1994] 3 S.C.R. 63; R. v. Stone, [1999] 2 S.C.R. 290; R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Seymour, [1996] 2 S.C.R. 252; R. v. Berrigan (1998), 127 C.C.C. (3d) 120; R. v. Hannon (2001), 159 C.C.C. (3d) 86, 2001 BCCA 566; R. v. Simpson (1999), 125 B.C.A.C. 44, 1999 BCCA 310; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. Demeter (1975), 25 C.C.C. (2d) 417, aff’d [1978] 1 S.C.R. 538; Young v. The Queen, [1981] 2 S.C.R. 39; Thériault v. The Queen, [1981] 1 S.C.R. 336; R. v. Girard (1996), 109 C.C.C. (3d) 545; R. v. Jack (1993), 88 Man. R. (2d) 93, aff’d [1994] 2 S.C.R. 310; R. v. Collins (1907), 38 N.B.R. 218; Cooper v. The Queen, [1980] 1 S.C.R. 1149; R. v. Tipewan, [1998] S.J. No. 681 (QL); R. v. Lemky, [1996] 1 S.C.R. 757; R. v. Courtereille (2001), 40 C.R. (5th) 338; R. v. W. (D.), [1991] 1 S.C.R. 742; R. v. Good (1998), 102 B.C.A.C. 177.
By Fish J. (dissenting)
Bray v. Ford, [1896] A.C. 44; Spencer v. Alaska Packers Association (1904), 35 S.C.R. 362; Azoulay v. The Queen, [1952] 2 S.C.R. 495; R. v. MacKay, [2005] 3 S.C.R. 607, 2005 SCC 75; Kelsey v. The Queen, [1953] 1 S.C.R. 220; R. v. Clayton‑Wright (1948), 33 Cr. App. R. 22; Pappajohn v. The Queen, [1980] 2 S.C.R. 120; Wu v. The King, [1934] S.C.R. 609; R. v. Seymour, [1996] 2 S.C.R. 252; R. v. Lemky, [1996] 1 S.C.R. 757; R. v. Robinson, [1996] 1 S.C.R. 683; R. v. Berrigan (1998), 127 C.C.C. (3d) 120; R. v. Hannon (2001), 159 C.C.C. (3d) 86, 2001 BCCA 566; R. v. Canute (1993), 80 C.C.C. (3d) 403.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (d).
Criminal Code, R.S.C. 1985, c. C‑46, ss. 33.1 , 229 , 691(1) (a).
Authors Cited
Canadian Criminal Procedure (Annotations), 1952, ed. by A. E. Popple. Toronto: Carswell, 1953.
Der, Balfour Q. H. The Jury — A Handbook of Law and Procedure. Toronto: Butterworths, 1989 (loose‑leaf updated September 2006, issue 23).
Ferguson, Gerry A., Michael R. Dambrot, and Elizabeth A. Bennett. CRIMJI: Canadian Criminal Jury Instructions, 4th ed. Vancouver: Continuing Legal Education Society of British Columbia, 2005 (loose‑leaf updated December 2006).
Granger, Christopher. The Criminal Jury Trial in Canada, 2nd ed. Scarborough, Ont.: Carswell, 1996.
Stuart, Don. Canadian Criminal Law: A Treatise, 4th ed. Scarborough, Ont.: Carswell, 2001.
Watt, David. Watt’s Manual of Criminal Jury Instructions. Toronto: Carswell, 2005.
APPEAL from a judgment of the Saskatchewan Court of Appeal (Vancise, Gerwing and Smith JJ.A.) (2006), 285 Sask. R. 225, [2006] 11 W.W.R. 1, 212 C.C.C. (3d) 290, [2006] S.J. No. 529 (QL), 2006 SKCA 91, affirming the accused’s conviction. Appeal dismissed, Binnie, LeBel, Fish and Charron JJ. dissenting.
Hersh E. Wolch, Q.C., for the appellant.
Anthony B. Gerein, for the respondent.
The judgment of McLachlin C.J. and Bastarache, Deschamps, Abella and Rothstein JJ. was delivered by
Bastarache J. —
1. Introduction
[1] On the evening of April 23, 2004, Wayne Daley and his common-law wife, Teanda Manchur, went out partying. They had drinks at a friend’s house and then they went bowling with their friends. The couple and most of the others then went to a local bar, drank until it closed and finally returned to the couple’s home around 4 a.m. After more drinking and socializing in the couple’s garage, Mr. Daley and a friend rode off on motorcycles in search of another party. Mr. Daley returned around five in the morning. The house was locked and neighbours heard him cursing and trying to get into the house and his vehicles which were parked around the house. The next morning, Ms. Manchur, was found by her sister‑in‑law lying in a pool of blood in the kitchen and dining area of the house, dead from a stab wound and naked from the waist down. Mr. Daley was found drunk in a bedroom. He was charged with first degree murder.
[2] Mr. Daley was tried before judge and jury. His trial lasted a total of seven days. At trial, the appellant claimed that due to his alcohol consumption on the night of April 23 to 24, 2004, he was unable to remember the events that took place after he arrived home at 5 a.m. An expert witness was called by the defence and testified about the effect of alcohol consumption on judgment and brain function. The Crown called 19 witnesses, including the attending emergency and police officials on the scene on the morning of April 24, 2004, forensic experts, and persons who had either been with, seen or heard Mr. Daley on the evening of April 23, 2004, or in the early morning hours of April 24, 2004. After five days of hearing evidence, the jury was instructed by the trial judge on May 9, 2005, and they returned a verdict of guilty of second degree murder on May 10, 2005.
[3] Mr. Daley appealed to the Saskatchewan Court of Appeal. He claimed that the trial judge did not adequately instruct the jury on the concept of proof beyond a reasonable doubt, including credibility, on the defence of drunkenness, and on the degree of culpability and possible verdicts, and that he erred in failing to leave with the jury the ability to find that someone other than the appellant had caused the death of the victim. His conviction was upheld by Vancise J.A. (Gerwing J.A. concurring). Smith J.A. dissented. She would have allowed the appeal and ordered a new trial on the ground that the trial judge improperly instructed the jury on the defence of drunkenness.
[4] This appeal comes before this Court as of right pursuant to s. 691(1) (a) of the Criminal Code, R.S.C. 1985, c. C‑46 , on the grounds that there was a dissent in the Court of Appeal on a question of law only. A number of deficiencies with the charge on the defence of drunkenness were raised by the dissenting judge. By and large, however, the essence of Smith J.A.’s dissent lies in a disagreement with the majority about the nature and significance of the testimony of the defence expert, Dr. Richardson. This is arguably a disagreement on a question of fact, at worst, or at best, on a question of mixed fact and law. That disagreement led to vastly different conclusions by the majority and dissent as to the proper application of the rules regarding the trial judge’s duty to relate the evidence to the law in jury instructions. In my view, the disagreement between the majority and dissent in the Court of Appeal over the nature and significance of the expert evidence was so crucial to Smith J.A.’s dissent that it raises the question as to whether there was in fact a dissent on a question of law. It seems to me that had there been no disagreement on the substance of Dr. Richardson’s evidence, no error would have been found against the trial judge in relating the evidence to the law. If there is a question of law in this case, it must be the extent to which the trial judge must review and interpret evidence presented at trial, in particular expert evidence, for the jury. In this respect, I find that Smith J.A. imposed a greater obligation on the trial judge than the law demands, and in fact exceeded the bounds of appellate review by reading into Dr. Richardson’s testimony evidence that clearly was not there; this is what led her, erroneously in my view, to find fault with the trial judge’s instructions.
2. Facts
[5] On April 23, 2004, the appellant and Teanda Manchur went out for the evening. One of their children was visiting at a nearby lake while the other was spending a night with the appellant’s sister. They went to the home of Tyler Sanjenko and his partner Amanda Weger, friends of the appellant, around 9:30 p.m. Present were Amanda’s sister, Larry Hubick and his wife Chantel Huel. The group socialized and drank until about 10:15 p.m., when they went bowling. They bowled and drank at the bowling alley until about midnight. Most of the group then went to the Crown and Hand bar in the neighbourhood. They drank until the bar closed at 3:30 a.m. The group then went back to Tyler Sanjenko’s home to pick up some alcohol and continued on to the home of the appellant and Teanda Manchur. They arrived prior to 4 a.m. and spent the next while drinking, looking at the appellant’s motorcycles in his garage and touring his house.
[6] At about 4 a.m., Larry Hubick and Chantel Huel left to go to a house party on Winnipeg Street. When they left, Teanda Manchur was in the house dancing by herself to music which was playing on the computer.
[7] The appellant and Tyler Sanjenko decided to follow Larry Hubick and his wife on two of the appellant’s motorcycles. According to the testimony of Tyler Sanjenko, the appellant seemed to ride fine at first but then began weaving. He was nonetheless able to reach the home of a friend, James Beamish, go inside, have a brief visit and a beer. Mr. Beamish testified to the appellant being “pretty intoxicated”. He testified that the appellant had difficulty keeping his balance, stumbled up the stairs and had to hold onto a counter to hold himself up, and had slurred speech. On departing, the appellant put his helmet on backwards and had difficulty putting on his boots. However, upon leaving his friend’s house, he was able to back his bike out of the driveway and catch up with Larry Hubick at or near the party location. On the way there, however, the appellant crashed his motorcycle while travelling about five miles an hour and suffered some minor bumps and scrapes; he needed help to pick up his bike. Discovering there was no party, the Hubicks went home and the appellant and Tyler Sanjenko went back to the appellant’s house. The appellant dropped his motorcycle again outside his garage.
[8] Tyler Sanjenko parked the motorcycles and then discovered the appellant urinating against the neighbour’s fence. The appellant appeared to have difficulty getting his pants up afterwards and walked around with them down. Mr. Sanjenko described the appellant as being “pretty out of it” at this point, but the two of them were still able to talk for several minutes about their plans for the next day to attend a car show together. Following this, Tyler Sanjenko left the appellant at the door of his house and went home.
[9] After Tyler Sanjenko left, the appellant showed up across the street at the home of his new neighbour, James Clarke. Evidently intoxicated and unsteady on his feet, he woke up his neighbour and welcomed him to the neighbourhood. He was obviously drunk and went up and down the stairs a few times repeating the greetings and then stumbled away.
[10] Other neighbours observed the appellant. Mr. Jack Mohr was awakened by the motorcycles returning and after that heard the appellant yell “Let me in, you fuckin’ bitch.” Mrs. Mohr was awake reading and saw the appellant outside, apparently trying to get into his home, around 5 a.m. She heard him yelling the same phrase about five times. She also observed the appellant unsuccessfully trying to get in each of his four vehicles outside the house. She described the appellant as appearing “really intoxicated” and witnessed him fall once during this time. She then went back to her reading.
[11] The appellant’s sister testified that she arrived at the appellant’s home around 7:30 or 7:40 on the morning of the 24th of April with the children and discovered Teanda dead in the dining room area. The victim’s shirt was pushed up to just below her breasts, she had no clothing on her lower body, her legs were spread and her knees were up. The appellant’s sister put a towel over her. She followed a trail of blood leading from where she found the body to the bathroom and found the appellant down the hall in a bedroom smelling of alcohol and unresponsive.
[12] The appellant’s sister phoned her father, who arrived shortly thereafter. Her father checked to see if the victim was breathing and concluded she was not. He testified he tried to wake the appellant who reeked of alcohol, but was unable to waken him. He testified that he feared his son was dead. He asked a friend who had come with him to the appellant’s house to phone for help.
[13] Paramedics arrived and confirmed the victim was dead. They observed the appellant’s father to be walking back and forth through the blood trail. One of the paramedics heard the appellant and his father talking in the bedroom while she and her partner worked on the victim. The other paramedic observed two knives with broken blades in the living room.
[14] One of the paramedics, Ms. Ackles, went to check on the appellant. She found him lying on the bed staring at the ceiling while partly covered by a blanket. He appeared nude. She saw blood on him, and on the bedding, and asked if he was hurt. She testified that she believed the appellant said he “was only mentally injured”.
[15] The police arrived at about 7:50 a.m. Constable Decterow made observations similar to the paramedic regarding the deceased and the blood trail. She saw a broken knife in the living room. She found the appellant intoxicated, but awake, in the back bedroom, staring at the ceiling. After some mumbled conversation during which the appellant identified himself and told her he was not hurt, Constable Decterow arrested him for murder. The appellant made the following statement which was admitted as a voluntary statement at the trial:
He said, “Teanda and I were fighting but I didn’t hurt her.” I asked, “Who did?” Mr. Daley said, “Whoever jumped in.” He then said, “I’m sorry,” and I asked, “What are you sorry about?” Mr. Daley said, “I’ll take [the] guilt over it. I’ll take the blame.” I asked, “Why?” His response was, “Why not?” Mr. Daley then said, “Sorry about that.” I asked, “What are you sorry about?” Mr. Daley said, “Well, fuck, fighting with her. It’s just beyond bullshit. You get in a fight and it’s beyond bullshit. You have kids, you know.” I asked, “Were you fighting about the kids?” And he gave no response and at that point that was the end of the exchange. [A.R., at p. 129]
After making this statement, the appellant asked the police several times if his wife was o.k. and if she could bail him out. He was also described as reacting with surprise to later hearing that his wife was dead.
[16] An autopsy was performed on Teanda which revealed that she had suffered a two-centimeter-deep stab wound to the back of her leg. There was a corresponding hole in her blood-covered jeans that were found elsewhere in the house. That wound was not fatal. Teanda died from blood lost as a result of a second stab wound located on her right side some 21 centimetres deep between the ninth and tenth rib, angling downwards through her lung and liver. Death likely would have come within a half hour although prompt medical attention could have saved her.
[17] The appellant testified and denied any memory of the events after arriving home at around 5 a.m. He essentially confirmed the events of the evening as testified to by others up to the point of arriving at his home for the first time around 4 a.m. After that he testified things became a little bit hazy. He does not remember taking his motorcycle out of the garage but does remember starting it in the alley. He stated he does not remember the ride to his friend James Beamish’s residence on the other side of the city except for falling off his motorcycle. The next thing he remembers is going into the police cells. He has no recollection of going home or interacting with his neighbour Mr. Clarke. Mr. Daley claimed he is only an occasional drinker who avoided hard liquor. The estimates of his consumption range from 30 drinks of alcohol (Tyler Sanjenko) to between 36 and 40 (the appellant) to 49 ounces (Larry Hubick) consisting mostly of whiskey. He was given a breathalyzer test at 11:54 a.m. on April 24 and tested 0.10. At 12:13 p.m. he tested 0.09. He does not remember speaking to or giving a statement to the police officer.
[18] Dr. Richardson, a pharmacologist, testified for the defence as an expert on the effects of beverage alcohol on the human body, brain functioning and behaviour. He testified that some brain cells, such as those responsible for judgment and evaluation of appropriateness, are more sensitive to alcohol than others:
The brain – the brain cells responsible for differing functions in our – in our brains have differing sensitivity to being disrupted by any outside force. The – some cells continue to function at their normal fashion as other cells have been shut down. The – for reasons that neuroscience has not yet discovered, the brain cells in the parts of the brain that are responsible for judgement and the evaluation of appropriateness of behaviours and thoughts are more sensitive to depression by – or disruption by forces such as beverage alcohol or many therapeutic drugs, alterations in a person’s amount of water in their body that change the chemical nature or chemical environment of these cells. A variety of factors will alter the functioning of these brain cells involved in judgement and evaluation of appropriateness at – while brain cells involved in other functions continue to function normally. [Emphasis added; A.R., at pp. 419-20.]
He also testified that one can lose memory and judgment due to high ingestion of alcohol, but still be able to form ideas and carry out complex tasks, describing such a person as being in a state of “alcoholic amnesia”:
A: So as blood alcohol level increases then the disruption of brain function of the cell – activity of the cells increase as increasing amount of blood alcohol levels.
Q: In consuming or ingesting alcohol can you reach a point where these cells that are responsible for memory shut down?
A: Yes. The – there is a concentration of beverage alcohol or any other depressant drug that will completely shut down the functioning of all excitable – all cells that – that have the excitable characteristics, that the judgement evaluation cells being more sensitive to being shut down than other cells in the brain. These are the cells that are shut down at a lower blood alcohol concentration than that needed to shut down the functioning of the – the cells responsible for movement.
Q: What you’re saying is that the cells responsible for memory or the cells that are responsible for a person’s judgement can shut down but the person can still function such as walk or talk or move. Is that –
A: Yes, that’s right. There is – and this particular threshold concentration of blood alcohol level differs among different people but there is a concentration that will shut down the judgement and evaluation neurons but only impair the movement and sensory processing neurons. A person is still able to walk and talk and answer questions and move about and come up with ideas and carry out fairly complex behaviours but be doing it in the absence of judgement.
Q: These cells that shut down, are they – are they responsible for transmitting long or short‑term memory or –
A: That – that’s another function of the – these neurons. There are, well, roughly two – two types of memory. One is referred to as short‑term memory and that is up to about 30 minutes, things that are kept in mind for about 30 minutes are referred to as short‑term memory. That’s the – the first memory store. Information that’s in short‑term memory that the judgement and evaluation of appropriateness neurons deem important enough to use up long‑term memory storage is then transferred into long‑term memory storage. The short‑term memory primarily is located in part of the brain called the Hippocampus. Long‑term memory we don’t know where it is specifically. Long‑term memory is still a mystery what the mechanism of that. But the same cells that are [in]volved in the judgement and appropriate – the evaluation of appropriateness of behaviours, thoughts and ideas are also involved in this transfer from short‑term memory into long‑term memory. Information that is not transferred from short‑term into long‑term memory then is forgotten, is – is lost.
Q: It’s lost. Now, you indicated that – that the judgement or evaluation by these cells being impaired becomes more acute as the level of alcohol rises in the system. You indicated that it can reach a point where these neurons will shut down. What, if anything, does that do with respect to the capability of an individual to determine appropriate behaviour, does it have any effect on it?
A: Yes, it does. As blood alcohol level increases, the judgement cells are disrupted and at first then the person is still capable of judgement but it’s not the clear, appropriate judgement that they would [have] if they didn’t have any alcohol, so they have faulty judgement, up to a threshold blood alcohol concentration again which differs for each person at which time the blood – alcohol completely shuts down these judging and appropriateness neurons and the person then does not have – the ability to judge is just gone. At this stage then also the ability – the ability of that person’s brain to transfer information from short‑term memory into long‑term memory, that is also gone. So the person would then have amnesia for things that happened once the blood alcohol level got above this particular threshold.
Q: The person that reaches this threshold where these cells shut down, can he or she determine the appropriateness of – of his or her behaviour or activities?
A: No, the – the – the cells are just not functioning whatsoever.
Q: I see. Now, you indicated that this can occur in the system and – and a person can reach a point where these cells will shut down where they’re not capable of determining appropriate behaviour, they can’t figure out what is or isn’t appropriate in a particular circumstance but they can still walk and talk. Is that correct?
A: Yes, that’s right.
Q: And –
A: Their – their – their – their ability to walk and talk would be impaired, it wouldn’t be normal –
Q: Sure.
A: – walking and talking, but they’re still – the brain cells that are involved responsible for motor activity, for verbalization, for idea generation, for following instructions, these cells are still able to work. They’re not working normally but they’re still able to carry out their – their – their duties.
Q: Now, you indicated that a person can reach the stage of – of what you referred to as alcoholic amnesia. And what is alcoholic amnesia?
A: