COURT OF APPEAL FOR BRITISH COLUMBIA
R. v. Giroux,
2007 BCCA 488
Dockets: CA032092; CA032379
Gordon Bryan Giroux
Danial Alexander Courtoreille
AN ORDER HAS BEEN MADE IN THIS CASE PROHIBITING PUBLICATION OF ANY INFORMATION THAT COULD DISCLOSE THE IDENTITY OF A JUSTICE SYSTEM PARTICIPANT PURSUANT TO SECTION 486.5(2) OF THE CRIMINAL CODE
The Honourable Madam Justice Newbury
The Honourable Mr. Justice Mackenzie
The Honourable Mr. Justice Chiasson
Counsel for the Appellant, Giroux
Counsel for the Appellant, Courtoreille
W. Rubin and E. Campbell
Counsel for the Respondent
Place and Date of Hearing:
Vancouver, British Columbia
28 March 2007
Place and Date of Judgment:
Vancouver, British Columbia
11 October 2007
Written Reasons by:
The Honourable Mr. Justice Chiasson
Concurred in by:
The Honourable Mr. Justice Mackenzie
Written Reasons Concurring in the result by:
The Honourable Madam Justice Newbury (p. 30, para. 88)
Reasons for Judgment of the Honourable Mr. Justice Chiasson:
 After many hours drinking and taking drugs, the appellants and the deceased had an altercation in a house where the appellants were staying. In the course of the fight that ensued, the appellant, Danial Courtoreille, stabbed the deceased, Brandon Christopherson, in the neck with scissors causing his death. Shortly thereafter, the appellant, Gordon Giroux, went to the home of Clayton Rudkvist and demanded that he return to the house to assist with clean-up. Mr. Rudkvist did so.
 While the premises were being cleaned, Mr. Courtoreille and Mr. Giroux took the body of the deceased into the bathroom and, with an axe, Mr. Courtoreille dismembered it, showing various parts to others and feeding parts to his dog. The appellants then put the body parts into various containers and disposed of them, some in dumpsters in the town and others in the woods as the appellants travelled to Alberta.
 At trial, Mr. Courtoreille admitted that had he stabbed the deceased, but contended that he was guilty of manslaughter, not murder. He asserted the Crown had not proven his intention to kill because of his intoxication by alcohol and drugs. Mr. Giroux said that he should be found not guilty because Mr. Courtoreille, not Mr. Giroux, killed the deceased or, alternatively, he also should be found guilty only of manslaughter, not murder, by reason of his intoxication.
 Mr. Justice Parrett convicted the appellants of second degree murder. His reasons are found at 2004 BCSC 946.
The trial judgment
 In para. 10 of his reasons, the trial judge identified and discussed five elements of the offence of second degree murder the Crown was required to prove. As the trial proceeded, a number of issues were resolved and, as stated by the trial judge, “[w]hat remain[ed] to be considered [was] the evidence of how . . . death occurred, who participated in it and the critical issue of the requisite intent”. (Para. 15.)
 Mr. Rudkvist, who had known the appellants for many years and Peter Wiebe, Mr. Courtoreille’s half-brother, testified concerning events immediately and shortly after the killing. The trial judge reviewed their evidence. He noted in para. 52 that Mr. Rudkvist had given some inconsistent statements, noted in para. 63 that Mr. Wiebe had been mistaken on some points and concluded in para. 66:
I found both Clayton Rudkvist and Peter Wiebe candid and forthright giving responsive and careful answers to the questions put to them. I have little doubt that the traumatic events of that night and the well known difficulties that may occur in the case of eye witness testimony accounts for some errors and variations in their evidence but I accept their evidence as being generally truthful and accurate as to the events of the early morning of April 15, 2002.
 The judge also stated “substantial portions of what these two witnesses described in their evidence [are] verified by other evidence as well as physical evidence developed during the course of the police investigation”. (Para. 68.)
 Noting that both appellants had testified, the trial judge stated the requirements for considering credibility and referred to R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), as well as this Court’s judgment in R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.). In summary, he concluded:
· if the appellants were believed, they must be acquitted;
· if the evidence of the appellants were not believed, but the judge was left with a reasonable doubt by it, the appellants must be acquitted;
· even if there were no doubt based on the evidence of the appellants, the judge must ask whether, on evidence he does accept, he is convinced of guilt beyond a reasonable doubt;
· if the judge were unable to decide whom to believe, he must acquit the appellants.
 The trial judge stated that these rules generally apply where an accused denies the accusation of the Crown, but "[w]here . . .there is not a straight denial but a more oblique approach the application is more complex and less direct”. (Para. 72.) Noting that on the basis of a lack of recollection due to intoxication, Mr. Giroux did not deny most of the Crown’s allegations the judge said in paras. 74 and 75:
It is possible in these circumstances to believe the accused without that belief leading directly to an acquittal. In such circumstances, while keeping in mind the chain of reasoning reflected in these authorities, one must carefully consider the evidence as a whole and whether on the whole of that evidence a reasonable doubt exists.
It is for the court to assess the accused’s condition at the time of the alleged offence on the whole of the evidence. It is not the accused’s memory or lack of it which determines that issue even if believed.
 The trial judge canvassed a considerable amount of the evidence given by the appellants. He concluded that they remembered selectively to assist their defence of intoxication. (Para. 82.)
 After listing a number of specific examples of his evidence, in para. 91 the trial judge said that Mr. Courtoreille’s responses were not credible and indicated manipulation and fabrication. Similarly, he found that Mr. Giroux "used his lack of recall to try and advance his interests" (Para. 96) and discussed examples from Mr. Giroux 's evidence in which his evidence in-chief and the recollection of events changed on cross-examination.
 In para. 97, the trial judge concluded, “beyond doubt”, that after the deceased was killed, the appellants followed a course of action to cover up the events and destroyed or sought to destroy evidence “for the purpose of evading detection and avoiding criminal responsibility”. He held that they were still trying to do so at trial and stated “I don’t believe either of them”. (Para. 99.)
 In para. 100, the trial judge articulated the issue as “not how [the appellants] were or appeared after the killing or after dismembering the body, but at the time of the killing”.
 After referring to the evidence of witnesses who had observed the appellants before the deceased was killed, the trial judge said: “[t]hese observations are to some extent inconsistent with the evidence of the accused about their state of sobriety”. (Para. 101.)
 In para. 102, the trial judge stated: “[i]t is . . . their actions after the killing which indicate purposeful and directed activity. It is also their conversations, reported by Clayton Rudkvist, which establishes clear awareness and, in my view, the necessary specific intent”.
 Turning specifically to Mr. Giroux and his statement to Mr. Rudkvist of what he said to the deceased after the stabbing – “Fuck you, we just stabbed you and you’re not going anywhere” – the trial judge said the statement was clear and unambiguous. In para. 103 he concluded that this constituted “an admission by [G] of his involvement, establishing both participation with the meaning of s. 21(1)(b) and (c) and the requisite intent”.
Positions of the parties
 The appellant Mr. Courtoreille seeks an order quashing his conviction and a new trial. He asserts: “[t]he learned trial judge misapprehended substantive, material evidence on the issue of intoxication”. At the hearing of the appeal, counsel introduced a new ground of appeal, namely, the trial judge erred when he used post-offence conduct to infer Mr. Courtoreille had the specific intent to kill. The Crown did not oppose the introduction of the new ground, but was given time to consider whether to deliver material in response. Ultimately, the Crown decided not to do so.
 The appellant Mr. Giroux seeks an order that his conviction be quashed and replaced with a conviction for manslaughter or that his conviction be quashed and a new trial ordered. He advances a number of issues.
a. Did the learned trial judge err by determining the Appellant’s intent without due regard to reliable evidence of intoxication materially prior and subsequent to the killing at bar?
b. Did the learned trial judge err by assessing the Appellant’s credibility on the basis of misapprehensions of evidence?
c. Did the learned trial judge err by failing to provide sufficient reasons for his conclusion about the Appellant’s credibility?
d. Did the learned trial judge err by categorically treating the Appellant’s poor memory as manipulative and not consistent with an intoxication defence?
e. Did the learned trial judge err by misstating the first branch of the R. v. W.(D.) credibility instruction?
 In argument, counsel for Mr. Giroux combined issues c, d, e, and adopted the issue related to post-offence conduct raised by Mr. Courtoreille. He also stated that his focus would be on the second branch of the test in R. v. W.(D.).
 The Crown asserts that Mr. Courtoreille was the principal cause of the death of the deceased and that Mr. Giroux is a party to the offence by providing assistance and encouragement in accordance with s. 21(1)(b) and (c) of the Criminal Code, R.S.C. 1985, c. C-46, that is, Mr. Giroux aided and abetted the killing of the deceased. The Crown contends that the trial judge did not misapprehend the evidence, that his reasons are appropriate and that he correctly applied the law to the facts in determining that the appellants had the requisite intent.
Misapprehension and improper consideration of the evidence
 Both appellants anchor their assertions that the judge misapprehended the evidence on R. v. Morrissey (1995), 97 C.C.C. (3d) 193 (Ont. C.A.). In that case, Doherty J.A. stated at p. 221 that any error involving a misapprehension of evidence “must be assessed by reference to its impact on the fairness of the trial”. He noted further:
. . . Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction . . .the accused’s conviction is not based exclusively on the evidence and is not a "true" verdict.
 Morrissey provides additional guidance at p. 204:
. . . it is wrong to analyze a trial judge’s reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole.
. . .
. . . where the result turns on fact-finding and not on the application of contested legal principles, it is appropriate that the reasons should focus on telling the parties what evidence was believed and why it was believed.
A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road-map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by a trial judge in reaching a verdict.
 Mr. Giroux also refers to R. v. Gagnon, 2006 SCC 17;  1 S.C.R. 621 and R. v. Burns (1994), 89 C.C.C. (3d) 193 (S.C.C.)—two cases dealing with the issue of sufficiency of reasons—and links those cases to the discussion in Morrissey regarding the quality of a judge’s reasons.
 In Burns, McLachlin J., as she then was, stated at pp. 198 -199:
. . . the Court of Appeal is entitled to review the evidence, re- examining it and reweighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it . . . Provided this threshold test is met, the Court of Appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.
 In Gagnon, the Court addressed “what constitutes sufficient reasons from a trial judge”. Referring to Burns, the Court stated in para.12:
. . . the failure of a trial judge to expressly indicate that he or she had taken all relevant considerations into account in arriving at a verdict was not a basis for allowing an appeal where the record revealed no error in the appreciation of the evidence or applicable law.
 The Court emphasized that a core consideration was whether reasons allow an appeal court to review the trial decision and gave these admonitions in paras. 19:
. . . A trial judge’s language must be reviewed not only with care, but also in context. Most language is amenable to multiple interpretations and characterizations. But appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons taken, as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components.
 In light of these statements of the law, I turn to consider the positions of the appellants.
 Mr. Courtoreille asserts that the trial judge made three “misapprehension errors”.
 First, counsel notes that “a failure to consider evidence relevant to a material issue” is a misapprehension of evidence (Morrissey, at 218 and R. v. Loher, 2004 SCC 80, 3 S.C.R. 732, at para. 2). Referring to Rudkvist’s evidence that Mr. Courtoreille smelled of alcohol, may have taken drugs and that he appeared “possessed”, Mr. Courtoreille contends that the trial judge “failed to consider Rudkvist’s evidence of how [Mr. Courtoreille] appeared”.
 In paras. 54 and 55 the trial judge stated:
As his cross-examination continued, [Rudkvist] agreed that [Courtoreille] appeared to him in the time leading up to these events to be using drugs more heavily than Giroux. He agreed that his impression, when he saw them in the house, was that they were both "possessed" and that they were not themselves.
When [Rudkvist] first saw [Courtoreille] in the house he was in the living room and covered in blood. He agreed that he described him at times as "high as a kite" and as "tripping out". He described [Courtoreille’s] laugh as a "deep evil laugh" that he had never heard from him before.
From this, it is clear that the judge did not fail to consider the evidence to which Mr. Courtoreille refers.
 The second misapprehension asserted by Mr. Courtoreille is that the trial judge failed to consider the evidence of an undercover police officer to whom Mr. Courtoreille made comments concerning his state of intoxication. Mr. Courtoreille refers to the officer’s evidence that Mr. Courtoreille told him “he was highly intoxicated when he committed the murder”; he described the drugs he had taken and referred to his recurring nightmares about the event. Although the trial judge did not refer to this evidence specifically, he was well aware of the evidence of the undercover officer. The judge referred to it in paras. 21, 88, 90 and 93 of his reasons.
 There is no question the trial judge was aware Mr. Courtoreille’s evidence was that he had consumed a considerable quantity of drugs and alcohol. In para. 99 he said:
I have no doubt that they had a good deal to drink on the evening in question and that over the course of the night they consumed some drugs.
 In para. 80 (1) - (10) the judge noted Mr. Courtoreille’s detailed evidence of what he had consumed and, for example, in paras. 54 and 55 referred to the evidence of Mr. Rudkvist concerning the state of intoxication of the appellants. The trial judge had no obligation to refer additionally to Mr. Courtoreille’s comments to the officer on this point.
 The third misapprehension advanced by Mr. Courtoreille is that the trial judge incorrectly stated that Mr. Courtoreille “’had no memory’ of the specific event (stabbing [the deceased])” when Mr. Courtoreille repeatedly testified that he stabbed the deceased. The assertion is made in the context of the judge’s description of Mr. Courtoreille in para. 92 “’as a person who had no memory of a specific event’ who ‘nevertheless is able to say that a specific version of those events did not occur’ [i.e., that [G] had not in fact stabbed [the deceased]”.
 Mr. Courtoreille advances this “misapprehension” divorced from its proper context. The trial judge’s reference to the fact that Mr. Giroux did not stab the deceased was made in the context of Mr. Courtoreille’s “evidence of a considerable lack of memory . . . he had no recollection of [G] striking any blows”. The judge noted in para. 72 that Mr. Courtoreille admitted to stabbing the deceased and in para. 87 referred to Mr. Courtoreille’s comment “after I’d stabbed [the deceased]".
 Mr. Courtoreille also asserts that the trial judge ignored his explanation for lying to the police officer – he was angry with Mr. Giroux and wanted to cast blame on him. He states in his factum:
To the extent that the learned trial Judge attributed [Courtoreille]'s change (from what he told the undercover officer to what he testified at trial) to ‘faulty memory’, he did so without considering [Courtoreille’s] evidence about his reasons for lying to the undercover officer.
 Mr. Courtoreille refers to the trial judge’s comments in para. 91:
These responses and many others found within the evidence of [Courtoreille] are simply not credible. They are not indicators of a faulty memory caused by drug and alcohol use but rather of manipulation and fabrication.
 As I read the trial judge’s reasons, the “responses” to which he is referring are those contained in paras. 83 – 90 wherein the judge gave examples of what he considered to be Mr. Courtoreille’s selective memory. That is, I do not read para. 91 as referring only to Mr. Courtoreille’s comments to the undercover police officer, but, even if they were, it was open to the judge to conclude that Mr. Courtoreille’s “responses” were not credible regardless of any explanation why he lied to the officer.
 An example noted by the trial judge in para. 89 is that Mr. Courtoreille said he did not know from where he got the scissors, but was able to say that it was not true that he got them from Mr. Giroux as he had advised the undercover police officer. Whether he lied to the officer because he was angry with Mr. Giroux has no bearing on the credibility of his evidence at trial where he said repeatedly that he had no recollection of events, but then stated, for example, that he knew he did not get the scissors from Mr. Giroux.
 In my view, the trial judge did not misapprehend the evidence on the issue of intoxication as asserted by Mr. Courtoreille. It is clear that he dealt appropriately with it. There is no basis for this Court to interfere and I would not accede to this ground of appeal advanced by Mr. Courtoreille.
 I now turn to Mr. Giroux’s assertion that the trial judge erred by assessing his credibility on the basis of a misapprehension of evidence. The essential contention of Mr. Giroux is that the judge was mistaken in examples of alleged changes to his evidence referred to in paras. 94 and 95. It is asserted that the judge’s only stated reasons for disbelieving Mr. Giroux were the examples given in these paragraphs.
 The Crown points to the evidence concerning the examples and to the submissions of counsel concerning them. I am satisfied that the trial judge was entitled to conclude, as he did, that the examples represented inconsistencies in the evidence of Mr. Giroux. More importantly, the examples are not the foundation on which the judge rested his conclusion that he did not believe Mr. Giroux. In paras. 76 and 82, he stated:
The evidence given by the two accused at this trial contains some inherent contradictions which I will touch on later, but the remarkable feature of that evidence is the extent to which both bodies of evidence, that of [Courtoreille] and that of [G] avoids virtually all discussion of any blows that caused harm to [the deceased] . . . what I consider remarkable is the way in which each body of evidence avoids describing virtually any contact with [the deceased] that could have harmed him. The sole exception is [Courtoreille's] admission that he stabbed [the deceased] . . .
I have examined with care the evidence given by both accused at this trial . . . while individual contradictions are important, the overall pattern of their evidence is far more important. This pattern is not simply one in which all inculpatory evidence is not recalled, although that certainly occurs to a large extent with both accused, it is also one where despite widespread lack of recall of evidence which might be harmful, they repeatedly recall details calculated to assist even when those recollections contradict other evidence they gave.
 In my view, Mr. Giroux’s submissions require this Court to parse the words of the trial judge and to focus on specific details rather than considering his overall reasons. This is contrary to the instruction of the Supreme Court in Gagnon (“The task is to assess the overall, common sense meaning, not to parse the individual linguistic components”. (Para. 19.) The Court in Gagnon also advised:
Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided . . . in H.L. that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected. (Para. 20.)
 The trial judge made it clear that he reached his conclusion on the appellants’ credibility considering the evidence as a whole. The appellants’ approach is to review miscellaneous components of the judge’s reasons and to attack individual and specific findings. A trial judge must take into account all of the evidence when considering whether an offence has been proven beyond a reasonable doubt. The judge in this case did so.
 I would not accede to Mr. Giroux’s ground of appeal that the trial judge misapprehended the evidence in assessing Mr. Giroux's credibility.
The trial judge’s approach to W.(D.)
 Mr. Giroux says it was an error for the trial judge to say that even if he were to believe the appellants, that is, believe their assertions that they had little recall of the events, this would not necessarily lead to an acquittal. Mr. Giroux also asserted at the hearing of the appeal that, in its factum, the Crown essentially agreed that this was an error.
 I do not read the Crown’s factum as doing so and did not understand the Crown to concede this point in argument. In its factum, the Crown asserts that even if the trial judge were to accept that Mr. Giroux did not “remember much of what occurred because of his intoxication [it] would not necessarily lead to his acquittal. For example, accepting Mr. Giroux’s lack of memory would not negate the possibility that he could have been a party to manslaughter”. The Crown also contends that the issue is moot because the trial judge did not believe Mr. Giroux, that is, the first branch of W.(D.) was not engaged. The appellants say that the judge’s alleged error remains relevant because they attack his appreciation of the evidence, that is, the basis on which he concluded that neither appellant was believable.
 In my view, the Crown’s first assertion is too narrow. I agree with the trial judge’s comments concerning the application of the first branch of W.(D.). Even if the judge were to have believed the appellants’ alleged lack of recall, acquittal on the charge of murder would not follow automatically. Their lack of recall was relevant to, but not determinative of, the defence of intoxication. The judge was obliged, as he did, to look at all of the relevant evidence. As he said in para. 74 “one must carefully consider the evidence as a whole and whether on the whole of that evidence a reasonable doubt exists”.
 Because the trial judge did not believe the appellants the first branch of W.(D.) was not engaged.
 The second branch of W.(D.) required the trial judge to consider whether he had a reasonable doubt even though he did not believe the appellants. In my view, the judge followed the appropriate process. The judge was well aware that he was obliged to consider whether he had a reasonable doubt based on the whole of the evidence. He looked at all of the relevant evidence, which included the testimony of witnesses concerning the conduct and condition of the appellants before and after the killing, their contemporaneous statements and their subsequent actions with and statements to undercover police.
 I would not accede to Mr. Giroux’s ground of appeal that concern the trial judge’s consideration of the evidence in the context of W.(D.).
Treatment of Mr. Giroux’s poor memory as not consistent with intoxication
 In his factum, Mr. Giroux states, “[t]he learned trial judge took the view that [G] somehow ‘used’ his poor memory of material events to ‘set up and advance a defence of intoxication’”. He then states referring to para. 75 of the reasons:
Such an observation clearly implies that, for the learned trial judge, [G] acquired a poor memory of material events sometime after they occurred. Indeed he observed that ‘[Giroux’s] memory or lack of it at trial’ was not necessarily determinative of ‘[Giroux’s] condition at the time of the alleged offence’.
 Mr. Giroux asserts that he never testified that his memory deteriorated and that the trial judge misapprehended his evidence.
 Mr. Giroux's first quotation is a slight variation on what the trial judge stated in para. 96. The full text of para. 75 is:
It is for the court to assess the accused’s condition at the time of the alleged offence on the whole of the evidence. It is not the accused’s memory or lack of it at trial which determines that issue even if believed.
 In para. 75, the trial judge was addressing the first branch of R. v. W.(D). In my view, in this passage the judge was not interpreting Mr. Giroux’s testimony, he was stating the effect of it, even if it were believed. Even if he were discussing its effect, he would have been entitled to conclude, as he did in the result, that he did not believe Mr. Giroux and, as he said in para. 96, Mr. Giroux was using his lack of recall to advance an intoxication defence.
 Mr. Giroux also refers to his testimony concerning the events of the night and Mr. Giroux’s condition at the time as supporting his defence of intoxication. The trial judge was entitled to accept or reject all or part of that evidence. At the end of the day, he decided that the evidence of the appellants at trial was a continuation of their efforts to avoid criminal responsibility and that he did not believe either of them. (Paras. 97 - 99.)
 I would not accede to this ground of appeal advanced by Mr. Giroux.
 It is clear that for an accused to be convicted of second degree murder, the Crown must prove beyond a reasonable doubt the existence of an intention to kill. The Crown was required to show the same degree of mens rea in Mr. Giroux’s case as was required for the principal actor, Mr. Courtoreille (R. v. Logan,  2 S.C.R. 731, 58 C.C.C. (3d) 391, and R. v. Kirkness,  3 S.C.R. 74, 60 C.C.C. (3d) 97). Relevant to proof of intention is the legal inference that a person intends the natural consequences of his or her actions. When an accused raises a defence of intoxication that has an air of reality, the Crown must prove beyond a reasonable doubt that the accused was capable of intending the natural consequences of his or her actions and that the accused did so.
 In R. v. Lemky,  1 S.C.R. 757, 105 C.C.C. (3d) 137, the Court provided guidance for this inquiry. Madam Justice McLachlin, as she then was, stated:
 . . . the ultimate issue is whether . . . beyond a reasonable doubt . . . the accused actually intended the consequence of his or her act. Beyond this, ritualistic formulae are misplaced. In many cases, the trial judge may find it useful to direct the jury to consider capacity as a preliminary step in the ultimate inquiry. In others, the trial judge may not. . . While the two-stage direction is sometimes helpful, a separate charge on capacity is not a legal requirement and its absence will not generally constitute reversible error. In the final analysis, the jury must (1) understand that the Crown must prove beyond a reasonable doubt that the accused, at the time of the offence actually foresaw the natural consequences of his or her act, i.e., the death of the victim, and (2) understood how the evidence in the case relates to this legal requirement.
. . .
 . . . The question is whether the evidence of drunkenness was sufficient to permit a reasonable inference that the accused may not in fact have foreseen that his act of firing the gun at the deceased would cause her death.
. . .
 . . . The only question is whether . . . there was . . . sufficient evidence to permit a reasonable inference that, notwithstanding his capacity to foresee the consequences of his acts, the accused in fact did not foresee them. . . .
 In my view, the evidence, considered most favourably for the accused, falls short of supporting such an inference. . . . His conduct before and after the shooting demonstrates an awareness of the consequences of what he was doing. This demonstrates that he in fact foresaw the consequences of what he was doing immediately before and after the shooting.
 Further elucidation was provided by the Court in R. v. Seymour,  2 S.C.R. 252 where Mr. Justice Cory stated in para. 20 that it is a reasonable inference that a person intends the natural and probable consequences of his or her acts, but emphasized that it was an inference “which may be drawn but is not required to be drawn”. [Emphasis in original.] Cory J. continued:
 However, different considerations will apply where there is evidence that the accused was intoxicated at the time of the offence. The common sense inference as to intention, which may be drawn from actions of the accused, is simply a method used to determine the accused’s actual intent. That same common sense makes it readily apparent that evidence of intoxication will be a relevant factor in any consideration of that inference. It follows that the jury must be instructed to take into account the evidence of the accused’s consumption of alcohol or drugs, along with all the other evidence which is relevant to the accused’s intent, in determining whether, in all the circumstances, it would be appropriate to draw the permissible inference that the accused intended the natural consequences of his actions.
. . .
 . . . the reasonable common sense inference may be drawn only after an assessment of all of the evidence, including the evidence of intoxication; . . . the inference cannot be applied if the jury is left with a reasonable doubt about the accused’s intention.
[Emphasis in original.]
 Post-offence or after-the-fact conduct, which previously was called evidence of consciousness of guilt, is relevant to a court’s consideration whether an accused was capable of intending the natural consequences of his or her actions, but, generally where the accused has admitted the actus reus—in this case concerning Mr. Courtoreille, killing the deceased—it is not relevant to the inquiry whether the accused had the requisite intent. When post-offence conduct is as consistent with the commission of one crime, manslaughter, as it is with the commission of another crime, second degree murder, it generally is not probative of intent: R. v. Arcangioli,  1 S.C.R. 129, 87 C.C.C. (3d) 289; R. v. White,  2 S.C.R. 72, 125 C.C.C. (3d) 385. In White, the Court cautioned that a no-probative-value jury instruction should be given “only in limited circumstances” (para. 27), although the Court also noted that such an instruction likely is appropriate where, as in this case, an accused, like Mr. Courtoreille, has admitted the act of killing the deceased.
 In some circumstances, after-the-fact conduct will be probative of a material issue. An illustration of the use of after-the-fact conduct was given by the Ontario Court of Appeal in R. v. Wiltse (1994), 19 O.R. (3d) 379 as discussed with approval in White at para. 31. The accused, Wiltse, admitted manslaughter. His co-accused, Yarema, denied responsibility for the killing. Each accused had provided false alibis. Evidence of Wiltse's alibi had no probative value because there was no issue whether he had caused the death. By contrast, Yarema’s fabricated alibi was found to be relevant to the jury’s determination “whether it reflected Yarema’s participation in the homicide, which he denied, or in other illegal conduct, which he admitted".
 In White, the Supreme Court confirmed that the overarching consideration is relevance: “so long as evidence of after-the-fact conduct is relevant to an issue in dispute, the attribution of that conduct to one offence rather than another is normally a question of fact”. (Para. 30.) Mr. Justice Major (for the Court) continued in para. 43:
. . . Post-offence conduct, like any evidence, takes on its full significance and probative value only in the context of the other evidence in the case. Evaluated in a piecemeal fashion, the evidence of post-offence conduct may not allow a jury to conclude beyond a reasonable doubt what the motivation of the accused was for his or her actions. . . . in conjunction with all the other evidence in the case, it may indeed assist the jury in determining whether a reasonable doubt exists with respect to guilt or innocence. If such evidence is rejected at the outset of deliberations, the cumulative effect of the record will be lost, and the accuracy of the verdict may be compromised.
 Rejecting the argument that there should be a different standard of proof (beyond a reasonable doubt) for the use of post-offence conduct, Major J. stated in para. 47:
. . . There is no principled basis for the claim that evidence of after-the-fact conduct is substantively different from other kinds of circumstantial evidence, or that it should be accorded special status during jury deliberations. Other types of highly incriminating evidence which presents essentially the same kinds of risks do not receive such treatment.
 The appellants assert that the trial judge erred by using post-offence conduct to conclude that they had the requisite specific intent. In my view, in his consideration of post-offence conduct, the judge was addressing two separate matters: whether Mr. Giroux aided and abetted killing the deceased and whether the appellants were capable of forming the specific requisite intent given their alleged state of intoxication. The evidence pertaining to these matters overlapped to some extent. For example, Mr. Giroux’s statement to Mr. Rudkvist that he said to the deceased, “we just stabbed you and you’re not going anywhere”, could be probative of his participation in the killing and of his being clear-minded shortly after the killing. This statement was made by Mr. Giroux while the house was being cleaned. The judge reached the conclusion that Mr. Giroux aided and abetted the killing stating in para. 103:
The statement to Rudkvist . . . is in my view, clear and unambiguous. It is an admission by Giroux of his involvement, establishing both participation within the meaning of s. 21(1)(b) and (c) and the requisite intent.
 Mr. Rudkvist also testified that the first thing Mr. Giroux said when he arrived at Rudkvist’s home demanding help with the cleaning was, “[w]e killed this guy, we just killed this guy”. (Para. 35.)
 These statements clearly are probative of Mr. Giroux’s participation in the killing. The trial judge was entitled to treat Mr. Giroux’s statement as an admission. I would not surmise Mr. Giroux used the word “we” loosely. The trial judge did not rely on Mr. Giroux’s discussion with the undercover police officer other than as illustrating Mr. Giroux’s continuing effort to avoid admitting responsibility for the killing. There is no suggestion in his reasons that he accepted part or any of what Mr. Giroux told the undercover officer. I would not speculate whether the trial judge believed any part of what Mr. Giroux said to the officer. The trial judge stated bluntly that he did not believe Mr. Giroux, in part, referring to his conversation with the undercover officer.
 In my view, the trial judge was entitled to conclude that Mr. Giroux was a participant pursuant to s. 21(1)(b) or (c) of the Code.
 As noted, in this case, the post-offence conduct evidence was relevant not only to whether Mr. Giroux was guilty of aiding and abetting the killing of the deceased, but also to the level of intoxication of both appellants. As to the latter, to paraphrase McLachlin J. in para. 20 of Lemky, the trial judge could consider whether their conduct before and after the stabbing demonstrated an awareness of the consequences of what they were doing.
 In para. 100, the trial judge recognized that the question of intent related to the condition of the appellants at the time of the killing. He then referred to the evidence of witnesses who had seen them before the killing. This evidence he found, in part, to be inconsistent with the appellants’ position that they were extremely intoxicated. In para. 102 the judge stated it was “their actions after the killing which indicate purposeful and directed activity”, and it also was their conversations as reported by Mr. Rudkvist “which established clear awareness and, in my view, the necessary specific intent”.
 The likely consequence of stabbing someone in the neck with a pair of scissors is the likelihood the person will be killed. The trial judge’s words “which establishes clear awareness and, in my view, the necessary specific intent” reflects the logical relationship between the conclusion that the appellants had a clear awareness of what they were doing and the reasonable inference that they intended the natural consequences of stabbing the deceased in the throat with a pair of scissors.
 Mr. Giroux also relies on R. v. A.B., 2003 BCSC 741, 57 W.C.B. (2d) 625 and asserts the facts in this case are comparable to those in that case. In my view, the cases are very different. In A.B., the accused had a lengthy history of mental problems and expert evidence supported his position, as did his contemporaneous conduct and comments.
 Mr. Giroux also contends that the trial judge compartmentalized evidence “when he treated unspecified post offence ‘actions’ of the [appellants] as partly relevant to the intent issue but not ‘how [the appellants] were or appeared’ to others after the killing”. In my view, the judge did not do so. As noted, he considered post-offence conduct as relevant to, but not determinative of, Mr. Giroux’s participation and the awareness of both appellants.
 Mr. Giroux appears to assert that the trial judge did not consider fully the evidence of Mr. Rudkvist concerning Mr. Giroux’s intoxication, but as noted previously, the judge set out quite fully the testimony of Mr. Rudkvist that supported the intoxication of both appellants.
 In my view, the trial judge properly applied the law concerning intent and post-offence conduct to the facts found by him on the evidence. He was entitled to treat Mr. Giroux’s statement as an admission and I would not surmise that Mr. Giroux used the word “we” loosely. I would reject the grounds of appeal that concern the judge’s determination that the appellants had the requisite intent for a conviction of second degree murder, including the assertion that he improperly took into account post-offence conduct.
Adequacy of the reasons concerning Mr. Giroux’s credibility
 Relying on R. v. Sheppard, 2002 SCC 26,  1 S.C.R. 869 and R. v. Thomas, 2006 BCCA 411, 212 C.C.C. (3d) 460, Mr. Giroux asserts that the trial judge’s reasons are inadequate because his reasoning pathway to conviction is not apparent. These authorities, like Burns and Gagnon, confirm that reasons for judgment must show the pathway to the conclusion.
 Mr. Giroux states that the trial judge’s reasons do not allow him to understand why “his evidence of intoxication and intent was rejected. Referring to Gagnon, he says that the judge’s reasons for disbelieving him “were virtually ‘non-existent’”. Mr. Giroux contends that although the judge “devoted numerous paragraphs to the evidence of Rudkvist, Wiebe, and Mr. Courtoreille” he "'circumnavigated without explanation’ [Giroux’s] evidence in-chief and almost the totality of [Giroux’s] responses to cross-examination”.
 The Court in Gagnon was referring to R. v. R.(D.),  2 S.C.R. 291, 107 C.C.C. (3d) 289, where the trial judge failed to address confusing evidence and failed to separate fact from fiction. In para. 57, the Court noted “there was no omission of the sort seen in R.(D.) because the trial judge had not failed to mention the problem or to analyze it".
 The cases also show that although reasons must provide a basis for appellate review, a trial judge is not required to provide extensive details of the reasoning process followed to arrive at the conclusion. This is clear from R. v. Braich, 2002 SCC 27,  1 .S.C.R. 903, which was released concurrently with Sheppard and which the Court noted “provides a useful point of comparison with [Sheppard]….” (para. 2). In Braich the Court stated:
 The general principle affirmed in Sheppard is that ‘the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. A more contextual approach is required… The test … is whether the reasons adequately perform the function for which they are required, namely to allow the appeal court to review the correctness of the trial decision.
[Emphasis in original.]
 In my view, the trial judge in this case clearly understood the problem concerning Mr. Giroux’s credibility. He clearly was aware of Mr. Giroux’s position and considered it in the context of the evidence overall. For example, in para. 73 the judge states:
In the case of [Giroux], he denies little of the evidence advanced by the Crown, relying instead on his evidence that he remembers little of the events because of his state of intoxication.
 The trial judge concluded that in context, Mr. Giroux’s evidence that he had no recall was not credible. He found it remarkable that the memory of the appellants “began blinking on and off at the same time” and noted that “neither of the two accused described the other harming [the deceased] in any way” during the fight prior to Mr. Courtoreille stabbing the deceased. (Paras. 76 and 77.) The judge also focused on the “the overall pattern” of the evidence of the appellants and noted “they repeatedly recall details calculated to assist even when those recollections contradict other evidence they gave”. (Para. 82.)
 The trial judge was entitled to accept or reject Mr. Giroux’s evidence in whole or in part. He had no obligation to describe his consideration of the details of that evidence. In my view, the judge stated clearly why he rejected Mr. Giroux’s evidence. It was not plausible for Mr. Giroux’s recollection to be as selective as it was and the evidence overall did not support his assertion that he was not aware of what he was doing at the time of the killing.
 The pathway to conviction in this case is clear. The trial judge recognized that a crucial issue was the intention of the appellants in the context of their defence of intoxication. He rejected the evidence that they could not recall the events of the night in question. The judge reviewed in detail evidence relevant to Mr. Giroux’s participation in the killing; he considered the issue of Mr. Giroux’s requisite intent in light of the evidence overall and in light of Mr. Giroux’s specific pre-and post offence conduct and statements.
 I would reject Mr. Giroux’s ground of appeal that the trial judge’s reasons are inadequate concerning Mr. Giroux’s credibility.
 The trial judge committed no reversible error in concluding that Mr. Giroux aided and abetted killing the deceased.
 Similarly, the trial judge committed no reversible error in determining that the appellants were aware of what they were doing when they killed the deceased and in concluding that they had the requisite intent for murder.
 I would dismiss these appeals.
“The Honourable Mr. Justice Chiasson”
“The Honourable Mr. Justice Mackenzie”
Reasons for Judgment of the Honourable Madam Justice Newbury:
 I agree with Mr. Justice Chiasson that the appellant Mr. Courtoreille’s appeal must be dismissed. Mr. Courtoreille admitted at trial that he stabbed Mr. Christopherson in the throat with a pair of scissors during the course of a senseless fight, and the trial judge rejected the evidence that he and Mr. Giroux, who were ages 22 and 24 respectively at the time, had been so severely intoxicated that they could not have formed the requisite mens rea for murder. The evidence of alcohol and drug consumption by the appellants was considerable: it included their testimony that on the evening of April 14, 2002 and the early morning hours of April 15, they had consumed alcohol, cocaine, “ecstasy”, “Special K”, mescaline and marihuana; testimony from Mr. Rudkvist that Mr. Giroux had had a generous supply of drugs throughout the two weeks leading up to April 14, that Mr. Rudkvist had seen the appellants snorting a white powder, smoking marihuana and drinking alcohol that night and that Mr. Courtoreille had appeared “possessed by drugs” and Mr. Giroux “drugged up” in the early hours of April 15; testimony from Mr. Thornton, a friend of the deceased, that he and Mr. Giroux had snorted two lines of a white powder in the washroom in the pub during the evening of April 14; and testimony from Mr. Wiebe that when he saw Mr. Courtoreille the next morning, Mr. Courtoreille’s eyes were huge and red and he was staggering.
 The trial judge (who was sitting without a jury) said at para. 66 of his reasons that he accepted the evidence of Messrs. Rudkvist and Wiebe as “generally truthful and accurate” (para. 66); but he ultimately discounted the appellants’ intoxication defence. He was, of course, entitled and indeed required to make findings of fact as to “how they [the appellants] were … at the time of the killing”. (Para. 100.) He found that the evidence of other eyewitnesses earlier in the evening of April 14 was “to some extent inconsistent with the evidence of the accused about their state of sobriety”. (Para. 101.) More important to his decision, he found that the appellants’ actions immediately after the killing – presumably the dismemberment of Mr. Christopherson’s body, cleaning the house and disposing of the remains – indicated “purposeful and directed activity”. As in R. v. Peavoy (1997) 117 C.C.C. (3d) 226 (Ont. C.A.), it was open to the trial judge to infer that the accused were not so drugged or intoxicated as to be unable to form the specific intent for murder. I see no “palpable error” in this reasoning that would permit this court to interfere with Mr. Courtoreille’s conviction.
 The trial judge’s reasoning in the case of Mr. Giroux is in my opinion more problematical. Given the conviction of Mr. Courtoreille for murder and the trial judge’s other findings, it is clear that Mr. Giroux was not the principal actor in actually killing Mr. Christopherson. The trial judge found at para. 103 of his judgment that Mr. Giroux had both aided and abetted Mr. Courtoreille, and had had the necessary special intent. We may assume the trial judge was aware that the Crown was required to show the same degree of mens rea in Mr. Giroux’s case as was required for the principal actor: see R. v. Logan (1990) 58 C.C.C. (3d) 391 (SCC), and R. v. Kirkness  3 S.C.R. 74, where Cory J. for the majority observed:
Kirkness could only be implicated, pursuant to the provisions of s. 21 of the Code, as a party to the sexual assault. He was not the prime mover in the crime. He neither sexually assaulted, strangled nor suffocated the victim. In the case of an accused who aids or abets in the killing of another, the requisite intent that the aider or abettor must have in order to warrant a conviction for murder must be the same as that required of the person who actually does the killing. That is to say, the person aiding or abetting the crime must intend that death ensue or intend that he or the perpetrator cause bodily harm of a kind likely to result in death and be reckless whether death ensues or not. If the intent of the aiding party is insufficient to support a conviction for murder, then that party might still be convicted of manslaughter if the unlawful act which was aided or abetted is one he or she knows is likely to cause some harm short of death. Neither intent was demonstrated by the appellant in the present case. I would observe that the constitutional issue as to whether there is a minimal mind set or intention necessary for the crime of manslaughter was not raised in this appeal. [At para. 20; emphasis added.]
 The trial judge did not state what form Mr. Giroux’s assistance and encouragement of Mr. Courtoreille had taken. He referred at para. 89 of his reasons to a statement Mr. Courtoreille made to an undercover officer that “Gordon [Giroux] had thrown him the scissors” and that “Gordon actually stabbed him [Mr. Christopherson] first”. Mr. Courtoreille recanted both statements at trial and was adamant in his testimony that he, Mr. Courtoreille, had stabbed Mr. Christopherson; that Mr. Giroux had not thrown the scissors to him; and that he had lied to the officer because he, Mr. Courtoreille, was angry at Mr. Giroux and had wanted to “cast blame on him”. After referring to Mr. Courtoreille’s testimony on this point, the trial judge stated at para. 91 that Mr. Courtoreille’s “responses” at trial were “simply not credible” and that they indicated manipulation and fabrication on his part rather than a faulty memory due to drugs and alcohol. Whether this means the trial judge did believe the statements made by Mr. Courtoreille to the undercover officer (as opposed to his statements at trial) is not clear; but in any event (as the trial judge reminded counsel at trial), Mr. Courtoreille’s statements to the officer could not be used as evidence against Mr. Giroux, not having been made in furtherance of a conspiracy or other concerted criminal activity. The trial judge made no further reference to the possibility of Mr. Giroux’s having handed the scissors to Mr. Courtoreille or having stabbed Mr. Christopherson himself.
 There was evidence in the statements against interest made by Mr. Giroux to the undercover officer (who played a “Mr. Big” mafia functionary) that would support the conclusion that Mr. Giroux at least participated in the fight with Mr. Christopherson which ended in the stabbing. At the start of the December 6, 2002 conversation with “Mr. Big” (which occurred after Mr. Courtoreille had told Mr. Giroux to talk to the “mafioso” and that he, Mr. Courtoreille, had told ‘Mr. Big’ he had stabbed Mr. Christopherson in the neck), the following was said:
Undercover Officer: I know…I know that okay. Tell me what happened ‘cause I know what happened. I’m testing you right now to see if you’re a liar or if you’re … solid. [pause] There’s nowhere’s … nowhere’s where I haven’t been before okay?
GIROUX: I know that’s not … I know but ya know I know Dan… I know Dan right I know his woman… I don’t think he set me up…. .
Undercover Officer: What the fuck’s with that okay?
GIROUX: I’m… I’m just paranoia [sic] man ya know.
Undercover Officer: Ya always like that okay.
GIROUX: ‘K ... ya know we killed him. We beat him up.
Undercover Officer: What did you do? What was your role?
GIROUX: My role?
Undercover Officer: Yeah.
GIROUX: I told him what to do. [At trial, Giroux said in clarification that he had told “him” to “cover the body, get help. Told him to clean.”]
Undercover Officer: You told him what to do… how about you… you shanked him too right?
Undercover Officer: Yes.
GIROUX: … that was so long ago man I was so high.
Undercover Officer: Hey things like that you remember okay?
GIROUX: Yeah possibly but after so long you forget but. I’m [not?] a regular person now. Okay probably … yeah probably did.
Undercover Officer: How many times cause I know?
GIROUX: Oh … I can’t remember man. I’m telling you the honest truth right there man.
 Later, the conversation went as follows:
Undercover Officer: What instigated the fight?
GIROUX: …. Buddy man [Mr. Christopherson]. … started talking shit and Danial [Courtoreille] got in his face and he tried to …. grab Boone [Courtoreille] and said … that [sic] starts giving it to him and he started going crazy with shit and that.
Undercover Officer: You started …. pounding on him too?
GIROUX: Yeah… oh yeah… he’s gonna jump on my boy man no way.
Undercover Officer: What kind of knife did you stick him with? [Giroux testified that the officer said “yous”, meaning him and Courtoreille.]
GIROUX: Oh gee… it wasn’t a knife… a pair of scissors.
Undercover Officer: A pair of scissors eh. So you stuck him with scissors. I thought Dan stuck him with scissors in the throat.
GIROUX: Scissors yeah.
Undercover Officer: Same scissors?
GIROUX: [Unintelligible] I would imagine … or was it that ... shank no it was a … bottle man. Oh there were so many things man.
Undercover Officer: So your [sic] saying you used … you used shank with a bottle … a knife or scissors.
GIROUX: Or scissors yeah. But everything happened so [fast].
Undercover Officer: But you brought it to the [house?] right?
GIROUX: I was so high.
Undercover Officer: But that’s … that’s consistent with ah what I know … that’s good that means your [sic] telling me the truth.
GIROUX: Okay… ya know because he’s trying, going for a shank and he was trying to shank us, man.
Undercover Officer: Oh … yeah he got [sic] was coming to him okay.
GIROUX: We did what we did man. …it was either that or he was gonna … try and kill us too. The guy was crazy, man.
Undercover Officer: How many times did you stick him?
GIROUX: Maybe once or something. We must’ve choked him out.
Undercover Officer: You choked him out but you … you said you shanked him once for sure, huh?
GIROUX: No … no. We were all over that house … no … [unintelligible] [pause] It must’ve been ah… I can’t remember.
 Mr. Giroux testified at trial that he had simply repeated what Mr. Courtoreille had previously told him he (Courtoreille) had told “Mr. Big’ because he, Mr. Giroux, “wanted in” – i.e., “wanted to be part of their criminal organization”. (No argument was made in this court questioning the admissibility of statements made to an undercover officer playing a "Mr. Big".) Mr. Giroux, who is considerably larger than Mr. Courtoreille, maintained that he had pulled Mr. Christopherson off Mr. Courtoreille as the two men were fighting and that after that, his next recollection was that “they started going at it again and I remember looking at Dan full of blood” and Mr. Christopherson lying on the ground dead. If this evidence was disbelieved by the trial judge (who said he did not believe anything the appellants said at trial), it may be that he concluded that Mr. Giroux had told “Mr. Big” the truth and that the passages quoted above were enough to prove that in the course of the fighting, Mr. Giroux had “shanked” the deceased or “choked” him or “stuck” him and thus assisted Mr. Courtoreille in bringing about his death. Unfortunately, the trial judge did not say this in his reasons, and did not analyze the statement, other parts of which suggest that Mr. Giroux was trying to break up the fight, or even acting in self-defence. Further, when the officer used the word “you”, the question arises whether Mr. Giroux understood him to be inquiring about Mr. Giroux alone, or both Mr. Giroux and Mr. Courtoreille. Certainly Mr. Giroux’s answers to the undercover officer’s final question, “No … We were all over that house… no … It must’ve been ah… I can’t remember” falls short of a clear admission of assisting in or abetting a murder.
 In the horrific circumstances of this case, the trial judge was faced with a difficult task, made more difficult by the fact that only skeletal remains of Mr. Christopherson’s torso were ever found (Mr. Courtoreille directed the police to the location), and it was not possible to determine from them whether any assault in addition to the stabbing had contributed to his death. It was important that the trial judge’s analysis of the evidence be carried out carefully and his conclusions stated clearly. At para. 69, the trial judge recited the three principles of R. v. W.(D.) on which jurors should be instructed in connection with credibility findings where an accused testifies. As my colleague notes, the first principle of W.(D.) was not engaged, since the trial judge did not believe the testimony of Mr. Giroux (or Mr. Courtoreille). The trial judge went on to observe that the requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal justice, and he noted this court’s additional comment in R. v. H.(C.W.) (1991) 68 C.C.C. (3d) 146 that “If after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.” Noting that in W.(D.) and H.(C.W.), the defence evidence had directly contradicted the Crown’s evidence, he continued:
In cases such as these, the application of these rules and instructions is relatively straightforward. Where, however, there is not a straight denial but a more oblique approach, this application is more complex and less direct. In the present case the accused do not deny the allegations, but rather, in the case of Courtoreille, he admits stabbing the deceased in the throat but says that he remembers little else because of his state of intoxication from both alcohol and drugs.
In the case of Giroux, he denies little of the evidence advanced by the Crown, relying instead on his evidence that he remembers little of the events because of his state of intoxication.
It is possible in these circumstances to believe the accused without that belief leading directly to an acquittal. In such circumstances, while keeping in mind the chain of reasoning reflected in these authorities, one must carefully consider the evidence as a whole and whether on the whole of that evidence a reasonable doubt exists.
It is for the court to assess the accused's condition at the time of the alleged offence on the whole of the evidence. It is not the accused's memory or lack of it at trial which determines that issue even if believed. [At paras. 72-75; emphasis added.]
I note parenthetically that notwithstanding the underlined sentence, the trial judge stated he did not believe the appellants’ claims that they had no memory of what had occurred on the night in question. Thus the more significant point in this case surely was that it was possible to disbelieve the accused without that disbelief leading directly to a conviction.
 The trial judge described various inconsistencies in Mr. Courtoreille’s evidence at paras. 83-93 and in Mr. Giroux’s evidence at paras. 94-96 of his reasons and observed:
It is clear beyond doubt on the evidence at this trial that after Brandon Christopherson was killed these two accused systematically set about a course of action of covering up events and destroying or seeking to destroy evidence for the purpose of evading detection and avoiding criminal responsibility.
In my view, their evidence at this trial is nothing more or less than a continuation of those efforts.
To be blunt, I don't believe either of them. I have no doubt that they had a good deal to drink on the evening in question and that over the course of the night they consumed some drugs. [At paras. 97-9.]
 Having said he did not believe Mr. Giroux’s testimony, the trial judge was bound to go on to consider whether he was nevertheless left with a reasonable doubt by it, and if not, whether on the whole of the evidence he did accept, Mr. Giroux had been a party to the murder of Mr. Christopherson. He did this in two short paragraphs – 102 and 103, as follows:
It is, however, their actions after the killing which indicate purposeful and directed activity. It is also their conversations, reported by Clayton Rudkvist, which establishes clear awareness and, in my view, the necessary specific intent. In the passage from Mr. Rudkvist's evidence quoted earlier in these reasons, Gordon Giroux described Brandon Christopherson screaming for his life and just wanting to go home. Gordon Giroux's reply, as told to Rudkvist, was "Fuck you, we just stabbed you and you're not going anywhere".
The December 6, 2003, discussion between Giroux and the undercover officer may be ambiguous but it reflects a person who is, despite his use of language, articulate and intelligent and carefully avoiding any concrete admissions. The statement to Rudkvist, however, is, in my view, clear and unambiguous. It is an admission by Giroux of his involvement, establishing both participation within the meaning of s. 21(1)(b) and (c) and the requisite intent.
 The lynchpin of Mr. Giroux’s conviction, then, was his telling Mr. Rudkvist that he (Giroux) had told Mr. Christopherson “Fuck you, we just stabbed you and you’re not going anywhere.” With all due respect to the trial judge, I do not see this, standing alone, as a “clear and unambiguous” statement of actus reus and mens rea, especially given that in fact it was Mr. Courtoreille who had stabbed the victim. “We” was obviously being used loosely by Mr. Giroux on this occasion. However, if the trial judge interpreted Mr. Giroux to mean that he had participated in the fight that culminated in the death or if the trial judge found Mr. Giroux prevented Mr. Christopherson from leaving the house as Mr. Giroux said these words, the remark could support a finding that he assisted – especially when taken together with some of the statements to ‘Mr. Big’ (e.g., “Ya know we killed him. We beat him”.) (I am not aware of any evidence of abetting.) In addition, the statement to the victim, “You’re not going anywhere” could also support the inference death or grievous bodily harm was intended. It follows that if certain inferences were drawn, a conviction was “available on the record” and therefore cannot be said to be unreasonable. (See R. v. Gagnon  1 S.C.R. 621, at para. 11.)
 Was it necessary for the trial judge to have expressly stated what inferences he drew and what findings he made – in addition to findings of non-credibility? Put another way, was it legal error for him not to have done so? Is the “pathway to conviction” discernable (see R. v. Thomas 2006 BCCA 411) or are the reasons, in the phrase of the majority in R. v. Gagnon, supra, “objectively inadequate” and “inscrutable” and therefore not amenable to meaningful appellate review?
 After much anxious reflection, I have concluded that as in Gagnon, the reasons taken as a whole were sufficient and are amenable to meaningful review by this court. Although it would have been preferable for the trial judge to have expressed his findings of fact as to how Mr. Giroux assisted in the murder, his credibility findings were detailed and clearly expressed (unlike those in Thomas, supra), and he properly instructed himself on R. v. W.(D.) and the principle of reasonable doubt. Looking at the record as a whole, one is left with the conclusion that he must have found that Mr. Giroux assisted in the beating of Mr. Christopherson far past the point of return; that in doing so, he was at least reckless as to whether death ensued; and that his statement to Mr. Christopherson, repeated to Mr. Rudkvist, ‘cinched’ the other evidence from which his acts and mental state could be inferred.
 Alternatively, if the trial judge erred in failing to provide adequate reasons, I have considered whether the evidence against Mr. Giroux was so overwhelming that no substantial wrong or injustice occurred: see R. v. Khan  3 S.C.R. 823, at para. 26. In asking this question, I assume that I am bound by the findings of fact made by the trial judge that are not tainted by the possible errors of law. Thus I have assumed that in fact Mr. Giroux was not so impaired by drugs and alcohol that he did not form the specific intent for murder, and I have done so even though in my respectful view that was not a finding that a properly instructed jury, acting reasonably, would necessarily have made in this case. I am unaware of any authority directly on point, but I note the comment of the Supreme Court of Canada in R. v. Haughton  3 S.C.R. 516. Haughton was relied on by the Ontario Court of Appeal in R. v. Elkins (1995) 26 O.R. (3d) 161, where Doherty J.A. noted at para. 29 that "[I]n considering the application of the curative proviso, [one is] entitled to take into consideration findings of fact made by the jury to the extent that those findings are unambiguously revealed by their verdicts and are not tainted by the error." On this basis, I conclude that absent the possible errors I have noted, the verdict would necessarily have been the same in Mr. Giroux's case.
 I would therefore dismiss Mr. Giroux’s appeal from his conviction under s. 21(1) (a) of the Code, although not under s. 21(1)(b). I would also dismiss Mr. Courtoreille’s appeal.
“The Honourable Madam Justice Newbury”