IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	R. v. McDonald,
	2005 BCSC 473

Date: 20050331
Docket: 47299
Registry: Chilliwack

Between:

Her Majesty the Queen

And

William Dean McDonald

Before: The Honourable Mr. Justice Joyce

Reasons for Judgment

Counsel for Her Majesty the Queen	W. Harvey and C. Trarup
Counsel for William Dean McDonald	G.J. Harris, Q.C. and D. Silverman
Date and Place of Trial:	February 28 and March 1,2,3,4,7,8,9,11 and 14, 2005
	Chilliwack, B.C.

INTRODUCTION

[1]                 On the night of November 13, 2003, following an altercation that occurred in their bedroom, William Dean McDonald shot his wife, Laurie, in the head at very close range with a high powered hunting rifle in the kitchen of their home, killing her instantly.  These facts are not in dispute.

[2]                The question to be decided in this case is whether Mr. McDonald is guilty of second degree murder or manslaughter.  When he was arraigned, Mr. McDonald pleaded not guilty to murder but guilty of manslaughter but the Crown declined to accept that plea.

[3]                More particularly, the issues are:

(a)        whether by reason of intoxication or otherwise Mr. McDonald lacked the specific intent necessary to establish the offence of murder, i.e. that he intended to kill his wife or intended to cause her bodily harm that he knew was likely to cause her death and was reckless whether death ensued or not,  and

(b)        if, but only if, Mr. McDonald possessed the necessary specific intent for murder, whether he is entitled to the benefit of the defence of provocation, thereby reducing the crime to manslaughter.

[4]                The onus is on the Crown to prove beyond a reasonable doubt that Mr. McDonald possessed the specific intent required for murder and, if that is proven, that the defence of provocation does not apply.

[5]                Because the accused admitted he committed culpable homicide the issues at trial were confined to intent and provocation.  Many of the facts were agreed to in formal admissions filed pursuant to s. 655 of the Criminal Code.   Also, by agreement of Crown and defence, the evidence of A.M., the accused’s daughter, taken at the preliminary hearing was admitted at trial, thereby saving the child the trauma of having to testify in person a second time.

REVIEW OF EVIDENCE

[6]                Mr. McDonald is 39 years old and a member of a large, close-knit family.  He is the youngest of four siblings.  He has an older sister, Julie, who is 6 years older; a brother Robert, who is 4 years older, and another brother, Brian, who is 2 years older than he.  The McDonald children were raised on the family dairy farm in the Deroche area of B.C., a farm that has been in the McDonald family for over 100 years.  Mr. McDonald’s parents are still alive but have retired from farming and live in their own house near the family farm, which Robert now operates. 

[7]                Laurie McDonald was 35 years old at the time of her death.  She grew up in the Mission/Deroche area and went to the same school as Mr. McDonald, although they did not associate with one another while at school. 

[8]                Mr. McDonald and Laurie McDonald met again in 1993, dated for 6 or 7 months and were married on November 28, 1993.  They had two children, a daughter, A.M., who is now 9 years old and a son, R.M., who is now 5 years old.

[9]                Dean and Laurie McDonald and their two children lived together in a two storey house in Deroche, British Columbia.  The children’s bedrooms are on the second floor while the master bedroom, kitchen, living room and family room are on the main floor.

[10]            Mr. McDonald worked as a deckhand on tugboats that operate on the Fraser River.  He was also a long-time member of the Deroche volunteer fire department.  Mrs. McDonald was not employed outside the home, except for occasional work.

[11]            On November 13, 2003, Mrs. McDonald had arranged to clean the house of a friend and neighbour, Ms. Lucy Catherwood, who was vacationing in Mexico.  She had gone to the house with R.M. and was leaving when Mr. McDonald and A.M joined them at about 4:00 p.m.  Around 5:00 p.m. Mr. Dave Belanger, who rented the basement suite in Lucy Catherwood’s home, arrived home.  Mr. McDonald invited Mr. Belanger to join him upstairs in the Catherwood residence to watch the hockey game on television.  Mr. Belanger joined the McDonalds some time between 5:00 and 6:00 p.m. and over the next few hours Mr. McDonald, Mr. Belanger and Mrs. McDonald all consumed some alcohol and shared a meal.  I will deal with the evidence as to the amount of alcohol consumed later in these reasons.

[12]            The McDonalds left Ms. Catherwood’s residence and drove home around 10:00 p.m.  A.M. testified that she and her mother went home in her mother’s van and her father and R.M. went home in her father’s truck.  She and her mother arrived home first.  It takes only a minute or so to drive from Ms. Catherwood’s home to the McDonald residence.    

[13]            After Mr. McDonald and R.M. arrived home the children went to bed upstairs.

[14]            Sometime between 10:00 p.m. and 10:20 p.m. Mr. McDonald shot and killed his wife in the kitchen.  As both children were in bed there were no eyewitnesses to the shooting.  A.M. may have been awake at the time of the shooting.  She testified that when she was in bed she heard her parents swearing.  After the swearing she heard a loud bang and after that she heard steps coming upstairs.  She pulled the blankets over her head and pretended she was sleeping.  When she no longer heard any noise she came out from the covers.  At that point she noticed that a small chair that she kept by the door to the closet in her bedroom was in a different location, near her bed.  Later in her testimony A.M. said it was before she heard the bang that she noticed the little chair in her room was in a different location.  A.M. also testified that at one point when she was in bed, her father came into her room and told her to go to sleep or he would “smack” her. 

[15]            Mr. McDonald testified in his defence.  His evidence concerning the circumstances surrounding the fatal shooting was as follows.  He has no recollection of going home from Ms. Catherwood’s residence that night.  He recalls standing outside Ms. Catherwood’s residence with Laurie McDonald and Mr. Belanger as a fire truck passed by.  He next remembers waking up in his own bed, under the covers with his clothes on.  His wife was in the en suite bathroom taking out her contacts lenses.  She dropped a contact lens and was complaining about needing new contacts.  There was then a discussion about her eye glasses. Mr. McDonald told her to put her glasses on.  She said they were junk and that she needed a new prescription.  She got angry and threw her glasses at Mr. McDonald.  He threw them back towards her.  She grabbed them and broke them.  Then she freaked out and was swearing.  She picked up an ornament and threw it at Mr. McDonald.  It hit the lamp on the bedside table beside Mr. McDonald.  He picked up the ornament and threw it back towards Laurie McDonald.  The ornament hit and smashed one of the glass panes in the bedroom door. 

[16]            Mr. McDonald testified that Laurie McDonald then “lost it”.  She was screaming, yelling and standing over him at his side of the bed, swearing and stabbing at him with a broken piece of glass.  He does not recall how many times she stabbed at him.  She said, “You’re dead, you’re fucking dead”. 

[17]            Mr. McDonald testified that the next thing he remembers is being in the kitchen with Laurie.  The gun was in his hand.  He thought it was by his side.  He saw her hand move and thought there was something in her hand.  Then, “Bang”, the gun went off.  He said he then started walking around in circles saying, “What did I do”.

[18]            Mr. McDonald testified he worked the bolt action on the rifle to eject the spent shell and loaded another shell into the chamber, knelt down and put the rifle to his head to kill himself.  He said he changed his mind because of the children.  He put the gun in the hallway, walked around some more, then placed a call to the home of his brother, Brian, and spoke to Brian’s wife, Terra-Lee McDonald.  Mr. McDonald also recalls phoning Laurie McDonald’s mother, Karen Grabinsky,  and the 911 Emergency Service but cannot recall what was said during the telephone calls.

[19]            Mr. McDonald testified he did not go upstairs after the shooting.

[20]              Terra-Lee McDonald received the call from Mr. McDonald at between 10:20 and 10:30 p.m.  Her husband was at the volunteer fire hall attending firefighters’ practice.  The first thing Mr. McDonald said on the telephone was, “I screwed up” or “I fucked up … my life is over.  I shot Laurie”.  He went on to say, “She was attacking me, stabbing me, cutting me.  She wouldn’t stop”.  He also said, “Those Grabinsky girls never shut up” or words to that effect.  He repeated that she wouldn’t shut up, wouldn’t stop and that he wanted just one minute but she wouldn’t stop.  Terra-Lee McDonald said that Mr. McDonald’s voice was calm at times but at other times it increased in pitch and was shaky.

[21]            Terra-Lee McDonald telephoned her husband, Brian, at the fire hall and told him she thought something bad had happened and that he should go to Dean McDonald’s house.

[22]            Karen Grabinsky received the telephone call from Mr. McDonald at about 10:30 p.m.  The first thing he said to Ms. Grabinsky was “you probably won’t want to talk to me”.  She asked what he was talking about and Mr. McDonald said, “I killed your daughter”.  He said, “She wouldn’t stop, she wouldn’t stop.  She wouldn’t stop cutting me.  I went and got my gun and shot her”.  He told Ms. Grabinsky that he loved her and was going to miss her.  He also said at one point, “I didn’t mean to do it”.  Ms. Grabinsky said Mr. McDonald spoke in a monotone.  At one point he sighed or sobbed but otherwise never became animated or emotional.  Ms. Grabinsky passed the telephone to her common-law spouse, Gerald Janzen, who asked Mr. McDonald what was wrong.  Mr. McDonald said, “I killed Laurie, I shot Laurie”.  Mr. Janzen told Mr. McDonald to call the police.  Mr. McDonald said, “Yes” and disconnected.

[23]            At approximately 10:30 p.m. Mr. McDonald made a telephone call to the 911 Emergency Service.  I set out below extracts from the call:

OCC:   911 Emergency.  Do you need police, fire or the ambulance?

M:        Uh, Police.

OCC:   You have the police.  What’s the emergency?

M:        I just uh, killed my wife I guess.

OCC:   What?

M:        Yeah I did.

OCC:   What do you mean sir?  What happened?

M:        She just kept on coming at me with glass and fighting me and stuff, and I couldn’t handle it.

OCC:   So what did you do?

M:        I went upstairs, grabbed a gun and …

OCC    Did you shoot her?

M:        Yeah.

…

OCC:   What, where did you shoot her, what kind of gun was it?

M:        .30-06.

OCC:   It was a shotgun?

M:        No it’s a rifle.

…

OCC:   Mmhm.  She’s in the kitchen?

M:        Yeah, what’s left of her.  I don’t know why she had to keep doing it to me!

…

M:        Oh God, my life’s over.  Why did she have to do it to me?

OCC:   Well what was going on?

M:        We just went over to the neighbours there, she was cleaning house.  She came back and then, I don’t know, she keeps on getting migraines and headaches all the time and then she starts blaming it on me.

…

M:        … I had a good life, everything’s been good and then she just starts freaking on me.

…

M:        Jeez, I don’t know, Jesus – she just kept going at me!

OCC:   Going at you like what, was she assaulting you or what, did she have a weapon or what?

M:        Yeah but she had glass, like she smashed a glass onto the door there and she’s coming at me and trying to get at me, and it’s like – oh God!

…

M:        If I really wanted to have done myself in I would have did it, but I don’t know why I didn’t but I should have.  God I don’t know why, Jesus!  She just keeps provoking ya!

[24]            Brian McDonald and Richard Dekker, the chief of the Deroche volunteer fire department arrived at the McDonald residence before the police.  Dean McDonald told Brian, “She wouldn’t stop attacking me” and told Mr. Dekker, “She kept coming at me and wouldn’t leave me alone”.  Dean McDonald showed Brian some cuts on his hands, feet and chest.  Mr. Dekker saw a puncture mark on Mr. McDonald’s hand. 

[25]            Mr. McDonald told his brother and Mr. Dekker not to go into the kitchen and asked them to get the children out of the house.  Mr. Dekker took charge of R.M. who was awake and downstairs and took him out of the house.  Brian McDonald went upstairs, woke A.M. and took her out of the house.  As they were removing the children the police arrived and arrested Mr. McDonald without incident.

[26]            At the police station, Mr. McDonald told Constable Mudry that Laurie McDonald injured him with a broken piece of glass.  He showed Cst. Mudry a superficial cut on his right leg and a small puncture type wound to his hand.  Cst. Mudry detected the odour of alcohol on Mr. McDonald’s breath and requested that he provide breath samples.  Samples, obtained at 33 minutes after midnight and 54 minutes after midnight both registered 110 milligrams of alcohol per 100 millilitres of blood.

[27]            The police seized a number of exhibits.  In the kitchen they recovered a broken pair of wire framed eyeglasses that had been broken in two at the metal nose piece.  One half of the eye glasses were found on the floor near the body of the deceased and the other half was located on one of the kitchen counters.  The eyeglasses were broken in such a way that the two broken ends of the metal nose piece do not mesh together.  The metal appears to have been twisted at the break.  The lenses are spattered with blood and other matter, most of which is on the inner surfaces of the lenses.

[28]            The police found a .30-06 rifle leaning against a piece of furniture in the hallway outside the kitchen.  The rifle had one live round in the chamber and one live round in the magazine.  There were two live rounds stored in a sleeve on the butt of the rifle.  The police also recovered one spent shell from the hallway outside the kitchen.

[29]            The master bedroom was in a state of dishevelment.  The bedclothes were in disarray and there were piles of clothes on top of the bed.  The table lamp located on the bedside table on Mr. McDonald’s side of the bed was knocked askew and the lampshade was dented.  One of the panes of glass in the door between the bedroom and the hallway was broken.  There was broken glass on the floor behind the door on top of which lay a broken ornament.  On the floor at Mr. McDonald’s side of the bed the police found a piece of broken glass that contained some blood, which was analyzed by DNA analysis and found to be that of Laurie McDonald.  They also found two drops of blood on the hallway floor outside the bedroom, which were also determined to be Laurie McDonald’s blood.  The deceased did not have any cuts or other injuries to any part of the body except the head. 

[30]            Upstairs, in a landing area the police located a black soft gun case lying on a couch.  The case will accommodate the .30-06 rifle and had an impression that matches a gun scope of the type mounted on the .30-06 rifle.  In the bedroom occupied by A.M. the police located a gun safe which has two locks that are both operated using the same key.  One of the locks was closed.  A key that fits the locks was located in the night table in the master bedroom at Mr. McDonald’s side of the bed.  In the gun safe the police found a number of guns, namely a .303 Lee Enfield rifle, a 12 gauge pump action shotgun, a 410 shotgun, and two .22 calibre rifles, together with some .303 and .22 calibre ammunition.   The gun safe was not seized and the police did not attempt to determine whether the .30-06 rifle, when placed in the black gun case would fit inside the gun safe.

[31]            On November 15, 2003, after they had completed their investigation of the crime scene the police provided the key for the McDonald residence to Brian McDonald.  He, Robert and Mr. Douglas McNeill were cleaning the residence when Mr. McNeill discovered another soft gun case under the bed in the master bedroom.  The gun case found under the bed was older, had a broken handle and broken zipper.  The .30-06 will fit inside that gun case.

[32]            Robert McDonald testified that while cleaning the residence a third gun case was found in the upstairs landing where the police had seized the black gun case.  It is clearly too small to hold the .30-06 rifle.  In the photographs taken by the police the night of the incident only the black gun case is visible.  

[33]            Robert McDonald also testified that some time after the police had completed their investigation he removed the sheets and comforter from the bed in the master bedroom.  On the comforter he noticed what looked like blood and a tear or rip.  Mr. Robert McDonald turned the bedding over to the police in May 2004.  DNA analysis established blood from the victim on the comforter.  In March 2005 the police examined the sheets and found a tear or cut in the top sheet.

[34]            As I said earlier, there is no dispute that Mr. McDonald shot Laurie McDonald in the head with a single shot from his .30-06 rifle, causing her immediate death.  Dr. Charlesworth, a forensic pathologist who conducted an autopsy on Laurie McDonald, could not determine precisely the point of entry of the bullet due to the damage caused to the face but was of the opinion that it was at or near the top of her nose or lower part of her forehead near the eyebrows.  The evidence of Dr. Charlesworth and of Mr. Hall, an expert in firearms, establishes that the gun was discharged with the muzzle of the barrel either touching Laurie McDonald’s face or very close to it.    There was no evidence of any powder burns or tattooing on the skin surrounding the entry wound and there were striations or tears in the skin caused by gases being expelled from the barrel under very high pressure.  The back of the skull was exploded outward by the force of the gases resulting in the evisceration of the brain.

[35]            The police discovered bullet holes in the double-pane kitchen window and by lining up the centres of the holes were able to estimate the direction the bullet travelled as it left the residence.  By following that path they were able to find a branch in a tree that had been broken off.  Using survey instruments the police were able to plot the trajectory of the bullet, which establishes that the muzzle of the rifle was held at a height of between 50 and 57 inches from the floor of the kitchen when it was discharged.  Laurie McDonald was 58 inches tall from heels to chin.

[36]            Sergeant Spenard, an expert in blood spatter analysis, analyzed the pattern of blood spatter in the kitchen, on the rifle and on Mr. McDonald’s clothing and came to the opinion that Laurie McDonald was standing upright at the kitchen counter slightly left of the sink looking towards the doorway between the kitchen and the hall when she was shot in the front of the head.  He concluded that when Mr. McDonald fired the rifle he was standing slightly inside the kitchen entrance holding the rifle at the same height or slightly lower than the entrance wound at a distance of between 33 and 42 inches from Laurie McDonald.  Sgt. Spenard concluded Mr. McDonald was holding the rifle in a shooter’s stance, i.e. with the butt against his shoulder and the gun levelled.

[37]            Mr. McDonald is an experienced hunter and is very familiar with the .30-06 rifle.  He had owned the rifle for some 16 years and had fired it on numerous occasions and had killed approximately 15 wild animals with it. 

[38]             There is a dispute as to where the .30-06 rifle was stored before Mr. McDonald retrieved it and shot Laurie McDonald.  It is the theory of the Crown that Mr. McDonald got the key to the gun safe from the bedside table drawer, went upstairs into A.M.’s room and into the closet, unlocked the gun safe, removed the black soft gun case containing the .30-06 rifle, took the rifle out of the case, left the case on the couch in the upstairs landing, loaded the rifle and returned downstairs to the kitchen where he shot Laurie McDonald.  The Crown theorizes that after Mr. McDonald had shot Laurie McDonald and was spattered with her blood he went into the bedroom and replaced the key in the bedside table, thereby accounting for the drop of Laurie McDonald’s blood on the piece of glass found near the table.

[39]            In support of its theory, the Crown relies on Mr. McDonald’s statement to the 911 operator that he “went upstairs and grabbed a gun”, as well as the following circumstantial evidence.  A.M. testified that her father kept his guns locked in the gun safe.  A soft gun case bearing the impression of a scope was found in the upstairs landing.  A.M. testified that she had not seen that case in that place before the incident.  Karen Grabinsky had been at the home on November 7^th and had not noticed any gun case on the landing.   A.M. testified that the chair she kept near the closet door had been moved.  A small amount of the deceased blood was found on a broken piece of glass near the bedside table where the key was found.

[40]            Mr. McDonald testified he has no recollection of actually getting the rifle prior to the shooting but believes he retrieved it from under the bed in the master bedroom because that is the last place he put it.  His evidence concerning the rifle and the gun cases in the time period leading up to the shooting was as follows.  He used two different soft gun cases when he went hunting with the .30-06 rifle.  He used the black case that was found in the upstairs landing if he was hunting using an ATV because he could strap it to the vehicle.  If he was not hunting using an ATV he used the older case that was found under the bed. 

[41]            Mr. McDonald and Brian McDonald had gone on a hunting trip together two or three weeks prior to the incident.  Mr. McDonald said he transported the .30-06 rifle in the older gun case because they were not using ATVs.  Brian McDonald confirmed that the older case was used during this hunting trip.  When Mr. McDonald returned home from the hunting trip he took the rifle out of the gun case and placed it in the gun safe.   

[42]            A few days before the fatal incident Mr. McDonald found a dead bear cub near his truck at the residence.  Unknown to him, Robert and Brian McDonald had come across the dead cub on the highway and as some sort of joke decided to leave it near their brother’s truck.  Mr. McDonald had earlier seen a mother bear with cubs in the vicinity of his residence and when he found the dead cub he was concerned that the mother might be near by.  Fearful of what the mother might do if she encountered someone, Mr. McDonald went upstairs, got the .30-06 rifle, loaded 3 shells in it and went outside to check the surroundings.  He did not see a bear but when a neighbour approached he took the rifle inside and put it under his bed in the master bedroom.  The gun case was already under the bed so he slid the rifle into the case.  He did not unload the rifle, did not tell his wife that it was under the bed and said that he forgot about it.

[43]            Both Robert and Brian McDonald confirmed that they had come upon the dead cub and had placed it near their brother’s truck at the residence.

[44]            The factual dispute concerning the location of the rifle has significance particularly with regard to the defence of provocation and I will return to it when I deal with that defence.

LAW

Statutory definition of murder

[45]            The offence of second degree murder is defined in s. 229 of the Criminal Code, the material part of which reads as follows:

Culpable homicide is murder

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

(i)         means to cause his death, or

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

General legal principles

[46]            As I stated earlier, the Crown has the burden to prove beyond a reasonable doubt each and every element of the offence of murder, including the requisite specific intent.  The burden is also on the Crown to prove that a defence raised by Mr. McDonald or that arises from the evidence does not raise a reasonable doubt as to his guilt on the charge of murder.

[47]            Mr. McDonald testified in his own defence.  In considering whether his evidence raises a reasonable doubt I must be mindful of the law as set out in R. v. W.(D.), [1991] 1 S.C.R. 742 and expanded upon in R. v. H.(C.W.) (1991), 68 C.C.C. (3d) 146 (B.C.C.A.).  I must acquit Mr. McDonald of the charge of murder and find him guilty only of manslaughter:

(a)        if I believe his evidence;

(b)        if I do not believe his evidence but have a reasonable doubt as to his guilt after considering his evidence in the context of the evidence as a whole;

(c)        if, after a careful consideration of all of the evidence, I am unable to decide whom to believe; and

(d)        finally, on the basis of all of the evidence, I am not convinced beyond a reasonable doubt that he is guilty of second degree murder.

[48]            Because intention is a state of mind, it is generally determined from inferences based on proven facts found on the evidence.  Inferences must be logically drawn from other proven facts; they cannot be based on mere speculation or conjecture.

[49]            Circumstantial evidence is indirect evidence from which inferences may be drawn but before basing a verdict of guilty on circumstantial evidence, I must be satisfied that Mr. McDonald’s guilt is the only reasonable inference to be drawn from the proven facts.

[50]            The defence has specifically raised the defence of intoxication and the defence of provocation and I must determine whether the Crown has proven beyond a reasonable doubt that they do not apply.  I must of course consider all relevant evidence when I consider each of them.  However, I must be careful not to compartmentalize the evidence and examine it only in relation to the specific defences raised.  Ultimately, the question is whether the Crown has proven beyond a reasonable doubt that Mr. McDonald possessed the requisite specific intent.  As was made clear in R. v. Gibson, [2001] B.C.J. No. 924 (C.A.), in deciding that question I must consider the cumulative effect of all relevant evidence including evidence of alcohol consumption, Mr. McDonald’s evidence of what was going through his mind at the relevant time and evidence relating to any provocative conduct on the part of the victim and the effect it had on Mr. McDonald.   

The defence of intoxication

[51]            The defence of intoxication to a specific intent offence is based on the common sense premise that while it is a reasonable inference that a sane and sober person intends the natural consequences of his or her actions different considerations apply where there is evidence of intoxication.  It is common knowledge that intoxication may affect a person’s state of mind and ability to foresee the consequences of his or her actions.  That is, evidence of intoxication can rebut the common sense inference.  If upon consideration of all of the evidence I have a reasonable doubt that Mr. McDonald possessed the necessary intent, I cannot apply the common sense inference.

[52]            Since the decision in R. v. Robinson, [1996] 1 S.C.R. 683, it is no longer the law that intoxication is not a relevant factor to consider except where the intoxicant removed the accused’s capacity to form the requisite intent.  The defence must be considered if there is evidence that the ingestion of alcohol effect might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt that he possessed the requisite specific intent.  If that threshold “air of reality” exists, then the question is not just whether by reason of intoxication the accused lacked the capacity to form the intent although, of course, if the accused lacked the capacity to form the intent it follows necessarily that he lacked the intent in fact.  Where intoxication is a live issue the question to be determined is whether by reason of intoxication there is a reasonable doubt that the accused in fact possessed the requisite intent at the time of the act.  In Robinson, Lamer C.J. said at p. 686:

… before a trial judge is required by law to charge the jury on intoxication, he or she must be satisfied that the effect of the intoxication was such that its effect might have impaired the accused's foresight of consequences sufficiently to raise a reasonable doubt.  Once a judge is satisfied that this threshold is met, he or she must then 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. 

[53]            Chief Justice Lamer C.J. said that generally it is preferable for the trier of fact not to engage in a two-step analysis of the issue of intoxication:  first, by considering whether intoxication rendered the accused incapable of forming the specific intent and second, if the accused had the capacity, by considering whether, taking into account the evidence of consumption of alcohol and all other relevant surrounding circumstances, the accused in fact lacked the specific intent.  It is clear that, provided there is an air of reality to the defence, there is no minimum level of intoxication to be met before the trier of fact is required to consider its effect on the issue of whether or not the accused possessed the requisite intent. 

[54]            Lamer C.J. indicated that there are circumstances where a two-step analysis may be appropriate.  At p. 712 he said:

I should not want to be taken as suggesting that reference to "capacity" as part of a two-step procedure will never be appropriate in a charge to the jury.  Indeed, in cases where the only question is whether the accused intended to kill the victim (s. 229(a)(i) of the Code), while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming of course that there is an "air of reality" to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of jurors. For example, in a case where an accused points a shotgun within a few inches of someone's head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill. It is in these types of cases where it may be appropriate for trial judges to use a two-step MacKinlay-type charge.  

(Emphasis added)

[55]            R. v. Seymour, [1996] 2 S.C.R. 252 Cory J. reviewed the necessity of linking the common sense inference to the issue of intoxication.  He said at pp. 262-264:

When charging with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, in determining the accused's state of mind at the time the offence was committed, jurors may draw the inference that sane and sober persons intend the natural and probable consequences of their actions.  Common sense dictates that people are usually able to foresee the consequences of their actions.  Therefore, if a person acts in a manner which is likely to produce a certain result it generally will be reasonable to infer that the person foresaw the probable consequences of the act.  In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences.

…  

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.

One of the effects of severe intoxication is an inability to foresee the consequences of one's actions, much less intend them.  It was for this reason that the Ontario Court of Appeal in MacKinlay, supra, at p. 322, held that the state of mind required to commit the crime described in s. 229(a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of his act and that, therefore, the jury should consider whether intoxication affected his ability to have the required foresight.

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

[56]            R. v. Lemky, [1996] 1 S.C.R. 757 dealt with the “threshold” test for determining when a trial judge must instruct a jury on the defence of intoxication, i.e. when the defence will have an “air of reality”.  At p. 765 McLachlin C.J. said:

If the real question is whether the accused was prevented by drunkenness from actually foreseeing the consequences of his or her act, it follows that the threshold for putting the defence to the jury must be evidence sufficient to permit a reasonable inference that the accused did not in fact foresee those consequences.

Provocation

[57]            Provocation is a defence that is exclusive to homicide; it operates to reduce the crime of murder to manslaughter provided all of the essential ingredients of the defence are present.  Provocation is to be considered only after all of the elements of murder have been proven. 

[58]            The defence of provocation is defined in s. 232 of the Criminal Code, the material parts of which read:

232.     (1)        Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

(2)        A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool.

(3)        For the purposes of this section, the questions

(a)        whether a particular wrongful act or insult amounted to provocation, and

(b)        whether the accused was deprived of the power of self-control by the provocation that he alleges he received,

are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being.

[59]            The defence requires that both the act of provocation and the act of response or retaliation be sudden.  In R. v. Tripoldi, [1955] S.C.R. 438, 112 C.C.C. 66 Rand J. described "sudden provocation", at p. 68 in these terms:

I take that expression to mean that the wrongful act or insult must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame.

[60]            There are four questions that must be addressed where the accused relies on the defence of provocation:

1.         Was there a wrongful act or insult?

2.         Would an ordinary person be deprived of self-control by the wrongful act or insult?

3.         Did the accused in fact act in response to those “provocative” acts?

4.         Was the accused’s response sudden and before there was time for his or her passion to cool?

[61]            The question whether an “ordinary person” would be deprived of self-control by the wrongful act or insult is to be answered on an objective standard while the question whether the accused was in fact deprived of self-control by the wrongful act or insult involves a subjective standard.  The purpose served by imposing an objective standard with respect to the first requirement for the defence of provocation was stated by Dickson C.J. in R. v. Hill, [1986] 1 S.C.R. 313 at pp. 324-325 as follows:

If there were no objective test to the defence of provocation, anomalous results could occur. A well-tempered, reasonable person would not be entitled to benefit from the provocation defence and would be guilty of culpable homicide amounting to murder, while an ill-tempered or exceptionally excitable person would find his or her culpability mitigated by provocation and would be guilty only of manslaughter. It is society's concern that reasonable and non-violent behaviour be encouraged that prompts the law to endorse the objective standard. The criminal law is concerned among other things with fixing standards for human behaviour. We seek to encourage conduct that complies with certain societal standards of reasonableness and responsibility. In doing this, the law quite logically employs the objective standard of the reasonable person.

[62]            In the same case McIntyre J., at p. 339, stated the policy consideration behind the defence in this way:

The law fixes a standard for all, which must be met before reliance may be placed on the provocation defence. Everyone, whatever his or her idiosyncrasies, is expected to observe that standard.  It is not every insult or injury that will be sufficient to relieve a person from what would otherwise be murder.  The "ordinary person" standard is adopted to fix the degree of self-control and restraint expected of all in society.  The law, however, does recognize human frailty when the threshold test is passed and a person is provoked beyond the level of tolerance of the ordinary person.

[63]            In the more recent decision in R. v. Thiebert, [1996] 1 S.C.R. 37, Cory J. at p. 43, stated the policy considerations behind the objective standard in these terms:

The objective aspect would at first reading appear to be contradictory for, as legal writers have noted, the "ordinary" person does not kill.  Yet, I think the objective element should be taken as an attempt to weigh in the balance those very human frailties which sometimes lead people to act irrationally and impulsively against the need to protect society by discouraging acts of homicidal violence.

[64]            In R. v. Gibson , supra, at para. 55,  Ryan J.A. put it this way:

The defence operates as a compassionate response to human frailty and serves to determine whether an accused’s “admittedly intentional action nonetheless does not deserve the full penalty of the law.”

[65]            In R. v. Hill, supra, Dickson C.J. considered what characteristics are to be ascribed to the ordinary person.  After reviewing the authorities Dickson C.J. expressed his view of the appropriate content of the ordinary person standard at pp. 331-332:

What lessons are to be drawn from this review of the case law? I think it is clear that there is widespread agreement that the ordinary or reasonable person has a normal temperament and level of self-control. It follows that the ordinary person is not exceptionally excitable, pugnacious or in a state of drunkenness.

In terms of other characteristics of the ordinary person, it seems to me that the "collective good sense" of the jury will naturally lead it to ascribe to the ordinary person any general characteristics relevant to the provocation in question. For example, if the provocation is a racial slur, the jury will think of an ordinary person with the racial background that forms the substance of the insult. To this extent, particular characteristics will be ascribed to the ordinary person. Indeed, it would be impossible to conceptualize a sexless or ageless ordinary person. Features such as sex, age, or race, do not detract from a person's characterization as ordinary. Thus particular characteristics that are not peculiar or idiosyncratic can be ascribed to an ordinary person without subverting the logic of the objective test of provocation. As Lord Diplock wrote in Camplin at pp. 716-17:

... the "reasonable man" has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.

It is important to note that, in some instances, certain characteristics will be irrelevant. For example, the race of a person will be irrelevant if the provocation involves an insult regarding a [page332] physical disability. Similarly, the sex of an accused will be irrelevant if the provocation relates to a racial insult. Thus the central criterion is the relevance of the particular feature to the provocation in question. With this in mind, I think it is fair to conclude that age will be a relevant consideration when we are dealing with a young accused person. For a jury to assess what an ordinary person would have done if subjected to the same circumstances as the accused, the young age of an accused will be an important contextual consideration.

I should also add that my conclusion that certain attributes can be ascribed to the ordinary person is not meant to suggest that a trial judge must in each case tell the jury what specific attributes it is to ascribe to the ordinary person. The point I wish to emphasize is simply that in applying their common sense to the factual determination of the objective test, jury members will quite naturally and properly ascribe certain characteristics to the "ordinary person".

[66]            With regard to the appropriate considerations in connection with the subjective test of provocation, Dickson C.J. said at pp. 332-333:

In instructing the jury with respect to the subjective test of provocation, the trial judge must make clear to the jury that its task at this point is to ascertain whether the accused was in fact acting as a result of provocation. In this regard, a trial judge may wish to remind the jury members that, in determining whether an accused was actually provoked, they are entitled to take into account his or her mental state and psychological temperament.

[67]            R. v. Thiebert, supra, dealt with the question of when the defence of provocation should be left to the jury or, to put it in the context of a trial by judge alone, when there is an air of reality to the defence such that it must be considered.  At pp. 43-44, Cory, J. writing for the majority, said that:

…before the defence of provocation is left to the jury, the trial judge must be satisfied (a) that there is some evidence to suggest that the particular wrongful act or insult alleged by the accused would have caused an ordinary person to be deprived of self-control and (b)  that there is some evidence showing that the accused was actually deprived of his or her self-control by that act or insult.  This threshold test can be readily met, so long as there is some evidence that the objective and subjective elements may be satisfied.  If there is, the defence must then be left with the jury.

[68]            When discussing the objective element of the defence, i.e. whether an “ordinary person” would have been provoked by the act or insult, Cory said at p. 49:

In my view, so long as the provocation section remains in the Criminal Code in its present form certain characteristics will have to be assigned to the "ordinary person" in assessing the objective element.  The "ordinary person" must be of the same age, and sex, and share with the accused such other factors as would give the act or insult in question a special significance and have experienced the same series of acts or insults as those experienced by the accused.

In summary then, the wrongful act or insult must be one which could, in light of the past history of the relationship between the accused and the deceased, deprive an ordinary person, of the same age, and sex, and sharing with the accused such other factors as would give the act or insult in question a special significance, of the power of self-control.

[69]            At pp. 49-50, Cory J. discussed the way in which the previous relationship between the accused and the victim can affect the determination of whether the accused acted out of “sudden provocation”.  He said:

In R. v. Tripodi, [1955] S.C.R. 438, Rand J. interpreted "sudden provocation" to mean that "the wrongful act or insult must strike upon a mind unprepared for it, that it must make an unexpected impact that takes the understanding by surprise and sets the passions aflame" (p. 443).  To this definition, I would add that the background and history of the relationship between the accused and the deceased should be taken into consideration.   This is particularly appropriate if it reveals a long history of insults, leveled at the accused by the deceased.  This is so even if the insults might induce a desire for revenge so long as immediately before the last insult, the accused did not intend to kill.  Glanville Williams adopts this position in his Textbook of Criminal Law (2nd ed. 1983).  At page 530, he puts it in this way: "affronts over a long period of time inducing the desire for revenge do not preclude the defence of provocation, if immediately before the last affront the defendant did not intend to kill".  He adds further that, "the last affront may be comparatively trivial, merely the last straw that makes the worm turn, so to speak".

[70]            Anger alone cannot establish provocation.  All of the elements in s. 232 of the Criminal Code must co-exist.  In R. v. Gibson, supra, Ryan J.A. writing for the Court said at para. 79:

All who kill in anger might be described as having reached a state where reason has been temporarily eclipsed by anger as a guiding force influencing his or her action.  Section 232 of the Code however, does not excuse those who lose control and kill, it excuses those who, following the language of s. 232(2), have been deprived of the power of self-control.  In other words, for reasons understandable to the ordinary person, they have been unable to control themselves.  

[71]            In R. v. Parent, [2001] 1 S.C.R. 761 McLachlin C.J. expressed it this way at p. 767:

Anger can play a role in reducing murder to manslaughter in connection with the defence of provocation.  Anger is not a stand-alone defence.  It may form part of the defence of provocation when all the requirements of that defence are met: (1) a wrongful act or insult that would have caused an ordinary person to be deprived of his or her self-control; (2) which is sudden and unexpected; (3) which in fact caused the accused to act in anger; (4) before having recovered his or her normal control: R. v. Thibert, [1996] 1 S.C.R. 37. 

ANALYSIS

Did Mr. McDonald possess the requisite intent for murder?

[72]            Counsel for Mr. McDonald submits that the evidence, including that relating to the consumption of alcohol by Mr. McDonald, raises a reasonable doubt whether Mr. McDonald intended to kill his wife or intended to cause her bodily harm that he knew was likely to cause her death and was reckless as to whether or not death ensued.

[73]            Crown submits that the defence of intoxication lacks an air of reality such that I need not consider it.  I do not accept that submission.  In my view, there is evidence relating to the consumption of alcohol of such a degree and nature that I must consider whether it raises at least a reasonable doubt that Mr. McDonald lacked the requisite intent. 

[74]            The evidence regarding Mr. McDonald’s consumption of alcohol comes from Mr. McDonald’s own testimony, Mr. Belanger’s evidence and expert opinion evidence of Mr. Benny Wong, an expert in the absorption and elimination of alcohol in the human body and its effects on the human body. 

[75]            Mr. McDonald testified that when he left home to go to Ms. Catherwood’s home he took an open can of beer as well as three or four additional cans and some vodka.  Mr. Belanger brought 7 cans of beer.  Mr. McDonald was unsure how many cans of beer he drank that evening.  He recalls having drunk beer and two Caesar cocktails each containing 1 ½ ounces of vodka.  He said he shared white wine from two half bottles that were in Ms. Catherwood’s refrigerator with Mr. Belanger.  He also drank some liqueur. 

[76]            Mr. McDonald described himself as a person who drinks more than most people.  He said that on the night of the shooting he had consumed a little more than an average amount for him.

[77]            Mr. Belanger was not keeping track of the amount that he or Mr. McDonald drank.  He could only say that Mr. McDonald drank “a few beers” and some wine.

[78]            Mr. Wong provided expert opinion evidence relating to Mr. McDonald’s likely blood alcohol levels at the time of the incident based on the blood alcohol readings of 110 milligrams of alcohol per 100 millilitres of blood, measured at 00:33 and 00:45 using a breath analyzer.  Assuming a 37 year old male weighing 185 pounds (Mr. McDonald’s approximate weight), extrapolating back to 10:00 p.m. and 10:20 p.m. the night before (approximately the time of the shooting) and assuming the subject had consumed his last drink at least 30 minutes beforehand so that all the alcohol had been absorbed, Mr. Wong concluded that the blood alcohol concentration would be between 135 and 168 milligrams per 100 millilitres of blood at 10:00 p.m. and between 132 and 162 milligrams per 100 millilitres of blood at 10:20 p.m.

[79]            Mr. Wong also gave his opinion as to blood alcohol levels in the event absorption had not been completed in the 30 minutes prior to the relevant period.  If the same individual had consumed one ounce of 40% alcohol by volume in the thirty minutes prior to the relevant period the range would be between 116 and 152 milligrams per 100 millilitres of blood during the time frame from 10:00 p.m. to 10:20 p.m.  If the subject consumed one can of beer in the 30 minutes prior to the relevant period the range would be between 108 and 144 milligrams per 100 millilitres of blood during the time-frame from 10:00 p.m. to 10:20 p.m.

[80]            Mr. Wong agreed that blood alcohol readings measured from blood samples are more accurate and can be as much as 10% higher than readings from breath samples using the BAC Datamaster C instrument, which was used in this case.  Taking that fact into account, Mr. Wong agreed that the blood alcohol level could have ranged between 151 and 187 milligrams per 100 millilitres of blood at the time of the incident.

[81]            Mr. Wong was asked to work forward and determine the amount of alcohol a 185 pound man would have to consume between 5:30 p.m. and 10:00 p.m. in order to have blood alcohol readings of 110 milligrams per 100 millilitres of blood at 00:33 and 00:54, assuming the alcohol was consumed at a consistent rate over the time period.  In his opinion, in addition to 3 cans of 5% beer, one ounce of 17% liqueur and one 5 ounce glass of 12% wine, the individual would have to consume an additional 4 cans of beer or 6 ounces of 40% hard liquor.

[82]            Mr. Wong described the effects of alcohol at various blood alcohol concentrations.  He testified that as the concentration approaches 50 milligrams per 100 millilitres of blood the person feels a state of euphoria where there is a loss of inhibitions, an increase in self confidence and an increased willingness to take risks.  As the blood alcohol concentration increases from 50 to 100 milligrams per 100 millilitres of blood persons enter a state of impairment with deterioration in judgment, attention span, fine motor control, coordination and visual abilities and lengthening of reaction times particularly with divided attention tasks such as driving.

[83]            As the concentration increases from 100 to 150 milligrams per 100 millilitres of blood the person enters into the stage of intoxication where impairment is such that the person will exhibit gross physical symptoms such as problems with balance, swaying, unsteadiness, stumbling or staggering.  The person’s speech becomes slurred and unclear.

[84]            As the concentration increases above 150 towards 200 milligrams per 100 millilitres of blood the person moves to a level of advanced intoxication where there is more emotional instability.  At this level there will be effects on comprehension and difficulty providing appropriate responses to questions.

[85]            When the concentration passes above 200 milligrams per 100 millilitres of blood, persons become mentally confused and disoriented, eventually reaching a state of stupor until at around 400 to 450 milligrams per 100 millilitres of blood they lose consciousness.

[86]            Mr. Wong described a person whose blood alcohol level is between 132 and 162 milligrams per 100 millilitres of blood as being in a state of mild to moderate intoxication. 

[87]            Mr. Wong expressed the opinion that a person who drinks fairly regularly and has four to five drinks on each occasion will develop a tolerance to the effects of alcohol such that when he drinks four to five drinks he may not exhibit very many symptoms compared to a person who is not a regular drinker.  The body adapts to the effects of alcohol and its effect is not as significant on the practiced drinker as it is on someone who has not attained the same tolerance for alcohol.

[88]            Mr. Wong expressed the opinion that a person with a blood alcohol concentration of between 132 and 168 milligrams per 100 millilitres of blood would be able to put a key into a lock and open a door.  With regard to manual dexterity generally a person with that level of alcohol concentration would take longer to perform tasks and would have more difficulty completing the task accurately.

[89]            In cross examination Mr. Wong said that most individuals reach a state of intoxication, i.e. where they show outward symptoms at the level of 150 milligrams per 100 millilitres of blood but some may reach the state of intoxication closer to the 100 milligram percent level and some may not reach that state until much higher blood alcohol concentration levels.

[90]            Mr. Wong agreed that a person who is intoxicated could be capable of unpredictable behaviour, could be emotionally unstable, have lessened inhibitions, display increased risk-taking behaviour, over-estimate their abilities, misinterpret social cues, have increased speech volume, lessened ability to concentrate and diminished language skills.  He agreed that intoxication can have the following effects on a person:

·         impair a person’s ability to ascertain the consequences of one’s actions

·          cause one to misjudge reaction time

·         reduce hand/eye coordination

·         reduce visual acuity

·         impair judgment, ability to reason and perception

·         cause one to exaggerate threat cues

·         diminish impulse controls

[91]            Evidence was led relating to a farm accident involving Mr. McDonald when he was a young boy, which the defence submits is relevant to the issue of intoxication.  Mr. McDonald’s mother and his older brother, Robert, testified about an incident that occurred when Mr. McDonald was about 4 or 5 years old and was accidentally buried over his head in a trough full of cow feed.  They testified that when he was pulled from the trough he was not breathing.  Mr. McDonald’s father and mother drove him to the hospital in Mission, which was about 15 minutes away from the farm.  Mr. McDonald’s mother testified that she placed him in her lap with his head down and kept pounding on his back as they drove.  She said that as they approached Mission, her son coughed up a large amount of dairy feed and mucous.  Mr. McDonald was checked at the hospital but released the same day.

[92]            Dr. Ancill, a psychiatrist, testified for the defence concerning the effects of alcohol on memory as well as the effect of brain injury on alcohol consumption.  Dr. Ancill has a special interest in the psychiatric consequences of organic brain disease caused by or associated with such things as dementia, stroke, alcoholism, congenital disease and trauma of both a physical and emotional nature.  Dr. Ancill testified about the mechanism of memory.  He described four components of memory: (1) perception, (2) recognition or interpretation, (3) encoding or laying down memory and (4) retrieval.  He testified that intoxicants effect perception and interpretation as well as the laying down of memory as does a brain injury.  Dr. Ancill reviewed with Mr. McDonald the details of the incident as recalled by Mr. McDonald and was of the opinion that there were gaps in his memory due to lack of encoding or laying down memory.  The gaps represent periods of time during which there is no recollection of events.

[93]            Dr. Ancill was of the opinion that the accident when Mr. McDonald was 4 or 5 years old likely resulted in either complete or at least partial interruption in the flow of oxygen to the brain (anoxia or hypoxia) which likely caused a mild brain injury.  He said that the fact that Mr. McDonald had more difficulty in school than his siblings is consistent with his having suffered a brain injury.  He further testified that a mild brain injury will amplify the effects of alcohol and make interference with memory more likely.

[94]            Mr. Belanger is the only person, apart from Mr. McDonald’s children and the deceased, who saw Mr. McDonald in the hours before the fatal shooting.  He testified that on the evening of November 13, 2003 both Mr. McDonald and Laurie McDonald appeared to be in a good mood and their mood did not appear to change during the evening.   He did not notice anything out of the ordinary.  When he arrived at Ms. Catherwood’s residence Mr. Belanger did not notice any effects of alcohol on either Mr. McDonald or Laurie McDonald.  When Mr. McDonald left, Mr. Belanger did not notice anything out of the ordinary about his demeanour.

[95]            Mr. McDonald testified that his drinking caused amnesia at times.  He said that there were a number of occasions when the day after he had been drinking he had no recollection of what he had done when under the influence of alcohol.  Robert McDonald gave evidence that corroborated Mr. McDonald’s testimony about these episodes of amnesia following his drinking.

[96]            Mr. McDonald’s evidence of the night in question contains two substantial and significant gaps.  He has no recollection of travelling home from Ms. Catherwood’s residence to his own or of anything that happened after he arrived home until he woke up in bed with his clothes on.  He was then able to recall the altercation with his wife up to a certain point.  There is then another substantial gap relating to the time when Laurie McDonald went from the bedroom to the kitchen and he retrieved the rifle and followed her into the kitchen.  His memory picks up again just before the shooting, although he did not recall actually aiming and firing the rifle; although there is no doubt he did both of those things.

[97]            Mr. McDonald’s lack of memory tends to indicate a degree of intoxication sufficient to produce an episode of amnesia but it does not, by and of itself, provide any excuse or defence.  The fact that Mr. McDonald cannot recall what he did at the time does not mean that he was not aware at that time what he was doing and what the consequences of his actions would be.  There is no suggestion that his actions were not voluntary.

[98]            In considering whether the evidence of intoxication raises a reasonable doubt that Mr. McDonald meant to kill his wife or in fact foresaw that his act of firing the rifle at point blank range would cause his wife’s death, it is relevant to consider his actions not only before and at the time he pulled the trigger but also after the shooting.   

[99]              Mr. McDonald testified that just after the gun went off he said to himself, “What did I do”?  Almost immediately, he showed an understanding of what he had done by giving thought to ending his own life.  He decided not to, concerned about what it would mean to his children.  He showed concern for his children and responsibility by trying to reach his brother, Brian, to have him come to the house to remove the children.  When he spoke to Terra-Lee McDonald he did not say he did not know what happened.  His statement was to the effect that Laurie McDonald was attacking him and wouldn’t stop and he shot her.

[100]        Mr. McDonald then telephoned his mother-in-law so that he could tell her himself what he had done.  During that conversation his voice was monotone, not animated or emotional.  He was coherent.  He did say to Ms. Grabinsky that he didn’t mean to do it.

[101]        During his conversation with the 911 dispatcher Mr. McDonald does not sound intoxicated.  I could detect no slurring of his speech.  Mr. McDonald was clearly upset and sorrowful but communicated rationally, answered questions appropriately and correctly for the most part and showed a degree of perception and comprehension that is not consistent with a person who is highly intoxicated.  For example, he was able to correct the 911 operator that a .30-06 was not a shotgun but a rifle. 

[102]        Richard Dekker testified that nothing he observed about Mr. McDonald at the residence on November 13, 2003 led him to suspect that Mr. McDonald had been drinking.

[103]        The observations of Mr. McDonald by Cst. Starr and Cst. Massey, who were dispatched to the scene of the crime and arrived there between 10:41 p.m. and 11:00 p.m., were tendered by way of formal admissions.  The agreed facts include the following:

·         Cst. Starr approached the residence and called out, “Dean, it’s the police, come out with your hands up”.

·         Cst. Starr observed the accused come out of the residence wearing a white T-shirt and dark sweat pants.  The accused asked if he could put on his shoes.

·         Cst. Starr responded with, “No, we’ll get them later”.

·         The accused bent to his right and proceeded to put on his shoes and at this time Cst. Starr yelled at the accused to put his hands up.

·         Cst. Starr then instructed the accused to come off the porch, turn around, get on his knees and cross his ankles together.

·         The accused complied with all commands save and except for crossing his ankles and the accused advised Cst. Starr that he, “could not do it” after attempting to comply with that command.

·         Cst. Starr then instructed the accused to place his hands behind his back at which time the accused grasped his hands together behind his back.  When commanded by Cst. Starr to let go of his hands and to place them palms up, the accused complied.

·         With the noted exceptions the accused complied with commands as quickly as they were given and Cst. Starr observed that the accused had no problem performing the necessary motor functions to comply with the commands.

·         Upon walking to Cst. Starr’s patrol car, the accused did not require assistance and his walk appeared to Cst. Starr to be normal.

·         Cst. Starr placed the accused in the back of his patrol car for the purpose of transporting him to the Detachment, obtained his name and date of birth and advised him of his rights pursuant to sections 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms.

·         The accused responded to Cst. Starr with the following: “Well, when I get there I’ll be able to talk to a lawyer I guess?”

·         Cst. Starr asked the accused, “Do you want to contact a lawyer?” and the accused responded, “It would be in my best interests wouldn’t it?”

·         Cst. Starr noted that the accused had droopy eyelids, a slow blink speed and that his speech was slow and a bit slurred.  Cst. Starr observed that the accused appeared dazed, stared straight ahead, did not show any emotion and that his voice was monotone.

·         During the 15 to 20 minute drive to the detachment, the accused was in the back of Cst. Starr’s patrol car behind what is known as a “silent patrolman”, a piece of Plexiglas between the front and back seats with small spaces on either side.  Cst. Starr was able to note an odour of liquor coming from the back of the patrol car.

[104]        At the police station Cst. Mudry completed the booking procedure.  Mr. McDonald provided appropriate and correct responses to Cst. Mudry’s inquiries concerning name, date of birth and weight.  Cst. Mudry also took swabs from Mr. McDonald’s face for the purpose of DNA analysis and while doing so he noticed the moderate smell of alcohol on Mr. McDonald’s breath.  The only other observation he made relating to alcohol consumption was a slight slur when Mr. McDonald gave his name.

[105]        The facts of this case bear a number of similarities to those in R. v. Lemky and, even though I have concluded that the defence of intoxication has an air of reality in this case, many of the observations of Chief Justice McLachlin in that case are, in my view, applicable here.  Mr. Lemky, his live-in companion Ms. Cummins and some friends spent some time drinking between the hours of 7:45 p.m. and 9:30 p.m.  Mr. Lemky and Ms. Cummins then went to a dance and returned home about an hour later.  Shortly before 11:00 p.m. Mr. Lemky called his mother and told her that Ms. Cummins was dead and asked her to call the police.  A few minutes later Mr. Lemky called the police and told them he had shot and killed Ms. Cummins.  He said it was an accident.  In his statement to the police Mr. Lemky said he and Ms. Cummins were arguing and he got his rifle but did not think it was loaded and it went off.  At trial Mr. Lemky relied on the defence of accident.  He did not raise the issue of intoxication except insofar as it related to the defence of accident.  On appeal the appellant argued that the trial judge should have put the defence of intoxication to the jury based on the evidence, notwithstanding that the accused had not raised it.

[106]        Chief Justice McLachlin reviewed the evidence relating to alcohol consumption at p. 761:

The evidence on the appellant’s state of inebriation before the shooting was conflicting.  Some saw him as loud and obnoxious at the dance.  The bartender at the dance served Lemky some beer and noticed that “he had had a few drinks before that”.  Another witness testified that the appellant showed no signs of intoxication, and seemed “very straight”.  At 11:03, immediately after the shooting, the police noted alcohol on his breath and that his eyes were watery and bloodshot.  The breathalyser test taken about three-quarters of an hour later showed a reading of 130 milligrams of alcohol per 100 millilitres of blood.  When asked about his consumption of alcohol that evening in the course of his  initial interview with the police following the shooting, Lemky responded that the had consumed about one-half bottle of whisky brought by Valachy, followed by about three more drinks at the dance, and said, “Oh, uh, I had quite a bit to drink.”

[107]        At pp. 767-769, McLachlin C.J. addressed the question whether the evidence was sufficient to permit a reasonable inference that the accused may have lacked the intent for murder:

On the law discussed above, was there sufficient evidence to permit a reasonable inference that the accused might not have known that shooting Michelle Cummins was likely to result in her death?  Was the evidence sufficient, to use the common legal phrase, to give this defence an "air of reality"? Neither party disputes the conclusion of the Court of Appeal that the evidence was insufficient to raise a reasonable inference that the accused lacked the capacity to foresee the consequences of his act.  The only question is whether, accepting the law as stated above, there was nevertheless 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.  If there was, then the jury should have been instructed that if they entertained a reasonable doubt about this element of the offence they must acquit the accused of second degree murder and return a verdict of guilty of the included offence of manslaughter.

In my view, the evidence, considered most favourably for the accused, falls short of supporting such an inference. His blood alcohol level shortly after the shooting was only slightly over the legal limit for driving an automobile.  He carried out purposeful actions both before and after the shooting, actions which ranged from ordering drinks at the dance beforehand to calling his mother and the police immediately afterward.  His conduct before and after the shooting demonstrated 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.

The next question is whether there is anything on the evidence to support the conclusion that, contrary to his state of mind before and after the shooting, the appellant at the moment of the shooting did not foresee the consequences of that particular act.  In considering this question, it is important to analyze the evidence in relation to the theory of the defence on the particular facts of the case.  The appellant's explanation for the shooting and his defence at trial was accident.  That defence was properly put to the jury and the jury rejected it. Now, on appeal, the appellant asserts the quite different defence that he was too drunk to realize that shooting Michelle Cummins would cause her death.  The actus reus of non-accidental, i.e., intentional, shooting is conceded for the purposes of this defence.  The defence goes rather to mens rea.  It asserts that, notwithstanding that the act of shooting was willed and deliberate, the fatal consequences of the act were by reason of drunkenness unforeseen by the appellant, and hence he lacked the subjective foresight of death required by s. 229(a)(ii) of the Code.

Was there, assuming the appellant to have deliberately shot Michelle Cummins, any evidence to support the inference that he was too drunk to know that this might cause her death?  In my view, there was none.  Viewed in the context of the appellant's intentional and purposive conduct before and after the act of pulling the trigger, the notion that he might not have known what the consequences of pulling the trigger were by reason of drunkenness  has about it an air of unreality.  There is nothing in the evidence of what happened at the moment of shooting to detract from this conclusion.  The appellant never asserted that he shot Michelle Cummins without realizing or foreseeing that he would kill her; his defence was rather that he never shot her at all, but that the gun went off by accident. Moreover, the gun was of a type that required two separate muscular forces to be exerted in order to discharge a round; simply pulling the trigger was not enough.  It had to be removed from the rack where it was stored, and, assuming a deliberate shooting, generally levelled or aimed at the deceased.  These facts tend to  belie the notion that, at that very moment of shooting Ms. Cummins, the appellant did not know that the shot would be likely to kill her.  One searches in vain for any evidence which would indicate that despite his purposive actions proximal to the shooting, he failed to foresee the consequences of the shot itself.  In short, there is nothing on the facts of this case which lends an air of reality to the defence that the appellant lacked the necessary mens rea for the offence of murder because intoxication prevented him from foreseeing that the act of shooting was likely to cause Ms. Cummins' death.

(Emphasis added)

[108]        Just like Mr. Lemky, Mr. McDonald carried out deliberate and purposeful actions both before and immediately after the shooting.  He interacted with Mr. Belanger in a manner that aroused no concern on the part of Mr. Belanger regarding his state of intoxication.  While he does not recall doing so, Mr. McDonald drove home from Ms. Catherwood’s residence with his son in the car.  In order to carry out the shooting Mr. McDonald had to recall where the rifle was located, retrieve it wherever it was, follow Laurie McDonald into the kitchen, raise the rifle to his shoulder, point it at her, release the safety and pull the trigger.

[109]         Immediately after the shooting, Mr. McDonald displayed actions that showed concern and thoughtfulness.  He called his brother to come to take charge of the children.  He ensured that his son would not enter the kitchen and see the mess.  While the call must have been a great shock, he telephoned his mother-in-law to tell her directly about the tragic incident.  That showed a certain degree of thoughtfulness. 

[110]        During his conversations with the 911 operator Mr. McDonald was coherent and logical.  Apart from misspeaking that his wedding anniversary was two years away rather than two weeks away and stating that there were five weapons in the house, perhaps because he did not include the one he was storing for Ms. Catherwood he provided correct information.

[111]        Mr. McDonald complied, without hesitation or delay, with all commands given to him by the police at the time of his arrest except that he at first started to put on his shoes when he had been told that he could get them later and he was unable to cross his ankles while kneeling.  Cst. Starr noticed some slurring of speech and that Mr. McDonald had droopy eyelids and a slow blink speed but his gait was normal and his responses were appropriate and accurate.

[112]        The evidence relating to Mr. McDonald’s consumption of alcohol does not raise in my mind any reasonable doubt that he had the capacity to and did in fact foresee the inevitable consequences of his actions when he placed the rifle barrel against his wife’s head and pulled the trigger.

[113]        Counsel for Mr. McDonald submits that evidence relating to the safety mechanism on the .30-06 rifle is sufficient to raise a reasonable doubt that when Mr. McDonald raised the rifle to his shoulder and pointed it at Laurie McDonald he accidentally released the safety and pulled the trigger.  He does not suggest that such “accidental discharge” would result in a complete acquittal.  He does not suggest that the act of pointing the rifle directly at Laurie McDonald was not a voluntary act but he submits that if the discharge of the rifle was accidental, Mr. McDonald would be guilty of manslaughter only.

[114]        The Savage .30-06 rifle has a safety that is located on the top of the stock, just behind the bolt action.  The safety is operated by sliding it forward or backward.  The safety is on when it is in the rear position.  Sliding the mechanism forward approximately one-quarter inch releases the safety so that the trigger will release and the rifle will fire.  When a right-handed person takes the rifle and assumes a shooting position with the right hand around the pistol grip and finger near the trigger the safety tends to be positioned naturally near to the right thumb. 

[115]        Mr. Earl Hall, an expert in firearms, examined the .30-06 rifle and tested it for accidental discharge.  He concluded that the rifle was not prone to accidental discharge but if the muzzle of the rifle was struck forcefully against a wooden butcher block the safety switch would move forward, releasing the safety.  He noted that the safety switch seemed to move more easily than normal.

[116]        Counsel for Mr. McDonald suggested that because of the laxity in the safety switch, Mr. McDonald may have accidentally pushed it forward during the act of pointing the rifle and, at the same time, accidentally pulled the trigger.  In my respectful opinion, such a suggestion is pure speculation unsupported by any evidence.  Furthermore, while it does not take a great deal of forward force to slide the safety forward, moving the thumb forward is not part of the natural hand motion in raising the rifle from the side to the shoulder while holding the rifle with the right hand around the pistol grip and placing the index finger near or on the trigger.

[117]        Having considered all of the evidence, including Mr. McDonald’s actions before, at the moment of and following the shooting; his alcohol consumption and its effects on him, taking into account his prior mild brain injury, his statements made shortly after the incident, his testimony at trial regarding his lack of intention to harm his wife, as well as the evidence relating to the altercation in the bedroom prior to the shooting and how it affected him, I am satisfied beyond a reasonable doubt that Mr. McDonald possessed the necessary intent for second degree murder. 

Provocation

[118]        I must now consider whether Mr. McDonald can rely on the defence of provocation as defined by s. 232 of the Criminal Code.  I repeat what I said earlier: Mr. McDonald does not have the burden of proof; it is for the Crown to prove beyond a reasonable doubt that at least one of the essential elements of the defence is absent.  I will deal with each of the ingredients of the defence in turn.

Was there a wrongful act or insult?

[119]        Defence submits that the wrongful act in this case consists of Laurie McDonald throwing her glasses and the ornament at Mr. McDonald and in attacking him with a broken shard of glass.  Crown concedes that if the deceased went after Mr. McDonald with a shard of glass that is a wrongful act.

[120]        Mr. McDonald’s testimony, together with the physical evidence of the broken window, broken ornament, piece of broken glass found near Mr. McDonald’s side of the bed, the cut or tear in the bedclothes and the injuries to Mr. McDonald, even though they were minor, all give rise to at least a reasonable doubt regarding this issue.

If there was a wrongful act was it of such a nature as to be sufficient to deprive an ordinary person of the power of self-control?

[121]        Crown submits that an ordinary person of the same age and sex as Mr. McDonald, sharing with him those factors that would give the wrongful act a special significance and having experienced the same kind of relationship with the provoker as Mr. McDonald had with Laurie McDonald would not be deprived of self-control by the wrongful act.  Crown submits the actions may have made Mr. McDonald angry and caused him to act out of anger but do not constitute provocation within the meaning of the Criminal Code. 

[122]        In the determination of this ingredient of the defence, I consider the following circumstances relating to Mr. McDonald’s background and relationship with Laurie McDonald to be relevant to the description of the ordinary person in this case.  Mr. McDonald and Laurie McDonald had been married for nearly 10 years.  There is no evidence the marriage was in difficulty.  Mr. McDonald and Laurie McDonald argued, usually about money matters, but there is no suggestion the arguments had ever before escalated into any significant physical altercations.  At most, Laurie McDonald had punched Mr. McDonald in the shoulder.  There is no evidence he ever assaulted her.  Mr. McDonald testified the arguments generally would cease when he walked away.  There is no evidence Laurie McDonald was in an abusive relationship.  The descriptions of Mr. McDonald given by the witnesses are those of a mild mannered rather than aggressive individual.    

[123]        I am satisfied that the acts of throwing a pair of glasses, and throwing an ornament at an ordinary person, whether considered alone or together would not deprive that person of self-control. 

[124]         However, I think it is a different matter if a person’s spouse, who has never before resorted to any extreme form of physical violence during an argument, suddenly picks up a broken shard of glass, “freaks out”  and begins to stab at the person over and over again while shouting death threats.  Such a sudden and potentially dangerous action, unexpectedly coming from a spouse who has never before displayed such violence would, in my view, suddenly strike upon a person unprepared for it and I have at least a reasonable doubt on this ingredient of the defence, namely whether it would cause an ordinary person in that situation to lose self-control. 

Was Mr. McDonald in fact deprived of self-control by the provocation and did he react suddenly before there was time for his passion to cool?

[125]        At this stage of the analysis, I must ask whether Mr. McDonald’s actions were in fact the result of sudden provocation and whether the retaliation was sudden and before there was time for passion to cool.  This issue is difficult because Mr. McDonald has little or no recollection what was in his mind at the relevant time.  I must determine this issue as a matter of inference from all of the surrounding circumstances. 

[126]        Crown submits Mr. McDonald was not in fact provoked by Laurie McDonald within the legal definition of provocation but that he simply responded to his anger, which escalated from the time Laurie McDonald threw her eye glasses at him until she was attacking him with the piece of broken glass.  On cross-examination, Mr. McDonald agreed with the suggestion of Crown counsel that he became angry when Laurie McDonald threw the ornament at him.  He agreed that he was probably angry and said, “That must be why I grabbed the gun”.  Crown submits that Mr. McDonald was motivated to shoot his wife because of his anger not because he lost his self-control due to provocation. 

[127]        In considering whether Mr. McDonald reacted suddenly as a result of provocation I must consider subjective factors such as Mr. McDonald’s mental status, temperament, degree of intoxication, character and any other relevant personal characteristics.

[128]        The critical issue with regard to the defence of provocation, in my view, is whether Mr. McDonald’s reaction or retaliation was sudden, before there was time for his passion to cool.  Crown submits that Mr. McDonald did not respond to the provocative acts “on the sudden”.  Crown submits that by the time Mr. McDonald retrieved the rifle and followed Laurie McDonald into the kitchen there was ample time for him to regain control and that he merely permitted his anger to cause him to pull the trigger. 

[129]        The length of time between the act of provocation and Mr. McDonald’s act of retaliation would be different depending on where he got the rifle.  If, as the Crown postulates, Laurie McDonald left the bedroom and went into the kitchen while Mr. McDonald got the key from his bedside table, went upstairs into the closet in A.M.’s room, took the rife and soft gun case from the safe, re-locked the gun safe, took the rifle from the case, loaded the rifle, returned to the main floor, went into the kitchen and shot Laurie McDonald, the elapsed time could have been a matter of minutes.  More importantly, the number of purposeful actions that Mr. McDonald would have carried out would be sufficient to allow him to think about the situation and let his passion cool. 

[130]        There is a body of evidence that supports the Crown’s version, not the least of which is Mr. McDonald’s statement to the 911 operator.  There is also the evidence of the soft gun case found in the upstairs landing and A.M.’s evidence that the chair which she kept by the door to the closet containing the gun safe was moved.  On the other hand, there are aspects of this version that may seem unusual.  On the Crown’s theory, Mr. McDonald not only took the time to re-lock the gun safe, he also put the key back into the drawer in his bedroom.  Such actions may seem unusual in the circumstances but the whole incident was obviously unusual.      

[131]        The version given by Mr. McDonald would require him to recall that the rifle was under the bed, retrieve it from the case and walk down the hall into the kitchen to confront Laurie McDonald.  These actions could be completed in a matter of seconds rather than minutes. 

[132]        However, I do not accept Mr. McDonald’s testimony that he forgot about the rifle under the bed.  He is an experienced hunter and, according to Brian McDonald, observed proper gun safety.  He kept his guns in a locked gun safe.  He had two small children who had the run of the house.  They could have gone into the bedroom, found the loaded gun and seriously injured or killed someone.  I am satisfied Mr. McDonald was more careful than that. 

[133]        It is also significant that Laurie McDonald’s broken eyeglasses were found in two different locations in the kitchen, splattered on the inside of the lenses with blood and brain matter.  If Mr. McDonald’s version of events is true, it would mean that Laurie McDonald would have had to hold her broken glasses in her hand all the time while picking up and throwing the ornament and while stabbing at Mr. McDonald with the piece of broken glass.  That is an unlikely event.

[134]        While I am satisfied that an altercation of some sort took place in the bedroom that may well have involved Laurie McDonald attacking Mr. McDonald with a piece of broken glass, the altercation had come to an end and Laurie McDonald had moved from the bedroom to the kitchen before Mr. McDonald retrieved the rifle and went after her.  I find that after the altercation had come to an end Mr. McDonald went upstairs, got the rifle from the gun safe, came back downstairs, went into the kitchen and shot Laurie McDonald.   

[135]        The evidence satisfies me beyond a reasonable doubt that Mr. McDonald did not react on the sudden and before there was time for his passion to cool. 
There was ample time for him to regain his self-control.  I conclude that, driven by his upset and anger at his wife, Mr. McDonald took deliberate and controlled steps to retrieve his rifle, confronted Laurie McDonald in the kitchen, placed the barrel of the rifle to her head and pulled the trigger.  No doubt, he immediately regretted what he had done and wished that he had not done it but I am satisfied beyond a reasonable doubt that an essential element of the defence of provocation is absent.  Accordingly, I find Mr. McDonald guilty of the offence of second degree murder. 

“B.M Joyce, J.”
The Honourable Mr. Justice B.M. Joyce