The Defence Toolkit – September 7, 2024 “Texting about Future Sex”

OVERVIEW

[1] Jeffrey Reimer appeals his convictions for sexual assault with a weapon, unlawful confinement and extortion arising from events alleged to have occurred in April 2018 during a date with the complainant, whom he met on a dating website. The parties agree that sexual acts occurred in a motel but provided diametrically opposed accounts of those events. The complainant testified to being coerced into the motel room and then being subjected to acts of forced sex. Mr. Reimer described consensual sexual acts with the complainant after she willingly joined him in the motel room.

[2] After a failed s. 276 application, Mr. Reimer was denied the use at his trial of multiple sexualized text messages exchanged with the complainant, including shortly before the incident that forms the subject matter of the charges, in which they described the sexual activity they wanted to engage in. The trial judge ruled that although the non-sexual communications were admissible, the sexual communications were not because: (1) they were irrelevant; (2) they were being offered for the illegal purpose of proving the complainant consented in advance to the sexual activity that occurred; and (3) their use as evidence depended upon inferences prohibited by s. 276 of the Criminal Code, R.S.C. 1985, c. C-46. None of these conclusions are correct. Although I am unable to conclusively determine whether any of the sexualized text messages should have been admitted, I am persuaded that the trial judge erred in excluding the evidence on these bases.

[3] For this reason, which I explain in greater detail below, I would allow the appeal, set aside the convictions, and order a new trial. I will also address the remaining grounds of appeal, none of which I would accept.

ANALYSIS

The s. 276 Admissibility Regime

[28] It can be seen that s. 276 does not operate in all criminal prosecutions. First, s. 276(2) applies solely to “sexual activity” evidence relating to a complainant that is called by the accused. 2 There is no controversy that the sexualized texts that Mr. Reimer attempted to have admitted constitute sexual activity as defined in s. 276(4).

[29] Second, s. 276 does not apply unless the accused is being tried for one of the offences enumerated in s. 276 (such as the s. 272(2) charge), or one of those enumerated offences could have been particularized in the charging document because that offence is implicated in a charge that has been laid (such as the s. 279(2) charge, where the unlawful confinement allegation entailed being held during an alleged sexual assault): R. v. Barton, 2019 SCC 33, [2019] 2 S.C.R. 579, at paras. 70-78.

[30] Third, s. 276 does not apply to “sexual activity that forms the subject-matter of the charge”. For s. 276 to be engaged, the complainant’s alleged sexual activity must be “other sexual activity”: R. v. McKnight, 2022 ABCA 251, 416 C.C.C. (3d) 248, at para. 231, leave to appeal refused, [2022] S.C.C.A. No. 341. In R. v. Goldfinch, 2019 SCC 38, [2019] 3 S.C.R. 3, at paras. 43, 48, Karakatsanis J. referred to such evidence as “previous sexual activity” evidence.

[31] In simple terms, in the trials to which s. 276 applies, s. 276(1) absolutely prohibits evidence from being used to draw what are commonly referred to as “twin-myth” inferences: Goldfinch, at para. 40; R. v. T.W.W., 2024 SCC 19, at para. 25. “The accused must propose a use of the evidence that does not invoke twinmyth reasoning”: Goldfinch, at para. 51. Below, I will describe in some detail the prohibited inference related to consent, identified in s. 276(1)(a).

[32] Section 276(2) makes other sexual activity evidence prima facie inadmissible if called by an accused person: Goldfinch, at para. 40. It sets out cumulative preconditions to admission that the accused must satisfy, effectively creating two distinct hurdles to admission. First, s. 276(2) reaffirms that if the sexual activity evidence is proposed to be called for a purpose prohibited by subsection (1) it cannot be admitted. This is the first hurdle: the accused must offer the other sexual activity evidence for a permissible purpose. Second, even if offered for “other relevant purposes [other sexual activity evidence] must satisfy rigorous criteria”: R v. R.V., [2019] 2 S.C.R. 237, 2019 SCC 41, at para. 2. It must: (1) be relevant to an issue at trial; (2) be of specific instances of sexual activity (as opposed to the complainant’s general character or reputation, for example); and (3) have significant probative value that is not substantially outweighed by the danger of prejudice it poses to the administration of justice, in light of the considerations enumerated in s. 276(3).

[34] In this case the trial judge blended the two-part process, as is not uncommonly done. In my view, this practice should be discouraged. The stage one application for a hearing is meant to winnow out applications that, on their face, have no realistic prospect of succeeding, not only to avoid wasteful hearings but to spare complainants from the unnecessary embarrassment and indignity of a s. 276 hearing. The stages of the two-stage process should be kept distinct.

A. DID THE TRIAL JUDGE ERR IN FINDING THAT S. 276 APPLIED TO ALL SEXUAL COMMUNICATIONS, REQUIRING ALL OF THEM TO SATISFY THE S. 276 ADMISSIBILITY REQUIREMENTS?

[39] Mr. Reimer argues that the trial judge erred in requiring the sexualized texts to satisfy s. 276 before gaining admissibility because the sexual communications are not other sexual activity evidence. He argues that those communications (or at least the ones after the cancellation of the first proposed meeting on April 4, 2018) are part of the same transaction as the sexual activity that forms the subject matter of the charge since they express the intentions of both parties relating to their in-person meeting and occurred proximate in time to that in-person meeting where the alleged sexual assault with a weapon occurred. He maintains that these communications therefore fall outside of s. 276.

[44] Having considered this ground of appeal, I would reject it. In my view, the trial judge was correct to vet the admissibility of the sexualized messages under s. 276 because the exchange of those messages was not part of the subject matter of the charges at Mr. Reimer’s trial. I do accept that, as the foregoing examples from Choudhary and Lennox illustrate, there are cases where proximate sexual activity that is not the immediate subject of a prosecution will be sexual activity that forms the subject matter of the charge, and therefore exempt from having to meet s. 276 scrutiny to gain admissibility: Choudhary, at paras. 25-26; Lennox at para. 26; see also McKnight, at paras. 259-60. However, this is not such a case.

[45] In deciding whether proximate sexual activity that is not the immediate subject of a prosecution will fall outside of the purview of s. 276, the place to begin is by characterizing the “subject matter of the charge” the accused is facing. In R. v. J.J., at para. 67, the majority explained that, in s. 276, this phrase relates to the “components of the actus reus of the specific charge that the Crown must prove at trial”. In understanding this, it is important to appreciate that although the term actus reus is commonly understood to be describing the physical act that an accused has engaged in – such as the act of touching in a sexual assault prosecution – the actus reus concept extends to all of the physical elements of the offence, including the factual conditions that must exist for the offence to be complete…

….. In McKnight, the Alberta  Court of Appeal put it well. It explained that, “[t]o fall within the scope of ‘sexual activity that forms the subject-matter of the charge’”, and thereby fall outside the scope of s. 276 scrutiny, “at the very least, the ‘sexual activity’ must be part of the specific factual events of which the offence is a component”: at para. 254.

[46]…As Coroza J.A. made clear in Choudhary, to bypass screening under s. 276, the uncharged sexual activity must be so “integrally connected, intertwined or directly linked to” that activity – the actus reus of the specific charge – that it is effectively part of the transaction or event that is being prosecuted: at para. 29. Generally, the sexual activity must also be “closely connected by time and circumstance to be considered to be part of the same transaction”: R. v. X.C., 2020 ONSC 410, at para. 39, per Dawe J. (as he then was).

[48]….Previous sexual activity that is not the immediate subject of the prosecution should be characterized as other sexual conduct and vetted for admission under s. 276 unless it is clearly integrally connected, intertwined, or directly linked to the event being prosecuted. I endorse Coroza J.A.’s view that “if a judge harbours some reservations [about this] they should act with caution and proceed with a s. 276 analysis”: Choudhary, at para. 34.

[49] I am not persuaded that this is a clear case where the sexualized texts that were exchanged between the parties forms part of the subject matter of the charges Mr. Reimer faced at the trial. Quite the contrary. Although I am persuaded that at least some of those sexualized texts are relevant to the subject matter of the charge, they are not part of the specific factual event itself, in which Mr. Reimer allegedly sexually assaulted the complainant with the use of a weapon, while she was unlawfully confined. The sexualized texts were exchanged before the parties came together. Those texts speak about the motel visit as a future event. In my view, the sexualized texts are simply too remote in time and too distinct in nature from the charged events to avoid s. 276 scrutiny. I would not give effect to this ground of appeal.

B. DID THE TRIAL JUDGE ERR IN FINDING THE SEXUAL COMMUNICATIONS TO BE INADMISSIBLE ON THE ISSUE OF CONSENT?

[50]….In my view, his determination that all of the sexualized texts are irrelevant is wrong and he erred in arriving at his related conclusions that the admission of the proposed evidence would: (1) violate the contemporaneity requirement for consent, and (2) be based on a prohibited inference….

Relevance and the Issue of Consent

[62] Instead, Mr. Reimer submitted that the trial judge erred by not finding the sexualized messages to be relevant to “narrative”, arguing that they show what the parties contemplated when they met up, and that the complainant “was carrying on with the intentions she had continually expressed in her texts”. With respect, these arguments, also made before the trial judge, are not arguments about “narrative”. As the trial judge recognized, they are arguments about “consent”. Before I address the errors that the trial judge made in rejecting the admission of the messages on this basis, I will explain why the theory of narrative does not provide a basis for the admission of s. 276 evidence.

[63] In order to be admissible under s. 276, sexual activity evidence must be “relevant to an issue at trial”: s. 276(2)(b). In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at para. 47, Rothstein J. explained the theory of narrative: “Evidence that is not adduced to prove a live issue, or support the prosecution’s [or defence’s] case, but that is merely provided to complete the narrative may be admitted even if it does not satisfy the strict requirements of relevance.” Put otherwise, “narrative” evidence is simply background information that is received even though it is not relevant to an issue at trial, because it enables testimony to unfold in a natural and comprehensible fashion. Therefore s. 276 applications should not be granted on the theory that the sexual experience evidence is relevant to “narrative”. The accused must show that the sexual experience evidence is relevant to an identified live issue in the case.

[64] At trial and before us, although Mr. Reimer misapplied the “narrative” label, he argued that at least some of the sexualized texts were relevant to the live issue of consent. In dismissing the application on the issue of consent, the trial judge provided the three related reasons I have outlined. First, he found that “the text messages have no relevance on the issue of consent,” and said that the complainant’s reference to the prior communications before even arriving at the motel is of “no relevance.” Second, he reasoned that since consent must be provided at the time of the sexual activity, text messages about prior consent cannot be relevant. Third, he found that the proposed uses of the text messages contravened the prohibited inference relating to consent, saying, “[T]he sexual content of the pre-meeting texts is only important if used to suggest that the complainant was more likely to have consented because she had expressed interest in engaging in sexual relations with the defendant in the days leading up to their encounter. That is one of the twin myths.” In my view, each of these three conclusions is mistaken.

[65] A number of the sexualized texts have obvious relevance on the issue of consent. As indicated, after the meeting was scheduled, the parties exchanged sexualized text messages describing what they intended to do when they met….

[70] Given their timing, context, and content, the illustrative text messages reproduced in paras. 66-68 above were statements made or adopted by the parties about what they intended to do during their pending meeting. Even though individuals can say things that they do not really mean or change their minds, it is an incontrovertible proposition of logic and human experience that a statement of present intention to do an act at a future time increases the likelihood that the speaker will engage in that act on that future occasion. Because of the sound logical foundation for this kind of reasoning, the law of evidence has recognized a hearsay exception that admits statements of present intention as evidence that the speaker later carried out that intention. That exception was reaffirmed in R. v Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. There the Crown sought to rely on a statement made by the deceased to his girlfriend shortly before his death that he was going to go out with Starr, as evidence that Starr was with the deceased when he died, and therefore had the opportunity to kill him. The majority affirmed this longstanding exception, although it excluded the evidence in that case because, among other things, the deceased may have had real motive to lie to his girlfriend about his intentions. That outcome does not change the salient fact that in Starr the Supreme Court of Canada adopted the logical relevance of the very line of reasoning that emerges in this case and found it compelling enough to embed this kind of inference in a fixed hearsay exception. The fact that the complainant communicated an intention to engage in consensual sexual acts with Mr. Reimer when they got together, is logically relevant to the likelihood that she did so when they got together.

[71] The Crown argued before us to the contrary that the complainant may simply have been engaging in fantasy role playing when exchanging the sexualized messages, with no intention to carry forward. That is entirely possible, and it would be open to a trier of fact to accept that theory at the end of a trial. But it would also be open to a trier of fact to find that some of the sexualized texts, including the ones I use to illustrate the point, represent serious expressions of intention, increasing the likelihood that the complainant later acted consensually. As Doherty J.A. pointed out in the passage from R. v. L.S. quoted above, evidence does not have to establish a fact to be relevant, nor need it be determinative. It must simply have some tendency in logic to increase the probability of the inferred fact. Some of the statements in the sexualized communications clearly meet the standard of relevance required for admission. The trial judge was wrong in law to hold otherwise.

[72] In addition, Mr. Reimer testified that en route to the motel the complainant spoke about doing the things described in the sexualized texts. Once again, if the complainant indeed made this statement, it would be relevant on the issue of consent as a statement by her of her present intention to consensually engage in those described acts a short time later at the motel. Derivatively, the sexualized texts referenced in that statement would also be relevant since they provide the details of the acts she communicated her intention to engage in. The fact that a trier of fact could choose to disbelieve Mr. Reimer’s claim that this conversation even occurred does not change the relevance of his testimony about the complainant’s alleged comment, or of the texts it incorporated. Credibility, weight and relevance are distinct concepts.

The Relevance of the Text Messages Does Not Offend the Contemporaneity Rule

[74] I am also persuaded that the trial judge erred by accepting the submissions of the Crown and complainant’s counsel that the earlier expressions of consent were not relevant as a matter of law because consent must be given at the time of the sexual touching (the “contemporaneity rule”). This rule has no application to the lines of reasoning I have described. Neither of those lines of reasoning depend upon the theory that the consent the complainant expressed earlier was the consent provided in the motel. They depend, instead, on the theory that her earlier statements of intention to consent are relevant to the question of whether she did, in fact, consent during the meeting in the motel room. The Alberta Court of Appeal rejected a similar overextension of the contemporaneity rule in McKnight. The Alberta Court of Appeal commented, at para. 261, that this kind of error “conflates the law of consent with the law of evidence.” The Court in McKnight, at para. 261, cited Professor Lisa Dufraimont’s observation made in “Myth, Inference and Evidence in Sexual Assault Trials” (2019) 44:2 Queen’s L.J. 316, at p. 328, that “the fact that consent must be contemporaneous does not mean that evidence relevant to the factual question of consent must also be contemporaneous.” R. v. Ewanchuk is one of the leading authorities insisting that consent must relate to the complainant’s subjective state of mind at the time of the sexual activity: [1999] 1 S.C.R. 330, 131 C.C.C. (3d) 481, at para. 26. Yet in that decision Major J. recognised, at para. 29, that, “the complainant’s words and actions, before and during the incident” can be considered in determining whether a complainant has consented at the time of the sexual activity….

The Relevant Lines of Inquiry Are Not Prohibited Inferences

[75] The trial judge also erred in concluding that the relevance of the sexualized texts depended upon the twin myth relating to consent, codified in s. 276(1)(a). The twin myth relating to consent prohibits “the inference that the complainant’s prior sexual activities, by reason of their sexual nature, make it more likely that she consented to the sexual activity in question” (emphasis added): Barton, at para. 100. The relevance of the sexualized texts I have described above does not derive from the sexual nature of the complainant’s activity of sexting. It derives instead from the fact that those texts communicated the complainant’s intentions about what she would do and agree to at the upcoming meeting. The inference that follows – that she may have acted consistently with her stated intention – does not depend upon judgments about her sexual character, disposition or propensity, or assumptions that she is more likely to consent to sex with Mr. Reimer because in the past she agreed to sext with him. Relevance does not derive from the sexual nature of the activity of sexting. It derives from her stated intentions relating to the specific occasion in question. In my view, the trial judge misunderstood the prohibited inference, thereby making a mistake of law.

[76] There are passages to be found in jurisprudence, including appellate jurisprudence, that if read in isolation from the body of authority on point can be misunderstood as suggesting that s. 276 prevents using previous sexual behaviour from drawing any inferences about consent or credibility. This is not the law. As I will explain, not only does the text of s. 276 say otherwise but the Supreme Court of Canada has made it plain, in jurisprudence that has never been overruled, that in some, albeit rare, cases the constitutional right of the accused to make full answer and defence will require the admission of such evidence. [Emphasis added by PJM]

[79] R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, was the second and most recent case in which the Supreme Court of Canada was called upon to adjudicate the constitutional validity of s. 276….

….One of the illustrations that McLachlin J. (as she then was) provided of sexual activity evidence that would be unconstitutional to exclude involved evidence relevant to the issue of consent. The hypothetical example was a highly specific pattern of previous conduct by a complainant who engaged in consensual sex in order to extort money from her sexual partners by later threatening to claim that she was sexually assaulted if they did not pay: Seaboyer, at pp. 615-16. By using this illustration to demonstrate that former s. 276 went farther than the Charter allows, McLachlin J. necessarily recognized that an accused person, charged under similar factual circumstances, would have a constitutional right to such evidence, even on the issue of consent.

[81] In describing the inferences that are caught by s. 276(1), Gonthier J. focused on the limiting phrase, “by reason of the sexual nature of that activity”. He explained that this “is a clarification by Parliament that it is inferences from the sexual nature of the activity, as opposed to inferences from other potentially relevant features of the activity, that are prohibited” (emphasis added): Darrach, at para. 35; see also R. v. T.W.W., at para. 26, where this passage is reproduced. Of tremendous significance, in Darrach, at para. 58, Gonthier J. explicitly recognised that there are rare cases where other sexual activity will be relevant to consent without engaging twin myth reasoning.

[83] The following are illustrations of prohibited lines of reasoning that flow from the sexual nature of the activity: (1) that “unchaste” women are more likely to have consented (R. v. Osolin, [1993] 4 S.C.R. 595, at pp. 670-71, quoting Seaboyer, at p. 604; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 101; Barton, at para. 56); (2) that by reason of her past sexual activity a complainant has a “disposition to consent” (Darrach, at para. 34) or a general “propensity to consent” (Barton, at para. 55); (3) that “because the complainant had consented to sex with [the accused] in the past, in similar circumstances, it was more likely she had consented on the [occasion] in question” (Goldfinch, at para. 47); and (4) “because the complainant had ‘typically’ consented to sex … in the past, she was more likely to have done so on this… occasion” (Goldfinch, at para. 72). I am not suggesting that this is an exhaustive list. I provide it to illustrate that the relevance of the sexualized texts that communicated the kind of activity the complainant intended to engage in during her pending date with Mr. Reimer does not derive its relevance from twin-myth reasons. Mr. Reimer was not relying on the sexual nature of the complainant’s act of engaging in sexting as proof that she likely consented in the motel. Nor was he relying on the fact that the complainant had consented in the past to engage in the sexual act of sexting with him. To put it in the terms used by Gonthier J. to describe permissible inferences, he was relying on other “relevant features of the activity”, namely, the statements that she had made in those texts about what she intended to do in the future, during the pending meeting from which the charges ultimately arose: Darrach, at para. 35. In my view, there is nothing discriminatory in inferring that her stated intention to engage in consensual sexual activity on that future occasion has a logical tendency to increase the likelihood that she consented in the motel room. This inference does not trade on sexism, and it is not built on myths about female sexuality. The evidence yielded a logical, permissive inference, and the trial judge erred in finding otherwise.

Remaining Issue

[84] I want to be clear about what I have said so far. I am not saying that the trial judge erred by denying the s. 276 application and failing to admit the sexualized texts. I am saying that he erred in excluding all of the sexualized texts for erroneous reasons. At least some of the sexualized communications support relevant nonprohibited inferences that do not violate the rule that consent must be contemporaneous and therefore may have been capable of admission.

[89] I would find the errors I have described, reject the invitation to apply the proviso, allow this ground of appeal and order a new trial.

R v McKay, 2024 SKCA 72

[July 17, 2024] Amnesia, Toxicology Evidence and the Specific Intent for Murder [Barrington-Foote, McCreary, and Drennan JJ.A.]

AUTHOR’S NOTE: In criminal trials, an accused’s claim of amnesia generally offers little assistance in proving any relevant defences, as it does not directly provide evidence of their mental state at the time of the alleged actions. However, in some cases, scientific or expert evidence can establish a link between amnesia and an accused’s mental capacity to form intent, as illustrated in this case.

Key Legal Issue:

1. Amnesia and the Mental Element:
   • Limited Impact of Amnesia: Typically, an accused’s amnesia alone is not sufficient to affect the trial outcome because it does not provide evidence about their mental state or intent at the time of the offence. Simply forgetting events afterward does not negate intent or offer a defence.
   • Relevance of Toxicology Evidence: In this case, toxicology evidence was introduced to substantiate the claim of amnesia, showing that a combination of alcohol and prescribed pharmaceuticals could have caused the accused to be unable to appreciate the consequences of their actions. This type of scientific evidence goes beyond simply establishing memory loss and raises questions about the accused’s capacity to form the requisite intent for the offence.
2. Trial Court’s Error:
   • Rejection of Accused’s Testimony: The trial court rejected the accused’s evidence but failed to consider the toxicology evidence on its own merit. The toxicologist’s findings were relevant to the mental intent of the accused and should have been evaluated independently of the court’s view of the accused’s credibility.
   • Obligation to Consider All Evidence: The Court of Appeal found that the trial court’s failure to consider the toxicology evidence was an error. Even if the court disbelieved the accused’s testimony, it was still obligated to assess whether the expert evidence raised a reasonable doubt about the accused’s capacity to appreciate the consequences of their actions at the time of the offence.
3. Impact on the Case:
   • Mental Intent in Question: The toxicology evidence provided an alternate explanation for the accused’s behaviour, suggesting that their state of mind may have been impaired to the point where they could not form the necessary intent. The trial court’s failure to consider this key evidence undermined the fairness of the trial.
   • Resulting in a New Trial: As a result, the Court of Appeal ordered a new trial, emphasizing that the toxicology evidence was crucial to determining whether the accused had the mental intent required for the offence. The failure to consider it left a significant gap in the trial court’s reasoning.

Conclusion:

While amnesia on its own rarely assists in establishing a defence, experts, such as a toxicologist, can be critical in cases where the accused’s mental capacity to form intent is in question. In this case, the failure of the trial court to consider the toxicology evidence led to a significant error, resulting in the need for a new trial. The decision underscores the importance of fully considering all relevant evidence, particularly when it relates to the accused’s mental state at the time of the offence.

I. INTRODUCTION

[1] The appellant, Jason Daniel McKay, was convicted by a judge of the Court of Queen’s Bench for Saskatchewan of the second degree murder of his wife, Jenny McKay, contrary to s. 235 of the Criminal Code: R v McKay, 2020 SKQB 28 [Trial Decision]. He was sentenced to life in prison with no eligibility for parole for 17 years.

[2] Mr. McKay has appealed both his conviction and his sentence. He does not deny that he caused Ms. McKay’s death in a brutal and bizarre attack during which he cut and stabbed her, and then her lifeless body, dozens of times. The issue at trial was whether he had the intent necessary to be convicted of second degree murder or whether he should instead be convicted only of manslaughter. Mr. McKay contends that in deciding this question, the trial judge committed legal errors, including having failed to consider (a) expert evidence as to the effect of drugs and alcohol on a person’s memory and on their capacity to understand the consequences of their actions, and (b) evidence of anger, excitement and instinctive reaction falling short of a s. 232(1) Criminal Code provocation defence.

[3] It is our respectful opinion that the trial judge did err in law as Mr. McKay suggests, and that, as a result, the matter must be remitted for a new trial. Our reasons for this conclusion follow.

II. BACKGROUND

[4] At approximately 3:30 a.m. on September 6, 2017, two police officers attended at Mr. McKay’s residence to conduct a wellness check on Mr. McKay at the behest of his mother. They were met at the door by Mr. McKay, who was covered in blood and appeared to be intoxicated. They asked him where his spouse was. He replied that “she’s upstairs, she’s dead, I killed her” (Trial Decision at para 2). One of the officers went upstairs and found Ms. McKay’s body, which was face up on the kitchen floor, surrounded by blood, with a large kitchen knife protruding from her chest.

[6] The consumption and effects of drugs and alcohol were key issues at trial. Mr. McKay testified that on the morning of September 5, 2017, he took a 75-milligram dose of Sertraline, a prescribed antidepressant that he testified to having taken since the first week of June. He went to work, and on returning home at 3:30 or 4:00 p.m., began to drink. It was his evidence that he drank four cans of Twisted Tea, a five per cent beverage alcohol, and that shortly after 8:00 p.m., he and Ms. McKay walked to purchase two bottles of wine at a nearby off-sale. He recalled pouring himself a nine-ounce glass of wine before 8:30 p.m. and that the last thing he remembered was taking a sip from that glass while sitting at the kitchen table. Both wine bottles were found empty on the kitchen table by the police, as was a 375-milliliter bottle of vodka that had been purchased by Ms. McKay at 10:27 p.m. on September 5. An agreed statement of facts filed at trial indicated that Ms. McKay had purchased a 12-pack of Twisted Tea at a local off-sale at approximately 3:09 p.m. on September 5. An empty 12-can box of Twisted Tea was also found by police in the recycling bin behind the McKays’ home.

[7] Mr. McKay argued at trial that he could not form the requisite intent for murder because he was in a blackout state – that is, a state of amnesia or blackout – due to his consumption of Sertraline and alcohol, and as a result, could not appreciate the consequences of his actions. He also argued that the trial judge had to consider the defence of provocation. In this context, he noted that there was evidence that the McKays were alcoholics, that there was verbal and physical conflict between them, that Ms. McKay was sometimes the aggressor, and that they had had a heated altercation on the evening of September 5 that was loud enough to be overheard by neighbours across the street. He also submitted that even if the trial judge decided there was insufficient evidence to ground a defence based on provocation, he should take account of the evidence of intoxication, mental illness, provocation and even anger, in the manner contemplated by a “rolled-up instruction” to a jury.

IV. ANALYSIS

A. The trial judge erred by failing to consider Dr. Richardson’s evidence

[25] Mr. McKay submits that the trial judge erred in his application of W.(D.) when assessing his testimony, as he failed to consider the exculpatory expert evidence of Dr. Richardson. He relies on the restatement of the W.(D.) instruction proposed by Martin J.A. in R v Ryon, 2019 ABCA 36, at paras 48–54, 371 CCC (3d) 225 [Ryon], which included the following proposition:

[49] It may be prudent to begin by identifying, either generally or specifically, the evidence to which the instruction is to apply. As discussed, to say the instruction applies to “the evidence (or testimony) of the accused” will be inaccurate if it excludes other exculpatory evidence from the scope of the instruction. Juries need to understand:

i. that the instruction applies only to exculpatory evidence, that is, to evidence that either negates an element of the offence or establishes a defence (other than a reverse onus defence);

ii. that it applies to exculpatory evidence whether presented by the Crown or the accused.

[26] Mr. McKay emphasizes the trial judge’s statement that “the evidentiary value of Dr. Richardson’s testimony is wholly contingent upon an acceptance of Jason McKay’s evidence” (at para 48). He notes the conclusion drawn by the trial judge based on this statement – “Because I have rejected Jason’s evidence, I cannot rely upon it and I am not able to further consider Dr. Richardson’s opinion” (at para 90). In his submission, this constituted a failure to consider all exculpatory evidence, as specified by Ryon.

[30] With respect, the Crown’s submissions are misdirected. The issue is not whether this Court would find that Dr. Richardson’s evidence was of limited probative value. It is whether the trial judge erred in law by failing to consider that evidence at all. In our opinion, the trial judge did err in law by proceeding in this way, as alleged by Mr. McKay.

[32] To be clear, we do not suggest the trial judge erred by adopting the three-part formulation of the W.(D.) instruction. His error was in failing to apply it. As is noted above, he qualified Dr. Richardson “to give opinion evidence on the effect of alcohol and drugs on the human body, including the effects on brain functioning, behaviour and memory” (at para 43). Clearly, evidence of that kind could be relevant to what the trial judge correctly described as the critical issue at trial – whether Mr. McKay intended to kill Ms. McKay. The trial judge must have known that was so, as he would otherwise not have qualified Dr. Richardson to give this type of evidence pursuant to the test specified in White Burgess Langill Inman v Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182.

[33] It is equally clear that Dr. Richardson gave evidence of the potential effect of alcohol, of Sertraline and of taking both together that was relevant to the central matter at issue. He testified that different parts of the brain have differing sensitivity to depression by alcohol, and that “the brain cells in the areas that are responsible for laying down long-term memories for evaluation, the appropriateness of thoughts and behaviours, and of judging whether something should be done or not, and also for projecting the consequences of one’s behaviour, those brain cells can be completely shut down” (emphasis added). By comparison, he said that those responsible for “walking, talking, interacting — sensory processing, interacting with other people, following instructions, coming up with ideas, and the … behaviour that carries them out … are fairly resistant to suppression by alcohol”. He also explained that a person having an alcoholic blackout could nonetheless exhibit the following behaviours:

The — the person may have a bit of — well, will probably have a — in the — alcohol-induced amnesia period, would have some impairment of walking. So they would be swaying or [have a] slight difficulty with balance. They may [have] slurred speech, they may not have slurred speech. They would be able to hear and see and react to different things in the environment. They could talk, answer questions, come up with things to say, but — and things to do. …

[34] Dr. Richardson also testified that while long-term memory formation does not occur when a person is in this state, a person could have “islands of memory” as to events of up to “30 seconds or so” as a result of “massive sensory input” that “temporarily overcomes the suppression of the alcohol”.

[35] These aspects of Dr. Richardson’s evidence dealt with the effect of alcohol alone, at levels that he said were generally above 200 mg/%. His evidence as to the effect of Sertraline, both alone and when taken with alcohol, was also relevant. He stated that Sertraline causes amnesia in some people, as well as aggression and anxiety. He explained that it depresses the activity of certain cells and that “alcohol … adds onto that and can result in the amnesia or aggression”, with the result that it would considerably reduce the amount of alcohol needed to induce amnesia. It was his opinion that a blood alcohol content of between 81 and 111 mg/% plus a consistent dose of Sertraline would be capable of producing amnesia. As he put the matter:

A … Like, I said, I have not seen any evidence as to how much in milligrams percent alcohol does Sertraline add on to somebody who has consumed alcohol. So it is possible that 75 milligrams of Sertraline that morning and four cans of Twisted Tea and five cans of — or 5 ounces of wine from 4:30 to 8:00 could produce amnesia.

Q Okay. And what happens if there’s continued consumption of alcohol?

A Continued consumption, then the amnesia continues longer because it will take longer to eliminate the amount of alcohol to get down below the threshold that produces amnesia.

Q Okay. Now, you’ve heard the evidence of Mr. McKay. I’m wondering if you’re ever — or if you’re able to provide any opinion as to whether his evidence is consistent or not consistent with alcohol-induced amnesia.

A Yes, it is consistent.

Q And how so?

A There are islands of memory in the sea of amnesia. And there is the — potentially amnesia causing a level of depressant chemicals in his body.

Q Okay. Are you able to come to any conclusion, in terms of whether Mr. McKay would’ve been able to appreciate the consequences of his actions that night, while in this amnesic state?

A Okay. In — in a period of amnesia, he would not be able to appreciate the consequences of his actions [Emphasis by PJM]

[36] It is readily apparent that there was a nexus between this evidence and the question of whether Mr. McKay was in a state of amnesia, and if he was, how that would have affected his ability to understand the consequences of his actions. It was accordingly relevant. As Rothstein J. explained in R v White, 2011 SCC 13, [2011] 1 SCR 433:

[36] … In order for evidence to satisfy the standard of relevance, it must have “some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would be in the absence of that evidence” ” (Paciocco and Stuesser, [The Law of Evidence, 5th ed (Toronto: Irwin Law, 2008)] at p. 31, approved in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, at para. 47, and R. v. B. (L.) (1997), 35 O.R. (3d) 35, at p. 44 (C.A.); see also Morris v. The Queen, [1983] 2 S.C.R. 190, at pp. 199-201, per Lamer J. (as he then was; speaking in dissent on the issue of relevance)).

[37] Dr. Richardson’s evidence would certainly make the proposition that Mr. McKay was in a state of amnesia more likely. For that reason, the trial judge was required to consider this evidence before he decided whether Mr. McKay was in such a state, and if he was, how that may have impacted not only his behaviour, but his ability to understand the consequences of what he was doing. It was part of the “evidence as a whole”. The trial judge, on the other hand, made it clear that he did not, and indeed, thought that he could not, consider Dr. Richardson’s evidence when deciding whether Mr. McKay’s report of amnesia, fragmented snippets of memory and hallucinations was false. He put the cart before the horse and erred in law by doing so.

[38] This does not mean, of course, that the trial judge was obliged to accept Dr. Richardson’s opinion as to the effect of alcohol and Sertraline at the levels that may have been present in this case. Indeed, he was not only entitled, but required to consider the basis for that opinion, including that relating to the blood alcohol content that is normally or must be present before amnesia occurs and as to the effect of amnesia. That is so because the ultimate reliability of an opinion is a decision that remains to be made by the trier of fact after it is found to be admissible, based on the evidence at trial.

[41] In the result, we conclude that the trial judge erred by failing to consider Dr. Richardson’s evidence when deciding whether he believed Mr. McKay’s evidence, or even if he did not believe it, whether it left him in a state of reasonable doubt.

B. The trial judge erred by failing to consider the evidence of anger, excitement and instinctive reactions in the manner of a rolled-up charge

[43] Mr. McKay also alleges that the trial judge erred by failing to consider the evidence of anger, excitement and instinctive reactions, in the context of the evidence of intoxication, in the manner specified in Phillips. As we have explained, the trial judge rejected Mr. McKay’s request that he approach the mens rea issue and the evidence relevant to provocation as if he was putting a rolled-up charge to a jury. The trial judge refused that request for two reasons. First, he said this:

[133] … [I]n these circumstances, there is no air of reality to such a defence, excuse or justification. It is not necessary or appropriate, here, to address these submissions in the specific manner suggested.

[44] Respectfully, this statement reflects error. The phrase “such a defence” refers to the partial defence of provocation. The point of Phillips is that even if a trial judge has concluded that there is no air of reality to a provocation defence, they may have to consider the cumulative effect of the evidence bearing on provocation and other failed defences in determining whether the prosecution has proved the mens rea required for murder. As Brown J.A. put the matter in Phillips,”[e]ven where the partial defence of provocation is not left for the jury, evidence of an accused’s anger, excitement or instinctive reactions can have an impact on the formation of the requisite intent for murder” (at para 156). See also R v Lawlor, 2022 ONCA 645 at para 86, 418 CCC (3d) 87.

[45] For this reason, the trial judge erred in finding that because there was no air of reality to a provocation defence, it was not appropriate to address Mr. McKay’s submission on this point. As noted above, there was evidence that the McKays were drinkers, that there was verbal and physical conflict between them when they drank, that Ms. McKay instigated many of the arguments and would sometimes get physical with Mr. McKay. There was also evidence that they had a heated altercation on the evening of September 5, 2017. All of this had to be considered together with the evidence that both McKays were drinking that night, that Mr. McKay was intoxicated, and that Sertraline could cause aggression, a loss of inhibitions and the failure to understand consequences when in a blackout state. Put simply, the totality of these circumstances bore upon the issue of specific intent. See R v Ruff, 2019 BCCA 412 at paras 37–38, 383 CCC (3d) 168.

[47] The trial judge also gave a second reason as to why he would not consider the evidence in the manner specified in a rolled-up charge. As noted above, he found that there was no evidentiary basis to consider anger or provocation, as Mr. McKay did not testify that he was angry or deprived of his ability to control his emotions.

[48] With respect, this reasoning also reflects error. Mr. McKay testified that he did not remember what happened. He was accordingly unable to and did not say whether he was angry or provoked. There was, however, the evidence as to the McKays’ tumultuous relationship, of their fight that evening and of the potential effect of the consumption of alcohol and Sertraline, regardless of whether the trial judge found it had caused amnesia. Further, the circumstances of the offence were relevant in determining whether Mr. McKay was enraged or deprived of an ability to control his emotions. [Emphasis by PJM]

[49] In the result, it is our opinion that the trial judge erred by failing to consider the evidence of anger, excitement and instinctive reactions when determining whether the Crown had proven the intent required to make out the charge of second degree murder.

V. CONCLUSION

[50] For these reasons, we have concluded that the trial judge erred in law by failing to consider Dr. Richardson’s expert evidence as to the effect of drugs and alcohol on a person’s memory and on their capacity to understand the consequences of their actions. He also erred in law by failing to consider evidence that Mr. McKay may have been angry, excited or reacted instinctively, in a manner that impacted the formation of the requisite intent for murder. As a consequence, Mr. McKay’s conviction for second degree murder must be set aside and the matter remitted to the Court of King’s Bench for a new trial. It is therefore not necessary to consider Mr. McKay’s sentence appeal.

R v Smockum, 2024 SKCA 81

[August 16, 2024] The Right to Silence in Medical Interactions while Police Present [Reasons by Jackson J.A. with Tholl and Kalmakoff JJ.A. concurring]

AUTHOR’S NOTE: The right to silence during police encounters is a well-established principle in criminal law, but its application in interactions that occur in the presence of police officers, especially with third parties, is an evolving area of jurisprudence. This case sheds light on the complexity of such situations, particularly where the accused’s silence during interactions with others is later used against them in court.

Key Legal Issue:

1. Accused’s Right to Silence:
   • Established Right: The accused has the constitutional right to remain silent when questioned by the police. This right prevents the police and the prosecution from using an accused’s refusal to provide a statement as evidence of guilt or as a means to undermine their credibility in court.
   • Interactions in Police Presence: In this case, the accused’s silence occurred not during a direct police interrogation but in the presence of a police officer, during a conversation in the back of an ambulance with medical staff. The accused did not respond to the medical staff’s questions about the events in question.
2. Crown’s Use of Silence Against the Accused:
   • Prosecution’s Argument: The Crown referenced the accused’s silence in response to the medical staff’s questions to argue that the accused’s claim of self-defence was not credible. The silence was presented as an inconsistency with the actions of a person who had acted in self-defence.
   • Violation of Right to Silence: The Court of Appeal found that this was a breach of the accused’s right to silence, as the police officer’s presence in the ambulance effectively placed the accused in a police-controlled environment. The accused’s decision not to speak while in the officer’s presence should not have been used to undermine their defence at trial.
3. Court of Appeal’s Ruling:
   • Breach of Fundamental Right: The Court held that the Crown’s reference to the accused’s silence violated the right to silence because it occurred while the accused was effectively under police observation, even though the conversation was not a formal interrogation.
   • Impact on Self-Defence Claim: The Court emphasized that silence in such a situation should not be interpreted as a lack of self-defence. The accused’s decision not to engage in conversation, in the presence of a police officer, cannot be used to discredit a lawful defence or imply guilt.

Conclusion:

This case demonstrates that the right to silence extends beyond formal police interrogations and applies to situations where an accused interacts with others while in the presence of police officers. The Court of Appeal’s decision reinforces that silence, even in indirect police encounters, cannot be used to undermine the credibility of a defence, such as self-defence. It also highlights the need for careful consideration of how silence is treated in legal proceedings, particularly when the accused is under the watchful eye of law enforcement.