Maple Ridge woman gets life sentence for stabbing

By Robert Mangelsdorf - Maple Ridge News

November 22, 2012

A Maple Ridge woman who stabbed her husband to death three years ago during a domestic dispute will spend a minimum of seven more years behind bars.

Leah Marie Florence, 45, was convicted in May of the second degree murder of her husband Andrew Lynn Milne after a dispute on Nov. 3, 2009.

Florence was at New Westminster Supreme Court for sentencing on Thursday, when Crown counsel agreed to the mandatory life sentence.

With a minimum parole eligibility of 10 years served, Florence could be out of jail in as little as seven years. Florence has spent the past three years in custody at the Surrey Pretrial Centre.

However, Crown Counsel Theresa Iandiorio said Crown’s position is that Florence should receive a minimum of 13 years before being eligible for parole given the nature of the crime.

Florence and Milne were living in the home of Florence’s aunt, Patricia Burt, on Ospring Street in Hammond at the time of the murder. Burt had taken the couple in, as they were previously homeless, under the condition that there would be no fighting or drinking in the house.

But that’s exactly what happened the night of Milne’s death, as the couple drank three two-litre bottles of alcoholic cider before getting into a drunken argument. The fight turned violent, and Florence stabbed Milne 14 times. Florence was also wounded in altercation, requiring stitches for a cut on her arm.

Burt called 911 and police arrived to find 50-year-old Milne lying on the floor in a pool of his own blood. He died later in hospital.

In her ruling, Madam Justice Jeanne Watchuk ruled that although Florence was drinking that night, she was not too intoxicated to form the intent to murder her husband.

“I find that Ms. Florence was not intoxicated and angry to such a degree that prevented her from intending to cause Mr. Milne bodily harm or seeing that the multiple stab wounds and cuts would cause his death,” said Watchuk.

A pre-sentence report detailed Florence’s aboriginal background for the court on Thursday.

Florence, a mother of two, is a member of the Katzie First Nation, but does not have her Indian Status.

In the report, Florence and her mother argued that Florence’s father’s inability to obtain his status contributed to his alcoholism and violent behaviour, of which Florence was a victim. Not having Indian Status prevented her from living on reserve, and alienated her from her family there, including her grandparents.

However, Iandiorio challenged the legitimacy of the report, which she argued lacked corroboration from police records, school records, and corrections records.

Iandiorio suggested Florence’s aboriginal background was not a mitigating factor in the crime as Florence hadn’t been sexually assaulted, wasn’t sent to a residential school, both of her parents were still in her life, her father was sober by the time Florence was 13 years old and the two had a close relationship, as well Florence admitted that she hadn’t felt discrimination or racism as a result of being aboriginal.

While the report noted that Milne had previously been charged with spousal assault, Iandiorio pointed out that he had never been convicted.

The sentencing hearing was adjourned until Friday, Nov. 23.

Maple Ridge woman guilty of second-degree murder of husband

By Jennifer Saltman - The Province

May 22, 2012

A Maple Ridge woman who stabbed and cut her husband 14 times has been convicted of second-degree murder.

Leah Florence was charged after the Nov. 3, 2009 death of 50-year-old Andrew Lynn Milne, to whom she had been married for 15 years.

Justice Jeanne Watchuk read her 53-page decision in B.C. Supreme Court in New Westminster Tuesday.

The stabbing took place in the couple’s basement suite — which was in a home that belonged to Florence’s aunt — after an evening of drinking.

Florence’s defence lawyer had submitted that although she admitted to killing Milne, Florence was too intoxicated to form the intent to murder him.

The judge was asked instead to find Florence guilty of manslaughter.

In a statement to police tendered at trial, Florence said she and Milne had shared three two-litre bottles of cider in the hours before the killing.

A number of witnesses, including police, firefighters, paramedics, and doctors, testified that Florence was intoxicated when they dealt with her.

Based on that and other evidence, Watchuk concluded that Florence exhibited signs of being moderately to heavily intoxicated, such as slurring, balance issues, and mood swings. However, she was not confused and was able to communicate with people.

The defence said that because she was drunk and angry — Florence was cut on the arm by Milne at some point — she did not realize how badly Milne was hurt. Reality hit when Milne lay on the ground bleeding, it was suggested.

Watchuk disagreed. She said Florence was aware of what was happening and the potential consequences.

The defence of provocation was also raised, because of the cut.

Watchuk found that Milne did cut Florence, but she was unable to determine if Florence was cut before or during her attack on Milne.

“There can only be speculation on the sequence of events in the basement suite that evening,” Watchuk said.

Watchuk was also unable to find that the cut caused Florence to lose control and stab Milne.

“The defence of provocation is not available to Ms. Florence,” Watchuk said.

A second-degree murder conviction carries an automatic life sentence, but the period of parole ineligibility can vary from a minimum of 10 years to a maximum of 25. Sentencing will take place at a later date.

Ridge Meadows woman charged in husband’s murder

Vancouverite.com

November 6, 2009

MAPLE RIDGE, B.C. – Leah Marie Florence, 42, has been charged with the second degree murder of her husband following an alleged domestic dispute in Ridge Meadows.

The Integrated Homicide Investigation Team, IHIT, was called in at around 10 p.m. on Tuesday to probe the murder of a 50-year-old man at a home in Ridge Meadows, RCMP Sgt. Peter Thiessen said.

Police have now identified the man as Andrew Lynn Milne.

“Officers located an adult male in medical distress. BCAS (ambulance service) attended and transported the victim to Ridge Meadows hospital where he was pronounced dead,” he said about the murder.

“A 42-year-old female was arrested at the scene and transported to Ridge Meadows hospital for medical treatment where she remains in custody pending further investigation,” Thiessen said.

Police said Florence appeared in Port Coquitlam Provincial court on Thursday.

R. v. Florence

2012 BCSC 799

Regina
v.
Leah Florence

Before: The Honourable Madam Justice Watchuk

Reasons for Judgment

I.         INTRODUCTION
II.        ISSUES
III.       THE EVIDENCE

(a)       Admissions
(b)       The Evidence regarding Ms. Florence and Mr. Milne
(c)       The Evidence of Patricia Burt
(d)       The Evidence of the Police, Emergency Responders and Doctor
(e)       The Evidence of Cstbl. Henley and the audio and video tapes
(f)        Summary of the Evidence of the Physical Symptoms of Ms. Florence
(g)       The expert witnesses regarding the effects of alcohol
(h)       The Evidence of Dr. Litwin and Cpl. Arvanetes

IV.        POSITIONS OF CROWN AND THE DEFENCE

(a)       Crown
(b)       Defence

V.         THE LAW

(a)       Criminal Code Sections
(b)       Case Law

VI.        DISCUSSION AND ANALYSIS

(a)       Intent to Commit Murder
(b)       Provocation

I.                 INTRODUCTION

[1]             On November 3, 2009, Andrew Milne died as a result of injuries sustained from multiple stab wounds inflicted by his wife, Leah Florence.

[2]             Ms. Florence is charged with second degree murder as a result of the stabbing. She does not deny responsibility for the actus reus of the offence. All elements except the requisite specific intent are conceded.

[3]             There is evidence that the couple had been drinking in their basement suite that evening. The issue of intent must be determined in the context of intoxication.

[4]             On the same evening, Ms. Florence sustained a cut on her arm. The Defence submits that the defence of provocation must also be considered.

II.               ISSUES

[5]             Has the Crown proven that Ms. Florence intended to kill Mr. Milne in either of the ways mandated by section 229(a) of the Criminal Code, R.S.C. 1985, c. C?46, in light of the evidence of alcohol consumption by Ms. Florence and any evidence of her being provoked on the evening of November 3, 2009?

[6]             If the Crown proves beyond a reasonable doubt that Ms. Florence had the requisite intent, is the defence of provocation applicable such that the conviction must be reduced to manslaughter?

III.             THE EVIDENCE

(a)            Admissions

[7]             A summary of the evidence is well set out in the Admissions filed pursuant to s. 665 of the Criminal Code:

At 2044 hours on November 3, 2009 Patricia Burt called 911 regarding an incident that had occurred shortly beforehand in the basement suite of her home at 20226 Ospring Street, Maple Ridge, British Columbia.

When the police, ambulance and fire personnel attended shortly after Ms. Burt called 911, they found a man near the bed in the basement suite. He had been stabbed multiple times. That man was Andrew Milne.

Mr. Milne was taken immediately to the Ridge Meadows Hospital. Dr. Aaron Johnston tried to save his life for approximately one hour but, at 2201 hours on November 3, 2009, Dr. Johnston pronounced Mr. Milne dead.

The continuity of Mr. Milne and his body from the time he was found by the police, ambulance and fire personnel until Dr. Craig Litwin performed the autopsy at Royal Columbian Hospital on November 5, 2009, is admitted. At autopsy, Dr. Litwin took samples of Mr. Milne’s blood and other bodily fluids which were later used for DNA and other forensic tests. Dr. Litwin also removed Mr. Milne’s left 4^th rib which had a cut in it. The rib was later used for tool mark analysis.

At the time of his death, Mr. Milne had alcohol and cocaine (and its derivatives) in his system. Samples of his blood and other bodily fluids were taken by medical personnel at the Ridge Meadows Hospital at 2135 hours on November 3, 2009, and were later sent to the laboratory for toxicology screening. A copy of the toxicology report is attached as Exhibit A.

At 0348 hours on November 4, 2009, Cpl. Bechtel asked Ms. Florence if she was willing to provide a sample of her breath. She declined to do so. The purpose of asking Ms. Florence to provide a sample of her breath was to determine her blood alcohol level.

The security and continuity of the basement suite at 20226 Ospring Street, Maple Ridge, British Columbia from the time the police, ambulance and fire personnel arrived until the police conducted a thorough search and took photographs is admitted.

Continuity of all police and court exhibits in this matter is admitted.

During the search of the basement suite, the police located:

a)         one nearly empty two litre bottle of peach cider on the table next to the fridge;

b)         one empty bottle of brandy in a black bag in the north west corner of the room next to the TV and the window; and

c)         one empty 200 ml bottle of vodka under the table next to the fireplace, behind a grey and green storage container and next to the wall.

During the search of the basement suite, the police also located a wolf knife which was marked police exhibit #11. DNA testing determined that the blood on the blade of the knife came from Mr. Milne. Tool mark analysis determined that the wolf knife was used to cut Mr. Milne’s left 4^th rib.

During the search of the basement suite, the police seized the clothing that had been cut off of Mr. Milne by the fire and ambulance personnel. They seized the items of clothing that are depicted in the booklet of photographs marked Court Exhibit 4 Tab 2 and numbered 1 through 6 inclusive.

DNA analysis determined that blood belonged to Mr. Milne was found in five areas in the basement suite:

a)         a large pool of blood, known as a saturation stain, where Mr. Milne was found by the police, ambulance and fire personnel;

b)         stains on the clothing and carpet immediately adjacent to where Mr. Milne was found;

c)         on the blade of the wolf knife referred to in paragraph 10;

d)         a castoff pattern on the ceiling and south west wall of the basement suite; and

e)         as a minor component, on the handle of the wolf knife referred to in paragraph 10.

There were also multiple drops of blood throughout the part of the basement suite that was inhabited by Ms. Florence and Mr. Milne. DNA analysis determined that all of those drops that were sent for analysis came from the same female person, designated as Female 1. In addition, DNA analysis determined that the major component of the blood on the handle of the wolf knife referred to in paragraph 10 came from Female 1. It is admitted that Female 1 is Ms. Florence.

It is admitted that Ms. Florence caused Mr. Milne’s death by stabbing him multiple times.

With respect to the statement of Ms. Florence that was recorded by Cstbl. Henley voluntariness is admitted and there are no Charter issues impacting its admissibility.

During the course of the investigation, the police seized video surveillance tapes from Bailey’s Cold Beer and Wine Store located at 11232 Dartford Street, Maple Ridge, British Columbia. Those tapes bear the date of November 3, 2009, and three different times. There has been no verification of the times shown on the tapes but it is admitted that Mr. Milne, among others, is depicted on those tapes. A disc of those tapes is attached as Exhibit B.

(b)            The Evidence regarding Ms. Florence and Mr. Milne

[8]             The first person with whom Ms. Florence spoke after Mr. Milne was stabbed was Ms. Burt, her aunt who owned the house with the basement suite in which she and Mr. Milne lived.

[9]             Cstbl. Henley attended at the residence at 8:59 p.m. in response to the 911 call received at 8:44 p.m. At 9:18 pm he began an audio recording of Ms. Florence. The recording continues until 00:57 a.m. A video recording taken from 11:01 p.m. for about 1½ hours overlaps some of the audio recording. It is agreed that these recordings constitute statements of Ms. Florence.

[10]         During the almost four hours of the audiotape, Ms. Florence interacts with police officers, ambulance attendants, firefighters, hospital personnel and Dr. Hargreaves. Those interactions are audible and, for a time, also visible on the tapes.

[11]         The witnesses for the Crown included the following individuals with whom she interacted: Ms. Burt, RCMP Cstbls. Henley and Shaw, Officers Penner and Smith of BC Ambulance, Officer Wilson, a firefighter, Dr. Hargreaves and RCMP Cstbl. MacGorman. As well, Cstbl. Atwell testified that she later took photographs of the scene.

[12]         Dr. Litwin, who conducted the autopsy of Mr. Milne, and Corporal Arvanetes, a blood spatter expert, also testified.

[13]         Two expert witnesses testified on behalf of the Defence with regard to the effects of alcohol on the human body: Ms. Dinn and Mr. Jeffery.

(c)            The Evidence of Patricia Burt

[14]         Ms. Patricia Burt is the aunt of Ms. Florence, who was then 42 years old, and has interacted with her niece over her entire life. In September 2009, Ms. Florence and her husband of 15 years, Andy Milne, asked if they could live in the basement suite of Ms. Burt’s home in Maple Ridge, British Columbia.

[15]         The suite is at ground level. It has a main room which is both living room and bedroom. The outside entrance is from the carport into a hall. Off the hall is the foyer with the bottom of the stairs to the upstairs where Ms. Burt resided, the bathroom, and the door to the main room.

[16]         Ms. Burt allowed them to live in her home because they were near homeless having been evicted with no other place to live. At the time they moved in Mr. Milne was unemployed.

[17]         No rent was charged but she did set some rules for them. Those rules were no smoking in the house, no drinking, no fighting and no drugs. To the best of Ms. Burt’s knowledge they had been obeying the rules until November 3, 2009. She had not seen either of them consuming alcohol and had not seen empty bottles. When the couple did smoke, they smoked outside in the carport. Ms. Burt’s interaction with them was coming and going and general day-to-day pleasantries. She described them as “tenants downstairs”.

[18]         On November 3, 2009, when Ms. Burt came home from doing errands between 3:00 and 4:00 p.m., she saw her niece and Mr. Milne sitting at the table in the carport talking and smoking. They had a brief conversation at that time. Ms. Florence was very happy as she had just found a new job which she was going to start the next day. They had previously obtained a loan which they had used to purchase and fix up a trailer on a lot. They were looking forward to moving into the trailer. The couple seemed happy and optimistic.

[19]         They spoke for 10 or 15 minutes. Ms. Burt did not notice the smell of alcohol or any indication that they were or had been consuming alcohol. She had seen Ms. Florence under the influence of alcohol a few times in the past but had never seen her drunk.

[20]         After the conversation, Ms. Burt went upstairs to her home where she had dinner and watched television. She described the suite as not soundproof; she could hear walking around and other things if they got loud. Over the course of the evening she heard Andy say “Leah stop it” or “Stop it Leah” one time in a voice which she described as quite loud. It then got quiet again.

[21]         At that time Ms. Burt assumed that they were horsing around because they had played around before. She described the horsing around as “like a couple having sort of a play fight, an argument” which was just getting a little too out of hand or a little rougher than what they would want. It did not seem to go on very long.

[22]         Ms. Burt did not hear any barking from the dog downstairs.

[23]          She thought that the time of hearing “Leah stop it” was about 7:00 p.m. She heard nothing else after that until about an hour later, between 8:00 and 8:30 p.m. when her niece starting calling for her.

[24]         Ms. Burt heard Ms. Florence yell “Auntie Pat, Auntie Pat”. As Ms. Florence sounded very upset, Ms. Burt ran down the stairs.

[25]         When Ms. Burt got to the bottom of the stairs, Ms. Florence was off to the side in the foyer with a cut and bleeding arm. Ms. Florence was scared, hysterical and crying intensely. She said “Andy cut me”.

[26]         As the cut was bare, Ms. Burt went to the bathroom, grabbed a towel and put the towel around the cut. She held Ms. Florence by her other arm.

[27]         Ms. Burt, still holding on to Ms. Florence, went into the front part of the main room to call 911 for Ms. Florence’s cut. From the corner of her eye she saw Andy on the floor. While she was on the phone with the operator asking for an ambulance, she went over to Andy and saw him laying on his back with his arms beside his body and with blood around his head. His eyes seemed to notice her and reacted when she called his name. She then told the operator that she needed an ambulance for two people.

[28]         Ms. Florence was trying to get close to him but Ms. Burt held on to her with one arm because she did not want her niece to go too close to Andy. Ms. Florence was very emotional, very upset and shaking. She was saying words to the effect of “Don’t leave me Andy my love”. Ms. Florence eventually did get near him to hug him with her other arm but Ms. Burt pulled her back out of concern that it might cause some damage to Mr. Milne.

[29]         Ms. Burt sat Ms. Florence down on the bed to wait for the ambulance and the RCMP. When the RCMP phoned back and asked about Mr. Milne and about weapons, Ms. Florence overheard and pointed out the knife on the floor as Ms. Burt had not seen it.

[30]         It was one or two minutes from the time Ms. Florence called “Auntie Pat” until Ms. Burt called 911. About 10 minutes later the police arrived. In that time frame Ms. Florence continued to be very emotional and very upset. Ms. Burt also thought that Ms. Florence seemed scared, and from her point of view, Ms. Burt thought that it was because Ms. Florence thought she had killed Andy. No words to that effect were said by Ms. Florence.

[31]         While they were waiting for the police, Ms. Burt was sitting beside Ms. Florence on the bed. Ms. Burt did not smell any liquor on Ms. Florence but she was not paying attention.

[32]         Ms. Burt testified that at that time she did not think that Ms. Florence had been consuming alcohol, that she had no trouble understanding what Ms. Florence was saying, and that there was no slurring of her speech. There was no problem with her balance, as although Ms. Burt was holding her most of the time, if she had let go, Ms. Florence would have been standing. She did not appear intoxicated in any way. Ms. Florence appeared to understand what Ms. Burt was saying to her but she did not think that Ms. Florence realized how hurt Mr. Milne was.

[33]         In cross examination, Ms. Burt agreed that when she and Ms. Florence entered the main room of the suite and saw Mr. Milne on the floor, Ms. Florence’s focus moved from her cut arm to Andy. The hysterical tone remained at about the same intensity but it became more verbalized with words to the effect of “Andy don’t leave me” and “Don’t die”. When she went to him trying to hug him, Ms. Burt observed that she was scared. All her focus and attention was on him and remained entirely on him.

(d)            The Evidence of the Police, Emergency Responders and Doctor

[34]         Cstbls. Shaw and Henley were the first to arrive. They found Ms. Florence still sitting on the bed. The bed, as shown in the photographs, is a mattress on the floor without a frame or legs. She stood up on her own from this sitting position.

[35]         One of the first concerns of Cstbl. Shaw was that the knife was still in the room. When Ms. Florence stood up, he therefore told her to stay where she was and not move. He then escorted her out of the room to the carport.

[36]         Cstbl. Shaw was with Ms. Florence for a minute and a half. He testified that when she stood up she was wobbling or swaying. She did not put any of her weight on him while she was being escorted. She complied with the demands made of her; she appeared to understand what he was saying to her; and she was able to walk although it was laboured and stumbling. She was really upset and crying, a sob cry, and it was hard for her to catch her breath. Her speech was slurred. She was able to sit in the lawn chair in the carport on her own and remain sitting on her own.

[37]         In cross-examination, Cstbl. Shaw confirmed his notebook entry that described Ms. Florence as extremely intoxicated. She had a strong odour of alcohol about her. He also described her as confused, distraught and upset, becoming more upset when she looked at the knife.

[38]         Sean Penner is a paramedic employed with BC Ambulance Service. He, his partner and the fire department attended to Mr. Milne in the suite. There was no pulse present and no breathing. Measures were taken to attempt to resuscitate him. They left the residence with Mr. Milne at 9:15 pm and arrived at the hospital at 9:21 pm.

[39]         Stephen Smith is also a paramedic with BC Ambulance. After he drove Mr. Milne to the hospital, he returned to assist with Ms. Florence. She was sitting in the carport when he arrived back at the residence at 9:43 pm. Two firefighters were with her and she had on an oxygen mask that they had given her. She was sitting upright in a chair and talking.

[40]         Mr. Smith observed that the wound on the inside of her left arm had a dressing on it which did not require any further immediate attention. He removed the oxygen as it was not required. Ms. Florence was not having any difficulty breathing.

[41]         In order to do his assessment of Ms. Florence’s level of consciousness, Mr. Smith asked a number of questions. All of the questions were answered appropriately and gave him good grounds to establish a level of consciousness which was 15 out of 15 according to the Glasgow Coma Scale. That scale is a method of determining the level of consciousness wherein the highest possible score is 15 and the lowest possible score is 3. The types of questions which would have been asked were name, date of birth and allergies. Ms. Florence answered all questions appropriately, including giving her allergy to sulfa drugs.

[42]         Mr. Smith checked Ms. Florence’s vital signs: blood pressure, pulse rate, respiratory rate, blood glucose level and found that blood pressure was normal, pulse rate was regular and that none of the readings caused any concern. In addition, he checked her temperature, her mental status, pupil size, whether the eyes were reacting and skin colour.

[43]         With regard to mental status Mr. Smith concluded that she was normal and able to understand. Her responses were topical and appropriate and she did not appear confused. His other examinations produced appropriate or normal results.

[44]         On examination of her talking, walking and moving, Mr. Smith concluded that Ms. Florence had a normal neurological assessment.

[45]         When asked to comment on Ms. Florence’s demeanour, Mr. Smith replied as follows:

A.         She was aware of what had happened and what she had done. She was obviously upset about it.

Q.        When you say “obviously upset about it”, what led you to that conclusion?

A.         How she had stated that she killed her husband and that she was -- she appeared to be genuinely distraught.

[46]         Mr. Smith noted that her speech was slurred but she was still able to answer fully in full awareness. He cannot recall if there was any odour of alcohol from her. She did not vomit, pass out or lose consciousness.

[47]         When they were leaving for the hospital, Ms. Florence stood up when asked to stand. He noted no assistance in standing, no problem in walking on her own, no assistance getting into the ambulance and no problem sitting in the chair in the back of the ambulance.

[48]         During the approximately 20 minutes Mr. Smith spent with Ms. Florence, he had no concerns that she did not understand his interactions with her or what was going on. Her demeanour did not change noticeably during that time frame.

[49]         In cross-examination, Mr. Smith agreed that in his statement given that evening he described Ms. Florence as appearing very intoxicated at the time.

[50]         Brad Wilson is a firefighter with the City of Maple Ridge. He attended at the residence in Maple Ridge on the night of November 3, 2009. When he arrived he saw Ms. Florence sitting in a lawn chair holding a towel wrapped around her forearm. He was the first medical person to deal with Ms. Florence along with firefighter Seward. They removed the towel, applied a bandage to her arm, kept it elevated, monitored her vitals, applied oxygen and went through the basic questioning done on any medical call.

[51]         Ms. Florence did not appear to have any difficulty sitting in the chair. She appeared to understand the questions that were being asked and provided responsive replies. She did not appear to the firefighter to be confused based on the responses she gave him. He described her demeanour as very emotional.

[52]         Officer Wilson testified that she was not slurring her words. When she was asked to elevate her arm she did so and kept it up even though it is natural to want to bring the arm back down. She never got sick, fell asleep or became unconscious. He concluded that Ms. Florence was alert and responsive based on her response to the verbal questions asked of her.

[53]         When Mr. Milne’s body was removed, Ms. Florence had an emotional reaction such that the firefighters positioned themselves to block the line of sight. During the balance of the approximately 30 minutes they spent with her, their involvement was basically patient comfort.

[54]         When she was to be taken to the hospital, she stood up from the chair with no difficulty. However, as is standard practice, two people assisted to make sure that the patient did not fall.

[55]         In cross-examination Officer Wilson confirmed that his opinion was that Ms. Florence was intoxicated at the time. He had noted an odour of alcohol and rambling or repetitive speech. He was asked about his evidence at the preliminary inquiry where he had placed Ms. Florence at an 8 on a scale of 1 to 10 with 1 being stone sober and 10 being extremely drunk. Officer Wilson’s evidence was that he would now place her at between a 7 and an 8. He also recalled that she had been assisted in getting to the ambulance and getting into the ambulance.

[56]         Cstbl. Shannon MacGorman attended at the hospital on November 3, 2009, in order to take photographs of Ms. Florence and to seize her clothing. The photographs were taken at 10:22 p.m., about 40 minutes prior to the start of the videotape.

[57]         The process of seizing the clothing was to advise Ms. Florence that she was going to be seizing the clothing, that there were several bags needed to collect each piece in an individual bag, that Ms. Florence would be asked to remove her clothing and place each item in a bag.

[58]         Ms. Florence was taken by wheelchair to a separate room with Cstbl. MacGorman for the seizing of the clothing. When she was asked, she complied and removed each article of clothing and placed it in a bag. She removed her shirt, bra, pants and underwear, while standing. She had no difficulty standing or with her balance. When she took off her pants, she did it while standing and did not fall over or need any assistance.

[59]         Cstbl. MacGorman described Ms. Florence as being intoxicated, slurring her words and emotional. Sometimes she would cry and sometimes she was okay. She could talk and she could carry on a conversation.

[60]         With regard to the degree of intoxication, Cstbl. MacGorman on cross-examination clarified that “clearly intoxicated” was her description of Ms. Florence at the time. She also confirmed a note of a statement made by her at the debriefing session in which she described Ms. Florence as “highly intoxicated”.

[61]         Dr. Alan Hargreaves treated Ms. Florence at the hospital for the cut on her arm. He was qualified as an expert witness in emergency medicine.

[62]         Ms. Florence had a laceration on the middle third of the forearm of her left arm between 2 and 3 inches long and ½ inch to 1 inch deep. The cut was between 70 to 90 degrees to the forearm facing a little down towards the hand. It was caused by one clean swipe of the knife. It would have taken a reasonable amount of force to cause the injury.

[63]         Generally a mild level of pain is associated with this type of injury although it depends on an individual’s tolerance for pain. Ms. Florence was treated with local anesthetic and then sutured in layers, firstly the tendons and then the subcutaneous tissue and then the skin. She required a cast to stop the hand from moving to protect the tendon.

[64]         Ms. Florence’s temperature was normal when she came into the hospital. As the emergency department is usually at a colder temperature, patients are often more chilled in that environment.

[65]         Dr. Hargreaves testified that giving oxygen is a matter of routine with fire and ambulance personnel. It should not make a difference to the individual if they are not short of oxygen at the time.

[66]         With regard to Ms. Florence’s state of sobriety, Dr. Hargreaves testified that she smelled of alcohol and acted as though she had been drinking. He observed that she was too drunk to be driving but not so drunk that she could not walk. He stated that she was not extremely intoxicated but certainly moderately so and “maybe towards the more intoxicated side”. She was able to understand what was going on around her, she was responsive when spoken to and she would do the things asked of her although a couple of times she had to be asked more than once.

[67]         During the 45 minutes Dr. Hargreaves was with her, her emotional state changed from morose to giggling to tearful which he stated was understandable considering the events of the day.

[68]         Dr. Hargreaves observed her speech to be slurred and although he does not remember watching her walk, he recalled that she got up to go to the washroom. In cross-examination he agreed that she was Moderate to Severely Intoxicated.

(e)            The Evidence of Cstbl. Henley and the audio and video tapes

[69]         Cstbl. Ryan Henley was one of the two RCMP officers who arrived first at the residence. He took charge of Ms. Florence after she was seated in the carport. He arrested her for second degree murder and read the Charter warning at 9:20 pm. He began the audio recording at 9:18 pm and continued until she was at the Ridge Meadows RCMP Detachment at 00:57 am.

[70]         Prior to the start of the recording, Ms. Florence was being attended to by firefighters. Cstbl. Henley testified with regard to this interaction:  Ms. Florence was responsive to their questions, topical and appropriate in her responses, responded without delay and was able to hold a conversation with them. He described her level of sobriety as intoxicated by alcohol as indicated by the odour of liquor, with some slurred speech. However she was still able to understand directions he gave her as indicated by the fact that she carried out those directions. She also seemed to understand the gravity of the situation by her comment “My husband is gone.”

[71]         In summary, Cstbl. Henley, who had not met Ms. Florence before that day, confirmed the following:  she was never uncoordinated; there was nothing unusual about her eyes, dilated or glassy; she did not belch or vomit or burp; she did not appear to be disoriented or confused; she did not have a flushed face; her clothing was not dishevelled other than the blood on it; she had no difficulty breathing; she did not soil herself; she did not slump over while sitting, nor did she fall over; and, she was not ever unable to follow a direction that he gave her.

[72]         In cross-examination, Cstbl. Henley confirmed the note of Sgt. Hyland that he had advised that he noticed “significant symptoms of impairment”. Those were poor balance, especially in walking to the ambulance, slurred speech, and the odour of alcohol. He placed her in the middle of the scale of impairment.

[73]         During the testimony of Cstbl. Henley, the audio tapes were played in court. The video tapes were also played. Counsel submitted that the court could and should make observations of Ms. Florence from those tapes as they presented the best evidence of her behaviour and demeanour.

[74]         The following are my observations from the tapes. They do not differ from the evidence of the witnesses with whom she interacted.

[75]         Although the transcript of the recording includes a number of references to “indecipherable”, many of those words were understandable from listening to the tape.

[76]         Firstly with regard to the audio tape, in the statement commencing at 9:26 p.m., Ms. Florence is at first distraught and mumbling and then quickly becomes very clear. She is compliant with the firefighter and responsive to his questions. She is aware that she is charged with murder and upset about that. She states in response to a question as to whether or not she is warm enough, that she is not cold. She expands on that answer by describing something from her childhood with her father. She also describes her high tolerance for pain.

[77]         It is clear that she loved her husband and is, throughout, distraught about the loss.

[78]         Shortly thereafter she again begins to sob about the loss of her husband. That is followed very closely by a clear answer with regard to symptoms in her fingertips. She rambles somewhat after that with a lengthy description tangentially related.

[79]         As they are waiting for the ambulance she and one of attendants have a conversation about her family, her daughter, her father and her son. I would describe the tone of her conversation as “drunk”, mostly audible, mostly clear although somewhat rambling. At various times in the conversation about the “patient comfort” topics of family and her childhood, her wellbeing and comfort, she becomes upset and refers to her husband and his death.

[80]         In the course of the conversation with Mr. Smith, and in response to his question of how much she had had to drink, she states “we had 3 bottles of coolers”. When he asks what she cut her arm with, she responds “oh no, Andrew had slit me with a ... with a wolf knife”.

[81]         Ms. Florence is very responsive and oriented when asked about personal statistics, name, date of birth and medical history, allergies and diabetes.

[82]         Later in the statement when Mr. Smith asks again how much she had to drink tonight, she states that they had “three 2 litres of peach”. She also says “but it didn’t take us long you know we haven’t drank like before we could drink like cases and cases of beer”. At the time she is getting out of the ambulance she confirms to Cstbl. Henley “I am up for murder, right?”

[83]         She states after “he hit me there”, “I must have fuckin’ hit him with it [the knife]”. She goes on to say “I didn’t care ... about the slashing me ...”.

[84]         She tells Cstbl. Henley and Mr. Smith that she cannot handle Demerol and that she does not want drugs at the hospital. In that context she again confirms that she has a good tolerance for pain.

[85]         She is worried about her Auntie Pat and says “poor Auntie Pat”.

[86]         While being attended to by Dr. Hargreaves, Ms. Florence indicates that she needs to pee. She is told that she needs to wait until the stitches are completed. Although she frequently repeats her request to pee, she is able to wait until the medical procedure is completed. She is able to control her bodily functions.

[87]         Cstbl. McKinney begins video recording at 11:01 p.m., which is almost 2 hours after the arrest and about 2.5 hours after Ms. Florence called Ms. Burt downstairs.

[88]         Ms. Florence is, after the sutures are completed, sitting for a period of time on the side of the bed quite normally and unassisted. She continues to cry at some points but is oriented to her location, the hospital, and her situation, that of being charged with the murder of her husband. She is curious about what will happen next.

[89]         At about 11:30 p.m. she walks to the washroom unassisted and without any obvious difficulties or affect.

[90]         There is still some slurring, although her tone of voice is often normal. Towards the end of the video she appears tired and is crying softly, and at another point is sitting on the edge of the bed seemingly lost in thought.

[91]         At times throughout the recording, Ms. Florence is calm and coherent. At other times, she sobs. The mood swings are exaggerated, particularly at the beginning of the recording. The emotions, however, are appropriate in the circumstances.

[92]         While at the police station, waiting to talk to Legal Aid, Ms. Florence again sobs about her husband’s death. She says “...stupid of me ‘cause we haven’t drank in a long time [indecipherable] he slit my arm open [indecipherable] (crying) and now my [indecipherable] is gone and I am charged with fuckin’ murder, oh my God (crying) I wish my [indecipherable] (crying) [indecipherable]”.

(f)             Summary of the Evidence of the Physical Symptoms of Ms. Florence

[93]         The evidence of the demeanor and behaviour of Ms. Florence including the visible effects of alcohol consumption comes from the testimony of Patricia Burt, the police, fire, and ambulance and medical personnel who dealt with Ms. Florence on the evening of November 3, 2009, and the audio and video recordings. Ms. Florence did not testify.

[94]         Based on my review of the evidence of the witnesses and the recordings, I find that the following summary which was provided by the Crown and has been somewhat amended is accurate.

[95]         Ms. Burt testified that Ms. Florence did not exhibit any symptoms of alcohol consumption after Ms. Florence called her to the basement suite. In particular, Ms. Burt testified that Ms. Florence was not slurring her speech, she did not notice Ms. Florence having any problems with her balance including her ability to stand upright and she did not have any difficulty communicating with Ms. Florence.

[96]         The evidence from the police, fire, ambulance and medical personnel is that Ms. Florence:

• responded to all questions appropriately, contextually and without hesitation;

• complied with directions appropriately and promptly;

• carried on conversations that were understandable and responsive;

• sat in the chair in the carport without assistance and without slumping over;

• sat down and stood up without assistance with the exception of the assistance of the firefighters to the ambulance;

• never fell when walking or sitting;

• held the towel on her own arm;

• kept her arm elevated, as instructed;

• became emotional when Mr. Milne or the fact she was under arrest for murder was referred to or when she spoke of Mr. Milne’s death;

• had slurred speech although one witness, Officer Wilson, testified that she did not;

• had an odour of liquor;

• never fell asleep or lost consciousness;

• did not have a flushed face;

• did not have anything unusual about her eyes;

• did have some balance issues;

• never vomited or soiled herself; and

• did not exhibit any confusion or lack of understanding about where she was, who was around her, the fact that Mr. Milne was dead, that she was under arrest for his murder or that she was in the control of the police.

[97]         Examples of the evidence demonstrating that Ms. Florence was aware of what had happened in the basement suite and the consequences of it are:

• she went to the bottom of the stairs and called for assistance from the only person in the house who could assist her, calling “Auntie Pat, Auntie Pat”;

• she showed her injury to Ms. Burt and said “Andy cut me”;

• when Ms. Burt went into the suite to use the phone to call 911, Ms. Florence went toward Mr. Milne, hugged him and said “Andy, my love, don’t leave me”, “don’t die” and “Andy, don’t leave me”;

• when Cstbl. Henley first came into the suite she answered the questions he asked and also said “my husband is dead, my husband is gone”;

• within 45 minutes of calling for “Auntie Pat”, Ms. Florence said to one of the firefighters that she “killed [her] [indecipherable]” and “I’m OK but he’s fuckin’ dead”;

• after she was arrested for murder, she can be heard on the recordings referring to that fact several times as well as exhibiting a knowledge that she was under the control of the police and that she faced prison for her actions; and

• during the recordings, she gives a brief account of what occurred resulting in Mr. Milne’s death.

[98]         Examples of the evidence that Ms. Florence was oriented to time and place and that she was always aware of the surrounding circumstances are:

• when Ms. Burt was on the phone with the 911 operator or the RCMP, she was asked if there was a weapon in the house. Ms. Florence must have heard that because Ms. Burt testified that Ms. Florence pointed out the wolf knife to her. Ms. Burt said she had not noticed it before then;

• she consistently complied with the directions of the fire and ambulance personnel in the treatment of her injury and did so without hesitation or delay;

• she expressed concern about her dog;

• she corrected an ambulance attendant with respect to her name;

• she asked Cstbl. Henley’s permission to have a cigarette and to go into the suite to get a jacket and socks;

• she noticed Cstbl. Henley recording their interactions and commented upon it;

• she objected to being taken into a room in the hospital occupied by another person;

• she objected to Cstbl. Henley assisting Dr. Hargreaves by holding a bag of saline saying Cstbl. Henley was not medically trained to do so but, instead, that he was “a cop”;

• when asked by the fire, ambulance and medical personnel whether she had any injuries other than the cut on her arm, she said “no” which was correct;

• she interacted with the nursing staff about finding a location for the intravenous tube and inquired why there were two lines; and

• she inquired who “this lady” was when Sgt. Hyland came into the treatment room at the hospital.

[99]         There is also evidence that Ms. Florence was able to remember details of events other than killing Mr. Milne. Examples of that are when Ms. Florence:

• asserts what alcohol she and Mr. Milne had consumed;

• asserts that Mr. Milne cut her arm with the wolf knife;

• tells Cstbl. Henley and the ambulance attendants that she called for her “Auntie Pat” and Ms. Burt came to the suite;

• notices Cstbl. Henley recording their interaction and questions him about it and why he was making notes;

• in providing Cstbl. MacGorman with her clothes, recalls that she had been holding Mr. Milne thereby explaining how she came to have blood on her;

• was aware that she was under the care of medical personnel and might be given certain drugs and asserting that she did not want them or was allergic to them;

• recalls wanting to get socks and shoes before going to the hospital and not being permitted to do so; and

• over 3 hours after Cstbl. Henley had arrested her and read her the Charter rights and warning, she refused to answer any of Cpl. Bechtel’s questions about exercising those rights saying “I don’t need to talk to you because you’re not my lawyer”.... “So, please don’t talk to me”... “I wanna talk to legal aid”.

[100]     With respect to Ms. Florence’s balance there were some differences in the witnesses’ testimony:

• Cstbl. Shaw, who was with Ms. Florence for 60 to 90 seconds, described Ms. Florence’s ability to get up from the bed on the floor when he directed her to do so immediately after he first entered the suite.

• Cstbl. Shaw also testified that she wobbled, then stumbled when she walked to the carport but also said that she did not touch anything or fall while walking to the carport;

• Steven Smith testified that he spent about 20 minutes with Ms. Florence. When the ambulance came back to the house, and he told her they were going to go to the ambulance, she stood up and walked the 30 to 40 feet to it and climbed the 2 steps into it without any assistance or any difficulty;

• The firefighter, Brad Wilson, however described their standard practice of assisting individuals, such as they assisted Ms. Florence, to the ambulance;

• Cstbl. Henley testified that, when Ms. Florence washed her face and hands at the hospital, she did so while standing on her own and he did not recall her having any difficulty with that;

• Cstbl. MacGorman testified that, when she was with Ms. Florence at the hospital and seizing her clothes, while following directions, Ms. Florence stood on her own without stumbling, without having to lean on anything and without needing any assistance. Cstbl. MacGorman also described how Ms. Florence was able to remove her jeans which required her to stand on one foot and then the other without needing any assistance, without needing  to lean on anything and without falling over; and

• In the video recording, it was apparent that Ms. Florence was able to sit on the side of a bed for several minutes without slumping over, swaying or doing anything that looked like she was having difficulty keeping herself upright in a seat that had nothing to lean against.

[101]     There is no evidence that Ms. Florence was so intoxicated that she did not remember what had occurred in the basement suite. She never states:  “I don’t remember.”

[102]     I also agree with the defence submission that Ms. Florence’s focus changed from her arm to Mr. Milne when she saw him on the floor in the main room of the suite.

(g)            The expert witnesses regarding the effects of alcohol

[103]     The evidence of these expert witnesses assisted the court with the main issue of the determination of to what degree Ms. Florence exhibited signs of intoxication. Neither of the expert witnesses examined Ms. Florence or had any interaction with her. Their evidence however provides a context and framework as well as guidelines for the assessment of the evidence of her behaviour and symptoms.

[104]     Ms. Heather Dinn was qualified as an expert witness in forensic toxicology able to give opinion evidence on the consumption and absorption of beverage alcohol and its physical and mental effects.

[105]     A report authored by Ms. Dinn was filed as an exhibit in a redacted form.

[106]     Blood alcohol concentration (“BAC”) is expressed as the milligram weight of alcohol per 100 millilitres of blood. It is the concentration of alcohol in the blood.

[107]     The report gives some general information of assistance. The accurate determination of an individual’s blood alcohol level or BAC is determined through the analysis of their blood or breath. BAC’s are often also estimated with mathematical calculations based on the individuals’ drinking pattern, gender and weight.

[108]     However those are often inaccurate because they assume complete and ideal absorption of all alcohol consumed while there is always a portion of alcohol remaining unabsorbed as conditions for absorption are frequently not ideal. The actual BAC varies depending on the type and quantity of food consumed and the strength of the alcoholic beverage. Ingestion of dilute beverages such as cider with 7% alcohol will delay and inhibit absorption of alcohol and thus the actual BAC obtained is generally 25% and up to 50% lower than a theoretically calculated BAC.

[109]     Ms. Dinn explained that alcohol is a drug which is classified as a central nervous system depressant. With its consumption the efficiency with which the brain controls both mental and motor functioning decreases. Alcohol induced dysfunction of both mental and motor processes are linked and dysfunction occurs in parallel. For example, heavy intoxication is characterized by increasingly impaired balance, staggering and slurred speech. The mental changes at that stage include erratic mood swings, possible disorientation and confusion. She further stated that the heavily to severely intoxicated individual will be experiencing significant motor and mental dysfunction and will therefore not display purposeful, goal oriented and coordinated physical actions.

[110]     The evidence of Ms. Dinn was particularly helpful because she described the effect of tolerance to alcohol.

[111]     Ms. Dinn provided a chart which summarizes the stages of alcohol effect and the corresponding BAC for a social drinker. A female social drinker is defined as someone who does not consume more than about 10 drinks a week and no more than 1 or 2 on each occasion. This term is used because it is assumed that a certain tolerance exists in social drinkers. The tolerance is different for someone who drinks less, a novice drinker, and someone who consumes more who would be in the chronic consumer category. A person who had been consuming alcohol chronically and then stopped would lose a significant amount of their tolerance within a couple of weeks of abstaining from alcohol.

[112]     It is therefore only appropriate to link the stages of intoxication to a particular BAC range for social drinkers because of the importance and sensitivity of tolerance. For chronic drinkers and novice drinkers the symptoms displayed may not be reliably related to a blood alcohol concentration because of their tolerance.

[113]     The chart in Ms. Dinn’s report summarizes the five stages of alcohol effect and the corresponding BAC for a social drinker. The stages are Sobriety, Mild to Moderate Intoxication, Moderate to Heavy Intoxication, Heavy to Severe Intoxication, and Severe Intoxication to Stupor. The BAC range is 1 to 30 mg% to 250 to 400 mg%. The list of symptomology is cumulative as the BAC range increases.

[114]     Motor symptomology and mental symptomology reflect on each other so that the presence of certain indicia that one can observe, motor indicia, is a reflection of the mental symptomology.

[115]     At the middle stage of Moderate to Heavy Intoxication, which is described as “overt symptomology with emotional instability”, the BAC range is indicated as 150 to 200 mg% for social drinkers. The symptomology for motor functions is “slurred speech, balance and coordination difficulties, staggering and lurching”. The mental symptomology is “decreased inhibitions and judgment, emotional instability and mood swings”. This is the stage where individuals are described by lay people as being drunk. They have difficulty coordinating the large muscles so that there is some lurching when walking and difficulty getting up and down out of a chair. Ms. Dinn further states that the disordered thinking is not necessarily something that occurs at this stage but at a higher effect. However, at this stage mood swings, inappropriate emotions, decreased judgment and disinhibitions will eventually occur.

[116]     Most importantly, Ms. Dinn stated that particularly when an individual’s drinking history is not known, if they are not a social drinker it is the signs and the symptoms that will give the indication as to the effect of alcohol on that person. Although usually everyone will slur at a level of 150 mg%, a novice drinker will be affected more quickly by alcohol and may slur their words at 100 to 150 mg%. However they are still categorized as Moderate to Heavily Intoxicated because that is consistent with that effect of alcohol.

[117]     At the higher level of Heavy to Severe Intoxication an individual would be highly sedated with a high likelihood that if left sitting they would fall asleep, and their head would nod. A person who is able to sit upright on a bed without handrails or back support while holding one hand over a wound and able to balance would in Ms. Dinn’s opinion be exempt from the Heavy to Severe Intoxication stage. Similarly, a person who is able to provide topical, appropriate and prompt responses to questions would be exempt from the Heavy to Severe Intoxication stage.

[118]     When asked in cross-examination regarding a scenario of an individual who is: “When confronted by a police officer, asked to get up from the ground and move to an area where directed. That person is able to do so ... without any difficulty.”? Ms. Dinn responded that the key phrase was “without any difficulty” because to go from a position on the ground to a standing position is very demanding in terms of balance and coordination. That would exempt the Moderate to Heavy Intoxication stage.

[119]     With regard to the hypothetical of a person who was requested to remove their clothing piece by piece including a shirt, bra, pants and underwear, then does so including standing on one foot while removing her jeans and is able to put the clothing into individual bags, Ms. Dinn described that task as quite demanding in terms of balance, coordination and even fine motor coordination. That person, she opined, is within the 30 to 100 mg% range of impairment and potentially even exempted from the Mild to Moderate Intoxication phase.

[120]     When given a hypothetical which described Ms. Florence in the first hour after police arrived including that she had a slight balance issue and slurred speech, it was Ms. Dinn’s opinion that that person would be in the Moderate to Heavily Intoxicated state.  In this stage one would look for emotions that are inappropriate to the situation or exaggerated.

[121]     Mr. Wayne Jeffery was qualified as an expert witness able to give opinion evidence in the areas of forensic toxicology and the drug recognition expert program together with opinions on the pharmacological effects of the absorption, distribution and elimination of beverage alcohol and drugs and the effect of beverage alcohol on the human body.

[122]     Impairment usually starts in the range between 30 to 100 mg%. Intoxication can start at 100 mg% but usually one starts to see the outward physical signs of impairment become visible at levels of 150 or 160 mg% in an average social drinker.

[123]     The mental effects and physical effects of the consumption of alcohol are correlated. This is demonstrated in a chart, standard in the use of forensic toxicologists, published by Dr. Kurt Dubowski in 1968. It refers to the seven stages of intoxication which are Sobriety, Euphoria, Excitement, Confusion, Stupor, Coma, and Death.

[124]     The introduction to the chart states that the pharmacological effects of alcohol will vary according to a number of factors including the tolerance of that individual to alcohol. The table “outlines the effects of alcohol which may be associated with varying blood alcohol levels”.  I understand this chart to include a broader range to cover all three categories of individuals who consume alcohol.

[125]     At the stage titled Excitement, which is a blood alcohol concentration of 90 to 250 mg%, the pharmacological effects are emotional instability, decreased inhibition, loss of critical judgment, impairment of memory and comprehension and some muscular incoordination. This is where some outward physical signs are visible at the higher levels. The next stage of Confusion, a range of 180 to 300 mg%, includes exaggerated emotional states, mental confusion, impaired balance, staggering, and is the first stage which includes slurred speech.

[126]     These two stages overlap because of a person’s individual tolerance to alcohol. Some may show these signs at the lower level and some who are more tolerant to alcohol may show the signs at a higher level. Intoxication occurs on a continuum because alcohol is dose-dependent.

[127]     Mr. Jeffery listened to the audio recording of Ms. Florence. As a result of a Ruling given in the trial, Mr. Jeffery was permitted to respond to specific questions regarding his opinion of Ms. Florence’s level of intoxication and the correlating mental effects.

[128]     He was asked if he observed any physical signs of impairment or intoxication. His response was that two signs stood out in the initial part of the tape - some slurred speech with some words and some mental confusion with questions and answers. His opinion was that she would either be in the higher stage of Excitement, between 100 to 180 mg% since slurred speech starts to occur at BAC levels of 150 to 160 mg%, or the stage of Confusion, although this chart indicates Confusion commences at 180 mg%.

[129]     Mr. Jeffery testified that with regard to the correlating mental effects of the alcohol the main thing would be the decrease in inhibitions and the effect on proper judgment which leads to inappropriate behaviour.

[130]     Mr. Jeffery was asked this question and gave this answer:

Q         And, in general, at this level of intoxication, what, if anything, can you say regarding the mental effects of alcohol and the effect on a person’s ability to perceive, evaluate, and understand the consequences of their actions?

A          My Lady, for -- My Lady, that’s a very difficult question for -- to answer, but all I can say at this point, since it decreases a person’s judgment, they make inappropriate decisions, they may do inappropriate things. They may not understand what they’re doing specifically at that time, but from my point of view, do they know what they’re doing? Yes. They don’t know why.

[131]     There was no evidence regarding the correlation of BAC levels and symptoms for drinkers who have an increased or decreased tolerance.

[132]     In cross-examination Mr. Jeffery agreed that as he had had no contact with Ms. Florence, he did not know how she usually speaks when intoxicated, when experiencing loss, when injured, or when in custody. With regard to the audio recording, he did not know that initially Ms. Florence had been wearing an oxygen mask.

[133]     When Mr. Jeffery was shown a number of references in the transcript of the audio recording he agreed that there was no indication of confusion by Ms. Florence. He did not give any evidence regarding specific indications of confusion which he observed other than to say it was assumed from questions not answered.

[134]     Mr. Jeffery agreed that the best method of analysis is to evaluate the person as a whole, and he agreed that persons who have face-to-face contact with an intoxicated individual are in the best position to assess. He agreed that the observations made by reviewing the transcript gave some information.

(h)            The Evidence of Dr. Litwin and Cpl. Arvanetes

[135]     Dr. Craig Litwin, a forensic pathologist, was qualified as an expert witness in this trial. Dr. Litwin performed an autopsy on the body of Andrew Milne on November 5, 2009.

[136]     He testified that the cause of death of Mr. Milne was due to fourteen sharp-force injuries, ten stab wounds and four cuts. The difference between a stab wound and a cut is determined by the dimension, rather than the mechanism or motion of inflicting the wound. A stab wound is a sharp-force injury where the depth of penetration is greater than the dimensions of the wound on the skin surface. A cut is the opposite, where the dimension on the skin surface is greater than the depth. In other words, if the wound is deeper, it is referred to as a stab and if it is longer, it is defined as a cut.

[137]     There were two stab wounds which were potentially life-threatening and in need of immediate medical attention.

[138]     The stab wound to the left side of the chest, wound A, passed through the chest wall and injured the left lung, the heart, and was associated with significant internal bleeding. The stab wound to the left side of the back, wound B, passed through the chest wall, injured the left lung, the diaphragm, the spleen, the stomach and was also associated with significant internal bleeding.

[139]     In addition to the stab wounds to the chest and back, there were stab wounds to the left flank, the right side of the face, the right side of the neck, the left armpit, and the left arm. The cuts were sustained to the right side of the chin, the left arm, the left side of the chest and the left side of the abdomen. Dr. Litwin testified that it was possible that one of the injuries to the left arm may represent a defensive injury.

[140]     Stab wound A, in addition to injuring organs, also injured the fourth rib. The wound path was through the rib. The stab wound to the right side of the face entered the bone.

[141]     Dr. Litwin was unable to say which of the injuries occurred first or in which order the injuries occurred. Although they all appear of the same age, they could have been inflicted over minutes or over hours.

[142]     With regard to the amount of force, Dr. Litwin testified that a significant amount of force would have been necessary to pass through the rib and similarly a significant amount of force was apparent with regard to the wound on the face which entered the bone. He agreed in cross-examination that force can be generated in more than one way, and that the wolf knife may have been stationary.

[143]     All of the injuries were consistent with having been inflicted by the wolf knife of which the blade measured 18.5 cm by 3 cm. In conclusion, he agreed that all of the fourteen stab wounds and cuts were contributing factors in the death of Mr. Milne.

[144]     Corporal Konstantino Arvanetes gave expert evidence with regard to blood stain pattern analysis. He analyzed the blood stains in the basement suite for any patterns that would assist and he took DNA swabs from a number of areas where blood was apparent. When areas are swabbed, samples are chosen from a representative stain within a blood stain pattern area.

[145]     As stated in para. 12 of the Admissions, blood belonging to Mr. Milne was found in five areas in the basement suite:  a large pool of blood, a saturation stain, where Mr. Milne was found on the floor at the foot of the bed; stains on the clothing and carpet immediately adjacent to where Mr. Milne was found; on the blade of the wolf knife; a cast-off pattern on the ceiling and southwest wall; and as a minor component, on the handle of the wolf knife.  There was no blood from Mr. Milne in areas on the floor other than where he fell.

[146]     Cpl. Arvanetes, from his examination of the bloodstain patterns on the clothes and on the floor, determined that Mr. Milne had received blood-letting injuries and subsequently bled in the area where he was found on the floor at the foot of the bed. However, he also said that it was not possible to determine where Mr. Milne was when he received the blood-letting injuries.

[147]     Ms. Florence was able to move through the room in the residence for an undetermined period of time after she received her blood-letting injury. The drip stains and drip pattern indicate her movement as there were multiple drops of her blood throughout the basement suite. The major component of the blood on the handle of the wolf knife came from Ms. Florence.

[148]     This expert witness was unable to comment on when the blood-letting injuries of Mr. Milne occurred in relation to the blood-letting injury of Ms. Florence. He further stated that:

With the nature of these stains, sometimes there are to be multiple possibilities. When encountered with such a situation, I will take a more conservative route and … explain only what I can definitely state. So I am unable to come to any further conclusions.

[149]     Cpl. Arvanetes agreed in cross-examination that it was possible that Mr. Milne could have been stabbed anywhere in the suite, although there is no evidence to prove it either way, and that is one of a number of scenarios that can neither be proven nor disproven.

IV.            POSITIONS OF CROWN AND THE DEFENCE

(a)            Crown

[150]     In the absence of evidence of alcohol consumption by Ms. Florence, the Crown submits that there would be no argument that the Crown has met its burden on intention. The evidence is that Ms. Florence:

a)   selected a knife the size and shape of the wolf knife;

b)   struck Mr. Milne 14 times with that knife;

c)   in his head, neck and torso;

d)   with sufficient force to penetrate the skin to the various depths described by Dr. Litwin;

e)   with sufficient force to damage Mr. Milne’s rib as described by Dr. Litwin; and

f)    with sufficient force and direction to cause the damage to Mr. Milne’s various vital organs as described by Dr. Litwin.

[151]     The Crown submits that the behaviour set out above constitutes purposeful, goal-oriented action leading to a predictable and obvious result, Mr. Milne’s death. In the absence of evidence of alcohol or drug consumption (or mental disability) by a person engaged in such behaviour, the Crown would be able to rely on the common sense inference that a sane and sober person intends the natural and probable consequences of her actions and the Crown’s burden of proving intention to kill would be met. That is, it is the Crown’s position that a person who acted in the way Ms. Florence did, as set out above, could not have intended anything else but to kill Mr. Milne or to cause him bodily harm that she knew was likely to cause his death and was reckless whether death ensued.

[152]     The Crown further submits that it has proved beyond a reasonable doubt that Ms. Florence had the necessary intent notwithstanding her consumption of alcohol and any provocation as a result of the cut on her arm.

(b)            Defence

[153]     The Defence submits that a review of the evidence regarding Ms. Florence indicates a Blood Alcohol level (“BAC”) of 170 to 200 mg% at the time of the offence.

[154]     It is submitted on behalf of Ms. Florence that on consideration of all of the evidence going to knowledge, including the evidence of provocation and intoxication, there is a reasonable doubt as to whether Ms. Florence knew that she had caused bodily harm that was likely to result in Mr. Milne’s death.

V.              THE LAW

(a)            Criminal Code Sections

[155]     The following sections of the Criminal Code regarding murder and manslaughter are relevant. It is the Crown’s submission that it is not required to particularise the manner in which it proves intention, and in this case it submits that Ms. Florence’s intention can be founded in either subsection of s. 229(a). I will consider, therefore, both subsections 229(a)(i) and 229(a)(ii).

Murder

229. 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...

[156]     The Defence submits that if the Crown proves its case for second degree murder, it is a conviction for manslaughter which should be entered after the application of the defence of provocation.

Murder reduced to manslaughter

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.

What is 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.

Questions of fact

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

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

o   (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.

(b)            Case Law

[157]     The case of R. v. Daley, [2007] 3 S.C.R. 523 [Daley], is the leading case on the issue of the specific intent required to found a conviction for murder when there is evidence of intoxication. At para. 40 it states that it is the actual intent rather than the capacity to form the intent which is determinative. In paras. 41 to 43 the three legally relevant levels of intoxication are set out.

40. Thus, on the current state of the law, for a murder charge, the defence of intoxication will only be available to negate specific intent so as to reduce the charge to manslaughter. The degree of intoxication capable of raising a reasonable doubt about whether the accused lacked specific intent was discussed by this Court in R. v. Robinson, [1996] 1 S.C.R. 683. That case considered the legitimacy of the third proposition in Beard, which refers to evidence of intoxication that would render the accused incapable of forming specific intent in order to make out the defence. This proposition was interpreted by many courts to require the trier of fact to have a reasonable doubt about whether the accused was capable of forming an intent, whereas general mens rea principles would suggest that the actual intent, not capacity for intent should be the issue. In Robinson, the Court held that the Beard rules violated ss. 7 and 11(d) of the Charter because they required the jury to convict even if they had a reasonable doubt about the accused’s actual intent. An accused who was not so intoxicated as to lack capacity to form the intent may nevertheless not have exercised that capacity and formed the specific intent. The ultimate inquiry is always whether the accused possessed actual intent.

The Legally Relevant Degrees of Intoxication

41. Our case law suggests there are three legally relevant degrees of intoxication. First, there is what we might call “mild” intoxication. This is where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. This has never been accepted as a factor or excuse in determining whether the accused possessed the requisite mens rea. See Daviault, at p. 99. Second, there is what we might call “advanced” intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials: …

A defence based on this level of intoxication applies only to specific intent offences.

42     It is important to recognize that the extent of intoxication required to advance a successful intoxication defence of this type may vary, depending on the type of offence involved. This was recognized by this Court in Robinson, at para. 52, in regards to some types of homicides:

[I]n 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.

Although I would hesitate to use the language of capacity to form intent, for fear that this may detract from the ultimate issue (namely, actual intent), the point of this passage, it seems to me, is that, for certain types of homicides, where death is the obvious consequence of the accused’s act, an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication defence of this type.

43     The third and final degree of legally relevant intoxication is extreme intoxication akin to automatism, which negates voluntariness and thus is a complete defence to criminal responsibility. As discussed above, such a defence would be extremely rare, and by operation of s. 33.1 of the Criminal Code, limited to non-violent types of offences.

[158]     The air of reality test and the jury charge are discussed in Daley at paras. 44 and 48:

44. It is apparent that where there is evidence of a mild degree of intoxication, since this has never been held to be a defence, the trial judge is not required to give any instruction on intoxication; there would be no air of reality to the defence. The threshold for instructing juries on intoxication was set out in Robinson, at para. 48: “[B]efore 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” (emphasis deleted). This is the threshold for instructing juries on advanced drunkenness.

48. In Robinson it was held that once the threshold for instructing on the defence of intoxication was met, the trial judge “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. In the case of murder the issue is whether the accused intended to kill or cause bodily harm with the foresight that the likely consequence was death” (para. 48). The Court in Robinson also endorsed the model charge set out in Canute, at p. 419, as that which should normally be given (see para. 49). It is instructive to set out the charge suggested in Canute:

The intoxicating effect of alcohol and drugs is well known. Intoxication which causes a person to cast off restraint and act in a manner in which he/she would not have acted if sober affords no excuse for the commission of an offence while in that state if he/she had the intent required to constitute the offence. A drunken intent is none the less an intent.

The offence of [Here describe the specific intent offence charged.] is not committed if the accused lacked the intent [Here describe the specific intent required to constitute the offence charged.]. The Crown is required to prove that intent beyond a reasonable doubt. In considering whether the Crown has proved beyond a reasonable doubt that the accused had the required intent, you should take into account his/her consumption of alcohol or drugs along with the other facts which throw light on his/her intent at the time the offence was allegedly committed. …

If, after taking into account the evidence of the accused’s consumption of alcohol or drugs, along with the other facts which throw light on the accused’s intent, you are left with a reasonable doubt whether the accused had the required intent, you must acquit him/her of [Here state the specific intent offence charged.] and return a verdict of guilty of [Here state the included general intent offence.]. If, on the other hand, notwithstanding the evidence of his/her consumption of alcohol or drugs, you are satisfied beyond a reasonable doubt that at the time he/she [Here describe the acts of the accused which form the actus reus of the offence charged.], he/she had the intent to [Here describe the intent required to constitute the offence charged.], then it is your duty to return a verdict of guilty as charged.

[159]     The application of the common sense inference that a sane and sober person is presumed to intend the consequences of his or her actions, in cases involving intoxication is further discussed in R. v. Seymour, [1996] 2 S.C.R. 252 at para. 23, and R. v. Courtereille, 2001 BCCA 17, at para. 30, respectively:

23        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.

30        I agree with Justice Osborne’s reservations about the use of the “sane sober person boilerplate” without adjustment to the circumstances. This Court in R. v. Frechette (1999), 132 C.C.C. (3d) 1 (B.C.C.A.), in a per curiam decision, noted:

The common sense inference is a powerful weapon in the Crown’s arsenal and a trial judge must, therefore, ensure that the jury understands its limited application where the defence is one of intoxication, as here.

[160]     Daley at para. 51 discusses the link between intoxication and foreseeability.

Finally, there has been some discussion in the lower courts on whether in cases involving a defence of intoxication to homicide under s. 229(a)(ii) of the Criminal Code the trial judge should link the effect of intoxication to the ability to foresee the consequences of one’s actions. This is because in murder as defined in s. 229(a)(ii), the mental element the Crown must prove includes elements of intention and subjective foresight. The recommendation that the trial judge should instruct on the link between intoxication and foreseeability was offered by Martin J.A., in MacKinlay, in 1986, at p. 322:

The state of mind required under s. 212(a)(ii) involves an ability on the part of the accused to measure or foresee the consequences of his act: McAskill v. The King, [1931] S.C.R. 330, at p. 334]. Where the Crown on a charge of murder relies on the intent under s. 212(a)(ii) of the Code, it would be helpful to remind the jury that the state of mind required by this subsection involves a knowledge by the accused of the “likely” consequences of his act and the jury should consider the effect of intoxication along with the other facts in deciding whether the accused intended to inflict an injury on the victim which he knew was likely to cause death or whether intoxication affected his ability to foresee the consequences of his actions. [Emphasis deleted.]

[161]     The issue of a rolled-up charge arises in this case. It is explained in R. v. Kent, 2005 BCCA 238 at para. 24 set out below and in R. v. Flores, 2011 ONCA 155 [Flores] at paras. 72 and 73:

24        I think this passage [referring to Martin J.A. in R. v. Campbell (1977), 38 C.C.C. (2d) 6 (Ont. C.A.) at para. 32] is no more than a reminder that it is necessary to point out to the jury that they must look at all the evidence, including in some cases evidence that gives foundation to a possible finding of provocation, when determining if the Crown has proven intent. ...

[162]     Mr. Justice Watt stated in Flores:

72        Evidence relevant to the statutory partial defence of provocation may also be relevant to proof of the fault element in murder under s. 229(a), although the statutory defence in s. 232 only becomes engaged upon proof of murder: R. v. Parent, [2001] 1 S.C.R. 761, at para. 14; and R. v. Gilling (1997), 117 C.C.C. (3d) 444 (Ont. C.A.), at para. 22.

73        As a prophylactic against a compartmentalized approach to the evidence, we require trial judges to remind jurors, in cases like this, that they should consider the cumulative effect of all relevant evidence in determining whether the prosecution has proven beyond a reasonable doubt either of the fault elements required to make an unlawful killing murder: R. v. Cudjoe (2009), 251 O.A.C. 163, at para. 104; and R. v. Fraser (2001), 56 O.R. (3d) 161 (C.A.), at para. 25, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 11. Although jurors may reject each discrete defence, justification or excuse, they may have a reasonable doubt about the state of mind required for murder on the basis of the cumulative effect of the whole of the evidence: Fraser at para. 25.

[163]     The law regarding the defence of provocation and s. 232 of the Criminal Code is set out in R. v. McDonald, 2005 BCSC 473 [McDonald], at paras. 59 to 61:

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.

[164]     There must be an air of reality on each of the elements before the defence can be considered. The test is well-settled and set out in R. v. Ashmore (23 April 2009), New Westminster X068922-16 (BCSC) decided by Mr. Justice Bernard in para. 18 of a ruling dated April 23, 2009:

The air of reality test is well settled; it is whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit. The test imposes a burden on the accused which is merely evidential rather than persuasive. In applying the test, the trial judge must consider the totality of the evidence and assume that the evidence is true. The threshold determination is not aimed at deciding the substantive merits of the defence; that is a question for the jury. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury and not how the jury should ultimately decide the issue (see Cinous, supra, pp. 156-157).

[165]     Mr. Justice Bernard also considers the element of suddenness in para. 19:

The element of suddenness requires that both the provocation and the accused’s response to it must be sudden. In R. v. Nahar, 2004 BCCA 77, Lowry J.A. delivering the judgment of the court said:

[46]      I consider the Criminal Code (s. 232(1)) to be clear in providing that both provocation and the accused’s response (s. 232(2)) have to be sudden. The statement in the text quoted by Cory J. does not mean that repeated insults amount to provocation, but only that repeated insults do not foreclose the defence. There must still be a sudden, unexpected wrongful act or insult, however trivial it may be, that causes the accused to react on the sudden in a loss of his power of self-control.

VI.            DISCUSSION AND ANALYSIS

(a)            Intent to Commit Murder

[166]     The issue to be determined is whether Ms. Florence had the intent to cause the death of Mr. Milne.

[167]     The intent which must be proven by the Crown beyond a reasonable doubt is that Ms. Florence had the subjective intent to cause Mr. Milne’s death or that she had the subjective intent not only to cause bodily harm, but also that she had the subjective knowledge that the bodily harm inflicted was of such a nature that it was likely to result in death (often referred to as foreseeability), and she was reckless whether death ensued.

[168]     For clarity, I will refer to the evidence of intoxication in three analyses:  the air of reality regarding intent; whether intoxication prevented the formation of specific intent; and as part of the consideration of the air of reality test in provocation.

[169]     The first step in the analysis is to determine if, of the three legally relevant levels of intoxication, the level present in Ms. Florence on November 3, 2009 was such that it might have impaired her foresight of consequences.  (Daley para. 44)

[170]     As stated above, evidence of the intoxication of Ms. Florence is gained from the testimony of Ms. Burt, the police officers, firefighters, ambulance attendants and medical personnel who dealt with Ms. Florence that evening, as well as from the audio and video tapes of her in the four hours after Cstbl. Henley began recording 19 minutes after he arrived on the scene.

[171]     The evidence of those individuals, with the exception of Ms. Burt, is consistent that Ms. Florence was drunk. Their estimate of the level of intoxication ranges from 8 out of 10 (Officer Wilson) to moderate to severe intoxication (Dr. Hargreaves), and mid-scale (Cstbl. Henley).

[172]     The visible symptoms of her intoxication were described by many of the professional witnesses as some slurred speech and some balance problems as well as rambling speech.

[173]     It is also noted, as Cstbl. MacGorman described well, that Ms. Florence exhibited some exaggerated emotions in the form of some mood swings from cheerful and talkative to crying and upset.

[174]     The evidence of the witnesses who observed Ms. Florence together with the evidence of the expert witnesses regarding the effects of alcohol establishes that there is some evidence that her intoxication was in the mid-level (Daley, para. 41) as a result of the effect of alcohol on Ms. Florence on November 3, 2009.

[175]     As there is an air of reality, the Crown is not entitled to rely on the common sense inference in these circumstances. In other words, the onus is on the Crown to prove beyond a reasonable doubt that she had the necessary intent notwithstanding her consumption of alcohol.

[176]     Intention is a state of mind. In the absence of direct evidence of Ms. Florence’s state of mind, I must look to her actions and the circumstances surrounding those actions to draw inferences about her state of mind. With regard to the various inferences, they must be drawn from the facts which are proven on the evidence. Speculation or conjecture is not a basis for inferences. As stated by Mr. Justice Joyce in McDonald:

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.

[177]     Having found that there is some evidence that Ms. Florence’s level of intoxication is in the second of the three levels as set out in Daley,  it is necessary to examine the evidence further to determine if the Crown has proven that she had the necessary intent notwithstanding her consumption of alcohol.

[178]     The evidence regarding Ms. Florence’s consumption of alcohol is limited. There is no direct evidence regarding the amount and nature of alcohol she consumed, the time of the consumption, the food, if any, which she had consumed, or when it was consumed, or of the other factors usually considered in mathematically determining an individual’s BAC.

[179]     The only evidence regarding one of those factors, the amount and nature of the alcohol consumed, is found in the statement of Ms. Florence which is the audio recording taken by Cstbl. Henley. It is both inculpatory and exculpatory.

[180]     With regard to this statement, counsel agreed that the audio and video recordings were statements by Ms. Florence to be taken into account by the Court in the usual course. The law in this regard is well set out in the case of R. v. Woodland, [2009] S.J. No. 430, at paras. 23 and 24:

23     The question that arises in the context of this case is whether the same considerations apply where the accused does not testify but his version of events is introduced into evidence by the Crown in a warned statement. The Crown submits that the statement of the accused ought not be assessed in the same way as his testimony would be had the accused testified. The accused, on the other hand, submits that the R. v. W.(D.) [[1991] 1 S.C.R. 742] considerations are equally applicable to both an accused’s testimony at trial and his out-of-court statements tendered by the Crown and that the model formula should be followed and applied.

24     I find that, to some degree, both positions are correct. Although the tendered statement of the accused is evidence and must be considered as part of the whole evidence, depending upon the circumstances surrounding the taking of the statement, and the nature, type and content of the statement itself, it need not necessarily be viewed in exactly the same way as sworn testimony at trial, tested by cross-examination. In the event that the trier of fact believes the exculpatory portions of the statement or, short of belief, is left in reasonable doubt by it, the accused must be acquitted. Even if not left in doubt by the statement, the accused is nonetheless entitled to a finding of not guilty if the accepted evidence falls short of proof beyond a reasonable doubt. While the mantra of R. v. W.(D.) need not be cited chapter and verse, the underlying principles most definitely apply to situations where the accused’s version of events is introduced as evidence in a statement tendered by the Crown. ...

[Underlining added.]

I will therefore, consider the statement of Ms. Florence to be evidence which is part of the entirety of the evidence before the Court.

[181]     Ms. Florence stated in the audio recording that she and Mr. Milne had shared three 2?litre bottles of cider that evening. The Admissions include the videotape from the liquor store which shows Mr. Milne purchasing three 2?litre bottles of cider that day. The time of those purchases is 3:00 p.m., 4:19 p.m. and 5:42 p.m. There was only one nearly empty 2?litre bottle of peach cider located in the basement suite. Also located in the basement suite was an empty bottle of brandy in a black bag in the northwest corner of the room, and an empty 200 ml. bottle of vodka under the table next to the fireplace, behind a storage container next to the wall. The empty brandy bottle and empty vodka bottle were in somewhat obscure locations, and not visible.

[182]     Although the videotapes from the liquor store indicate that Mr. Milne returned bottles on subsequent purchases that evening, it is not clear if the bottles he returned are 2?litre cider bottles.

[183]     On the evidence, I conclude that Ms. Florence consumed some of the contents of the three 2?litre bottles of cider between the hours of 4:00 p.m., after speaking with her aunt in the carport, and 8:30 p.m., the approximate time that Ms. Burt was called by Ms. Florence.

[184]     Ms. Florence says that they were drinking together as a couple. Mr. Milne had a BAC of 257 mg% in his blood and 317 mg% in his urine indicating a significant consumption of alcohol at the time of his death. There is no other evidence regarding his drinking pattern that evening.

[185]     Ms. Dinn’s report explains that as cider is a dilute beverage, absorption is delayed and the actual BAC is lower, by 25% to 50%, than a BAC theoretically calculated.

[186]      The question of Ms. Florence’s tolerance to alcohol must also be considered. In this regard, I rely on the expert evidence of Ms. Dinn. She testified that an individual’s tolerance to alcohol is a factor to be considered in the correlation of the BAC and symptoms of alcohol consumption. Further, only in the case of social drinkers does the BAC relate to the symptomology on the chart in her report. A change in drinking patterns will result in a change in the level of tolerance after two weeks: after two weeks of not drinking, a formerly chronic drinker’s tolerance will reset to that of a novice drinker, for example.

[187]     The evidence of Ms. Burt and Ms. Florence is that Ms. Florence had previously been a heavy consumer of alcohol. For this reason, Ms. Burt imposed the rule of no drinking when the couple moved into her basement suite. Ms. Florence refers to the fact that they had not been drinking, and the fact that the alcohol consumed on this day had an increased effect whereas in the past they could drink cases of beer.

[188]     With regard to the pattern of drinking in the two weeks prior to the offence, other evidence is minimal. There is Ms. Burt’s evidence that to her knowledge, the couple was not drinking in the two months prior to the date of the offence while they lived in her basement suite. However she had limited opportunity to observe and there were the empty vodka and brandy bottles of which Ms. Burt was unaware, and which may or may not have been consumed in part by Ms. Florence. Ms. Florence had just found a full-time job and was very happy that afternoon indicating some positive change in her life circumstances.

[189]     I conclude that Ms. Florence had previously been a heavy or chronic drinker. At the date of the offence, her tolerance had reset to the level of a novice drinker. As a result, she would exhibit symptoms of intoxication at a lower level BAC.

[190]     The levels of intoxication as set out by Ms. Dinn are the most thorough consideration of the circumstances arising on this evidence. The third of five levels is titled “Moderate to Heavy Intoxication” with an indicated level of 150 to 200 mg% for a social drinker. The indicated symptomology includes slurred speech, balance and coordination difficulties. The mental symptomology includes decreased inhibitions and judgment, emotional instability and mood swings.

[191]     On the evidence I find that Ms. Florence exhibited some slurred speech, including when she was not wearing the oxygen mask, and some balance and coordination difficulties.  She had some mood swings which included rambling speech but she did not exhibit emotional instability.

[192]      In addition, Mr. Jeffrey, on listening to the audiotape, identified some confusion. He did not give any specific examples of the confusion. Confusion is not apparent on the audio tape and when Mr. Jeffrey was given a number of examples of questions and answers given by Ms. Florence or statements made by Ms. Florence, he agreed that they did not indicate any confusion.  One other witness (Cstbl. Shaw who was with her for 90 seconds at most) also mentioned confusion.

[193]     The substantial evidence of orientation as to time, place and circumstances of the evening is evidence that she was not confused.  I do not find that there was any confusion exhibited by Ms. Florence.

[194]     I find that she was at the stage of intoxication described by Ms. Dinn as Moderate to Heavy Intoxication. However, because her tolerance had reset to the level of a novice drinker, her blood alcohol level range was lower than the 150 to 200 mg% indicated on the chart of Ms. Dinn. She exhibited those symptoms at a lower BAC level. Ms. Dinn indicated that a novice drinker may slur their words at 100 to 150 mg%.

[195]     Further, I find that Ms. Florence was in the lower range of the Moderate to Heavy Intoxication range. In making that finding, I rely on the opinions of Ms. Dinn when presented with the hypothetical situations outlined above.  I also rely on the evidence of Ms. Burt, the only witness who had prior knowledge of Ms. Florence. Although Ms. Burt’s attention was not focussed on determining Ms. Florence’s level of intoxication, she did not think that Ms. Florence was intoxicated. She did not notice any slurred speech, and she did not notice any balance issues. Officer Wilson who was with her for 30 minutes did not notice slurred speech. Cstbl. Henley who spent four hours with Ms. Florence described her intoxication as mid-range.

[196]     The balance difficulties experienced by Ms. Florence were at the lower end of the range. Ms. Burt testified that although she was holding onto Ms. Florence, Ms. Florence would have been able to stand on her own. As noted, she was able to stand up from the bed which was low to the floor.  There was some wobbling after she stood and some stumbling. She was assisted from the chair in the carport to the ambulance, but the reason for that was given by the firefighters as being their usual practice. She was able to sit in the chair in the carport upright and unassisted, and was able to sit in the ambulance upright and unassisted. In addition, later at the hospital, she was able to undress herself and take off her pants while in a standing position, without falling or assistance.

[197]     It is the symptomology at this lower end of the Moderate to Heavy stage of intoxication which is determinative rather than the BAC range. After consideration of all of the evidence, I do not conclude that she was at the mid-level of intoxication.

[198]     The observations of the witnesses occur from the time that she called her aunt.  The duration of time over which Mr. Milne was stabbed is not known. It cannot be determined what stage she was at each time she stabbed Mr. Milne as there is no evidence linking the time of drinking to the time of the commencement of the stabbing. However, the evidence of Dr. Litwin discusses the time of death from the stabbing.  He said that the injuries all appear to be of similar age although they could have been sustained over minutes or hours.  After the deeper wounds were sustained a more rapid blood loss would occur, and he expects that death would have been very shortly thereafter. Since his death occurred after Ms. Burt saw him, the deep wounds were inflicted very shortly before Ms. Florence called her aunt.

[199]      I must also consider the other evidence regarding Ms. Florence at the time that she stabbed Mr. Milne. Whether or not the defence of provocation applies, the fact that Ms. Florence had a cut on her arm must be considered. It is agreed by counsel that I must instruct myself to consider the intent of Ms. Florence by virtue of what would be, if this was a charge to a jury, a rolled-up charge considering both the fact of the cut on the arm as provocation, and that Ms. Florence was intoxicated.

[200]     I find as a fact on the evidence of Ms. Florence that the cut on her arm was as a result of her being cut by Mr. Milne. However, the evidence of the sequence of events is not sufficient to determine the order in which Mr. Milne cut Ms. Florence and Ms. Florence stabbed Mr. Milne.  While Ms. Florence says in her statement that he cut her and then she hit him with the knife, this statement is incomplete and I find this part of her evidence unreliable. She cut and stabbed him 14 times. It is not clear if his cut to her was before or during those 14 wounds.  To draw any conclusions in this regard would be speculation.

[201]     Taking into account the evidence of Dr. Hargreaves that a cut of this nature would have required a fair degree of force, I conclude that the cut to Ms. Florence’s arm occurred while Mr. Milne was conscious and likely standing. The evidence of Dr. Litwin and Corporal Arvanetes is of minimal assistance in this regard. Dr. Litwin testified that Mr. Milne could have stood for some period of time after being stabbed. Corporal Arvanetes could not determine the time or sequence from the bloodstains.

[202]     It is the submission of defence counsel that in her drunkenness and anger from being slashed, Ms. Florence failed to appreciate that she was stabbing Mr. Milne, did not see that he was bleeding, or appreciate that she had stabbed him fatally.

[203]     It is further submitted by defence counsel that the bleeding and the seriousness of Mr. Milne’s injuries were not apparent to Ms. Florence because of his clothing and because he could have sustained himself upright for a period of time before he fell. Defence submits that Ms. Florence did not think she had killed Mr. Milne until she and Ms. Burt saw him on the floor, and her hysterical reaction was to say “Andy, don’t leave me”.

[204]     I am unable to agree with the Defence submissions. They are not supported by the evidence. I cannot find that Ms. Florence was surprised by Mr. Milne’s wounds.

[205]      Ms. Florence was hysterical from the time that Ms. Burt came downstairs. Although her focus turned to Mr. Milne when she saw him on the floor minutes after Ms. Burt put a towel on her cut, she appeared to know what had happened to Mr. Milne; that she had stabbed him, and was upset that he may die as a result. She was immediately aware of the location of the knife which was the murder weapon. She was understandably scared in the circumstances.

[206]     It is not known what time the wounds were inflicted on Mr. Milne or Ms. Florence, or how long Mr. Milne was bleeding on the floor. However, Cstbl. Shaw and Ms. Burt testified that blood was visible on the floor around Mr. Milne. There were visible wounds to his face and neck. Mr. Milne did not move after he was stabbed - he was then in the same position when she left the main room of the suite as when she returned.

[207]     The nature of the wounds must be considered. Ms. Florence inflicted 14 stabs and cuts to Mr. Milne including one to his back, two which were life-threatening having damaged organs, one which also broke a rib, and another which pierced the bone in Mr. Milne’s head. As stated in Daley at para. 42 there are “certain types of homicides, where death is the obvious consequence of the accused’s act, [where] an accused might have to establish a particularly advanced degree of intoxication to successfully avail ... herself of an intoxication defence of this type”.

[208]     Ms. Florence was drunk at the lower end of the Moderate to Severe range of intoxication. The evidence does not indicate that Ms. Florence was angry or inflamed. She states that the cut did not bother her. She did, in this stage of intoxication and injury, form the requisite intent.

[209]     In finding that Ms. Florence was not too drunk and angry to be able to intend to cause the death of Mr. Milne, the evidence is clear that she was oriented as to time and place from the time she called her aunt; she was responsive to questions and able to communicate; and she was aware of what had happened and the potential consequences.

[210]     I cannot find on the totality of the evidence that there is a reasonable doubt. I find that Ms. Florence was not intoxicated and angry to such a degree that prevented her from intending to cause Mr. Milne bodily harm, foreseeing that the multiple stab wounds and cuts would cause his death, and being reckless as to whether death ensued. In stabbing Mr. Milne, the Crown has proven that she engaged in a purposeful, goal-oriented series of actions.

[211]     The Crown has proven the mens rea of the offence of second degree murder beyond a reasonable doubt.

(b)            Provocation

[212]     I must next consider whether as a result of the application of the defence of provocation, a conviction for manslaughter rather than second degree murder should be entered.

[213]     The Crown submits that there is no air of reality to this partial defence and that I should not consider it. I will consider the totality of the evidence regarding provocation which has been heard in this judge-alone trial, in determining if there is some evidence of each of the four elements of the defence. I must assume all evidence relied on by the Defence to be true, then determine if it is reasonably capable of establishing the facts or supporting the inferences needed to make out the proposed defence and thereby to acquit.

[214]     The first element of the defence of provocation is whether there was a wrongful act or insult. I have found that the cut on Ms. Florence’s arm was inflicted by Mr. Milne.

[215]     The second element is whether an ordinary person would be deprived of self-control by the wrongful act or insult. The objective evidence relevant here includes the evidence of Dr. Hargreaves that the cut would not have been particularly painful. Subjectively, however Ms. Florence described her high tolerance for pain to the emergency attendants. I can characterize this evidence as some evidence.

[216]     The Defence submits that the wrongful act was perpetrated on an unprepared mind suggesting a different reaction than if the attack was anticipated. They say that there was no pre-existing acrimony between the couple. The evidence is to the contrary. Ms. Florence speaks of previous police involvement for their fighting.

[217]     Although they were happy that afternoon, and things were going well with Ms. Florence’s new job and Mr. Milne’s progress with the trailer, Ms. Burt referenced a history of fighting as that was the subject of one of her rules for them living with her. She heard Mr. Milne say “Leah stop it” about an hour before she was called downstairs that night which does indicate a form of argument in Ms. Burt’s view. The combination of their history and Mr. Milne’s “stop it” that evening is evidence of the cut to her arm being incurred in the course of an argument.

[218]     There is no other evidence of the nature of their relationship such that I can make an inference or a finding that the cut was sudden and not incurred in the course of an argument in a relationship that had previously been acrimonious, in that it would have caught Ms. Florence by surprise.

[219]     In considering the third element, whether Ms. Florence did in fact act in response to the provocative act, I must also consider the submission of the Defence that Ms. Florence was deprived of self-control because of the effect of alcohol and her intoxication.

[220]     There is evidence of intoxication. The evidence of the expert witnesses is that the symptomology typically present at this stage is decreased inhibitions and judgment and emotional instability. As Mr. Jeffery stated in his evidence, persons at this level typically know what they are doing but don’t know why. I have found that Ms. Florence was intoxicated at the low end of the range of Moderate to Heavy Intoxication.

[221]     The evidence of the effect of alcohol on Ms. Florence, her symptoms and behaviour, is determinative that she had exaggerated emotions but was not emotionally unstable. It is clear from the entirety of the evidence that she understood the circumstances, her actions, and the events of the evening.

[222]     There is no evidence of Ms. Florence that the knife wound deprived her of self-control. I agree with the Crown regarding the third branch.

[223]     Crown submits that an air of reality is ultimately not proven because there is not a scintilla of evidence regarding the fourth factor of stabbing Mr. Milne “on the sudden” and before there was time for her passion to cool. I agree.

[224]     There is no evidence that this cut resulted in her losing control and suddenly grabbing the knife and attacking Mr. Milne immediately. Indeed, Ms. Florence says at one point in her statement that the cut did not bother her.

[225]     There is no evidence and can only be speculation about the sequence of events in the basement suite that evening. Other than the statement of Ms. Florence noted above that she cut Mr. Milne after he cut her, there is no evidence regarding the timing of the cut to Ms. Florence’s arm and the cuts and stabs to Mr. Milne. Even with accepting the evidence in that part of her statement as I must at this stage, since she cut and stabbed Mr. Milne 14 times, it would be conjecture to extrapolate from that statement the sequence of a total of 15 wounds or the time over which they were inflicted.

[226]     Crprl. Arvanetes who is an expert in blood spatter analysis stated that there were a number of possibilities. There are. Not one of them is supported by any evidence such that I can find that the Defence has proven that there is some evidence on the fourth branch of the test of provocation that Ms. Florence reacted “on the sudden”. Further, there is no evidence in this regard which is capable of supporting the inferences necessary to make out the proposed defence.

[227]     As there is not an air of reality to the defence of provocation, the burden does not shift to the Crown. The partial defence of provocation is not available to Ms. Florence.

PLEASE STAND

[228]     Having therefore considered the totality of the evidence in this trial, Ms. Florence, I find you guilty of the second degree murder of Mr. Andrew Milne on November 3, 2009.