Maple Ridge woman gets life sentence for
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
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
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,
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
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
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
Police have now identified the man as Andrew Lynn
“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
“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
Before: The Honourable Madam
Reasons for Judgment
III. THE EVIDENCE
(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
(g) The expert witnesses regarding the effects of alcohol
(h) The Evidence of Dr. Litwin and Cpl. Arvanetes
IV. POSITIONS OF CROWN AND
V. THE LAW
(a) Criminal Code Sections
(b) Case Law
VI. DISCUSSION AND ANALYSIS
(a) Intent to Commit Murder
 On November 3,
2009, Andrew Milne died as a result of injuries sustained from
multiple stab wounds inflicted by his wife, Leah Florence.
 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.
 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
 On the same
evening, Ms. Florence sustained a cut on her arm. The Defence submits
that the defence of provocation must also be considered.
 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?
 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 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 4th 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
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
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 4th 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
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
 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.
 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.
 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.
 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.
 Dr. Litwin, who
conducted the autopsy of Mr. Milne, and Corporal Arvanetes, a blood
spatter expert, also testified.
 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
 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,
 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.
 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.
 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
 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.
 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.
 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.
 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.
 Ms. Burt did not
hear any barking from the dog downstairs.
 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.
 Ms. Burt heard
Ms. Florence yell “Auntie Pat, Auntie Pat”. As Ms. Florence sounded
very upset, Ms. Burt ran down the stairs.
 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”.
 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.
 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.
 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.
 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.
 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
 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.
 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
 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
 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
 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.
 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.
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
 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.
 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.
 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
 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.
 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.
 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
 On examination of
her talking, walking and moving, Mr. Smith concluded that Ms. Florence
had a normal neurological assessment.
 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
 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.
 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.
 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
cross-examination, Mr. Smith agreed that in his statement given that
evening he described Ms. Florence as appearing very intoxicated at the
 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
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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”.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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
(e) The Evidence of Cstbl.
Henley and the audio and video tapes
 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.
 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.”
 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.
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.
 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.
 The following are my
observations from the tapes. They do not differ from the evidence of
the witnesses with whom she interacted.
 Although the
transcript of the recording includes a number of references to
“indecipherable”, many of those words were understandable from
listening to the tape.
 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.
 It is clear that she
loved her husband and is, throughout, distraught about the loss.
 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
 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
 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”.
 Ms. Florence is very
responsive and oriented when asked about personal statistics, name,
date of birth and medical history, allergies and diabetes.
 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,
 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 ...”.
 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.
 She is worried about
her Auntie Pat and says “poor Auntie Pat”.
 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.
 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
 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.
 At about 11:30 p.m.
she walks to the washroom unassisted and without any obvious
difficulties or affect.
 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.
 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
 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)
(f) Summary of the Evidence of
the Physical Symptoms of Ms. Florence
 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.
 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.
 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.
 The evidence from
the police, fire, ambulance and medical personnel is that
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.
 Examples of the
evidence demonstrating that Ms. Florence was aware of what had
happened in the basement suite and the consequences of it are:
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”;
 Examples of the
evidence that Ms. Florence was oriented to time and place and that she
was always aware of the surrounding circumstances are:
 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:
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”.
 With respect to
Ms. Florence’s balance there were some differences in the witnesses’
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.
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. 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.
 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
 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
 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.
 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.
 A report authored by
Ms. Dinn was filed as an exhibit in a redacted form.
 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 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.
 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.
 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.
 The evidence of Ms.
Dinn was particularly helpful because she described the effect of
tolerance to alcohol.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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
 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.
 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
 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.
 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
 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.
 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.
 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.
 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.
 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.
 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
 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.
 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
 There was no evidence
regarding the correlation of BAC levels and symptoms for drinkers who
have an increased or decreased tolerance.
 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.
 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.
 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
(h) The Evidence of Dr. Litwin
and Cpl. Arvanetes
 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.
 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.
 There were two stab
wounds which were potentially life-threatening and in need of
immediate medical attention.
 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.
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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
 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.
 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.
 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
 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
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.
 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.
 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.
 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.
 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
 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).
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...
 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
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
 The case of R. v.
Daley,  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,  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
The Legally Relevant Degrees of
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.
 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.
 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,  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
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.
 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,  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
 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. ...
 Mr. Justice Watt stated
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,  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,  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.
 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
59 The defence requires
that both the act of provocation and the act of response or
retaliation be sudden. In R. v. Tripoldi,  S.C.R. 438,
112 C.C.C. 66 Rand J. described "sudden provocation", at p. 68 in
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
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
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,  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.
 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).
 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:
 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
 The issue to be
determined is whether Ms. Florence had the intent to cause the death
of Mr. Milne.
 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.
 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.
 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)
 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.
 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).
 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
 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.
 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.
 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.
 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
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.
 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.
 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.
 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
 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,  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.)
[ 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
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. ...
I will therefore, consider
the statement of Ms. Florence to be evidence which is part of the
entirety of the evidence before the Court.
 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.
 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.
 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.
 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.
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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%.
 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.
 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.
 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
 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.
 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.
 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.
 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
 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
 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
 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.
 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
 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.
 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
 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.
 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.
 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.
 The Crown has proven
the mens rea of the offence of second degree murder beyond a
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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.
 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
 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.
 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.
 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.
 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.
 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.
 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.
 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.