R. v. Louie, 2011 ABQB 274

Court of Queen ’ s Bench of Alberta Citation: R. v. Louie, 2011 ABQB 274 Date: 20110421 Docket: 091466615Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - James Bing Jun Louie Accused _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice E.C. Wilson _______________________________________________________ Introduction [ 1 ] The accused is charged with the first degree murders of his 13 year old son Jason and his 9 year old daughter Jane. He is also charged with the attempted murder of his estranged spouse Ying by strangulation with a rope.

The offences all occurred in the family home on November 27, 2009 in Calgary, Alberta. The children were murdered sometime between approximately 7:00 A.M. and 8:30 A.M. The offence involving the accused’s estranged wife occurred at approximately 9:00 P.M. ie some 13 -14 hours later. [ 2 ] The accused has no memory of what he did. He is amnesic. The accused admits the actus reus for all three offences. However, he denies the requisite mens rea . The accused’s defence is solely related to the matter of intent. First he relies on section 16(1) of the Code .

He says that he was suffering from a disease of the mind such that he should be found not criminally responsible due to

mental disorder for all three offences. If he fails in making out that defence he then argues that the Crown has not proven all of the mental elements necessary to found a conviction for murder - be it first degree or second degree or of attempted murder. Background [ 3 ] While his estranged wife Ying was a professional engineer earning a significant salary, the accused’s employment record was less successful.

The accused and Ying agreed that while she would essentially be the “breadwinner”, he would be a stay at home dad who, among other responsibilities, would cook the meals and drive the children to school. [ 4 ] Over the years it is clear, perhaps due to his more isolated family circumstances, that the accused’s social life was effectively restricted to his wife and children along with his siblings and their families and his mother. [ 5 ] I am satisfied that the accused, in the main, was a fairly placid fellow who never displayed violence toward his wife or children.

All who were asked advised that they were shocked to learn that this man had killed his two children and tried to kill Ying. [ 6 ] Defence puts emphasis upon the accused’s non violent, loving history but also upon some of his rather passive reactions to more, provocative recent events. [ 7 ] In July, 2009 Ying declared she wanted some undefined “space” or “distance” from the accused. It is clear to me that Ying was never particularly happy in her marriage and had wanted some sort of change for quite some time. [ 8 ] The accused’s reaction was non-violent.

He showed a combination of perplexion and anxiety as he struggled to understand what had gone wrong and why Ying was apparently disenchanted with him. He appeared to be understanding and tried to be a more attentive husband. Ying, however, was disinterested. [ 9 ] In mid August, 2009, upon the return from a family vacation in Las Vegas, the accused was up late one evening and uncovered some emails of a romantic nature passing between Ying and another man. His reaction was to awaken Ying to confront her. The accused was upset. He was described as ‘frowning.” He did not speak in a loud voice.

He was not abusive, let alone violent toward Ying with his discovery. But when she denied she had been unfaithful, he called her a liar. [ 10 ] It seems that the accused may have been prepared to “forgive and forget” if the marriage could continue but Ying was not interested in such an option. She wanted a separation and eventually began sleeping in the basement leaving the accused to sleep alone in the second floor main bedroom.

By November 1, 2009 Ying had her own residence a short distance away. [ 11 ] The effect upon the accused of this pending dissolution of his marriage was, to say the least, profound. [ 12 ] From August, 2009 forward the accused suffered ever worsening problems. Weight loss, insomnia, headaches, night sweats, anxieties and the like plagued the accused. His decline was detailed by family witnesses, Ying and by various doctors who treated the accused during this time period. [ 13 ] Clearly the accused recognized that he was not himself and thus his recourse to seek professional help. His family doctor, Dr.

Poon urged counselling on September 27, 2009 and the East Side Counselling Services records revealed the accused attended there. On November 23, 2007, four days before the offences alleged, Dr. Poon noted the accused’s low concentration, insomnia and inability to work. Dr. Poon gave the accused a prescription for sleeping pills - zopiclone - which became a central feature of this case. Dr. Poon also referred the accused to a psychiatrist. [ 14 ] Ying noted the accused’s behaviour in the fall of 2009 included him sitting and staring into a mirror for lengthy periods of time, presumably lost in thought.

She testified that he was sleep deprived, absent minded, unable to concentrate.

[ 15 ] She also testified to her own growing frustration in dealing with the accused over matters relevant to their separation.

Whereas her view was that she was generous to the accused regarding possession of the matrimonial home, custody of and access to the children and child and spousal support, she concluded that the accused never appeared to appreciate her generosity. [ 16 ] Further, when the accused would suggest she was changing her position on some of the issues, she would attempt to explain - on numerous occasions - that she was not changing the terms, but seemingly to no avail. [ 17 ] Not only did the accused not seem to appreciate her position but his constant return to these issues began to appear to her to be illogical, although she was quick to note that this was also typical of his behaviour when confronted with things he did not care to do.

She added that he seemed to be throwing up obstacles to frustrate the ending of the marriage. [ 18 ] But while it may have seemed to Ying that the accused was acting illogically regarding the terms of separation, child custody and the like, I believe that the accused was simply uncertain and suspicious in his dealings with Ying. Some detailing of their dealings is instructive. [ 19 ] Upon their agreement to separate, the accused, on his own initiative, went to Google to get templates for separation and divorce.

Within 3 days of obtaining the templates the accused, without any prior warning, went into their joint account, removed some money and put it into a new account held in his name alone. [ 20 ] Ying’s initial position on matters seems pretty straightforward. The accused could have custody of the children if he wanted them plus the mortgage free matrimonial home plus all the bank accounts. All Ying wanted were her R.R.S.P. and T.F.S.A. accounts.

The accused apparently agreed to all of this. [ 21 ] Ying found the Google templates useless for Alberta and so, on her own initiative, went to Coles or Chapters to get her own Alberta Divorce kit. At the accused’s request she filled out the documents to reflect their agreement. This was sometime in September. At some point a witness to this agreement signed off. [ 22 ] Jason then let it be known to his dad that he wanted to live with his mom. The accused did not want the kids split up and so he agreed that both would live with Ying.

This new agreement occurred sometime in October 2009. [ 23 ] The accused told Ying to redo the custody arrangement into Ying’s name. They verbally agreed to the accused’s access which, hearing Ying’s testimony, I interpreted to mean that the accused’s access was to be unrestricted. [ 24 ] Based upon a friend’s urging it was suggested that Ying see a lawyer. [ 25 ] Apparently Ying’s lawyer felt the agreement was so unfair to Ying’s interests that he prepared a “calculation” to show Ying just how unfair it was.

She, in turn, showed this to the accused who apparently interpreted it as Ying simply wanting more then what she had previously agreed to, for example - one half of the value of the matrimonial home. [ 26 ] The next step was to have Ying’s lawyer draft up an Agreement. To assist the lawyer, the accused and Ying exchanged emails on November 2 and 3, 2009 outlining terms to be worked into that agreement - see Exhibit 15. [ 27 ] From there, Ying’s lawyer drafted up a comprehensive sixteen page Parenting, Support and Property Agreement. This is Exhibit 11. Ying provided it to the accused.

[ 28 ] The agreement contained a number of provisions which were clearly at odds with what Ying had been telling the accused. Some - like her expressed unwillingness to ever accept child support from the accused - were countermanded by law. Ying told the accused that due to this requirement, her lawyer had put it into the Agreement. [ 29 ] A particular provision is pertinent. Paragraph 17(

a) of the Agreement states that: “Commencing on December 1, 2009, the Husband shall have the children every second Saturday from 10:00 A.M. to Sunday at 8:00 P.M.” [ 30 ] As far as I can tell, this was the first incontrovertible indication that child custody from the accused to Ying would occur clearly by the end of November 2009. [ 31 ] That provision and the following which detailed the accused’s access to the children were all entered by the lawyer. Ying told the accused it was the lawyer’s idea, not hers. She added further that “if the kids want to live with you,” they could be with him more.

She also maintained to the accused that she did not want all these things “in black and white.” [ 32 ] With great respect, what Ying was saying to the accused and what was contained in her lawyer’s draft clearly were inconsistent. Ying’s position seems to be that this written agreement was to be signed by her and the accused but that he would not be bound by all its terms.

In effect, she seems to be saying “trust me” to a man who believed that she has already lied to him and betrayed him once before. [ 33 ] While repetitive conversations between the two continued unabated, I am not sure it would be fair to say that, given the above circumstances, they reveal some illogicality or unclear thinking on the part of the accused. [ 34 ] Again, returning to Exhibit 15 - the exchange of emails between the accused and Ying - the accused’s Friday November 20, 2009 email to Ying revealed his desire to see that part of their initial agreement, relating to him getting the house and all bank accounts, was honoured. [ 35 ] It also reveals he did not want the provision regarding equalization payment left in the agreement and that he wanted some specificity in the terms concerning child support, the payment of legal fees and the removal of a specific provision, paragraph number 52. [ 36 ] The accused followed that up with an email 59 minutes later, offering an alteration, in Ying’s favour , regarding the payment of legal fees. [ 37 ] Ying responded on Saturday November 21, 2009 with her own email providing certain confirmations and which invited the accused to tell her if he was now satisfied with her suggested changes so that she could, in turn, have her lawyer update the Agreement. [ 38 ] Further discussions occurred, in relation to child access.

Ying emailed the accused on Monday November 23 at 4:52 P.M. detailing her understanding of what they had discussed and agreed to on Sunday evening. That email - Exhibit 23 - reads in an intelligible fashion, suggestive of a rational, reasonable conversation occurring less than twenty four hours earlier. It makes specific reference to paragraph 18 of the draft Agreement, to reflect these new terms. [ 39 ] In reviewing these documents and the testimony of Ying regarding the development of the entire separation agreement process, I am not convinced of the accused becoming more illogical.

The accused’s ongoing memory difficulties (of which more will be said later) may also help explain some of the accused’s repetitive inquiries or statements. I do not find that this evidence offers any indication of the accused’s mental deterioration.

[ 40 ] Rather, I see an individual who is not trusting Ying in what she is saying, given what he is reading. He wants what she is saying to be “in black and white.” But she does not. His emails reveal no evidence of distorted thought or incomprehensible gibberish. He cites specific provisions of the Agreement and his

interpretations of other provisions bear out after one reads them. [ 41 ] If the accused actually had retained counsel (and I note that the draft Agreement does purport to name his counsel) I do not know if the accused ever met with retained counsel to discuss the draft Agreement. If, as I suspect, that he did not, then the accused’s comprehension of some of this detailed document is all the more surprising given he had not completed high school. The fact that other provisions were unclear to him is not at all surprising. They do contain legal jargon.

Making all due allowance to the fact that English was not his first language, the accused’s demands for changes and/or for clarity as evidenced by these emails reflects a cautious, careful approach to this formal agreement to end his marriage - an agreement, after all, that was presented to him by an individual that he clearly felt had been dishonest with him at the outset of this sad saga. I find that the accused simply did not trust Ying or her word. The days preceding the deaths of the children. Monday, November 23, 2009 [ 42 ] The accused attended upon Dr.

Poon who, among other things, gave the accused his sleeping pill prescription for zopiclone. The evidence is clear that the accused had the prescription filled that day receiving 30 zopiclone tablets, each 7.5 milligrams. Dr. Poon also referred the accused to a psychiatrist, but not on an emergency basis. [ 43 ] The accused’s sister Jenny spoke with the accused who told her of the referral and the prescription. She said he sounded “very distracted and depressed.” [ 44 ] At 4:59 P.M.

Ying emailed the accused confirming certain aspects of child access that the two of them had apparently discussed the previous evening. [ 45 ] That evening, after dropping the kids off at soccer, the accused and Ying had further discussions in the Market Mall parking lot regarding separation issues which upset and frustrated Ying due to their repetitive nature. Tuesday November 24, 2009 [ 46 ] The accused saw Dr. Zhang, the accused’s relative, who has a specialty in Chinese herbal treatments. These treatments provide various health benefits among which include relaxation, reduction of stress and the like. Dr.

Zhang and the accused had lunch. The accused told Dr. Zhang that the children were going to live with their mother the coming weekend. Wednesday November 25, 2009 [ 47 ] The accused met his brother Don at the latter’s work site. The accused was looking for work. However, his brother was quite concerned with the accused’s health and did not think he was fit to safely operate tile cutting machinery.

That and a concern with the accused’s ability to commit to a full work day prompted the brother to refuse the accused’s request for work. [ 48 ] The accused’s brother also testified to seeing the accused run a red light that day. Wednesday, November 25, 2009

[ 49 ] Ying testified that either on this date or on a day earlier that week the accused had phoned her wanting to know a date certain for the children to be moving in with her. Ying testified that she told the accused that she did not know for sure but she did confirm that the Friday of the upcoming weekend would be the first weekend that the children would be staying overnight with her. Thursday, November 26, 2009 [ 50 ] The accused’s sister Jenny testified that in the preceding days and weeks she had helped the accused to better understand the draft Separation Agreement.

She also testified to the accused’s ongoing concerns that Ying was changing matters from their original agreement. [ 51 ] On Thursday, November 26 Jenny spoke with the accused on the telephone. She reported that the accused told her that the children would be moving out by the end of the month and that they would be sleeping at Ying’s on Friday. The accused said “Oh they will all be gone. They will all be gone.” Jenny repeated these comments in a January 18, 2010 telephone interview with a social worker Ms.

Smiley-Rudy but also added that the accused “feared his wife would limit his contact with the children.’ In answer to a question from the Court Jenny confirmed that her understanding of what her brother was telling her was that the move of the children to Ying’s house would commence on Friday November 27 and be concluded by November 30. [This would be consistent with paragraph 17(

A) of the Separation Agreement.] Obviously concerned for her brother, Jenny suggested that the two of them meet for lunch on Friday November 27. The accused told Jenny that his daughter Jane had school for only the morning. Jenny replied that her son was also off school. Accordingly a lunch meeting was arranged. [ 52 ] In the evening Ying went to the matrimonial home. Jason was in his pajamas. The children were going to go to bed shortly. [ 53 ] The accused told Ying he wanted to talk to her in the basement. He told her he had something to show her - perhaps to show her something to read.

He said that “the stuff was in the basement.” [ 54 ] She went downstairs with him. The accused produced the Separation Agreement and wanted to speak to her about two aspects of it - the payment of child support and the promise to execute the will. Ying testified that at this point she had had enough. She made it clear to the accused that she wanted to put an end to these ongoing discussions.

She would have her lawyer send a copy to the accused’s lawyer so that he could explain the agreement to the accused and as to the “good deal he was getting.” She told the accused she had nothing further to say to him. [ 55 ] She tried to exit the basement but the accused continuously blocked her way. She turned away to pack. She invited the accused - as she had done before - to hit her if she was so angry with her. But while he may have taken her face into his two hands and squeezed inwards, he did not strike her, indeed, he said that he couldn’t do that.

Ying testified that this had also occurred on at least one prior occasion. [ 56 ] Finally she squeezed past the accused to exit the basement to which the accused replied “Don’t push me.” She responded with a furious look. She left the house at approximately 11:00 P.M. [ 57 ] By the accused’s account he went to bed sometime at 11-11:30 P.M. and took two zopiclone medications. The death of the children and the attempt on Ying’s life - Friday November 27, 2009 [ 58 ] As will be recalled, when last seen by his mother Thursday night, Jason was wearing his pajamas.

Friday was a half day school day for morning classes only. Neither child lived to go to school on Friday November 27. [ 59 ] Ying testified that on school days Jason set his alarm for 6:40 “ish” and after getting dressed he would leave home at 7:25 -

7:30 A.M. in order to walk to his bus stop to catch a ride to school. Regarding Jane, the usual routine was for the accused to awaken her between 8:15 - 8:30 A.M. preparatory to driving her to school for 9:00 A.M. [ 60 ] When discovered deceased by the police on Friday evening, Jason was in the basement dressed in his school clothing. Ying could think of no reason why Jason, whose bedroom was on the second floor, would be in the basement. [ 61 ] If Jason followed his usual routine, then he would have been killed by the accused, presumably somewhere in the basement, between 6:40 A.M. and 7:30 A.M.

Allowing time to get dressed, presumably to wash up and to eat, narrows this time line somewhat. [ 62 ] Jane was found dead in her bed.

Her bedroom was also on the second floor. [ 63 ] Whereas Jason was strangled to death with a rope, I find that Jane’s asphyxial death came about by way of the accused smothering her with a pillow - a process that the pathologist advises would be expected to be more lengthy in time then a strangulation death. [ 64 ] I find that both children were dead by approximately 8:30 A.M. [ 65 ] What we know next is that between 9:30 and 10:00 A.M. the accused’s sister Jenny phoned the accused’s home but no one answered. She tried his cell phone. Again, no answer.

She left a message for the accused advising she would wait for him at their mother’s home where after they would go for lunch. The accused never phoned. He never showed up at his mothers. [ 66 ] Ying was at work on Friday November 27. Shortly before 3:00 P.M. she phoned the home. No one answered. She phoned home again; this time leaving a message to call her back. No one did. [ 67 ] Around 3:30 P.M. she phoned the accused’s cell number. No answer. She may have phoned or texted Jason as well. Again, no response. [ 68 ] Slightly before 5:00 P.M. she phoned home again and this time the accused answered.

She asked where the kids were and how they were doing. She could not understand the accused’s reply. She said that his speech was slurry, blurred - like his tongue was cut. She told him to speak slowly, one word at a time. She still could not make out what he was saying. Then at some point he said that the children were sleeping or taking a nap. Ying responded that it was 5:00 P.M. and that she was leaving work and taking the bus. [ 69 ] Her plan was to take the bus to her parent’s home where she had left her car. [ 70 ] However a massive snow storm had struck Calgary and traffic was in chaos.

From downtown Calgary to 27 th Avenue N.W. at Centre Street took her 3 hours. The bus was packed the streets were a massive traffic jam. [ 71 ] While on the bus she kept dialling the home phone. Sometimes the accused answered; sometimes not. Most of what he would say she could not make sense of except when he asked her when she was coming home. Ying begged to speak to the children. Ying thought she heard the accused say that Jane was brushing her teeth and Ying asked him why she was doing that. She stated that it was dinner time and she wondered if the kids were eating dinner.

The accused said that they were going to school. Ying asked the whereabouts of Jason. From the words she could pick out, Ying understood the accused to be saying that Jason was taking a bus to the leadership program at his school - a program that Jason was attending although Ying was unaware that it was scheduled for this Friday evening. [ 72 ] Ying told the accused that she was stuck in traffic. Again, Ying testified that the only clear remark from the accused in her

[ 72 ] Ying told the accused that she was stuck in traffic. Again, Ying testified that the only clear remark from the accused in her various conversations was his question of her regarding when she was coming home. In one of her other calls home, the accused answered and asked Ying to call him back later. [ 73 ] Ying decided to get off the bus. She started walking the seventeen blocks to get to her car at her parents home. [ 74 ] Around 8:00 P.M. the accused’s sister Jenny telephoned the accused. He picked up the phone and in a tired voice said he was tired and hung up. [ 75 ] At approximately 8:30 P.M.

Ying got to her car and immediately phoned the accused. He answered. In a loud voice she expressed her concern for her children and her desire to speak to them. All that the accused would say was “Where are you? When are you coming back?” She replied that she was stuck in traffic. [ 76 ] Ying testified that she became very frustrated. She told the accused that she had a right to speak to her children and wanted to know why he would not let her speak to them. She bluntly asked “Did you harm them?

Did you kill them?” the accused replied “You come home and see.” When asked the children’s whereabouts, the accused replied “They’re in my heart.” [ 77 ] There are two significant points to the conversation when Ying was in her car. The first was that she never expressed any difficulty in understanding any of the accused’s words. The second point is to observe that she was not cross-examined on this conversation. [ 78 ] Eventually Ying arrived home around 9:00 P.M. The house was entirely dark. She unlocked the front door and entered. She turned on the foyer light.

She went upstairs turning on more lights. [ 79 ] She saw Jane’s door open a crack. She entered and turned on the bedroom light. She saw Jane laying there, her face purple coloured. She touched Janes’s face which was cold. She knew Jane was dead. [ 80 ] As she backed out of the room, she saw the accused standing in the doorway to his bedroom holding behind him the same yellow rope used to kill Jason. [ 81 ] Ying pulled out her cell phone and dialled 9-1-1 and repeatedly screamed “Help, I need help. 36 Panorama Hills.” [ 82 ] The accused grabbed at Ying and at her phone.

She threw the phone to the floor to prevent him from getting it. [ 83 ] The accused who was dressed in his usual sleeping attire of T shirt and shorts and not wearing his glasses put the rope around Ying’s neck and dragged her into the bedroom. [ 84 ] All the while Ying fought the accused. Kicking, fighting, yelling. The accused said nothing. He kept on his attack. Ying fell to the floor. She tried keeping the rope from being pulled tight around her neck. [ 85 ] She crawled into the ensuite bathroom. The fighting continued.

Perhaps due to her struggling or to them both sweating or because her clothing posed difficulties - or all three of these things - it made it difficult for the accused to quickly conclude his mission as Ying continued to fight. [ 86 ] It was in the bathroom that the accused said twice to her “I am so good to you and you are doing this to me.”

[ 87 ] The accused said nothing else to Ying during this entire confrontation. [ 88 ] Meanwhile the police, alerted by the 9-1-1 call had entered the house first searching the main level and basement where the body of Jason was found. The officers made their way upstairs continually yelling out “Calgary Police.” [ 89 ] Ying heard them and called out for help. The officers entered the master bedroom continuing to call out. Because the master bedroom and the ensuite were in darkness the attending police officers had moved forward with their weapons drawn and flashlights deployed.

Kicking in the bathroom door they saw the accused pulling mightily on the rope ends strangling Ying. He did not stop even with the arrival of the police. He was knocked away by the police. He put up no resistence. [ 90 ] One of the arresting officers testified that when the flashlight focussed on the accused he looked toward the police with a look of surprise, shock or amazement. The accused continued to pull on the ropes strangling Ying as he looked at the police. After being knocked to the floor he was handcuffed and told he was under arrest for murder.

The accused made no comment and was compliant with all police efforts at standing him up and walking him out of the house to a police car.

He walked without difficulty in bare feet through the snow and made no complaint of discomfort. [ 91 ] In the police car he was “chartered” and asked if he understood and the accused replied “Yes.” He was then “cautioned” and asked if he understood and replied “Ya.” He was asked “Do you understand English” and the accused replied “A little.” [ 92 ] The second attending police officer testified that when the accused first looked at the police while in the bathroom his face showed very little expression.

While his eyes and his mouth “opened a little bit” he otherwise displayed with what the officer called a “deer-in-a- headlight kind of look.” [ 93 ] Prior to being “chartered” the accused was told he was under arrest for two counts of murder and one count of attempted murder. [ 94 ] The accused was removed from the police car and transferred to a police van in order to be taken to police headquarters in downtown Calgary.

The accused walked the distance in the snow between the two police vehicles again without any difficulty and again without any complaint. [ 95 ] The conveying officers took custody of the accused at approximately 9:44 P.M. At 9:48 P.M. one of the conveying officers told the accused he was under arrest for murder and he repeated the charter and caution. The accused was asked if he understood and he answered yes on each occasion and on one occasion also nodded his head.

When asked if he wanted to call a free lawyer or any other lawyer the accused replied “Yes.” The accused was driven from the scene at 9:53 P.M. arriving at police headquarters at 10:19 P.M. Throughout the trip the accused said nothing and was observed to be sitting expressionless looking straight ahead. [ 96 ] Taken upstairs in the police headquarters the accused was provided the opportunity to make phone calls and was observed to be in contact with other police officers. For various reasons the accused was moved, from time to time, from one interview room to another.

On one such occasion at approximately 11:36 P.M. the accused indicated he was having difficulty dialling out to make contact with the toll free Legal Aid number and accordingly he asked for and received assistance in placing that call. [ 97 ] The accused telephoned his sister Jenny at 2:24 A.M. on Saturday November 28. Jenny was awakened from her sleep, she described the accused’s voice as being blurry and mumbling. The accused indicated he was in the Remand Centre. When asked why, the accused told Jenny that “he killed the kids, or the kids was sleeping or something, I don’t know.

I was all confused.” (560/17-18) She asked what had happened but he did not go into any details. He asked her what time it was. She answered that it was “2 something.” He asked “In the morning or afternoon?” She told him it was in the morning. To that the accused said “Oh, ok I will just let you go back to sleep” or something like that. In that telephone conversation the accused also said something about Jason saying “Stop grabbing my clothes.”

[ 98 ] Alarmed by the conversation that she had had and after attempting to contact the police to try to learn some more information prompted Jenny to then call her brother Don who said he received her call at approximately 3:30 A.M. They decided that Don would pick up his sister and they would drive to the police station. [ 99 ] On his way to Jenny’s house he checked his cell phone to discover that he had a voice message left by the accused for him at 2:13 A.M. The voice message was in Cantonese. Jenny translated that message and in an

interpretation which provided the meaning in the sense of the voice message she testified that these were the accused’s words: “Police arrested me and said I killed Jane and Jason. Now look for lawyer OK. I just let you know, don’t tell mom OK, bye. Attempt to kill Ying. Okay bye.” Subsequent Developments [ 100 ] On December 3, 2009 the accused was remanded for forensic testing by Court Order. Dr. Xie, a forensic psychiatrist independent of the Crown and Defence, reported back to the Court on January 5, 2010 that the accused was then unfit to stand trial. [ 101 ] On February 4, 2010 Dr.

Xie reported to the Court that the accused was now fit to stand trial but qualified to be found not criminally responsible on account of mental disorder by virtue of section 16(1) of the Criminal Code . The Accused’s State of Mind [ 102 ] As indicated at the outset of these reasons the matter of section 16(1) and the accused’s intent was the focus of this case. In support of the defence, counsel called Dr. Xie and Dr. Anne-Marie Baronet a forensic psychologist - both of whom were on staff at the Southern Alberta Forensic Psychiatry Centre where the accused was on forensic remand. Defence also called Dr.

Roy O’Shaughnessy, a forensic psychiatrist from Vancouver. [ 103 ] In rebuttal Crown counsel called Dr. Alberto Choy, a forensic psychiatrist on staff at the Alberta Hospital in Edmonton and Dr. Martin Davies who holds a PhD in bio-chemistry with Post-Doctoral training in pharmacology with a particular interest with zopiclone. [ 104 ] Putting aside Dr. Davies for a moment, all these psychologists and psychiatrists agree that on November 27 the accused was suffering from a major depression of several months duration.

The stresses the accused was facing were overwhelming in that he was having difficulty in coping. [ 105 ] These experts also agree that the accused displayed no psychosis. He was neither anti-social nor narcissistic. [ 106 ] In addition, the evidence is clear that the accused did not express homicidal thoughts before November 27 and, further, the accused was genuinely devoted to his children and loved them dearly. [ 107 ] Lastly, the accused’s amnesia for the time period from 11 or 11:30 P.M.

Thursday November 26 through to at least the late evening of Friday November 27, if not up to approximately 2:30 A.M. on Saturday November 28 - absent a brief recall of his son complaining about being choked and a brief recall of being kicked and falling into the ensuite bathtub - was a genuine amnesia. It was not feigned.

The accused was not malingering. [ 108 ] These areas of agreement coupled with the Court’s earlier outline of some pertinent facts are all the “hard” evidence the experts had to go on when tasked with the question of determining the accused’s state of mind at the time the offences alleged were committed.

Dr. Anne-Marie Baronet - Forensic Psychologist [ 109 ] Based upon her understanding of the pertinent background facts and circumstances surrounding the offences coupled with reviewing reports and notes of forensic staff members including the results of various psychological testings conducted upon the accused, Dr. Baronet provided her psychological assessment on February 3, 2010. She varied somewhat from that report in her testimony before me due to her review of Dr. O’Shaughnessy’s report received by her in the interim. [ 110 ] I am satisfied that the essence of her opinion is contained in the following passage: “In

summary, based on the apparent absence of any planning of the murders prior to November 27, his presentation on the day of the offence suggesting an altered state of consciousness, his amnesic experience lasting several hours, and the extreme and out of character nature of his behaviour, there is a significant likelihood that James Louie was in a state of mind at the time of the offences where his judgment would have been impaired and where he would have been unable to fully appreciate the consequences of his actions.” [ 111 ] The symptoms that she relied upon to support the suggestion of an “altered state of consciousness” were four (

I) he woke up and from that point forward was basically amnesic for the day, (ii) his inability to articulate in his conversations with Ying at approximately 5:00 P.M., (iii) his disorientation as to time in those conversations, and (iv) the report by the arresting police that the accused did not even realize that they were there. Dr. Baronet testified that these symptoms of an altered state of consciousness are consistent with a condition called delirium.

She further defined delirium as being a disturbance in consciousness that is manifested by a reduced awareness of one’s environment, the main criteria of which comes with a set of cognitive changes. Those cognitive changes are typically memory impairment, language disturbances and disorientation. Disorientation can be related to time, person or place. In the accused’s case, the disorientation was with time. [ 112 ] Dr. Baronet testified that an individual who is in a delirium has an awareness of his surroundings that is greatly reduced.

In her opinion such an individual would not be able to appreciate the consequences of their action and to make rational decisions about them. [ 113 ] Dr. Baronet concluded that the accused was essentially at the end of his psychological rope suffering from feelings of depression, hopelessness, sense of vulnerability, sense of loss of control to his life, betrayal and frustration. In her view, he was at the limit of what he could cope with.

Knowing that zopiclone has the effect of disinhibition and is able to alter consciousness, she wondered whether the consumption of zopiclone combined with the accused’s desperate psychological state might just have been a “perfect storm.” [ 114 ] To be fair, Dr. Baronet made it clear that, as a psychologist, she could not offer an opinion regarding the range of effects that zopiclone could have had on the accused’s memory or state of mind. [ 115 ] It will be recalled that Dr. Baronet’s opinion supporting NCRMD quoted in paragraph 110 above is based upon some further factors.

One - “his amnesic experience lasting several hours” - is redundant as it is already identified as one of the symptoms relied upon for her suggested altered state of consciousness. Accordingly I put it to the side. The second factor - “the apparent absence of any planning of the murders prior to November 27" - does not impress me. Dr. Baronet seems to proceed on an assumption that unless the murders were planned on November 26 or earlier, the accused’s state of mind is immediately brought into question. Secondly, I do not understand why it is important at all to her opinion that the murders had to be planned.

As to the third factor - “the extreme and out of character nature of his behaviour” it seems clear she is unaware of some of the studies referenced by Dr.

Choy in his testimony which explains that this extreme type of behaviour is not so unusual for other individuals who share some common characteristics with the accused. [ 116 ] Regarding the four symptoms she relied upon to support her suggestion of an “altered state of consciousness”, my reasons later in this judgment will explain that the accused’s amnesia, his non-reaction to the police presence, his speech and thought impairment in conversations with Ying at approximately 5:00 P.M. are not simply reflective of an altered state of consciousness be it described as automatism, automatism-like, disassociation or delirium.

Dr. Roy O’Shaughnessy [ 117 ] Dr. O’Shaughnessy’s opinion is that the accused was in an altered state of consciousness; in particular, a delirium. The accused entered the delirium state as a result of consuming zopiclone, after which he killed his children.

[ 118 ] Dr. O’Shaughnessy testified that it was unlikely that the two zopiclone taken late on November 26 would have triggered the delirium inasmuch as that had not happened when he had consumed the same amount on an earlier occasion. That conclusion makes sense and I accept it. [ 119 ] Dr.

O’Shaughnessy’s theory recognizes that a zopiclone induced delirium would not last long and, accordingly, requires that the accused, after killing his children in a delirium, continued to consume more zopiclone such that he continued to be in a delirium when he attempted to kill his ex-wife at around 9:00 P.M. and for some five hours thereafter. Dr. O’Shaughnessy conceded that such an ongoing condition while continuing to feed himself zopiclone was “a stretch.” I agree. [ 120 ] Dr. O’Shaughnessy’s zopiclone induced delirium is used by him to then explain the accused’s dense amnesia.

In other words the accused’s amnesia was the start point of his altered state of consciousness. This means that the delirium condition commenced at some unknown time after 11:00 or 11:30 P.M. on Thursday November 26. [ 121 ] Dr. O’Shaughnessy testified that it was not difficult to figure out if someone was in a delirium - this notwithstanding that Dr. Xie and Dr. Choy who looked at the same information both were of the opinion that the accused was probably not in a state of delirium. [ 122 ] Dr. O’Shaughnessy provided three pointers to assist in determining a diagnoses.

First, he noted that one cannot do it by mere observation. Secondly, one actually has to interact with the patient.

Thirdly, the sine qua non of delirium is lack of orientation and awareness. [ 123 ] Following his prescription takes one to a consideration of the telephone conversations of the accused at 5:00 P.M. approximately with Ying - which was some nine or ten hours after the killing of the children - and then his subsequent physical interactions with Ying, the police and lastly the telephone conversation with his sister at approximately 2:30 A.M. on Saturday November 28. [ 124 ] The disorientation as to time is found in the earliest conversations with Ying ie time of day and activities of the kids going to school, etc and secondly, found in the accused’s inquiry of his sister at 2:30 A.M. when he asks her if it is morning or afternoon. [ 125 ] The former provides a more compelling case of disorientation as to time then does the latter.

It seems abundantly clear that not only is the accused disoriented as to time but also with what his daughter and son were doing. Added to that was the fact that the accused could not pronounce his words properly with the result that he was essentially making no sense but for the one or two words that Ying believes she was able to get out of him. However, much of those symptoms are equally traceable to the sedating effect upon someone under the influence of a significant amount of zopiclone itself.

Impairment by alcohol and/or a drug is well known in these courts. [ 126 ] As for the telephone call to his sister, it is important to remember that by 2:30 A.M. the accused had been in custody and in the police headquarters for a few hours - so it may be simply a case of someone losing track of time. But, perhaps more importantly, once he is told by his sister that it was in the morning, he immediately tells her that he is going to let her get back to sleep, which is what most of us are doing at that time of day.

His immediate reaction to her advice, therefore, displays an orientation regarding the effect of telephoning someone at that time of day ie that the recipient has been awakened from her sleep and she must be allowed to return to sleep. [ 127 ] But what I find most interesting is that no account seems to have been taken by the witnesses or counsel of the very clear conversation that occurred between the accused and Ying around 8:30 P.M. or so - a conversation upon which no cross-examination was conducted. [ 128 ] I have great concern with any suggestion that the clarity of thought and speech revealed in that conversation is explained by the accused going in and out of a delirium.

If he was “out” of a delirium then he presumably would not have said the words that he said to Ying. Those words betray an awareness that the children are dead. And if he had such an awareness that they were dead then this betrays any claim that the children were killed when he lacked any awareness of his actions. Further there is very little support for the notion that

he would have later slipped back into a delirium prior to his attack on Ying around 9:00 P.M. which clearly lasted some twenty or twenty-five minutes. On the other hand, if the accused was “in” a delirium at the time of the 8:30 P.M. telephone conversation with Ying then he failed to demonstrate any of the disorientation which, Dr. O’Shaughnessy said, was the “sine qua non” for a delirium. I find that the 8:30 telephone call tells against a claim of delirium. [ 129 ] Dr. O’Shaughnessy appears to find further support in his delirium hypothesis based on the following considerations.

First, the accused did not fit into any of the five “typologies” of parents who murder their children. Second, and in any event, the attempt to kill Ying would clearly exclude him from any of those five typologies. That led Dr. O’Shaughnessy to consider the alternative of the “family annihilation syndrome.” Dr.

O’Shaughnessy considered but rejected this categorization, thus having no remaining basis to dispute his diagnosis of delirium. [ 130 ] The circumstances which led him to reject this category were, first, the atypical choice to kill an adult by strangulation; second, the “atypical” way the offences were committed and third, the signs of delirium - being speech impairment, the disorientation and the memory impairment. [ 131 ] With respect I have difficulties with all three propositions. [ 132 ] The choice of a typical or “atypical weapon” ignores the fact that the assailant did choose to pick up and utilize a weapon.

The use of a rope or some other type of garrot to kill a human being has a centuries old lineage. It was not as if the accused picked up a garden hose. As for atypical methodology, the manner in which people commit crimes often involve unusual or, indeed, extraordinary circumstances. If history teaches us anything, it is that the circumstances of a homicide or attempted homicide are really limited only by the ingenuity of the assailant and the reaction, if any, of the intended victim.

As for the three circumstances of speech impairment, disorientation and memory impairment we have no evidence that the accused was suffering from any of these deficits at the time he was killing either of his children. To extrapolate back to that event would be “a stretch.” In relation to Ying, as I have outlined above, we have inconsistent evidence of speech impairment prior to her being assaulted and no sign of speech impairment when he uttered his one remark as he was strangling her and no sign of speech impairment when he subsequently spoke to police officers.

The matter of disorientation has been previously discussed and I will not repeat it. But, again, the most compelling evidence of that disorientation was revealed in his telephone conversations with Ying hours before she was attacked. The matter of memory impairment ie dense amnesia will be dealt with by me later in these reasons and my finding there will equally apply here. In essence I am not persuaded by Dr. O’Shaughnessy’s view that all of this favours a diagnosis of delirium. [ 133 ] Dr.

O’Shaughnessy referenced a comment from his report which stated that “the marked worsening of his depression after he learned of his children’s death is also consistent with his lack of awareness that he had done such a horrible act.” [ 134 ] Dr. O’Shaughnessy admitted that the “worsening of his depression” was based on the accused’s self reporting. Initially the accused did not believe that he had killed his children but he told Dr. O’Shaughnessy that he only came to accept that he had done so after Dr. Xie had told him. To be fair Dr.

O’Shaughnessy allowed that there may have been some “retrospective falsification in this.” Indeed Dr. O’Shaughnessy testified that he assumed the accused had some good knowledge of his act prior to the conversation he held with Dr. Xie “but was in denial I guess to some extent.” [ 135 ] I accept that qualification which, of course, further undermines the weight of that portion of Dr. O’Shaughnessy’s opinion. [ 136 ] Lastly, I will turn to some other factors which were addressed by Dr. O’Shaughnessy.

He stressed that while any of them might be unusual and might be consistent with delirium they were not proof of same ie they were not diagnostic of delirium. [ 137 ] These factors include the fact that the unsuccessful attempt on Ying’s life occupied some 25 minutes; saying little to Ying during the attack; ignoring the pending and actual presence of arresting police officers; showing no reaction to walking barefoot in the snow from the house to the first police vehicle, then to the second police vehicle and then from the second police vehicle into police headquarters. Dr.

O’Shaughnessy agreed that the twenty five minute long unsuccessful attack upon Ying may have been affected by her fighting tenacity; ignoring the police may reflect his single - minded, goal oriented motivation; and making no complaint of discomfort may reflect that the accused was simply shocked by the whole process. Dr. Liya Xie

[ 138 ] This highly experienced forensic psychiatrist provided an early opinion regarding fitness to stand trial and, once that was resolved, an opinion rendered on February 4, 2010 that the accused had a proper basis to claim a

section 16 (NCRMD) defence to all three charges. [ 139 ] Like Dr. O’Shaughnessy she is also of the opinion that at the time of all three offences the accused was in an altered state of consciousness that she variously described as automatism or “automatism-like.” The former description was meant to apply to the accused acting in an involuntary state unappreciative of the nature and consequences of his actions. This essentially repeated the opinion of Dr. O’Shaughnessy and Dr. Baronet.

The notion of “automatism-like” was meant to reflect the fact that here, there is an intoxication factor present that is usually excluded from an N.C.R. finding and, secondly, automatism usually does not last as long as was the situation in this case. [ 140 ] As with Dr.

O’Shaughnessy, Dr Xie believes that the accused consumed a quantity of zopiclone over and above the two tablets consumed on November 26, which reduced his consciousness level, probably leading to the “automatism- like state”, wherein “he performed a series of acts” which included the killing of his children and attempting to kill Ying. [ 141 ] So, as with Dr. O’Shaughnessy and Dr Baronet, the precipitating factor is a consumption of an unknown amount of zopiclone at some unknown time but before the children were killed. [ 142 ] Dr.

Xie’s approach to the matter of intent was to assume that the accused was guilty of the three offences and then to look backwards - to look for proof; to look for evidence of a motivation to kill the children. [ 143 ] Dr. Xie could find nothing to logically support these inquiries. Among a number of items she observed was that, in her view, Ying had been generous on matters regarding the separation but, if the accused yet held any animosity, the priority target would then have had to be Ying - not the children; yet it turned out the opposite.

While the accused did not want the children to move to Ying’s residence, their physical destination was just a short walk away and so there was, in fact, no real loss of his kids. Lastly, that there was no real anger shown by the accused in the evening of November 26. [ 144 ] But Dr. Xie then moved into other considerations which, frankly, are perplexing. [ 145 ] Dr.

Xie was of the view that had the accused read and reread Ying’s ‘love notes’ - exhibit 6, etc. - after he had consumed his prescribed zopiclone then, if they had motivated him to commit murder it should have happened at that time when the children were then asleep because they were then more vulnerable.

Therefore, since murder did not occur at that point, then obviously he had no motive to kill. [ 146 ] With respect, there is no basis to reasonably conclude that it was on the night of November 26 or in the early hours of November 27 that the accused read or reread any emails or put any of his writings thereon - be they legible or otherwise. Dr. Xie simply presumed so in the arriving at her opinion. [ 147 ] But of greater concern, was Dr.

Xie’s opinion that when the accused placed his writings on the love note emails, he was in a state of “dissociation” when writing some of his notes but not in a state of “dissociation” when writing others. [ 148 ] Dr. Xie’s confusing assessment of the situation was because it is rooted in a theory of what may have happened which assumed that the accused’s plan was to kill the children and the wife, which was irrational in her view from the outset, because Ying should have been killed first. [ 149 ] Dr. Xie’s theory follows this meandering path.

After taking two zopiclone, the accused could be planning to kill himself; he could be confused but not dissociated; he takes more zopiclone and enters an automaton - like state; he went and cut the rope for

strangulation; perhaps he moved his vehicle around to better assist in a carbon monoxide killing of his family; perhaps he is walking around the basement and trying to hang himself; then the zopiclone he had consumed hit its peak and he fell asleep in the basement; then Jason woke up, got dressed and went looking for his dad in the basement; the accused awoke; the accused could have been in a dream- like state and killed Jason; then, still confused and in shock, the accused goes upstairs and kills his daughter. [ 150 ] There is, of course, no “hard evidence” to assist in determining that actions such as the cutting of the rope or the movement of the van occurred during this time line or that the killing of Jason occurred after he went looking for his dad in the basement.

Dr. Xie’s attempt at reconstruction was admitted by her as but a theory. [ 151 ] Yet her theory carries on. It has the accused continuing in his dissociated state when he attacks Ying. Dr. Xie testified that the dissociated state probably ended when the police stopped the attack on Ying, although he continued to be confused for another day. [ 152 ] I have several concerns with Dr. Xie’s testimony. First I note that in her opinion the accused’s altered state of consciousness is medically described as dissociation; its legal term is automatism, she said. [ 153 ] Dr. O’Shaughnessy, like Dr.

Choy, however sees no evidence of “dissociation.” So in that regard Dr. Xie stands alone among the psychiatrists. [ 154 ] On the other hand, Dr. O’Shaughnessy sees the medical root for the accused’s altered state of consciousness is delirium. [ 155 ] Dr. Xie, like Dr. Choy, see no evidence of delirium. Indeed Dr. Xie points to the same piece of evidence - the accused’s lack of physical force/reaction to the police officers - to support an absence of delirium which Dr. O’Shaughnessy would interpret to the contrary. With respect, on this particular point, I feel Dr.

O’Shaughnessy’s view would be more compelling than Dr. Xie. [ 156 ] I have further concerns with Dr. Xie’s opinion when she strays into areas where the question seems to be whether or not any of the crimes were committed “in a logical way.” Her view seems to be that unless Ying is targeted first, nothing makes sense. Her view seems to be that it is less likely the accused took zopiclone after killing his children because, being of a clearer mind before taking any zopiclone, he would have been expected to have done a better job by killing his whole family.

How that would be possible given Ying’s absence from the home was not made clear to me at all. [ 157 ] Lastly I have regard to her report dated February 4, 2010. [ 158 ] While her opinion regarding the application of

section 16 of the Code relied on eleven factors, the first five of them are what I will describe as the factors setting the scene - that is, the varying circumstances and aspects contributing to his state of significant depression leading up to the morning of November 27, 2009. The last four factors are what I call the aftermath - that is, the state of the accused’s mind after the offences. [ 159 ] The remaining factors are number 6 and 7. 6.

Imovane [Zopiclone] certainly reduced his consciousness level and probably caused him get into an automatism like state where he performed a series of acts evidenced by: On the first three pages of the email copy, he wrote in Chinese “Ying you are pushing me” four times along with some nonsensical words; he parked his van in an unusual manner in the garage, with the exhaust system facing the passage door to the house; he disabled and hidden the carbon monoxide detector in the house; he did not answer most of the phone calls and sounded wired and confused when he did talk on the phone on Nov. 29, 2009. 7. Mr.

James Louie strangled his son, suffocated his daughter, and attempted to kill his wife on in an automatism like state.

[ 160 ] Regarding factor number 6, I am not persuaded that any of those individual pieces of evidence, viewed separately or cumulatively, provide any support for a claim of automatism due to a number of deficiencies. [ 161 ] First, As to the writings on the three pages of emails. There is nothing to help me infer when those writings were made, let alone that they were made at the pertinent time. Second, As to the unusual parking of the van. There is nothing to help me infer when that occurred; more importantly, nothing to help me infer that it was preparatory to a carbon monoxide killing or suicide.

As I pointed out to counsel - the accused is an automobile mechanic who would be expected to understand the realities of carbon monoxide poisoning. Regardless of how a vehicle is parked in a garage - once a certain volume is reached in the garage, the gas will spread into the house. I know of no science that suggests the garage or house volume will be enhanced or retarded according to how the vehicle is positioned inside that garage. Third, As to disabling and hiding the carbon monoxide detector. First, it was not disabled when removed from the wall electrical socket.

The photo exhibits shows the detector has a lithium battery - as do most detectors, to ensure they are not disabled when electrical power fails. As for “hiding” it - it was placed, in view, under the master bed but in clear view of the photographer who caught it in his lens on the first round of photos taken by the police. So it, in fact, was not hidden. Further, I do not understand Dr. Xie’s notion here. If it was hidden on a suicide bid or murder-suicide, who is it being hidden from? Fourth , As to not answering most of the phone calls and sounding wired and confused when he did.

Presuming that a failure to answer calls was not attributable to unavailability or disinterest in doing so, but rather revealed an inability to respond, then that along with the speech impediment could be reflective of some sort of impairment or delirium - but, I find, not diagnostic of either. [ 162 ] In total I am not persuaded to Dr. Xie’s hypothesis. [ 163 ] But, as with other witnesses, Dr. Xie pays a particular concern to zopiclone. She certainly factors it into her dissociation hypothesis - a hypothesis which I have already indicated difficulty in accepting. Dr.

Xie also testified that the accused’s complete amnesia was mostly due to zopiclone. That aspect of zopiclone will be discussed later in these reasons. Dr. Alberto Choy [ 164 ] As earlier indicated Dr. Choy’s opinion was consistent with the other experts that the accused was suffering from major depression at the time. Much of what Dr. Baronet reported was agreed with by Dr. Choy. [ 165 ] But Dr. Choy placed a great emphasis upon the nature of the accused’s personality functioning in his analysis of the accused’s behaviour. [ 166 ] Most importantly, Dr.

Choy responded to suggestions that the accused did not fit within a “typology” which could explain his killing of the children. In fact, Dr. Choy gave uncontradicted evidence to the contrary. That evidence placed the accused in a small but significant category of individuals who have never displayed any prior violence but who will act out at the point of losing all that they value, for example, their family by annihilating their family and frequently themselves. As he reported “Dissociation, automatic behaviour, and /or psychosis is not necessary to explain this behaviour” [ 167 ] Dr.

Choy cautions that the signs of delirium as described by Dr. O’Shaughnessy for example may also be reflective of the sedation effect of zopiclone and, in his view, are more likely to be that as versus the more rare event of automatism. So too the amnesic effect from zopiclone. [ 168 ] Given the nature of the evidence it was Dr. Choy’s opinion and testimony that it is more likely than not that the accused was not

in an automaton state. [ 169 ] Dr. Choy’s opinion as to the most likely explanation for the accused’s behaviour was expressed in his report as follows: “It is established that Mr. Louie was depressed, overwhelmed, facing separation from his family, whom he genuinely cared for. He is psychologically rigid, with poor problem solving skills and he shows a significant lack of insight into his own emotions and feelings. He was facing the loss of everything of value to him so just before this was to happen he annihilated his own family to prevent the children from “leaving” him.

In effect, he was attempting to prevent the breakup of his family. He may have then intended on committing suicide, perhaps with zopiclone and /or carbon monoxide, to be with his children. In this case, there is no evidence to suggest that Mr. Louie lost touch with reality despite his depression.

His actions, though obviously not justified, could be seen as a logical “solution” to the dilemma he was facing. [ 170 ] This opinion, and particularly the last sentence, prompted some pertinent cross-examination: Q But the fact of the matter is, a normal-thinking person, would you agree, is not going to look at this as a logical solution? Am I correct on that? A No, not necessarily. Q Okay. A One way to look at it is an individual doesn’t want to be separated from his family. Therefore, he is going to take his family with him wherever he’s going. That’s one way to look at it, and that’s what I’m suggesting here.

Another psychological or psychiatric formulation for this comes back to a coping mechanism where the best way to understand it is, if you really don’t like something, if something’s happening to you and you don’t want it to happen, the best thing to do is just to stamp it out. . . . Q So are you saying that in Mr. Louie’s mind, that he would have perceived this as a rational way out of his situation, then? A Absolutely. He is losing control, and I think Dr. Baronet summarizes it very clearly. I don’t remember what part of her report.

But she actually does a very nice job of explaining this particular phenomena, where in fact you don’t want to lose control. Everything that has occurred in Mr. Louie’s life from August up to November is not within his control. It’s something being put upon him. Q Right. A And ultimately this is one way to gain control of the situation. [ 171 ] Having listened to Dr. Choy and having reviewed his testimony repeatedly I do not find any weakness in it, such as to give me concern with its value to my decision. This is to be contrasted with the opinions of the defence experts with whom I do have difficulties.

I accept the opinion of Dr. Choy regarding the

section 16 issue. [ 172 ] That takes me now to a consideration of zopiclone and its potential effects.

Zopiclone and Aggression [ 173 ] I well understand the defence contention that particularly with the Health Canada warning in mind, one must consider that zopiclone consumption increases the risk of “aggressiveness, behaviour changes, and memory disturbance.” Symptoms of depression may worsen. The product monograph is to a similar effect. [ 174 ] The Health Canada advisory is not helpful in defining some of those terms. It tells us that: “This medication may worsen symptoms of depression, including thoughts of suicide or wanting to harm others.

It may also cause agitated or aggressive behaviour.” [ 175 ] The nature of “aggressive behaviour” is not defined. While homicidal behaviour fits comfortably within a notion of aggressive behaviour, not so the reverse. [ 176 ] No evidence was led of the type of behaviour that prompted this advisory or its descriptors. [ 177 ] But the evidence before me was that “aggressive behaviour” - whatever it may mean - is so rare as to be of statistical irrelevance. Dr. Davies testified to a 1991 French study of 20,000 patients. Aggression was reported in .02%.

But to be clear, “aggression” was not defined in that study ie did it mean simply feeling aggressive or did it mean acting out on those feelings. [ 178 ] A University of British Columbia study in the mid 2000's estimated there were two million prescriptions of zopiclone in Canada; an estimated four million in England. One would think that reports of serious personal injury offences committed by someone who consumed zopiclone alone might have come to light. But none of Dr. Davies exhaustive searches provided any such information. None of the witnesses provided aggressive anecdotal experiences, but Dr.

Choy did provide some particularly useful information. In fifteen years of experience including a patient case load involving individuals suffering from psychiatric conditions the only troubling reaction he could report was that some patients felt agitated, could not sleep and were jittery and antsy the following day. [ 179 ] I reject the submission that the consumption of zopiclone might have led the accused to commit one - let alone two homicides or might have contributed to his actions in trying to kill Ying some thirteen to fourteen hours later.

Based on the evidence before me, no such inference could be safely and reasonably drawn. To do so would be rank speculation. [ 180 ] But there is one effect of zopiclone that does figure prominently in this case and that is its effect upon memory. Amnesia is present and it covers the offences alleged. It is admitted to be real and not feigned in this case. It also is a factor figuring into the defence assertion of delirium and automatism - like behaviour. [ 181 ] The wild card in this case revolves around the accused’s consumption of his sleeping pills - the zopiclone. It is to that issue I now turn.

The matter of Zopiclone (also known as Immovane) and it’s potential bearing upon the accused’s mental state [ 182 ] All the experts as well as counsel operate upon an acceptance that after he went to bed on the night of November 26, 2009 the accused consumed more zopiclone than just the two pills that the accused recalls. I see no basis to think otherwise [ 183 ] How much more and when the zopiclone was consumed are the unknowns. The pill container was never found.

Complicating those two questions is the suggestion that, perhaps, the accused took on the additional zopiclone on more than one occasion after retiring

for the night on November 26, 2009. [ 184 ] I will examine the circumstances in an attempt to determine what may have occurred. [ 185 ] Depending upon which choice of the two versions he provided, the accused either took one zopiclone and then took the second zopiclone when the first didn’t work or took the two zopiclones together. I am not sure that it matters which version is correct.

But I do find that from the preceding Monday night through the Thursday night the accused consumed six of the thirty zopiclone tables, leaving twenty-four remaining. [ 186 ] As had been the case on the prior occasions when the accused consumed either one or two zopiclones, I find that the medication consumed Thursday night performed its intended task. The accused was sedated and fell asleep. [ 187 ] If the accused had not been sedated and didn’t fall asleep, then he might be expected to arise to take another zopiclone.

However, the accused has no memory of any such difficulty in falling asleep nor of “tossing and turning” reflective of such a difficulty which might have prompted the ingestion of more zopiclone, let alone any memory of arising to ingest more zopiclone.

There is no evidence which would permit me to reasonably infer that such difficulties were being encountered by the accused in falling asleep which could have, in turn, prompted him to then take on some more zopiclone. [ 188 ] There is no evidentiary basis to support the speculative course of events which posits the accused awakening sometime during the night and taking on more zopiclone. [ 189 ] But “accidental additional consumption” scenario presented by Dr. O’Shaughnessy might support such occurring.

This scenario proceeds upon the speculation that the accused consumed additional zopiclone because, upon awakening, he was confused or groggy and had forgotten that he had already taken his zopiclone medication. It is possible that this may have occurred.

But if that was the situation, I see no reason to suppose that his reaction on that “accidental occasion”, would be to consume more than one or two zopiclone as was his usual practice. [ 190 ] Thus the effect of just one occurrence of the “accidental additional consumption” scenario upon the accused would simply enhance the primary sedating effect of the drug which would be to promote sleep. I see no reason to presume that such an “accidental additional consumption” scenario would therefore continue to repeat itself with the accused continuing to accidentally ingest even more zopiclone.

Had such occurred then at some point, such a volume over-dosage would have resulted, I find, in the accused entering a deep and lengthy sleep which clearly did not occur in this case. [ 191 ] But, regardless of the length of such sleeping enjoyed by the accused from the night of November 26 through to the morning of November 27, the effects of his preexisting long-term sleep deprivation would not have been resolved. In other words I do not believe that he would have awakened on the morning of the 27 th fully refreshed.

That had not been the result achieved in the preceding mornings after nights of chemically enhanced sleep. There is no basis to conclude that some different result ie waking refreshed or alert would now obtain on the morning of the 27 th . [ 192 ] When he awoke on the 27 th he was, essentially, the same man who went to bed on the 26 th . Deeply depressed. Sleep deprived. Confused and deeply troubled by what had befallen him in his life and even in his own health.

All of his efforts at trying to resolve both had obviously failed. [ 193 ] But when he awoke on the 27 th he also understood that this was the day his children would be moving out of the family home leaving him to live there alone. I am satisfied, for the reasons expressed by Dr. Choy, that the accused sometime thereafter decided to kill his children. [ 194 ] I am satisfied that upon awakening or shortly thereafter the accused did not consume any more zopiclone. I say this for several

reason. [ 195 ] First, there is no basis to infer that when he did awake he was anymore confused than he might have been on the morning of the 26 th or any of the earlier days of the week. Thus, there is no reason to expect that he would, due to confusion, consume his nighttime medication when he awoke in the morning. [ 196 ] Second, if he did take some zopiclone he would be aware that its effects would have interfered in his usual morning routine of getting his daughter up and ready for school and then driving her there.

Thus, taking his sleeping medication would be contradictory to his daily responsibility to his daughter. [ 197 ] In sum, there is no satisfactory basis to explain why the accused might have taken on more zopiclone upon awakening on the morning of November 27, 2009. [ 198 ] But further, the circumstances of the killings, particularly of the son, belie any suggestion that more zopiclone had been taken on board after the accused awoke. The sedating effect coupled with the effect of the weakening of his physical coordination and strength as detailed in the evidence of Dr.

Davies is not reflected in the physical force required of the accused in order for him to overcome his son and to kill him by strangling him with a rope - even presuming, that the boy was taken by surprise by his dad. [ 199 ] In total then, I am satisfied that the following points 1 and 3 occurred; and that point 2 may have occurred: 1. The accused took two zopiclone before falling asleep late on November 26, 2009. 2.

The accused may have awakened at some time in the early morning hours of November 27, 2009 and due to grogginess and confusion, may have forgotten that he had taken his medication and so may have accidentally repeated his consumption by taking either one or two more zopiclone, after which he fell back asleep. 3.

That when he later awoke and arose in the morning of the 27 th he did not consume any more zopiclone prior to killing either of the two children. [ 200 ] There is the absence of any memory by the accused from the time he consumed the two zopiclone in the late evening of November 26, 2009 until approximately 2:30 or so in the morning of November 28, 2009 absent a few, fragmentary recollections of events during the intervening 27 or so hours. [ 201 ] This absence of memory described as a “dense amnesia” is accepted by all of the experts who testified before me as genuine. It is not feigned.

The accused is not simply malingering. I have no reason not to agree with the experts opinion that this is genuine amnesia. [ 202 ] But, as is also agreed, amnesia is not a defence nor excuse for criminal behaviour. Amnesia does not mean that at the time a crime is occurring the accused was lacking voluntariness or lacking criminal intent. [ 203 ] But amnesia may be evidence of a mental disorder which was extant at the time a crime is committed.

Much time was spent during this trial in examining this hypotheses. [ 204 ] Reduced to its crudest assessment the Crown’s view is that the accused’s amnesia is traceable to the effect of an overdose of zopiclone taken by the accused immediately after the killing of the children in order to take his own life. This scenario of a double murder-suicide is the basis of the Crown’s allegation that the killings of the two children were planned and deliberate murders.

[ 205 ] The effect of zopiclone - beyond the sedating value - is to cause memory difficulties; in particular amnesia as the drug interferes with the brain’s ability to lay down a memory. [ 206 ] But while such an effect is commonly seen with anterograde amnesia - that is, an absence of memory of events occurring subsequent to consuming the zopiclone, there is also alleged by the Crown to be an effect upon retrograde amnesia - that is, an absence of memory of events occurring prior to consuming the zopiclone. Dr. Choy testified to clinical experience with zopiclone causing some retrograde amnesia.

A study, called the Silva Study, was referenced by both Dr. Choy and Dr. Davies as offering some evidence that zopiclone can negatively affect retrograde memory, although the study did not go so far as to suggest an effect of amnesia. [ 207 ] Dr. O’Shaughnessy’s opinion was somewhat self-contradictory. [ 208 ] For instance Dr. O’Shaughnessy said the following in Chief. The underlining is my emphasis. “ Generally what you’ll get with drugs like Immovane is anterograde amnesia ...

You will almost never see retrograde amnesia.” “ Generally it is from the time of the medication onward that you can’t remember things” [ 209 ] In cross examination the following occurred: Q. Well at high doses of zopiclone, is it not fair to say that that could account for the retrograde amnesia that we’re talking about? A. Not retrograde so much . You’ll get anterograde with - with high doses. You don’t get retrograde ... You don’t get retrograde amnesia with these...

My experience has always been anterograde” [ 210 ] Interestingly, the somewhat qualified assertions in chief are not reflected in his answers in cross-examination. But, perhaps more important than any suggestion of inconsistency in Dr. O’Shaughnessy’s answers, is the fact that he is drawing upon his experiences whereas Dr. Choy relies upon his own clinical experiences which lead him to come to a contrary opinion. [ 211 ] Thus the contradiction between the two lies solely upon their respective experiences. [ 212 ] And while Dr.

O’Shaughnessy’s experiences as a forensic psychiatrist is long, detailed, and impressive, Dr. Choy’s experiences are also compelling. Since 2004 he has been on staff at the Alberta Hospital, where he routinely deals with patients who have been found both unfit to stand trial as well as not criminally responsible due to mental disorder and as such, is of particular assistance in this case. He, like Dr. O’Shaughnessy has also testified on the issue before me. [ 213 ] I accept the testimony of Dr. Choy regarding the effect of zopiclone upon retrograde amnesia - which testimony I prefer to that of Dr.

O’Shaughnessy’s.

I also take some minor comfort in the input of the Silva Study - notwithstanding it is open to all of the criticisms offered by the defence - as providing some evidence that zopiclone consumption may affect memory such as to further support a claim for retrograde amnesia. [ 214 ] Thus there is a basis upon which I can find that the accused, after he killed his children, could have overdosed on all the remaining zopiclone in a suicide bid and that such an overdose would have been responsible for a genuine retrograde amnesia covering the events prior to, during and after he killed his children. [ 215 ] So to, might there be an explanation of anterograde amnesia for the killing of his children lying simply in the accused having

taken his “accidental additional consumption” scenario previously mentioned. [ 216 ] But there is something else to consider and that is the effect upon memory of an overdose of zopiclone for a man whose quality of memory, both prior to and after November 27, 2009 was demonstrably quite poor. In other words the accused’s memory can be shown to be clearly of great concern without any consideration of zopiclone at all. [ 217 ] For instance, on page 8 of his report Dr.

Choy spoke with the accused’s sister Jenny who told the doctor that on November 26, 2009 the accused had spoken with her and told her the kids were moving out for good on Friday November 27, 2009. Jenny was apparently so concerned for her brother’s welfare in having to face such a change in his life that she arranged with him for a lunch meeting on Friday November 27, 2009. However, the accused denied to Dr. Choy of having any such conversation regarding his children with Jenny nor of any lunch plans with her. [ 218 ] This is striking.

Jenny’s recall is clear and, given the circumstances confronting her brother, it is not surprising that this would stick in her memory. Indeed, what is stunning is that the accused would have no memory - not even a vague recollection - of such a conversation. [ 219 ] Dr. Choy also reports that while the accused recalled his request in the evening of November 26, 2009 to Ying for her to come down to the basement in order to talk with him he could not recall why he wanted to speak with her even though he did recall the location.

I contrast that to the testimony of Ying who said that when she was asked by the accused to go downstairs she wanted to know the reason and he provided to her the explanation I have set out at paragraph 53 and 54. [ 220 ] Regardless, clearly the accused had a purpose and it was import

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