R v McConnell, 2012 ABQB 263

Court of Queen ’ s Bench of Alberta Citation: R v McConnell, 2012 ABQB 263 Date: 20120420 Docket: 100218288Q1 Registry: Wetaskiwin Between: Her Majesty the Queen In Right of Alberta Crown - and - Allyson McConnell Accused Corrected judgment: A corrigendum was issued on May 8, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.G. Crighton _______________________________________________________ I.

Introduction [ 1 ] On February 1, 2010, Allyson McConnell (“Allyson”) jumped from a freeway overpass onto the road below. Police called her ex-husband Curtis McConnell (“Curtis”). While police investigated Allyson's attempted suicide, Curtis went to their home to check

on his two young boys, aged 2.5 years and 10 months old. He found their lifeless bodies floating in the bathtub. [2] As these tragic events continued to unfold, it became apparent that Allyson, a woman described by all who knew her as aloving and devoted mother, had committed this unspeakable act sometime between the evening of Friday January 29 and MondayFebruary 1, 2010. She is charged with second degree murder in relation to the death of her children and she admitted to drowning themon or about February 1, 2010.

The only issue in this trial is whether the Crown has proved beyond a reasonable doubt that Allyson hadthe specific intent for second degree murder at the time she drowned her two young boys. [3] The Defence submits there is reasonable doubt on this issue and urges this Court to find Allyson not guilty of second degreemurder, but guilty of the lesser and included offence of manslaughter. [4] The Crown urges this Court to convict Allyson as charged, arguing that based on all of the evidence this Court should reachthe conclusion that Allyson formed the specific intent to kill her children. [5] Submissions by both counsel rely in part on the opinions expressed by Dr.

Alberto Choy, a forensic psychiatrist originallyappointed by the Court. In his report, and in subsequent correspondence, Dr. Choy attempted to assist the Court to understand Allyson'sinvolvement in drowning her two young boys. II. The Law [6] The law pertaining to second degree murder and manslaughter is not in issue in this case, and it is not necessary to articulatethe relevant Criminal Code provisions. Suffice it to say that the parties agree these deaths were the result of culpable homicide that iseither second degree murder or manslaughter.

Second degree murder requires nothing less than proof beyond a reasonable doubt thatAllyson intended the consequences of her acts or that she knew the probable consequences of those acts and proceeded recklessly in theface of that risk R. v Martineau, (SCC), [1990] 2 SCR 633 at 646). [7] In this case, the Crown urges the Court to apply the common sense inference that a sane and sober person intends the naturalconsequences of her actions. Such an inference is just that - an inference - and, as with any inference, its application depends on thecircumstances of the case.

As stated by Joyce, J. in R v Robinson, 2010 BCSC 368 at para 107, and cited in R v Damin, 2011 BCSC 723at para 33: But there may be circumstances that cast doubt on whether one can safely rely on the common sense inference. Such circumstancesinclude intoxication, whether by alcohol or drugs.

In addition, evidence of a mental condition that falls short of a mental disorder thatrenders the accused not criminally responsible, may raise a reasonable doubt as to whether the accused had the necessary specific intent.If such circumstances, either alone or in combination, raise a reasonable doubt that the accused had the subjective intent to cause bodilyharm or that he had the subjective knowledge that the bodily harm he inflicted was of such a nature that it was likely to result in death,then the accused is entitled to the benefit of that doubt and cannot be convicted of murder. [8] To determine the issue of intent, it is necessary to review in some detail the circumstances that led to this unspeakabletragedy and to consider what inferences can safely be drawn from them. [9] The witnesses who testified about the surrounding circumstances can be divided into two categories: (1) those who knew Allyson best in the days and years before this tragedy occurred; and

(2) those who tried to assist the Court either by describing what they discovered at the scene or by providing their expert opinions about what Allyson might have been doing in those last days that could have led her to commit such acts. III. The First Category of Witnesses [ 10 ] The witnesses in the first category were Allyson; her ex-husband Curtis; his mother Audrey McConnell; Allyson’s mother and sister, Helen and Roslyn Meager; and two of Allyson's neighbours and friends, Marless Litzenberger and Tracy Malloy.

Leaving aside Allyson for the moment, all of these witnesses testified that Allyson was a loving, devoted mother to her children. They all agreed these tragic events occurred seemingly out-of-the-blue. However, the witnesses who saw Allyson the most often in December 2009 and into January 2010 agreed she was depressed at the time. [ 11 ] Curtis told police immediately following the discovery of his children that his wife had been depressed in the weeks prior and that she had been exhausted. He also indicated to the police she had experienced some post-partum depression following the birth of their younger son.

At trial, Curtis could not recall having made this statement but said, if he did, he would not now use the word “depressed.” In retrospect, he considered Allyson to be withdrawn rather than depressed. He had no recollection of having said anything about post- partum depression. Curtis’s statements to the police were confirmed by the officer to whom they were made and I accept that he made them.

Further, I conclude what he told the police at that time was probably a more accurate reflection of his views about Allyson's state of mind than his trial evidence given two years later. [ 12 ] Curtis and Allyson were married in January 2007. Their first child was born in July that year. The evidence of Curtis and the other category one witnesses differed somewhat in terms of the time period when he and Allyson were having problems in their marriage and what his role might have been in relation to those problems.

Suffice it to say cracks began to appear in their relationship as early as the fall of 2008, and Allyson has admitted that their marriage started breaking down significantly in the fall of 2009. [ 13 ] There are e-mails that suggest, at least from Allyson's perspective, that she was exhausted. Their older son was up frequently through the night and woke early in the morning. Curtis slept during the day as he worked nights in a job he hated. [ 14 ] Curtis testified that when he started working afternoon shifts rather than night shift, things got better.

While this may have been his impression, I accept the evidence of other witnesses that the animosity between Curtis and Allyson intensified from the fall of 2008 onwards. [ 15 ] Allyson found a job that was expected to be of financial help to the family. Curtis was excited because Allyson would be eligible for benefits after three months at her job and Curtis would be able to return to school or to the hospitality industry he loved. [ 16 ] However, very shortly after securing that job, Allyson learned she was pregnant with their second child.

Curtis said he was happy about the pregnancy, but there is evidence Allyson believed he felt trapped by it. His outlook improved briefly when he moved from night shift to the afternoon shift. However, Allyson still perceived that he had reservations about the pregnancy. [ 17 ] Allyson finished work at the end of the first week of March 2009, and their second child was born near the end of that month.

Allyson hoped to return to work in six months time and was trying to get her second child on a sleeping and feeding schedule. [ 18 ] In June and July 2009, the McConnell family went to Australia, where they stayed for eight weeks with Allyson's mother. Audrey McConnell joined them for the last two weeks of their visit and also stayed with Allyson's mother Helen Meager. Audrey McConnell, Helen Meager and Allyson's sister Roslyn Meager all noted Curtis and Allyson were having difficulties in their relationship when they were in Australia.

Roslyn Meager’s evidence was that she had been aware of issues during a previous visit also. Helen Meager testified Allyson told her she had asked Curtis, when their older child was about 12 months old, to arrange for counselling. [ 19 ] Curtis and Allyson returned to Canada after their visit to Australia. In October 2009, Allyson learned she no longer had a job to which she could return. There is evidence that Curtis was upset about that because he very much wanted to return to his previous line

of work. Ms. Malloy, Allyson's friend and neighbour, testified that around that time, Allyson was teary and told her she did not see herself with Curtis in the future. Ms. Malloy described Allyson as being “mad at times” (by which I took her to mean angry), frustrated and “depressed for sure.” [ 20 ] Roslyn Meager testified that during that same time period, she received an e-mail from her sister in which Allyson wrote of possibly trying to bring her children back to Australia. When Ms. Meager called her sister, Curtis answered the phone. Ms.

Meager testified that she sensed the dynamic between Curtis and Allyson was strained. Allyson told her Curtis had accessed her e-mail and had discovered she was thinking of returning to Australia. [ 21 ] In November 2009, Roslyn Meager received another e-mail from her sister in which Allyson advised her that Curtis had “lost it.” Ms. Meager called Allyson and stayed on the line with her until Audrey McConnell arrived. Ms.

Meager testified that a few days later, she learned Allyson had told Curtis she did not want to continue with the marriage and Curtis had moved into the basement of their home. [ 22 ] Allyson’s evidence at trial was that Curtis spent time in the basement as early as April or May 2009. [ 23 ] Shortly after December 10, 2009, Curtis served Allyson with divorce proceedings and also sought to restrain her from removing the children from Canada.

His evidence was that he moved into the basement in December 2009, after the divorce papers were served. [ 24 ] Roslyn Meager testified that she arrived at her sister’s place on December 19, 2009 to assist Allyson with some of her legal documents and to help her get organized. Ms. Meager observed that her sister was tired and stressed. Her sister’s demeanor did not surprise her, since Curtis was living in the house. He did not move out until December 31, 2009. Ms. Meager left on January 9, 2010. She testified that, at the time, Allyson was still stressed, but organized and hopefully less tired.

In the days that followed, she and Allyson communicated by e-mail. She said that Allyson's stress levels appeared to vary depending on what was happening, but Ms. Meager did not notice anything that overly concerned her. [ 25 ] Roslyn Meager testified that while she was still in Canada, Curtis told Allyson not to contact his parents unless it was an emergency. Curtis himself acknowledged saying that to Allyson because his parents did not want to be involved. Allyson told her friend and neighbour, Ms. Litzenberger, that she could no longer contact Curtis’s parents.

According to Audrey McConnell, she and Allyson had been very close before Curtis and Allyson's separation in 2009. After that, Allyson did not come over much, and after the divorce papers were served, their relationship was even worse. [ 26 ] I accept that Curtis’s parents would have provided anything that Allyson and the children needed. However, there is no evidence that Audrey or Jim McConnell made efforts, successful or otherwise, to contact Allyson independently of Curtis.

Curtis was living with his parents from December 31, 2009 on, so Allyson would have been aware that any contact she might have with them likely would involve contact with Curtis. Helen Meager testified that Allyson told her about being invited to a Sunday brunch with the McConnells, but the invitation was made through Curtis. Allyson told her mother she went, but Curtis’ father did not speak to her and it was very awkward.

I accept that Allyson, under the circumstances, perceived she could no longer freely contact Jim and Audrey McConnell. [ 27 ] Clearly, by December 2009 and up until the deaths of their two young boys, Allyson and Curtis were fully embroiled in the kind of acrimonious divorce seen all too often in this Court. Allegations were cast by each of them in affidavits and Curtis had resorted to communication by cryptic notes and through lawyers. [ 28 ] Ms. Malloy and Ms.

Litzenberger testified that in late December 2009 and into January 2010, Allyson appeared to be stressed, depressed and not happy, but she was still attending to her children. I accept that as an accurate portrayal of Allyson’s condition at the time. [ 29 ] Ms. Litzenberger, who was called on to testify regarding Allyson's demeanor, presented as a particularly contemplative and objective witness. It was apparent even on the day of trial that she continued to struggle with what she might have missed. According to

her, Allyson had been isolated. Her supports were in Australia, but she had to remain where she was and to look for work. To Ms. Litzenberger, Allyson seemed trapped. She acknowledged she told the police that Allyson "... was obviously really depressed and I had no idea. She was my friend." [ 30 ] As noted earlier, Allyson testified on her own behalf. Her evidence sheds some further light on what might have led her to commit the unfathomable acts she did. She testified about unimaginable violations to her sexual integrity by her father in her teens.

Those events undoubtedly had an impact on the person Allyson became. She told the Court she suffered from suicidal ideation continuously after those violations. She said she researched different ways to commit suicide at various times throughout her life, and attempted suicide on two occasions before January 29, 2010. [ 31 ] Dr. Choy reported that Allyson told him Curtis was threatening to tell others about these sexual violations, as well as about their intimate relationship. Neither Allyson nor Curtis were asked about that at trial. As a result, there is no way to confirm the truth of her statement.

If it is true, this may have contributed to the unravelling of Allyson’s mental health. [ 32 ] There is evidence confirming Allyson sought medical help to address her stress. Her doctor diagnosed an acute sleep disturbance on January 11, 2010 and prescribed 30 Imovane, the proprietary name for the sleeping aid zoplicone. She filled that prescription on January 21, 2010, according to the date on the prescription bottle. Allyson’s evidence was that she did not take any of the zoplicone until January 29, 2010, when she consumed all of it at once with the help of four Bacardi Breezers.

She testified that, apart from some fragments relating to one or both of her sons in the water, she can recall little else after that. [ 33 ] At trial, Allyson did not have a clear recollection of having come home after swimming with Ms. Litzenberger and her child on January 29 th . She said she knew they went swimming that day, and thought it was in the afternoon. She said when the boys went swimming, generally she gave them a bath as soon as they got home. She said she assumed she came home before supper. She could not recall if she fed the boys supper.

She could not recall bathing the boys, but assumed she had, as it was her practice to give them a bath after supper every night. Clothing for the boys was found laid out on the master bed after they were discovered drowned. Allyson testified it was her normal practice to set their clothing out before she put the children into their bath. [ 34 ] Helen Meager testified she spoke to Allyson that Friday night, and Allyson told her she had delayed her plan to go into Edmonton because her older son had consumed too much sugar that day. Allyson told her she intended to leave the following day.

Helen Meager’s evidence about what Allyson said concerning her weekend plans is consistent with an e-mail Allyson had sent a friend the day before, January 28, 2010, regarding when she expected to be at home through the weekend. Helen Meager ended the call after Allyson said she was going to bathe her boys. [ 35 ] Allyson did not recall going over to her neighbours and leaving items there at about 9 p.m. on the Friday night. Her memory was of the neighbour driving over to her house.

She said the items consisted of clothes the boys had grown out of, toys for their toy swap, and some legal papers and a hard drive she was trying to keep away from Curtis. In fact, the items did not include any toys other than some apparently intended for Allyson’s sister. Allyson did not recall that the items included adult female clothing, but suggested she might have put items in the bags that did not fit her. She explained the note in a bag was one she wrote to remind herself to send some things to her sister. She said the laptop in the bag was broken but had information she wanted to keep from Curtis.

She testified she took maternity clothes to her friend next door as she had just learned that day the friend was pregnant. When she went over she took her baby monitor with her. [ 36 ] At trial, Allyson testified that, on January 29, 2010, her older child would not settle in bed, so she brought him out to the couch, where she had been sleeping. She recalled putting him back to bed, she thought at about 10:45 p.m., and then having difficulty getting back to sleep herself. According to her, she felt totally overwhelmed. She started to drink Bacardi Breezers while she was on the couch.

Her evidence was that while she was not ordinarily much of a drinker, she had started to drink earlier that month to calm her nerves. Any of the category one witnesses who were asked the question, including Curtis, agreed Allyson was not a drinker. [ 37 ] While Allyson recalled starting to drink Bacardi Breezers when she was on the couch, she did not know how much she drank and if she also drank Kuhlua. She said she drank two bottles of Kuhlua but she could not be sure if it was on the Friday night or before.

She testified she believed the alcohol bottles ended up in the bathroom because she used the alcohol to take with the drugs, in the hope she would overdose. She said that Friday, January 29 th , was the first time she had taken the zoplicone. She indicated she took it because she had put her older boy to bed late, she started drinking, she was overwhelmed and needed to try something to get herself to sleep. She could not recall if her older boy was still alive when she took the alcohol and the drugs.

[ 38 ] Allyson did not recall being conscious of her children at any time following the Friday evening and had no memory of what she did on Saturday or Sunday. Dr. Choy testified that her memory impairment in terms of the rest of the weekend is consistent with Allyson having consumed an overdose of zoplicone on the Friday night. [ 39 ] She testified she knew she drank and took all of the drugs. She remembered at some point waking up in the bathtub and holding onto the electrical devices under the water, but they merely buzzed in her hands and then stopped.

When asked if she knew when that was, she said she was not sure how long she would have been knocked out for after taking all of those drugs. [ 40 ] Allyson was asked if she remembered leaving the house on the Monday morning. She said she woke up at some stage, she was upstairs, and she threw up into one of the kids’ containers. Her mouth was all “metallicky.” In her discussion with Dr. Choy, she said she woke up in the basement and then threw up. Dr.

Choy testified a metallic taste is a common side effect of zoplicone consumption. [ 41 ] In cross-examination, Allyson said she also remembered waking up on the floor in the basement, but could not be certain when. Allyson did not recall trying to strangle herself in the basement. [ 42 ] Allyson remembered driving to Toys R Us in Edmonton, but she did not recall leaving her car. She remembered going to the Delta Hotel in Edmonton, ordering lunch there, and becoming emotional. She remembered going to the freeway bridge and throwing herself onto the roadway in an effort to kill herself.

By the time Allyson met with Dr. Choy, she had begun to recall dreams or memory fragments relating to one or both of her children in the water. [ 43 ] Allyson accepts as a fact that she drowned her boys, but she testified she did not recall doing so or ever considering or planning to harm them. She said she "... would never harm my boys." [ 44 ] Based on Allyson's evidence, it is fair to say her memory of the relevant time period is fragmented at best. I accept Dr.

Choy's opinion that her memory impairment was not feigned and could be related to any combination and permutation of her depression, her zoplicone consumption, her psychological processes of repressing negative memory, and the concussion she suffered when she jumped from the bridge. I will address this matter more fully later in these Reasons. [ 45 ] At trial, I observed Allyson to make credible attempts to answer the questions put to her. At times, she appeared confused, occasionally appearing to have more of a dialogue with herself than with counsel.

She agreed she had recovered some memory, but said the more she recalled the more confused she became. I would describe her as being tormented by the death of her boys, but at the same time confused regarding her role in that. I did not observe her to avoid or evade difficult questions and the answers she did give were credible. IV. The Second Category of Witnesses [ 46 ] The witnesses in the second category were investigating officers who attended at the scene; Mr. Pilling, a computer forensic expert who examined various computer devices and software seized from the scene and elsewhere; the medical examiner Dr.

Bannach; and the forensic psychiatrist initially appointed by the Court, Dr. Alberto Choy. [ 47 ] The police investigation revealed that Allyson drowned her two boys in a bathtub relatively full of water. The door to that bathroom was locked when Curtis arrived at the house. He had to use some tool to open it. When he entered the bathroom, he discovered his sons dead in the tub, and Allyson's wedding band on top of the toilet seat. [ 48 ] The bathtub in the master bedroom ensuite bathroom also was filled with water, but to a lower level.

An extension cord was plugged into the wall and a hair dryer and hair crimper were submerged in the water. There was no power in certain locations of the

home, including in the bedroom and ensuite bathroom. A large blue suitcase was found on the toilet seat in the ensuite bathroom. There is no evidence of what, if anything, was inside that suitcase. Allyson could not recall putting the hair dryer and crimper in the tub. She testified she “moved the blue suitcase upstairs during the week, sort of thing, in case we were still –.” She told Dr. Choy she knew she would need it to weigh herself down if she popped up in the bathtub after taking the pills and alcohol. Dr. Choy testified that he found her explanation so unusual he accepted it as true.

Notwithstanding the suitcase appeared never to have made it into the water, I accept Allyson's evidence that she brought it upstairs and I accept as true what she told Dr. Choy she intended to do with it. [ 49 ] A green garbage bag containing two empty Bacardi Breezer bottles was found beside the tub, at the faucet end. Two more empty bottles were at the other end, between the tub and the toilet. A garbage can containing three bottle caps and a pill and a half, assumed to be Tylenol, was located between the toilet and the bathroom vanity. There was an empty Tylenol bottle on the floor, close to the tub.

An empty prescription bottle, lying on its side, and the lid to that bottle, were on top of the toilet tank. [ 50 ] Investigators found a red nylon rope in the basement, tied and looped through the joists of the floor above. Below the rope was a chair that appeared to have foot smudges on the seat. [ 51 ] A computer was seized from the residence. There is no suggestion or evidence that anyone other than Allyson used that computer during the three to four days before the boys were found. Mr.

Pilling conducted a forensic examination of the hard drive, which revealed that a search was conducted on January 13, 2010 and another on February 1, 2010. On January 13 th , the phrase searched was: “How long does it take to drown?" The phrase searched at 9:43 a.m. on Monday February 1, 2010 was: "How long does it take to die from strangulation?" In addition, his report noted there was "internet activity" on January 29 th (6:41 p.m., 7:04 p.m. and 9:28 p.m.), 30 th (8:12 a.m.) and 31 st (6:02 p.m. and 10:57 p.m.), 2010.

Finally, there were various other generic searches relating to electrocution, firearms, overdosing, Imovane, suicide, depression and so forth. Mr. Pilling could not determine when those generic searches were made other than sometime during the life of the computer. He expressed no opinion regarding the purpose, whether suicide or homicide, of any of those subject matter searches. [ 52 ] At trial, the Crown focused on the specific subject matter inquiries of January 13 th and February 1 st . Dr.

Choy agreed those searches were focused, purposeful and goal-oriented. [ 53 ] In view of the evidence regarding the suitcase and its potential connection to a suicide attempt by Allyson, I find the search on January 13 th to be as consistent with Allyson having researched her own suicide as with any early thoughts she might have had about drowning her boys. [ 54 ] The February 1 st search is entirely consistent with the scene found in Allyson's basement.

While it suggests she had a functioning, focused mind on February 1 st , given the lack of clear evidence about the sequence of events in the three to four days prior to that, it is impossible to ascribe any correlation between it and Allyson's state of mind at the time she drowned her boys. [ 55 ] Finally, it is difficult to attribute any significance to the "internet activity" which occurred between January 29 th and 31 st , since neither Mr. Pilling nor Allyson were asked about it. Dr.

Choy reviewed the complete Crown disclosure package, which included information about internet searches, and he did not ascribe any significance to that particular activity either. The most that can be said is there was internet user activity. Without more, it would be presumptive to conclude that the activity was consciously focused, goal- oriented and purposeful. Accordingly, it would be unfair to both parties to draw any inferences from that part of Mr.

Pilling's report. [ 56 ] Investigators learned that Allyson dropped off some used clothes (some belonging to her and some to the boys), a car seat, some items she testified were for safekeeping and some items she testified she was going to post to her sister, with two of her neighbours at around 9 p.m. on the evening of January 29, 2010. I accept Allyson's explanation for this, which was that she and the boys no longer fit into the clothing and she thought these neighbours, one of whom ran a dayhome, could use the items.

Her friends confirmed it was not out of the ordinary for Allyson to give them such things and I draw no nefarious inference from the fact she did. [ 57 ] Dr. Bannach, the medical examiner, confirmed both boys died as a result of drowning. He described, in general terms, the body's response to drowning. He testified that humans have an almost primitive need to breath that would cause a drowning person to struggle for breath for a period of between one and one-half to three minutes. Dr. Bannach was not able to tell the Court when the boys died between January 29 and February 1, 2010.

[ 58 ] The Defence called Dr. Alberto Choy, a forensic psychiatrist. Dr. Choy initially was appointed by the Court to provide his opinions about Allyson's fitness to stand trial, and regarding the availability of the "not criminally responsible" and infanticide defences. He subsequently was asked by Crown counsel to provide his opinion regarding Allyson's intent at the time she drowned her boys. [ 59 ] Dr. Choy conducted a comprehensive assessment in order to provide his opinions on those issues. He interviewed Allyson 15 to 20 times. Some of those interviews were brief while others were extremely lengthy.

In addition, Dr. Choy interviewed a number of collateral sources, including many of the category one witnesses who testified at trial. As previously noted, he also reviewed the Crown disclosure package. [ 60 ] Having considered all of the information available to him, Dr. Choy offered the Court his opinion that Allyson was suffering from a depressive disorder with alcohol contributing to that symptomology. He testified that Allyson dealt with her prior childhood sexual abuse through diversion and, as a result, she had failed to develop processes to deal with her internal emotions.

Her normal coping mechanism was to separate herself from emotions she found painful or difficult to experience. Curtis's evidence supports Dr. Choy's observation. He described Allyson as becoming increasingly more withdrawn, at least toward him. [ 61 ] Dr. Choy opined that Allyson's depression may have started as early as mid-December 2009, but was in full effect by the third week of January 2010. Curtis moved out on December 31, 2009. In or about that same time, he closed their joint bank account and cut off the phone. He told Allyson not to contact his parents unless it was an emergency.

Curtis endeavoured to justify his actions at trial, but he did not deny them. Allyson's sister, Roslyn Meager, arrived on December 19, 2009 to help her with the divorce proceedings, but she had to leave on January 9, 2010, one week earlier than she had planned. Dr. Choy gave his opinion that Ms. Meager's departure would have made Allyson feel more isolated and would have deepened her depression. [ 62 ] As earlier stated, Allyson sought medical help on January 11, 2010 from a doctor who diagnosed her as having an acute sleep disturbance and prescribed 30 zoplicone tablets. Dr.

Choy said that Allyson reported having had increased feelings of helplessness and hopelessness at that time. She was becoming overwhelmed. Dr. Choy told the Court it was his opinion that in the last three weeks of January, Allyson's suicidal ideations intensified and her depression was severe. [ 63 ] Dr. Choy was asked about Allyson's inability to recall anything significant after events on the night of Friday January 29 th .

He told the Court there were various factors that might have affected Allyson's memory - her depression, her psychological processes and the concussion she suffered when she jumped from the overpass. He said any combination of those factors could be impacting her memory, but in any event he did not consider that Allyson was feigning her memory impairment. [ 64 ] Dr. Choy acknowledged her personality test results were considered invalid because they demonstrated she had a tendency to over-report negative features or symptoms.

While he agreed it was possible this might extend to her self-reporting of depression, his opinion remained she was depressed at the time in question. He opined that a person might exhibit the tendency to over-report, as a deliberate cry for help, or because the person genuinely was so distressed. [ 65 ] Dr. Choy also testified about the anticipated effects of a zoplicone overdose. He said an overdose would result in increased sedation, slurring, physical unco-ordination, and then a long period of sleep.

He said if the zoplicone depressed the breathing mechanism, a person could become anoxic, meaning lacking in oxygen, and could die. According to him, there have been untoward events where individuals have used zoplicone plus alcohol, and it leads to over-sedation. He explained that by “over-sedation,” he meant a complete lack of ability to function for a period of time - basically unconsciousness.

He agreed with the Crown that he would not have expected Allyson, after consuming 30 zoplicone, to have been able to carry out focused and purposeful actions such as removing her wedding ring and placing it on the toilet seat in the boys’ bathroom, holding the boys down in order to drown them, performing targeted searches on her computer, like "death by strangulation," or locking the boys’ bathroom door and other doors in the home.

However, when asked if this quantity of zoplicone could lead to aggressive behaviour, he said that there have been stray case reports of individuals engaging in unexpected and untoward behaviour with these medications, especially if they have a prior history of either excessive use, current excessive use, in combination with other intoxicants, such as alcohol, and also individuals who have other psychiatric conditions or prior behavioural problems.

Later in his evidence, he again referred to rare case reports of individuals engaging in complex behaviours when they have overdosed on Zoplicone or similar medications. [ 66 ] Dr. Choy observed that normally zoplicone is safe, but what effect it will have is less predictable if it is taken other than as

prescribed. [ 67 ] Dr. Choy testified that consuming 30 zoplicone is akin to drinking too much alcohol and, in fact, the drug works on the same receptors in the brain. However, he gave no evidence regarding how long it would take for effects of this amount of zoplicone, such as sedation, slurring, physical unco-ordination and sleep or unconsciousness, to occur, nor did he say whether they would appear at once.

In offering his opinion that Allyson likely would not have been able to perform purposeful, goal-oriented actions after consuming 30 zoplicone, he appears to have assumed the drug would have reached its full effect on her almost immediately. Dr. Choy did say that if Allyson took the zoplicone on January 29 th , it would have been out of her system by the time she had blood tests taken at the hospital after throwing herself onto the freeway. [ 68 ] It is significant that Dr.

Choy could not offer any opinions regarding the extent to which a person's judgment might be impaired by the quantity of zoplicone the Court accepts Allyson took. He told the Court that even though the effects of zoplicone generally are understood, when an individual takes a large quantity, it becomes much more difficult to predict what is going to happen. In addition, while Dr.

Choy said that zoplicone is the most commonly prescribed sleep medication in Canada, he acknowledged there are stray cases where individuals have engaged in unexpected and untoward behaviour while taking it. [ 69 ] Based on all of the information available to Dr. Choy, he testified he considered it more likely that because of the perceived, intolerable situation she was in, Allyson purposefully drowned her children and then tried to end her own life by overdosing. He considered the children's deaths to have been an extension of her decision to take her own life, motivated by her inability to leave them.

He did not consider it likely that Allyson had lost the ability to understand her behaviour would hurt her children. [ 70 ] However, Dr. Choy agreed he could not rule out another scenario in which Allyson would not have had the intent to kill her children. In that scenario, and based on her depression and the same perceived intolerable situation, Allyson would have ingested the zoplicone prior to harming her children. She then might have become anoxic as a result of trying to drown herself in the bathtub, or she could have become delirious.

He said that, in either state, it was possible she might not have consciously formed the intent to kill her children, but she later "woke up" and became aware of what she had done. At that point, she went on to try and kill herself by hanging and then by throwing herself off the overpass. Dr. Choy considered this scenario to be speculative. [ 71 ] Dr. Choy was asked whether there is a correlation between loss of memory and loss of the ability to form intent.

He responded it is a hint that there is a potential the person may have lost their ability to form intent, but it may have nothing to do with the person’s abilities or inabilities with respect to their intent at the time. V. Positions of the Parties on Intent A. The Crown's Position [ 72 ] The Crown rejects any notion there is a diminished capacity defence in Canadian law and, in any event, argues there is no evidence of diminished capacity before the Court.

The Crown urges the Court to find Allyson guilty of second degree murder, given the absence of any evidence that at any time she lost the intent to kill her children. [ 73 ] The Crown dismisses Allyson's evidence that she neither planned to nor intended to harm her boys. It argues that if the Court takes into account Dr. Choy's evidence regarding the anticipated affects of zoplicone, Allyson physically could not have consumed the amount she testified she did and then killed the boys and carried out the focused, goal-oriented tasks she evidently completed.

The Crown contends that, on the whole of the evidence, the application of the common sense inference that a sane and sober person intends the natural consequences of their actions is unavoidable. B. The Defence Position [ 74 ] The Defence reminds the Court that the Crown bears the burden in this case, as it does in any criminal case, and the burden is

a heavy one. The Crown must establish beyond a reasonable doubt that at the time Allyson drowned her children, she was not under theinfluence of drugs and alcohol, she had her wits about her, and she deliberately drowned her children. The Defence argues Canadian lawrecognizes that evidence of a mental disorder that falls short of that required to establish a "not criminally responsible" defence can stillbe relevant, along with all of the other evidence, to determine whether the accused was able to and did form the requisite intent forsecond degree murder. Counsel refers the Court to an

article by Nikos Harris entitled "The Utility of a Diminished ResponsibilityDefence: Can an Accused be 'Half Responsible' for a Murder?” (March 2002) 60:2 The Advocate 211-218; and to R v Walle, 2010ABCA 384, 265 C.C.C. (3d) 27. [75] The Defence submits the evidence before the Court places into serious play Allyson's mental condition at the time shedrowned her two boys. Counsel points out Dr. Choy left open a scenario in which Allyson would not have had the specific intent to harmher children. In that scenario, Allyson would have consumed both alcohol and prescription drugs before she drowned her children.

Asthat scenario cannot be foreclosed by the evidence, Defence counsel argues there remains a reasonable doubt regarding her state of mindat the relevant time. The Defence maintains that Allyson is entitled to the benefit of that doubt and, on that basis, the Court should findher not guilty of second degree murder, but instead guilty of manslaughter. VI.

Analysis [76] As Crown and Defence counsel note, it is hard to envisage a sadder set of circumstances than those involved in this case.These events have affected everyone who came into contact with the McConnell family, but none so profoundly as the McConnell andMeager families themselves, who carry with them everyday the enormity of their loss. Even those who have never met the McConnellslikely have pondered what possibly could bring a mother to do such an unspeakable thing to her children.

It is indeed incomprehensible. [77] During the trial, Allyson appeared frail, emotionally detached and considerably older than her hesitantly-stated 33 years. It isapparent from her demeanor in Court that Allyson may never recover from these events. Indeed, she said she was not certain she wantedto recover; that life holds no promise for her, only the prospect of further suicide attempts. No matter how sympathetic Allyson may haveappeared, the Crown reminds this Court it must decide the question of Allyson's intent at the time she drowned her two boys by properlyapplying the law to the evidence.

The Crown cautions that, in doing so, the Court must approach the issue of Allyson's intentdispassionately, without prejudice or sympathy. [78] As already noted, the Crown must prove beyond a reasonable doubt that Allyson had the specific intent to kill her children atthe time she drowned them. That burden is not applied to specific pieces of evidence, but rather to the entirety of the evidence given inthis trial. In addition, the Supreme Court of Canada in R v W(D), (SCC), [1991] 1 SCR 742 at para 27, 63 CCC (3d) 397has emphasized that reasonable doubt also applies to the issue of credibility.

Accordingly, the Court must give specific consideration toAllyson's evidence. The Court cannot decide the issue of intent based on what evidence it finds more believable. The evidence in thiscase is not perfect, but the Court's function is to consider all of the evidence and, in the end, to decide whether or not there remains areasonable doubt that Allyson formed the specific intent to kill when she drowned her children. [79] I am satisfied Allyson’s memory impairment is genuine. Of the little she does remember, much has been shown by otherevidence to be credible.

She testified she took all 30 zoplicone on Friday night sometime after she put her older child back to bed. Shewas less clear regarding any sort of time line thereafter. I accept she took all 30 zoplicone on Friday night, as she testified she did, orearly Saturday morning. Allyson claimed she never would have harmed her boys, but she accepted as a fact that she had drowned themsometime between January 29 and February 1, 2010.

The difficulty with her evidence is her inability to recall what she did when.Consequently, what she was able to recall provided the Court with little direct insight into her mental state at the relevant time. [80] Dr. Choy, in his capacity as a forensic psychiatrist, attempted to provide that further insight. He was a fair and objectivewitness who provided his opinions to the Court regarding a number of matters, including Allyson's intent. Occasionally, he indicatedopinions about which he was quite firm. Generally, however, he expressed his opinions in terms of what he considered to be more or lesslikely.

His opinions are not determinative on the question of intent. That issue is exclusively for the Court to determine, but his opinionsare relevant to that issue, and they are based on extensive interviews with Allyson and others known to her, as well as on his verycomprehensive assessment of a vast body of additional information. Accordingly, it is appropriate for this Court to give carefulconsideration to his reports and to the evidence he gave at trial.

[ 81 ] What distinguishes Dr. Choy's scenarios, one from the other, are his assumptions regarding the sequence of events during the relevant time. He testified that in the scenario he considers more likely, Allyson would have overdosed after purposefully drowning her children. He opined that the act of drowning them was an extension of Allyson’s decision to end her own life and was motivated by her inability to leave them behind. In his opinion, there was no “positive information” that Allyson had lost the ability to know the wrongfulness of her actions when she drowned them.

By that, I took him to mean there is nothing to corroborate her self-reporting that she would never harm the boys. [ 82 ] In the scenario he considers less likely, even unlikely, Allyson would have overdosed, then become anoxic or delirious, and then drowned her children. In that scenario, she may not have consciously intended to harm her children, but at some point after doing so she became aware of what she had done, and then went on to try to hang herself in the basement and, subsequently, jumped off the overpass.

He agreed with Defence counsel that notwithstanding he considers this scenario speculative, he could not rule it out because of the black hole in the available information about those last few days before the children’s death. [ 83 ] In rejecting the second scenario as unlikely, it is clear Dr. Choy assumed Allyson could not have taken any of the actions she did after consuming the zoplicone and while still under its effect.

There are difficulties with that assumption. [ 84 ] The evidence is clear that between January 29 and February 1, Allyson was severely depressed and, to use counsel's words, floridly suicidal. She had planned to be away that weekend and dropped several items at the residences of two of her neighbours around 9 p.m. on the evening of January 29 th . Allyson's neighbours and her sister Roslyn Meager confirmed much of Allyson’s testimony, and I accept Allyson’s explanations about why she did certain things that evening.

In any event, that evidence does not assist the Court regarding Allyson's mental state at the time she drowned her children. [ 85 ] The medical examiner could not say when, specifically, the children died, beyond it being sometime between Friday, when they were last seen alive, and Monday, when they were found dead in the bathtub. [ 86 ] The Crown argues that regardless of when they died, it must have been before Allyson overdosed, if indeed she did.

The Crown submits this is the only logical inference the Court can draw from the evidence since it would not have made sense for her to get into the tub, consume the alcohol and drugs, then get out of the tub, drown the boys and proceed to get back into the tub. Also, it asserts she would not have been physically able to drown the boys after taking the zoplicone. [ 87 ] I reject the Crown's argument that Allyson took the zoplicone while she was in the bathtub. She did not testify that she did.

Her counsel asked her why the liquor bottles ended up in the bathroom, to which she responded: “[b]ecause I used the alcohol to take my prescription medication in the hope that I would overdose.” She testified that Friday night was the first time she had taken any of the prescription medication. She focused on that date because she recalled she had difficulty settling her older child. She recalled she put him to bed late, around 11 p.m., and started drinking when she was on the couch because she was totally overwhelmed and, at that point, needed to try something to get herself to sleep.

She knew she drank and took all of the tablets on the Friday night. She remembered waking up in the bathtub and then holding onto electrical things under the water, without effect. From that evidence, the most I can conclude is that she took the pills with the alcohol in the bathroom and, at some point, she got into the tub. [ 88 ] The scene was consistent with that sequence of events. Photographs of her bathroom showed two empty liquor bottles beside the tub, at the end where someone ordinarily would sit. There were two more bottles in a garbage bag, but they were located at the faucet end of the tub.

There were three bottle caps in a lidded garbage can that was located between the toilet and the vanity, but not close to the tub. That suggests the bottles were opened while Allyson was out of the tub, but in the bathroom. Finally, there was a lid to a prescription bottle on the tank of the toilet. Beside the lid was the bottle itself, lying on its side. The toilet tank is higher than the tub and more so for someone sitting in the tub. [ 89 ] Dr. Choy reported Allyson telling him she recalled lying in the tub, hoping to die, after ingesting the pills.

He said he could not agree with the Crown that Allyson got into the tub and then took the pills with the alcohol. He said he was not certain of the sequence of events. [ 90 ] I conclude there is no evidence that places Allyson in the bathtub when she consumed the drugs and alcohol, although I accept that at some point she got into the bathtub.

[ 91 ] In any event, the Crown argues that to find Allyson not guilty of second degree murder, the Court would have to ignore Dr. Choy's evidence regarding the anticipated effects of those drugs on Allyson's ability to perform focused, goal-oriented actions.

The Crown contends if Allyson consumed 30 zoplicone, she would not have been able to hold both children down for the one and one-half to three minutes it would have taken for them to stop struggling to breathe, to remove her wedding ring and place it on the toilet seat beside the tub where she left her children, to lock that bathroom door and other doors in the house, and to perform a specific subject matter search on the internet. [ 92 ] The Crown’s submission presumes an order of events not necessarily supported by the evidence. It is not clear when Allyson locked the doors or when she removed her ring.

She testified that ordinarily she did not remove her ring, but she had started to do so when she washed up because she had lost weight. [ 93 ] Further, the Crown's argument also ignores Dr. Choy's evidence that it is difficult to predict the effect a zoplicone overdose might have, including what effect it might have on a person’s judgment. The Crown's argument also assumes the zoplicone would have had full affect on Allyson immediately after she consumed it, leaving no window of opportunity for her to have drowned her children while under the influence of the drugs and the alcohol. [ 94 ] It appears that when Dr.

Choy rejected the second scenario as speculative, it was because of a lack of information. When asked by Defence counsel if he still stood by his evidence that there was a scenario in which Allyson possibly could have lost intent, he answered: “[w]ell, yes, there is a scenario present. I can't rule it out. I don't think it's likely. I think it's highly unlikely, but I can, you know, with that lack of information, I can put scenarios that, you know, she could have lost intent.” I took Dr.

Choy to be referring to the lack of information about what actually happened in the McConnell home in those three or four days before the boys were found in the bathtub. He described that lack of information as being a bit of a black hole. [ 95 ] It is clear to the Court that Dr. Choy, in preferring a scenario in which Allyson did not lose her ability to understand she was harming her children, was assuming an order of events that made the most rational sense to him.

The evidence that best illustrates this is the answer he gave when the Crown asked him if he agreed the evidence was more consistent with Allyson having ingested the zoplicone and the alcohol after she drowned her children. He said: “I would agree. I mean, that would be my understanding.

In fact, the other way, I find it very difficult to accept, given what I understand with regard to Allyson's priorities in her life and what she was interested in and [sic] was important to her." In other words, he appears to have reasoned that Allyson made the decision to end her own life and, because she was a loving and attentive mother, she would not have been able to leave her children behind.

Further, as the zoplicone could be expected to effect her in a certain way, she must have purposefully drowned her children and, after that, tried to kill herself by overdosing, then by hanging, and finally, by throwing herself off the overpass. [ 96 ] The possibility that Allyson, a woman who was severely depressed and floridly suicidal in those final days, could have readied her bathroom for her own suicide, taken the pills with the alcohol to hasten the process, and then become delirious and drowned her children is not foreclosed by the evidence in this case, including the evidence relating to the unpredictability of the effect of the drugs she took and the lack of evidence regarding the sequence of events.

Given Dr. Choy's evidence about the sedating affects of zoplicone, it is possible Allyson consumed the drugs and alcohol, drowned the boys, got into the tub and woke up there as she testified she did and then, realizing what she had done, searched how and tried to hang herself. It appeared from the scene that she did try, but there is no way to know when. Finally, it is conceivable that when that did not work, she drove to a place that held fond memories for her, well knowing her children were dead, notwithstanding her inability to acknowledge that or to recall it at trial.

Thereafter, unable to deal with what she had done, she threw herself off the overpass, hoping to finally end her life. [ 97 ] Due to the black hole in the evidence, the Court is left not knowing what happened in the McConnell home during those final few days of the McConnell children's lives, including what Allyson's mental state was when she drowned them. It is left with a reasonable doubt that she had the specific intent to kill her children. The accused is entitled to the benefit of that doubt and, accordingly, she cannot be convicted of second degree murder. VII.

Conclusion [ 98 ] Having concluded there is a reasonable doubt that Allyson had the specific intent to harm her children when she drowned them, I conclude she is guilty of manslaughter.

Heard on the 12 th to 15 th day of March and the 19 th , 20 th , and 22 nd day of March, 2012. Dated at the City of Wetaskiwin, Alberta this 19 th day of April, 2012. M.G. Crighton J.C.Q.B.A. Appearances: Gordon Hatch for the Crown Peter Royal, Q.C. and Tara Hayes for the Accused _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice M.G.

Crighton _______________________________________________________ Paragraph [2] has been changed to read the following: [2] As these tragic events continued to unfold, it became apparent that Allyson, a woman described by all who knew her as a loving and devoted mother, had committed this unspeakable act sometime between the evening of Friday January 29 and Monday February 1, 2010. She is charged with second degree murder in relation to the death of her children and she admitted to drowning them on or about February 1, 2010.

The only issue in this trial is whether the Crown has proved beyond a reasonable doubt that Allyson had the specific intent for second degree murder at the time she drowned her two young boys.

Paragraph [94] was changed to read the following: [94] It appears that when Dr. Choy rejected the second scenario as speculative, it was because of a lack of information. When asked by Defence counsel if he still stood by his evidence that there was a scenario in which Allyson possibly could have lost intent, he answered: “[w]ell, yes, there is a scenario present. I can't rule it out. I don't think it's likely. I think it's highly unlikely, but I can, you know, with that lack of information, I can put scenarios that, you know, she could have lost intent.” I took Dr.

Choy to be referring to the lack of information about what actually happened in the McConnell home in those three or four days before the boys were found in the bathtub. He described that lack of information as being a bit of a black hole. Counsel for the Accused has been changed to read: Peter Royal, Q.C. and Tara Hayes