R. v. Anderson, 2023 BCSC 1618

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Anderson, 2023 BCSC 1618 Date: 20230727 Docket: 22342-2 Registry: Rossland Rex v. Joel Aaron Thomas Anderson Before: The Honourable Mr. Justice Crossin Oral Reasons for Judgment Counsel for the Crown: A. Mayes Counsel for the Accused: J. Heller S. Grewal Place and Dates of Trial: Vancouver, B.C. February 27-28, 2023 March 1-2, 6-10, 20-22, and May 29-30, 2023 Place and Date of Judgment: Vancouver, B.C.

July 27, 2023 [ 1 ] THE COURT: In the early morning hours of August 22, 2017, 78-year-old Harold Paddock, with the assistance of a walker, was making his way across the main street of Trail, B.C., when he was suddenly attacked by the accused and beaten to death; of this there is no doubt. [ 2 ] The accused is charged with second degree murder. The only question in this trial relates to the mens rea of the accused. The Crown says the accused assaulted the victim, accompanied by the requisite intent for murder.

The accused submits proof of the required intent is not made out and it is manslaughter that is the appropriate verdict. [ 3 ] The analysis of this issue centres around the circumstances of the assault and the conduct of the accused in the hours before and after the assault. This evidence includes CCTV footage and the contents of a statement provided by the accused shortly after his arrest.

The accused also testified at trial concerning these events. [ 4 ] The context of the circumstances surrounding the assault includes, as well, evidence of the mental health of the accused and evidence about his drug use in and about the relevant timeframe. [ 5 ] There is no issue that in the very early hours of August 22, 2017, the accused made his way on foot to the residence of his father located on the outskirts of the city. The home was not occupied, as his father and his father's then girlfriend, Karin, were away. [ 6 ] It is common ground the accused entered the home and eventually lit the home ablaze.

The accused then left and made his way back to downtown Trail on foot, about a 25-minute walk. [ 7 ] Video footage in the City of Trail depicts the victim, Mr. Paddock, at approximately 4:55 a.m. the morning of August 22, 2017, entering and exiting the Toronto Dominion Bank, having withdrawn a small amount of funds from the ATM. The video tracks Mr. Paddock then making his way from the bank and across Bay Street, navigating with the assistance of a walker, in the direction of an A&W. At around the same time, the accused had stopped at the A&W upon his walk from the residence of his father.

The video then depicts the accused attacking Mr. Paddock in the middle of Bay Street at approximately 5:00 a.m. The street is virtually deserted at this time. [ 8 ] The video of the confrontation is less than clear. It depicts the event from some distance and the activity is partially obscured by trees. The assault unfolds in a matter of seconds. The accused testified he abruptly attacked Mr. Paddock. He grabbed Mr. Paddock, hit him, perhaps on the shoulder, and then threw Mr. Paddock to the ground. The accused was wearing his father's steel-toed boots. The accused then stomped on the head of Mr.

Paddock more than once and walked away. This was momentary, however, as the accused then turned and returned to the prostrate Mr. Paddock and delivered one final kick to the head area of Mr. Paddock. The accused then walked away in the general direction of the A&W, leaving Mr. Paddock down and out in the middle of Bay Street. [ 9 ] The video footage then depicts the accused walking through the A&W parking lot towards a Chevon station. There is then a

lengthy video of the accused striding up to the Chevron station within minutes, entering the confectionary area, referenced as the Town Pantry, preparing and buying a coffee, interacting with an early morning customer, who was known to the accused, a Mr. Ronald Coe, and exiting the store. The video then depicts the accused immediately returning to retrieve his bag that he had forgotten in the store, and then leaving once again. [ 10 ] During this period, Mr. Paddock was discovered on the street, attended to by paramedics, and transported to the local hospital.

He never regained consciousness and died approximately one month later. [ 11 ] The activity of the accused following his exit from the Chevron station emerges mostly from the evidence of the accused. Upon leaving, according to the evidence of the accused, he then made his way on foot to a water tower a short distance out of town. He returned to the city from the water tower, visited various locations, and ultimately met up with and assaulted one Andrew Berg at the home of Mr. Berg. The accused was arrested without incident by Cst.

Karn at approximately 1:00 p.m. in the afternoon of August 22, 2017. [ 12 ] The accused, the next day, was taken to the local hospital to treat a hand injury and, approximately 48 hours after his arrest, provided a lengthy audio- and video-recorded statement that has been introduced in evidence. Evidence at Trial Evidence of Ronald Coe [ 13 ] Mr. Coe is a fishing friend of the father of the accused and consequently had met the accused from time to time. Mr.

Coe testified that he was on his way to work at approximately 5:00 a.m. in the morning of August 22, 2017, and had stopped at the Chevron gas station for a coffee, as was his normal routine. The video introduced at trial depicts the interaction between Mr. Coe and the accused at the Chevron station. Mr. Coe testified that upon engaging with the accused, he mentioned to the accused that there had been a fire “up near his dad's place”. The accused responded, “Oh wow.” [ 14 ] Mr. Coe testified there was not anything about the accused that conveyed he might be under the influence of any drugs or intoxicants.

He testified the accused's speech was as it always had been and the accused was responsive during the discussion. Mr. Coe did testify that normally the accused was in a happy-go-lucky state of mind. However, not so that morning. Mr. Coe attributed this to the fact that it was 5:00 a.m. He did testify the accused appeared ‘fidgety’ and was somewhat ‘off’ in his demeanour. Evidence of Constable Sherri Karn [ 15 ] Cst. Karn is a member of the RCMP in Trail. The constable was on her usual patrol duties in her vehicle on August 22.

She had been advised at the beginning of her shift, approximately 7:00 a.m., that the accused may well have been involved in a break and enter and a fire at his father's house in Trail. In the early afternoon on the same day, Cst. Karn receives a report that the accused and one Berg had been observed walking eastbound on Victoria Street Bridge in Trail. [ 16 ] Cst. Karn soon observed a person fitting the description of the accused walking alone. She pulled up beside the accused in her vehicle, rolled down her window, and determined that indeed the person was the accused Anderson. Cst.

Karn then alighted from her vehicle and arrested the accused for breaking and entering. This occurred without incident. The accused told Cst. Karn he had heard about the fire. In any event, he was cuffed and placed in the back seat of the police vehicle. He was, throughout this portion of the engagement, calm and cooperative. [ 17 ] Cst. Karn testified that initially the two engaged in what Cst. Karn described as a normal conversation, as she drove to the detachment with the accused. She testified, however, that as they neared the detachment, the demeanour of the accused changed. He began to mutter or mumble.

His utterances became somewhat disjointed. Once in the detachment, however, he returned to having clear two-way conversations. [ 18 ] During this period of time, Cst. Karn was with the accused. She noted no indicia of alcohol consumption, his gait was normal, his speech was not slurred, and he remained cooperative throughout. [ 19 ] Cst. Karn had some interaction with the accused the following day. She happened to be at the local hospital looking in on Mr. Paddock when, at the same time the accused and a Cst. Hope arrived at the hospital in order for the accused to receive some medical care to his hand. Cst.

Karn had a short interaction with Cst. Hope in the emergency ward. She testified at that time the accused was calm, pleasant, talkative, and smiling. Cst. Karn then left the hospital, but received a call approximately 45 minutes later. She returned to the hospital to find the accused still seated in a chair, but obviously angry and agitated. His fists were clenched and he was uttering a series of threats directed at Cst. Hope. [ 20 ] Cst. Karn attempted to calm the situation somewhat, but to no avail, and indeed the accused began directing threats towards her as well.

He said there was no way he was going back to jail. Csts. Hope and Karn ended up carrying the accused to the vehicle, into the back seat. She does not recall any complaint forthcoming from the accused that he was frustrated because he could not see his psychiatrist. Evidence of Corporal Devon Reid [ 21 ] Cpl. Reid was stationed in Trail at the relevant time, and in fact was the acting sergeant in charge of the detachment. Cpl. Reid testified to his dealings with the accused generally during the relevant time and in particular his dealings with the accused the day before the incident, that is August 21, 2017.

[ 22 ] It is common ground that for some period of time prior to August 22, the accused had been residing at the Rex Hotel in Downtown Trail. Cpl. Reid, along with his partner, Cpl. Orr, were summoned to the Rex Hotel around midday on August 21, and advised by a management person that the accused had become unwelcome. He was in his room and the hotel wanted him out. [ 23 ] The officers attended the room of the accused and had a somewhat innocuous conversation. The accused gathered some things and left without incident. The entire event lasted about 20 minutes. [ 24 ] Cpl.

Reid did testify, however, that during the discussion at the doorway to the accused's room, Cpl. Reid felt the accused was what he described as emotionally erratic. He was described by Cpl. Reid as quickly exhibiting happiness to anger to sadness over a very short timespan. However, the exchanges were civil and rational and the accused ultimately left the hotel. [ 25 ] Cpl. Reid testified that he had dealings with the accused the next day, shortly after the accused was arrested. Reid happened to conduct the pat-down search of the accused as he was being escorted to the cells by Cst.

Karn. [ 26 ] Following this, the same day, Cpl. Reid formally arrested the accused for an incident involving Mr. Berg. Upon being chartered that afternoon, the accused indicated that he wanted to call a particular lawyer for advice, and Cpl. Reid testified that those arrangements were made, and indeed the accused made the call and spoke to counsel that afternoon. [ 27 ] Certain events also unfolded whereby Cpl. Reid provided another opportunity that day for the accused to call and speak with counsel, but the accused indicated he did not need to do that and he was returned to cells. [ 28 ] Cpl.

Reid testified that throughout his dealings with the accused on the 22nd, he appeared calm, collected, and cooperative. [ 29 ] Cpl. Reid had further dealings with the accused the following day, August 23. On this day, Cpl. Reid arranged for the accused once again to speak with his counsel. He also noted that the accused had injured his hand, and he made arrangements for Cst. Hope to take the accused to the hospital. Upon the accused being transported back to the detachment from the hospital that day, Cpl.

Reid arrested the accused for uttering threats at the hospital; for ‘obstruction’; and for the aggravated assault of Mr. Paddock. [ 30 ] Again, arrangements were made for the accused to speak with counsel later that day. Evidence of Constable Matthew Hope [ 31 ] The evidence of Cst. Hope consisted of evidence taken in a voir dire that formed evidence in the trial by consent. In addition, Cst. Hope was produced during the trial for further cross-examination. [ 32 ] Cst. Hope was familiar with the accused prior to the events of August 22, 2017.

He testified the accused had a history with the police in Trail relating to the drug habit of the accused, although Cst. Hope was not particularly aware of the accused's mental health issues. [ 33 ] Following the arrest of the accused, Cst. Hope had certain interactions with the accused while the accused was in the cells at the Trail detachment on the afternoon of August 22 following his arrest. [ 34 ] Cst. Hope testified that he recalled nothing out of the ordinary concerning the behaviour or demeanour of the accused.

He was at that point calm and cooperative. [ 35 ] The following day, August 23, again late in the afternoon, Cst. Hope was asked to transport the accused to the local hospital, as it had been reported the accused had hurt his hand punching the wall in his cell. In this regard, Cst. Hope testified the accused was cooperative, and transport to the local hospital took little time. The accused was escorted to the emergency waiting area by Cst. Hope and sat in a chair in the waiting area. He remained cuffed and shackled as he had been during transport. [ 36 ] Cst.

Hope took up a standing position some feet away and across from the accused. The staff were, of course, alerted and in due course they attended to the accused in the emergency room. The evidence of Hope is that during this initial period, the demeanour of the accused remained unremarkable. Cst. Hope did testify that at some point the accused was mumbling under his breath. It was during this waiting stage that Cst. Hope heard words to the effect uttered by the accused that, "I heard some old guy got hit by a car by A&W the other day, he was sorry to hear that.” Cst.

Hope testified he asked the accused where he had heard about this, and the accused responded, "From my dad the other day." [ 37 ] Shortly and in due course, the accused was taken from the emergency room to have X-rays performed. Ultimately he was returned to the emergency room where the emergency room physician advised that he would need a splint or a cast as he had broken his knuckle. This care was provided to the accused and the message from the doctor was that the accused would have to return in a few weeks, but was then free to return to the cells. [ 38 ] It was at this point, testified Cst.

Hope, the behaviour of the accused changed dramatically. He became, in the words of Cst. Hope, very loud, verbally aggressive, threatening, and angry. The constable testified in this regard as follows: Q And so what did he – what did he say, do you recall the exact words he used? A I – I believe he said he was going to shoot me. I think he said “I’m gonna fucking shoot you, I’m going to shoot – I’m going take your gun and shoot you in the fucking head”. And he said – he made a statement of “I’m a murderer and I killed some Nazi old guy by A & W”.

And then I believe he made a comment about stomping or something to the head . And then I recall the word “walker” during the – there’s lots of other comments that – during the verbal tirade, but I remember the word “walker” being mentioned. I didn’t understand – I didn’t hear the full context of the sentence he’d said, but the word “walker” stood out very strongly. [Emphasis added.]

[ 39 ] The cross-examination of Cst. Hope confirmed the circumstances as follows: Q Anderson really – he just completely lost control at 5:45 at that point, right? A Yes. Q And he said a number of things, he said “I’m going to take your gun and shoot you”? A That’s correct. Q He didn’t lunge at you or anything like that, this was all just verbal threat? A Verbal, yes. Q He said that he’s a murderer? A Yes, I believe he said that more than once. Q He said that he may have killed someone, correct? A Yes. Q But he didn’t say I killed someone, he said I may have killed someone.

A Yeah, he said “I’m a murderer” a number of times, but then he said “I may have killed”. Q He said that – then he said “I killed some old Nazi guy”? A Yeah, I believe it was “I may have killed some Nazi old guy by the A & W”. Q Right, and he said a whole lot of other things too, didn’t he. A Yeah, it was ongoing, just a lot of – a barrage of threats and comments and yelling and stuff towards – aimed – aimed primarily at me. Q But also some other things that you – is it fair to say that you kind of tuned him out at some point. Let me put it this way.

The vitriol was so explosive and you weren’t about to try and unpack it, and try to kind of converse with him about these subjects, and some of it just didn’t even make sense, is that fair? And what – didn’t make sense some of what he was saying. A I don’t know about not making sense, he was extremely agitated and angry, which – which is common when people have been told to go into cells or going back to cells. His comments were pretty clear, most of them.

I also had the concern of everyone in the hospital in the emergency department that – I was making sure that, you know, obviously taking account of what was going on there too. [Emphasis added.] [ 40 ] And finally: Q But now – but now his outburst, I’m going to suggest to you, is way over the top, the threats, the just non-stop vitriol – A It – it’s common in our line of work to deal with situations where prisoners can go from calm or friendly in demeanour to very threatening and loud and swearing and yelling and sometimes assaultive to avoid going into cells or into a police vehicle or what have you. [ 41 ] It was during this time, as well, that the accused asked to see a psychiatrist.

However, Cst. Hope testified he was told that no psychiatrist was then available. The accused had arrived at the hospital at approximately 4:30 on the afternoon of August 23. This outburst occurred at approximately 5:45 p.m. Following the outburst, Cst. Hope attempted to calm the accused and escort the accused back to the police vehicle. The accused resisted and locked his feet around the legs of the chair. Cst. Hope testified he then radioed for assistance and Cst. Karn quickly arrived at the hospital to assist. [ 42 ] The accused continued with vitriol directed at Cst. Karn. Cst.

Hope testified a nurse then inserted herself into the mix and asked if the accused would take some medication to calm himself and he agreed. He was injected twice with five millilitres of Haldol and two millilitres of Atwar. These medications took some time to impact the accused, and so consequently the officers carried the accused to the police vehicle. Within some minutes, however, the accused was calm. They arrived back at the detachment and the accused walked, escorted, into the cells. Evidence of Constable Scott Galbraith [ 43 ] Cst. Galbraith, at the relevant time, was a member of the General Investigation

Section of the RCMP in Trail and was tasked with coordinating and leading the investigation concerning the matter before the court, and indeed all of the criminal matters that were surfacing concerning the accused during this timeframe in August. Cst. Galbraith was initially briefed in the early evening of August 22, 2017. He initially had contact with the accused the next day in the afternoon when he escorted the accused to an area of the detachment where the accused could have a cigarette. There was no discussion concerning the investigation and Cst. Galbraith returned the accused to the cells about 20 minutes later.

[ 44 ] Cst. Galbraith testified that during this timeframe, the accused exhibited what Cst. Galbraith described as a normal demeanour and they had a casual discussion about unrelated matters. He testified that later that day, he observed the accused at a hearing before a justice of the peace and again noted his demeanour was calm. He testified that there appeared not to be any confusion on the part of the accused as to what was unfolding. [ 45 ] It was the next afternoon, August 24th, that Cst. Galbraith conducted the previously-referenced interview with the accused.

The constable had prepared certain screenshots of various images from CCTV video that had been seized from in and about the city, tracking some of the movement of the accused in those early morning hours. The audio- and video-recorded statement speaks for itself, but during his evidence, Cst. Galbraith testified that, to his observation, the accused was calm, civil, cooperative, and generally responsive. He did state, however, that there were a couple of occasions during the interview he felt what the accused was saying to Galbraith “didn’t make sense”. Evidence of Dr. Jason Doyle [ 46 ] Dr.

Doyle was qualified as an expert witness, able to give opinion evidence in forensic pathology, including determining the cause of death, the identification, the cause, mechanism of injuries, and the collection of evidence during autopsies. The cause of death was blunt force trauma to the head. [ 47 ] Dr. Doyle testified to a certain context relating to his autopsy findings. In this regard, Mr. Paddock was not a well man at the time of this event. He had suffered previous strokes. He had severe artery blockages and significant heart disease.

He had a history of schizophrenia and had some brain disease. [ 48 ] In Dr. Doyle's view, while these preconditions certainly made Mr. Paddock more vulnerable to surviving the apparent forces of the assault, the force likely would have killed him regardless of ill health. In addition, Mr. Paddock died after a 27-day stay in intensive care at Kootenay Boundary Regional Hospital, having never recovered from the initial coma. [ 49 ] Consequently, the autopsy was performed more than a month after the assault. The findings of Dr.

Doyle are based almost entirely on the medical records and findings made in and about the time of the assault. The injuries, including the facial fractures, had healed by the time of the autopsy. That said, no issue is taken with the integrity of the information relied upon by Dr. Doyle and, in fact, all medical records were admitted pursuant to s. 30 of the Canada Evidence Act by way of admissions of fact tendered pursuant to s. 655 of the Criminal Code . [ 50 ] As well, no issue was really taken with the conclusions of Dr. Doyle regarding the nature of the injuries suffered by Mr. Paddock. Dr.

Doyle concluded Mr. Paddock suffered a fracture to his skull on the right side of his head, as well as a fracture to his right upper jaw. The left lower jaw was fractured, as well as a sinus fracture in about the bridge of his nose. [ 51 ] Dr. Doyle concluded the fractures on the right side were as a result of at least one blow, and concluded that it was likely more than one blow was inflicted overall, due to the fact simply that the injuries were located at different places, namely also on the left jaw and nose. [ 52 ] Dr. Doyle concluded, however, one blow could have caused all the fractures.

He confirmed the medical records disclose no other injuries to Mr. Paddock, other than the head injuries as described. He offered the view it was difficult to assess the amount of force required to cause the fractures. The assessment only lent itself to characterizing the force generally as mild, moderate, or severe. These terms were not defined. [ 53 ] Nevertheless, he testified the nose is easily fractured and would characterize the force causing a fracture of this sort as mild. The force required for the balance of the fractures, Dr. Doyle would characterize as moderate to severe.

He agreed the injuries were consistent with someone stomping on the head of Mr. Paddock more than once and kicking him in the head. He also testified the boots that were marked as an exhibit in the trial and that were produced to Dr. Doyle during his testimony were capable of causing the injuries from the alleged contact. [ 54 ] He concluded that if Mr.

Paddock had been kicked with a boot in other parts of his body aside from his head, there would likely be bruising or injury to those locations, and he saw no evidence of that although, depending on the force of the kick, the evidence of that kick may not have been detected. Statement of the Accused [ 55 ] The recorded statement of the accused was also introduced by the Crown. The statement was taken on August 24, 2017, commencing at approximately 2:40 p.m. in the afternoon. [ 56 ] No issue was taken with the voluntariness of the statement and the requirement of a voir dire was expressly waived.

The initial portion of the statement is only audio recorded. This initial portion does not address the events in question. The majority of the statement does address the alleged offences and is audio and video recorded. The audio and video recording is marked as an exhibit, as is the transcript. The statement concluded at approximately 4:02 that same afternoon. [ 57 ] The statement was taken at a time when the accused faced a number of charges that had all arisen on or since August 22.

These offences included an allegation of breaking and entering and then committing arson in relation to his father's home, the assault on Mr. Paddock, at the time of taking the statement Mr. Paddock was alive but in a coma, and the accused was so informed of this status, and with the assault of one Andrew Berg. [ 58 ] The accused also faced charges of uttering threats against two police officers that had allegedly taken place at the hospital the day before.

[ 59 ] The statement must be assessed as a whole and in context. However, there are features of the statement that ought to be justifiably highlighted: GALBRAITH: So, I thought I would give you this opportunity to let me know what happened. We’ll kinda go though, like what, it was, it was a crazy couple days there as far as like, a lot of events happening.

ANDERSON: My dad went to Saskatchewan with his girlfriend and I went up to his place to use, see what he had for entertainment and stuff because I was in this bad rut and talking to him on the phone, he was very rude to me and stuff and seemed like he didn’t want me a part of his life anymore, nothing.

And then I burnt his house down, yeah, and then when I went down town I saw some guy and my intuition told me that because he was the guy that like, got Karen involved in treating my daughter like a baby hooker, it’s what they call them, I need ta {indiscernible} they all just suck on things right, because their mouth {indiscernible} so she’s been paying people to allow her to do sexual favors for them and stuff and she got Rowan killed cause she knows her habits and stuff and she got drugs given to Rowan to exchange and she actually killed herself, so I burned all of Karen’s stuff down with my dad’s and the guy that was paying them to that I killed.

GALBRAITH: Killed. ANDERSON: Well, at least I tried too. GALBRAITH: Kay. ANDERSON: But you know, I don’t like, yeah, I-I wanna kill him but I just beat him up. GALBRAITH: Okay. ANDERSON: So I, and then Andrew BERG, he was laughing at the situation so I him in the face with a coffee pot to wake him up. And then I got arrested and now I’m here. … GALBRAITH: Okay but then, so that was that day, I think that was on Monday. ANDERSON: Might have been. GALBRAITH: Then, Tues, early Tuesday morning you went back your dad’s house, how did you get in that time? ANDERSON: I think I crawled through the window in the back.

GALBRAITH: Okay, and then how did you light the fire? ANDERSON: I went downstairs and burned my bed. GALBRAITH: Okay, did you use anything on it? ANDERSON: The cologne that she gave me for Christmas. GALBRAITH: Ah, did you like dump it all over or did you just smash… ANDERSON: … I didn’t have too, I just dumped it all over but it would have lit up regardless and this was just quicker to light. GALBRAITH: Yeah, and that was, you started like the fire with yy at your bed? ANDERSON: With the lighter, ah, one of Karen’s lighters. … GALBRAITH: No. Um, so after that can you, do you remember how you got down to Trail?

After you… ANDERSON: … I walked. GALBRAITH: You walked? Like the route. ANDERSON: I went through the back, down the ss east street all the way to the Bay and top and I walked all the way t-to the back yard, back side or ally, what else you call it, {indiscernible} and then I walked down the stairs. GALBRAITH: Okay, I know where the stairs are. ANDERSON: And then I walked towards Safeway and then… GALBRAITH: …that gets you down by snake hill, right? ANDERSON: No, no. GALBRAITH: No, not snake hill. ANDERSON: 5th Ave hill.

GALBRAITH: 5th Ave hill. ANDERSON: Down those stairs and then I walked a straight line all the way up to Safeway, walked through Safeway and then walked down the stairs there and then… GALBRAITH: …down 2nd avenue, which is Safeway then… … ANDERSON: …and then I walked across the… GALBRAITH: …the new bridge. ANDERSON: The new bridge and then I saw that guy and I beat him up and then, I went and got a coffee and it gets hazy from there. GALBRAITH: Okay, uh, did you, cause we got a picture, you can’t see you, I thought it might have been you. So this is uh, the picture we got.

This is uh, you can’t really tell but that’s just a person walking across. We’re you on the, the rink side of the street? ANDERSON: No, I was on the left side. GALBRAITH: Oh, you’re on that side? ANDERSON: Yeah. GALBRAITH: Okay, and then you walked across the street, so when did you… ANDERSON: …like I said, this is just a dream that I had, I don’t know if it was actually me, I just had this dream… GALBRAITH: …okay… ANDERSON: …got up and then I woke up, and like I was at ah… GALBRAITH: …would you recall a guy on a walker?

ANDERSON: I dd, see I do recall a guy on a walker, the side the guy got beat up but I don’t know if it was me. GALBRAITH: Okay. ANDERSON: It seemed like it was. That’s like what I’ve been saying is like, what’s happening in the dream, or what… GALBRAITH: …in the dream? ANDERSON: Yeah. GALBRAITH: Okay. You didn’t say that originally. ANDERSON: Well I know, that’s what I’m, I said that one before we were on audio, I guess… [Emphasis added.] [ 60 ] And further: ANDERSON: …do you think it was me that did this? GALBRAITH: Yeah. ANDERSON: Okay. Okay. GALBRAITH: Yeah.

When I was going through the video, I was, I don’t like putting percentages on it, I was fairly certain this guy was you. ANDERSON: Mhm. GALBRAITH: But, there wasn’t, cause I didn’t look at all the video, there was how many different camera’s… ANDERSON: …all the fuzzy stuff, that guy, so you can’t tell if it was me or not because with the… … ANDERSON: …oh, it’s okay, just I, I’m not, I’m not clear either, I pretty sick right now. GALBRAITH: Okay. ANDERSON: I need help. GALBRAITH: What’s, what’s your sickness?

ANDERSON: I-I have bi polar but it manifested to mental illness. GALBRAITH: Okay. Do you take medication? ANDERSON: Not right now but I probably should be. GALBRAITH: Have you, have you been diagnosed with this? ANDERSON: Bi-polar, schizophrenia… GALBRAITH: …kay… ANDERSON: …delusional disorder. GALBRAITH: Okay. … GALBRAITH: Okay, so it hasn’t been like, years. Okay, do you recall how many pills you were taking a day? ANDERSON: I don’t. GALBRAITH: No? Um, but you figure maybe three weeks you’ve been off your meds for? ANDERSON: Mhm.

GALBRAITH: Okay, um, so going back, um, when you first are going through what happened that night, you said you saw that old guy and he’s the one that, then you said something… ANDERSON: …in my dream, yeah, in my dream it seemed… GALBRAITH: …but he did, he did what to your wife or daughter? ANDERSON: Raped her. … GALBRAITH: Um, so going back your, your, your illness, um… ANDERSON: …delusional. GALBRAITH: Yeah, like, how often do you see, like do you hallucinate? ANDERSON: Lots. GALBRAITH: Yeah, is anything happening right now?

ANDERSON: Yeah. … GALBRAITH: Okay, um, so then you don’t recall, did you recall the uh, the, the elderly man with the walker, did, was there any words exchanged? ANDERSON: No even one. GALBRAITH: Not even one? Um, did you see him go in the bank? ANDERSON: No. … GALBRAITH: Kay. Um, after this you went in, you got a coffee, there’s your coffee, and like you said, some peanuts, and then you were speaking to a guy, remember who you were speaking too? ANDERSON: One of my dad’s friends. GALBRAITH: Yeah, I actually know him too, I was going through the video and I was like, I think that’s Ron CO.

ANDERSON: Yeah, that’s his name, yeah. GALBRAITH: Yeah, yeah, so they went and talked to him today just to see ah, what was said and he actually told you that he thinks there was a fire by your dad’s house cause he was just on his way to work. ANDERSON: Mhm.

GALBRAITH: And then uh, he said that you asked him for a ride up the street, do you know where you were going? ANDERSON: Um, to a water house. GALBRAITH: Water house? What’s that? ANDERSON: A water well out by uh, some place, I don’t know exactly what it’s called but yeah, I was asking for a ride. GALBRAITH: Yeah, but what’s water house, or water well? ANDERSON: I think they’re poisoning Trail’s water. GALBRAITH: Mm, okay. Um, did you end up walking up there? ANDERSON: I did. … GALBRAITH: Okay, um, do you have any recollection of what you did after the fire hall?

ANDERSON: I just walked up ta another place, something in my brain was telling me to do things. GALBRAITH: Alright, does that happen a lot? ANDERSON: No. GALBRAITH: No? ANDERSON: Mmhmm. GALBRAITH: Not normal. ANDERSON: Not even a little bit. GALBRAITH: Kay, so what did your brain tell you to do? ANDERSON: Everything I did. GALBRAITH: Kay, and you followed through? ANDERSON: Like a boss. … GALBRAITH: Okay, um, fast forward then to the afternoon, um, Andrew BERG was walking downtown on his way to Shoppers to pick up a prescription. ANDERSON: Mhm.

GALBRAITH: He bumps into you, do you remember going to Shopper’s with him? ANDERSON: Shopper’s, yeah. GALBRAITH: Shopper’s Drug Mart? ANDERSON: Yeah. GALBRAITH: You picked up a prescription? ANDERSON: Yeah, some decadent cologne. … GALBRAITH: Yeah? Um, did you get anything to drink at McDonald’s? ANDERSON: No. GALBRAITH: No? Um, had you had anything to eat that day? ANDERSON: I don’t, yeah I went to Kate’s kitchen and some soup called Dirty Soup. GALBRAITH: Katie’s kitchen? ANDERSON: K-Kates. GALBRAITH: Kate’s, where’s that?

ANDERSON: In the Gulch. GALBRAITH: Oh, I’m not familiar with that. ANDERSON: Kate’s kitchen? GALBRAITH: Yeah. ANDERSON: Salvation Army? GALBRAITH: Oh, ya. Now I’m familiar with that. Um, so you go back to Andrew’s house, drain the main vein, like you were saying and… ANDERSON: And he sucker punched me, so. GALBRAITH: He, he punched you? ANDERSON: Ya, I wasn’t looking so I pushed him back and hit him in the face with a coffee pot. GALBRAITH: OK. Why did he punch you? ANDERSON: I don’t know.

Cause I probably, it was, well, I sec, could sense him wanting to and then when I wasn’t looking he, ah… GALBRAITH: Where’d you remember right here? ANDERSON: Right here. … GALBRAITH: Ya? Well, what happened then? Like, he’s dead to you now, what happened? ANDERSON: I don’t know, he just sucker punched me… GALBRAITH: Ya. ANDERSON: …for no reason so. GALBRAITH: You weren’t doing anything? ANDERSON: Got out of his bathroom, I turned around to look at his, um, umm, microwave to see what time it was, and all sudden, bang.

I pushed him and then I grabbed the maker his coffee pot and I hit him. … GALBRAITH: Moth to a flame. Um, and you don’t recall saying anything or the elderly man saying anything to you? ANDERSON: No. GALBRAITH: But you said that for whatever reason your brain was telling you that, that was the guy that murdered your girlfriend? ANDERSON: Um, hmm. GALBRAITH: And, and did something sexual with your daughter? ANDERSON: Um, hmm. GALBRAITH: OK. You know now that’s, obviously not true? ANDERSON: I don’t know. … GALBRAITH: …that’s why I was talking to you.

Um, there was something I was gonna ask you, um, but I’ll be brief, it was here. This wasn’t asked, so I’m not trying to keep going over the same stuff, when the old guy came across the street, do you remember being in the A & W parking lot? ANDERSON: Um, hmm. GALBRAITH: So, he was coming towards you? ANDERSON: Um, hmm. GALBRAITH: Did you see anybody else around? ANDERSON: Mm-mm.

GALBRAITH: No? And I think you said you usually use your right hand. Do you remember how many times you hit him? ANDERSON: With my right hand? GALBRAITH: With any hand? ANDERSON: Just once. GALBRAITH: Once? And he went down? ANDERSON: No, I grabbed, I hit him in the shoulder….. GALBRAITH: Kay. ANDERSON: ….and then grabbed him and did a three-sixty and threw him on the ground and repeatedly stomped his head more times, and enough to kill somebody and then I toe punted the tip as hard as I could, it would easily kill somebody, so I don’t know what’s keeping this man alive. GALBRAITH: OK.

Cause the video shows, it’s blurry but it shows him getting thrown down, so I was wondering if that was a punch that put him down? It wasn’t. ANDERSON: It was just probably me being too fast for the camera. … ANDERSON: If it was me. GALBRAITH: If it was you. But you recall then kicking him? Or….? ANDERSON: I’m in my mind, like, right now, ya….. GALBRAITH: Ya. ANDERSON: …..my mind like right now, ya. I don’t know, my telling me yeah mind’s off tilt right now, it’s all (indiscernible), I’m not on my medication and….. GALBRAITH: Understand. But then you…..

ANDERSON: I need a forensic scientist to help me out with this, too. GALBRAITH: Ya. ANDERSON: A forensic psychiatrist, ya. … GALBRAITH: Do you recall leaving your dad’s house with a little, little small bag? ANDERSON: I do, in my dream, ya. … [Emphasis added.] [ 61 ] This concluded the primary evidence of the Crown. Defence Evidence Evidence of the Accused [ 62 ] The accused began his evidence by providing testimony relating to growing up in the Interior of British Columbia. The accused is of Shuswap Cree heritage. He was born in Trail.

His parents separated during his childhood, although both parents remained living in the Interior of the province. He and his brother lived with both their father and mother at various times. [ 63 ] The accused testified his mother was an abusive alcoholic. He also revealed that he and his brother were sexually abused in childhood. [ 64 ] The accused stated he became addicted to drugs early on in his teenage years and ultimately left high school in Grade 10. [ 65 ] The accused also testified concerning his history of mental illness. He stated he told Cst.

Galbraith of his diagnoses over the years, including bipolar, schizophrenia, and delusional disorder. He testified he did so because his memory during the statement was vague. He testified he was first a patient at the Daly Pavilion, a psychiatric ward in Trail, at age 17. He stated the doctors there assisted him in applying for disability payments.

[ 66 ] The accused testified about his sporadic employment record, as well as his criminal record. His problems navigating life, testified the accused, really stem from his drug addiction and mental health challenges. [ 67 ] The accused testified about a romantic relationship that developed between himself and a woman named Rowan. Together they had a child, Aubrey, born in 2015. The accused was then 23 years of age.

The drug use of the accused, indeed the drug use of Rowan, quickly culminated in the Ministry apprehending the child into their care, where she remains to this day. [ 68 ] He and Rowan ended their relationship thereafter, he believes in the summer of 2016. He testified in the fall of 2016, he was certainly addicted to methamphetamine. He stated he was taking it every day, usually a couple of points, a point being one milligram. He stated he would, from time to time, experience hallucinations. [ 69 ] In January 2017, the accused was sentenced to a term of incarceration as a result of an assault conviction.

He was released in June 2017. Upon his release, he stayed at Rowan's trailer for a short while and then moved into his father's residence where his father resided with his father's girlfriend, Karin. He stated he soon took up methamphetamine again as an active addiction, and in short order was asked to leave his father's residence due to his use of drugs. He testified he then moved into a residential-type hotel in downtown Trail, the Rex Hotel. There he stayed until he was asked to leave on August the 21st.

He was, at this stage, ingesting .5 to one milligrams of methamphetamine daily. [ 70 ] The accused testified to an incident a few days prior to him leaving the Rex Hotel. He had made arrangements to meet up with one of his counsellors at the local McDonald's restaurant, the counsellor being assigned in relation to the parenting issues associated with Aubrey. He testified on that day he was high on methamphetamine and was behaving erratically. Consequently, the counsellor phoned the police. The police admitted the accused to the Daly Pavilion.

The details on the short stay on this particular occasion were not pursued by counsel with the accused or any other witness. [ 71 ] The accused testified that he had a history of psychiatric care. He testified at the time of the offence, he was prescribed a mood stabilizer, Epival, and an antipsychotic medication, Olanzapine. He stated he was not taking the medications at the time of the offence because he thought he was better. He testified that he believes the last time he had taken his medication was sometime in July 2017. [ 72 ] I pause to say this evidence was somewhat supported by Dr.

Brink, who referenced various psychiatric opinions in his possession that documented the diagnoses and mental illness of the accused over the course of some years. [ 73 ] In any event, on the evening of August 21, following him leaving the Rex Hotel, the accused broke into his father's residence, as he then understood his father and Karin were away. The accused stated he invited ‘Chris’ to the home, where the accused purchased methamphetamine from Chris and ingested it at the house. The precise quantities are unknown.

The accused testified that the police have spoken to Chris. [ 74 ] It was late in the evening and early morning hours of August 22, while at his father’s house, that the accused states he became delusional. He testified he began to have terrible thoughts. He stated his activity, thereafter, was guided by a voice, Ina. His thoughts were that his father and Karin were part of a sex cult ‘pimping out’ his daughter. He became increasingly angry and Ina told him to burn down the house.

He was also told to gather up and take various random items from the house and deliver them to the water tower, presumably a facility in or around Trail. He testified he then believed that the water supply in Trail was being poisoned by the Illuminati and that he would be meeting Ina at the water tower. [ 75 ] The accused can later be seen on the video leaving the house carrying various items in some kind of carrying bag.

The accused left the residence wearing his father's boots, steel-toed boots as it turned out. [ 76 ] The accused testified he set out walking to the tower, which route apparently takes one through downtown Trail. It is, on the evidence, about a 20-minute walk from the residence to town. En route to the water tower, he made a fateful stop at the local A&W in downtown Trail. He sat himself down outside the A&W, apparently listening to some music. The accused testified concerning his observing Mr. Paddock, as he, the accused, sat at the A&W. He testified that upon observing Mr.

Paddock crossing the street, Ina told the accused that Mr. Paddock was part of the sexual exploitation of his daughter and that he should beat him up. He agreed with the suggestion in cross-examination that he initially hit Mr. Paddock on the shoulder then threw him to the ground. The accused testified he then stomped on his head at least once. He agreed he then walked away momentarily, but returned and gave Mr. Paddock another kick to the head area. [ 77 ] At another point in his evidence, he testified he could not really remember, and then testified he gave Mr.

Paddock a few punches and a kick, enough to keep him down. The accused was taken through a portion of his statement as follows: ANDERSON: … so I burned all of Karin’s stuff down and my dads and the guy that was paying them to that I killed. GALBRAITH: Killed? ANDERSON: Well, at least I tried too. GALBRAITH: Kay.

ANDERSON: But you know, I don’t like, yeah, I-I wanna kill him but I just beat him up. [ 78 ] The accused testified that what he meant was that he had held back and just beat him up and did not intend to kill him. [ 79 ] He was then taken to another portion of his statement in direct examination as follows: ANDERSON: ….and then grabbed him and did a three-sixty and threw him on the ground and repeatedly stomped his head more times, and enough to kill somebody and then I toe punted the tip as hard as I could, it would easily kill somebody, so I don’t know what’s

keeping this man alive. [ 80 ] The accused testified that this was not entirely accurate. His answer was: . . . 'cause I think I was just kinda -- you know, I -- I was feeling bad about what I did, and of kind of just put it on myself pretty thick and I don't know why I would say so personally, but I just was trying to beat him up, I wasn't trying to kill him.

I wasn't at that level, you know, I remember saying to him a couple time -- not a couple times, like when -- after I beat him up I was saying to him, "You're lucky I didn't give it to you worse", and I was like, "That's what you get, bitch", and I was saying stuff like that to him. So I don't know why all of I sudden, I said that. [ 81 ] He denied intending to kill Mr. Paddock. He also testified he did not think he tried to kill him, he just tried to beat him up.

The accused stated if he wanted to kill him, he could have, but he held back. [ 82 ] The accused resiled once again in cross-examination from his statement where he stated he did know what was keeping him alive, or at least resiled from the implication of that statement. He testified again he was trying to beat him up, not kill him. He stated in evidence he returned for a final kick because the voice said it was not a good enough beating; that he, Mr. Paddock, deserved worse. [ 83 ] The accused agreed his return for that final kick was to cause more injury, but testified he did not strike Mr.

Paddock as hard as he wanted to. The accused testified he referred to Mr. Paddock as a "skinner bitch" and stated, "You're lucky I didn't give it to you worse." [ 84 ] The accused was pressed multiple times concerning his state of knowledge regarding the impact of the assault as that related to the mens rea for murder. He was asked whether stomping with his boots ran the risk of injury that would kill him. The accused stated he did not think his beating was that severe. It was suggested again, that he knew stomping on the victim, as described, would cause the victim injury that would kill him.

The accused stated "not true", that he did not think about it at that time. [ 85 ] This issue was returned to a third time in cross-examination and again it was put to the accused that returning to kick Mr. Paddock in the head as described ran the risk of causing bodily harm that would kill him. In his answer by the accused: I guess so, yeah, but I didn't think that was going to kill them with the kick . . . because I didn't think it was that hard. This was immediately revisited in cross-examination: Q . . .

You didn't think it would kill them, but you knew that it was severe enough that it might kill him -- A No. Q -- and you ran that risk? A Well, no, because I've seen people get kicked in the head . . . and they didn't die . . . [ 86 ] In any event, after this confrontation with Mr. Paddock, he testified he then made his way to the Town Pantry at the Chevron Station, where he engaged with Mr. Coe. He asked if Mr. Coe could give him a ride to the water tower, but this request was refused by Mr. Coe. [ 87 ] He then left and walked to the water tower.

He testified that upon arrival at the water tower, the voice told him to simply break the antenna. He did so and then walked back towards downtown and towards the scene of the crime. Upon arrival downtown, he went, he testified, to the Best Western Hotel in search of Ina. He left the hotel and stopped to eat at Kate's Kitchen. He then felt the need to leave his wallet at the firehall. He did so by apparently leaving it on the ground outside the front entrance of the firehall. The wallet was indeed later found at the firehall. [ 88 ] He attended at CDS, a thrift store, and traded his boots for different footwear.

The management person in attendance, Ms. Adcock, gave evidence in the trial confirming this. She also testified the accused did not use the phone. [ 89 ] The accused then stated he made his way, by catching a ride, to observe the effects of the fire. He then once again walked back towards the scene where he met up with one Andrew Berg while walking across the bridge leading to downtown Trail. The two then ingested Dexedrine at Mr. Berg's residence and the accused left the residence, but not before assaulting Mr. Berg by hitting him in the face with a coffee pot. [ 90 ] Shortly after leaving the residence of Mr.

Berg, he was arrested by Cst. Karn. The accused addressed in his evidence the trip to the hospital. The accused's evidence is somewhat vague, but he did concede he was upset and angry, and that he could not see a psychiatrist, and consequently uttered the threats alleged by the attending police officers. He testified that they did not remember much about providing the statement to Cst.

Galbraith because of the residual effect of the ingestion of methamphetamine on the 22nd, and as well the effects of the drugs he was given at the hospital. [ 91 ] He confirmed that he, for a period of time, felt that during the time in custody, he had dreamt about assaulting Mr. Paddock. He testified he did, in fact, hallucinate during the interview. He confirmed he did not raise with Cst. Galbraith the issue of whether the effect of the drugs were playing any role in the interview, nor whether the uses of the drugs played a role concerning the assault. Evidence of Dr. Johann Brink [ 92 ] Dr.

Brink was qualified without objection as a forensic psychiatrist, able to provide opinion evidence in that field, including evidence relating to the assessment and treatment of mental disorders. The report of Dr. Brink is dated December 3, 2022, and has been marked as an exhibit. In addition, he provided viva voce evidence.

[ 93 ] Dr. Brink offered his views generally on the mental state of the accused, and in particular his views concerning the mental state of the accused in or about the time of the alleged offence. [ 94 ] The report was in fact prepared to provide an opinion concerning whether Dr. Brink could support the position that the accused was not criminally responsible for the alleged crime. This issue was put this way by Dr. Brink in his report: . . . I have conducted a psychiatric evaluation of Mr.

Joel Anderson . . . for the possible presence, nature, and severity, of a mental disorder at the time of the alleged commission of the index offence on August 22 . . . [ 95 ] Then further: As per s. 16 of the Criminal Code , I will address the issue of whether Mr. Anderson at the time of the commission of the alleged index offence, suffered from a mental disorder and if so, if it was of such severity that it deprived him of the capacity to appreciate the nature and quality of his actions, or of knowing that his actions were legally and morally wrong. [ 96 ] Dr.

Brink came to an initial conclusion that: “the evidence supports the opinion that Mr. Anderson, at the time of the alleged commission of the murder, had a well-established diagnosis of substance abuse disorder, bipolar disorder, and personality disorder.” [ 97 ] That said, Dr. Brink commented that: “it is exceedingly difficult to distinguish substance induced mania with delusions from bipolar disorder or schizoaffective disorder if or when they co-exist.” [ 98 ] However, in particular, Dr.

Brink stated (the accused's) “account of hearing voices and seeing dogs with red eyes and hearing the victim call to him is, in my opinion, better explained as a result of substance-induced psychosis or severe intoxication.” [ 99 ] Dr. Brink concluded it was his opinion that on the balance of probabilities Mr. Anderson was, more likely than not, at the time of the offence in a substance-induced abnormal mental state with auditory and visual hallucinations, as well as delusional beliefs. [ 100 ] Dr. Brink concluded that Mr.

Anderson's report of seeing dogs with red eyes in the A&W is more in keeping with substance-induced symptoms than those experienced by persons with a primary psychotic or mood disorder. He testified that it was possible that his substance use exaggerated his underlying psychotic symptoms, but was unable to say that this, on a balance of probabilities, was what caused him to act in the way he is alleged to have acted. [ 101 ] Dr. Brink also offered the view that: “crystal methamphetamine can cause prolonged, as in several months, psychosis with delusions.” [ 102 ] Dr. Brink addressed the issue of malingering.

He found that he did not believe that Mr. Anderson is malingering, but could not exclude the possibility that he is exaggerating the extent of his symptoms. [ 103 ] In addition, Dr. Brink observed as follows: A further complicating factor is that Mr. Anderson has not been consistent in his reports regarding the events; at times stating that the voice of a non-existent woman ordered him to attack the victim, while at other times reporting that he recognised the man as a prior sex client of his, and that he was paid for sexual acts with the man.

Still, at other times, he has said that he believed the victim had lured his daughter into sexual acts and may have introduced her into a sex ring. [ 104 ] Dr. Brink concluded that he could not support the proposition that the accused did not have the capacity to appreciate the nature and quality of his conduct, nor did Dr. Brink support the proposition that the accused did not know that his conduct was legally or morally wrong. [ 105 ] Dr.

Brink testified that the report does not direct itself to the issue of specific intent for murder in the sense of how, if at all, the diagnosis impacted the accused at the time of the offence and, in particular, whether the accused was compromised in foreseeing the consequences of his actions. This was not addressed, testified Dr. Brink, because he was not asked to do so. [ 106 ] Dr. Brink placed a good deal of reliance on other medical reports concerning the accused. These reports containing what Dr. Brink referred to as "well-established diagnoses", are the reports of Dr. Cooper, Dr. Guy, Dr.

Gharakhanian , and Dr. Beauchemin. [ 107 ] The diagnoses, as contained in the report of Dr. Brink, are as follows: 1. Schizoaffective disorder – by history 2. Substance Use Disorder – crystal methamphetamine – in remission in a controlled setting 3. Mixed Personality Disorder – borderline, antisocial, narcissistic - by history [ 108 ] The reports themselves were not before the court, nor were the doctors called to provide evidence. [ 109 ] In addition, the reports, as testified to by Dr. Brink, also placed a good deal of reliance on the self-reporting of the accused. In this regard, Dr.

Brink conceded that certain information he was provided by the accused conflicted with what apparently the accused had reported to other doctors. He also noted that the other doctors had been troubled by the apparent inconsistencies of the information provided by the accused. [ 110 ] Dr. Brink allowed that, in the circumstances, as a matter of proper methodology, he should have pressed the accused in an attempt to reconcile the statements and the information being provided.

He candidly testified, while he should have done so, he did not. [ 111 ] The report, as well, relies on certain information provided by the accused that was not led from the accused in evidence. For

instance, as previously referenced, Dr. Brink concludes in his report: His account of hearing voices, and seeing dogs with red eyes and hearing the victim call to him, is, in my opinion, better explained as the result of substance-induced psychosis or severe intoxication. [ 112 ] There is no evidence the accused saw dogs with red eyes. As well, the accused told Dr. Brink the victim called to him, but the accused did not talk to the man. The accused testified, however, to detailed comments he made to Mr. Paddock during the assault, but provided no evidence Mr.

Paddock said anything to the accused. [ 113 ] Finally, Dr. Brink conceded that his diagnosis of substance-induced psychosis or severe intoxication could not withstand scrutiny, given how certain evidence unfolded. He concluded in the end, a diagnosis of mild intoxication was the more appropriate finding. [ 114 ] Dr. Brink testified, as well, he did not have at his disposal information from third parties that could have shed light on the conduct of the accused during the relevant time.

He did not have the evidence and observations of the various police officers that had dealings with the accused, August 21 through August 24. He was not aware of the interaction between the accused and Mr. Coe minutes after the assault. [ 115 ] While Mr. Brink reviewed a transcript of the evidence of the accused, he did not have available a certified true copy of the statement, nor did he avail himself of the video of the statement revealing the tone, demeanour, and behaviour of the accused during the interview. Evidence of Wayne Jeffrey [ 116 ] Mr.

Jeffery has an extensive background in toxicology and has provided expert opinion evidence in this field before our courts for decades. Mr. Jeffery was qualified as an expert in all aspects of toxicology, including the impacts of drugs and other substances on people. The report of Mr. Jeffery is marked Exhibit 19. He also provided viva voce evidence. Mr.

Jeffery was asked to provide general evidence concerning the impact of methamphetamine on persons and was also requested, based on certain assumptions, to offer his opinion as to whether the accused was under the influence of methamphetamine on August the 22nd. [ 117 ] Mr. Jeffery concluded that the accused may have been under the influence of methamphetamine on the day in question. [ 118 ] The opinion of Mr.

Jeffery on the more general aspect, was that the effects of methamphetamine, including delusional voices, generally wear off in 6 to 18 hours, although can last for days; depending on the amount of consumption and the history of use. Mr.

Jeffery testified concerning some negative effects a user of methamphetamine may display while under the influence, including hallucinations, hearing voices, insomnia, confusion, exhibiting violent outbursts, as well experiencing disruptive thoughts and exhibiting rambling speech. [ 119 ] A person who consumes one to 1.5 milligrams of methamphetamine is considered to be in the "heavy use" category, so testified Mr. Jeffery. He acknowledged in cross-examination that it may have been useful to see the video evidence of the accused for the purposes of his report, as he had not seen it.

Neither counsel, however, took Mr. Jeffery to the video evidence. Position of the Crown [ 120 ] The Crown submits that the evidence as a whole establishes, beyond a reasonable doubt, the accused intended to kill Mr. Paddock or meant to cause Mr. Paddock bodily harm that he knew was likely to cause Mr. Paddock's death and was reckless whether death ensued or not. [ 121 ] The Crown says it must be common ground that the accused intended to assault Mr. Paddock and, in particular, intended to beat the victim.

It is apparent on the accused's own evidence, the accused was of the view in the moment that the victim had somehow sexually exploited his daughter. The Crown says the nature of the assault, that is, exclusively consistent with kicks to the head and no other part of the body, is circumstantial evidence that strongly supports a finding the accused possessed the requisite mens rea .

The Crown further says the accused was deliberate in thought and action, including pausing and considering the state of the fallen victim and, in the words of the accused in his statement, toe-punting the victim in the head as hard as he could. This, the Crown says, was undoubtedly, on the evidence, a kick to the head area of Mr. Paddock. [ 122 ] The Crown submits the evidence of the accused, his statements, and his conduct following the assault all point to a person that knew exactly what he was doing, why he was doing it, and a person that foresaw the consequences of what he was doing.

The Crown submits the evidence of the accused that he did not intend to kill Mr. Paddock or did not intend to cause Mr. Paddock bodily harm he knew was likely to kill Mr. Paddock, should be outright rejected. [ 123 ] Finally, the Crown says any evidence of mental illness or intoxication must be viewed with skepticism, but even at its highest, does not in the least undermine nor cast any doubt upon the cogency of the evidence in support of a finding of murder.

Position of the Defence [ 124 ] The defence says, at least in their written submissions, the evidence supports a finding that the accused, at the time of the offence, was in an advanced state of intoxication or an active state of psychosis. This, submits the accused, impaired his ability to foresee the consequences of his actions, such that the specific intent for murder has not been proven beyond a reasonable doubt. [ 125 ] The accused says the evidence supports the conclusion that the ingestion of crystal methamphetamine that led to a state of

intoxication caused delusions, and the evidence of Dr. Brink and Mr. Jeffery support the proposition that drug use can cause delusions. This state as described, submits the accused, deprived the accused of his ability to be logical enough to intend the natural consequences of his actions.

The defence says, simply put, the accused was not in a normal state of mind, whether as a result of drug use, sleep deprivation, or an underlying organic mental health issue. [ 126 ] The defence reminds the court that the burden of proof never shifts and the evidence of the accused, along with all the other evidence, ought to create a reasonable doubt concerning proof of the specific intent required for murder. Law and Principles [ 127 ] The definition of murder in the Criminal Code is relevant to the matter at hand as set out in s. 229 (a): 229 Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not; [ 128 ] In order for the Crown to prove the murder charge against the accused, it must satisfy the court, beyond a reasonable doubt, of two principle elements: 1. That the accused unlawfully caused the death of the victim (the actus reas ); and 2.

That at the time the accused acted to cause the death, he either meant to cause the death of the victim or he meant to cause the victim bodily harm that he knew was likely to cause death, and was reckless as to whether death ensued or not ( mens rea ). [ 129 ] The difference between murder and manslaughter is apparent. Murder requires the Crown to prove, beyond a reasonable doubt, that the accused had the specific murderous intent as defined. Proof of unlawful act manslaughter does not require that the accused intended or meant to cause the death of the victim.

It is sufficient that the Crown establishes the general intent required for the unlawful act. [ 130 ] It is often the case that there is little direct evidence that provides a window into the mind of the accused at the time of the alleged offence. The proof of a mental state of an accused must often rely on circumstantial evidence; that is, the intent of an accused is a product of inference, based upon the facts as found. It is in this context that a common sense inference may arise, that a sane and sober person intends the natural consequences of his or her acts. This is a permissive inference.

It is not a legal or factual prescription or presumption. It is, at its essence, an articulation of a proposition of good sense and human experience, driven by the evidence in any given case. This was made clear in R. v.

Walle , 2012 SCC 41 at paras. 66-68 : [66] After the jurors have been alerted to the pertinent evidence, they should be told that if, after considering the whole of the evidence, they believe or have a reasonable doubt that the accused did not have one or the other of the requisite intents for murder at the time the offence was committed, then they must acquit the accused of murder and return a verdict of manslaughter. [67] If, however, there is no evidence that could realistically impact on whether the accused had the requisite mental state at the time of the offence, or if the pertinent evidence does not leave the jury in a state of reasonable doubt about the accused’s intent, then the jury may properly resort to the common sense inference in deciding whether intent has been proved. [68] In the instant case, there was no jury.

Instead, as discussed above, the trial judge considered the pertinent evidence of alcohol consumption and found that it did not leave him in a state of reasonable doubt as to whether the appellant knew that death would likely result if he shot the deceased in the chest at close range. Only then did the trial judge apply the common sense inference in finding that the appellant had the necessary intent for murder. [ 131 ] The finder of fact must assess whether there is evidence that casts doubt on whether one can confidently rely on the common sense inference.

It is submitted by the accused there are such circumstances in the case at bar. It is submitted there is some evidence of intoxication by drugs and some evidence of mental disturbance.

If such circumstances, either alone or in combination, along with all the other evidence raise a reasonable doubt that the accused had the subjective intent to cause death or that he meant to cause bodily harm that he subjectively knows is likely to cause death and is reckless whether death ensues or not, the accused must be found not guilty of murder. [ 132 ] Evidence of intoxication or mental degradation are often referred to as defences and, in combination, the rolled-up defence. Characterizing the circumstances as a defence, in my view, is somewhat of a misnomer.

The concept is better described simply as evidence to be assessed, along with all of the evidence, in determining whether the Crown has proven mens rea beyond a reasonable doubt. [ 133 ] Finally, of course, there may be direct evidence as well concerning the intentions of the accused at the relevant time, that is to be weighed along with all the other circumstances. This is such a case. The accused in this case provided statements to the police and he has testified under oath concerning his thoughts, intentions, and state of mind at the time of the beating of Mr. Paddock.

Credibility and Reliability [ 134 ] Issues of credibility and reliability of the witness played a significant

part in this trial, particularly in relation to the accused.

[135] Credibility and reliability are different notions. Credibility concerns the veracity of a witness. To be blunt, an assessment ofwhether the witness is lying. Reliability is an analysis of the accuracy of the witness's evidence. These two concepts may be, but are notnecessarily, connected. It is unlikely a witness who is not credible is nevertheless to be found reliable in the absence of independentcorroborative evidence. It is not axiomatic, however, that a credible witness provides accurate evidence and is therefore a reliablewitness.

The credible witness may, in fact, not provide reliable evidence: see R. v. Morrissey. [136] The determination of veracity and accuracy requires consideration of a number of factors and inquiries. It may be a witness didnot have an optimum opportunity to hear or see matters unfold. Importantly, the condition of the witness at the time may be a relevantconsideration. In addition, the memory of the witness may be faulty for one reason or another, including the passage of time. The traumaof an event can impact the ability of a witness to accurately recall.

The stress and anxiety sometimes associated with providing evidencein a formal way in an unfamiliar environment, for instance a hearing or a courtroom, can sometimes inhibit the ability to say preciselywhat one wants to say and in the way one wants to say it. [137] There will be circumstances like the case at bar where a witness has given previous statements that are inconsistent with thecurrent evidence.

Certainly where a witness has provided inconsistent evidence on a previous occasion under oath, the court will proceedwith caution before accepting an invitation to find that person is a witness of truth. [138] As well, an analysis of whether a witness has remained internally consistent in providing evidence is often a factor that is telling.Inconsistencies in the witness's own evidence or with other witnesses calls for an assessment on the totality of the evidence to assess theimpact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case: see F.H. v.McDougall. [139] When presented with conflicting testimony, the court should assess the evidence with a view to determining whether a particularversion of events is the most consistent with the preponderance of probabilities which a practical and informed person would readilyrecognize is reasonable in that place and in those circumstances.

The court must bring experience to bear in assessing when that evidenceof a witness accords with common sense and can live comfortably with the independent evidence that has been accepted by the court. [140] The tone and manner of a witness in providing his or her evidence remains properly a factor to be considered in assessingcredibility and reliability.

Frankly, I found this aspect helpful in the overall consideration of matters, but care must be exercisedconcerning the weight to be afforded what is generally referred to as the assessment of the demeanour of a witness. [141] In this regard, an assessment of credibility is based on all the evidence and the impressions of witnesses that emerge, havingcarefully listened to and observed the witnesses on the witness stand. The assessment of credibility, including the assessment ofcredibility of the accused, is not assessed in isolation.

It is analyzed against all the evidence. [142] In addition, in the context of a trial of this nature, regard must be had to the guidance provided by the Supreme Court of Canada inR. v. W.(D.), (SCC), [1991] 1 S.C.R. 742, and a good deal of subsequent jurisprudence that has referenced and amplifiedthe comments of the Court in W.(D). [143] A practical formulation of the principle is as follows: i. If, as the trier of fact, I believe the evidence of the accused, denying responsibility for the offence, I must acquit. ii.

If I do not believe the evidence of the accused denying responsibility for the offence but I am left with a reasonabledoubt by it, I must acquit. iii. Even if I do not believe the evidence of the accused denying responsibility for the offence I must still ask whether, onthe basis of the evidence which I do accept I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. iv.

There is, in my view, a fourth aspect of the approach, which I include in my frame of analysis and consider applicable;namely that if after a careful consideration of all of the evidence, I am unable to decide whom to believe, the accused must be acquitted. [144] The statements and evidence of the accused must be viewed within the framework of these principles. Analysis [145] The single issue in this case is the determination of whether the Crown has proven, beyond a reasonable doubt, that the accusedpossessed the requisite specific intent for murder at the time of the assault of Mr. Paddock.

I have referenced the common senseinference that is available in determining the intentions of persons in the context of human endeavours, but in particular in the context ofalleged criminal conduct. The Crown urges the unadulterated application of this principle, particularly in the face of certain arguablyinculpatory direct evidence from the accused concerning his expressed statement of mind. [146] The defence submits the evidence of intoxication, delusion, and mental degradation forthcoming from the accused, Dr. Brink, andMr.

Jeffery renders reliance upon the common sense inference inapplicable in the case at bar. [147] I will address the evidence of the accused in due course, as well as the evidence of Dr. Brink and Mr. Jeffery. [148] Generally, however, there is some evidence the accused's mental health historically and at the time of the offence wascompromised. I accept he was prescribed certain medications in this regard, including antipsychotic drugs that he had failed to take forsome weeks leading to the event in question.

I also find there is some evidence, that I accept, that the accused has experienced long-termchronic addiction and this was in an active state at the time of the offence. [149] I also find at the time of the offence, he was under the influence of crystal methamphetamine. The quantity and quality of the

substance remains unclear, but I am satisfied he was, to some degree, impacted by this ingestion at the time of the offence. I will return to this evidence. [ 150 ] The accused has also testified to experiencing delusions and/or auditory hallucinations in the form of a voice largely directing his activity during the relevant timeframe. I am highly skeptical of some of this evidence, but I am not prepared to reject it outright.

The fact is, in the circumstances of this case, I am reluctant to take at face value a good deal of what the accused has stated, whether it be exculpatory evidence or, indeed, whether it be inculpatory evidence. Nevertheless, notwithstanding the direct evidence, I am not satisfied it is appropriate to assess matters based upon the common sense inference as so referenced.

The whole of the evidence must be weighed in this regard. [ 151 ] I also say, however, that in order to breathe life into a submission that the compromised state of mind of the accused alone, raises a reasonable doubt concerning the issue of intent, there ought to be an evidentiary basis that there is an operating connection between the state of mind of the accused, and the intentions and knowledge of the accused at the time of the offence. [ 152 ] In this regard, I begin with the evidence of Dr. Brink. If there is to be found evidence of such an operating connection, it is the evidence of Dr.

Brink that probably holds the most potential. [ 153 ] I have carefully reviewed the evidence of Dr. Brink. Unfortunately, I do not find the evidence particularly constructive in this regard. There are features to the evidence of Dr. Brink that significantly reduce the weight to be afforded his evidence. [ 154 ] Dr. Brink acknowledged that he noted that some of the information provided by the accused in statements made by the accused to various other doctors was inconsistent, and further inconsistent with some of the information Dr. Brink was receiving from the accused. Dr.

Brink noted that what was reported to Dr. Guy in September 2020 was as follows: “when at the A&W, he heard the man [Mr. Paddock] say to him ‘you should probably come here because I need to have a talk with you’ my brain told me he deserved a beating because of what he did to my daughter." [ 155 ] Dr. Brink reported that the accused said to him “the voices told him to beat [Mr. Paddock] up ‘a little bit’. So I did a little bit. I threw him to the ground and punched him a couple of times and stomped on his head." [ 156 ] Dr. Brink further referenced the report of Dr. Gharakhanian. Dr.

Gharakhanian's report was prepared in 2017, following the arrest of the accused but before, as I understand it, the charge of murder was brought, Dr. Brink notes that Dr. Gharakhanian expresses concern that the accused has shown inconsistencies in his account concerning hearing voices commanding him to burn down his father's house. Dr. Brink, however, does not reference the particulars of these inconsistencies for the purposes of his own report. [ 157 ] Dr.

Brink acknowledged that the extensive apparent inconsistencies, as he noted, caused him concern and was an area that needed to be addressed with the accused and ‘thought out’. He agreed he should have addressed it, but he did not. [ 158 ] In addition, in relation to Dr. Brink's finding that the accused's symptoms are "better explained as a result of substance induced psychosis or severe intoxication", Dr. Brink appears to rely on three factors, at least primarily, namely: hearing voices, seeing dogs with red eyes, and hearing the victim call to him. [ 159 ] Consequently, Dr.

Brink concludes that the accused more likely than not was in a substance-induced abnormal mental state with auditory and visual hallucinations, as well as delusional beliefs. [ 160 ] As previously referenced, I find this opinion is undermined by the fact it relies upon the integrity of the information being provided by the accused to Dr. Brink, and in turn the integrity of the information provided to the other doctors whose opinion Dr. Brink places a great deal of reliance upon, all of which contain apparently inconsistent information that admittedly ought to have been explored by Dr.

Brink with the accused, but was not. [ 161 ] Also, the opinion, in my view, is undermined by the fact that there is no evidence before the court the accused saw dogs with red eyes at the time of the assault or at all. In addition, there is no evidence the victim called out to him. In fact, the evidence is that the victim said not a word. [ 162 ] In addition, Dr. Brink conceded that his diagnosis of severe intoxication must be downgraded. Dr. Brink could only say the evidence supported mild intoxication. [ 163 ] Finally, Dr.

Brink does not offer an opinion that this mental state had any impact on the foresight of the accused to appreciate the consequences of his assaultive behaviour. Dr. Brink testified this was so because he was not asked to offer such an opinion. [ 164 ] It is for these reasons I find the evidence of Dr. Brink somewhat helpful, but of limited value. [ 165 ] Mr. Jeffery provided helpful evidence concerning general propositions on the impact of crystal methamphetamine, as well as the variety of symptoms that can be exhibited when under the influence of this drug.

He concluded that the accused, based upon certain assumptions, may have been under the influence of crystal methamphetamine at the time of the offence. This opinion was undermined somewhat as the evidence did not support certain assumptions. In any event, I

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