R. v. Bradley Date:, 2003 PESCTD 30

Citation: R. v. Bradley Date: 20030326 2003 PESCTD 30 Docket: S-1-GC-176 Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION HER MAJESTY THE QUEEN AGAINST: JAMES BARRY BRADLEY Before: The Honourable Mr. Justice Gordon L. Campbell Terri MacPherson Solicitor for the Crown Joel Pink, Q.C and Brian Casey Solicitors for the Accused Place and Date of Hearing Charlottetown, Prince Edward Island October 15, 22-25, 28-30, 2002 Written Submissions Filed by Accused November, 26, 2002 Written Submissions Filed by Crown January 31, 2003 Place and Date of Judgment Charlottetown, Prince Edward Island

March 26, 2003 Citation: R. v.Bradley S-1-GC-176 2003 PESCTD 30 HER MAJESTY THE QUEEN AGAINST: JAMES BARRY BRADLEY Prince Edward Island Supreme Court - Trial Division Before: Campbell J. Date of Hearing: October 15, 22-25, 28-30, 2002 Date of Judgment: March 26, 2003 [29 pages] CRIMINAL LAW - Classification of Murder - First Degree Murder - Planned and Deliberate Murder - Criminal Harassment - Murder deemed to be first degree when death caused by person committing criminal harassment - Intoxication defence - consumption of cocaine - metabolism rates of cocaine.

The accused was a regular user of cocaine and on occasion was a heavy or “binge” user. He had repeatedly threatened to kill his ex-wife and had engaged in other threatening conduct towards her. Following a sustained period of cocaine use, the accused took an axe and a hatchet from his home, drove to his ex-wife’s residence, smashed his way through security doors, the apartment door and bedroom door using the axe and/or the hatchet and then used the hatchet to inflict several wounds, killing his victim. The Court held that the accused was not so intoxicated as to be incapable of planning and deliberation.

The accused was found guilty of first degree murder in that (1) the murder was planned and deliberate as set out in section 231(2) of the Criminal Code , and (2) the murder was committed while the accused was committing an offence under

section 264 of the Code (criminal harassment) and the accused intended his victim to fear for her safety. CASES CONSIDERED: R. v. Lifchus (1997), 1997 CanLII 319 (SCC) , 118 C.C.C. (3d) 1 (S.C.C.); R. v. Widdifield (1961), 6 Cr.L.Q. 152 (Ont. High Court); R. v. Smith (1986), 1986 CanLII 7204 (NS CA) , 71 N.S.R. (2d) 229 (N.S.C.A.); R. v. Mitchell , 1964 CanLII 42 (SCC) , [1964] S.C.R. 471 (S.C.C.); R. v. Aalders (1993), 1993 CanLII 99 (SCC) , 82 C.C.C. (3d) 215 (S.C.C.); R. v. Reynolds (1978), 1978 CanLII 1269 (ON CA) , 44 C.C.C. (2d) 129 (Ont.C.A.); R. v.

Rueger (1984), 1984 CanLII 3531 (ON CA) , 17 C.C.C. (3d) 347 (Ont.C.A.); R. v. S.B. , [1996] O.J. No. 1187 (Ont. Ct. Justice) ; R. v. Par é , 1987 CanLII 1 (SCC) , [1987] 2 S.C.R. 618 (S.C.C.); R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA) , 157 C.C.C. (3d) 129 (Ont.C.A.); R. v. Sillipp (1997), 1997 ABCA 346 (CanLII) , 120 C.C.C. (3d) 384 (Alta.C.A.). STATUTES CONSIDERED: Criminal Code of Canada , R.S.C. 1985, Chap. C-46 , s- ss. 264 (1) , (2) , s- ss. 231 (2) , (6) . Terri MacPherson Solicitor for the Crown Joel Pink, Q.C and Brian Casey Solicitors for the Accused Campbell J.: General Facts

[ 1 ] The accused, Barry Bradley, is charged with the first degree murder of Deborah Holmes. He has admitted that he killed Ms. Holmes and that the crime constitutes second degree murder. The Crown however is seeking a conviction of first degree murder. [ 2 ] The facts of this case are both straightforward and tragic. [ 3 ] Barry Bradley and Deborah Holmes, who went by the name Debbie, had been in a common law relationship for twenty-five years or more until 1998 when the relationship ended and Debbie Holmes and her daughter moved out of the family home and into an apartment two to three kilometers away.

Barry and Debbie had two children, now approximately 27 and 15 years of age. [ 4 ] The evidence shows that Barry Bradley was not happy with the breakdown of the relationship and repeatedly expressed that he wanted Debbie to move back home with him. Barry attended at Debbie’s apartment building uninvited, breaking in on more than one occasion, causing damage and scaring residents.

The evidence also shows that Barry would drive into the apartment building parking lot or would park there without going into the building, and he would frequently call Debbie both at home and at work. [ 5 ] On April 1 st , 1999, Barry was placed on probation and ordered to stay away from 10 Mutch Drive, Debbie’s residence, from April 1 st , 1999 to May 29, 2001. There were seven occasions between 1998 and 2001 in which Debbie Holmes called the police or 911 to complain about Barry Bradley’s actions. [ 6 ] Barry admits calling Debbie’s residence on two occasions on Saturday, June 30 th , 2001.

Tracey Bradley, Barry’s sister, testified that Debbie told her Barry had called four times that day. [ 7 ] On Sunday July 1st, 2001, the morning of the murder, Barry Bradley had called Debbie’s residence five times. The evidence shows that Debbie was not at home until shortly after 2:30 a.m. that morning. [ 8 ] At approximately 5 a.m. on July 1 st , 2001, Barry drove to Debbie’s apartment building and began pressing the buzzer to Debbie’s apartment. Debbie called 911. The constant noise from the buzzer can be heard in the background on the tape of this call.

The RCMP arrived at Debbie’s home approximately 10 to 15 minutes later, but Barry had left by that time. While the police were there, Barry again called Debbie’s residence. Cst. Jeremy Dawson answered the phone. When challenged by the police officer about his presence at Debbie’s apartment, Barry explained that his “stay away order” had recently expired and he was allowed to be there. Barry further advised that he wanted to see his daughter. When the police officer said he was coming up to Barry’s house to talk to him, Barry told Cst. Dawson not to bother coming up because he wouldn’t let him in. Cst.

Dawson stayed and spoke with Debbie for an additional 20 to 25 minutes. [ 9 ] Barry drove to Debbie’s apartment approximately 90 minutes after Cst. Dawson’s conversation with him and smashed his way into the building using an axe and carrying a hatchet. The first of several 911 calls came in a 6:42:23 a.m. In

summary, the callers said there was a “madman with an axe breaking into the apartment”, the “girls are screaming”, that he “was in Debbie’s room, beating her up”, and he was “going ballistic”. Some callers identified the intruder as Barry Bradley, and one identified him as Barry MacDonald. [ 10 ] The 911 dispatcher had immediately dispatched a car to the scene. Cst. Dawson says they arrived with police lights and sirens on “within 2 - 3 minutes tops” from the time they received the call.

He and the other policemen entered the apartment building through the smashed door and saw Barry standing in the hall with blood on his clothing and holding a portable phone and looking into the apartment. One policeman secured Barry and the others checked on Debbie Holmes. As the police entered the building Barry said “my wife is dead” and “my wife needs help” and he pointed into the apartment. [ 11 ] The police immediately called an ambulance. The ambulance arrived shortly after, but Deborah Holmes did not exhibit any vital signs. The coroner was called and pronounced Ms. Holmes dead at the scene.

The post-mortem report and the admissions of fact agreed to by the defence confirm that, among other injuries, the deceased had four chop wounds to her neck and six lacerations to her head and neck including the lethal blow which severed her spinal cord.

The Issue [ 12 ] The Crown alleges that the murder of Ms. Holmes constitutes first degree murder in two different ways in that: 1) The murder was planned and deliberate in accordance with section 231(2) of the Criminal Code of Canada ; or 2) As is specified in section 231(6) of the Code , the death was caused by the accused while he was committing or attempting to commit an offence under

section 264 of the Code , and the accused intended to cause Ms. Holmes to fear for her safety or the safety of someone she knew. [ 13 ]

Section 264 of the Criminal Code deals with what is commonly referred to as “criminal harassment”. In

part it reads as follows: 264.

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. Reasonable Doubt [ 14 ] In this case, as in every criminal case, the Crown has the onus of proving that the accused is guilty beyond a reasonable doubt. The burden of proof never shifts to the accused. He is presumed to be innocent and is not required to prove anything in that regard. The fact that the accused has pleaded guilty to committing second degree murder does not assist the Crown in proving its case with respect to the distinctions between second degree murder and first degree murder.

The Crown must prove beyond a reasonable doubt either that the murder was planned and deliberate or that it was committed while the accused was also committing criminal harassment against Ms. Holmes, before the accused would be convicted of first degree murder. [ 15 ] There are differing degrees of proof required for different matters. To start with, some things in this world can be proven with absolute certainty. That is the ultimate standard of proof. Of course, very few matters of human conduct can be proven to that extent.

[ 16 ] In civil cases, such as a case of ordinary negligence, matters need to be established or proven on a balance of probabilities in order for the plaintiff to succeed. We ask the question: “ Is it more likely than not that such and such a thing happened as a result of the defendant’s conduct?” If the answer is yes, the defendant will be held liable. [ 17 ] Between the absolute certainty standard and the balance of probabilities standard there is a third standard and that is “proof beyond a reasonable doubt” which is applied in criminal matters.

On the scale of standards of proof, this criminal standard falls much closer to the standard of absolute certainty than to the civil standard of proof on a balance of probabilities. To establish proof beyond a reasonable doubt, the Crown must prove more than the accused is probably guilty. If that is all that is proven, then the accused must be acquitted. [ 18 ] The Supreme Court of Canada has struggled to explain the concept of “reasonable doubt” in a way that makes its application easier. Speaking for the Supreme Court, Mr. Justice Cory said in R. v.

Lifchus (1997), 1997 CanLII 319 (SCC) , 118 C.C.C. (3d) 1, that when applying this criminal standard, for a doubt to be found to be a reasonable doubt, it can not be one based on sympathy or prejudice and must not be imaginary or frivolous. A reasonable doubt is one based on reason and common sense that is logically connected to the evidence or the absence of evidence. [ 19 ] As I have indicated, it is virtually impossible to prove matters involving human conduct to an absolute certainty and the Crown is not required to do so. They are, however, required to prove the accused’s guilt beyond a reasonable doubt.

In short, again in accordance with Lifchus , the accused would only be convicted if, after considering all of the evidence before me, I can be sure, in my own mind, beyond any doubt based on reason and common sense, that the accused’s act of murdering Deborah Holmes was planned and deliberate or that it was committed while the accused was also engaged in the commission of the offence of criminal harassment against Ms. Holmes, contrary to the provisions of

section 264 of the Criminal Code . [ 20 ] The classic definition of “planned and deliberate” comes from R. v. Widdifield (1961), 6 CR.L.Q. 152 at p.153 where Justice Gale of the Ontario High Court stated: I think that in the Code ‘planned’ is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word ‘deliberate’ is concerned, I think that the Code means that it should also carry its natural meaning of ‘considered’, ‘not impulsive’, ‘slow in deciding’, ‘cautious’, implying that the accused must take time to weigh the advantages and disadvantages of his intended action. That is what, as it seems to me, ‘deliberate’ means. [ 21 ] The Nova Scotia Court of Appeal adopted a slightly different wording for the definition of “deliberate” in R. v.

Smith (1986), 1986 CanLII 7204 (NS CA) , 71 N.S.R. (2d) 229 (N.S.C.A.) where MacDonald J.A. stated, at paragraph 46: The word deliberate must mean more than intentional since it is only if the accused’s act is intentional that he can be found guilty of murder. Obviously this

section adds an additional ingredient. Deliberate means carefully thought out, not hasty or rash. A deliberate act is one in which the doer has taken the time to weigh the pros and cons of his intended action. [ 22 ] In both of those cases the Judge’s comments were included in the charge or instructions given to the jury that was responsible for deciding whether the accused was guilty or not guilty. In this case, of course, there is no jury because the accused, with the consent of the Attorney General for Prince Edward Island, elected to proceed by way of Judge alone.

I am therefore fulfilling both the role of the jury and the judge. In discussing the role of a jury after it has determined that the accused has committed murder, Justice Spence of the Supreme Court of Canada in R. v. Mitchell , 1964 CanLII 42 (SCC) , [1964] S.C.R. 471 stated:

What it [being the jury] is now called upon to decide is not whether the accused committed the act, but whether the murder, of which he is guilty, was planned and deliberate on his part. The pattern of evidence which it must now consider is not a series of facts, which, in order to establish guilt, must lead to a single conclusion. The jury is now concerned with the mental processes of a person who has committed a crime. In relation to that crime it has to consider his actions, his conduct, his statements, and his capacity and ability to plan and deliberate.

It must consider the whole of the evidence in relation to the issue of planning and deliberation. In nearly every case some of this evidence may indicate planning and deliberation and some may indicate the contrary. The jury must weigh all of this evidence and arrive at a conclusion. [ 23 ] R. v.

Aalders (1993), 1993 CanLII 99 (SCC) , 82 C.C.C. (3d) 215 (S.C.C.), is another Supreme Court of Canada case that makes it clear “that the aspects of planning and deliberation are separate elements of the crime of murder in the first degree, both of which must be established beyond a reasonable doubt.” [ 24 ] The defence argues there is no evidence the murder was planned or that the accused deliberated or considered the consequences of the act of murder.

Further they argue even if there had been any planning or deliberation, it was negatived by the accused’s level of intoxication or drug induced impairment which while not sufficiently high to negate the intention to kill, was high enough to interfere with the accused’s ability to fully comprehend and weigh the consequences of his actions. ( R. v. Reynolds (1978), 1978 CanLII 1269 (ON CA) , 44 C.C.C. (2d) 129 (Ont.C.A.) and R. v. Rueger (1984), 1984 CanLII 3531 (ON CA) , 17 C.C.C. (3d) 347 (Ont.C.A).

The defence submits that Bradley’s act was an impulsive, unplanned, rash act committed while in a rage. [ 25 ] With respect to the Crown’s claim that the murder was committed while the accused was committing criminal harassment, the defence argues there is not sufficient evidence to warrant a conclusion beyond a reasonable doubt that the elements of the offence of criminal harassment have been made out, and that had Holmes not been murdered when she was, Bradley could not have been convicted of criminal harassment under

section 264 of the Code . [ 26 ] During the course of the trial the Crown sought to introduce certain evidence of prior conduct of the accused and past acts of violence or aggression by the accused against Ms. Holmes. Defence counsel objected indicating such evidence would only serve to attack the accused’s general character and was not relevant to the charges against the accused. The Crown denied that it was seeking character evidence and submitted that such evidence was necessary to show both the accused’s state of mind and the deceased’s apprehension as referred to in

section 264. [ 27 ] I assessed the essential elements of the offence of criminal harassment and it is clear that both whether the deceased feared for her safety and whether the accused knew that to be the case or was reckless as to whether she had such a fear are required elements of the offence.

It is my opinion that certain evidence of prior conduct is relevant to determining if the deceased was in a state of fear and if the accused knew or ought to have known this. [ 28 ] In addition to being relevant, the probative value of the evidence had to be such that it outweighed any potential prejudicial effect or impact before it was admissible. The accused is not on trial for being a bad person, and evidence that merely shows discreditable conduct is not admissible.

Similar fact evidence, or what is sometimes referred to as “propensity” evidence which may tend to show the accused is the type of person who might commit certain offences, is inadmissible as well, except in certain limited circumstances. By way of addressing the exclusion of such evidence, it has been said in other cases that “the fact the accused has robbed five banks is not evidence of his robbing the sixth bank.” [ 29 ] In R. v. S.B. , [1996] O.J.

No. 1187 , Justice Hill of the Ontario Court of Justice addressed the issue and said: 30 Violence between strangers, as a general rule, involves a narrative of circumstances of limited temporal duration.

Violence within a relationship, spousal or otherwise, necessarily, and frequently, involves the complex dynamics and subtleties of the personalities of the principals within the context of their individual and shared experiences, understandings, roles and emotions. 31 While submissions of admissibility on the basis of mere narrative can, of course, be abused, to deny the triers-of-fact complete information regarding the prior history of the parties runs the risk of presenting an entirely sterile and antiseptic record devoid of the realities of the individual circumstances of the participants.

. . . 43 Not infrequently, in cases of spousal homicide, evidence of the preceding intra-marital violence and arguments is before the triers- of-fact without adverse comment in the appellate forum: R. v. Munroe, Ont. C.A., Feb. 24, 1995 at 2 per Austin, J.A.; R. v. McCormack, Ont.

C.A., June 26, 1995 at 2 per Galligan, J.A. 44 The relationship of the parties may assist in explaining otherwise unusual aspects of the complainant’s behaviour including fear of reporting or fear to take flight from danger. 45 In a relational context, evidence of prior aggressive conduct, including assaultive behaviour attributable to the accused, may assist in identifying an animus of the accused toward the complainant and hence the state of mind of the accused at the time of the alleged offence(s).

Whether described in terms of hostility, domination or obsessive control, the existence of such evidence may well be viewed as a circumstance capable of incidentally confirming the credibility of the alleged victim: ... [ 30 ] In determining these issues, I examined the evidence in detail, bearing in mind the application of the required tests with respect to relevance, probative value, and prejudicial effect. [ 31 ] Several of the witnesses, including Gary Bradley, Lori Cudmore, Tracey Bradley, and Raymond Rush testified with respect to conduct and/or comments of the accused in the months, weeks and days leading up to the murder which would indicate some planning and deliberation of the murder of Deborah Holmes or certain aspects of criminal harassment against her. [ 32 ] Gary Bradley testified that his father had repeatedly stated that he was going to kill his mother if she did not return to live with him, whether within the next week, or within some other short time frame.

On direct examination Gary Bradley stated: ... But he’d say other things too, like he, he did say like, one day he’d say you know jeez I love her, I wish she’d come back home, and then the next day he’d be saying he was gonna kill her, or not even, all within the same day.

Like one hour he’d be saying jeez I love her, I miss her, I just wish her and J.C. would come home, and then he’d be like ah that stupid bitch I’ll fuckin’ kill her before the week’s over or before the day’s over, whatever. [ 33 ] His testimony continued referring to Barry’s statements: Yes, he’d say– like concerns towards my mother’s safety he’d say stuff like I know where she, like I know where she sleeps, I know where her bedroom is. Like he’d tell me stuff like that. And if she doesn’t come home she has like four days and J.C.’s gonna be moving in with you and stuff.

She’d say that– like he said things a couple of times. She has like a week to come back home here or she’s, I’ll kill her, and J.C.’s gonna be moving in with you and-- [ 34 ] Gary indicated that his father made these types of comments frequently but more so in the last few months, and in the year preceding his mother’s murder in 2001. [ 35 ] Gary testified that his father said it so often that, after getting mad at him a few times, he just brushed it off and never took the threats seriously. On cross-examination he said he never called the police because he never believed that his father would kill his mother.

On re-direct, Gary testified that his father made several similar statements when he was “dead straight” (that is not drinking or on drugs) in the six months prior to the murder. He said that, for example, after arguing on the phone with Debbie, Barry would be angry and say “she’ll know it if I go up there. I could put a bulldozer through that building.” [ 36 ] Gary also testified to seeing the hatchet which was used as the murder weapon in his father’s van in the time preceding the murder. He thought it was strange because there was no apparent need for a hatchet.

He asked his father why he had it, was it for the

house or for the shop, and the accused told him: ...no, no that’s just, that’s to kill your mother with... [ 37 ] His testimony continued: ...He said one day the hatchet, he went and bought it at Canadian Tire. Yeah that’s right, he told me. He said he went and bought it at Canadian Tire to kill my mother with. But sad enough we heard it so often, like a hundred times a day, you never really clued in.

He further testified that in speaking with his father about the axe and the hatchet his father said he had gotten them “all sharpened up to kill your mother.” [ 38 ] Barry Bradley also told Gary that since Gary had a spare bedroom in his home, J.C. (Gary’s now 15 year old sister) would be able to go and live with Gary when Barry killed Debbie. That statement was also made a few months before the murder. [ 39 ] Gary Bradley testified about various other incidents during which Debbie became scared.

Approximately three months before the murder, Debbie told Gary about her and a workmate being chased in her car by Barry in his van for two-three minutes going up University Avenue. He chased her up the street and she said she was “white knuckle gripped on the steering wheel” and then he eased off. Gary indicated that on this occasion Debbie was “scared - really scared”. [ 40 ] He also testified that Barry would go to Debbie’s place of work at the Native Council Office on different occasions.

Approximately one week before the murder, Gary was at his father’s automotive shop when Barry returned and according to Gary said words to the effect that “I was just over there at the Native Council, what a ruckus I just caused ” , and that Barry thought it was very funny. Gary later spoke to his mother about it and Gary concluded that his mother was both embarrassed and scared with respect to the incident. [ 41 ] Within the two to three months prior to her death, Debbie told Gary how scared she was of Barry.

Gary testified that when his mother would get off work, she would get right into her car, go straight home, get right into her apartment, walk very fast, and that she was scared to look back. According to Gary’s evidence, Debbie told him this fear of Barry extended even to trips she would take from her apartment to the store one block away. [ 42 ] There was other threatening behaviour of which Gary was directly aware.

On one occasion approximately one month before Debbie’s death, Debbie was at Gary’s apartment with Gary and in what Gary described as “an outburst” Barry came in and started “freaking out at Mom” saying “you got ten minutes to be back up to your place and get your stuff and you’re moving back home.” Following the outburst, Barry left. Gary said Debbie was terrified - “one of the scardest I’ve ever seen”. She said to Gary “Now I don’t know if it’s safe to go home”.

When Gary tried to reassure her of her safety she said “you really don’t know your father like I do”. [ 43 ] Lori Cudmore, Gary’s girlfriend, also testified. She told the Court that approximately one month before the murder Barry called her on the phone and told her she should clean out the spare bedroom and make arrangements for J.C. to come and live with them, and she should order Debbie’s casket because he was going to kill her. At around the same time Barry told Lori that if he did kill Debbie he’d get away with it because he’d just plead insanity.

She stated that Barry would always say that Debbie’s time is getting very, very limited and that she either had to move home and live with him or drop J.C. off to live with him and she could leave the Island. He’d also say that he took her here - he owned her - she belonged to him.

This latter statement was made a few times within the last six months before Debbie’s death. [ 44 ] Lori also stated that during the two months preceding Debbie’s death, there was an occasion in which Barry came barging into the shop talking about Debbie and saying (in Lori’s words) “I’ve had enough, I f---in’, f---in’, f---in’ hate her.” [ 45 ] Lori testified that Debbie phoned her everyday and was constantly reporting to Lori that Barry had phoned her work three

times that day or he phoned her house or he was at the door buzzing or he’s over in the next parking lot watching her. Within the last couple of months before Debbie’s death Debbie reported to Lori that she and Barry passed each other on the Hillsborough Bridge and that Debbie was going towards her home and Barry was going towards town. Barry did a u-turn and followed her and cornered her in the parking lot of the apartment building and was wanting to go upstairs for a drink.

She was scared and told him that if he didn’t leave she’d call the cops. [ 46 ] Lori testified that she could see that Debbie was scared of Barry and that Debbie told her she was scared. Debbie and J.C. had gone to stay with Lori and Gary at their residence on different occasions because Debbie was scared of Barry. [ 47 ] Raymond Rush was the landlord who owned 10 Mutch Drive, at the time of the murder. He testified that he received several complaints from tenants who were scared about Barry being around the apartment building.

On a Saturday night eight or nine days before the murder Raymond received a call from a tenant, Sheila Warren, saying Barry was at the apartment building. Ms. Warren let Raymond speak to Barry and Raymond asked Barry to leave. He said he would. An hour later Barry called Raymond at home. He said he was at the apartment building because he wanted to talk to Debbie. After being advised that he was not to be around the apartment building, Barry told Raymond that no one will keep him out of the apartment building and he would get in any way he could.

Specifically, Barry stated that the windows will not keep him out of the building because he’d just smash them out. At the time of the conversation, Raymond felt Barry was either drinking or otherwise under the influence of something that made him sound like he was drinking. [ 48 ] In testifying about the occasion on which Mr. Bradley attended at Sheila Warren’s apartment, Ms. Warren indicated it was a Friday night and that it was a week and two days prior to the Sunday on which Ms. Holmes was murdered. Raymond had indicated he thought it was a Saturday night eight or nine days before Ms. Holmes’ death. Ms.

Warren recalls that it was a Friday night and that the following day, Saturday morning, she woke up to go to work and as she looked out in the parking lot she saw a can of paint thinner, a crowbar, and a rag sitting on top of the engine bonnet of Debbie’s car. Three days later on the Tuesday before Debbie’s murder, Barry was shouting from the parking lot up to Debbie’s balcony about car repairs, but Debbie wasn’t there. Sheila heard Barry and said to him “what are you doing putting things on Debbie’s car - that can of paint thinners and stuff?” He said “I know I’m foolish. I know I’m foolish.

I do foolish things, but that was Shane’s idea.” [ 49 ] Barry’s sister Tracey Bradley was a good friend of Debbie Holmes and had been with Debbie during the evening and the early morning hours prior to the murder. She indicated that on that evening Debbie was relaxed, kind of quiet, and that Debbie did not express any fear of Barry. Tracey testified that she and Debbie spoke on the phone daily and that on different occasions Debbie would be upset either because Barry had called frequently, maybe twenty times, maybe five times, and Debbie would often say Barry is threatening to kill her.

Tracey said this was said so often that she didn’t think Debbie really believed Barry would ever actually kill her. The last time Debbie reported such a threat was a couple of days before the murder. Tracey was aware of Barry’s drug addiction and had seen him in a paranoid state while on drugs. [ 50 ] The Court heard testimony of two other occasions on which Barry’s attendance at Debbie’s apartment building caused Debbie to be scared of him. Joanne MacPhee lived in apartment #3, 10 Mutch Drive, for the past twelve years. Her apartment is on the level below Debbie’s apartment.

Three years prior to the murder, on a July morning in 1998 between 4 and 4:30 a.m. Barry broke into her apartment by twisting and grinding the lock, smashing through the door, and taking the door off its hinges. She jumped up, grabbed some clothing, and opened her bedroom door to find Barry in her apartment demanding to know where Debbie was. She told him to get out of her apartment. His demands were repeated as were her orders for him to leave. After he left Ms. MacPhee called the police. [ 51 ] Approximately four months later, on October 31 st , 1998, Ms.

MacPhee again heard smashing sounds in her apartment building. She looked into the hall and saw Barry smashing the front glass door of the building (not the security door but the opposite entrance) with a hammer. He also smashed out the side glass panels and smashed out all of the glass in the door so that he could go into the building. He was carrying the hammer and wearing a pair of underwear on his head. He came into the building, stood at the top of the stairs, growled, went over to Ms.

MacPhee, growled again, and then used the hammer to smash out the glass in the security door and other door at the security entrance. He left and Ms. MacPhee called the RCMP. This is the incident which generated a probation order restraining Barry from being at 10 Mutch Drive from April 1 st , 1999 to May 29 th , 2001. [ 52 ] Ms. MacPhee testified that Debbie’s response to these acts was that she was scared of Barry and she was tired of his immature acts. Ms.

MacPhee stated that any time Barry was ringing on the buzzer or pounding on the door, Debbie would run straight to her bedroom and wouldn’t stay in the kitchen or livingroom area.

[ 53 ] Another friend of Debbie’s told the Court that Debbie had advised her that she was afraid for her life because of Barry’s direct threats to kill her and the numerous repeated threatening phone calls to her home and work. Mary Shaw stated that Debbie was scared to leave her apartment.

She further testified that Debbie had told her that Barry had threatened her to her face saying “either come home or I’ll kill you.” Mary Shaw was present on one occasion in the spring or summer of 2000 when Barry called Debbie from jail and threatened to kill her. [ 54 ] In May of 2001, Debbie showed Mary a drawing on a piece of paper. In Mary’s testimony she said: A. Well she had showed me a paper, the front of her building and the balcony, and it was a picture of her lying on the couch and then like fire, red flames, and he had crawled up and he had said see how easy it would be to kill ya. She showed me that.

Q. Did you have an impression as to where she had received that piece of paper? A. I would assume Barry. . . . In considering this testimony, I accept that Debbie was in possession of such a drawing and that she discussed it with Mary. However, the evidence is not such that I accept any attribution of that document to Barry. [ 55 ] Two witnesses testified with respect to Barry’s threatening behaviour at Debbie’s place of work. Kim Gallant worked at the Native Council of PEI where Debbie was the bookkeeper.

She stated that Barry would come into the office and would be “hollering and screaming” at Debbie and hitting the desk in Debbie’s room. She never heard any direct threats from Barry during these incidents. The last such visit was in June of 2001, with a total of four such visits in the year preceding Debbie’s death. [ 56 ] About one month before the murder, in conversation with Debbie about a t.v. show concerning a man who was obsessed with his wife, Kim made the comment to Debbie “you know he’s gonna kill you one of these days” — talking about Barry.

Debbie responded in a depressed sort of way saying “oh yeah”. [ 57 ] Valerie Chisholm was the President and Chief of the Native Council starting in 1998 and worked with Debbie. In 1999, Valerie, Debbie and some of their friends went to a party in Stratford during which Valerie and Debbie had a long chat. Valerie then testified: ...the thing that struck me the most about that conversation is that she quite plainly told me that Barry was going to kill her. That she was going to die at his hands. ... . . . She was quite frank about it.

It was something– my opinion at the time, I just remember when I heard it, it’s like my, I drain, my blood just drained out of me, and, but she said it quite frankly and matter of factly. Like it wasn’t– it’s just something that she knew. . . . Debbie was concerned every minute of her life that I knew her. Debbie was always trying to do whatever she could to appease Barry,

and she did it in a manner that it was just a part of her life. She had to do it in order to survive. And that’s, I think that that was the most thing– like it just, it was just a part of her life. She needed to– she was, she was afraid every minute, and, and it came across in, in her demeanor, and Barry phoned the office or if Barry showed up at the office, she, it was like, she took on a whole different demeanour. She just was, she was ready to do whatever she needed to do, and she was quite– I don’t know. I don’t know even how to say it.

I knew she was, she was afraid for her life and it always came out when he phoned and, and at the office. Because usually that’s what he did is, was phone, and she would do whatever she could to please him at that moment, to say whatever she needed to say in order to go the next step I guess. I don’t know. [ 58 ] Ms. Chisholm describes Barry’s visits to the office and her requests for Barry to leave and to refrain from phoning Debbie at work. Because of Barry’s past visits, Valerie had her assistant prepare a “no trespass notice”to give to Barry if he was to show up again.

He did arrive at the office speaking loudly and demanding to see Debbie. Valerie asked her assistant to print the notice off the computer, but before it could be given to Barry he left. He continued to call the office and according to Ms. Chisholm, would drive by constantly. The notice was then mailed to Barry. Sometime later Valerie received a call at home from the office saying Barry was there and he was pretty irate and had an envelope for her. Valerie called 911 but Barry again left the office before any action was taken.

The next day she received the envelope and it contained the no trespassing notice that had been sent to Barry and it appeared to be partially burned and it had a note stuck to it saying “Fuck you. Welcome to my world, love Barry”. [ 59 ] On cross-examination Ms. Chisholm testified that she was only personally present on three occasions when Barry visited the office and that she only had two telephone conversations directly with Barry while she was at the office.

Intoxication Defence [ 60 ] The defence submitted that at the time of the offence the accused was intoxicated by cocaine, and the effects of such intoxication were two-fold: first, it rendered the accused incapable of planning and deliberation; and secondly, even if the accused was capable of planning and deliberating, it is open for the Court to find that due to the consumption of cocaine, the accused acted impulsively without deliberation. [ 61 ] There was a great deal of evidence regarding Barry’s drug addiction and drug use habits.

It is clear that Barry Bradley was addicted to drugs, particularly cocaine, and that he was a regular user and very often a heavy user. He mixed other drugs, including prescription drugs with his cocaine use, and he also consumed alcohol both at times when he was doing drugs and otherwise. I accept the evidence which shows that Barry was more than an occasional or social or recreational user of cocaine, and I accept that on occasion Barry would go on a cocaine binge consuming large amounts at a time.

I also accept the evidence that on certain occasions in the past, Barry had consumed sufficient quantities of drugs to make him paranoid. I accept the evidence as well of Cst. Kennedy and Cpl. Quinn, both of whom saw Barry during the evening of June 30 th , the last time being around 11 p.m. [ 62 ] Cst. Kennedy testified that on both occasions when he saw Bradley at the Festival of Lights he appeared to be under the influence of alcohol or drugs. On the second occasion, around 11 p.m. on June 30 th Bradley appeared to be fairly agitated and spoke to Cst.

Kennedy about the Hell’s Angels being a problem and Barry suggested the Hell’s Angels should be killed - shot in the head. He also spoke to Kennedy about a motor vehicle investigation regarding an accident in which Barry had been involved. Kennedy was the police officer involved in the investigation. Bradley also spoke of an alleged biker gang death of a local man, and Kennedy’s testimony confirmed that there were indeed allegations of bike gang connections to the death of a local person. Cst.

Kennedy saw nothing that made him conclude that Bradley was not in control of his faculties, mentally or physically. [ 63 ] Cpl. Quinn also spoke to Bradley for about thirty seconds around 11 p.m. on June 30 th and, as with Cst. Kennedy, Cpl. Quinn was familiar with Bradley from past contact. Bradley addressed Cpl. Quinn as Mike, which is his name, asked if he had seen Shane (Barry’s brother), asked “where’s Pudgy and the SIS?” Pudgy is a reference to another police officer, and the SIS is what Bradley believes to be a secret police force which always followed him.

Quinn is not aware of the existence of any such force. Quinn said Bradley appeared to be impaired or intoxicated to the extent that he believed he would be in excess of the legal driving limit, but his impairment was not high enough for him to be labelled intoxicated in a public place. Quinn said in his opinion, Bradley appeared to be stoned. He testified there were others present who were more impaired than Bradley and on other occasions he had seen Bradley more impaired than he was that night. [ 64 ] Gary testified about his father’s extensive drug use.

He said that in the past he had seen his father lose touch with his surroundings, have no memory of what happened, hallucinate, become paranoid, and express that there were people watching him,

hiding in the woods and hiding in the basement. One such incident occurred approximately six weeks before the murder. Gary indicated that his father had been steadily under the influence of drugs for years and that during the two weeks prior to the murder his father was preoccupied with drugs.

The last time Gary saw his father before the murder was early Saturday morning and at that time Barry was high on cocaine. [ 65 ] Lori’s testimony regarding Barry’s drug use and his condition early Saturday morning was very similar to the testimony given by Gary Bradley. [ 66 ] Between 6 o’clock Saturday morning and approximately 6:45 Sunday morning, the time of the murder, there is no evidence of any consumption of drugs or alcohol by the accused. As well, the only evidence of any direct communication with Barry during this time came from the previously referred to testimony of Cst.

Dawson who spoke to Barry shortly after 5 a.m. Sunday morning. [ 67 ] A standard breathalyser test was administered to the accused at approximately 9 a.m. Sunday morning, two and a quarter hours after the murder. The defence objected to the admission of the test results based on the fact that the accused had at that point only been given the Charter caution for assault yet the police knew the victim had died and the eventual charge would be murder. I granted the defence motion and excluded the evidence of the results of the breathalyser test. [ 68 ] At approximately 6:00 p.m.

Sunday evening, eleven and a quarter hours after the murder, samples of the defendant’s blood were taken at the request of his then defence counsel. These samples were then analysed by Paul Boyd, a toxicologist with the RCMP Forensic Laboratory Services in Halifax, NS, for drugs, specifically cocaine, crack cocaine, Percoset, and Ativan. No request for an alcohol analysis was made at this time as the police already had the breathalyser results. [ 69 ] The “Remarks” portion of the lab report provides the following

summary of the substances identified in the blood, which includes evidence of five drugs and one metabolite. The report states: REMARKS : 1. Diazepam and Lorazepam are anxiolytic benzodiazepines commonly sold under the brand names Valium® and Ativan® respectively. Both drugs were detected at therapeutic levels. Nordiazepam is an active metabolite of diazepam and was detected at a therapeutic level. Butalbital is a sedative-hypnotic barbiturate and was detected at a subtherapeutic level. Acetaminophen is a non- narcotic analgesic commonly sold under the brand name Tylenol®. This drug was not quantified.

Benzoylecgonine is an inactive metabolite of cocaine. Its presence demonstrates past cocaine use. . . . [ 70 ] Both Crown and defence called experts to interpret the lab results. [ 71 ] Mr. W. K. Jeffrey is the head of the Toxicology

Section of the RCMP Forensic Laboratory in Vancouver, British Columbia, and is a toxicologist and pharmacist and was qualified as an expert in two areas, namely: 1. In the pharmacological effects of alcohol and drugs, specifically the absorption, distribution, elimination metabolism, and pharmacological effects of drugs and alcohol on human beings; and 2. In identifying a user under the influence of drugs. [ 72 ] In his written report and his viva voce evidence he interpreted the lab results and expressed his opinion on the accused’s drug consumption and level of intoxication or impairment at the time of the murder.

[ 73 ] Mr. Gregory Johnstone was qualified as an expert in the area of toxicology and pharmacology on behalf of the defence. He also prepared a written report (which was not presented to the Court) and gave viva voce evidence regarding the accused’s drug consumption and level of impairment at approximately 6:45 a.m. on July 1 st , 2001. [ 74 ] Each expert spoke of the effects of various drugs on the human body.

They also discussed the methods of calculating the amount of drug in the accused’s body at the time of the murder, based on results obtained from the blood samples taken eleven and one- quarter hours after the murder. [ 75 ] The lab results confirm that there were 42 micrograms of Benzoylecgonine per millilitre in Bradley’s blood at approximately 6 o’clock p.m. Benzoylecgonine does not in and of itself exert any psychological or impairing effects on the body. It is merely a by- product of the metabolism and decomposition of cocaine in the body.

The experts agreed that the half-life of Benzoylecgonine was between five and seven hours and that it was reasonable to use a half life of approximately 5.5 hours in this case. That results in there being 1.68 mg/ml of Benzoylecgonine in Bradley’s blood at the time of the murder. In order to extrapolate from there and determine how much cocaine would have been in his system at the time of the murder, we need to know what percentage the metabolite Benzoylecgonine is of all of the metabolites of cocaine. On this point, the experts differ. [ 76 ] Mr.

Jeffrey testified that there are between eight and sixteen metabolites of cocaine depending on various factors. He indicated that the two principle metabolites are Benzoylecgonine (BE) and Ecgonine Methyl Ester (EME) and that usually BE is 40 to 45% of all metabolites and EME is 30 to 45%. Using just the BE he calculated that the accused would have had .072 grams of cocaine in his system at the time the test was taken. After accounting for the other principal metabolite, EME, and assuming it to be at the same concentration level as BE, Mr.

Jeffrey concluded that the total amount of cocaine present would be 175 milligrams. [ 77 ] Mr. Johnstone, testifying on behalf of the accused, indicated that BE only accounts for 16% of the metabolites of cocaine when cocaine is smoked as opposed to up to 40 to 45% when it is injected or otherwise ingested. He stated that until now he was of the view that BE and EME concentrations were approximately equal and were at levels of 40 to 45%, but as a result of some reading he had done in preparation for this trial he concluded they were different and BE would only be at 16%, if the cocaine had been smoked.

He based his conclusion principally on an

article written in 1998 by Edward Cohen. However, he then acknowledged that the 16% result was achieved through urine analysis not through blood analysis, and he stated that there were a number of variable factors that meant that an extrapolation from one to the other was not possible. He indicated that in the course of getting into one’s urine, BE is subjected to a number of other bodily processes that are not factors to be considered when looking at blood samples.

Blood samples and urine samples can not be readily compared or interchanged. [ 78 ] Given that the only evidence before me relates to blood samples and we do not know what the equivalent urine sample analysis would be, I accept the evidence of Mr. Jeffrey that the metabolite BE represents 40 to 45% of the total metabolites that would be present as opposed to the 16% figure promoted by Mr. Johnstone. [ 79 ] There was also a considerable amount of evidence on the amount of cocaine that would be lost, or not ingested, in the smoking process as compared to use by injection or snorting.

In my opinion, the efficiency or otherwise of the process chosen to ingest cocaine is not of significance in this case. The important question is how much cocaine was in Mr. Bradley’s system at the time of the murder and what effect that cocaine had upon his mental processes and capacities. [ 80 ] Knowing the original quantity of cocaine used to achieve a certain level of cocaine in one’s blood might enable us to put a label on the accused as a regular user, a heavy user, or a binge user, but no such label tells us anything about the efficiency of his use or the effect on him of such use.

The same holds true with respect to the evidence on the purity of the cocaine used by the accused. In my opinion, it is not relevant. [ 81 ] Considering that the BE concentration converts to 72 milligrams of cocaine and represents 45% of the cocaine present at 6 p.m., the total cocaine present at that time would be 160 milligrams, which again converts to 640 milligrams of cocaine at the time of the murder. Not surprisingly, the experts again differed on the effects of the cocaine consumed. [ 82 ] Mr.

Jeffrey considered the accused to be under the influence of cocaine at a recreational use level and other drugs at therapeutic levels and considered that the accused was coherent and in touch with reality and his surroundings and knew what he was

doing at the time of the murder. [ 83 ] Mr. Johnstone testified about the general effects of cocaine on the body. He confirmed that its affect varies considerably between individuals and its effects are dependant on the length of time a person has been taking cocaine, whether the person is used to taking high doses and the amount in use at the time in question. He indicated that several days or weeks of repeated heavy use would lead to disruption of the user’s brain functions. In assessing the accused’s behaviour, Mr. Johnstone had difficulty finding anything that demonstrated disruption of his brain functions.

He was specifically referred to Bradley’s driving to the scene and returning home at approximately 5:00 a.m., the telephone conversation with police at approximately 5:15 a.m. wherein the accused referred to the expiry of his stay away order and his wanting to see his daughter whom he could reasonably expect would be there, his driving to the scene again at 6:40 a.m., his carrying both an axe and a hatchet each for an apparent purpose, his comments after the murder indicating his wife is dead, help his wife, and the concerns he expressed for the location or care of his daughter following the incident. Mr.

Johnstone indicated that there was nothing in this behaviour that would lead one to conclude that Bradley’s brain functions were interfered with. He testified that some functions of a repetitive nature, such as driving, are not necessarily impacted by drug impairment, and that it is obvious that Bradley was able to operate at a certain level given the behaviour he demonstrated. Mr. Johnstone indicated that the challenge arises in circumstances involving more complex behaviours.

He indicated in his testimony that delivering repeated injuries to the spinal cord of Deborah Holmes constituted a more complex function that Bradley was able to perform. [ 84 ] Dr. Steven Hucker is a Professor of Psychiatry at McMaster University and testified on behalf of the defence as an expert in the area of psychiatry. [ 85 ] Based on a detailed hypothetical situation that reasonably reflects the factual situation, Dr. Hucker initially stated that the accused’s ability to plan and deliberate would have been seriously compromised.

He felt the accused had a diminished capacity to weigh and measure his conduct. He indicated that Bradley was aware of his surroundings at the time of the murder and that he was not in a cocaine induced psychosis, but was suffering cocaine withdrawal. [ 86 ] Dr. Hucker indicated some people in cocaine withdrawal could have an ability to plan and deliberate and others may not have that ability and that it is equally as important to look at the person’s behaviour to assess this ability as it is to look at the chemical analysis provided.

Further, he said that the best evidence of a person’s mental state is his or her behaviour as observed by person’s around him or her. Included in that behaviour were the conversations at 5:15 a.m. and immediately following the murder. Dr. Hucker acknowledged that these conversations demonstrated something of an ability to plan and deliberate and comprehend the consequences of one’s actions. Dr.

Hucker also stated that if there was any evidence that the accused had done things in furtherance of the act, such as purchasing a hatchet and saying that it was for the purpose of killing his wife, that would constitute planning. He assumed that effectively there was no such evidence even though Gary Bradley had testified to that very scenario. In Dr. Hucker’s opinion, Gary had said that his father was “out of his trees” when he said that and he therefore did not consider it further.

No where in Gary’s testimony does he say his father was “out of his trees” when he is reporting on his father’s conversation about acquiring the hatchet for the purpose of killing Debbie or when he said he had them “all sharpened up” to kill her. I consider these statements to be clear indications of planning for the murder of Deborah Holmes. Gary did make the statement that his father was always drinking or doing drugs and that he hadn’t seen his father sober in five years, which I accept as a general reflection of Barry’s habits.

However, throughout Gary’s testimony he repeatedly states that his father made threats against his mother in the year, months, weeks, and days before her death and that often he was “dead straight”, meaning not drunk or high on drugs when he would make those threats. [ 87 ] The accused also made other statements that indicate planning and deliberation. Separately he told Gary and Lori that they would have to clean out the spare bedroom and take in J.C. to give her a place to live after he killed Debbie. He also told Lori to order Debbie’s casket. These statements are clear evidence of planning and deliberation.

Dr. Hucker initially stated his conclusion that the accused’s ability to plan and deliberate was seriously compromised was based in part on the fact that there was no obvious escape plan and that Bradley very noisily committed the crime and then appeared stuck in place waiting for the police. However, Dr. Hucker agreed that the statement made by Bradley that he would get off because he would “plead insanity” was also an indication that the accused’s actions were part of a plan.

As well, he testified that the fact the accused took tools or weapons with him to the scene, namely the axe and the hatchet, suggest that this action was part of a plan. [ 88 ] In considering all of the evidence with respect to cocaine consumption and the amount in the accused’s system at the time of the murder, I find the foundation or basis for the inferences drawn and the opinions expressed by Mr. Jeffrey to be more convincing than those of Mr. Johnstone and as a result and for the reasons outlined earlier, in areas where their evidence conflicts I accept the evidence of Mr. Jeffrey over that of Mr. Johnstone.

[ 89 ] The lab report also reflects the presence of Valium and Ativan at what are described as therapeutic levels, together with a subtherapeutic amount of barbiturate and an unspecified amount of Tylenol. Several people came in contact with Bradley in the minutes and hours following the murder. None of them reported observing any signs of impairment such as slurred speech, bloodshot eyes, staggered walking, etc. Several reported that Bradley was attentive, cooperative, and appeared to understand questions and answer appropriately.

A number also reported that he was very docile and appeared to be physically and mentally exhausted and wanted to sleep. When left undisturbed in the interview room for any length of time he slept on the floor. He slept during the brief ride from the RCMP office to the Queen Elizabeth Hospital at approximately 5:45 p.m. on July 1 st .

In the course of various conversations Bradley expressed that he had taken six Ativan at 5 o’clock in the morning, that he had not been drinking, that he was not on other drugs but had been trying to get a prescription filled for four days and that he hadn’t eaten or slept in a week. From all of this evidence, I consider his consumption of Ativan and Valium and his lack of food and sleep to be significant contributing factors to his apparent physical and emotional exhaustion. [ 90 ] Dr. Hucker expressed significant difficulty in rationalizing Barry’s self-reported use of drugs with the chemical analysis.

He testified that Barry claimed to have consumed what Dr. Hucker described as “extraordinarily large quantities of cocaine” with “extraordinarily large amounts of money” being spent to acquire those drugs. Yet Barry had difficulty describing known side effects of various drugs he claimed to have used. Dr.

Hucker stated that Barry displayed elements of being a pathological liar and found Barry to be an unreliable informant and testified that he “wouldn’t believe anything he said without corroboration” from another source. [ 91 ] In considering whether Bradley had the ability to plan and deliberate — separate and apart from whether he did actually plan and deliberate — I have considered in particular the evidence of the three experts who testified in this regard, namely, Jeffrey, Johnstone and Hucker. [ 92 ] While the onus of proving that the accused committed the murder after some degree of planning and deliberation is on the Crown, the evidentiary burden of proving that the accused was incapable of such planning and deliberation is on the accused, and he must show this was the case on the balance of probabilities.

From all of the evidence, I find that the accused has not shown that he was incapable of conducting the required planning and deliberation. [ 93 ] When I consider Dr. Hucker’s testimony, I am reminded he stated that the ability to plan and deliberate entails a much finer degree of thought than an awareness of one’s surroundings or of events. However, I also consider the other opinion evidence he gave of several matters which he said are indications of planning or deliberation as outlined earlier. As well, with one exception, there was no statement or action undertaken by the accused which Dr.

Hucker concluded provided evidence of an inability on the accused’s part to plan or deliberate. The one exception related to the lack of an escape plan, which I do not see as an essential part of any plan or deliberation to commit murder. Further, in my opinion, the accused’s declared intention to plead insanity undermines Dr. Hucker’s opinion in that regard, in that it confirms that he did weigh and assess the consequences of killing Ms.

Holmes. [ 94 ] At 5 o’clock in the morning on July 1 st , 2001, Bradley was unquestionably conscious of the subtleties involved in the police officer’s challenge to him on his presence at 10 Mutch Drive. Bradley explained that the stay away order had expired a short time earlier. This demonstrates a clear ability to comprehend the consequences or lack of consequences of his actions. Had it not expired, he could be charged with a breach of the order. In speaking with a police officer, he had the presence of mind to raise the issue and eliminate the concern.

In the same conversation, he also told the police officer not to bother coming up to talk to him because he would not let him in. This again indicates a presence of mind capable of contemplating future action and the potential outcomes of those actions. [ 95 ] We can also examine the accused’s conduct immediately following the murder. The defence argues that he was impaired by cocaine to the point of being incapable of planning and deliberating. That impairment, according to Dr. Hucker, would reflect itself in an inability to comprehend complex matters.

Yet the accused had a conversation with the police officer immediately following his arrest and said he just couldn’t take it anymore. He more than once expressed that his daughter now needed to be cared for and needed a place to go. He says he was depressed and he discussed his prior efforts to get help from two doctors and a pharmacist. All of this conversation, in my opinion, reflects a rational and calm comprehension of the context and consequences of his just completed actions. Both Mr. Johnstone and Dr.

Hucker testified that nothing in these conversations showed a lack of ability in the accused to plan and deliberate at that time. [ 96 ] There is one aspect of the post-murder conversation that was referred to in expert testimony on behalf of the defence and was subjected to what I consider to be a strained

interpretation. In the conversation after Barry said he couldn’t take it anymore, that he was depressed and that he sought help but didn’t get it, that his daughter needed help and that this was “not nice, not nice”, the police officer said to Barry “what happened to your wife today” and Barry said “nothing that I know of. I spoke to her a couple of times.”

[ 97 ] Mr. Johnstone interpreted Barry’s response as indicating possible amnesia or maybe suppression from a traumatic event. There was nothing in that conversation to indicate that Barry was out of touch with what had just happened. To me, the rational explanation for Barry’s response is that the reference to “today” was taken by Barry as a reference to “earlier in the day” and not five minutes beforehand.

To that Barry gave a rational response that indicated he wasn’t aware of anything happening and implying that he would have been aware if something had happened because he had spoken to her a couple of times that day. [ 98 ] I have concluded that the accused did have the ability to plan and deliberate at the time of the murder. Has the Crown proven beyond a reasonable doubt that he did indeed plan and deliberate the murder of Deborah Holmes?

At the risk of repeating myself, I will list the evidence of statements by Barry as well as actions that I consider to be indicative of planning or deliberation. [ 99 ] That evidence includes: - the repeated threats, specifically in the last month before the murder; - the direct statements to Gary about having the hatchet for the purpose of killing his mother; - the statements about having them “all sharpened up”; - the statements to both Gary and Lori about making room for J.C. to live with them after he kills Debbie - the statement to Lori that “I’ve had enough”; - the statement to Lori to order Debbie’s casket; - the statement to Lori that he would get away with killing Debbie because he would plead insanity; - the call to Raymond Rush stating that no windows would keep him out and that he would just smash them in; - the statement to Lori that Debbie’s time is getting very, very short; - the statement to Gary that he knew where Debbie slept; - the statement to Gary to the effect that Barry could be in and out of Debbie’s apartment in less than a minute, which statement was made several times, but I specifically exclude any consideration of such a statement as was alleged to have been made on the night of June 29-30th, 2001; - the fact that he took the tools and weapons, namely, the axe and hatchet, with him when he left his home and drove to the scene just prior to the murder. [ 100 ] Considering all of these factors, and in particular the fact that he took with him the hatchet which was the very weapon he had

said he would use to kill Debbie Holmes, and which would not be required to gain entry given that he had the axe, I am satisfied beyond any reasonable doubt that the murder by Barry Bradley of Deborah Holmes was planned and deliberate within the meaning of section 231(2) of the Criminal Code of Canada . It is my opinion that the accused had previously planned and deliberated the murder of Ms. Holmes.

It is also my conclusion that in the minutes preceding the murder, while having his faculties and being able to continue planning and deliberating, the accused decided to carry out his plan, collected the axe and the hatchet, drove to Ms. Holmes apartment building, and put the plan into action. The fact that he carried out the plan in a frenzied fashion does not negate his planning and deliberation.

Criminal Harassment [ 101 ] I must now deal with the second submission by the Crown that the murder, even if it wasn’t planned and deliberate, was committed while the accused was committing criminal harassment against Ms. Holmes and that for that reason, the accused is guilty of first degree murder. [ 102 ] In May 1997 Parliament enacted section 231(6) of the Criminal Code which created a form of constructive first degree murder.

Coupled with the criminal harassment sections themselves, section 231(6) is designed to provide additional deterrence and denunciation of harassing, invasive or intrusive conduct by an accused towards his victim. Both Crown and defence counsel have advised that they have been unable to locate any reported or unreported decisions anywhere in Canada dealing with section 231(6) , and they believe this is the first case of its kind.

I too have been unable to locate any decisions on this section. [ 103 ] I have already reviewed the essential elements of sections 231(6) and 264 of the Criminal Code and have made reference to much of the evidence presented by the Crown in support of its charge and to the submissions by defence against those claims. [ 104 ] Under

section 264, the inquiry breaks down into four parts: 1. At the time of the murder, was Bradley engaged in any conduct that would constitute criminal harassment as is set out in section 264(2)? 2. If so, did Bradley know that Debbie was harassed or was he reckless as to whether or not she was harassed by such conduct? 3. Did Bradley have any lawful authority for such conduct? 4.

Did any such conduct cause Deborah Holmes, reasonably in all the circumstances, to fear for her safety or the safety of anyone known to her? [ 105 ] The latter issue entails an assessment of all of the circumstances, or the context in which any proscribed conduct by the accused at the time of the murder is to be viewed when considering whether it would be reasonable for Debbie to fear for her safety. [ 106 ] I have reviewed the evidence and, solely for the purpose of putting any of the accused’s conduct in context, I will list a number of past actions and statements by Bradley that I consider do have a bearing on the issue of the deceased’s state of mind up to and at the time of the murder.

This list includes various threats or acts of threatening conduct directed towards Debbie including threats in relation to Debbie which were verbalized to others including Gary, Lori, Raymond Rush, Sheila Warren and other tenants of 10 Mutch Drive. I refer to the following evidence, and all time frames are stated to be in relation to the day of the murder. - Three years before the murder - Bradley broke into another tenant’s apartment in Debbie’s apartment building demanding to know where Debbie was.

- Two years eight months before the murder - Bradley smashed through Debbie’s apartment building front and back glass doors with a hammer, resulting in a stay away order. - One year before - Mary Shaw was with Debbie when Barry called from jail and threatened to kill Debbie. - Within the 6 months before the murder - Bradley made statements to the effect that he took Debbie here, he owns her, she belongs to him; - 3 Months before - Barry used his van and chased Debbie in her car on University Avenue. - 2 Months before - Barry passed Debbie on the Hillsborough Bridge, made a u-turn, followed her and cornered her in her parking lot seeking to have a drink with her. - 2 months before - Barry told Lori in reference to Debbie “I’ve had enough.

I f---in’, f---in’, f---in’ hate her.” - Repeatedly in the few months before the murder Barry made statements to the effect that if Debbie didn’t pack up her stuff and move back in with him in one week, he’d kill her, and that Gary and Lori should get the spare bedroom ready because J.C. would need a place to live after he killed Debbie. - In a similar time frame Barry told Gary that “she’ll know it if I go up there, I could put a bulldozer through that building”. - One month before the murder - Barry told Lori to order Debbie’s casket.

He also told Lori that he would get off after he killed Debbie because he would plead insanity. - One Month before - Barry threatened Debbie at Gary’s apartment stating again that she had ten minutes to get her stuff and move back home. - At an unspecified time before the murder Barry told Gary that the hatchet he had in his van was for the purpose of killing Debbie. - Frequently in the time frame leading up to the murder Barry made statements to the effect that Debbie’s time is getting very, very short. - Frequently in the time leading up to the murder Debbie told Lori of Barry’s conduct including actions such as making frequent calls to her place of work, buzzing on her doorbell, or being in the next parking lot watching her. - Eight or nine days before the murder Barry called the landlord to say he was at the apartment to see Debbie and nothing would keep him out. - Seven to eight days before the murder Barry made a statement to Sheila Warren regarding putting paint thinner, a crowbar, or other items on Debbie’s car and that he knew that was foolish and he did foolish things; (I don’t refer to that statement as proof that he indeed did place those items on Debbie’s car, but I do accept Ms.

Warren’s testimony that he made that statement implying that he was involved, and I consider it only for the threatening conduct towards Debbie that is entailed in that statement by the accused.) - One week before Barry attended at her place of work at the Native Council and caused a ruckus.

- Two days before - Debbie told Tracey Bradley that Barry had threatened to kill her. - Less than two hours before the murder Barry was constantly pressing the buzzer for an extended period on the morning of July 1 st resulting in Debbie calling 911. - Minutes before the murder Barry smashed his way through the security doors and apartment doors and bedroom door carrying an axe and a hatchet and was making growling sounds. [ 107 ] It is my conclusion that there is overwhelming evidence to indicate that, considering all of the circumstances, Deborah Holmes was scared of Barry Bradley and lived in fear of him and in fear of her life or safety.

I reach this same conclusion even if I consider only those threats or actions directly involving Debbie. [ 108 ] The law relating to criminal harassment and the characterization of any death that ensues as first degree murder clearly applies only if Debbie’s death was caused while the accused was committing or attempting to commit an offence under

section 264 and he intended to cause Debbie to fear for her safety. While there is a great deal of evidence that would lead to the conclusion that Debbie feared Barry — indeed the evidence goes back three years — it is only the accused’s conduct at the time of the murder that is to be examined under this section. The limited caselaw there is with respect to coupling one offence with another offence makes it clear that there must be two distinct acts forming part of one transaction before a conviction would be imposed in respect of the coupled offence. (See R. v.

Paré , 1987 CanLII 1 (SCC) , [1987] 2 S.C.R. 618 (S.C.C.); R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA) , 157 C.C.C. (3d) 129 (Ont.C.A.)) For example, section 231(5) of the Criminal Code defines murder as first degree murder if it is committed while the accused is also forcibly confining the deceased person. So, as was stated in R. v. Kimberly , if an accused pushed his victim into an elevator and at the same time delivered a blow that proved to be fatal, the confinement and the murder do not arise from two different acts and the murder would not to be deemed to be first degree.

If however, the accused merely rendered the victim unconscious in the elevator, dragged the victim fifty feet down the hall and then committed murder, the confinement and the murder constitute two separate acts forming part of one transaction and the murder would be deemed to be first degree. [ 109 ] In this instance, the transaction we are dealing with starts with Barry’s arrival at the front door of Debbie’s apartment building at approximately 6:42 a.m. on July 1 st , 2001. He was carrying a large axe and a smaller hatchet and he opened the first unlocked door and entered the building.

He then began very noisily smashing the glass security doors and side panels and steel push bar with the axe waking many of the tenants in the building and causing them to call 911 and express fear for themselves and for Debbie. He then entered the building, went up the few stairs and into the hallway where he found apartment #8 where Debbie lived with her daughter J.C. Using the axe he took several blows to smash the apartment’s wooden door and entered the apartment. He then went down the hall to J.C.’s bedroom where the door was closed.

Again he struck the door several times with the axe breaking parts of the door and door frame. J.C. and Debbie were both screaming. Debbie was screaming Barry’s name and she was scared. Callers to 911 reported that they could hear the screams. J.C. said her father entered the doorway to her bedroom with his arms up over his head with his elbows bent so his hands were over his shoulders. She did not say he had anything in his hands. Defence counsel submits that this means he had set both the axe and the hatchet down at that point in time indicating that even then he had no plan to murder Debbie.

For the purpose of this analysis, I will accept that submission. J.C. fled the apartment. Barry then picked up both the axe and hatchet — both of which were found in the bedroom — and proceeded to brutally attack Debbie with one or both of those weapons while Debbie attempted to evade the attack and defend herself. He struck several severe blows to her head and neck causing her death. The transaction was then complete. [ 110 ] Separate and apart from the act of murder was there other conduct that falls within that listed in section 264(2) of the Code ? I have concluded that there was such conduct.

The context within which this crime occurred cannot be ignored. The evidence presents a picture of a woman who was living in a state of fear of her ex-husband. She was scared when she was at home, or at work, or out for an evening, or at her son’s place, or going to the store, or driving with her daughter. To use the words found in R. v. Sillipp (1997), 1997 ABCA 346 (CanLII) , 120 C.C.C. (3d) 384 (Alta.C.A.), she was “tormented, troubled, worried, plagued, bedevilled and badgered”. Barry was aware of his past threatening conduct towards Debbie.

He was aware that only an hour and three-quarters earlier she had called 911 for the purpose of having him removed from her apartment building. The defence argues that during the 911 call at 5 o’clock in the morning and during the conversation with Cst. Dawson shortly thereafter Debbie appeared calm and not scared. In that regard, I make the following observations. Firstly, those were not conversations she was having with Barry, the person of whom she was scared, but one was with 911 from what she perceived to be the safety of her own home, and the other was with an RCMP officer standing by her side.

Even at that, there is no rule book or formula that sets out how a woman living in fear of her ex-husband must act. When Barry Bradley smashed into her apartment with an axe, at minimum he was absolutely reckless as to whether or not she would be fearful for her life or safety, and in my opinion he knew she would fear for her life. And she did fear for her life as was testified to by her daughter J.C.

[ 111 ] Section 231(6) adds an additional element to those inquiries arising under

section 264 which goes beyond determining if the accused knew or was reckless as to whether his victim would feel harassed and did fear for her safety and imposes on the Crown the onus of showing that the accused “intended” to cause his victim to fear for her safety. Obviously there is no evidence of a clearly expressed intention at that moment to cause Debbie to fear for her safety.

However, I am satisfied that his intention in that regard can be inferred from his conduct and the surrounding circumstances, especially the fact that she had again engaged 911 and the police in an effort to keep him away from her. [ 112 ] The acts of threatening conduct sufficient to form the basis of a conviction of criminal harassment under section 264(2)(

d) were complete at the point in time at which Bradley stood in the bedroom doorway growling with his arms over his head. If he had left the apartment at that time, such as he had done when he previously smashed through the apartment building with a hammer, he would have been guilty of criminal harassment by engaging in threatening conduct directed towards Debbie Holmes that he knew would harass her and that did cause her to fear for her safety. In the context of their past encounters, Bradley’s conduct to gain entry constitutes torment that in and of itself is criminal harassment.

No lawful authority for such conduct was claimed by the defence and none arises from the evidence. [ 113 ] I accept the defence submission that he had nothing in his hands at this point in time. His harassing behaviour had not yet expanded to include any physical contact. In order to carry out the act of murder in the manner he

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