R. v. Iverson

2014 BCSC 2400 R. v. Iverson IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Iverson, 2014 BCSC 2400 Date: 20141119 Docket: 72319-2 Registry: Nanaimo Regina v. Robert James Iverson Before: The Honourable Mr. Justice Punnett Oral Reasons for Judgment Counsel for the Crown: C.D. Hagen B. McCormick Robert James Iverson: In Person Amicus Curiae: S.D. Taylor Place and Date of Trial: Nanaimo, B.C. September 30 to October 4, 2013 October 7, 10 & 11, 2013 October 15-17, 2013 June 23-26 & 30, 2014 July 2-11, 2014 September 22, to October 16, 2014 Place and Date of Judgment: Nanaimo, B.C. November 19, 2014 Introduction and Overview [1] THE COURT: On June 29, 2010 the body of 53-year-old Cheryl Lynn Sim was found in a shopping cart on a vacant lot in downtown Nanaimo, British Columbia. The accused, Robert James Iverson, is charged with the murder of Ms. Sim pursuant to s. 235 of the Criminal Code. It is alleged that Ms. Sim died while Mr. Iverson was committing or attempting to commit a sexual assault on Ms. Sim, thereby engaging the constructive first-degree murder provision under s. 231(5) of the Criminal Code. [2] There are no witnesses to the murder of Ms. Sim, hence the Crown seeks to prove the charge against Mr. Iverson by inference. The Crown's case has been a combination of scientific exhibits, inferences drawn from such exhibits and the testimony of various witnesses. The Crown argues that the cumulative effect of the evidence is sufficient to prove the guilt of the accused beyond a reasonable doubt. Procedural Background [3] I will first refer briefly to the procedural background. With the Crown's consent, pursuant to s. 473 of the Criminal Code, Mr. Iverson gave up his right to trial by judge and jury and chose to be tried by judge alone. He discharged his legal counsel before trial and refused to have counsel at trial, instead insisting upon representing himself. However, Mr. Iverson has done so by not participating in his defence: he has for the most part declined to cross-examine witnesses and has remained for much of the trial mute and unresponsive. He has repeatedly declined to get legal advice on issues as they have arisen. [4] The trial commenced on September 29, 2013 after the accused had been assessed and found fit pursuant to an order made earlier at a pre-trial conference. [5] At the outset of the trial the Crown made it clear that they would lead all possibly relevant evidence, both inculpatory and exculpatory. This included calling witnesses the Crown normally would not have elected to call. Additionally, Mr. Stephen Taylor was appointed by the court as amicus curiae. The Crown and Mr. Taylor agreed to and did alert the Court to any Charter issues to be addressed, and further, the amicus, having had full disclosure, brought to the attention of the Court any material inconsistencies he was aware of with respect to Crown witnesses and their out-of-court statements or otherwise arising from the Crown disclosure and he cross-examined where appropriate with respect to them. [6] The accused's refusal to actively participate in his defence did not apply to the issue of exhibit continuity and the admissibility of evidence on the voir dires. On this point, Mr. Iverson participated to the extent that he specifically refused to admit continuity and withheld consent to the admission of voir dire evidence on the trial proper. As a result the Crown addressed continuity in great detail and repeated voir dire evidence on the trial proper, substantially lengthening the trial. [7] During the first few weeks of trial, the accused stood and stared out of the window, at the ceiling, or at the rear of the courtroom. When addressed by the Court, Mr. Iverson sometimes turned his back on the Court. As a result of this and a determination that the earlier fitness assessment had been ordered in violation of s. 672.24 of the Code (as Mr. Iverson was not represented by counsel at the time), an appointment of counsel was made by the Court and a further fitness assessment ordered. After 60 days of forensic examination in which Mr. Iverson refused to participate, a forensic psychiatrist, Dr. LeeAnne Meldrum, provided her assessment of the accused, but was unable to provide a conclusive opinion of Mr. Iverson's fitness for trial. [8] Due to the lack of a medically definitive opinion, I ordered that the issue of fitness be tried pursuant to s. 672.23 of the Code. At the conclusion of that hearing, I found the accused fit for trial for the reasons reported at 2014 BCSC 627. [9] The trial then continued on June 23, 2014. On the first day of the continuation Mr. Iverson spoke. He has since then, for the most part, responded to inquiries from the Court respecting whether he wishes to cross-examine witnesses and various other matters. He briefly cross-examined one witness on the issue of identity. Law Issues [10] The issues are as follows: a) Did the accused cause the death of Cheryl Lynn Sim by means of an unlawful act? b) Did the accused mean to cause the death of Ms. Sim or mean to cause her bodily harm that he knew was likely to cause death and was reckless whether death ensued or not? c) Did the accused cause Ms. Sim's death in the course of committing or attempting to commit a sexual assault of Ms. Sim? d) Was the accused intoxicated to the extent that he lacked the necessary intent to commit murder? e) Do any other defences arise on the facts and, if so, do they raise a reasonable doubt as to the guilt of the accused? Circumstantial Evidence [11] As the Crown acknowledges, the case against Mr. Iverson is based on circumstantial evidence. In considering circumstantial evidence, all of the evidence is to be considered as a whole and not as a series of separate items: see Stewart v. The Queen, [1977] 2 S.C.R. 748 at 759. To find that such evidence is proof of guilt beyond a reasonable doubt, this must be the only reasonable inference that can be drawn from the facts proven: see R. v. Cooper, [1978] 1 S.C.R. 860 at 881. [12] Helpful commentary on circumstantial evidence and the inferences supported by such evidence can be found in Watt's Manual of Criminal Evidence, 2013. Watt defines circumstantial evidence as any evidence, other than the testimony of an eyewitness, "from the existence of which the trier of fact may infer the existence of a fact in issue" (p. 46). Watt emphasizes the importance of distinguishing between inference and speculation when dealing with circumstantial evidence, describing the former as "a deduction of fact that may logically and reasonably be drawn" from the proven facts. Speculation, on the other hand, arises where a conclusion is deduced without positive proven facts to support it. [13] In R. v. Ngo, 2009 BCCA 301, the British Columbia Court of Appeal provided a concise review of the law governing circumstantial evidence in criminal trials. The Court there noted that it was not appropriate to consider each individual circumstance in isolation, but rather is to determine whether "all the evidence, taken together, establishes the guilt of the accused and is inconsistent with any other rational conclusion". With respect to competing inferences that may arise from circumstantial evidence, the Court explained that the mere existence of a "slightest competing possibility" does not preclude a trier of fact from reaching a conclusion of guilt. [14] In R. v. Defaveri, 2014 BCCA 370, the British Columbia Court of Appeal reminds us that in assessing circumstantial evidence, the burden is on the Crown. The accused does not have to establish facts from which inferences inconsistent with guilt can be drawn. Rather, the question of whether there is a reasonable doubt as to the guilt of the accused is to be assessed on the totality of the evidence, not simply on the proven facts. [15] Where identity is in issue, the rule in Hodge's Case (1838), 2 Lewin 227, 168 E.R. 1136, applies, such that the circumstances must be consistent with the accused having committed the act and inconsistent with any other rational conclusion. The application of that formula assists in applying the standard of proof beyond a reasonable doubt: see Cooper at 881. Similarly, in R. v. Benham, 2008 BCSC 1531, aff'd at 2013 BCCA 276, Madam Justice Fisher made the following comments concerning circumstantial evidence as evidence of opportunity: [12] Where the circumstantial evidence incriminating an accused is primarily evidence of opportunity, it must be exclusive opportunity. This is because guilt is not the only rational inference which can be drawn unless the accused had exclusive opportunity. However, where there is other inculpatory evidence, something less than exclusive opportunity may be sufficient: [Citations omitted] [16] Finally, I note in this case there is no evidence of motive for the killing, circumstantial or otherwise. Motive is not an element of the offence charged, but it does mean the Crown cannot point to a motive in support of the charge: see R. v. Paul, 2011 BCCA 46 at paras. 67-68. [17] With the law governing circumstantial evidence in mind, I now intend to review briefly the issue of exhibit continuity. Continuity of Exhibits [18] As noted earlier, Mr. Iverson did not admit continuity of exhibits. Mr. Justice Romilly summarized the law on continuity in R. v. Adam et al, 2006 BCSC 1430. While Adam was a narcotics‑related case, the principles apply equally here, particularly with respect to the DNA evidence. Mr. Justice Romilly noted in Adam that "proof of continuity is not a legal requirement and that gaps in continuity are not fatal to the Crown's case unless they raise a reasonable doubt about the exhibit's integrity." Mere speculation that an exhibit "might have been interfered with," in the absence of any evidence to suggest such interference, does not raise a reasonable doubt as to the integrity of an exhibit (para. 15). [19] A meaningful gap in continuity arises only where there is a reasonable apprehension arising from the evidence that the exhibit has been altered in condition or interfered with between seizure and analysis (para. 18). Further, such evidence may still be admissible with the continuity issue merely going to the weight to be afforded such evidence. On this point, Romilly J. observed that "[t]he weaker the evidence regarding continuity and the stronger the evidence suggesting contamination, the lower the weight that should be given to the drug exhibit or analysis thereof." (para. 19). [20] As Mr. Iverson has not admitted continuity, the analysis outlined above must be applied to the exhibits in this case. Post-Offence Conduct [21] In R. v. Turcotte, 2005 SCC 50, the Court noted that this is a legal term of art which refers to a specific type of circumstantial evidence. This term does not encompass all behaviour by the accused in the aftermath of an alleged offence, but rather relates only to the conduct which is "probative of guilt" (para. 37). Such conduct may include among other actions flight from the scene of a crime, lies to the police, and disposing of evidence. [22] Post-offence conduct may be probative of guilt where, based on human experience and logic, the actions of the accused following the alleged offence are "consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent" person: see R. v. Peavoy (1997), 34 O.R. (3d) 620 (C.A.). However, such conduct may be susceptible to competing interpretations, some of which are consistent with guilt and others not. It is a matter for the trier of fact to determine whether, in light of all the evidence, the post-offence conduct in question "is consistent with guilt and inconsistent with any other rational conclusion.": see R. v. White, [1998] 2 S.C.R. 72 at para. 21. [23] While an inference of guilt may be drawn from post-offence conduct, this is an exercise that must be approached with caution as such evidence is of limited probative value and subject to certain frailties. In particular, the Court recognized in White that post-offence conduct is "highly ambiguous" where it is adduced to support an inference of the accused's "consciousness of guilt" (para. 22). [24] In White, the Supreme Court of Canada held that where the accused's conduct cannot be attributed to the offence being tried, rather than some other offence "the evidence of post-offence conduct may still be used by the jury for other purposes where appropriate, for example to connect the accused to the scene of the crime or to a piece of physical evidence, or to undermine the credibility of the accused generally." The mere fact that there are other explanations consistent with post-offence conduct does not mean that such evidence should be rejected or is robbed of all probative value. Rather, the correct interpretation of the evidence, that is whether it is consistent with guilt or some other explanation, is a matter for the trier of fact to determine (White, para. 27). [25] The overarching tenor of the jurisprudence respecting the use of post-offence conduct advises caution. For instance, as noted in R. v. Campbell (1998), 122 C.C.C. (3d) 44, a decision of the British Columbia Court of Appeal, there may be "a host of reasons why people may do stupid things after being involved in a traumatic experience". Thus, post-offence conduct should rarely be invoked as proof of guilt. Where the Crown's case "is so tenuous that this sort of evidence must be relied upon, it is in many instances not much of a case" (para. 23). On the other hand, many of the issues respecting post-offence conduct concern potential errors made by the jury, a circumstance which does not apply to Mr. Iverson as he is being tried by a judge sitting alone. [26] Nevertheless, careful scrutiny is necessary to ensure that only reasonable inferences are drawn from the post-offence conduct attributed to Mr. Iverson by the Crown. That is particularly so where the Crown wishes to use post-offence conduct in order to establish a specific level of culpability for the act in question, a purpose for which some evidence may have but limited probative value. Specifically, the Crown submits that both the killing of Ms. Sim and the replacement of her clothes after death are post-offence conduct designed to conceal Mr. Iverson's sexual assault of Ms. Sim. In White, the Court conceded that it is "possible to imagine cases in which post-offence conduct could logically support a distinction between two levels of culpability for a single act" (para. 32). This would be the case where, for instance, the post-offence conduct is out of proportion to one level of culpability but not the other. Sexual Assault [27] The Code does not directly define sexual assault. Rather, the elements of that offence are determined by reference to s. 265, which defines the offence of assault, in conjunction with the requirement that the offence be committed "in circumstances of a sexual nature, such that the sexual integrity of the victim is violated": (R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para. 24). Section 265(1) of the Code provides as follows: 265. (1) Assault -- A person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; (b) he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs. (2) Application -- This section applies to all forms of assault, including sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm and aggravated sexual assault. (3) Consent -- For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of (a) the application of force to the complainant or to a person other than the complainant; (b) threats or fear of the application of force to the complainant or to a person other than the complainant; (c) fraud; or (d) the exercise of authority. [28] In Ewanchuk, Mr. Justice Major for a majority of the Supreme Court of Canada described the actus reus of sexual assault as follows: 25 The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused's actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour. [29] Respecting the third element of the actus reus of sexual assault, the absence of consent on the part of the victim, the majority in Ewanchuk noted that this element is subjective and must be determined "by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred." In this context, "consent" means that the complainant wanted the sexual touching to occur, while the "absence of consent" rests on the contrary position. [30] The majority in Ewanchuk further discussed the precise nature of the Crown's burden regarding the absence of consent. Of particular importance is the Court's observation that the complainant's testimony is the "only source of direct evidence as to her state of mind" (para. 29). However, the credibility of an assertion of non-consent to touching must still be assessed in light of all of the evidence, and in particular the Court must examine "whether the totality of the complainant's conduct is consistent with her claim of non-consent" (para. 30). [31] Therefore, to obtain a conviction for sexual assault, the Crown must prove beyond a reasonable doubt that the complainant did not in her own mind consent to the sexual contact in question. Where the victim of an alleged sexual assault is alive, absence of consent is "usually determined by reference to the victim's internal state of mind towards the touching at the time it occurred" (Ewanchuk, paras. 25-26). The only conceivable direct evidence of that subjective state of mind would be the victim's own testimony which is not available where the victim is deceased. However, in a homicide case, the absence of consent may be determined by circumstantial evidence such as the state of undress of the body, the condition of the clothing and injuries sustained before death. See, for example, R. v. Stevens (1984), 11 C.C.C. (3d) 518, a decision of the Ontario Court of Appeal, and also Benham, previously referred to. [32] As Ms. Sim cannot speak to whether she consented to sexual contact with Mr. Iverson at the relevant time, the Crown sought to discharge its burden in this regard through circumstantial evidence of Ms. Sim's non-consent. Thus, Mr. Iverson is only guilty of sexually assaulting Ms. Sim for the purposes of s. 231(5) of the Code if her non-consent to sexual contact at the relevant time is the only reasonable inference that can be drawn from the circumstantial evidence. [33] Turning to the mens rea for sexual assault, this is a general intent offence. Accordingly, the Crown must prove that the accused intended to touch the complainant and that he knew of, or was reckless or wilfully blind to, the victim's lack of consent to the touching (Ewanchuk, para. 42). [34] In summary, to prove that a sexual assault occurred the Crown must prove, beyond a reasonable doubt, in addition to identity and time and place as described in the indictment, the following elements: a) That Mr. Iverson applied force to Ms. Sim; b) That Mr. Iverson intentionally applied the force; c) That Ms. Sim did not consent to the force that Mr. Iverson applied; d) That Mr. Iverson knew or was reckless or wilfully blind to Ms. Sim's non-consent to the force that Mr. Iverson applied; and e) That the force that Mr. Iverson applied took place in circumstances of a sexual nature. Murder and Manslaughter [35] A person commits homicide when, directly or indirectly, by any means, he or she causes the death of a human being. Homicide is culpable where death is caused by means of an unlawful act: see s. 222 of the Criminal Code. Culpable homicide is murder where the person who causes the death of a human being either means to cause the death or means to cause bodily harm that he or she knows is likely to cause death and is reckless whether death ensues or not, as provided in s.229 of the Code. As a result, a charge of murder is sustainable only upon proof of the mens rea of the subjective foresight of death. [36] To convict Mr. Iverson of the murder of Ms. Sim, the Crown must prove the following elements beyond a reasonable doubt: a) That Mr. Iverson is identified as the offender; b) The time and place of the offence as stated in the indictment; c) That Mr. Iverson caused the death of Ms. Sim; d) That he did so by means of an unlawful act; and e) That either Mr. Iverson meant to cause the death of Ms. Sim or meant to cause her bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. [37] The Code provides that murder can be either first-degree or second-degree. In this instance, the Crown alleges that Ms. Sim was murdered in the course of being sexually assaulted contrary to s. 271 of the Code. That factor elevates the charge faced by Mr. Iverson to first-degree murder by way of s. 231(5)(b) of the Code. [38] As explained in R. v. Pritchard, 2008 SCC 59 "Section 231(5) reflects Parliament's sentencing policy to treat murders committed in connection with crimes of domination as particularly blameworthy and deserving of more severe punishment. The phrase "while committing or attempting to commit" "requires the killing to be closely connected, temporally and causally, with an enumerated offence" (para. 19). However, the killing and the crime of domination do not have to take place at the same time, but rather must be part of a "single transaction". As explained by Madam Justice Wilson in R. v. Paré, [1987] 2 S.C.R. 618: 34 Refining then on the concept of the "single transaction" referred to by Martin J.A. in Stevens, supra, it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder. The murder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a "single transaction". This approach, in my view, best gives effect to the philosophy underlying s. 214(5). [39] This issue was also discussed in Benham. There the Court noted that for s. 231(5) of the Code to apply, the Crown must establish "that the killing occurred as part of a continuing series of events constituting a single transaction". The "single transaction" requirement does not oblige the Crown to prove that the death and underlying offence designated under s. 231(5) occurred simultaneously, but rather merely that these events were closely connected temporally and causally (para. 8). Accordingly, for Mr. Iverson to be convicted of first-degree murder, the Crown must prove that Mr. Iverson murdered Ms. Sim, and also the killing occurred as part of a course of conduct closely, temporally, and causally connected with an attempted or completed sexual assault of Ms. Sim. If sexual assault is not proven or did not arise as part of the same transaction as the killing, Mr. Iverson can only be convicted of second degree murder or manslaughter. [40] To secure a conviction for murder, the Crown must prove beyond a reasonable doubt that the accused had the specific intent to kill Ms. Sim, and by that I mean prove that the accused "acted with substantive foresight to the consequences of his conduct," as merely objective foresight of the consequences does not suffice: see R. v. Reeves, 2012 BCCA 98 at para. 10. [41] Proof of subjective foresight of death requires consideration of all the circumstances and the drawing of inferences including the common-sense inference that a sane and sober person intends the consequences of his conduct. However, reference to the "sane and sober" person is not necessary as a consideration that the "person usually knows what the predictable consequences of his or her actions are and means to bring them about" will suffice: see R. v. Walle, 2012 SCC 41 at para. 64. [42] The mere possibility that an accused could have lacked intent to kill is not sufficient to preclude a trial judge from relying on the "common-sense" inference of intent: see R. v. Walle 2010 ABCA 384 para. 12. [43] Finally, if the requisite intent cannot be proven by the Crown, a conviction for manslaughter can be sustained if the actus reus is established in addition to proof of the requisite mental element, that is "objective foreseeability of the risk of bodily harm which is neither trivial nor transitory in the context of a dangerous act." As held in R. v. Kahnapace, 2010 BCCA 227, foreseeability of the risk of death is not required to sustain a conviction for manslaughter (para. 28). Intoxication [44] There are circumstances, including intoxication, which cast doubt on whether one can safely rely on the common-sense inference, (that is that a person usually intends the consequences of their acts), and thereby raise a reasonable doubt as to whether the accused had the necessary specific intent to commit murder. In such circumstances, the defence of intoxication may operate so as to reduce a charge of murder to manslaughter: see R. v. Daley, 2007 SCC 53 at para. 40. [45] In Daley, the Supreme Court of Canada identified three legally relevant states of intoxication, of which the second is the most relevant here. The first state, "mild" intoxication, arises where alcohol merely induces a state of disinhibition on the part of the intoxicated party. Intoxication to this degree does not negate mens rea, nor is it relevant in determining whether the accused possessed the requisite mens rea. The third state of intoxication described in Daley involves "extreme intoxication akin to automatism." Such intoxication negatives the voluntariness of the actions of the accused and thereby operates as "a complete defence to criminal responsibility." (para. 43). The Court noted that any such defence would be rare and, in any event, unavailable for offences that involve "assault or any other interference or threat of interference by a person of the bodily integrity of another," per s. 33(1) of the Code, (para. 39). [46] The second state described in Daley, that of advanced intoxication, applies where the accused is impaired in his or her foresight of the consequences of his or her actions, such that he or she did not or could not form the specific intent contemplated by the mens rea for the offence charged (para. 41). The Court noted that where death is the "obvious consequence" of the accused's actions, only a particularly advanced degree of intoxication will assist the accused: [42] It is important to recognize that the extent of intoxication required to advance a successful intoxication defence of this type may vary, depending on the type of offence involved. This was recognized by this Court in Robinson, at para. 52, in regards to some types of homicides: [I]n cases where the only question is whether the accused intended to kill the victim while the accused is entitled to rely on any evidence of intoxication to argue that he or she lacked the requisite intent and is entitled to receive such an instruction from the trial judge (assuming of course that there is an "air of reality" to the defence), it is my opinion that intoxication short of incapacity will in most cases rarely raise a reasonable doubt in the minds of jurors. For example, in a case where an accused points a shotgun within a few inches of someone's head and pulls the trigger, it is difficult to conceive of a successful intoxication defence unless the jury is satisfied that the accused was so drunk that he or she was not capable of forming an intent to kill. Although I would hesitate to use the language of capacity to form intent, for fear that this may detract from the ultimate issue (namely, actual intent), the point of this passage, it seems to me, is that, for certain types of homicides, where death is the obvious consequence of the accused's act, an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication defence of this type. [47] The nexus between actions of an accused and the ability to foresee the consequence of those actions is illustrated in R. v. Cassan, 2010 MBQB 241, aff'd at 2012 MBCA 46. There the deceased had been stabbed "at least 22 times". In light of the number of wounds and the areas in which they were inflicted, the Court found that it was "difficult to conceive how an individual would not have the foresight with respect to the consequences." The number of wounds alone was construed as persuasive evidence that the accused intended to kill the deceased (para. 352). [48] Similarly, in R. v. Vukaj, 2012 BCSC 1396, the Court noted that the nature of the accused's conduct was capable of sustaining inferences as to the accused's state of mind in committing the offence (para. 342). Thus, an intoxicated person would realize "that pointing a loaded gun at someone's temple or chest and pulling the trigger is going to result in killing them" (para. 343). On the other hand, an intoxicated person involved in a bar fight might not foresee that a single kick to the head would cause the victim to die (para. 344). At para. 346 of Vukaj, the Court referred to the following factors which may be useful in determining the mental state of the accused: [346] Accordingly, absent a direct expression of intention, the mental element of attempted murder -- namely, the intention to kill -- may be inferred from the totality of the facts, including the nature of the weapon, the extent of its use, the manner in which it is used on the victim, the area of the victim's body that is attacked, the results of the attack and any other surrounding circumstances that may form strands in the process of inference leading to a conclusion on the question of intention. [49] In Vukaj, the accused asserted that he did not have the specific intent to kill, because he was intoxicated at the time of the attack at issue in that case. The attack involved the accused "using both hands to swing a metal stick-like object repeatedly at the complainant's head" (para. 361) and involved significant force wielded against a person known to the accused. The circumstances of the attack were described by the trial judge in the following terms: [362] This was not a single blow in the midst of a bar fight with a stranger, when the blow just happened to hit the victim's head. Rather, these were three very focussed and successive blows using a metal bar against the head of a person the [accused] knew to be his estranged wife. These blows were so focussed that they landed on her head despite her attempt to get away and defend herself. The accused had the physical ability and mental clarity to not only hit her, but to hit her very hard and in a very directed and persistent way on the most vulnerable part of her body, her head, with a weapon, even hitting her after her head was bloody. He continued until she passed out, lying on the bathroom floor apparently lifeless, where he left her. [50] Accordingly, the Court in Vukaj held that it would "take a very high degree of intoxication", indeed approaching a level of automatism, for one to fail to appreciate that such actions would result in death (para. 363). Facts Background [51] As I noted in my introduction, on June 29, 2010 Cheryl Lynn Sim's lifeless body was discovered in a shopping cart on a vacant lot in downtown Nanaimo. That location is referred to as the "Vacant Lot Site". The Crown alleges that on June 28, 2010, Mr. Iverson sexually assaulted and murdered Ms. Sim at a nearby place, a location referred to as the "Big Tree Site". According to the Crown, Mr. Iverson then placed Ms. Sim's body into a shopping cart which he wheeled to the Vacant Lot Site where he left it. [52] Ms. Sim was born October 3, 1956 and was 53 years of age at the time of her death. She was 61 inches tall and weighed 115 pounds. She had a significant alcohol problem. [53] Mr. Iverson is in his late forties, he is 5' 10" or 5' 11" tall and weighs between 180 and 200 pounds. He also suffered from a significant alcohol addiction, and at the time of Ms. Sim's death he was residing on the streets of Nanaimo. The Big Tree Site [54] The Big Tree Site is a small wooded area located behind two apartment buildings on Comox Avenue in downtown Nanaimo. In June 2010 it was defined by a retaining wall behind the apartment buildings on one side and the Nanaimo Greyhound Bus Depot parking lot and access road on the other sides. There is a large evergreen tree on the site, the branches of which are sufficiently high off the ground to create a sheltered area beneath the tree. Vegetation provides some privacy. At the time of Ms. Sim's death, Mr. Iverson was camping at this site. The Vacant Lot Site [55] The Vacant Lot Site is an empty lot approximately 300 metres from the Big Tree Site. It backs onto a retaining wall, behind which are apartment buildings. There are trees and bushes near the area where Ms. Sim's body was found on that lot. Tamara Debeck [56] Tamara Debeck, then a resident of one of the Comox Avenue apartments behind the Big Tree Site, testified that in the middle of the week before June 29, 2010 an individual who introduced himself as Robert came out of the big tree area. Robert explained that he was living in the bush. The next day, Ms. Debeck encountered Robert again and gave him two blankets (a two-tone blue quilt and a green electric blanket with a white cord). The day following she gave him a flashlight, a cup and some food. She said he returned the flashlight and cup to her. She provided a description of this person that was consistent with the accused's appearance, including a reference to large, bulky men's rings on his fingers. She identified Robert as the individual in the dock at trial. [57] Ms. Debeck noted that in the area under the big tree there was a couch with tan-coloured cushions on it, as well as some garbage and beer cans. She also testified that there was a green Save-On-Foods shopping cart in the parking lot under her window. That cart had been there when she moved in two years earlier and had flooring tiles in it. After she heard about the body of a woman being found in a shopping cart, Ms. Debeck noted that the cart was no longer beneath her window and that the flooring tiles had been piled on the ground where it had been. Rodney Clarkson [58] At the time of Ms. Sim's death, Mr. Clarkson resided in an apartment near the Big Tree Site. During the evening of June 28, 2010 Mr. Clarkson testified that he saw a male sitting on a futon couch under the big tree. He recognized this person from a previous encounter at the Salvation Army's New Hope Centre and had also seen that individual in the area on other occasions. At trial, Mr. Clarkson identified this person as Mr. Iverson. [59] Mr. Clarkson testified that Mr. Iverson was not alone on the evening of June 28, but rather was in the company of a girl. This person was sitting on the futon with Mr. Iverson, giggling and laughing with him. On cross-examination, Mr. Clarkson stated the girl appeared to be happy. Mr. Clarkson identified this person as Ms. Sim, having recognized her from a memorial picture of the deceased. [60] Additionally, Mr. Clarkson stated that he had seen a green shopping cart near the Big Tree Site. Mr. Clarkson last saw Mr. Iverson when the latter was walking past the former's apartment around 3:00 a.m. on the morning of June 29, 2010. At the time, he noted that Mr. Iverson had a rolled-up umbrella in his hand. Sylvain Faucher [61] Mr. Faucher testified that at the time of Ms. Sim's death he had known her for approximately three years. They were previously romantically involved, although that relationship had ended and she had a new boyfriend at the time of her death. The two had remained friends however and would see each other each morning for breakfast at the "7-10 Club", a shelter that provides breakfast to those in need. [62] On June 28, 2010, Mr. Faucher saw Ms. Sim at breakfast in the company of her new boyfriend, Ron Cowgill. After their repast, the three of them purchased two bottles of sherry and drank them. Mr. Cowgill left them later that day. Mr. Faucher went with Ms. Sim to an area he called the "Campsite". This is a third wooded area not far from the Big Tree Site and the Vacant Lot Site. There the two slept and had intercourse. Around 4:00 or 5:00 p.m. that afternoon they decided to go downtown to panhandle in order to fund a further purchase of alcohol. [63] At the time, Ms. Sim was wearing blue jeans, two black-coloured coats and a red shirt. She was not wearing underwear and Mr. Faucher testified that Ms. Sim did not usually wear underwear. She also wore a necklace and earrings given to her by Mr. Cowgill. [64] As Mr. Faucher and Ms. Sim were walking in the direction of the Tally-Ho Beer and Wine store, they encountered another individual at the Big Tree Site. This person, known to Mr. Faucher as "Bob", invited them to have a drink. Mr. Faucher did not know Bob's last name, and said that he and Bob had consumed alcohol together at various locations in Nanaimo over the past two or three years. [65] In the courtroom, Mr. Faucher identified Mr. Iverson as the person he knew as "Bob". He added that Mr. Iverson's hair had been longer and his beard smaller in June 2010. Mr. Faucher also confirmed that he had identified Mr. Iverson at the preliminary inquiry, at which time Mr. Iverson did not have a beard. [66] Ms. Sim and Mr. Faucher joined Bob under the big tree. Ms. Sim gave Mr. Faucher the two earrings she had been wearing as they were hurting her ears. Mr. Iverson and Ms. Sim sat on the futon and Mr. Faucher sat on a concrete block. There were two blankets on the futon, one blue and one red. Another male unknown to Mr. Faucher was also present. They all drank Fireball Whiskey from a 26-ounce bottle that was about three-quarters full on their arrival. [67] Mr. Faucher testified that he left the big tree site around 8:00 p.m. that evening. Ms. Sim did not leave with Mr. Faucher as she did not wish to do so. Mr. Iverson and the other male remained with Ms. Sim, who was getting drunk. When Mr. Faucher left, he noted that Ms. Sim was still sitting on the futon but had removed her coats. The bottle of Fireball Whiskey was empty. He stated that everyone had been getting along that evening. [68] Mr. Faucher said that he had not observed any discussions of a sexual nature with Ms. Sim that evening. He had never seen her alone with Mr. Iverson before. Mr. Faucher estimated that he and Ms. Sim had been at the Big Tree Site for at least three or four hours and that each of them had, during that time, consumed approximately five ounces of alcohol. He said that everyone at the Big Tree Site that evening was drunk. In particular, he said that Mr. Iverson was a little bit drunk, though coherent, while Mr. Faucher himself was pretty drunk. Mr. Faucher never saw Ms. Sim again after leaving the Big Tree Site on the evening of June 28. [69] The next morning, Mr. Faucher went to the 7-10 Club for breakfast. Mr. Cowgill was present but Ms. Sim was not. Mr. Faucher went to look for her at the Campsite they had visited the afternoon previous, only to discover the police were in the area which they had cordoned off with yellow police tape. It was then that Mr. Faucher learned that a woman's body had been found. [70] Mr. Faucher did not encounter Mr. Iverson again until a couple of days later when they met on a sidewalk on July 2, 2010. The two of them purchased a bottle of sherry and went to a mall known as Heritage Mews to drink. He asked the accused what had happened the night of June 28 and more specifically "where's Cheri", in reference to Ms. Sim. Initially the accused responded, "I don't know what you're talking about." Mr. Faucher persisted and asked again, "What happened to Cheri? Where's Cheri?" This time, the accused responded "I don't want to talk about it. It's disgusting," and "look in my eye, I'm sorry." Mr. Faucher said he then asked, "sorry for what?" to which Mr. Iverson did not reply. [71] Three young women then joined them: Shelby Cates, Logan Foster and Brooklyn Horsland. Mr. Iverson persisted in refusing to answer Mr. Faucher's questions about Ms. Sim, saying that he did not want to talk about that. When Mr. Iverson did finally speak he merely said "I am sorry." When asked what he was sorry for, Mr. Iverson simply repeated he was sorry. Mr. Faucher described the accused as nervous and afraid during this conversation. [72] Mr. Faucher and the young women indulged in marihuana and beer. The group remained at Heritage Mews for a couple of hours. Ms. Logan took photos of the group using her cellular phone's camera. At some point Ms. Horsland called a friend, Dillon Dilworth, to come and pick them up in his vehicle. Mr. Dilworth arrived and joined the group. He did not drink any alcohol or use any marihuana. He for the most part sat near Mr. Iverson and spoke with him. [73] Sometime thereafter, the girls left with Mr. Dilworth. Mr. Faucher testified that when he left, Mr. Iverson followed him and said he wanted to talk. Mr. Iverson then told Mr. Faucher, "if you rat on me, I'm going to dislocate your arms and kill you." Ron Cowgill [74] Mr. Cowgill testified that on the morning of June 28, 2010 he and Ms. Sim headed out bottle hunting about 5:00 a.m. After approximately four hours in that pursuit, they went to Tally-Ho Beer and Wine where they purchased two bottles of Andres Sherry. Mr. Faucher and several others at a nearby bridge then joined the pair. They consumed the sherry and then moved under the bridge. Ms. Sim became drunk and got out of hand. Around 1:00 p.m. Mr. Cowgill left her in the care of Mr. Faucher with instructions to her that she should come back to his hotel and he would pay for her cab fare. That was the last time he saw her. Paul Surrette [75] Mr. Surrette was a witness at the preliminary inquiry on April 4, 2012. He died on January 11, 2013. His evidence was admitted at trial pursuant to s. 715 of the Criminal Code. [76] Mr. Surrette knew the accused as they both previously visited the same men's shelter. He also identified Mr. Iverson at the preliminary inquiry. Mr. Surrette was the person unknown to Mr. Faucher who was present at the Big Tree Site on the evening of June 28, 2010. [77] In his evidence, Mr. Surrette stated on the night in question he had joined Mr. Iverson at the big tree. At some point thereafter Mr. Faucher and Ms. Sim had joined them. They all drank from the bottle of Fireball Whiskey. [78] Mr. Surrette recalled that Ms. Sim wanted to drink every, as he put it, "couple of minutes". He testified the accused had picked her up off Mr. Faucher's knee and put her on the futon, and said something to the effect that, "if I put -- if I put her on the chesterfield and put her legs out nice and straight, it'll be easier to get at her." Mr. Surrette described this as a rude and derogatory comment. He stated that he did not really drink but may have had a sip of the Fireball Whiskey. [79] In Mr. Surrette's recollection, Mr. Faucher was the first to leave the group under the big tree that evening. After Mr. Faucher's departure Mr. Surrette remained under the big tree for another 15 or 20 minutes. When Mr. Surrette left, the accused was sitting on the futon beside Ms. Sim. He said that Ms. Sim was pretty loaded and that she was "hitting the bottle pretty hard" and she was sort of "flopping around a little bit" like a "mackerel out of water." [80] Mr. Surrette had seen Mr. Iverson drinking alcohol with another individual earlier that day. It was Mr. Surrette's observation that, while the accused had a "buzz on" on the evening of June 28, he was nevertheless in control. Mr. Surrette explained that having a "buzz on" meant that Mr. Iverson was getting drunk. He noted that Mr. Iverson was using an umbrella as a cane to steady himself. Like Mr. Faucher, after he left the Big Tree Site that evening, Mr. Surrette never saw Ms. Sim again. Roy Robinson [81] Mr. Robinson testified that in June 2010 he lived in an apartment adjacent to the Big Tree Site. On June 28, 2010 around 8:00 a.m. Mr. Robinson had been walking his dog in the area and noticed that there was a futon under the big tree with someone sleeping on it. In describing that person Mr. Robinson said that the individual had black hair, a beard, was Caucasian, around 50 years of age, "looked like a drinker" and was "a big guy". Additionally, Mr. Robinson observed that the futon frame had cushions on it which looked like pieces of foam cushions from a couch from which the covers had been removed. He said the sleeping individual was in a two-tone sleeping bag that was a lighter blue on the outside and a darker blue on the inside. Mark Tonack [82] Mr. Tonack is a 54-year-old who has fallen on hard times. He holds an honours undergraduate degree in cultural anthropology from the University of Victoria and a masters degree in anthropology from the University of Toronto. He was employed for about 18 years as a research scientist and was married with two children. Unfortunately, he developed an addiction to alcohol that resulted in him becoming homeless. He was, however, articulate and careful when giving his evidence. I found him to be credible and honest in his evidence, much of which was confirmed by other evidence presented at trial. [83] Mr. Tonack testified that on June 28, 2010 around suppertime he bought a bottle of Olde English malt liquor from Tally-Ho Beer and Wine. This is confirmed by surveillance video retrieved from the store. He then walked to the Vacant Lot Site around 8:00 p.m. where he set up camp. He drank some of the malt liquor, saving the remainder for the next morning and settled down for the night. [84] According to Mr. Tonack, he was awakened at 3:00 or 4:00 a.m. on the morning of June 29, 2010 by the sound of someone coming into the lot. He saw an individual pulling a grocery cart and talking to himself as he did so. This person was approaching the area where Mr. Tonack was sleeping. Mr. Tonack called out to the person, who stopped and became agitated. The individual seemed surprised to find him there and stated, "you are not supposed to be here, nobody is supposed to be here. I am here to drop the body off and you shouldn't be here." He repeated this. Mr. Tonack said that this person was a big guy, that he had a stick and that he seemed nervous. The shopping cart appeared to be full of blankets and had a sleeping bag on top. Mr. Tonack did not see a body in the cart at that time. [85] The individual shook hands with Mr. Tonack and asked him if he wanted to be his friend. Mr. Tonack told him "sure", and the individual became less anxious. The individual with the shopping cart asked if he could have a drink of the malt liquor. Mr. Tonack was reluctant to share it, but the individual became upset, so he handed it to him. He said the individual guzzled the malt liquor then dropped the bottle to the ground. Mr. Tonack picked the bottle up and threw it into the trees at the back of the lot. The individual then asked if he wanted to see the body in the cart, but Mr. Tonack declined. Mr. Tonack then began packing up his belongings to leave. [86] Mr. Tonack did not recognize the accused in Court as the individual he had spoken to in the early hours of June 29, 2010 although his physical description of the individual with the shopping cart fit the accused. [87] In Mr. Tonack's recollection, the individual he encountered that morning did not appear to be intoxicated, although it did cross his mind that this person might be using drugs. He did not recall any odour of alcohol emanating from the individual. The individual was not weaving around and was neither laid back nor more antagonistic, which Mr. Tonack said was more characteristic of someone drinking. [88] Mr. Tonack then walked down the path with the individual, who told him he needed to be careful and that he was not to say anything to anyone and everything would be okay. Mr. Tonack then left the individual, found a place to sleep in a nearby sports field and remained there until early morning. [89] Having reflected upon this encounter, Mr. Tonack decided that he had best go back to the Vacant Lot Site to see if there was in fact a body in the cart. He did so around 7:00 a.m. He lifted the blanket and saw a person's hand and the shape of a body. He thought about going to the police but instead walked towards the waterfront. He returned to the Vacant Lot Site around 10:00 or 10:30 a.m. and again confirmed there was a body in the cart. Mr. Tonack then went to the community policing office and reported what he had found. At the request of the police he drew a diagram for them showing the location of the body and later a diagram showing where he had thrown the malt liquor bottle. The police located the body and the empty bottle at the locations indicated on the diagrams. The bottle was later established to have the DNA of both Mr. Iverson and Mr. Tonack on it, but no recoverable fingerprints. Pamela Findlay [90] Ms. Findlay resides on the fourth floor of the condominium building behind the retaining wall where the body of Ms. Sim was found. Her apartment is a considerable distance from that location, although she has a view of that place and much of the remainder of the vacant site. [91] On the evening prior to the discovery of Ms. Sim's body Ms. Findlay took photos, apparently with a telephoto lens, of a person who was staying on the vacant lot behind her home. While Ms. Findlay was interviewed by police in June 2010 she did not for unexplained reasons provide the photos to the police until August 2014. [92] The Crown frankly noted that they called Ms. Findlay in order to provide a full account of the evidence. She testified that the shopping cart was dropped off at the vacant lot the morning the police attended, however she placed the time of that occurrence much later than did Mr. Tonack. [93] Ms. Findlay described the individual she saw on the lot prior to the day the body was found as clean-cut and not looking or acting like a street person. She did comment on that person moving what looked like a tombstone around in the air. She had also earlier given a statement in which she said the person pushing the shopping cart the next day was the same individual. However, at trial she stated he was not. I note in the statement she simply answered "yes" to the question, if it was the same person and provided no description. She stated that her earlier identification was mistaken. She did not take any pictures of the person she had seen pushing the shopping cart. [94] Given Ms. Findlay's inconsistent and varying descriptions of the individual pushing the shopping cart, her estimate of when she saw the cart being brought into the lot, her failure to provide photos to the police that were clearly of potential relevance, coupled with the distance between the crime scene and her apartment, I find her evidence of very little assistance. It is clear from the photos of her apartment taken from the crime scene that accurately identifying someone at that distance would be highly unlikely. As she had not taken photos of the individual with the shopping cart, she would not have had the assistance of a zoom lens. Her inability to see accurately, as well as the distance, is illustrated by a description of the tombstone‑shaped item which she says she saw the individual with at the vacant lot, which she conceded was actually a bench seat that was being moved. Adrian Clarkson [95] On June 28, 2010 Mr. Clarkson was working at the bus depot adjacent to the Big Tree Site. Around 12:45 a.m. on June 29 he had moved freight out onto the loading dock for the expected arrival of a truck. As he waited for the truck, he heard a noise like the sound of a shopping cart coming up the driveway from the Comox Road side of the lot. He did not see the shopping cart. After hearing the noise, a male Caucasian approached Mr. Clarkson and spoke to him. [96] The individual discussed various topics with Mr. Clarkson over the next five to ten minutes, such as collecting bottles and disliking junkies. This person was within four feet of Mr. Clarkson under fluorescent lighting, and Mr. Clarkson was able to provide a description. He said that the individual was a little shorter than six feet, perhaps five foot eight with a stocky build, short brown hair and a full facial beard of perhaps one-half inch in length. The individual also had a rounder face and cheekbones, a slightly rounded nose and appeared to be in his mid-forties. His left eye was bloodshot. He smelled of alcohol and appeared slightly drunk. His speech was somewhat slurred. He told Mr. Clarkson that he had come from Montreal and lived under a tree. [97] Mr. Clarkson was not able to identify the individual in question as the accused in Court and also acknowledged he could not identify the accused at the preliminary inquiry. Dillon Dilworth [98] Mr. Dilworth is a 24-year-old university student. On July 2, 2010 Brooklyn Horsland called him to ask for a ride. He knew her because he was a friend of her older brother. He agreed to pick up Ms. Horsland and two of her friends and drove to Heritage Mews to meet them. When he arrived he encountered the three girls with two older men, one of whom was grey haired. Mr. Dilworth described the other man as being five foot 10 inches tall, weighing about 220 pounds, with short black hair and one eye that was red or bloodshot. Mr. Dilworth also said that this latter individual had a scar on his sternum, which the individual had shown to him. Mr. Dilworth identified this person as Mr. Iverson in Court. [99] In his testimony, Mr. Dilworth said that he spoke primarily to the dark-haired individual while at Heritage Mews. According to Mr. Dilworth this person was hard to understand, had slurred speech and was prone to philosophical ranting that did not make much sense. Mr. Dilworth estimated he was there for a little over an hour. He identified the grey-haired man, the accused and the other two girls in the photos taken by Shelby Cates. [100] While at Heritage Mews, Mr. Dilworth recalls that Ms. Cates brought up the recent murder. At this, Mr. Faucher became upset and said the victim was his girlfriend. Mr. Dilworth then decided to leave to get an energy drink. When he got up to do so Mr. Iverson told him he wanted to talk to him. They walked around the corner of the building where Mr. Iverson told Mr. Dilworth that he "did it" or "he killed her". Mr. Dilworth took that to refer to the death of Ms. Sim. As a result Mr. Dilworth said he was scared and wanted to leave. The accused then stated that when the police talked to him, he just stared at them. Mr. Iverson added that the police would probably be around looking for him. [101] When Mr. Dilworth returned to the group Mr. Faucher was accusing Brooklyn Horsland of stealing marihuana. Mr. Dilworth then drove the three girls to Westwood Lake where he dropped them off. He returned home and at around 3:00 or 4:00 a.m. called the police to inform them of what the accused had told him. [102] I note at this point that I accept Mr. Dilworth's recollection as accurate as he was sober, was not using marihuana and was sufficiently disturbed by the conversation to call the police about it. I found his evidence to be straightforward and clear. The admission by Mr. Iverson is consistent with his earlier statements to Mr. Faucher about being sorry and also consistent with someone who is feeling guilty for their actions. Shelby Cates [103] On July 2, 2010 Shelby Cates, Logan Foster and Brooklyn Horsland were hanging out together at Heritage Mews. That evening they were sitting outside on a bench when they spoke with two older men. From their evidence, as well as that of Sylvain Faucher and Dillon Dilworth, the men they spoke to were Mr. Faucher and Mr. Iverson. Photographs taken that evening with Ms. Cates' phone confirm this. Ms. Cates identified Mr. Iverson as one of the men she spoke with on July 2 and referred to him as "Rob". [104] At some point Mr. Faucher gave Ms. Horsland $50 to buy some marihuana. Ms. Horsland left and returned with the marihuana that the group consumed with the two older men. Ms. Cates said that Ms. Horsland brought up the story of the woman found dead in a shopping cart and at this Mr. Faucher began crying, saying that the woman had been his girlfriend. Rob then kept looking at Mr. Faucher and saying he was sorry. Ms. Cates testified that Rob did not seem to be all there as he walked around in circles and talked to himself, became quiet and at one point showed them a scar on his abdomen. He seemed a bit drunk, although he spoke normally. She did not observe Mr. Dilworth leave the area until they all left together. Logan Foster [105] Ms. Foster was 13 years old in July of 2010. While she could recall who was present at Heritage Mews on July 2, 2010 and what occurred in general terms, she was not able to recall specifics or details. She admitted she had not been paying attention to what the others were doing and she did not have a good recollection. I place no weight on the fact that she did not recall the accused and Mr. Dilworth leaving together as she frankly admitted that she was high that evening. Sergeant Kulak [106] On June 30, 2010 Sergeant Kulak searched the accused incidental to his arrest. He took photographs of the accused. One of the photographs shows Mr. Iverson with a bloodshot left eye, while another depicts a scar on his sternum which he had shown to Mr. Dilworth and the young women at Heritage Mews. [107] Sergeant Kulak identified the accused in Court and noted how his appearance differed from June of 2010 and at the preliminary hearing when he had been clean-shaven with slicked back hair. I note that his evidence regarding Mr. Iverson's appearance was consistent with that provided by Mr. Dilworth and Ms. Cates. As well, the bloodshot left eye is consistent with Adrian Clarkson's observations of the individual he encountered at the bus depot in the early hours of June 29. Constable Boucher [108] Constable Boucher also identified Mr. Iverson in Court as the man he interviewed after Mr. Iverson's arrest on June 30. Constable Boucher confirmed the accused had a bloodshot eye at that time. After the interview he had released Mr. Iverson. Constable Boucher's description is consistent with that of Mr. Clarkson and with Mr. Dilworth's evidence that the accused had told him that he had been questioned by the police in connection with Ms. Sim's death. Forensic Evidence Dr. Straathof [109] Dr. Straathof, a forensic pathologist, performed the autopsy on the victim. He described severe blunt-force injuries to the head with multiple scalp lacerations and fractures to the left temporal, parietal and basal skull. He found evidence of at least three separate impacts to Ms. Sim's head, each at a different area of her scalp. He attributed death to blunt-force injury of the head. He was unable to quantify the amount of force involved, but stated the injuries to the left side of Ms. Sim's head were associated with significant skull fractures and injury to the brain, so the amount of force applied would have been significant as well. [110] Dr. Straathof stated that the injuries could have been inflicted with a brick, the futon frame or a punch or a kick, provided the latter was sufficiently forceful. He was not able to favour any of these possibilities over the others. [111] According to Dr. Straathof, it was also probable that Ms. Sim became unconscious after the blows, although she did not die immediately. Ms. Sim was likely unconscious for some period of time before she passed away, as there was evidence of swelling of axons which would not have occurred if death had been immediate. He estimated that Ms. Sim survived for at least an hour after being assaulted. [112] Dr. Straathof noted the deceased wore a black jacket, it was unzipped and was worn upside down, as though it had been pulled over her head. Her left and right arms were in the appropriate sleeves. Her black sleeveless vest was also worn upside down, like the jacket, as was her red hooded sweatshirt. Her white undershirt was pulled up exposing her abdomen, but was otherwise appropriately positioned. Her blue jeans, however, had been put on inside out with the button at the front. They were pulled down to her mid-thigh. [113] Various scrapes and scratches were also found on Ms. Sim's body. Dr. Straathof stated that "many of the scrapes/scratches at the back, left buttock, and thighs are consistent with contact with brambles." The evidence does not establish whether the victim was pulled through the brambles by her arms or by her legs. [114] Additionally, there was a long, linear indentation mark on Ms. Sim's right back, curving to the front of her body, which Dr. Straathof said was indicative of her body resting on something after death. The mark was 40 centimetres in length, with two perpendicular indentations about 10 centimetres in length at the upper end of the longer indentation. Dr. Straathof stated that if the bars on the futon frame were in contact with the deceased's skin they could have been the cause of the indentation. [115] Dr. Straathof also testified that there was evidence of acute ethanol intoxication on Ms. Sim's part, including a blood ethanol concentration of 340 milligram percent, or 0.34, and the pathologist noted that this was a moderate to high level, but individuals with chronic alcoholism typically develop significant tolerance to the depressant effects of ethanol. The changes in Ms. Sim's liver were consistent with a history of alcoholism. [116] In conclusion, Dr. Straathof said that the cause of death was blunt-force trauma to the head consisting of at least three blows. Forensic Evidence at the Big Tree Site [117] In the course of investigating Ms. Sim's death, the RCMP emptied a dumpster near the Big Tree Site. Within they found two cushions stained with blood and other debris. Constable Furtmann, formerly a forester, noted that the big tree was a larch and that there were larch needles on the cushions recovered from the dumpster. [118] A clay brick with blood on it was found behind the retaining wall near the futon frame at the Big Tree Site. The brick was found by itself on a bed of leaves though there were no leaves on top of it. Other stacked bricks were located three feet away. The evidence established that Mr. Iverson's DNA was on the clay brick and that the blood on the brick belonged to Ms. Sim. [119] Investigators found blood in various other places at the Big Tree Site, including on the futon frame, on the leaves under the futon frame, on the futon cushions taken from the dumpster, on branches on the slope leading down to the parking lot at the bus depot and on the parking barrier at the bottom of that slope. DNA evidence establishes that this blood belonged to Ms. Sim. Additionally, DNA also shows that a ball cap and sock found at the site were Ms. Sim's. [120] Finally, a Save-On-Foods pharmacy prescription bottle was also located on the slope which bore the name and photo of Mr. Robert Iverson. Forensic Evidence at the Vacant Lot Site [121] A DNA swab was taken from the inside of the mouth of the bottle of Olde English malt liquor recovered from the Vacant Lot Site. There were no recoverable fingerprints located on the bottle. I accept that the bottle had not been laying outside for any length of time, particularly as the label looked new and showed no evidence of weathering. I am satisfied that it was the bottle purchased by Mr. Tonack and drunk by him and Mr. Iverson. As noted earlier this bottle contained the DNA of the accused. Forensic Evidence Linking Ms. Sim and Mr. Iverson [122] Turning to forensic evidence linking Ms. Sim and Mr. Iverson. The clay brick found at the Big Tree Site had on its surface both Ms. Sim's blood and the DNA of the accused. Ms. Eng, research technologist from the RCMP Forensic Laboratory, testified that she swabbed the side of the brick opposite where Ms. Sim's blood was found, in the location an individual using the brick as a weapon would most likely hold the brick. It was from that location that the accused's DNA was found on the brick. [123] Dr. Straathof took swabs from Ms. Sim's vagina. DNA analysis established that the accused's semen was in fact in the deceased's vagina. [124] DNA samples were also taken by consent from Sylvain Faucher, Ron Cowgill and Mark Tonack. The results did not provide any indication that those persons were involved in the sexual assault and murder of Ms. Sim. Discussion Defences Raised by the Amicus Mr. Taylor [125] I requested that the amicus provide to the Court and Mr. Iverson a memorandum of defences potentially available to Mr. Iverson. In doing so, Mr. Taylor raised all potential defences, whether supported by the evidence or not, in order to ensure that they were before the Court and brought to the attention of the accused, given the accused's lack of participation in the trial. [126] The accused declined to call evidence, to make submissions and in effect declined to raise any defences. There is, however, a rule that has developed in common law that a judge has an obligation to instruct a jury or himself or herself with respect to all defences that are open to an accused as a result of the evidence presented. It is a duty that remains even if defence counsel does not raise a particular defence, as held by the Supreme Court of Canada in R. v. Lemky, [1996] 1 S.C.R. 757 at para. 18. This duty remains even where the evidentiary basis for a particular defence was led by the Crown. As held in Azoulay v. The Queen, [1952] 2 S.C.R. 495 at 498, an accused may rely on any defence founded on the evidentiary record and "it makes no difference whether the evidence which forms that foundation has been given by the witnesses for the Crown or for the accused, or otherwise." [127] This rule appears to include the obligation to address issues that do not raise a full defence but instead relate to a conviction on a lesser included offence. For example, in R. v. Campbell (2001), 52 W.C.B. (2d) 113 (Ont. C.A.), it was held that the jury should be instructed on the included offence of manslaughter, even though the accused had not raised that defence at trial (para. 15). However, this does not obligate a judge to mention every piece of evidence or comment on every conceivable argument: see Kelsey v. R., [1953] 1 S.C.R. 220 at para. 19. Rather, as held in Lemky (para. 12) only those defences which have an air of reality on the evidence must be left with the trier of fact. [128] The accused has, as noted earlier, taken the position that Crown must prove its case beyond a reasonable doubt. He has also, on a number of occasions, reiterated to the Court that he is not guilty. He has not stated that he opposes any possible defences. It is implicit in his position that any possible defences should be considered given that they may result in the Crown not proving its case beyond a reasonable doubt and his resulting acquittal or possible conviction on a lesser charge. In addition, the Court, faced with circumstances involving a self-represented accused who has chosen to remain (for the most part), a non-participant at trial, has in my view an overriding obligation to ensure that the trial is fair and just. [129] In light of the unique circumstances of this case, I will specifically address each of the possible defences, whether they have an air of reality or not. Alibi [130] As held by the British Columbia Court of Appeal in R. v. Tessier (1997), 113 C.C.C. (3d) 538 (B.C.C.A.), the defence of alibi is effectively a "failure of proof" defence which amounts to an assertion that "the accused person was elsewhere than at the scene of the crime at the time the accused was alleged to have committed it" (para. 54). [131] There is no evidence that the defence of alibi is available to Mr. Iverson. At no point has alibi been raised, either in Court, to the Crown or the amicus or the investigators. There is no evidentiary basis to support an assertion that the accused was not at the scene of the crime at the time he is alleged to have committed it. Thus, I agree with the amicus that I need not consider this defence. Non-Insane Automatism [132] The defence of non-insane automatism arises where there is an evidentiary basis to indicate that the actions attributed to the accused were the result of "unconscious, involuntary behaviour," or in other words that the accused was capable of acting but was not conscious of what he or she was doing: see R. v. Cuthbert, 2007 BCCA 240 at para. 26. Automatism thus amounts to a "denial of the voluntariness component of the actus reus," as held by the majority in R. v. Stone, [1999] 2 S.C.R. 290 at para. 170. [133] As with other defences applicable in a criminal trial, non-insane automatism must only be left with the trier of fact where the evidence discloses a proper foundation for the defence. However, "an air of reality" is not sufficient. Rather, following the majority ruling in Stone, "the defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion." The evidence called in support of automatism must be sufficient such that a properly-instructed jury acting reasonably could conclude that the actions of the accused were involuntary on the balance of probabilities (para. 192). [134] There has been no assertion of involuntariness by the accused or the amicus, nor has any evidence been called that could or does support the defence of non-insane automatism. I agree in this instance with amicus that this defence does not apply. Colour of Right or Mistake of Fact [135] As held in R. v. Aleck, 2008 BCSC 1096, this defence may be defined as "an honest belief in a state of facts which, if it existed, would be a legal justification or excuse" (para. 94). As noted by the amicus, there is no evidence that would support this defence on these facts. I agree. Consent [136] As stated by the amicus, it is unlawful for anyone to consent to serious bodily harm, let alone death. Indeed, s. 14 of the Code specifically provides that consent to the infliction of death does not vitiate the criminal responsibility of the inflictor. This defence is not open to the accused. Duress [137] For the defence of duress to be available, it is necessary (though not necessarily sufficient), for there to be an air of reality that the accused, in committing the offence charged, acted under compulsion by threats of death or bodily harm directed at the accused or a third party. This basic requirement applies whether considering the common law or statutory defence of duress under the Code: see R. v. Ryan, 2013 SCC 3 at paras. 43, 55 and 81. [138] There is no evidence to suggest that any such threats were made on the present facts. Further, statutory duress is not available for the charges of murder or sexual assault. I agree with the amicus that duress is not available in this case. Provocation [139] The defence of provocation is only applicable to a charge of murder and, where successful, its effect is to reduce murder to manslaughter. This defence is codified in s. 232 of the Code, as follows: 232. (1) Murder reduced to manslaughter -- Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. (2) What is provocation -- A wrongful act or an insult that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section if the accused acted on it on the sudden and before there was time for his passion to cool. [140] On the present facts there is no evidence to suggest that the accused acted in the "heat of passion caused by sudden provocation." There is no evidence of any wrongful act or insult which would have deprived the accused of self-control, or indeed that the accused was deprived of self-control. Accordingly, there is no air of reality to the defence of provocation arising here. Not Criminally Responsible by Means of Mental Disorder [141] As the defence of mental disorder under s. 16 of the Code arises only upon a conviction, the matter not having been raised to date, this defence is not something I need to address at this time. Other Defences [142] The amicus brought to my attention various other statutory defences, including ss. 34 (defence of persons) and 35 (defence of property), of the Code, none of which arise in this case. There has been no evidence that Mr. Iverson was defending himself, there is no evidence of injury to Mr. Iverson and there is no basis for a defence of property as he was essentially squatting. Nor is there any basis for the common law defence of necessity and prank is clearly not applicable. [143] Similarly, I am aware of various other common law defences applicable to criminal proceedings, including abandonment, accident, due diligence and mistake. Those defences are either inapplicable to the offence as charged, find no basis for support on the evidence, or both. As a result, neither these nor the other defences discussed above properly arise in this case. [144] The only potential defences on the evidence that arise are those arising from intoxication and the issue of whether or not the killing was with intent or was a killing without intent, in other words manslaughter. I have already reviewed the law with respect to intoxication and intent. Continuity [145] I am satisfied that the police secured both primary crime scenes, the Vacant Lot Site and the Big Tree Site and that the sites were protected while investigations were carried out. There is no evidence to suggest the sites were infiltrated or disturbed by any unauthorized individual. The protocols followed by the RCMP, including protective gear, ensured that the evidence on the sites was not interfered with or contaminated in any fashion. [146] The Crown meticulously traced continuity of each exhibit. This required substantial time and many witnesses. I have no doubt that the items seized and subsequently entered as exhibits were appropriately handled. There is no basis for any suggestion that the seized items were tainted, contaminated or interfered with. The required protocols were followed and none of the exhibits were damaged or compromised such that analysis could not reliably be carried out. [147] As there is no issue as to continuity of the exhibits, I am satisfied that the evidentiary foundation for the reporting scientist's opinion respecting DNA results has been proven and, in addition, I accept the DNA results and the conclusions of the reporting scientist, Laura Reader. Identity [148] There is both direct and circumstantial evidence that Mr. Iverson was Ms. Sim's assailant. [149] I am satisfied that Mr. Iverson was the individual residing at the Big Tree Site on June 28, 2010. He was seen at the Big Tree Site by Rodney Clarkson, Roy Robinson, Sylvain Faucher, Paul Surrette and Tamara Debeck. The blankets provided by Ms. Debeck are similar to the blankets found with the body of the deceased. The shopping cart in which Ms. Sim's body was found is similar to that described by Ms. Debeck as having been in the parking lot of her apartment for a lengthy period of time and that the cart was missing when she heard about the body of Ms. Sim being discovered in a shopping cart. [150] Rodney Clarkson, Paul Surrette and Sylvain Faucher all knew the accused from previous interactions with him. [151] Mr. Iverson was the last individual seen with Ms. Sim while she was alive. Sylvain Faucher and Paul Surrette testified that he was left with her on the evening of June 28, 2010 and Rodney Clarkson testified that he saw Mr. Iverson with Ms. Sim sitting together on the futon later that evening. [152] Additional support for the inference that Mr. Iverson was living at the Big Tree Site stems from the prescription bottle bearing his name and photograph found on the slope nearby. In addition, Sgt. Kulak and Cst. Wurzinger noted that Mr. Iverson's left eye was red when he was detained on June 30, 2010. Constable Boucher also noted the accused had a red or bloodshot eye during his interview that day, and further, Mr. Clarkson observed the individual who he spoke to in the early hours of June 29, 2010 had a bloodshot eye and related that he lived under a tree. [153] The evidence of Mr. Tonack regarding the individual delivering the body to the Vacant Lot Site is consistent with the appearance of the accused, despite Mr. Tonack being unable to identify him in Court. This is further corroborated by Mr. Tonack's evidence that the individual with the cart drank from his malt liquor bottle, as that bottle was found to have Mr. Iverson's DNA on it. When Mr. Tonack met the accused, it was in the middle of the night, he did not have his prescription glasses and Mr. Iverson was not someone he had met before. Given the frailties of eyewitness identification, I conclude that Mr. Tonack's failure to identify Mr. Iverson in Court does not undermine my conclusion that Mr. Iverson was the individual he met with the cart and body in the early hours of June 29, 2010. [154] I am satisfied beyond a reasonable doubt that Mr. Iverson was the individual who was last seen with Ms. Sim at the Big Tree Site, that he was the individual who spoke to Mr. Adrian Clarkson at the bus depot freight dock and that he was the individual with the shopping cart who delivered the body to the Vacant Lot Site and spoke to Mr. Tonack. I am also satisfied that he was the individual who met with Mr. Faucher at the Heritage Mews and who spoke to Mr. Dilworth while there. [155] It has been conclusively established, as well, through DNA analysis that Mr. Iverson had sexual intercourse with Ms. Sim. [156] It has also been proven beyond a reasonable doubt that Ms. Sim's blood was found at the Big Tree Site, including on the futon frame, on the futon cushions that had been stuffed in the nearby dumpster, on the bramble and blackberry bushes between the campsite and the parking lot, as well as on the curb between the embankment and the parking lot. The condition of her body, as revealed in the photographs, showed numerous cuts and scratches, consistent with her body having been dragged through those bushes before being placed in the shopping cart. [157] I find that the blows to Ms. Sim's head occurred at the Big Tree Site. As a result, I am satisfied beyond a reasonable doubt that the death of Ms. Sim occurred at the Big Tree Site and that her death was due to blunt force trauma to her head. I am also satisfied that her body was dragged through the bushes, placed in a shopping cart and then transported in the shopping cart to the Vacant Lot Site. [158] While the pathologist was unable to confirm whether the blunt-force trauma suffered by Ms. Sim was caused by a brick, the futon frame, a punch, or a kick, those alternatives must be assessed in the context of the evidence. There is no evidence of a kick or punch. Indeed, had the accused punched Ms. Sim sufficiently hard to cause the trauma to her head, one would anticipate some evidence from her to be found on the accused's hands or rings. That was not the case. Concerning the futon, Ms. Sim's blood was found on portions of the back of the futon frame and the bottom, but not on the arms of the futon. The marks on her back indicate that her body rested on the futon frame at some point, although the blood on the futon cushions would indicate she was struck while they were in place and that she was on the cushion at the time. If that were the case, the only exposed portion of the futon frame would be the arm rests or frame ends, neither of which was shown to have her blood on them. [159] DNA found on the brick recovered from the site matched that of Mr. Iverson. That DNA material was found on a part of the brick where it would be expected to have been held if being used as a weapon to inflict blows. The blood on the brick was that of Ms. Sim. The brick itself was, if used as the murder weapon, tossed behind the Campsite, coming to rest near the brick wall. The brick was on top of leaves and other material on the ground, indicating that it came to be there only recently. I conclude it is more probable than not that the brick was used as the murder weapon and then subsequently discarded. In any event, whether caused by the brick, the futon frame, or otherwise, I am satisfied that the death of Ms. Sim occurred as a result of at least three blunt-force blows to her head. [160] I find the evidence of Mr. Dilworth to be credible, direct evidence of an admission by Mr. Iverson that he killed Ms. Sim. The evidence of Mr. Faucher respecting the accused's apologies to him, coupled with Mr. Iverson's threat to kill Mr. Faucher if he told anyone about Mr. Iverson's involvement is consistent with that admission. The amicus submitted that the admission by Mr. Iverson could simply have been bragging or attention seeking, given the awareness of those in the area of the death of Ms. Sim. I note, however, the accused did not make the admission in the presence of the group at Heritage Mews, but did so privately to Mr. Dilworth, out of earshot of the others. I do not accept that the accused was boasting or seeking attention. [161] In the context of the evidence as a whole, I have no doubt that Mr. Iverson inflicted the blows that killed Ms. Sim on the evening of June 28, 2010. [162] In summary, the Crown has proven beyond a reasonable doubt that Mr. Iverson had unprotected sex with Ms. Sim, that at some point he killed her by way of three or more blunt force injuries to her head, either with a brick or by hitting her frame against the futon or otherwise and thereafter removed her body in a shopping cart to the Vacant Lot Site. The actus reus of homicide is therefore proven. [163] I turn then to what, if any, offence the Crown has proven in law. Constructive First-Degree Murder [164] As this is a case of constructive first-degree murder, the Crown must prove beyond a reasonable doubt that Mr. Iverson murdered Ms. Sim while committing the underlying offence of sexual assault. The Crown must prove a close temporal and causal link between the murder and the underlying offence, often referred to as the "single transaction theory". [165] A review of cases of alleged first-degree murder while committing a sexual assault illustrates the burden on the Crown and the inferences that may be drawn. [166] In R. v. MacDonald (2004), 61 W.C.B. (2d) 632, a decision of the Ontario Court of Appeal, following a preliminary inquiry, the accused was committed to trial on a charge of first-degree murder pursuant to s. 231(5)(b) of the Code. The preliminary hearing judge made the committal on the basis that there was evidence that the accused caused the death while committing or attempting to commit a sexual assault, namely anal intercourse. On appeal, it was found that there was no evidence of anal intercourse. The Court also addressed an alternative scenario that there was consensual sexual conduct that escalated into a violent struggle, resulting in the victim being strangled. The theory was that the consensual sex became non-consensual at some point. The Court noted that "[o]nce the anal intercourse theory is eliminated, there was no evidence of the fundamental premise that the initial sexual activity became non-consensual or that the deceased's resistance to that activity triggered the murder." (para. 10). As a result, the order to stand trial on first-degree murder was quashed and the appellant was ordered to stand trial for second-degree murder. [167] In R. v. Post, 2005 BCSC 1522, aff'd at 2007 BCCA 123, the naked corpse of a female was found in a river. Medical evidence indicated that she had been forcibly drowned. Her clothing was strewn about on the ground nearby, including her shoes, which remained tightly tied. There were injuries to the victim's anus and vagina, and sperm of the accused was present. At issue was whether the Crown had adduced sufficient evidence to prove that sexual contact between the accused and the victim was non-consensual. The Court found the Crown had discharged that burden: [23] The evidence satisfies me beyond reasonable doubt that Ms. Voth was sexually assaulted on the morning of the murder. Bruising and tearing of the hymen and anus are both indicative of sexual assault. The presence of semen is also indicative. All were of recent origin at the time of death. I am satisfied that the injuries and deposit of semen occurred on that morning. [24] Ms. Voth was on her way to work, and by all accounts was reticent of strangers. She had not previously had intercourse. She had recently woken up. It was cold and damp. Neighbours heard screams of protest from a female voice at the relevant time. It is impossible, in my view, to reach any conclusion other than that Ms. Voth was sexually assaulted. The evidence is simply inconsistent with any reasonable possibility that sexual contact was consensual, or that contact was of a non-sexual nature. I am left with no doubt that Ms. Voth was sexually assaulted shortly before or at the time of her murder. [168] In R. v. Williams (1995), 98 C.C.C. (3d) 176 at 179 (B.C.C.A.), the accused was convicted of first-degree murder pursuant to s. 231(5) of the Code. Semen found in the victim's vagina matched the accused's DNA. The accused in Williams admitted at trial to having caused the victim's death by manual strangulation, but relied on the defences of provocation and self-defence. The accused testified that during consensual intercourse with the victim, she became angry and grabbed his testicles, and according to the accused, the victim was killed unintentionally in the ensuing struggle. On review, the Court found the evidence contradicted the accused's version of events and the trial decision was ultimately upheld. The issue of the victim's non-consent to sexual contact with the accused was dealt with in the following terms: [9] This explanation was contradicted by two parts of the evidence presented by the Crown. Dr. James McNaughton, a pathologist, viewed the deceased's body where it was found and later performed the autopsy. His findings led him to conclude that the deceased had not consented to the sexual activity and that intercourse and anal penetration, which was probably caused by a finger, occurred after death. The pathologist did not find any bleeding from a tear of the deceased's hymen, which was previously virginal, or from lesions in the anus; nor did he see any microscopic evidence of cellular reaction to injury in those regions. These indications led him to conclude that the deceased's heart had stopped when these traumas occurred. On the question of consent, he observed extensive bruising, mostly to the face and neck indicating that she had been struck a number of times and manually strangled. He noted at the scene that the deceased's clothing appeared to have been forcibly pulled to positions which exposed her breasts and genitalia. The arrangement of the clothing would have been quite uncomfortable to a conscious person and, therefore, not likely to have been put that way by the deceased voluntarily. [169] Further guidance on the issue of proving non-consensual sexual contact is found in R. v. Hummel, 2002 YKCA 6. There the victim's body had been found naked and bound in a wooded area. She had been beaten to death within the preceding few days. The accused's DNA matched that of semen found on the victim's vagina and elsewhere on her body. The accused's DNA also matched samples taken from a cigarette butt found 10 feet from where the body had been discovered. Before a jury, the accused was convicted of first-degree murder. [170] The defence theory in Hummel was that the sexual contact between the accused and the victim was consensual. The accused claimed that following his sexual encounter with the victim, he had parted ways with her. The victim thereafter had encountered her killer and her ultimate demise, according to the accused. The victim was a Caucasian woman and the accused an Aboriginal man. On appeal, the accused contended the Crown had improperly elicited racial bias in its closing address by suggesting the victim would not have consented to sex with an Aboriginal man. [171] The Court rejected the submission that the Crown had marshaled the racial bias of the jury against the accused in Hummel. Instead, it was held the accused had mischaracterized the Crown's closing address which, far from appealing to racial bias, had in fact properly referred to factors that contradicted the consensual nature of the sexual contact between the accused and the victim. These factors were the personal characteristics of the accused at the time of the offence, including the accused exuded a powerful odour of alcohol, was wearing dirty clothes, needed a shower, was missing his two front teeth, and was unshaven. [172] Hummel stands for the proposition that personal characteristics of the accused may properly be probative to the question of consent in the context of s. 231(5). The relevance of such characteristics is they make it less likely that the victim consented to sexual contact with the accused. [173] In R. v. Wodage, [2004] M.J. No. 61 (Man. P.C.), the accused was charged with sexually assaulting and murdering a young woman. At the time of her death, the victim had only just returned from a trip to Ethiopia, where she had married her long-time fiancé, who had remained abroad. The victim was found dead in her apartment, naked from the waist down, having been strangled to death with a telephone cord. Also discovered in the victim's apartment was the accused, who had survived an apparent suicide attempt. Semen discovered in the victim's vagina matched that of the accused. [174] In Wodage, the victim had made statements about the accused to three of her friends on the day prior to her death and the Crown sought to tender those hearsay statements into evidence, arguing they were probative to the question of the victim's consent to sexual contact with the accused. The Court recognized that absence of consent can be proven via circumstantial evidence at para. 12 as follows: 12 Since the complainant is dead, a trier of fact will only be able to determine this matter by circumstantial evidence. Following a voir dire in this preliminary hearing, I must determine whether certain statements made by the deceased, adduced through the three witnesses noted above, can be admitted as evidence. These statements are tendered to allow the court to consider evidence from which a jury could infer that the victim did not freely consent to sexual activity with the accused at or near the time of her death. The statements are said to reflect her state of mind and intentions in the thirty-six hour period before her death, and to reflect her reaction to certain actions taken by the accused in that time frame. Given that [she] is dead, these are hearsay statements. [175] Similarly, the Court then held that circumstantial evidence was admissible in order to establish that the accused "wanted no part of a sexual relationship," a foundation and use which is appropriate in the s. 231(5) context. The probative value of evidence of the accused's state of mind with regard to consent is "significant," particularly in light of the unavailability of direct evidence on this point due to the demise of the victim (para. 10). [176] The accused in Wodage contended the statements in question were not relevant because they spoke to the victim's state of mind prior to the sexual contact, rather than at the time of the contact. The court did not give effect to that submission: 29 I observe that the evidence largely relates to the deceased's state of mind concerning the accused within 24 hours of her death. The evidence also relates to her state of mind about her recent marriage, and her plans for the future with her new husband. The Crown submits that inferences concerning her feelings about sexual contact with the accused can be drawn from her state of mind. Given their proximity to her death, an inference could be drawn by a trier of fact that she did not wish any intimate contact with the accused. Specifically a jury could use the evidence of her state of mind along with other circumstantial evidence to draw the inference that the deceased did not consent to sexual contact with the accused on February 18, 2002 at or near the time of her death. 30 In my view, the deceased's state of mind on February 17 is clearly relevant to her state of mind on February 18. Relevance is a matter of logic in the light of human experience. In the abstract it is certainly true that a newly married woman might choose to have consensual sex with another man. However, crimes occur in a context and involve particular individuals with their own goals, fears, emotions and values. 31 As Tiruye is dead, a fact finder will have to draw whatever inferences it can from available circumstantial evidence. That would include not only the deceased's state of mind concerning the accused within twenty-four hours of her death, but also the interaction and relationship between them during that period. Statements inconsistent with a desire for a sexual relationship, particularly those within thirty-six hours of her death, are highly relevant to the resolution of the ultimate legal issue. While it is possible that her attitude had changed, a fact finder could assess the probability of such a change in the light of all the evidence. [177] In Benham, the accused was charged with first-degree murder. The theory of the Crown was that the accused forced non-consensual sexual contact on the victim, who resisted and was killed in the subsequent struggle. The accused and the victim were previously romantically involved with one another and were living together at the time of the latter's death. The accused's semen was found on the victim's perineum and undergarments, although not on swabs taken from the victim's vagina. Concerning the consent element and the actus reus of sexual assault, the Court noted that "[i]n a homicide case, the absence of consent may be determined by circumstantial evidence such as the state of undress of the body, the condition of the clothing, and injuries sustained before death" (para. 10). The Court then considered the circumstantial evidence of consent finding the following items (among others), to be relevant to that legal issue and these are found at paras. 146-150: a) Hearsay statement of the victim indicating she was not comfortable having relations; b) Hearsay statement of the victim that she was not sharing her bedroom with the accused; c) The victim had been re-clothed or had her clothing rearranged to some extent after the struggle; d) The accused's blood was found on the victim's undergarments, indicating that her clothing was off or in disarray at the time of her death; e) The victim gave conflicting accounts of the status of her relationship with the accused; f) The absence of semen on swabs taken from the victim's vagina; g) The absence of trauma to the victim's vagina; h) The absence of evidence concerning the lifespan or how long sperm remained present outside of the vagina, particularly in light of evidence that the lifespan of sperm inside the vagina is 42 to 78 hours; and i) The absence of evidence indicating that sexual contact between the accused and the victim did not occur significantly prior to the latter's death. [178] The Court concluded in Benham that there was insufficient evidence to negative consent on the victim's part. That was so because the evidence did not preclude the reasonable possibility that the sexual contact between the accused and the victim had occurred significantly prior, rather than immediately prior, to the victim's death (paras. 155-156). The accused was therefore acquitted of first-degree murder pursuant to s. 231(5) of the Code, as the sexual assault component of that offence could not be made out. [179] From these authorities and others, including R. v. Richer (1993), 82 C.C.C. (3d) 385 (AB.C.A.), and R. v. Kociuk, 2011 MBCA 85, one may distill a non-exhaustive list of factors relating to the issue of consensual sexual contact with an accused in the context of s. 231(5). Each case is of course unique. Depending on the evidence, such factors include: a) A close temporal connection between sexual contact with the accused and the death of the victim. Inter alia, this factor weighs against consent because it may be less likely the victim would consent to sexual contact with someone who is trying to kill him or her. b) Statements indicating the victim was not sexually interested in the accused. For instance, the victim may have indicated to a third party that she was fearful of the accused or was uncomfortable having relations with the accused, each of which militates against consent. The relevance of such statements increases with their proximity to the sexual contact in question. c) Evidence of the victim's resistance to sexual contact with the accused, such as evidence of a physical struggle, weighs against the likelihood of consensual sexual contact. d) Evidence that the victim was averse to the type of sexual contact which occurred. By way of example, if evidence shows the victim was adverse to anal intercourse, but engaged in it with the accused, it may be less likely the victim consented to that form of sexual contact. e) Abnormality in the timing, location, or other circumstances of the sexual contact between the accused and the victim. For instance, the victim's consent may be less likely where the sexual contact occurred outside in the cold and damp. f) Evidence that the victim was adverse to socializing with strangers. If the accused and victim did not know each other prior to the sexual contact, evidence of the victim's inclination towards reticence when meeting strangers may militate against a finding of consent respecting sexual contact between the victim and the accused. g) Personal characteristics of the accused which renders consensual sexual contact with the victim less likely, for example where the accused was unshaven, unwashed, missing teeth, etc, the victim's consent to sexual contact may be less likely. h) Personal characteristics of the victim which render consensual sexual contact with the accused less likely. To illustrate, where the victim was a virgin prior to sexual contact with the accused or had very recently married a person other than the accused, it may be less likely that they consented. i) The state of the victim's body following the sexual contact makes it unlikely that he or she would have chosen to remain in that state for any period of time. Among other things, a person who is engaged in consensual sexual intercourse would be unlikely to continue to wear their clothes in an uncomfortable arrangement thereafter or similarly remain naked. j) Evidence that the victim's garments were removed forcefully or forcibly. By way of illustration, where the victim's shoes were removed but remained tightly tied, this indicates they were removed forcefully and therefore possibly against the will of the victim, undermining consent. k) Evidence that the victim's clothing was rearranged after death or that the victim was re-clothed after death. Such evidence militates against consent, because it indicates that the accused attempted to conceal the sexual contact after the fact. Drawing such an inference may engage the law respecting post-offence conduct, however. l) Injuries to the victim's genitals or injuries arising out of sexual contact with the accused. For instance, it is less likely the victim consented to sexual contact that would damage his or her genitals. However, the absence of such injuries does not necessarily mean the sexual contact was consensual. m) Evidence that injuries to the victim's genitals or injuries otherwise arising out of the sexual contact were inflicted post mortem. This negatives consent, because a deceased victim cannot consent. n) If semen has not leaked from the victim's vagina, despite the presence of semen in the vagina, this factor is relevant because it shows that the victim did not attempt to move in the period between the sexual contact and her death, or alternatively was deceased when the semen was deposited in her vagina. [180] The consent analysis in s. 231(5) of the Code is governed in part by s. 276 of the Code, which holds in a proceeding respecting sexual assault, evidence of the complainant's sexual activity is not admissible to show that the victim is more likely to have consented to the sexual activity which forms the subject matter of the charge (s. 276(1)). Similarly, the accused in such a proceeding may not, without leave of the Court, adduce evidence of the complainant's sexual activity other than the sexual activity which forms the subject matter of the charge (s. 276 (2)). As held in R. v. Dempsey, 2001 BCSC 371, evidence that would be inadmissible pursuant to s. 276 if the victim were alive is not rendered admissible merely by virtue of his or her death (para. 35). In this case, however, I note that Mr. Iverson has not sought to adduce any such evidence on the present facts in any event. [181] The Crown submits that the state of the deceased's clothing goes to the issue of where, how and under what circumstances she died. When found in the shopping cart, Ms. Sim's pants were inside out and pulled up only to her mid-thigh. The clothing on her upper body was pulled over the back of her neck and was bunched around and over her head and chest area. Her torso and back were exposed. One sock and her ball cap were found at the Big Tree Site. The other sock was on her foot at the Vacant Lot Site. She had no shoes on when her body was found. Shoes found at the Big Tree Site were similar in colour to those she wore and were likely hers. They were however, it appears, placed under the futon, not strewn about as might be the case in an attack. [182] The Crown further submits that in all the circumstances, despite the lack of injury to her internal and external genitalia, the traumatic injuries to her head, her blood on the futon where she was last seen laying, the condition of her clothing and her blood on the slope to the parking lot all lead to the reasonable inference that the fatal blows were delivered while she was on the futon where sexual activity most likely occurred. They also submit that it is a reasonable inference that injury and death occurred while the cushions were still on the futon, given her blood was on them. Her body, they state, was found in a state of undress and, arguably, a state of redress. The fact her jeans were on inside out and pulled only partway up and her body folded into a shopping cart, lead to a reasonable inference that she did not leave the accused's camp in a conscious condition under her own power. [183] The amicus submits that while the Crown can prove there was sexual activity, they cannot prove at what time death occurred in relation to that activity. Further, he submits that the Crown cannot prove that the sex was non-consensual or was a sexual assault. [184] Ms. Sim was last seen alive at the Big Tree Site at approximately 9:30 p.m. on the evening of June 28, 2010 and died between that time and 3:00 or 4:00 a.m. the next morning, when her body was left at the Vacant Lot Site. The only direct evidence of the activities of either the deceased or the accused in the intervening period is Mr. Iverson's appearance at the bus depot freight drop depot around 1:00 a.m. and his being seen walking with an umbrella in his hand around 3:00 a.m. [185] The Crown submits, and I accept, that the sexual assault and the homicide do not have to occur at the same time, but rather must merely form part of one continuous sequence of events forming a single transaction. On this point, the Crown points to the fact that Ms. Sim was last seen in the company of Mr. Iverson, that there is no doubt that they engaged in sexual intercourse, given the DNA evidence, that she was not seen alive again, and that her blood was found on the futon at Mr. Iverson's camp at the Big Tree Site. The Crown adds that it has been established that Ms. Sim's body was dragged down the slope to the parking lot, loaded into the shopping cart and moved to the Vacant Lot Site some 300 metres away. Relying on Benham, the Crown submits that the circumstantial evidence, such as the state of undress of the body, can lead to a finding of an absence of consent. [186] Assessment of the evidence requires the Court to consider all of the evidence, not only the evidence referred to by the Crown. This includes the fact that no fingerprints were found on the shopping cart, that there were no defensive injuries on Mr. Iverson of the victim, no DNA or blood of Mr. Iverson was found on the victim, nor was any of the victim's blood found on Mr. Iverson's hands, clothing, or rings. Overall, there was little physical evidence of sexual assault. [187] The forensic evidence does establish that the accused and Ms. Sim had sexual intercourse, most likely within hours of her death. It cannot be determined how close to the time of her death that intercourse occurred. [188] The fact that Ms. Sim's jeans were on inside out indicates that they had been completely removed at some point. That removal could have been voluntary, or the jeans may have been forcibly removed by the accused. The victim's upper body clothing was pulled up partially over her head. However, it is not known when that occurred nor whether it was due in part to her being dragged down the hill, particularly since there is no evidence as to whether she was dragged by her legs or her arms. As I have mentioned, the shoes of the victim were found placed together under the futon, as if removed and placed there. They were not strewn about as they might be if they had been forcibly removed. [189] There was no evidence of any trauma to Ms. Sim's vaginal area, but according to Dr. Straathof that does not negate a sexual assault. However, nor does the presence of trauma to the vagina necessarily indicate a sexual assault. [190] The Crown does not argue that any inferences can be drawn from Ms. Sim's blood alcohol level regarding her ability or inability to consent to sexual activity. Despite a blood alcohol level of 340 milligram percent placing her at a moderate to heavy level of intoxication, she was a seasoned drinker. Further, on the evidence of the toxicologist, Heather Dinn, the following of the bottle by Ms. Sim was exhibiting goal-orientated behaviour, which militates against a finding that she was unable to consent. [191] Additionally, Mr. Iverson and Ms. Sim were apparently getting along well when last seen together. Ms. Sim voiced no objection to being placed on the futon, nor did she object to the accused's comment about arranging her legs to make it easier "to get at her". She voiced no objection when her former boyfriend, Mr. Faucher, left her alone and chose not to leave with him, despite his repeated requests for her to do so. There is evidence that the deceased and the accused were at least casual acquaintances and there is no evidence of any motive. [192] The Crown submits that the murder of Ms. Sim itself constitutes post-offence conduct that can be used as circumstantial evidence of Ms. Sim's lack of consent to sexual contact with Mr. Iverson. The Crown's theory is that the murder was undertaken in order to conceal Mr. Iverson's sexual assault of Ms. Sim. They submit Mr. Iverson would have had no reason to conceal consensual sexual contact with Ms. Sim. Thus, in the Crown's view, concealment suggests that Mr. Iverson believed the sexual contact to be non-consensual. [193] A further instance of post-offence conduct relevant to the issue of consent arises where evidence indicates that the accused attempted to re-clothe the victim following sexual contact. The theory of the Crown is that Mr. Iverson did precisely that to Ms. Sim and did so in an attempt to conceal the fact that he had sexually assaulted her. Viewed in that light, the Crown's position is that Mr. Iverson's attempt to re-clothe Ms. Sim is circumstantial evidence of her lack of consent to sexual contact with Mr. Iverson as again, in the Crown's view, only non-consensual sexual contact requires concealment. [194] I note that the post-offence actions attributed to Mr. Iverson are not circumstantial evidence of Ms. Sim's consent or non-consent to sexual contact with Mr. Iverson. Rather, those actions are potentially circumstantial evidence of his perception of whether Ms. Sim consented to sexual contact with him. The existence of that perception, that Mr. Iverson believed that Ms. Sim was not consenting, is what constitutes circumstantial evidence of Ms. Sim's state of mind. In other words, Mr. Iverson's alleged attempts at concealment indicate, (a) that Mr. Iverson believed that Ms. Sim had not consented to sexual contact, and Mr. Iverson's belief in that respect makes it more likely (b) that Ms. Sim did not actually consent. Both issues are potentially alive in this case, with (a) weighing against the defence of honest but mistaken belief in consent regarding the mens rea for sexual assault, and similarly (b) circumstantially suggesting that the subjective non-consent element of the actus reus is satisfied. [195] The Crown's position respecting post-offence conduct raises the following issues: a) In light of the totality of the evidence, if Mr. Iverson did kill Ms. Sim, is that act consistent with an attempt to conceal non-consensual sexual contact with Ms. Sim and inconsistent with any other rational conclusion? b) In light of the totality of the evidence, if Mr. Iverson did re-clothe Ms. Sim after her death, is that act consistent with an attempt to conceal non-consensual sexual contact with Ms. Sim and inconsistent with any other rational conclusion? [196] Mr. Taylor suggests that there are other rational explanations equally consistent with the evidence. He submits that the evidence of Paul Surrette shows that Ms. Sim and Sylvain Faucher, her former boyfriend, along with Mr. Surrette, were present when Mr. Iverson made some rude and suggestive remarks about getting at Ms. Sim, yet despite this she allowed her former boyfriend to leave and in fact refused to leave with him, despite him encouraging her to accompany him. [197] Mr. Taylor notes, as well, the evidence of Mr. Roy Clarkson that Ms. Sim and Mr. Iverson appeared to be getting along and that she was happy and giggling. As well, there is no sign that her jeans were forcibly removed and her shoes were apparently placed below the futon. Mr. Taylor submits there could very well have been consensual sex and that sometime thereafter the murder took place. [198] I find that the possibility that the sex between Ms. Sim and Mr. Iverson was consensual is not an unreasonable one. Given the stated intention of the accused, the fact that Ms. Sim remained alone with him, as well as the evidence related above, I cannot say that the killing of Ms. Sim to cover up non-consensual sex is the only rational conclusion. [199] As noted earlier, the Crown must prove the absence of consent beyond a reasonable doubt. It is quite possible that the victim and the accused had consensual sex after the others had left, but long before she was killed. The evidence does not have to establish they were contemporaneous events, but rather they were temporally and causally linked. While the Crown emphasizes that the replacement of Ms. Sim's jeans suggests an attempt to cover up a sexual assault, that alone is not, in my view, sufficient to establish no-consent beyond a reasonable doubt. [200] In summary, the Crown cannot prove when the intercourse occurred in relation to the death of Ms. Sim. There is post-offence conduct, such as dressing the victim that may be indicative of an attempt to hide the sexual activity or simply a matter of re-clothing the body as part of the efforts of the accused to clean up the site of the attack. Unlike many of the examples I have noted earlier, there is no evidence of Ms. Sim being opposed to a sexual relationship with the accused. Indeed, there was evidence she was content to remain with him, even though he had evidenced a desire to have sexual relations with her. In my view, the necessary temporal and causal connection has not been established. [201] For these reasons, I conclude that the Crown has not established beyond a reasonable doubt that Mr. Iverson killed Ms. Sim while committing a sexual assault. As a result, I do not find Mr. Iverson guilty of first-degree murder. [202] I now turn to whether Mr. Iverson is guilty of second-degree murder. Second-Degree Murder [203] To secure a conviction for second-degree murder, the Crown must prove beyond a reasonable doubt that Mr. Iverson had the specific intent to kill Ms. Sim. That is, the Crown must prove that the accused acted with subjective foresight of the consequences of his conduct. Objective foresight of the consequences will not suffice. It must be established beyond a reasonable doubt that Mr. Iverson meant to cause the death of Ms. Sim or meant to cause her bodily harm that he knew was likely to cause death and was reckless whether death ensued or not. [204] The issue of intent requires consideration of all of the evidence, including the circumstances of the attack, the cause of death and the issue of Mr. Iverson's intoxication, the latter requiring an assessment of whether he was intoxicated to the extent that he lacked the necessary intent to commit murder. Intoxication [205] It is clear that Mr. Iverson was intoxicated on June 28, 2010. The video evidence introduced by the Crown shows him buying liquor from Tally-Ho Beer and Wine that morning. Witnesses have noted his consumption of sherry and Fireball Whiskey during the day and into the evening. The evidence does not establish how much Mr. Iverson consumed that day, and there are no toxicology reports respecting his blood alcohol levels on the evening in question or at the time of his arrest. There is, however, evidence of his condition from certain witnesses. [206] Sylvain Faucher noted that Mr. Iverson was a little bit drunk, but that he was not falling down drunk and was speaking normally. Paul Surrette stated the accused had a "buzz on", but it was under control. He did state the accused was leaning on an umbrella like a cane, but his evidence did not indicate the accused was walking using the umbrella like a cane. Adrian Clarkson did not see the accused with a cane nor did Mark Tonack. Mr. Clarkson did note the accused was slightly slurred in his speech. Mr. Tonack did not think Mr. Iverson was drunk and stated that his speech was understandable, but incoherent, as if on drugs. Mr. Clarkson noted that the accused was carrying a rolled-up umbrella, but stated that he was just holding it in his hand. There is therefore no indication that he was using it to support himself. [207] Heather Dinn, who provided toxicology evidence, testified that if the Court accepts the observations of Paul Surrette and Adrian Clarkson, Mr. Iverson's level of intoxication would fall into the medium to heavily intoxicated range. However, Mr. Iverson would not have been intoxicated to the extent that he would be unable to function cognitively or physically. Given Ms. Dinn's characterization of Ms. Sim's pursuit of the bottle of whiskey as "goal-oriented behaviour", it can also be said that Mr. Iverson was exhibiting purposeful, goal-oriented conduct and cognitive functioning, such that he could not be said to lack the capacity to form a murderous intent. [208] In my view, the level of intoxication shown does not come anywhere near to a state of automatism, such that the accused would not appreciate that his actions would result in death. The accused was able to converse normally with Mr. Faucher and Mr. Surrette, to voice his crude intentions towards the deceased, to pick her up off Mr. Faucher's knee and lay her down on the futon, to remove evidence from the site, to re-clothe the body, to conceal the body with a blanket and sleeping bag, and to move it to the Vacant Lot Site with the intent to hide it. As indicated in Mr. Iverson's conversation with Mr. Tonack, he did not expect to encounter anyone at the Vacant Lot Site. He stated he was there to dump the body, indicating his ability to reason and to direct and control his motor functions. This post-offence conduct is not evidence of the specific intent to kill, given that it is equally consistent with second-degree murder and manslaughter. However, it is evidence of Mr. Iverson's state of mind and his ability to form the requisite intent for murder. There is no evidence that Mr. Iverson was in a state of advanced intoxication before, during, or after the attack on Ms. Sim, and I find that he was not so intoxicated that he could not appreciate the natural consequences of his actions at the time of Ms. Sim's death. [209] I turn next to whether the accused had the mens rea necessary to be convicted of second-degree murder. Mens Rea for Murder [210] The amicus notes that the inferences to be drawn from the accused's conduct differ when dealing with death caused by means other than the use of a gun or a knife. In this case, the pathologist was unable to determine the means by which blunt-force trauma was inflicted. However, clearly there were at least three significant blows delivered to the various areas of the head, a vulnerable area of the body. Although I have found it probable that the brick was used to inflict the blows to Ms. Sim's head, I am satisfied that whether the brick or the futon frame or a fist or a foot was used to kill Ms. Sim, they are all indicative of a concerted and repeated assault. The evidence does not show that there was a fight between the victim and the accused where three blows were inflicted to various parts of the body. The blows were all to her head. This indicates the accused was capable of focusing the blows on her head, a portion of her body most susceptible to injury from focused, forceful blows. [211] The accused's intent can be inferred from the actus reus itself. This was not the case of a single blow resulting in unintended consequences. The blows were at least three in number. The decision to strike Ms. Sim more than once and to focus on her head evidences the intention to kill. The strength of the blows, the fact that they were inflicted to the head of the victim, a vulnerable part of the body, the fact that there were at least three blows and that they were to different areas of the head, all lead to the inference that the perpetrator would realize the actions would result in death. That is, he would foresee the likelihood that death would follow such bodily harm. I refer to R. v. Rybak, 2008 ONCA 354 at paras. 125-134, and Benham at para. 4. [212] The amicus suggested the three blows could have been inflicted in quick succession. There is no evidence of such and the fact the blows landed on different areas of Ms. Sim's skull militates against this suggestion. In addition, there is no evidence of a fight between them, there is no evidence of provocation or self-defence. While there is no obligation on an accused to prove any facts, nor is the Crown required to disprove every conceivable explanation or theory that there may be. The issue is whether, on the totality of the evidence, there is a reasonable doubt concerning guilt. Conclusion [213] On all of the evidence, I am not left with a reasonable doubt. I am satisfied that Mr. Iverson intended the natural and probable consequences of his actions. I am satisfied that he intended to cause Ms. Sim bodily harm that he knew was likely to result in her death and he was reckless as to whether death ensued or not. [214] As a result, the Crown has proven beyond a reasonable doubt the intent required under s. 229(a)(ii) of the Code, as well as all of the other elements of the charge of second-degree murder. I therefore find the accused, Robert James Iverson, guilty of second-degree murder. "Punnett J."