Pharmacological assessment critical in Court Of Appeal’s decision to order new trial

Law360 Canada (August 9, 2024, 11:33 AM EDT) --

John L. Hill

The warning signs were there. On June 28, 1994, the Calgary Herald reported that liquor and a household quarrel set off a drama on Calgary roads that police described as “bizarre” and “outrageous.”

Jason Daniel McKay, then 22, was charged with impaired and dangerous driving. When police refused to be lured into a high-speed chase, he called 911 and told the operators that he wanted a chase “like the O.J. Simpson thing,” referring to the televised drama of the hunt for the famous football star on murder charges in Los Angeles. Impairment and domestic upheaval would continue in the years to come.

McKay moved to Regina and lived with Jenny Leigh McKay. Then, in the early morning hours of Sept. 6, 2017, when officers knocked on Jason Daniel McKay’s door and asked him where his wife was, he told them she was dead and that he had killed her.

On the kitchen floor of their home, the 33-year-old wife was found covered in blood with a kitchen knife protruding from her chest. Nearly two-and-a-half years later, a Regina judge found then 47-year-old Jason guilty of second-degree murder — an act of “unspeakable brutality,” the judge concluded (R. v. McKay, 2020 SKQB 28). He was sentenced to life imprisonment without eligibility for parole for 17 years. He appealed the conviction and sentence. McKay never denied killing his wife during the trial, which highlighted and may have been influenced by Saskatchewan’s problem with domestic violence.

He claimed he experienced a period of blackout mixed with disturbing hallucinations wherein he watched himself stab Jenny after hearing voices tell him to kill her. The appeal court was called upon to evaluate the trial judge’s reasoning and gave its decision on July 17, 2024 (R. v. McKay, 2024 SKCA 72).

It was not disputed that alcohol and drugs were critical factors in the killing. McKay had taken an antidepressant  and began drinking heavily when he returned home from work on Sept. 5. During the trial, the defence called Dr. J. Steven Richardson, a professor of pharmacology who testified that McKay’s consumption of an antidepressant and large quantities of alcohol was consistent with alcohol-induced amnesia and an inability to form the requisite intent for murder. His evidence was largely rejected by the trial judge because there appeared to be inconsistencies between what McKay told police and the testimony of other witnesses.

The trial judge’s handling of the pharmacologist’s evidence was pivotal in the appeal court’s decision that the judge erred. It is wrong, the appeal court held, that when assessing credibility, the instruction outlined in R. v. W. (D.), [1991] 1 SCR 742, (belief of the accused leads to acquittal; disbelief but a reasonable doubt remaining leads to acquittal; and conviction only if no reasonable doubt on all the evidence) applies not only to the accused evidence but to the evidence of each witness (R. v. K.J., 2021 ONCA 570). In R. v. M.J., 2022 SKCA 106, the court accepted Justice Louise Charron’s comment in R. v. Dinardo, 2008 SCC 24, that an accused’s credibility must be tested based on the evidence as a whole. Did the totality of evidence establish the accused’s guilt beyond a reasonable doubt?

The trial judge accepted the instructions on assessing credibility set out in R. v. W. (D.) but failed to apply them properly. The judge was required to consider Richardson’s evidence before he decided if McKay was in a state of amnesia and able to understand the consequences of his actions. However, the trial judge clarified that he could not consider Richardson’s evidence when evaluating McKay’s amnesia report. “He put the cart before the horse and erred in law by doing so.” The appeal court concluded that the trial judge’s error was not concluding that the Crown had proven the intent necessary for second-degree murder but in failing to take account of Richardson’s evidence when doing so. As a result, the trial judge failed to make an informed judgment.

The trial judge further erred in concluding he would not consider a “rolled-up charge” that has been explained in R. v. Phillips, 2017 ONCA 752, as “a slew of failed individual offences, justifications, or excuses whose ingredients are combined together and left with other relevant evidence for jurors to consider cumulatively” to decide if the mens rea of an offence has been established.

There was evidence that the McKays were alcoholics who often engaged in verbal and physical abuse of one another. They had a verbal altercation on the evening of the killing. The trial judge failed to consider the evidence of anger, excitement and instinctive reactions when determining if the intent for second-degree murder had been made out.

Because of these errors, the Saskatchewan Court of Appeal set aside the conviction and ordered a new trial.

John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the (True Crime) Story (AOS Publishing). Contact him at johnlornehill@hotmail.com.

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