Saskatchewan Court of Appeal upholds murder trial judge decison on intoxication defence

Law360 Canada (October 29, 2024, 12:01 PM EDT) --

John L. Hill

Sometime late on Aug. 2, 2019, or early on Aug. 3, 68-year-old Richard Fernuk was killed in his Saskatoon apartment. Fernuk had been bound, gagged and struck forcefully in the face. Ligatures around his neck were the prime cause of his death. The apartment had been ransacked, suggesting a robbery, although there was no sign of forced entry.

Leo Roy Daniels, 37 at the time of the incident, was charged with first-degree murder. The Crown contended that Fernuk was murdered while forcibly confined. However, no witnesses testified that Daniels had entered the Fernuk residence. The case was circumstantial. The judge-alone murder trial before Justice Heather Macmillan-Brown of the Saskatchewan King’s bench listed the following as indicators of Daniels’s presence in her reasons for judgment: “Video surveillance showing Mr. Fernuk and Mr. Daniels walking together in the vicinity of St. Paul’s Hospital. Witnesses who saw Mr. Daniels attempt to use Mr. Fernuk’s bank cards and prepaid credit cards at a CircleK store. Video surveillance showing Mr. Daniels sell Mr. Fernuk’s cell phone at the Hotel Senator. And, perhaps the most important piece of the evidential puzzle, Mr. Daniels’ DNA on the end of the fire poker found in the midst of the chaos in Mr. Fernuk’s apartment” (R. v. Daniels, 2022 SKKB 210).

Fernuk testified in his own defence at trial. He admitted being a homeless drug addict, drug dealer and thief and having been high after consuming 3.5 grams of methamphetamine, as was his daily habit. He told the court that when coming down after being hyper on meth, he would typically be tired and “forget stuff a lot.” Nonetheless, he denied ever being in Fernuk’s home. His evidence at trial was inconsistent. At one point, he testified he remembered everything very clearly, but on cross-examination, he had no memory of a discussion he had while on a lengthy walk with Fernuk.

The theory of the defence at trial was one of identity. In closing to the jury, Daniels’s lawyer conceded that whoever entered Fernuk’s apartment committed first-degree murder. That person, however, was not Fernuk. The trial judge accepted the expert evidence that the transference of DNA from clothing worn by Daniels to a poker used in Fernuk’s apartment was unlikely, pointed to Daniels’s guilt and entered a conviction.

Daniels appealed to the Saskatchewan Court of Appeal, which dismissed the appeal on Sept. 19, 2024 (R. v. Daniels, 2024 SKCA 92). The appellant argued on appeal that because Daniels was too intoxicated at the time to form the specific intent to murder, impairment should reduce the conviction to manslaughter. An intoxication defence had not been argued at trial. Nonetheless, the defence on appeal stated that given the evidence of drug consumption, the trial judge was required to consider such a defence.

The appeal court agreed that before a conviction is entered, the trier of fact must be satisfied beyond a reasonable doubt that each element of the offence has been proven, even if not explicitly raised by the accused (R. v. Cinous, 2002 SCC 29}. Advanced intoxication, whether by drugs or alcohol, can negate specific intent (R. v. Daley, 2007 SCC 53; R. v. Brown, [2002] 2 S.C.R. 185). The Daley case stipulated that where there is only a mild degree of intoxication, it is insufficient to give an air of reality to the defence. Indeed, the Supreme Court has instructed that a trial judge must be satisfied that the intoxication was such that it could impair an accused’s foresight of the consequences sufficiently to raise a reasonable doubt before the need to take intoxication into account arises (R. v. Robinson, [1996] 1 SCR 683).

An intoxication defence did not appear realistic in this case, considering the totality of the evidence, and the trial judge did not err in failing to consider it (Wu v. The King, [1934] SCR 609; R. v. Squire, [1977] 2 SCR 13; Pappajohn v. The Queen, [1980] 2 SCR 120; R. v. Osolin, [1993] 4 SCR 595; R. v. Davis, [1999] 2 SCR 759; and R. v. Latimer, 2001 SCC 1). Had this been a jury trial, it would have been an error for the trial judge to have included extreme intoxication in her charge. There was no reason to address the issue in her reasons for judgment.

A second ground of appeal was that the judge at trial misconstrued what the defence counsel had “conceded,” i.e., that the person who entered Fernuk’s apartment was guilty of first-degree murder.

The appeal court was satisfied that the reasons for judgment clearly showed the trial judge was satisfied with all the evidence of Daniels’s guilt. She did not base her reasons on a concession.

The trial judge’s reasons adequately set out the factual underpinnings for a conviction and a logical explanation of why the conclusion of guilt was drawn. The appeal was dismissed.

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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