



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Krewson
,









2019 BCCA 34




Date: 20190118

Docket: CA44731

Between:

Regina

Respondent

And

Howard Everett
Krewson

Appellant

Corrected Judgment: 
Paragraphs 53-55 of the
Oral Reasons for Judgment were inserted on January 30, 2019.




Before:



The Honourable Mr. Justice Harris

The Honourable Madam Justice Stromberg-Stein

The Honourable Madam Justice Fenlon




On appeal from:  An
order of the Supreme Court of British Columbia,
dated September 23, 2016 (
R. v. Krewson
, Vernon Docket 49281-2).

Oral Reasons for Judgment




Counsel for the Appellant:



D.M. Turko, Q.C.





Counsel for the Respondent:



S.E. Elliott





Place and Date of Hearing:



Vancouver, British
  Columbia

January 18, 2019





Place and Date of Judgment:



Vancouver, British
  Columbia

January 18, 2019








Summary:

Mr. Krewson appeals his
conviction of second-degree murder on the basis that (1) the judge erred
by not charging the jury on the defence of involuntary intoxication; (2) the
judges charge to the jury on the defence of intoxication was incomplete; (3)
the judge misstated evidence; (4) the judge erred in his charge on post-offence
conduct; and (5) the judge wrongly permitted the Crown to lead hearsay evidence
of bad character. Held: Appeal dismissed. (1) There was no evidential
foundation reasonably capable of being left with the jury in support of the
issue of involuntary intoxication; (2) the judge properly instructed the jury
on the defence of intoxication explicitly following all the relevant sections
of CRIMJI and reviewed the relevant evidence; (3) the judge did not
misapprehend evidence that would impact the verdict; (4) the post-offence
conduct instruction was correct and agreed to by counsel; and (5) counsels
questions to a witness are not hearsay evidence and the judges instruction was
correct and agreed to by counsel.

Background

[1]

STROMBERG-STEIN J.A.:
Howard Everett Krewson, the appellant, lived
with Linda Marie Stewart on her farm in Lumby, British Columbia, for about six
months. At trial, Mr. Krewson admitted that on June 19, 2014, he shot Ms. Stewart
with a firearm causing her death. He maintained that, at the time, he was so
intoxicated that he lacked any intention to cause her death. The key issue at
trial was his intention at the time of the shooting.

[2]

On September 23, 2016, Mr. Krewson, was convicted of second-degree
murder following a seven-day jury trial. He appeals on the basis that: (1) the
judge erred by not charging the jury on involuntary intoxication; (2) the
judges charge to the jury on the defence of intoxication was incomplete; (3)
the judge misstated evidence; (4) the judge erred in his charge on post-offence
conduct; and (5) the judge wrongly permitted the Crown to lead hearsay evidence
of bad character.

[3]

In my view, there is no merit to any of the grounds of appeal and I
would dismiss the appeal.

Facts

[4]

Ms. Stewart was attempting to flee from Mr. Krewson, reversing
her car out of her garage, when he shot her in the back with a handgun at close
range through the drivers side window. At the time, Ms. Stewart was on
the telephone with her friend, Judith Laird, and Ms. Lairds husband was
on the telephone with 9-1-1 (the call was made at 6:12 p.m.).

[5]

Ms. Laird first spoke to Ms. Stewart at 6:00 a.m. to inform
her that her brother-in-law, a close friend of Ms. Stewarts, had passed
away from cancer. Ms. Laird next spoke to Ms. Stewart at 11:00 a.m.
to see how she was doing. Around 5:00 p.m. to 5:30 p.m., Ms. Laird
received a call from Ms. Stewarts telephone but could only hear muffled
noises before the line went dead. She tried to call back a number of times and
finally Mr. Krewson answered. He asked if the telephone was okay and then
passed it to Ms. Stewart. Ms. Laird asked Ms. Stewart if
everything was alright and Ms. Stewart said, [N]o, Howard threw the phone.
Ms. Laird asked, Are you okay? and Ms. Stewart said, No, yes, no.
She said Howard was trying to hurt the dogs, throwing marihuana at the dogs,
and hes knocked stuff all over the kitchen. She sounded upset but was
speaking calmly.

[6]

Ms. Laird could hear Mr. Krewson talking loudly in the
background and the sound of clanging pots and pans. Ms. Stewart refused Ms. Lairds
offer to come over and said she thought she could get this under control. She
told Ms. Laird that she would call her back at 6:00 p.m. Ms. Laird
called her back before 6:00 p.m. because she was concerned. At that point, Ms. Stewart
told her, I just want Howard to leave. Mr. Krewson started yelling and
swearing, saying he was not going to leave and it was his fing house. Ms. Laird
could hear things being thrown. She testified, I could tell he got more
agitated and was really getting more angry and things were getting more
violent. Ms. Stewart expressed concern for the welfare of the dogs. She
said she was going to the bedroom and Ms. Laird could hear Mr. Krewson
walking behind her and talking in her ear. Ms. Stewart told him, Howard,
if you dont calm down, Judys going to call the police. Mr. Krewson started
yelling, Go ahead and call the police. Then youll see whatll happen. Ms.
Laird could hear Ms. Stewart ask him what he would do.

[7]

Ms. Stewart then told Ms. Laird, Oh, great, hes threatening
to kill himself; Im just going to leave. Ms. Laird could hear her head
towards the kitchen with the dogs followed by Mr. Krewson who was asking
her what she was going to do. As she got to the breezeway, she told Ms. Laird
theres poison everywhere for the dogs. Ms. Laird heard her go to the
garage and try to get into the car and heard a bottle fall out and break. Ms. Stewart
told her she had to move the beer bottle. She heard the door to the garage open
and Howard asking what she was doing. Ms. Stewart told him, Im just trying
to get the dogs into the car. He asked her why and she told him, Just help me
get them in the car. She said a number of times, Howard, close the door. She
got into the car and started it and said, Howards locked me in and then Howards
gone into the house. In answer to a question relayed from Ms. Lairds
husband, Ms. Stewart told Ms. Laird we have guns. She told Ms. Laird,
Im going to run and open the door. Next she said, I got the door open and
Im going to leave. She said she was backing up and then said, Oh, God,
Howards behind me; Oh, God, hes got a gun; Judy, hes going to shoot me.
Ms. Stewart sounded desperate. Ms. Laird heard the window implode, a
dog panting, and then the phone went dead.

[8]

In her statement to the police, Ms. Laird indicated Howard was
acting really bizarre but said that was not a word Ms. Stewart used, nor
did she say he was not acting normally. Ms. Stewart told Ms. Laird she was
clear-headed but Mr. Krewson was drunk on drugs; she thought he was drunk on
some kind of pills. She said she gave him half a pill from her prescribed
antidepressants, and she thought he took another. Ms. Laird could not tell
if he was drunk but said he was very angry and she had never seen him behave
like this or intoxicated before.

[9]

The police were dispatched at 6:15 p.m. or 6:20 p.m. and arrived at the
farm around 6:30 p.m. The first officer on scene found Mr. Krewson inside
the house, moaning and laying face down on a couch bleeding from a gunshot
wound to the face. When the officer asked if he shot himself, Mr. Krewson
responded, Yes, I shot myself in the face. When asked where Linda was, he said,
Shes in the car, I think. The officer located Ms. Stewart slumped
across the front seat of a still-running vehicle, phone in hand. When the
officer shut the car off it moved. When he asked Mr. Krewson if he shot
her, Mr. Krewson said, Yes. Yes, I did. We were drinking and took some pills. Sleeping
pills, I think. I did. I didnt mean to. Could I get some cold water, please?
The officer said he had no difficulty understanding him and his responses to
questions were reasonable and rational.

[10]

The paramedics arrived at 6:34 p.m. At 6:47 p.m., Mr. Krewsons Glasgow
Coma Score was 15, the maximum score, indicating he was fully orientated,
conscious, and aware of time and place. Paramedic Parkes said Mr. Krewson
answered her questions coherently and correctly. She had no concerns about his
mental capabilities. He provided his first name and date of birth. He followed
directions to feel his teeth with his tongue to see if his teeth were intact.
When paramedic Wilkerson said Ms. Stewart was deceased, Mr. Krewson
repeatedly said he was sorry. When asked who the lady in the car was, he
responded, My wife. I shot her.

[11]

The firearm was Mr. Krewsons .44 calibre Ruger revolver. Two shots
were fired into the car and one into Mr. Krewsons face. It was a single
action firearm that, in order to operate, required grasping the hammer, pulling
it to the rear, and then pulling the trigger to release the hammer. This would
have to be repeated in order to chamber a bullet and fire another shot.

[12]

Christine Dagenais was qualified as an expert in forensic toxicology.
She analyzed a sample of Mr. Krewsons blood taken at 9:06 p.m. She found
a blood alcohol concentration of 71 milligrams percent. Extrapolating back to 6:20
p.m., she estimated his blood alcohol content would have been 99 to 126
milligrams percent. At this level, Mr. Krewsons level of intoxication
would have been mild to moderate. She detected carboxy THC in Mr. Krewsons
blood, which has no psychoactive effects (but she did not detect THC, which
does), indicating that he had not smoked marihuana within two to four hours
prior to the sample being taken. The effects of smoking marihuana would be
additive to the effects of the alcohol and may increase sedation and
relaxation.

[13]

Ketamine and benzodiazepine were detected in the blood sample, which had
been administered by Emergency Health Services (EHS). Mr. Krewson attempted
to cast doubt on the analysis on the basis that he had been administered
fentanyl by emergency personnel, which was not detected in his sample. Ms. Dagenais
testified that a low dose of fentanyl would be eliminated rapidly or may have
been below detectable limits. Dr. Riar offered an opinion that fentanyl
would show up in the blood three hours after ingestion.

[14]

A number of pill bottles were seized from the residence. The toxicology
report indicated none of the ingredients in the prescription pills were detected
in Mr. Krewsons blood sample such as lorazepam, diltiazem, carbamazepine,
ketorolac, tromethaprine, tramadol or codeine.

[15]

Mr. Krewson
testified that starting around 6:00 a.m., he had been drinking wine and beer
and smoking marihuana. He said he had a glass of wine after breakfast, three
glasses of wine at lunch, and after 1:00 p.m. he had two to three beers an hour
until around 4:00 p.m. or 5:00 p.m. He estimated he had seven, eight, maybe
nine beers. Around 5:00 p.m., he said he had another glass of wine. He said he
smoked one-and-a-half marihuana cigarettes before breakfast. After breakfast,
he finished the other half or shared two more marihuana cigarettes. He said he
and Ms. Stewart smoked one or two marihuana cigarettes an hour between
noon and about 5:20 p.m.

[16]

He claimed Ms. Stewart
gave him part of a sleeper or sleeping pill to help him relax as he was
anxious about work. He believed he took another half or whole pill 15 to 20
minutes later. He believed he went to the kitchen for a beer and may have taken
a handful of pills that were on the counter. He claimed he felt light-headed
and bizarre and faded out, or blacked out, or went green, after taking an
undetermined number of unidentified pills, which he thought were sleepers but
could have been lorazepam. The only thing he recalled before waking up on the
couch was hearing dogs running around. His evidence of his pattern of drinking
was inconsistent with the toxicology report and could put his blood alcohol
concentration over 200 milligrams percent, suggesting advanced intoxication.

[17]

Dr. Kulwant Riar, who was qualified as an expert in forensic
psychology, testified that drug or alcohol induced blackouts impact memory but
do not necessarily entail the absence of contemporaneous intention. He opined Mr. Krewson
had the intention to shoot Ms. Stewart and should have known that he would
kill Ms. Stewart, but because Mr. Krewson could not remember anything, Dr. Riar
could not determine whether he had the intent to kill. However, Dr. Riar offered
an opinion that looking at the circumstances and how he was reacting at the
time, I have my doubts that he had the ability to form an intention to kill
her.  Dr. Riar considered the abnormal circumstances to be poisoning the
dogs and throwing things around, although the latter could be a sign of
aggression. He testified that it takes about 3035 minutes for drugs to be
absorbed into the system. He agreed Mr. Krewsons Glasgow Coma Score
indicated he was fully orientated and conscious.

Issues

[18]

Mr. Krewson raises the following issues:

1.     Did
the trial judge err in not instructing the jury on the defence of involuntary
intoxication?

2.     Did
the judge err in his instructions on the defence of intoxication:

(i)   by
stop[ping] short of providing the relevant sections of the Canadian Criminal
Jury Instructions; and/or

(ii)   by
failing to refer to the expert evidence on intoxication specifically during his
instructions on that defence?

3.     Did
the judge misapprehend evidence during his charge to the jury, including:

(i)   the
timing of Mr. Krewsons self-inflicted gunshot wound; and

(ii)   the
types of pills that he had taken?

4.     Did
the judge err in his charge on post-offence conduct?

5.     Did
the judge err in allowing the Crown to put hearsay evidence of bad character
before the jury?

1. Did the trial judge err in not instructing the jury on involuntary
intoxication?

[19]

The issue at trial was intention. Mr. Krewson raised the defence of
intoxication. At the close of the defence case, for the first time, he raised
the issue of involuntary intoxication. Mr. Krewson argued that the effect
of taking pills, which he thought were sleeping pills, caused him to reach a
level and type of intoxication that caused him to lack the requisite
mens
rea
for both murder and manslaughter.

[20]

He submits there was an air of reality to involuntary intoxication as
there was some evidence upon which a properly instructed jury acting reasonably
could acquit.

[21]

I would note that,
unlike the many cases that have considered involuntary intoxication, it was not
alleged that Mr. Krewson was operating in an automatic state or was in a
state of extreme intoxication akin to automatism.

[22]

In determining
whether there was an air of reality to the defence of involuntary intoxication,
the judge was required to ask whether there was any evidence disproving any of
the three elements in the
Chaulk
test:
R. v. Chaulk
, 2007 NSCA 84
at para. 47. In that case, the issue was whether the judge erred in
concluding that Mr. Chaulk's intoxicated state was not
"self-induced". There was no dispute Mr. Chaulk was operating in
an automatic state when he committed a number of offences. He said he took a
wake-up pill and honestly thought he was taking a caffeine pill. Therefore,
his state of extreme intoxication was not "self-induced".

[23]

Chaulk
sets out a test for determining whether
intoxication is self-induced: (1) the accused voluntarily consumed a
substance, which; (2) he or she knew or ought to have known was an intoxicant,
and; (3) the risk of becoming intoxicated was or should have been within his or
her contemplation: at para. 47.

[24]

The accused need not
contemplate the extent of the intoxication:

[46]       The law concerning
responsibility for ones acts following voluntary ingestion of intoxicating
substances does not require that the consumer know to a nicety what the effect
of the intoxicating substances will be. It is enough that he knows it might be
dangerous and is recklessly indifferent with respect to ingestion or as to
warnings relating to the effects of ingestion.

[25]

Chaulk
cited
The Queen v. King
, [1962]
S.C.R. 746, which established an objective test for an involuntary intoxication
defence. An accused who voluntarily consumed alcohol or a drug which he knew
or had any reasonable ground for believing might cause him to be impaired
cannot avoid the consequences of the impairment which results by saying that
he did not intend to get into such a condition:
King
at 763.

[26]

Chaulk
also cited
R. v. Vickberg
(1998),
16 C.R. (5th) 164 (B.C.S.C.), where Owen-Flood J. set out the following test to
determine whether intoxication was self-induced:  for intoxication to be
self-induced, the accused must intend to become intoxicated, either by
voluntarily ingesting a substance knowing or having reasonable grounds to know
it might be dangerous, or by recklessly ingesting such a substance:
Vickberg
at para. 68.

[27]

The Court also cited
R. v. Brenton
(1999), 180 D.L.R. (4th) 314 (N.W.T.S.C.), revd on other
grounds 2001 NWTCA 1, where the Court referred to the objective element on the
issue of self-induced intoxication in the following terms:  the risk of
becoming intoxicated is within the contemplation or should be within the
contemplation of the individual: at para. 31.

[28]

The judge in this case refused to instruct the jury on involuntary
intoxication. He had previously ruled that the defence hinged upon Ms. Lairds
evidence of whether Ms. Stewart told her Mr. Krewson was drunk on
pills or drunk on drugs. The judge concluded she had said only that he was
drunk on drugs. Therefore, he held:

THE COURT: Well, I was
concerned. And one of the reasons I was going to allow evidence of voluntary [
sic
]
intoxication in was based on your submission that that was the evidence of the
deceased, that he was drunk on pills. So with that evidence out I have decided
I am not going to include that involuntary intoxication in the charge. Theres
just no air of reality to it with those words taken out. So Im not charging on
that.

[29]

In fact, Ms. Lairds evidence was that Ms. Stewart said Mr. Krewson
was drunk on drugs and drunk on pills.

[30]

In my view, the
judge was incorrect with respect to his
reason
for not leaving the issue
of involuntary intoxication with the jury but was ultimately correct in
concluding there was no air of reality to it:
R. v. Cinous
, 2002 SCC 29.

[31]

Mr. Krewsons evidence
of involuntary intoxication can be summarized as follows:

·

Ms. Lairds evidence that Ms. Stewart said she gave Mr. Krewson
half of an anti-depressant pill and he may have taken more.

·

Mr. Krewsons evidence that he took half of a pill from Ms. Stewart,
which he thought was a sleeping pill, to help him relax or take a little
catnap because he was anxious about a work event.

·

Mr. Krewsons evidence that he remembered taking another
pill, but he is not sure if it was a half or whole pill, and he might have
taken more pills but he could not say for sure.

[32]

Mr. Krewson
admitted he consumed copious amounts of alcohol, marihuana, and pills
voluntarily. There is no suggestion he did not know the pills were intoxicants.
In fact, he admitted he took the half pill from Ms. Stewart for its
intoxicating effect. Clearly, the risk of intoxication ought reasonably to have
been in Mr. Krewsons contemplation. The evidence overwhelmingly
established self-induced intoxication, not involuntary intoxication. He did not
advance a defence of automatism (and nor could he, as there was certainly no
air of reality to that defence). The relevant defence at trial was intoxication.

[33]

In my view, there
was no evidential foundation reasonably capable of being left with the jury in
support of the issue of involuntary intoxication. Mr. Krewsons own
evidence contradicts any claim that his intoxication was not self-induced and
is unsupported by the toxicology results that identified a relatively low blood
alcohol content and no evidence of any of the prescription pills seized from
the residence.

[34]

In my view, there is
no merit to this ground of appeal.

2. Did the judge err in his instructions on the defence of intoxication?

[35]

Mr. Krewson submits the judge failed to provide the jury with a
proper charge respecting the defence of intoxication. Specifically, he says the
judge failed to follow relevant sections of
CRIMJI: Canadian Criminal Jury
Instructions
, 4th ed., loose-leaf (updated November 2015), (Vancouver:
Continuing Legal Education Society of British Columbia, 2005)
at 8.36 (
CRIMJI
),
and failed to refer to expert evidence when charging the jury.

[36]

I agree with the Crown that the record contradicts Mr. Krewsons
submissions.

[37]

Prior to the judge instructing the jury, there were a number of
pre-charge conferences where the judge sought and received input from counsel
on the content of his jury charge. The judge was receptive to all the
suggestions of counsel except for leaving involuntary intoxication with the
jury on the basis that there was no air of reality.

[38]

The sole issue for the jury was whether the Crown had disproved beyond a
reasonable doubt the defence of intoxication in relation to the specific intent
for murder. Mr. Krewson agreed that all the elements of manslaughter were
proven on the evidence if the jury found him not guilty of murder.

[39]

The judge, in instructing the jury, noted that Mr. Krewson had
conceded all of the essential ingredients of second-degree murder except
intention. That is, the jury would need to be satisfied that the Crown had
established beyond a reasonable doubt that Mr. Krewson either: (a) meant
to cause the death; or (b) meant to cause bodily harm that he knew was likely
to cause death and was reckless as to whether it caused death.

[40]

The judge used the model charge in
CRIMJI
, reviewed the relevant
evidence, and instructed the jury on the defence of intoxication. He explained,
On the defence of intoxication, the Crown must prove that defence does not
leave you in a reasonable doubt concerning the guilt of the accused. He
explained that [i]ntoxication is a defence to the offence of murder if the
accused was so intoxicated that he did not have the necessary intent to commit
the offence. He noted that intoxication could impact an accuseds ability to
foresee the fatal consequences of his or her actions.

[41]

In my view, the judge properly instructed the jury on the defence of
intoxication explicitly following all the relevant sections of
CRIMJI
.
As the Crown notes, the jury verdict of guilty of murder was not only
reasonable but predictable. Contrary to Mr. Krewsons evidence that he was
in an advanced state of intoxication and lacked the specific intent to murder Ms. Stewart,
the evidence overwhelmingly supported the verdict  having regard to what Ms. Laird
overheard, to his interactions with the first responders, to the toxicology
results, and even to Dr. Riars opinions.

[42]

In my view, there is no merit to this ground of appeal.

3. Did the judge misapprehend evidence during his charge to the jury?

[43]

Mr. Krewson
submits the judge materially misapprehended evidence regarding the timing and
location of Mr. Krewsons self-inflicted gunshot wound and the type of
pills he consumed, which led to a miscarriage of justice. I note the jury was
told they were the arbiters of the facts and it was their memory of the
evidence that was relevant. In any event, in my view, there was no failure to
consider evidence relevant to a material issue, a mistake as to the substance
of the evidence, or a failure to give proper effect to evidence that would
impact the verdict:
R. v. Morrissey
(1995), 22 O.R. (3d) 514
(C.A.) at 538 and affirmed in
R. v. Lohrer
, 2004 SCC 80;
R. v. Swales
,
2014 BCCA 350.

[44]

In my view, there is simply no merit to this ground of appeal
substantially for the reasons set out in the respondent Crowns factum at paras. 7286.

4. Did the judge err in his charge on post-offence conduct?

[45]

Although not advanced as a separate ground of appeal, Mr. Krewson
asserts the judge failed to properly instruct the jury on the limited
inferences they could draw from his post-offence conduct of shooting himself in
the face. At trial, Mr. Krewson relied on this event as evidence of
intoxication impacting his ability to form the specific intent to murder Ms. Stewart.
The appropriate post-offence jury instruction was discussed and agreed upon in
pre-charge hearings. At defence counsels request, the judge removed reference
to attempted suicide and referred instead to shot himself in the face. In
his jury charge, the judge instructed that the after-the- fact conduct was a
piece of circumstantial evidence for the jury to consider in determining
whether the Crown had proven its case beyond a reasonable doubt. He instructed
the jury further:

It should not be viewed in a vacuum
but should be assessed like all other circumstantial evidence. To find guilt
based on this evidence, it must be consistent with the accused's guilt and
inconsistent with any other rational conclusion. The evidence of the accuseds
post-offence conduct has only an indirect bearing on the issue of guilt. You
should exercise caution in inferring guilt because the conduct might be
explained in an alternative manner. The accuseds post-offence conduct can only
be used by you to support an inference of guilt when you reject any innocent
explanation for that conduct.

[46]

In my view, in the circumstances of this case, this instruction was
correct. There is no merit to this ground of appeal.

5. Did the judge err in allowing the Crown to put hearsay evidence of bad
character before the jury?

[47]

Mr. Krewson submits the Crown was permitted to lead hearsay
evidence of bad character. It was conceded Mr. Krewson put his character
in issue when he told Dr. Riar he had no criminal record and no history of
aggression or violence with women. Following discussions with the judge and
defence counsel, the Crown was permitted to cross-examine Mr. Krewson as
to whether he had abused two former girlfriends. He denied the allegations and
neither woman was called to testify in rebuttal.

[48]

Mr. Krewson contends the judge erred in allowing Crown to put
hearsay evidence about Mr. Krewsons bad character before the jury.
Specifically, he argues that the Crowns questions to him on cross-examination
about his prior relationships with two women amounted to hearsay evidence
because the Crown sought to have the evidence admitted for the truth of its
contents. He submits the judges caution to the jury was not enough; the
prejudice could not be undone.

[49]

The judge did not allow the Crown to put hearsay evidence of bad
character before the jury. Counsels questions to a witness are not evidence,
let alone hearsay evidence. The jury was told this at the beginning of the
trial and in the final charge to the jury.

[50]

Following pre-charge discussions, the judge instructed the jury to
accept Mr. Krewsons denial of the prior abuse allegations, since neither
ex-girlfriend testified at trial. This was a proper instruction and was agreed
to by counsel.

[51]

There is no merit to this ground of appeal.

Conclusion

[52]

I would grant an extension of time to appeal to September 14, 2017, but I
would dismiss the appeal.

[53]

HARRIS J.A.
: I agree.

[54]

FENLON J.A.
: I agree.

[55]

HARRIS J.A.
: An extension of time to appeal to September 14, 2017
is granted, but the appeal is dismissed.

The
Honourable Madam Justice Stromberg-Stein


