R v Matchatis, 2020 ABCA 435
[26] Determining whether an accused’s level of intoxication rises to the level of impairing an accused’s foresight of the consequences of their acts is a highly factual and contextual exercise. While expert evidence is not a prerequisite to a defence of advanced intoxication as it is with intoxication akin to automatism, it is nonetheless common: R v Arjun, 2015 BCCA 273 at para 39, leave to appeal ref’d [2015] SCCA No 324. Expert evidence as to the accused’s blood alcohol level when the crime was committed, and the impact the accused’s blood alcohol level would have on their cognition, can provide important context in which to assess the accused’s actions. For her part, Dr. Massey provided only an assumption based on the evidence of Phyllis and Matchatis, that “If you did a blood alcohol reading on him, I’m pretty sure he’d be really high.”
[27] Other relevant factors include the mannerisms of the accused (slurring, staggering, glossy eyes); ability to recall details of the day and the events in question; and ability to act responsively or to carry out purposeful actions before the commission of the offence. Further, an accused’s post-offence conduct may be considered to discredit a defence, like advanced intoxication, relating to whether an accused formed the requisite intent: R v Jaw, 2009 SCC 42, [2009] 3 SCR 26 at para 40.
[28] Absent expert evidence on this issue, the trial judge was left with generic evidence as to Matchatis’ level of impairment. Indisputably, the evidence suggests Matchatis had been drinking all day and was intoxicated. The trial judge recounted that Tyler placed his father’s intoxication that evening at 9 on a scale from 1 to 10, and Phyllis’ evidence that he was “just about blacked out drunk” but generally can function even when drunk and it takes a lot of alcohol for him to pass out. Phyllis said Matchatis was a seasoned drinker who, after a period of abstinence, had been drinking regularly for over a year; he could handle his liquor, particularly beer.
[32] A trial judge must weigh and consider all of the evidence of intoxication in a contextual manner to determine whether the accused’s intoxication crossed the line from mere loss of inhibition, impaired judgment and increased bravado to the point where they are left with a reasonable doubt as to whether the intoxication was severe enough that its effect might have impaired the accused’s foresight of the consequences of their actions. In our view, the trial judge did just that. Matchatis’ actions both before and after the shooting, together with his detailed recall of the events, evinced a sense of awareness. We defer to his ultimate finding that the nature of this homicide was consistent with an intention to kill the deceased.
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