Waking-Up to a Failed Criminal Appeal in R. v. Paul BCCA

Facts & Background:

What started out as a normal night out in 2004 turned quickly into a tragedy. There was a bush party on the Penticton Indian reserve in British Columbia, and many of the partygoers were under the influence, with alcohol, marijuana and cocaine in full supply. Dustin Paul was 23 years old, high on a combination of drugs and alcohol, and having an intense conversation with himself. His father, a drug dealer, had been murdered when Dustin was 19 years old, and he could not keep his mind off of his loss.

He testified in his trial that this night he “started to think about death. If this life isn’t real, what’s death? Is it to wake up in a better life, or even a human life?” According to the judgment, “Mr. Paul said that he then heard a man’s voice say his name which startled him. It sounded close. He said that he turned to look. No one was walking by. Mr. Paul said that he answered ‘yeah.’ The voice then said, ‘It’s time to wake up.’” He testified that he took this to mean “wake up in a better life.”

Acting on a promise by the voice that he would “wake up with all these people,” he left the party, went to his vehicle and returned with a 9mm semi-automatic handgun. He picked out several individuals that he knew, and fired shots at each of them. In the end, he shot five men and killed three of them, including friends and his cousin.

The appellant then attempted suicide and was discovered floating face down in creek with “gaping wounds” on both sides of his throat and a “very, very blank dark look in his eyes,” according to testimony by the RCMP police constable who found him.

Paul survived his injuries and was charged with three counts of second-degree murder under s.235(1) of the Criminal Code of Canada (“CCC”) and two counts of attempted murder under s.239(a) CCC. He was convicted in 2006 on all five counts by a trial judge and jury at the British Columbia Supreme Court in Penticton.

On February 4, 2011, the appellant appealed his conviction in R. v. Paul 2011 BCCA 46. The appeal relied heavily on expert testimony on the appellant’s psychiatric state, and the grounds of appeal centered on the trial judge making several errors in instructing the jury.

The Main Ground of Appeal among Six

The Defence’s primary claim was that the trial judge erred in not putting to the jury the defence of “not criminally responsible by reason of mental disorder (NCRMD), formerly known as the “defence of insanity,” and found in s.16 CCC.

In the end, the Defence failed on all six grounds of their appeal. The main one of interest here is that “the learned trial judge erred in not satisfactorily explaining to the jury the mental capacity required for criminal culpability.” Although it was not a ground pursued at trial, it was now one of six grounds submitted in this appeal.

The Crown’s Case

The Crown anticipated a defence of drunkenness and opened with evidence from their expert toxicologist, followed by evidence from a psychiatric expert.

Referring to the appellant’s alcohol and drug use at that party, the Crown’s toxicologist, Ms. Dinn, concluded that appellant likely had a high level of tolerance to alcohol if he was still able to dose himself with cocaine after the amount he had consumed. Ms. Dinn also testified that “when scientists speak of a ‘black out’ they are referring to a period of memory loss with a loss of consciousness.” The BCCA noted that “[Ms. Dinn] said that the drugs that the appellant was said to have consumed would have affected his judgment and altered his behavior.”

The Defence’s Case

The Defence’s argument attempted to reason the appellant’s actions were based solely on the delusions. The defence’s psychiatrist testified that:

In [the appellant’s] opinion getting the gun and shooting the victims was the result of a bizarre belief, prompted by the auditory hallucinations and his delusional interpretation of them, that by killing himself and the victims they would all awaken to a better world.

The Defence claimed that Paul could not have formed a motive and lacked intent to commit the crime, even though their expert psychiatrist could not conclusively say that he was or was not NCRMD even though “his psychotic symptoms were due to massive substance and transient life stressors, not mental disease.”

The Defence then argued to the jury that the appellant did not have capacity to form the the intent to murder when the appellant “lost contact with objective reality.” They urged the jury to acquit Paul of murder and attempted murder, and bring back verdicts of manslaughter and assault with a weapon because he did not “have the required capacity to form an intent – a specific intent to kill.”

The Crown’s Rebuttal

The Crown’s rebuttal brought forth their own forensic expert who testified that the appellant “did not suffer from a mental disease and that, at the time of the shooting, he was in a self-induced state of intoxication.” According to the Crown’s forensic expert, the appellant had a “short psychotic episode” and subsequently engaged in “complex and sequential behavior” and, therefore, could not be NCRMD.

The Crown then submitted that Paul was in a “self-induced state of intoxication” and the voice told the appellant to “wake-up”— not to kill. The Crown also pointed to the fact that the appellant deliberately chose his victims as evidence of objective lucidity.

The Judge’s Reasoning

In evaluating this ground of appeal, the Court examined requirements of the NCRMD defence, including intent.

First, it was ruled that the defence failed to meet the requirements of the NCRMD defence. The BCCA cited R. v. Cooper [1980] 1. S.C.R. 1149, a Supreme Court of Canada case involving a patient murdering another patient at a psychiatric hospital:

In summary one might say that in a legal sense “disease of the mind” embraces any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. In order to support a defence of insanity [now a defence of not criminally responsible by reason of mental disorder] the disease must, of course, be of such intensity as to render the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong. [Original emphasis added in appeal judgement]

Based on prior evidence, the appeal judge held that Paul’s condition met “none of the criteria for mental disorder set out in Cooper,” therefore, the NCRMD defence was not available to him.

Second, the appeal judge emphasized the difference between intent and motive. The BCCA criticized the trial judge for not instructing the jury to ignore the Crown psychiatrist’s theory of the meaning of intent (that the “irrational objective” of the killing – going to a “better place” – should be viewed as a motive to kill”). The court noted that this motive, regardless of its rationality or lack thereof, must be distinguished from the meaning of intent. Nevertheless, the BCCA held that “the failure of the trial judge to spell out this more fully to the jury can only be seen as a factor favourable to the defence,” which gave them no reason to overrule the jury’s decision.

The BCCA then swiftly dismissed the remaining grounds of appeal. Consequently, the appellant will serve life in prison without eligibility of parole for 16 years as sentenced in April 2007.


The BCCA presented an interesting analysis of the defence of NCRMD despite the crux of the six grounds of appeal being based on the interactions between the trial judge and jury. While the Crown had a strong theory of the case, it moved through the mainstream criminal justice system where there are high rates of incarceration of members of the Aboriginal community. Contextual factors based on historical trauma and social issues related to drugs and violence on Aboriginal reserves is also important to consider as the events unfolded in a troubled community that has sadly received little public attention. On the other hand, some may argue that the appellant’s living conditions is not correlated with NCRMD and may not be directly relevant to a legal determination of his state of mind at the time of the shooting. It is unclear to what extent the role of Aboriginal healing circles and restorative justice plays in this case, if at all, even though there is alternative recourse available in conjunction with the Correctional Service of Canada. While this case was rightly decided, in my opinion, going to a “better place” for justice may require further inquiry into how contextual factors contribute to the outbreak of a crime such as this one.

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