The appeal judges said no legal errors were made when Leo Daniels was convicted of tying Fernuk to a chair with cords around his neck.
The Saskatchewan Court of Appeal has dismissed a Saskatoon man’s appeal to overturn his first-degree murder conviction.
Daniels appealed his murder conviction on two grounds. He argued the trial judge failed to consider the defence of intoxication, and didn’t give reasons for believing he intended to kill Fernuk, a 68-year-old father and grandfather who was found dead in his Exhibition neighbourhood apartment on Aug. 3, 2019.
Fernuk had been tied to a kitchen chair with cords and clothes. Court heard he died from asphyxiation caused by two cords wrapped around his neck and tied to the back of the chair.
Justice Heather MacMillan-Brown concluded Daniels robbed and confined Fernuk, and that it was first-degree murder because Fernuk was killed in the commission of a confinement.
The trial heard Fernuk met Daniels outside a 20th Street gas station around 4 a.m. on Aug. 2, 2019. Fernuk had just been released from hospital, where he’d been treated for a heart problem, and was trying to charge his phone to call for a ride.
A surveillance video taken later that morning showed Daniels trying to use Fernuk’s bank cards at a convenience store near Fernuk’s apartment.
Daniels said he consumed meth and most of a bottle of whiskey before meeting Fernuk, but the appeal judges noted his testimony about his memory was inconsistent.
“At one point, he testified that he remembered everything that happened clearly. On cross-examination, however, he said that he could not remember anything of his discussion with Mr. Fernuk during the course of their lengthy walk,” Justice Naheed Bardai wrote on behalf of himself, Justice Jeffery Kalmakoff and Justice Meghan McCreary.
The appeal judges noted that Daniels’s trial lawyer never raised a defence of “advanced intoxication,” instead maintaining that Daniels didn’t kill Fernuk.
Daniels alleges MacMillan-Brown was still required to consider the intoxication defence “because his evidence gave an air of reality to the defence and its availability to undermine the mens rea component of the offence,” the appeal decision stated.
Even if Daniels was truthful about his drug and alcohol consumption, the rest of the evidence doesn’t support a level of intoxication that would strip away the necessary intent for murder, the appeal judges ruled, concluding no legal error was made by not addressing intoxication in the trial decision.
At trial, defence lawyer Blaine Beaven conceded that whoever killed Fernuk had committed first-degree murder. In his appeal, Daniels argued the judge used this concession to support her finding that it was an intentional killing.
“Even in the absence of the ‘concession,’ her factual findings and credibility assessment lead to the same obvious conclusion,” Bardai wrote, dismissing the second ground of appeal.
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