The lawyer for a Kelowna man facing a second-degree murder charge told the court that the accused was too drunk to form the intent to kill.
Brandon Davina’s defence counsel, Jordan Watt, made the argument in Kelowna Supreme Court on Nov. 25 as the accused faces the charge for the killing of Brianna Jankauskas on the evening of Aug. 21, 2023.
The pair had allegedly been on a date earlier in the day before heading to Davina’s residence, where Jankauskas was later found by police to be unresponsive and bleeding profusely. Jankauskas died in hospital a few hours later. Davina has pleaded not guilty.
Defence aims to bring the charges down to manslaughter, stating that Davina did not intend to kill Jankauskas.
Watt argued in court that Davina, who is believed to have alcohol use disorder, was too intoxicated to form the intent to kill Jankauskas. Evidence presented earlier in the trial found beer cans scattered about Davina’s residence and vehicle. The accused testified that at the time he was consuming about a flat of beer per day, or 24 cans.
Davina told the court earlier in the trial that he was “really drunk” on the day he was with Jankauskas. Defence stated that at the time of the killing, Davina was too intoxicated to measure the consequences of his actions, leaving reasonable doubt that Davina actually intended to kill the victim.
Watt, however, told Justice Shelley Fitzpatrick that if the defence of intoxication failed, then the argument of provocation must be considered.
Defence told the court Davina had been provoked by Jankauskas conduct leading to her death. Provocation in the criminal code is defined as “conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool.”
Watt recalled Davina’s testimony, where he said Jankauskas had called him an idiot and a drunk, along with slapping and pushing him while in the kitchen, causing Davina to react suddenly and with a lack of self-control.
Justice Fitzpatrick questioned Watt on just how suddenly Davina reacted, recalling the court heard earlier in the trial that Jankauskas had turned and walked away from Davina after insulting him, sat down on the couch and pulled out her phone, ignoring the accused.
“It is important not to take a compartmentalized approach,” Watt told the court.
Defence continued that when Davina’s intoxication is considered alongside the argument of provocation and Davina’s circumstances at the time – facing home eviction and the possibility of losing his job – that the accused acted in the heat of the moment and, therefore, could not form the intent to kill.
The trial continues on Nov. 25 and is expected to wrap up by the end of the week.