COURT OF APPEAL FOR ONTARIO
Roberts, Thorburn and Favreau JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Shaun Fitzsimons
Appellant
Stephen Whitzman and Iris Liu, for the appellant
Elise Nakelsky, for the respondent
Heard: March 10, 2026
On appeal from the conviction entered by Justice James A. Ramsay of the Superior Court of Justice on January 18, 2021.
[1] The appellant, Shaun Fitzsimons, was convicted of second degree murder. There was no dispute at trial that the appellant stabbed the victim, Glenn Hewer, 28 times, and that he died from his stab wounds. The only issue at trial was whether the appellant acted in self-defence and, if not, whether he had diminished responsibility due to provocation. The trial judge found that the Crown proved beyond a reasonable doubt that the appellant was not acting in self-defence. He further found that the Crown disproved provocation beyond a reasonable doubt.
[2] In his factum, the appellant raised two grounds of appeal[1]: (1) whether the trial judge’s reasons are sufficient for appellate review; and (2) whether the trial judge misused after-the-fact conduct. At the hearing of the appeal, the appellant raised a third ground of appeal: (3) whether the trial judge erred in how he considered the provocation defence. Given that this issue was not raised in the appellant’s factum, the panel gave the appellant and the Crown an opportunity to make written submissions.
[3] Having considered the parties’ submissions, including their supplemental written submissions, I am not persuaded the trial judge made any reviewable errors.
A. background
[4] The appellant and Mr. Hewer met for the first time on the evening of April 12, 2018. They met at the apartment of Kathleen Bogor, in St. Catharines. They seemed to hit it off. They both consumed alcohol and crack cocaine that evening. Sometime in the early morning of April 13, 2018, Ms. Bogor asked them to leave the apartment. They left together and walked around the neighbourhood.
[5] Starting at 12:50 a.m., the appellant and Mr. Hewer were captured on various video cameras. The evidence of what occurred next came from the video footage and from the appellant, who testified in his own defence.
[6] After the appellant and Mr. Hewer left Ms. Bogor’s apartment, a man on a bicycle approached them. The appellant bought crack cocaine from the man.
[7] The men next walked down an alley. The appellant alleged that they then had a disagreement about whether to smoke the crack cocaine at Mr. Hewer’s residence or out in the open.
[8] The appellant and Mr. Hewer were out of sight for approximately two minutes. When the appellant and Mr. Hewer came into view again, they were face to face, with Mr. Hewer holding on to the appellant by his shirt. The appellant had a knife out. Mr. Hewer punched the appellant, and the appellant stabbed Mr. Hewer. Mr. Hewer got the appellant onto the ground and got on top of him. Mr. Hewer used his fist to strike the appellant’s head eight times. At the same time, the appellant repeatedly stabbed Mr. Hewer in the side. Mr. Hewer tried to hold down the appellant’s hand wielding the knife, but the appellant slipped from his grasp and stabbed him a few more times. Mr. Hewer got off of the appellant, threw a small object at him, and walked back up the alley. The appellant followed him.
[9] A couple of minutes later, the appellant is seen standing between the sidewalk and Mr. Hewer, blocking his way. They briefly went off camera again. When they re-emerged, Mr. Hewer is seen walking, followed by the appellant. The appellant grabbed at a lanyard hanging from Mr. Hewer’s neck on which he kept his house keys. Mr. Hewer collapsed. The appellant approached Mr. Hewer and leaned over him, then walked back down the alley. The appellant collected some of his belongings, including half of his glasses which had been broken between the two lenses, leaving behind one arm of the glasses which was marked with a Nike swoosh. The appellant then returned to Mr. Hewer, bent over him, and removed the keys from the lanyard.
[10] The appellant went back to Mr. Hewer’s residence and retrieved his belongings. He threw the knife away a few blocks from Mr. Hewer’s residence, where the police later found it. The appellant went home, put his clothes in a bag, and threw them away in a dumpster. The following day, the appellant saw on the news that Mr. Hewer had died. He changed his Facebook profile picture, removing a picture that showed him wearing glasses with a Nike swoosh.
[11] At trial, the appellant testified that Mr. Hewer attacked him in the alley, demanding the drugs. The appellant defended himself with the knife but said that he did not mean to kill Mr. Hewer. He followed Mr. Hewer into the alley to demand the keys to the apartment so that he could retrieve his belongings. The appellant explained his conduct after the stabbing by saying that he was on parole and did not want to go back to the penitentiary.
[12] The trial judge found the appellant guilty of second degree murder.
B. issues and analysis
1. The reasons are sufficient for appellate review
[13] The appellant submits that the trial judge’s reasons are insufficient for appellate review. I disagree.[2]
[14] The court is to take a functional and contextual approach in reviewing a trial judge’s reasons when those reasons are alleged to be insufficient: R. v. G.F., 2021 SCC 20, [2021] 1 S.C.R. 801, at para. 69. Judges are presumed to know the law: G.F., at para. 74. Appellate courts are not to finely parse a trial judge’s reasons searching for errors. Appellate courts must assess whether, read in context and as a whole, in light of the live issues at trial, the reasons explain what the trial judge decided and why, in a manner that permits effective appellate review: G.F., at para. 69.
[15] In this case, the issue at trial was narrow. There was no question that the appellant stabbed Mr. Hewer. Much of the incident was caught on video. The primary issue was whether the appellant acted in self-defence. The trial judge’s reasons adequately explain why he found that the Crown proved beyond a reasonable doubt that the appellant was not acting in self-defence.
[16] The trial judge explained that he did not believe the appellant’s evidence and found it did not raise a reasonable doubt. The trial judge found that the appellant’s behaviour in following Mr. Hewer back up the alley after they separated contradicted his evidence that he was fearful of him. Further, the appellant’s testimony that Mr. Hewer was still threatening him after collapsing was contradicted by his conduct in walking back down the alley in a leisurely manner to retrieve his glasses before taking the lanyard from Mr. Hewer’s neck.
[17] The trial judge accepted that Mr. Hewer was using force when the appellant inflicted some of the stab wounds. However, the appellant’s actions were not done for the purpose of defending himself and were not reasonable in the circumstances. The men were of similar size. The appellant was younger. The appellant was reacting to an imminent force but not a lethal one. He responded with lethal force. He was armed but Mr. Hewer was not. The trial judge inferred that the appellant was the aggressor, and was not in fear of Mr. Hewer. The trial judge found that it was Mr. Hewer who was defending himself.
[18] The trial judge explained that the appellant intended to kill Mr. Hewer given the number and location of the wounds, in particular to the neck and head.
[19] While the trial judge’s reasons are brief, I am satisfied that they allow for appellate review. The trial judge explained what he decided and how he arrived at his verdict.
2. The trial judge did not misuse after the fact conduct evidence
[20] In his reasons, the trial judge observed that the appellant went to great lengths to conceal his presence at the scene, which “shows lack of regard for the truth”. The appellant submits that this amounted to a misuse of after-the-fact conduct. I disagree.
[21] An accused’s conduct after the commission of an offence may provide circumstantial evidence of the accused’s guilt: R. v. White, 1998 CanLII 789 (SCC), [1998] 2 S.C.R. 72, at para. 19. Evidence of an accused’s after-the-fact conduct is admissible if it is relevant, material, not contrary to an applicable admissibility rule and its probative value exceeds its prejudicial effect: R. v. Mullin, 2019 ONCA 890, 383 C.C.C. (3d) 16, at para. 48. However, evidence of after-the-fact conduct can pose reasoning risks; a trier of fact may jump too quickly to the conclusion that after-the-fact conduct is evidence of guilt without properly considering alternative explanations for the conduct: White, at para. 22. Before inferring guilt from an accused’s after-the-fact conduct, the trier of fact must therefore consider all the evidence and be satisfied that the accused’s guilt is the only reasonable inference that can be drawn from the after-the-fact conduct: White, at para. 57; R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 136, leave to appeal refused, [2010] S.C.C.A. No. 499.
[22] As reviewed above, after Mr. Hewer collapsed, the appellant picked up some items including part of his glasses. He then walked up to Mr. Hewer and took the keys off his neck. He next went to retrieve his belongings at Mr. Hewer’s residence. The appellant then disposed of the knife and the clothes he wore that night. He later changed his Facebook profile to remove a photo of himself wearing glasses showing the Nike swoosh.
[23] The trial judge did not rely on the after-the-fact conduct as circumstantial evidence of guilt, but rather to assess the trustworthiness of the appellant’s evidence. There was no question the appellant took many steps to conceal his presence at the scene. His explanation was that he was worried he would be reincarcerated given that he was on parole. Whatever the cause for concealment, there was no question the appellant was trying to conceal the truth about his involvement in Mr. Hewer’s death, and it was fair for the trial judge to weigh this fact in assessing the appellant’s credibility. This was not an impermissible use of after-the-fact conduct.
3. The trial judge did not err in addressing the provocation defence
[24] In his supplemental submissions, the appellant submits that the trial judge’s reasons on the issue of provocation are insufficient. He argues that it is not clear from the reasons whether the trial judge misapplied the law of provocation, and specifically whether his rejection of the defence of provocation was based on his mistaken assumption that the defences of self-defence and provocation are inconsistent as a matter of law. In making this submission, the appellant relies on a submission made by the Crown to this effect and a comment made by the trial judge during closing submissions that the appellant’s evidence was not that he was provoked but that he was defending himself.
[25] I disagree that the trial judge erred in his treatment of the issue of provocation. The portion of the trial judge’s reasons dealing with provocation was very brief but there is no basis for concluding that the trial judge decided that the defence of provocation was not available to the appellant as a matter of law because he advanced self-defence as a defence.
[26] Section 232 of the Criminal Code provides for the statutory defence of provocation, which reduces murder to manslaughter:
232 (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.
(2) 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.
[27] The portion of the trial judge’s reasons addressing provocation is as follows:
The deceased did not do anything amounting to an indictable offence to provoke the accused. Even if he had committed an assault, it would be speculation and inconsistent with the evidence of the accused and his contemporaneous acts, to find that he lost self-control. Provocation is disproven.
[28] At the outset, it is important to emphasize that defence counsel’s closing submissions at trial focused on self-defence. This was consistent with the appellant’s own evidence. Defence counsel’s submissions on the issue of provocation were very brief. In the context of those submissions, defence counsel referred to this court’s decision in R. v. Gill, 2009 ONCA 124, 241 C.C.C. (3d) 1, in which, based on the evidence in that case, the court found that provocation should have been put to the jury, in addition to self-defence. Specifically, the court held that, even though the accused’s evidence in that case was that he was fearful and acted in self-defence, there was nevertheless an air of reality to provocation because there was sufficient evidence that he reacted in anger: see also R. v. Doucette, 2015 ONCA 583, 328 C.C.C. (3d) 211, at para. 30; R. v. Rasberry, 2017 ABCA 135, 348 C.C.C. (3d) 333, at paras. 72-75.
[29] As indicated above, judges are presumed to know the law: G.F., at para. 74. In this case, the trial judge did not say that self-defence and provocation are necessarily inconsistent as a matter of law. His comment was directed at the evidence before him at trial. The trial judge made a finding of fact, based on the evidence, that it would be inconsistent with the appellant’s evidence and his contemporaneous acts to find that he lost self-control. This was a finding of fact to which this court owes deference. While the trial judge’s reasons were brief on the issue of provocation, he obviously relied on his findings of fact regarding the appellant’s conduct, including that he followed Mr. Hewer in and out of the alley at a leisurely pace, to conclude that the appellant had not “acted on it on the sudden and before there was time for [his] passion to cool”, as required by s. 232(2) of the Criminal Code.
[30] In the context of counsel’s submissions and the reasons as a whole, the trial judge’s reasons on the issue of provocation were sufficient for appellate review. In addition, his finding that there was no basis for the defence of provocation was available to him based on the evidence at trial.
C. disposition
[31] I would dismiss the appeal from conviction. I would dismiss the sentence appeal as abandoned.
Released: August 24, 2026 “L.B.R.”
“L. Favreau J.A.”
“I agree. L.B. Roberts J.A.”
“I agree. Thorburn J.A.”
1The appellant served a notice abandoning his sentence appeal.
2This section responds to the original arguments made by the appellant that focused on the sufficiency of reasons more generally. In the appellant’s supplementary submissions made after the hearing, he submitted that the trial judge’s reasons on the issue of provocation were insufficient. The last section of these reasons addresses that issue separately.