COURT OF APPEAL FOR ONTARIO DATE: 20231222 DOCKET: C69404
MacPherson, Pepall and van Rensburg JJ.A.
BETWEEN
His Majesty the King Respondent
and
Kyle Firlotte Appellant
Counsel: Brian H. Greenspan and Naomi M. Lutes, for the appellant Manasvin Goswami, for the respondent
Heard: May 29, 2023
On appeal from the conviction entered on October 9, 2020 by Justice Andrew J. Goodman of the Superior Court of Justice, sitting without a jury, with reasons reported at 2020 ONSC 6122.
van Rensburg J.A.:
A. Overview
[1] Jonathan Bailey was beaten, bound with duct tape, and abducted by the appellant and an accomplice the evening of November 7, 2017. He was driven to a remote farmer’s field where the attack continued. Mr. Bailey’s body was found the next morning.
[2] The appellant was charged with first degree murder. It was conceded that Mr. Bailey was abducted and forcibly confined, and that the appellant’s actions were unlawful and a significant and substantial cause of the victim’s death. The sole issue at trial was whether the appellant had the intent for murder, in particular whether, under s. 229 (a)(ii) of the Criminal Code, he meant to cause bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.
[3] After a judge-alone trial, the appellant was convicted of first degree murder. He submits that the verdict was unreasonable because (1) guilt was not the only reasonable inference available on the largely circumstantial evidence; and (2) the trial judge erred in making key findings of fact that were plainly contradicted by or incompatible with other evidence the trial judge accepted. He contends that the trial judge’s reasons were inadequate. He also asserts that the trial judge made legal errors in relying on the “common sense inference” that a sane and sober person intends the natural consequences of their actions and concluding that the appellant’s having abandoned the victim was dispositive of his intent. The appellant asks that a conviction for manslaughter be substituted for the first degree murder conviction.
[4] For the reasons that follow, I would dismiss the appeal. Briefly, the appeal seeks to challenge, through the four separate and overlapping grounds of appeal, the reasonable and compelling inferences about intent that were drawn from the largely circumstantial evidence. The trial judge’s acceptance that the Crown had established that the appellant subjectively intended to cause Mr. Bailey bodily harm that he knew was likely to cause the victim’s death and was reckless whether he died or not, was supportable on the whole of the evidence, and was a clear rejection of the defence position that the appellant’s intention was only to collect on a drug debt. The common sense inference was properly engaged in this case, and the trial judge did not err in considering the circumstances of the victim’s abandonment as relevant to the question of intent. None of the grounds of appeal successfully impugn the trial judge’s conclusion that, in the course of Mr. Bailey’s abduction, transportation to a remote rural location, the further significant assaults, and the circumstances in which the victim was left, the situation had escalated and the appellant had the required intent for murder.
B. The Trial Evidence
[5] Much of the evidence at trial was contained in an agreed statement of facts and seven volumes of related materials referred to in the agreed statement. The agreed facts and materials included the evidence of various civilian and police witnesses (some by way of transcripts from the preliminary inquiry), photographs, cell phone tower records, transcripts of intercepted calls and conversations, weather records, and DNA evidence. Two expert forensic pathologists testified at the trial, one called by the Crown and the other by the defence. They offered largely consistent opinions as to the cause of death, the extent of Mr. Bailey’s injuries, the severity of the assault on him, and the condition in which he was left in the field.
[6] Mr. Bailey was a drug dealer who had cheated the appellant on a drug deal the previous month. On November 7, 2017, at around 7:50 p.m., in a parking lot in Stoney Creek, Ontario, the appellant and another person dragged Mr. Bailey from his vehicle. They punched and kicked him and went through his pockets. They bound him with duct tape and forced him back into his vehicle. They left the abduction scene shortly thereafter, travelling eastbound along Paramount Drive.
[7] As they were driving, several calls were made to and from the victim’s cell phone. These included four calls in which the appellant referred to the victim owing him money. During a call from M.R. (Mr. Bailey’s friend who also knew the appellant), the appellant told M.R. they had kidnapped Mr. Bailey’s runner and were looking for Mr. Bailey because he owed the appellant money. M.R. mentioned that Mr. Bailey owed her money, and the appellant said, “Oh, okay, he owes you money too? He’s a dead man”. In a call to Mr. Bailey’s brother, A.B., the appellant said they were looking for “John” who owed them money, and that they had his runner, Brian. He said, “If we don’t get our money John’s a dead man”. Then the caller put the so-called runner “Brian” on the phone for two or three seconds (A.B. said it sounded like the same voice) and he said, “if you know where John is please tell them because they’re going to kill me if not”. A.B. thought the call was a joke.
[8] The assailants left the roadway and drove into a farmer’s field as far as they could go before encountering a drainage ditch, arriving around 8:17 p.m. There the attack continued. The pathologists’ evidence indicated that Mr. Bailey’s sternum was fractured due to a forceful blow, which had also caused his chest to bleed, and there were patterned bruises on his back, left arm and right leg caused by impact with either a narrow cylindrical or rectangular object or surface. There were lacerations on both hands and on his face. There were multiple contusions on his scalp, forehead, upper face and nose. His eyes were swollen shut. The pathologists concluded that the victim had been struck in the head in multiple places, the defence pathologist stating that there were 12 areas of injury to his head. The blunt force trauma to the victim’s head caused mild traumatic brain injury; the pathologists opined that this would have affected his level of consciousness.
[9] Duct tape had been placed around the victim’s lower leg and possibly around his head and other areas. The outside temperature was at or below freezing during the time Mr. Bailey was in the field. The appellant and his accomplice left Mr. Bailey in the field where they delivered the second assault. They left in Mr. Bailey’s vehicle, which they had driven from the abduction scene. The vehicle was located several weeks later several kilometres away from where Mr. Bailey had been left.
[10] Mr. Bailey’s body was discovered the next morning, when a hunter who was driving along South Chippewa Road toward his camp observed something in a field, and, using binoculars, confirmed it was a human body. The police located Mr. Bailey’s body 200 metres from the road. He was on his back, with his head face-up, and his hands positioned together on his chest near his sternum. He was covered head to toe in blood and mud. He was dressed in a t-shirt and pants and was partially undressed. A water bottle was located to the left side of his head and there was some duct tape in a circular shape beside his head. His shoes were 12.47 and 15.55 metres away from his body.
[11] Mr. Bailey’s blood and DNA were identified on objects at the abduction scene, including an empty duct tape roll and duct tape, and on objects where his body was recovered, including gloves and a plastic bottle. His blood was on the blade and handle of a machete recovered from his vehicle.
[12] The pathologists agreed that neither the blunt force nor the sharp force injuries were fatal, and that Mr. Bailey’s death was best understood as having resulted from the contributing effects of four factors: his injuries; his intoxication with drugs; an enlarged heart, which may or may not have been an onset of a disease process; and exposure to cold temperatures. The pathologists agreed that Mr. Bailey was in a state requiring medical attention but was not yet dead when he was left in the field.
C. The Trial Decision
[13] The defence conceded that the appellant had caused the victim’s death, and that the death was caused unlawfully. It was also conceded that the victim had been forcibly confined by the appellant, that Mr. Bailey had been the victim of a brutal, vicious, and gratuitous assault by the appellant and another person, and that the appellant and his accomplice had left Mr. Bailey in a farmer’s field. The only issue at trial was whether the appellant had the necessary mens rea for murder: that the appellant subjectively intended to cause the victim bodily harm that he knew was likely to cause the victim’s death and was reckless whether he died or not. It was not disputed that, if intent for murder was proven, the appellant would be convicted of first degree murder.
[14] The Crown’s position was that the appellant had orchestrated and carried out a plan to attack, abduct, bind, and transport Mr. Bailey to a secluded rural area, and that the plan evolved to include the use of a machete to cause sharp force injuries to both of the victim’s hands. The Crown relied on the fact that the appellant actively chose to remove the victim from a place where others could assist him or render aid, transported him to a remote area and left him there with injuries that significantly compromised his ability to help himself. Considering all the circumstances, including the abduction, the attack, the impact of the injuries on the victim’s level of consciousness, the location, the weather, and the decision to leave the victim in the field, the Crown argued that the appellant had the requisite intent for murder.
[15] Defence counsel submitted that this was a circumstantial case with several available competing inferences, and that the totality of the evidence supported only a manslaughter conviction. The defence asserted that the appellant’s intent was to intimidate and threaten the victim to recover on a drug debt, and that his intent did not change during the course of the events, nor did he ever have the intent for murder. Defence counsel submitted that certain conduct of the appellant was inconsistent with an intent to kill, including that he identified himself to various people on Mr. Bailey’s cell phone. The defence also relied on the pathologists’ evidence that multiple factors contributed to the victim’s death, many of which would have been unknown to the appellant at the time.
[16] The trial judge set out the relevant legal principles, none of which is impugned on appeal. He concluded that the Crown had established that the appellant subjectively intended to cause Mr. Bailey bodily harm that he knew was likely to cause his death and was reckless whether Mr. Bailey died or not.
[17] In the course of his reasons the trial judge made a number of findings of fact: that the assailants had spent at least 25 minutes in the area of the field where Mr. Bailey’s body was found, although exactly how much of this time was spent in the field was unascertained; that the victim had been restrained by his ankles and potentially by his wrists, and had duct tape around his head at some point; that the appellant and his accomplice chose the rural area and left the victim in a dark, remote location approximately 200 feet from the road, and had thrown his shoes 12.47 meters to his right and 15.55 meters to his left; and that the appellant and his accomplice had sought out the remote location and drove as far as they could into the farmer’s field to deliver a brutal beating so that Mr. Bailey could not be rescued or aided during the attack or soon thereafter.
[18] The trial judge stated that his analysis required “consideration of the degree of concurrency between the wrongful act and the requisite mens rea.”: at para. 48. He recognized that, in determining intent under s. 229 (a)(ii) of the Criminal Code, where death results from a series of wrongful acts that are part of a single transaction, it is sufficient that the intent and wrongful act coincide at some point. He observed, “It is not required that the Crown prove a persistent or continued awareness of a likelihood of death right up to the moment of death or until the precise moment when it is established that death is likely to occur”: at para. 49.
[19] The trial judge found that the appellant’s intent had changed over the course of the events. He concluded that the appellant had developed a plan to respond to a drug rip-off that included luring Mr. Bailey to a public location where he was removed from his vehicle, bound and then placed in his own vehicle, and that “the plan morphed into being driven to a remote location with attempts to recover monies owed by the deceased”. He found that the appellant was the person who made the impugned phone calls to M.R. and A.B., and he drew the inference that Mr. Bailey did or said something that escalated the intensity of the already violent plan. He inferred that, while resort to weapons was not initially contemplated, during the course of the abduction the intensity of the plan elevated to include not only threats to murder, but also action including utilizing the weapons at hand. The trial judge found that a significant blood-letting event occurred in the field, and that the slicing injuries to the victim’s hands, which could have been caused by the machete located in the recovered vehicle, would have been very painful and debilitating. The trial judge accepted the opinion of the pathologists that Mr. Bailey was still alive when he was left in the field in a rural area in the middle of the night.
[20] The trial judge also accepted the pathologists’ opinion with respect to the cause of death: that the beating and the location where the deceased was left in the cold environment was a substantial, contributing, albeit not determinative cause of Mr. Bailey’s demise, and that there were other factors that may not have been readily apparent to the appellant.
[21] The trial judge then reviewed the circumstances: the injuries to the victim; that the attack had been carried out on a victim rendered unconscious and vulnerable; the outdoor temperatures in a range capable of leading to hypothermia for someone exposed to the elements with inadequate clothing; that Mr. Bailey was left lying semi-conscious or unconscious, eyes swollen shut, hands debilitated in mud and blood in a t-shirt, with no shoes, cell-phone or vehicle; and that Mr. Bailey had been left in a remote location in the dark where he could not be rescued or aided.
[22] The trial judge turned to the cell phone calls in which the appellant said Mr. Bailey was a “dead man”. He rejected the defence assertion that the statements were merely intended to intimidate the recipient to collect on a debt, concluding that the statements spoke directly to the appellant’s intention at the most relevant time during the course of the continuing transaction. He agreed with the Crown that the situation escalated in the vehicle culminating with the severe beating in the field. The trial judge referred to the fact that the appellant was a sane and sober person and intended the natural consequence of his actions. He stated that the statements to A.B. and in particular to M.R. “spoke volumes” about his intention and that a reasonable inference was that the severe and brutal beating was evidence of the escalation of intensity of the attack and elevation to the requisite intent for murder.
[23] The trial judge then stated that, if he was in error as to the appellant’s intent by virtue of his communications while in the vehicle, the appellant’s having left the victim without prospect of aid or assistance amounted to murderous intent. This finding was made with reference to the cold temperatures, the victim’s suffering from the injuries inflicted on him by the appellant, and his being left in a helpless and vulnerable state exposed to the elements away from a rural road in pitch darkness.
D. Issues
[24] The appellant asserts the following grounds of appeal: (1) unreasonable verdict; (2) inadequate reasons; (3) improper reliance on the “common sense inference” that a sane and sober person intends the natural consequences of their actions; and (4) the trial judge erred by finding that the abandonment of the victim necessarily led to the appellant’s guilt.
E. Discussion
Issue One: The Verdict Was Not Unreasonable
[25] The appellant contends that the verdict was unreasonable in two ways. First, he asserts a Villaroman error (R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000): that the trial judge failed to consider the available and competing rational inference that the appellant did not know that the bodily harm he inflicted was likely to be fatal, thereby lacking subjective foresight of death. Second, the appellant asserts a Beaudry error (R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190): that the trial judge made findings of fact that were essential to the verdict that were either plainly contradicted by, or demonstrably incompatible with, other evidence that he accepted – in other words, that the verdict was illogical.
The Alleged Villaroman Error
[26] In assessing this ground of appeal the court must determine whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered on any reasonable view of the evidence. The appellate court is required to review and analyze the totality of the evidence within the limits of appellate disadvantage. Where the Crown’s case is circumstantial, the question is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused’s guilt was the only reasonable conclusion available on the totality of the evidence”: Villaroman, at para. 55. Appellate review must focus on the totality of the evidence – individual items of evidence “are not to be examined separately and in isolation, then cast aside if the ultimate inference sought from their accumulation does not follow from each individual item alone”: R. v. Uhrig, 2012 ONCA 470, at para. 13; R. v. Wu, 2017 ONCA 620 at para. 15.
[27] The appellant submits that the verdict was unreasonable because there was evidence that undermined the conclusion that he knew that death was likely to result from his conduct. The appellant points specifically to the evidence of the pathologists that the victim’s injuries were not themselves fatal, and that he would have been alive when he was left in the field. The appellant submits that, given that the victim’s death was caused in part by factors that were not known to him (the victim’s enlarged heart) or that he might not have appreciated (the victim’s ingestion of drugs, the effects of hypothermia), there was a rational, available inference that he did not foresee death as a likely consequence of his actions.
[28] I would not give effect to this ground of appeal. The question here is not whether there was an available alternative inference, but whether the verdict is supportable on any reasonable view of the evidence.
[29] In R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, this court considered and rejected the argument made here, that because the evidence was that none of the individual actions in which the appellant was involved was sufficient to cause death, the finding of intent under s. 229 (a)(ii) of the Criminal Code was unreasonable. The court stated at para. 167:
To determine whether an unlawful killing amounted to murder, a trier of fact takes into account all the circumstances surrounding the killing and decides whether the Crown has proven beyond a reasonable doubt that the killer had a state of mind required to make that unlawful killing murder. The appellant’s argument on this branch of the unreasonable verdict ground treats the pathological evidence of the unlikelihood of death as dispositive of the proof of the fault element required to make an unlawful killing murder. Although the expert evidence may be of some assistance on this issue, it is not dispositive of it. The objective likelihood of death from a blow is at best a factor for jurors to consider in determining the state of mind of the killer. It does not, indeed cannot, render a conclusion drawn by the trier of fact from all the evidence that the Crown has proven the state of mind necessary to make an unlawful killing murder, unreasonable as the appellant argues.
[30] Similarly, in R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, the verdict was not unreasonable although there was expert evidence that the respondent’s stomping on the victim was unlikely to have caused his fatal injuries. The Supreme Court noted that it was not unreasonable for the jury to conclude that in deciding to stomp not once, but twice, on the victim’s head, the respondent’s purposive, deliberate and intentional conduct which involved the repeated use of violence against a defenceless man, established that he must have known it was likely to cause death, being reckless as to whether or not death ensued: at para. 49.
[31] The cause of death and other evidence of the pathologists did not speak directly to the issue that the trial judge had to decide; nor did such evidence undermine any of the factors that supported a conviction. The pathologists’ evidence was that Mr. Bailey’s blunt and sharp force injuries were not fatal on their own, however, in determining the appellant’s state of mind the trial judge was not required to focus on the injuries the appellant caused on their own, but to consider all of the circumstances. “An assessment of the actual knowledge of an accused is an intensely fact-specific inquiry that requires and involves a careful analysis of all the circumstances in which the dangerous act occurred”: R. v. Roks, 2011 ONCA 526, 274 C.C.C. (3d) 1, at para. 132.
[32] The trial judge’s conclusion that, although the appellant and his accomplice set out to collect on a drug debt, the situation had escalated and that, at some point in the course of events he had the necessary intent for murder, was a conclusion that was reasonable based on all of the evidence.
[33] First, the evidence was consistent with there having been a forceful and extensive attack on Mr. Bailey, the effects of which would have been apparent to the appellant. The pathologists’ evidence indicated that there had been a violent beating all over the victim’s body, with his head targeted by multiple blows. The blows to his body were sufficient to break Mr. Bailey’s sternum and to cause bleeding, and the repeated blows to his head caused a brain injury. The appellant would have known how much force was being used, that the force of the attack and the use of weapons would have caused intense pain and debilitation, and that the victim was at some points bound and unable to defend himself. The appellant would have observed the effects on the victim, who was bleeding, bruised, and semi or unconscious.
[34] Second, part of the attack was carried out in a remote field, where Mr. Bailey had been taken, after being bound with duct tape. Transporting the victim to a remote location, beating and abandoning him was inconsistent with using violence and intimidation to recover a drug debt; if this had been the plan, it could have been carried out at the first location. Indeed, while there were phone calls during the drive suggesting efforts to recover money, there were no calls during the 30 minutes or so when the parties were in the field and while the attack was carried out.
[35] Third, Mr. Bailey was left in a place and condition where he could not help himself or expect to be helped by someone else. In this regard, I disagree with the appellant’s submission that the fact that Mr. Bailey was left alive was inconsistent with murderous intent. At the time he was left in the field, the victim was bleeding from multiple locations, his eyes were swollen shut, and he was semi-conscious or unconscious. He had been bound with duct tape and incapacitated by the beating and cutting of his hands. It was night, he was left in a remote field 200 feet from the road, and the appellant and his accomplice had taken away Mr. Bailey’s car and cell phone. His shoes were not just removed but were thrown where they could not be easily reached. The appellant would have been aware of the condition Mr. Bailey was left in, and known there was no prospect he would find help or be rescued. The trial judge reasonably rejected the defence submission that the victim had been left in a wide open field where he would be found, finding instead that the appellant and his accomplice “sought out this remote location and drove as far as they could into the farmer’s field to deliver a brutal beating so that [Mr.] Bailey could not be rescued or aided during the attack or soon thereafter”: at para. 66.
[36] Fourth, Mr. Bailey was left in the field without any prospect of assistance on a cold November night. Whether or not the appellant would have had an understanding of hypothermia and whether or not the victim had begun to remove his own clothes, it would have been apparent that it was a cold night, that Mr. Bailey was not dressed appropriately, and that he was not wearing shoes.
[37] All of these circumstances were consistent with the conclusion that the appellant and his accomplice had engaged in a violent and prolonged attack on a defenceless victim who had effectively been “left for dead” in freezing temperatures with no prospect of aid or assistance. While the appellant would not necessarily have known of some of the factors that contributed to the victim’s death, it was a reasonable conclusion that the appellant intended to cause harm that the appellant knew would likely kill the victim. In my view, the finding of mens rea was reasonably available on this evidence.
The Alleged Beaudry Error
[38] Another basis on which an appellate court may find a verdict unreasonable under s. 686(1) (a)(i) of the Criminal Code is when the trial judge drew an inference or made a finding of fact that was either (1) plainly contradicted by the evidence they relied on in support of that inference or finding; or (2) demonstrably incompatible with evidence that was not otherwise contradicted or rejected by the trial judge: Beaudry, at para. 79; R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 16. The Supreme Court has confirmed that the scope of review under Beaudry is not an invitation for reviewing judges to substitute their preferred findings of fact for those of the trial judge. Rather, it is an inquiry into the logic or rationality of the judge’s essential findings that is “narrowly targeted at ‘fundamental flaws in the reasoning process’”: R. v. C.P., 2021 SCC 19, 457 D.L.R. (4th) 553, at para. 30.
[39] Two arguments are made here. First, the appellant submits that the trial judge made findings about the cell phone calls that were not available on the evidence and that these findings were critical to the verdict. The appellant contends that the trial judge erred in stating that M.R. did not take the appellant’s claim that the victim was a “dead man” to be in jest. The appellant asserts that there was nothing in the agreed facts about the call to support such an inference. According to the agreed facts, A.B. took the call as a joke, and there was no evidence about M.R.’s perception of the call. The appellant contends that this error was significant because the trial judge placed considerable weight on M.R.’s reaction in finding murderous intent.
[40] I do not accept this argument. It was a reasonable inference from the agreed facts which stated that A.B. understood the call to be a joke, and did not say the same for M.R., that she had taken the call seriously. In any event, nothing turns on how the statements might have been perceived by their recipients. It is the intention of the maker that is relevant. No one suggested the statements were intended as a joke: the argument at trial was that they were made to intimidate and threaten. As such, they were meant to be taken seriously.
[41] Irrespective of how the statements were received, it was undisputed that they had been made, and it was open to the trial judge to conclude, as he did, that the statements that Mr. Bailey was a “dead man” were relevant to the issue of the appellant’s intent.
[42] It is important to recall how the trial judge used the “dead man” statements in finding intent. He did not say, as asserted by the appellant, that when the statements were uttered, they reflected a murderous intent – that is an intent to kill the victim. Rather, at para. 69 of his reasons the trial judge rejected the defence assertion that the statements were “merely intended to intimidate the recipient in order to collect on a debt” (emphasis added). He concluded that the appellant’s statements “[spoke] directly to his intention at the most relevant time during the course of the continuing transaction”, and “[w]hether or not the focus was on the deceased or the so-called ‘runner’, [he agreed] with the Crown that the situation escalated in the vehicle culminating with the severe beating in the field”. In other words, the trial judge reasonably concluded that, while the calls may have been intended to motivate payment of the money the appellant was owed, the “dead man” statements showed an escalation of the situation, and that the severe beating in the field in the context of such statements was indicative of intent. Whether or not the recipients of the phone calls took them seriously or as a joke, there was nothing illogical about the trial judge’s reasoning, and there is no basis for appellate intervention on this ground.
[43] As a second Beaudry error, the appellant contends that it was illogical for the trial judge to find that the phone calls amounted to evidence of murderous intent, when he also accepted that the victim was still alive when he was left in the field. According to the appellant, it is illogical for the trial judge to have found that he would have set out to kill the victim, and then achieved his goal by leaving Mr. Bailey alive in a field.
[44] I do not accept this argument. Again, the trial judge did not conclude that the appellant “set out to kill the victim”. He concluded that the situation escalated in the vehicle. While Mr. Bailey did not die when the appellant was in the field, he was left there after a severe beating that left him with significant injuries with his eyes swollen shut, semi-conscious or unconscious, and in need of medical intervention, in freezing temperatures with no prospect of aid or assistance. The suggestion that the trial judge’s assessment of the phone calls was “demonstrably incompatible” with his finding that the victim was alive when he was left in the field ignores the circumstances in which the appellant left the victim.
[45] I would therefore dismiss the unreasonable verdict ground of appeal.
Issue Two: The Trial Judge’s Reasons Were Not Inadequate
[46] The second ground of appeal reframes the arguments made by the appellant on the first ground, asserting that the trial judge’s failure to explain why he rejected alternative inferences inconsistent with guilt means that his reasons were inadequate. The appellant contends that the trial judge, without explaining why, rejected the argument that the “dead man” comments were made with the intention to enforce repayment of a debt as opposed to an intention to kill. He did not explain why he rejected the possibility that the appellant did not subjectively know that his actions would likely result in the victim’s death.
[47] An appeal based on insufficient reasons will only succeed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review. Reasons are adequate when, considered with the evidentiary record, the submissions of counsel and the live issues at trial, they reveal the basis for the verdict, and the trial judge appears to have seized the substance of the critical issues at the trial: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 53 and 55.
[48] I am not persuaded that the trial judge’s reasons were inadequate. The issue in this case was clear: whether the appellant knew that his actions were likely to result in death. The question of intent depended largely on the inferences to be drawn from the appellant’s conduct and the circumstances surrounding Mr. Bailey’s death. The trial judge reviewed the evidence and he set out the positions of the Crown and the appellant. He acknowledged that the initial intent may well have been to recover on a drug debt (which was the defence position), but he rejected the contention that the intent never changed. He found that the situation had escalated during the abduction such that, by the time of the beating in the field the appellant had the necessary intent for murder, or alternatively, that the intent was present when Mr. Bailey was left in the field. The trial judge relied on the severity of the beating, the vulnerability of the victim, what was said during the calls on the way to the field, and the abandonment of the victim at a remote location with no prospect of aid or assistance. The trial judge’s conclusion that the appellant had the state of mind required for conviction necessarily rejected the inference that the appellant only intended to enforce a drug debt and did not foresee that his actions would result in the victim’s death.
[49] The reasons are sufficient because they tell the appellant what the trial judge decided and why. In rejecting this ground of appeal, I agree with the Crown that “it is clear that the trial judge reached this decision with a full appreciation of the relevant evidence (which he recounted), the governing law (which he cited and summarized) and the position of the defence (which he set out in detail)”.
[50] Accordingly, I would dismiss the ground of appeal based on inadequate reasons.
Issue Three: The Trial Judge Did Not Err in His Application of the “Common Sense Inference”
[51] In R. v. Magno (2006), 210 C.C.C. (3d) 500, Gillese J.A. explained how the common sense inference can be relevant in determining an accused’s state of mind, and in particular the intent for murder. She stated at para. 18:
The Crown is often required to prove a culpable state of mind as an element of an offence. The culpable state of mind may be intention, foresight or something else, such as knowledge. Section 229 (c) requires proof of foresight, that is, that an accused foresaw that the acts done for the unlawful object were likely to cause death. The inquiry is ultimately a subjective one. That does not mean, however, that a consideration of what the normal or reasonable person would have intended or foreseen is unhelpful or irrelevant. A person’s state of mind may be determined by what a person says and does. It may be deduced also by considering what the natural consequences of someone’s actions are and whether the person, by acting in the manner for which there would be natural consequences, foresaw that those natural consequences would occur. While there is no legal presumption that a person foresees or intends the natural consequences of his or her acts, it is a common sense proposition.
[52] The common sense inference assumes that the act or acts in question have natural and probable consequences. It is helpful only if, as a matter of common human experience, there is a close causal connection between the act and the consequence which is material to the criminal charge. The more likely, as a matter of common human experience, the consequence is to flow from the action, the stronger is the inference that the person intended that consequence: R. v. Boone, 2019 ONCA 652, 56 C.R. (7th) 432, at paras. 88-89. It is for the trial judge to determine whether the facts are such that a common sense inference could arise. Its application is not automatic or determinative; the common sense inference, when properly used, is a “helpful tool to be used in assessing the evidence going to the accused’s state of mind”: Boone, at para. 89.
[53] The appellant does not assert that the common sense inference had no role to play in this case. Rather, the appellant contends that there was an “over-reliance” by the trial judge on the common sense inference to make it determinative of guilt without linking the actions of the appellant to the victim’s death. The appellant asserts that, rather than using the common sense inference as a tool, the trial judge used it as a “short cut”. The trial judge did not explain how, in the context of additional factors that led to the victim’s death, such as hypothermia, the appellant’s actions had the natural consequence of death, rather than a mere risk of death.
[54] The appellant contends that this case is similar to Boone, where this court allowed an appeal of an attempted murder conviction in part based on the trial judge’s instruction to the jury on the common sense inference. The inference was not applicable because death was not the natural and probable consequence of the appellant’s actions. The appellant also refers to R. v. Hadfield, 2020 ONSC 5992, where, although the assault by the accused was a cause of the victim’s death, the trial judge declined to convict where there was a single kick and the victim hit his head on a curb. It was not sufficient to foresee the risk of death; there had to be a likelihood of death from the accused’s forceful blow. The appellant contends that, as in these cases, this court should find that there was a gap in the inferential chain because there were other factors that led to Mr. Bailey’s death.
[55] I would not give effect to this argument. The question on appeal is whether, having regard to the applicable evidence and common human experience, it was “reasonably open” to the trial judge, as the finder of fact, to draw upon the common sense inference: R. v. J.A., 2022 ONCA 445, at para. 14. The common sense inference had a role to play in this case as long as the likely death of the victim, by whatever mechanism, could reasonably be described as the natural and probable result of the appellant’s actions. The focus is not on whether specific actions of the appellant considered in isolation (such as the beatings) had natural and probable consequences, but on whether the collective body of evidence respecting the appellant’s conduct was such that the victim’s death was the natural, probable, or predictable consequence of such conduct.
[56] In this case it was open to the judge to conclude that the cumulative conduct of the appellant was such that death or bodily harm likely to cause death was the natural and probable consequence. The appellant and his accomplice embarked on a dangerous course of conduct. There was expert evidence about the injuries that spoke to the severity of the attack. There were significant and debilitating blows and sharp force injuries to the victim’s body and hands. His head was struck multiple times, injuring his brain and affecting his level of consciousness. The defence pathologist testified that the victim needed medical intervention. He was left in a field in the dark with his eyes swollen shut, without any reasonable prospect of rescue and without a car or a cell phone, wearing inadequate clothing at below freezing temperatures.
[57] The expert evidence in this case did not undermine, but supported, the use of the common sense inference. By contrast, in Boone, where the appellant had engaged in unprotected sex with various victims, intending to infect them with the HIV virus, based on the expert evidence, it could not be said that a close causal connection existed between the sexual activity engaged in by the appellant and the infection of his partners or between the infection of his partners and their ultimate death from AIDS. Neither infection as a result of the sexual activity, nor eventual death from infection could be accurately described as “natural and probable consequences” of the appellant’s actions. Nor is this case at all like Hadfield, where there was no mention of the common sense inference, and in any event, the trial judge concluded, on the evidence before him, that there was nothing to suggest that accused would have foreseen that the single blow to the victim would result in his death.
[58] In R. v. Robson, 2008 ONCA 153, an argument that the trial judge had erred in instructing the jury on the common sense inference was rejected by this court. The appellant had sexually assaulted the victim, in the course of which he had beaten her about the head. The pathologist listed aspiration of vomit as the sole cause of death. His evidence was that the head injuries caused her to vomit, although he acknowledged that revulsion and anxiety caused by the attack may also have contributed to the victim’s vomiting. This court stated that it did not accept that, because the appellant might not have been able to foresee specifically how the victim would die, her death could not be a likely consequence of his acts. It was an inference the jury could draw and accordingly the common sense inference was properly placed before them.
[59] Similarly, in the present case, the fact that the appellant might not have been able to foresee how Mr. Bailey would die – that is whether other factors might have contributed to his death – did not preclude the availability of the common sense inference, provided the trial judge was satisfied that death would be a likely consequence of the appellant’s acts. There was a close causal connection between the appellant’s conduct and the victim’s death. The appellant’s acts included not only a serious and debilitating assault but the abandonment of an injured victim who required medical attention in sub-zero temperatures, without the prospect of aid. There is nothing in the evidence in this case that would preclude the operation of the common sense inference.
[60] I would not, therefore, give effect to the “common sense inference” ground of appeal.
Issue Four: The Trial Judge Did Not Err in His Approach to the Issue of Abandonment
[61] The appellant submits that the trial judge erred by treating the fact that the victim was abandoned as dispositive of the question of intent. The appellant refers to the following passage in the trial judge’s reasons at para. 71:
If I am in error as to the accused’s intent by virtue of his communications whilst on route from Hamilton to West Lincoln; the fact that with the cold November evening temperatures, suffering the debilitating consequences of his beating at the hands of the accused, leaving the victim alive and in a helpless and vulnerable state to the elements away from a rural road in pitch darkness, without prospect of aid or assistance, amounts to murderous intent flowing from the authority in Bradley and its progeny.
[62] Bradley v. The Queen, [1956] S.C.R. 723 and R. v. Frederickson, 2013 BCSC 2034 are two cases referred to by the trial judge earlier in his reasons as authority for the legal principle that abandonment to the elements which either kills or accelerates death, depending on the circumstances, can support an inference of murderous intent. The appellant does not take issue with the trial judge’s reference to these cases or their authority. Rather he submits that the trial judge went too far: relying on these cases he equated abandonment to having the intent for murder. This was a legal error that undermined the verdict.
[63] I do not agree that the trial judge made the error alleged by the appellant. The trial judge did not treat the fact of Mr. Bailey’s abandonment as dispositive of the question of intent. Rather, he concluded, based on all of the circumstances at the time the appellant and his accomplice left Mr. Bailey in the field, that the appellant had the necessary intent for murder at the time of the abandonment.
[64] Again, the impugned passage from the trial judge’s reasons must be considered in the context of the rest of his reasons. The trial judge recognized that there was a course of conduct by the appellant consisting of an initial attack, an abduction, transporting the victim, a subsequent attack, and then abandonment. And, as I have previously noted, he said that his analysis required “consideration of the degree of concurrency between the wrongful act and the requisite mens rea.”: at para. 48. There was evidence suggesting that the victim had initially been beaten and kidnapped in connection with a drug debt. The central question was whether, at any stage during his course of conduct, the appellant had the necessary intent for murder.
[65] The trial judge, at para. 70 of his reasons, concluded that, in the context of the “dead man” statements, the severe and brutal beating of the victim was evidence of the escalation of intensity of the attack and elevation to the requisite intent for murder. What then followed at para. 71, was an alternative finding about the timing of the appellant’s intent. In other words, the trial judge determined first that the appellant had the necessary intent for murder at the time that the victim was attacked in the field, and then in the alternative he concluded that, if the intent had not been formed by that point, it was present when the victim was abandoned in the field. Both conclusions were based on all of the circumstances that existed at the relevant time.
[66] This case is similar to R. v. Bigras, a case referred to by the trial judge. In Bigras, the trial judge had granted a directed verdict application removing murder from the jury on the basis that, while there was evidence the accused had beaten the deceased “to teach him a lesson”, there was no evidence from which a jury could find the requisite intention to kill. In allowing the appeal, this court pointed to the facts that, taken cumulatively, could provide a reasonable basis for the inference of the requisite intention for murder. These included having left the victim bound, and either dead or dying in a remote location near Ottawa on a December night in circumstances in which help was unlikely to come his way and it would be difficult if not impossible to summon.
[67] Contrary to the appellant’s submissions, the trial judge did not reason directly from the fact that the victim had been abandoned to find that he had the necessary intent for murder. Rather, in finding that the intent for murder existed at the time of the abandonment, he identified the cumulative circumstances: the cold November evening temperatures, the fact that Mr. Bailey was suffering the debilitating consequences of his beating at the hands of the appellant and his accomplice, and that he had been left in a helpless state vulnerable to the elements, away from a rural road in pitch darkness, without prospect of aid or assistance.
[68] Accordingly, I see no merit in the fourth ground of appeal.
F. Disposition
[69] For these reasons I would dismiss the appeal.
Released: December 22, 2023 “J.C.M.” “K. van Rensburg J.A.” “I agree J.C. MacPherson J.A.” “I agree S.E. Pepall J.A.”
