COURT FILE NO.: CR-19-0158-00 DATE: 2022-02-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen Jane-Ann McGill and Stacey Hamilton, for the Crown
- and -
Patrick O’Keese Accused Kevin Matthews and Sherry Abotossway, for the Accused
HEARD: October 18, 19, 20, 21, 25, 26, 27, 28, 2021, at Thunder Bay, Ontario
Madam Justice T. J. Nieckarz
Reasons For Judgment
[1] I want to first express my sincere condolences to the family and friends of Brayden Moonias. I am truly sorry for your loss.
[2] These reasons were delivered orally, in-person, on February 22nd, 2022. To the extent that my oral reasons differ, these written reasons are my official decision.
[3] On the morning of August 6th, 2017, Brayden Moonias was found dead on the beach near McVicar Creek in the area of Marina Park, Thunder Bay. He was only 18 years old.
[4] This trial began on what would have been Mr. Moonias’ 23rd birthday. A memory walk was held that morning for his family and friends to honour him.
[5] When Mr. Moonias was found on the morning of August 6th, 2017, he had suffered a number of injuries to his head, neck and torso, and he had asphyxiated on sand and rocks. He died on the beach by the overpass of Marina Park in Thunder Bay. When he died is unknown. He was last seen alive the previous evening. The coroner ruled his death a homicide.
[6] The question that arises is, who (if anyone) inflicted these injuries on Mr. Moonias and did they cause his death?
[7] The Crown argues that Patrick O’Keese murdered Mr. Moonias. The Crown lead evidence to show that the two men were together throughout the afternoon and into the evening of the last day of Mr. Moonias’ life. The Crown says that Mr. O’Keese was the last person to have seen Mr. Moonias alive and that his post-offence conduct, which included efforts to conceal his guilt, support the conclusion that he is responsible for Mr. Moonias’ death.
[8] As a result, Mr. O’Keese stands charged that between August 5th and 6th, 2017, he committed second degree murder, contrary to the Criminal Code of Canada. Mr. O’Keese also stands charged with two separate counts of breach of recognizance.
[9] Mr. O’Keese pleads not guilty to all charges.
[10] In support of its case, the Crown called the following witnesses:
(a) Sergeant Clarke McEver, an experienced officer with the Thunder Bay Police Service criminal investigation branch, who participated in the investigation of Mr. Moonias’ death. (b) Sergeant Jason Anderson, who was the lead investigator of Mr. Moonias’ murder and interviewed Mr. O’Keese. (c) Eric Lawson, an individual who was attacked, and seriously injured either the night of August 5th or morning of August 6th at Marina Park. Mr. O’Keese is charged with aggravated assault in connection with that incident. The Crown argues that the assault on Mr. Lawson and the murder of Mr. Moonias are related. (d) Detective Constable Jeffrey Tackney, a member of the forensics identification unit who attended the scene of Mr. Moonias’ murder to take photographs and gather evidence. He also gathered evidence from Mr. Lawson, the Lawson attack scene, and from Mr. O’Keese’s residence. (e) Tara Brutzki, a forensic scientist at the Centre for Forensic Sciences (Sault Ste. Marie). Ms. Brutzki conducted DNA testing on items taken from the beach and the Lawson crime scenes, seized from Mr. O’Keese, and fingernail clippings taken from Mr. Moonias during his post-mortem examination. (f) Dr. Kona Williams, a forensic pathologist who performed the post-mortem examination of Mr. Moonias to determine his cause of death. (g) Skyler Linklater, an acquaintance of Mr. Moonias and Mr. O’Keese who spent time with Mr. O’Keese the night of August 5th. (h) Brandon Yesno, a close friend of Mr. Moonias and cousin of Mr. O’Keese, who spent time with them both during the afternoon of August 5th, and then saw Mr. O’Keese again the night of August 5th. (i) Chantal Slipperjack, a cousin of Mr. Moonias who saw him standing outside a restaurant on the evening of August 5th.
[11] The Defence argues that the Crown has not proved beyond a reasonable doubt the essential elements of the offence of murder or manslaughter. The inferences the Crown asks me to draw are not supported by the evidence led at trial. In particular, the Defence says that the evidence does not establish that Mr. O’Keese committed an unlawful act and that this act caused the death of Mr. Moonias, or that he had the intent to cause Mr. Moonias harm.
[12] The Defence called no evidence and Mr. O’Keese did not testify. I am not entitled to draw any inferences from his decision not to testify and explain his version of events. Our law recognizes that an accused has a right to remain silent throughout the criminal process. There are many reasons an accused may decide not to take the witness stand that are unrelated to guilt or innocence.
The Issues
[13] The Court must determine whether the Crown has proved beyond a reasonable doubt the essential elements of the crimes of second degree murder, manslaughter and breach of recognizance. In doing so, I must determine whether the Crown has proved that Mr. O’Keese committed an unlawful act and if so, whether this act was a significant contributing factor to the death of Mr. Moonias. If I conclude that Mr. O’Keese did commit this act, I must determine whether the unlawful act falls within the legal definition of murder or manslaughter.
The Facts
[14] Mr. Moonias and Mr. O’Keese grew up together in a remote Northwestern Ontario community and were good friends. They also spent time together after moving to Thunder Bay, including on August 5, 2017.
[15] At some point in the afternoon of August 5th, Mr. Moonias and Mr. O’Keese met and visited with Brandon Yesno at his home. There was no indication of any problems. Mr. Moonias and Mr. O’Keese left together to go purchase some alcohol and to go out drinking. They did not say where they were going, but Mr. Yesno testified they usually went to Marina Park by the water, or to Hillcrest Park.
[16] Police collected video surveillance on apartment buildings located at 120 and 122 S. Cumberland Street. Surveillance shows that at 5:24 p.m. on August 5, 2017, Mr. O’Keese and Mr. Moonias entered 122 S. Cumberland Street. They went in an elevator with an unidentified male. They got off on the fourth floor. Shortly thereafter, Mr. Moonias and Mr. O’Keese are shown returning to the elevator themselves, sharing a cigarette and laughing. The two men looked happy and friendly with each other. At 5:29 p.m. they get out on the third floor, where Mr. Moonias had his last known address. They left the building at 6:24 p.m.
[17] Surveillance from The Beer Store on Cumberland Street showed Mr. O’Keese entering the store alone and making a purchase of beer at approximately 7:28 p.m. Mr. Moonias did not appear in the video. Mr. O’Keese was wearing a white t-shirt, dark coloured shorts, a baseball hat and backpack.
[18] Mr. Moonias was seen by Ms. Slipperjack around 7:15-7:30 p.m. standing outside of Gino’s Pizza, which is one to two blocks from The Beer Store and on the same side of the street. Ms. Slipperjack saw a tall male wearing black, a hat and backpack walk to meet Mr. Moonias. She does not know who the male was. There was no evidence that she knew Mr. O’Keese. The two men then began to walk towards River Street, which is the same direction as Marina Park.
[19] This was the last that either of the two men were seen until some time between 10:45 – 11:00 p.m. that night, when Skyler Linklater heard a knock on the front door that his apartment shares with Mr. Yesno’s apartment. He went to the door and Mr. O’Keese was there. There was no light and Mr. O’Keese did not want the lights turned on. The two men went outside and smoked a marijuana cigarette. Mr. Linklater described Mr. O’Keese as not the “normal Patrick”. He had met Mr. O’Keese on four or five occasions prior to this, and described him as a “good guy”. Mr. Linklater observed Mr. O’Keese to be intoxicated, frantic, shaking and crying. He made a statement that “I fucked up”, but otherwise did not wish to talk. Mr. Linklater had not previously seen Mr. O’Keese intoxicated or agitated. Mr. Linklater was aware that Mr. O’Keese had recognizance conditions and that he was in violation of his curfew. He assumed that Mr. O’Keese was upset for this reason, but Mr. O’Keese did not specifically say this.
[20] Once the light inside the porch went on, Mr. Linklater saw a lot of blood on the upper part of Mr. O’Keese’s t-shirt, close to the collar bone. He also saw blood splattered on Mr. O’Keese’s cheeks and lower eye area. He did not see any injuries on Mr. O’Keese’s hands or face.
[21] Mr. Yesno also recalls Mr. O’Keese arriving at his home that night, although he believes it was approximately midnight. He observed Mr. O’Keese to be intoxicated, looked like he was close to blacking out, was staggering, and his speech slurred. Mr. O’Keese asked to stay the night and Mr. Yesno agreed. Mr. Yesno was aware that Mr. O’Keese had missed his curfew. Through the light coming from the inside of the apartment porch, Mr. Yesno observed Mr. O’Keese had blood on his t-shirt and his face looked red and puffy. This led Mr. Yesno to believe Mr. O’Keese had been in a fight. Apart from the redness, no injuries were observed. Mr. O’Keese went inside briefly and changed his t-shirt. He went back out to finish his cigarette with Mr. Linklater. After approximately 30 – 45 minutes from when he first arrived, Mr. O’Keese went to bed. By the time Mr. Yesno woke up (between 11:00 a.m. and noon), Mr. O’Keese had left.
[22] While it is not known when he left the Linklater-Yesno residence on the morning of August 6th, 2017, Mr. O’Keese was seen on Thunder Bay Transit Bus video getting on a bus at Algoma/John Street at 10:37 a.m., which is close to Mr. Yesno’s home. He got off that bus at the Thunder Bay City Hall at approximately 11:00 a.m. Further surveillance showed him entering his John Howard Society residence at 11:03 a.m.
[23] On August 5th and 6th, 2017 Mr. O’Keese was subject to a recognizance or terms of bail that required him to refrain from the consumption of alcohol and abide by a curfew requiring him to be at the John Howard Society between the hours of 10:00 p.m. and 6:00 a.m. He was also not to be in a public park.
[24] Mr. Moonias’ body was found on the morning of August 6th, 2017 at approximately 8:30 a.m., by Harriet Ash, Delford Matthews and Harry Keeshkitay.
[25] The beach location where Mr. Moonias was found is believed to also be where he died. While police gathered various items from the scene, they did not locate any physical evidence that shed any light on Mr. Moonias’ assailant.
[26] Mr. Moonias was quickly identified from stab wounds on his arm, which he had sustained in an altercation with an unknown person (not suspected to be Mr. O’Keese) approximately two weeks prior to his death. Mr. Moonias had previously refused to disclose the identity of his assailant. Sometime around his stabbing, he had also testified as a witness in a murder case.
[27] An autopsy of Mr. Moonias revealed the cause of death to be blunt force injuries to the head and neck, with mechanical airway obstruction in a person with acute ethanol and cocaine intoxication. No one factor was determined to be the sole cause of death.
[28] It was clear from the post-mortem photographs that Mr. Moonias’ face was badly beaten and bruised. He suffered fractures to his nose and left orbit. He was noted by Dr. Williams to have suffered repeated blows to his face and neck with a component of having his face pushed into sand or having sand forced into his mouth while he was still alive, causing asphyxiation. Contusions and lacerations inside his mouth were consistent with this. Some injuries were sustained to his torso, but these were believed to be consistent with falling.
[29] The time of death is unknown. It was some time between Mr. Moonias last being seen by Ms. Slipperjack at approximately 7:30 p.m., and when his body was found at 8:30 a.m. the following day.
[30] DNA testing detected Mr. O’Keese’s DNA in fingernail clippings of the right hand of Mr. Moonias. Blood was detected in the clippings although it cannot be said whether the source of Mr. O’Keese’s DNA was blood, saliva or another DNA rich bodily fluid. It is not known which finger the nail clipping came from that had Mr. O’Keese’s DNA on it.
[31] None of Mr. Moonias’ DNA (blood or otherwise) was detected on Mr. O’Keese’s belongings that were seized, although his t-shirt he was wearing on August 5th was not located.
[32] The morning that Mr. Moonias was found dead, police also received a call from paramedics who were rushing to the Moonias scene when they encountered Eric Lawson crawling, with obvious trauma to his eyes. They stopped to attend to him, and dispatched another unit to the Moonias scene.
[33] Mr. Lawson testified that on the night of August 5th he had been drinking by McVicar Creek before going to the Freedom Park portion of the Marina Park. He does not know when he moved to Freedom Park, and he may have also been asleep before going there. While at Freedom Park, he went to sleep on a park bench approximately 200 – 300 metres from the location of Mr. Moonias’ body. Although close in proximity, the location where Mr. Moonias was found is not visible from the bench.
[34] Mr. Lawson testified that when he woke up he saw someone running towards him, was suddenly kicked in the chest, dragged off the bench and stabbed in the eyes with a pen. His assailant was giggling, laughing and acting strange. He has been left blind by the attack.
[35] Mr. Lawson first identified that Patrick Reuben was his possible assailant and subsequently Patrick O’Keese. He had seen a “Patrick” a few days earlier across the street at a liquor store, and believes he was told by someone at some time that this person was Patrick O’Keese. This “Patrick” he had seen at the liquor store smiled and acknowledged him. He insists this is the same individual who assaulted him.
[36] Mr. Lawson testified that Harriet Ash and Delford Matthews, two of the individuals who found Mr. Moonias’ body were friends of his in August 2017. He spent a lot of time with them back then, including the night of August 5th. Ms. Ash and Mr. Matthews were part of the homeless population that frequent the park area by the water.
[37] Mr. Lawson further testified that in August 2017 he used marijuana and alcohol on a daily basis. He stated candidly that his recollection has been impacted by the trauma surrounding his attack. He has spoken with Harriet Ash and Delford Matthews, along with other people, about what happened. He remembers some things, but he found it helpful to ask others.
[38] Based on interviews with Mr. Lawson, combined with time and proximity and other things learned during the course of the investigations, including forensic evidence, the police believed the death of Mr. Moonias and the attack on Mr. Lawson to be related.
[39] DNA evidence, and in particular blood stains and other samples that contained chemical indications of blood were taken from Mr. O’Keese’s jacket, one of his backpacks and a baseball cap. They tested positive for the DNA of Mr. Lawson, but not for the DNA of Mr. Moonias.
[40] Other individuals were interviewed in connection with the investigation including an individual found sleeping close to the Moonias scene, Patrick Reuben, and other individuals who were down at the beach. The beach area is frequented by a homeless population and others who congregate there to drink and eat. It is an area well known to police. There were no eyewitnesses to the death of Mr. Moonias and no one who said they saw Mr. Moonias and Mr. O’Keese at the beach together.
[41] One individual interviewed told police that a Terrance Muckuck had told her he was with Mr. Moonias after 7:30 p.m. on August 5th, but she did not see this herself.
[42] Based on this information police interviewed Mr. Muckuck, who believed he saw Mr. Moonias laying in the fetal position, but he thought he was alive and thought it was a Monday he saw him. He also thought he may have been drinking with Mr. Moonias, but could not say when. Mr. Muckcuk did not say that he saw Mr. O’Keese. Police discounted the possibility of his involvement due to their inability to verify anything said by him, his admission he was drinking, he appeared confused, and he acknowledged he ‘makes up stories when he’s drunk’. No DNA warrant was obtained for Mr. Muckuck.
[43] Other individuals who were near the beach that night testified that they heard talking and partying coming from the beach on the night of August 5th. Delford Matthews told police he heard a commotion around midnight but did not know where it came from. Another individual told police he could hear male and female voices coming from the beach area when he was going to sleep at approximately 2 a.m. There is no evidence that any of these individuals saw Mr. Moonias or Mr. O’Keese.
[44] Mr. O’Keese voluntarily gave a videotaped police statement on August 7th. During that interview he was observed to have injuries to his right hand, which he attributed to hitting a wall in anger. Mr. O’Keese minimized his involvement with Mr. Moonias on August 5th, acknowledging only a casual chance encounter that afternoon. He also denied ever having visited the apartment of Mr. Moonias.
Legal Principles
The Burden and Standard of Proof
[45] An accused person is presumed innocent unless and until the Crown proves beyond a reasonable doubt that he is guilty.
[46] To secure a conviction in this case the Crown must establish each essential element of the charges against Mr. O’Keese to a point of proof beyond reasonable doubt. If the Crown fails to do so, then the Accused must be acquitted.
[47] Proof beyond a reasonable doubt is a high test for the Crown to meet. As Pierce J., noted in R. v. Bushby, 2020 ONSC 7780, at para. 15, it has been made intentionally high so that individuals charged with offences are not wrongfully convicted.
[48] A reasonable doubt is a doubt based on “reason and common sense”; it is not imaginary or frivolous: See: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 28, citing R. v. Lifchus, 1997 SCC 319, [1997] 3 S.C.R. 320, at para. 36.
[49] While this is a stringent test, the Court must remember that the Crown is not required to prove the offence to an absolute certainty. This would be an impossibly high burden to expect the Crown to meet.
[50] The finding of reasonable doubt must also be logically connected to the evidence or the absence of evidence: Ibid.
Circumstantial Evidence and Reasonable Doubt:
[51] In this case, there is no direct proof of Mr. O’Keese’s guilt, such as an eyewitness or other facts directly establishing guilt. The evidence against Mr. O’Keese is largely circumstantial in nature. There is a tendency to think of circumstantial evidence as lesser than direct evidence. This is not always the case. Some circumstantial evidence can be more reliable than direct evidence.
[52] Circumstantial evidence is evidence of another fact that could lead to the conclusion or inference that the Accused is guilty. It is evidence that implies a person committed the crime they are charged with. See: R. v. Cinous, 2002 SCC 29, at para. 89.
[53] The words and actions of an accused after a crime has been committed may provide circumstantial evidence of his guilt with respect to that crime: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at para. 106.
[54] For an accused person to be found guilty on the basis of circumstantial evidence, it must be that their guilt is the only reasonable inference to be drawn from the whole of the circumstantial evidence, based on reason and common sense. See: R. v. Villaroman, at paras. 35, 36 and 41.
[55] The Court is required to consider other plausible theories and reasonable possibilities inconsistent with guilt. If there are reasonable inferences to be drawn from the evidence, or lack of evidence, other than the guilt of the accused, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt and the Crown has not met its burden of proof. See: R. v. Villaroman, at paras. 35, 37 and 41; and R. v. Tutiven, 2022 ONCA 97, at paras. 73 and 76.
[56] The Supreme Court of Canada at para. 37 of R. v. Villaroman, clarified that while “other reasonable possibilities” inconsistent with guilt must be considered, the Crown need not “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused.”
[57] The alternative inferences to be considered must also be reasonable, and not just possible. They do not have to arise from proven facts but they do need to be based on logic and experience applied to the evidence or lack of evidence, and not be based merely on speculation. See: R. v. Villaroman, at paras. 35, 37 and 41.
[58] Evidence that an accused attacked or otherwise attempted to interfere with potential witnesses, made utterances, destroyed or disposed of evidence and lied about his whereabouts or contact with the victim are examples of post-offence conduct. It is commonly admitted to show, that the accused behaved in a manner consistent with the conduct of a guilty person and inconsistent with the conduct of an innocent one: R. v. Calnen, at paras. 116-117, and R. v. Peavoy, 1997 ONCA 3028, [1997] O.J. No. 2788 (Ont. C.A.), [1997] 117 C.C.C. (3d) 226, at para. 26. It is another form of circumstantial evidence and is to be assessed in the same manner.
[59] Based on these principles, the question is whether the Crown has proved beyond a reasonable doubt that the only reasonable inference to be drawn from the evidence, or lack of evidence, is the guilt of the Accused. If I conclude that there are other reasonable inferences that may be drawn, then the Crown has not met its burden and the Accused must be acquitted.
Second Degree Murder:
[60] In Canadian law, culpable homicide can result in one of three criminal charges: first degree murder, second degree murder, and manslaughter.
[61] Murder, defined in s. 229 of the Criminal Code, is where the person who caused the death of someone meant to cause their death; or where they meant to cause bodily harm that they knew was likely to cause death, and were reckless as to whether death ensued.
[62] Murder is also made out where “a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being.”: Criminal Code, s. 229(c).
[63] Section 231(2) defines first degree murder as planned and deliberate. The Criminal Code identifies several other criteria where first degree murder is made out, none of which are relevant to this case. All murder that is not defined in the Criminal Code as first degree, is second degree murder.
[64] To prove second degree murder in this case, the Crown must prove each of the following essential elements of the crime beyond a reasonable doubt:
a. that Mr. O’Keese caused Mr. Moonias’ death (causation); b. that he did so unlawfully (he committed an unlawful act); and c. that he had the state of mind necessary for murder.
[65] If I conclude that the Crown has proved each one of these elements, then I must convict.
Manslaughter:
[66] Even if I find that the Crown has not proved the essential elements of second degree murder, I can still convict Mr. O’Keese if I find that the Crown has proved the essential elements of manslaughter.
[67] At issue in this case is “unlawful act manslaughter.” Section 222(5)(a) of the Criminal Code establishes the offence of unlawful act manslaughter, where a person causes the death of someone by means of an unlawful act.
[68] The primary difference from second degree murder is that the Crown does not have to prove that an accused had the requisite state of mind for murder. Manslaughter is an accidental killing arising from an unlawful and dangerous act.
[69] For manslaughter, the Crown must prove beyond a reasonable doubt that:
a. Mr. O’Keese committed an unlawful and dangerous act against Mr. Moonias (in this case, assault); and b. The unlawful act caused his death.
The Crown Argument:
[70] The Crown argues it has met its burden, and that even though its case is based largely on circumstantial evidence, it has proved beyond a reasonable doubt that the only reasonable inference that may be drawn from the evidence is that Patrick O’Keese murdered Brayden Moonias.
[71] The theory of the Crown case is as follows. Mr. O’Keese and Mr. Moonias consumed significant amounts of alcohol on the night of August 5th, 2017, and became involved in a physical dispute. In the course of this altercation Mr. O’Keese inflicted blunt force trauma to the head and neck of Mr. Moonias and either forcefully held his head down into the sand or pushed sand and beach debris in his mouth. In doing so, he killed Mr. Moonias. He then, fleeing the scene, observed Mr. Lawson on the bench in Freedom Park and gouged out his eyes. He disposed of his blood-covered shirt and cleaned himself up at the Yesno residence before returning to the John Howard Society the next morning. He took further efforts to conceal his crime when he lied to police during his interview with them days after the murder.
[72] The Crown argues that the following evidence supports an inference consistent with guilt:
a. Mr. Moonias and Mr. O’Keese were together on the evening of August 5th, 2017. b. They were planning to go to Marina Park, which was one area they often went to, to drink alcohol. c. Mr. O’Keese purchased cans of beer from The Beer Store, then turned right to go south down Cumberland Street towards Gino’s Pizza. d. Mr. Moonias met a male fitting Mr. O’Keese’s description, outside Gino’s Pizza, and they walked towards Marina Park. e. Mr. Moonias attended the marina that night and was killed. f. Mr. O’Keese attended the marina that night, as confirmed by the oral evidence of Mr. Lawson and the DNA evidence with respect to the Lawson attack. g. Mr. O’Keese reattended the Linklater-Yesno residence, heavily intoxicated, behaving erratically, appearing as though he had been in a fight, and saying “I fucked up”. h. Between 7:33 p.m. when Mr. O’Keese was seen on The Beer Store surveillance and when he arrived at the Linklater-Yesno residence later that night, Mr. O’Keese was in some form of physical altercation that led to his disheveled appearance, and Mr. Moonias was in an altercation that led to his death. These two events are not merely coincidental. i. A large quantity of Mr. O’Keese’s DNA was found under Mr. Moonias’ nails, consistent with a scratching event and inconsistent with a passive transfer (i.e. simply touching the same surface). j. There is evidence of post-offence conduct that is indicative of a consciousness of guilt, and from which, the only reasonable inference is that Mr. O’Keese killed Mr. Moonias. k. This post-offence conduct includes the attack on Eric Lawson. The evidence with respect to this attack places Mr. O’Keese in Marina Park, close to the murder scene: i. Mr. Lawson was on the bench in Freedom Park on August 5th – 6th, 2017. ii. His eyes were gouged out with a pen by a male he believed was named “Patrick”. iii. Mr. Lawson’s blood was found on the hat, jacket and backpack of Mr. O’Keese. Mr. O’Keese was observed on surveillance video from August 5th wearing the hat and backpack, and then seen also wearing the jacket on August 6th, 2017. iv. Mr. O’Keese was observed at the Yesno/Linklater residence at approximately 11:00 p.m. on August 5th with blood on his clothing. v. Video surveillance from earlier that day did not show any blood on clothing. vi. Mr. Lawson and Mr. O’Keese were unknown to each other, other than one casual contact a few days before, and had never had any physical contact. vii. The only way that Mr. Lawson’s blood would have come into contact with Mr. O’Keese’s clothing would have been if Patrick O’Keese was the one who assaulted him at the Marina Park. viii. The Crown theory is that Mr. O’Keese may have thought Mr. Lawson to be a witness to his crime against Mr. Moonias. l. Post-offence, Mr. O’Keese cleaned himself up and disposed of his t-shirt he was wearing. m. Post-offence, Mr. O’Keese lied to police about having spent the afternoon and evening with Mr. Moonias, denying he had anything more than a brief/casual encounter with Mr. Moonias earlier on the afternoon of August 5th, 2017. n. Mr. O’Keese’s post-offence conduct is clear evidence of a consciousness of guilt for his actions that night and supports a conviction for murder.
[73] Prior to the trial the Crown brought an application to determine the admissibility of the post-offence conduct evidence. My reasons for that application may be found at R. v. O’Keese, 2021 ONSC 6014. In short, the Defence conceded the admissibility, but not the inferences to be drawn from all alleged post-offence conduct, save and except that with respect to Mr. Lawson. The Defence contested the admissibility of this evidence based on relevance, prejudice and the frailties associated with the evidence. I determined that in order to decide this issue, I needed to hear the actual evidence of Mr. Lawson, and not merely the anticipated evidence. A voir dire was held at trial with respect to this issue. For reasons delivered orally, I found that the evidence was relevant to the issue of whether Mr. O’Keese was in the vicinity of Marina Park on August 5th/6th and to the Crown narrative, and therefore was admissible. The inferences to be drawn from this evidence were to be left to argument at the conclusion of the trial.
The Defence Argument:
[74] The Defence argues that the theory of the Crown’s case makes for a better movie plot than a proper theory of how Mr. Moonias was murdered. The Defence argues it is a tragic, but flawed story, and Mr. O’Keese is not the villain the Crown portrays him to be.
[75] While the specifics of the Defence arguments will be addressed by me during the course of my analysis below, overall the Defence argues that guilt is not the only inference that can reasonably be drawn from the evidence. There are other reasonable inferences that I must consider that are consistent with the innocence of the Accused.
[76] Overall, the Defence argues there is insufficient evidence to prove the essential elements of the case with respect to the murder of Mr. Moonias. In particular, the evidence fails to establish beyond a reasonable doubt that Mr. O’Keese committed a dangerous, unlawful act against Mr. Moonias that caused his death. The Defence further argues there is absolutely no evidence on which I can conclude that Mr. O’Keese had the requisite intent for second degree murder.
Analysis:
[77] It falls upon me to determine whether the Crown has proved beyond a reasonable doubt that Mr. O’Keese committed an unlawful act (assault), and whether that unlawful act caused Mr. Moonias’ death.
Did an unlawful act cause Mr. Moonias’ death:
[78] I will deal firstly with whether an unlawful act was committed. In this case, the Crown alleges it was an assault that was the cause of Mr. Moonias’ death, or at least it was a significant contributing factor.
[79] There is no dispute in this particular case that an assault is unlawful conduct. The question is, whether it was the cause of Mr. Moonias’ death.
[80] I am satisfied that the Crown has proved beyond a reasonable doubt that Mr. Moonias’ death was caused by an unlawful act and was not an accident as suggested by the Defence.
[81] The Defence theory suggests the possibility that Mr. Moonias’ intoxicated condition could have caused him to fall, possibly repeatedly, sustain multiple blows to his head, neck and torso in the process, and asphyxiate on sand, rocks and pebbles. The evidence does not support the Defence theory.
[82] Dr. Williams’ evidence was that:
a. The constellation of injuries to the face and neck of Mr. Moonias were indicative of inflicted injuries. While some of these injuries were likely to also have been caused by one or more falls that happened around the same time as an altercation, given the number and nature of some of the injuries it is highly unlikely they would be caused by falls alone. It is also unlikely that Mr. Moonias would have died from the infliction of these injuries alone. b. Her findings with respect to the mechanical airway obstruction from sand, rocks and other debris suggests that Mr. Moonias was alive and breathing when he inhaled these items. While it is possible that he could have inhaled some sand and debris while laying in the sand, given the combination of facial and mouth injuries, given how significant the amount of debris was, and given how far into the lungs the substances were found, it is not likely. Dr. Williams was confident that this was an inflicted injury. She also testified that this injury alone could have caused Mr. Moonias’ death within a short period of time. c. While alcohol and cocaine were detected in Mr. Moonias, the levels themselves were sub-lethal and would have been unlikely to cause death. Having said this, substance use can cause people to be slower and lose consciousness. For this reason, Dr. Williams cannot rule out intoxication as a contributing factor to the cause of death. d. The cause of death is complicated. All three of the above contributed to the cause of death.
[83] Legal causation is made out when the accused’s actions contribute to the death of the deceased in a meaningful way. Those actions do not need to be the sole cause of death. See: R. v. Nette, 2001 SCC 78, at para. 71.
[84] I am satisfied and find as a fact that the assault sustained by Mr. Moonias, consisting of multiple blows to the head, face and neck and asphyxiation, contributed to his death in a meaningful way. While this assault may not be the sole cause of death, it was a significant contributing factor. Dr. Williams’ acknowledgement that Mr. Moonias also likely suffered some falls and had consumed drugs and alcohol, does not change this conclusion.
[85] I am also satisfied that the assault committed was dangerous. An unlawful act is dangerous if a reasonable person, in the same circumstances, would realize that it would likely put another person at risk of bodily harm. In this case, the act of either forcing Mr. Moonias’ face into the ground with such force that he asphyxiated on sand and debris, or alternatively the act of shoving it into his mouth with such force that it caused asphyxiation, would cause a reasonable person to realize there was a risk of harm to the victim.
Did Mr. O’Keese Commit the Unlawful Act of Assault that Caused Mr. Moonias’ Death?
[86] The Defence argues that the Crown has failed to prove that he did. The Defence urges me to conclude that the Crown’s theory of the case is seriously flawed for the following reasons.
a. Once the police determined that Mr. O’Keese was their prime suspect, they failed to fully investigate other suspects, possible theories and analyze fully all evidence. Mr. Moonias had recently been a witness in a murder trial. He had also been stabbed only weeks before. The Defence argues it is plausible that his death is connected to one of these events. Even if it is not, it is also plausible that the assault was committed by someone else, but in their rush to jump to conclusions about Mr. O’Keese, the Defence argues the police overlooked vital evidence. b. The Crown has failed to prove that Mr. O’Keese went to Marina Park with Mr. Moonias on the night of August 5th. While the two men were seen together until approximately 6:30 p.m., by 7:30 when Mr. O’Keese appears in The Beer Store video surveillance, he is alone with no sign of Mr. Moonias. Ms. Slipperjack’s description of the male that met Mr. Moonias outside of Gino’s Pizza is too generic to place any weight on it. c. Even if I find that Mr. O’Keese did make it to Marina Park on August 5th, 2017, the Crown has failed to prove that there was an altercation between Mr. Moonias and Mr. O’Keese. There is a significant gap in the evidence. The evidence establishes that the area where Mr. Moonias was found was frequented by numerous individuals who were either seeking to drink, or were members of the homeless population. Witness descriptions of a “commotion” on the beach, place the timing of the commotion after the time that Mr. O’Keese arrived at Mr. Yesno’s home. They also did not see or hear what the “commotion” was. Furthermore, the DNA evidence offers no assistance as Ms. Brutzki acknowledged the possibility that Mr. O’Keese’s DNA could have lodged under Mr. Moonias’ fingernails from the saliva transfer associated a sharing of a cigarette. d. No inference of guilt with respect to the murder of Mr. Moonias can reasonably be drawn from the alleged attack on Mr. Lawson by Mr. O’Keese. Other than proximity of time and location, the Crown has not proved a link between the two crimes. e. There are inferences that can reasonably be drawn with respect to Mr. O’Keese’s alleged conduct at the Linklater-Yesno residence on the night of August 5th that are consistent with the innocence of the Accused. Guilt with respect to Mr. Moonias’ murder is not the only reasonable inference. The lighting was dim and Mr. Linklater and Mr. Yesno may have been mistaken as to what they saw. They also had inconsistent recollections with respect to certain details from that day and evening, rendering the reliability of their evidence questionable. Mr. O’Keese had also clearly breached his curfew and this could explain his agitation, upset and statements. Indeed, this was the reason Mr. Linklater surmised was the cause of his behaviour at the time. f. No inference of guilt may be drawn from Mr. O’Keese’s conduct during his police interview, and in particular his false statements about the time he spent with Mr. Moonias on August 5th. The Defence argues that as an indigenous male in 2017, at a time of poor police/indigenous relations, and one who was also the subject of a recognizance, it is not surprising that Mr. O’Keese would have been fearful of revealing his connection to Mr. Moonias while there was an ongoing murder investigation.
[87] As to whether all possible suspects have been investigated, or have the police applied tunnel vision to the investigation of Mr. O’Keese and unreasonably negated other plausible theories to the point that it creates reasonable doubt as to the guilt of the Accused:
i. At the time of the investigation into the murder of Mr. Moonias, the police were aware of both his involvement as a witness in another criminal trial and that he was recently stabbed. Mr. Moonias’ step-mother raised a concern about a possible link. Mr. Moonias refused to identify his assailant in the stabbing. I accept Sgt. McEver’s conclusion that there was nothing to lead police to believe that the testimony given in the murder case was related to the stabbing or that either of these incidents were connected to Mr. Moonias’ death. Sgt. Anderson also testified that he too considered these events but concluded there was no information on which to draw a link between them. While it is not unreasonable to consider this possibility, I accept that in the circumstances of this case, this Defence theory is based on speculation as opposed to being a reasonable theory. Mr. Moonias’ involvement in these other events does not undermine the Crown case. ii. The police interviewed a number of individuals who may have been at Marina Park the night of the murder, including Mr. Muckuck who says he saw Mr. Moonias laying in the fetal position, and Mr. LeBlanc who was sleeping close to the murder scene. The details of these interviews are not known to me, but Sgt. McEver testified that there was insufficient basis to pursue Mr. Muckuck as a suspect, with police not even being able to verify he was at the park that night. Mr. LeBlanc was also excluded as a suspect after investigation, as was Patrick Reuben. Sgt. McEver alone interviewed between 10 – 15 individuals. There was no evidence that suggests to me the police did not fully investigate other possible suspects in the murder investigation. iii. I agree with the Defence that if there was blood under Mr. Moonias, in the sand, it is curious as to why that would not be analyzed for DNA. Whether there is or is not blood under Mr. Moonias’ face is not clear from the photographs of the scene. Swabs were taken from blood found at the Lawson scene and analyzed. iv. Police did take sand and debris samples from the beach area but not until approximately three days after. It was never analyzed, even though sand was also found on Mr. O’Keese’s shoes. I have no evidence on which I can determine whether or not that would have made a difference. Detective Constable Tackney’s evidence suggested that the beach area was so well travelled that it would have been difficult to obtain any reliable evidence from the sand, including shoe impressions. Because this was not done, because Mr. O’Keese’s shoes were not seized until days later, and because I have no evidence as to Mr. O’Keese’s whereabouts in the intervening period, I cannot say that sand on his shoes at the time they were seized is proof of anything in this case. v. I accept Sgt. McEver’s evidence that police were not targeting Mr. O’Keese in this investigation, but rather the evidence they began to legitimately collect as part of the investigation, including the statements of Mr. Yesno and Mr. Linklater, lead them to Mr. O’Keese as a suspect.
[88] In considering all of the foregoing evidence, the lack of evidence, and the arguments of the Crown and Defence, I make the following findings:
a. When the evidence is considered as a whole I am satisfied that Mr. O’Keese went to Marina Park to go drinking with Mr. Moonias on the night of August 5th. The two men told their friend that they were going to go drinking, and this was one of their usual places. The Cumberland Street apartment video shows them together after they left Mr. Yesno’s home. There is an unaccounted for break in time from when they left the Cumberland apartment until Mr. O’Keese was seen at The Beer Store. While Mr. O’Keese was seen alone inside The Beer Store, given the store’s proximity to Gino’s Pizza and the time Ms. Slipperjack saw Mr. Moonias meet up with another male and walk off in the direction of the park, I find that the evidence establishes beyond a reasonable doubt that Mr. O’Keese and Mr. Moonias were still together and headed in the direction of the park to drink, as planned. Mr. Moonias’ body was found at Marina Park, lending further support to the Crown inference that the two men did in fact follow through with going to Marina Park, as opposed to their other favorite spot in Hillcrest Park. b. The Crown invites me to draw two inferences from the Lawson attack; that the evidence supports an inference that Mr. O’Keese did in fact make it to Marina Park and that the attack on Mr. Lawson is linked to the murder of Mr. Moonias and evidence of post-offence conduct consistent with a consciousness of guilt. I find that the evidence of the attack on Mr. Lawson supports the inference that Mr. O’Keese was at Marina Park / Freedom Park some time between the night of August 5th and morning of August 6th. There is no other explanation offered by the Defence, nor is there any other explanation that accords with common sense. This inference is supported by the following evidence: i. Mr. O’Keese’s baseball hat, seized from his room, tested positive for DNA consistent with that of Mr. Lawson. Surveillance video from 120-122 S. Cumberland Street and The Beer Store on August 5th showed Mr. O’Keese wearing a “Blue Jays” baseball hat. ii. Mr. O’Keese’s black jacket was also seized from his room. There were chemical indications of blood in three locations. Mr. O’Keese was considered a major contributor to one sample, with Mr. Lawson’s DNA also being found to be a minor contributor. The other two bloodstain/chemical indications of blood revealed at least two contributors, with Mr. O’Keese likely being one of them and the other undetermined. Mr. Linklater recalls Mr. O’Keese changing into a black jacket the night of August 5th. Video surveillance from August 6th showed Mr. O’Keese to be wearing a dark coloured jacket. iii. A black backpack seized from Mr. O’Keese’s room also revealed bloodstaining with DNA attributable to Mr. Lawson. Video surveillance from August 5th and 6th showed Mr. O’Keese wearing a black backpack. iv. Mr. Lawson and Mr. O’Keese were not known to each other. Mr. O’Keese had no reason to have Mr. Lawson’s DNA on his belongings other than being in the Marina Park on August 5th or 6th. His only other encounter with Mr. Lawson was a casual acknowledgement of each other from across the street of the liquor store days earlier. I agree with the Defence that there is insufficient evidence for me to draw the inference that the alleged attack on Mr. Lawson, by Mr. O’Keese was linked to the murder of Mr. Moonias and is evidence of a consciousness of guilt. The Crown argues that there would be no other motive for Mr. O’Keese to randomly attack Mr. Lawson, other than a mistaken belief he was a witness to the assault on Mr. Moonias. The Crown argues that it is not merely coincidence that Mr. Lawson and Mr. Moonias were both violently attacked between 7:30 p.m. on August 5th and 8:30 a.m. on August 6th and that the common denominator between them is Mr. O’Keese. Mr. Lawson’s evidence is that he does not recall the night of August 5th. While he recalled (after some prompting) drinking, meeting with his friends and possibly going to sleep down by the water somewhere, there is no evidence he saw Mr. Moonias and Mr. O’Keese or was witness to any altercation while there. The area where Mr. Moonias was attacked was close, but not visible from Mr. Lawson’s location on the bench at Freedom Park where he woke to be attacked. If I am to accept that Mr. O’Keese, perhaps in a fit of anger or an alcohol/drug induced state, would lethally assault his life-long friend when there is no evidence of animus between them, and when hours earlier they were seen laughing and friendly together, then it is equally conceivable that Mr. O’Keese would attack a random stranger while in such condition. Mr. Lawson’s evidence was that his attacker was giggling, laughing, mumbling and act strange. I also note that Mr. Lawson’s friends, Harriet Ash and Delford Matthews were with him the night of August 5th at Marina Park, found Mr. Moonias’ body on the morning of August 6th and attended at the hospital at some point and helped Mr. Lawson fill in some of his missing memories. Is this too coincidental or should something more be inferred? Coincidence is a reasonable inference in the circumstances of this case, and one inconsistent with guilt. c. Mr. Moonias’ time of death is unknown. There is a gap in the evidence as to what happened between when Mr. Moonias and Mr. O’Keese started walking towards the park at 7:30 p.m., and Mr. O’Keese arrived at the Linklater-Yesno residence between 11:00 p.m. and midnight. When they arrived at the park, what Mr. Moonias and Mr. O’Keese did, who they did it with (if anyone), and whether they remained together throughout this period of time or whether they went their separate ways while Mr. Moonias was alive, is unknown. d. There are no witnesses to an altercation between Mr. O’Keese and Mr. Moonias. e. There is no evidence of any injuries sustained by Mr. O’Keese in an altercation on either August 5th or 6th. While his police interview on August 7th shows him to have bruising on his right hand, neither Mr. Linklater nor Mr. Yesno observed any such injuries on the night of August 5th. While admittedly there is no clear view of both hands, the surveillance stills from the bus the morning of August 6th and John Howard Society do not reveal any cuts, bruises or abrasions on Mr. O’Keese’s face or what we can see of his hands. Sgt. McEver confirmed that there is no evidence of injuries suffered by Mr. O’Keese from video surveillance on August 6th. Mr. Yesno did testify that Mr. O’Keese’s face appeared to be red and puffy. Mr. Linklater testified that Mr. O’Keese was crying and upset that night. It is a reasonable inference that his upset was the cause of a red/puffy face. There is no indication in the Thunder Bay Transit or John Howard Society surveillance still photographs that Mr. O’Keese’s face was red, puffy, or swollen the morning of August 6th. f. Mr. O’Keese’s DNA found under the fingernails from the right hand of Mr. Moonias is consistent with scratching, but also consistent with saliva transfer. While Ms. Brutzki opines in her report and examination-in-chief that the amount of DNA is consistent with a scratching event, in cross-examination she acknowledged candidly that the DNA detected was a fairly significant amount and could come from different DNA rich sources such as skin cells or saliva. She acknowledged that without knowing what the two individuals did together, she cannot speculate to determine how the DNA came to be under Mr. Moonias’ fingernails. She further acknowledged that while a passive transfer such as touching the same surface was not a possibility, an innocent transfer of DNA from the transfer of a cigarette butt from one person to another was a possibility. The video surveillance shows Mr. Moonias holding, and transferring to Mr. O’Keese a cigarette with his right hand. There are no visible scratch marks on Mr. O’Keese from the still photographs of the video surveillance the morning of August 6th. g. There is no evidence of Mr. Moonias’ blood on Mr. O’Keese’s belongings that were seized and that he did have with him on August 5th and 6th. In finding this, I acknowledge there was an undetermined contributor to certain of the blood stains/chemical indications of blood found on Mr. O’Keese’s belongings. Mr. O’Keese’s t-shirt and shorts he was wearing were not part of the seized items and I do accept that he disposed of them. h. While Mr. Yesno and Mr. Linklater did have some difficulty recalling certain details of August 5th, 2017, and in some peripheral areas their evidence was inconsistent with each other, I find that their evidence was consistent that Mr. O’Keese attended at their home late on August 5th, 2017, agitated, shaken, crying, acting strangely, heavily intoxicated, and had blood on his t-shirt and face. I further accept Mr. Linklater’s evidence that Mr. O’Keese did not want the lights turned on and made the statement that “I fucked up”. I do not find the inference the Defence invites me to draw from this evidence, being that Mr. O’Keese was upset over missing curfew while subject to a recognizance, as a reasonable inference to draw from this evidence. It does not explain the blood on Mr. O’Keese’s t-shirt or his face. The only reasonable inference is that Mr. O’Keese was involved in some form of violent altercation. i. I find that Mr. O’Keese was untruthful with police during his August 7th interview as to his interactions with Mr. Moonias on August 5th. What conclusions may reasonably be drawn from this may be highly contextual.
[89] Applying these findings to a consideration of the Defence and Crown theories and whether there are other reasonable inferences that may be drawn from the whole of the evidence, or lack of evidence, other than the guilt of the Accused, what remains most troubling to me is that Mr. O’Keese arrived at the Linklater-Yesno residence between 11:00 p.m. – 12:00 p.m. on August 5th with blood on his t-shirt and his face, and he was shaken, upset and crying. In my view, this fact, considered in the context of the evidence as a whole, can either support the guilt or the innocence of the Accused depending on whether I am able to determine if Mr. Lawson was assaulted on August 5th or August 6th.
[90] If I conclude that Mr. Lawson was assaulted on the night of August 5th, then there are reasonable inferences that may be drawn from the whole of the evidence that are inconsistent with guilt of murder, and consistent with the guilt of Mr. O’Keese in the attack of Mr. Lawson:
a. Mr. Moonias and Mr. O’Keese went to Marina Park on the night of August 5th. b. They both had levels of intoxication from alcohol and/or drugs. c. There is a gap in the evidence with respect to what they did, whether they encountered other people or how long they were together. d. It is reasonably possible that Mr. O’Keese began to leave the park earlier than Mr. Moonias, knowing he had a curfew. e. The area where Mr. Moonias was murdered is frequented by a lot of people. Partying/drinking/commotion was heard from the beach area after midnight and after Mr. O’Keese was already at the Linklater-Yesno residence. f. Mr. O’Keese’s conduct, appearance and utterances at the Linklater-Yesno home could be explained by him having committed the attack on Mr. Lawson prior to going to the Linklater-Yesno residence, without also having to be consistent with him having committed the attack on Mr. Moonias. g. Mr. O’Keese’s disposal of his clothing is equally consistent with wanting to dispose of evidence in the Lawson attack, as it is evidence of guilt in the Moonias murder. h. Only Mr. Lawson’s DNA was found on Mr. O’Keese’s remaining belongings, and not Mr. Moonias’ DNA. i. Leaving aside any consideration of the state of race relations between police and the Indigenous population of Thunder Bay, it is a reasonable inference that if Mr. O’Keese was involved in the attack on Mr. Lawson he would want to distance himself from having been with Mr. Moonias that day, knowing he was found at Marina Park where the Lawson attack also took place.
[91] If I conclude that Mr. Lawson was assaulted on the morning of August 6th, the only reasonable inference I can draw from the evidence, or the lack thereof, is consistent with guilt in the murder of Mr. Moonias for the following reasons:
a. I have found that Mr. Moonias and Mr. O’Keese did go to the park together August 5th; b. Despite the gaps in the evidence and all other factors outlined in paragraph 90, if the attack on Mr. Lawson did not happen until the morning of August 6th, then there is no reasonable explanation for Mr. O’Keese showing up at the Linklater-Yesno residence on the night of August 5th with blood on his t-shirt and face, combined with the utterances made by him. While it is possible that Mr. O’Keese was involved in a different altercation, there is no evidence of another crime having been committed for which he would also want to dispose of his clothing. While other inferences do not need to be based on proven facts, I agree with the Crown that this circumstance would be far too coincidental and based on the totality of the evidence in this case, and the absence of evidence of another altercation would reasonably link Mr. O’Keese’s attendance at the Linklater-Yesno residence with his participation in the assault of Mr. Moonias on the evening of August 5.
[92] In considering this issue it must be remembered that I am not tasked with determining the guilt or innocence of Mr. O’Keese with respect to the Lawson attack, but whether there are reasonable inferences that may be drawn from the evidence in the Lawson attack, with respect to the Moonias murder.
[93] Mr. Lawson testified at trial that he was attacked the morning of August 6th. He does not recall how or when he arrived at the bench in Freedom Park. Homeless at the time, he often slept in the park. He does not recall when he went to sleep. He does not recall the events of August 5th at all. He recalls waking up at some point, but is not certain when it was. He may have gone to sleep elsewhere and then moved to the bench, and gone to sleep on the bench at some point. He did not sleep on the bench for the entire night, but does not remember where he slept prior to that. He does not recall how long he was on the bench before he was attacked. He could still see when he woke. He recalls it being a beautiful morning. He recalls being attacked and crawling to the road for help right away.
[94] In a prior statement to the police, Mr. Lawson told them that he was attacked on August 5th, and likely the evening. He corrected himself later in the interview by making a statement to the effect of ‘I’m guessing it might be the morning.’ (August 6th). He agreed with Defence counsel suggestion that he was having trouble remembering events during this first interview with police while he was still in hospital, and could not answer why he initially thought the attack happened the evening of August 5th.
[95] The Crown argues that Mr. Lawson was mistaken at trial, and he was attacked the night of August 5th by Mr. O’Keese. This is more consistent with his statement given to police more contemporaneous to the event. The Defence argues that I should accept Mr. Lawson’s evidence as given at trial that his assault did not happen until August 6th. The positions of the Crown and Defence are curious to me given my conclusions that an attack on August 5th could support an acquittal of the Accused, while a finding of the attack on Mr. Lawson occurring on August 6th could support a finding of guilt.
[96] The evidence of Mr. Lawson was inconsistent in numerous areas during the course of his testimony and with prior statements given to police. While it was clear that Mr. Lawson was doing his best to recall events honestly, there were some considerable frailties affecting the reliability of his evidence:
a. He acknowledged that his recollection of events has been significantly impacted by the trauma sustained by him in the attack. b. His recollection of events is impacted by alcohol consumption. While initially Mr. Lawson was reluctant to acknowledge he had been drinking August 5th, he did confirm that he was intoxicated that night, has difficulty recalling his activities that day and evening, and that he woke up very hungover. c. While he testified that he remembers some things independently, he has relied on the assistance of others to help him piece events together. This includes the police, Harriet Ash and Delford Matthews. At the trial itself, Mr. Lawson was assisted by his daughter as a support person and I had to caution her on two occasions for offering him answers to questions asked by counsel. d. Mr. Lawson testified that while he does remember some things, he is not certain he can separate his own independent recollections from what he has been told by others. e. At times Mr. Lawson was reluctant to answer questions posed in cross-examination. He acknowledged he knew the answer but did not want to say. He had to be directed by me to answer. The reason for this is unknown to me. Sgt. McEver did testify that there was a question in his mind as to whether there was a fear element at play. f. Mr. Lawson was, understandably, anxious during the course of giving his evidence and at times gave the impression he was simply agreeing to suggestions by counsel, rather than testifying as to his own independent recollections.
[97] When I consider the evidence, both dates are reasonable possibilities, but have elements that are difficult to reconcile:
a. August 5th was Mr. Lawson’s initial recollection that was most contemporaneous to the event. I have already found that Mr. O’Keese was at the Marina Park at some point that evening. b. On the other hand, Mr. Lawson was still in hospital at this time he told police the attack happened on the evening of August 5th. I do not have evidence as to his medical condition at the time of his interview, and he changed his mind part way through the interview to guess it may have been morning. c. While Mr. Lawson acknowledged being heavily intoxicated on August 5th, one would think that such a traumatic injury would warrant more immediate medical attention than waiting until the morning after. Mr. Lawson having limited recollection of August 5th, it is difficult to know whether or not his level of intoxication contributed to not seeking medical attention immediately. d. With respect to August 6th, it makes logical sense that Mr. Lawson would remember the last thing he was able to see with his eyes. It also makes sense that a traumatic injury would cause him to seek medical attention immediately, and that he would recall if he was treated shortly after the injury or longer. Having said this, on the one hand he was confident by the time of trial that he recalled these details, but on the other hand he acknowledged having difficulty separating what he remembered independently and what he was told. e. While Mr. Lawson’s description of his assailant’s clothing was inconsistent during the course of his evidence, overall his description of dark pants (blue jeans) and a long sleeve jacket is more consistent with Mr. O’Keese’s attire on August 6th than the 5th. f. I question why Mr. O’Keese would return to the Marina Park the morning of the 6th, assault Mr. Lawson, then travel all the way back to the area of the Linklater-Yesno residence to catch his bus rather than catch a bus closer to the park. g. I do not have any medical evidence that may shed light on when the injuries to Mr. Lawson occurred. I do not know if Mr. Lawson could have endured the consequences of this attack overnight without medical intervention. I do not know how his intoxicated condition would have impacted this. I do not know if such evidence is possible in this case.
[98] Ultimately, given the frailties associated with the evidence of Mr. Lawson I am left with doubt as to whether he was assaulted on the 5th or 6th of August. As such, it remains a reasonable possibility that Mr. O’Keese’s conduct, appearance and utterances at the Linklater–Yesno residence, combined with the other concerning evidence of post-offence conduct is related to the alleged attack on Mr. Lawson. This is a reasonable inference that is inconsistent with guilt with respect to the murder of Mr. Moonias.
[99] While the evidence is suspicious for Mr. O’Keese’s involvement in Mr. Moonias’ death, I cannot conclude beyond a reasonable doubt that Mr. O’Keese committed the assault on Mr. Moonias that caused his death. The burden of proof not having been met by the Crown, Mr. O’Keese must be acquitted.
Intent:
[100] The crime of murder requires proof of a particular state of mind. The Crown must satisfy me beyond a reasonable doubt that:
a. Mr. O’Keese meant to kill Mr. Moonias; or b. He meant to cause Mr. Moonias bodily harm that he knew was likely to kill him, and was reckless as to whether Mr. Moonias died or not.
[101] I am satisfied that if I had concluded that Mr. O’Keese assaulted Mr. Moonias and caused his death, the Crown has not proved that either Mr. O’Keese meant to kill Mr. Moonias, or that he meant to cause him harm that he knew was likely to kill him. Particularly given the lengthy friendship between the two men, the lack of any evidence as to issues in the friendship, their happy and friendly demeanour with each other earlier in the day, the evidence is more consistent with an inference of an alcohol/drug induced argument that escalated beyond what was anticipated. Mr. O’Keese’s statement to Mr. Linklater that “I fucked up” is indicative of an accidental as opposed to an intentional act. Therefore, if I had concluded that Mr. O’Keese committed the fatal assault, I would have concluded that his actions constituted manslaughter and not second degree murder.
Breach of Recognizance:
[102] It is undisputed that on August 5th and 6th, 2017, Mr. O’Keese was bound by the terms of a recognizance that he abstain from the purchase, possession and consumption of alcohol and other intoxicating substances, and that he abide by a curfew of 10:00 p.m. to 6:00 a.m. at the John Howard Society.
[103] The Defence admits the evidence proves that each of these conditions were breached. Mr. O’Keese was observed on The Beer Store video purchasing “tall boys” of beer, he was observed by Brandon Yesno and Skyler Linklater to be intoxicated on August 5th, and he did not return to his room at the John Howard Society the night of August 5th. Convictions will be registered on both counts of breach.
Concluding Remarks:
[104] To the family, friends and community of Mr. Moonias, I recognize that the decision I have made today is a difficult one for you. You have lost a loved one; someone who was described by his dear friend Mr. Yesno as a “great guy”. You may feel that justice has not been done for Brayden. While I must be guided by the evidence and the law, I am truly sorry for any additional grief or pain this decision may cause you. It may offer you little solace at this time, but please know that this decision was made after considerable deliberation of the evidence. While I do not expect you all to agree with my decision, I hope that I have communicated it in a way that helps to understand why I came to the conclusion that I did.
“Original signed by” The Honourable Madam Justice T.J. Nieckarz
Date: February 22, 2022