Court of Appeal for Ontario

Date: 2019-11-05 Docket: C62695

Judges: Benotto, Brown and Paciocco JJ.A.

Between

Her Majesty the Queen Respondent

and

Paul Kenyon Appellant

Counsel

Lance Beechener and Riaz Sayani, for the appellant John Patton, for the respondent

Heard: October 30, 2019

On appeal from: The conviction entered on April 15, 2014 by Justice Michelle Fuerst of the Superior Court of Justice, sitting with a jury.

Reasons for Decision

[1] Paul Kenyon appeals his conviction of second-degree murder in the death of his girlfriend, Marion Deacon. Her body was discovered in her home after first responders extinguished a fire that had engulfed the home. Mr. Kenyon was in the home at the time of the fire. Suffering from smoke inhalation and other injuries, Mr. Kenyon ran to a neighbour's house, purporting to seek help. Mr. Kenyon was charged with Ms. Deacon's murder shortly after her body was discovered. The Crown theory was that Mr. Kenyon killed her in a dispute about his drug abuse and that he stole money from her to acquire drugs. These issues had been causing her to question their relationship.

[2] Mr. Kenyon does not contest that Ms. Deacon was murdered, having been bludgeoned to death before the fire started. He contends that there is a reasonable doubt about his guilt.

[3] During the trial, Mr. Kenyon testified that he witnessed one of his drug dealers kill Ms. Deacon. He said the drug dealer and an unknown man came to Ms. Deacon's house and confronted him about owing them money, and then killed Ms. Deacon when she showed up at the home.

[4] Mr. Kenyon's account was hampered by prior statements he made to the neighbours and emergency response personnel, and by a statement he later gave to the police, while being interviewed in the hospital. In those statements, he described being alone with Ms. Deacon when he awoke to the fire. He escaped, but Ms. Deacon did not get out after attempting to rescue her dogs.

[5] Mr. Kenyon argues that the trial judge erred in admitting the police statement because it was taken in oppressive circumstances as he lay in the hospital bed when he was sleep deprived, covered only in a hospital blanket, and suffering from his injuries. He urges that the trial judge misapplied the law by treating her oppression analysis as confined to the conduct of the police. We need not comment on whether it is correct to characterize oppression as an objective inquiry. Nor need we opine on the trial judge's observation that the police did not cause some of the circumstances that Mr. Kenyon relies on as oppressive. The trial judge understood that oppression is part of the voluntariness inquiry and that voluntariness is to be determined by considering all the circumstances. She was aware of all the circumstances, including those relied upon by Mr. Kenyon to claim oppression, and properly considered them. She was left in no doubt about the voluntariness of the police statement. We therefore reject this ground of appeal.

[6] Mr. Kenyon also argues that the trial judge erred in directing the jury that it was open to them to find his prior statements were lies told to conceal his guilt, and that she did not properly direct the jury on the care that must be taken in making that determination. We disagree. Mr. Kenyon admitted the statements were lies. There was also a foundation in the elaborate detail he spun when presenting Ms. Deacon's death as accidental, which would enable the jury to make a finding that he lied to hide the truth about his responsibility for her death. The jury direction was approved by defence counsel during a pre-charge conference and was adequate.

[7] Finally, Mr. Kenyon argues that the trial judge erred in her rulings relating to his third-party suspect evidence. We disagree. The drug dealer that Mr. Kenyon claimed killed Ms. Deacon testified as a Crown witness. The Crown called him to testify about efforts Mr. Kenyon had made to get drugs in the hours before the fire. The trial judge's initial ruling, preventing Mr. Kenyon from cross-examining the man about his complicity, was correct. At the time that ruling was made, there was not an adequate foundation for the drug dealer's complicity.

[8] After making this ruling, the trial judge properly permitted Mr. Kenyon to present his third-party suspect defence through his own testimony about witnessing this man kill Ms. Deacon. Through Mr. Kenyon's testimony, the requisite foundation would be laid, and so at that point, his third-party suspect defence could properly be presented. Along with the parties, the trial judge developed a protocol for calling further evidence on this issue after Mr. Kenyon testified. That protocol was followed without objection, and her direction to the jury was sufficient. We see no error in any of the trial judge's rulings.

[9] The appeal is therefore dismissed.

M.L. Benotto J.A. David Brown J.A. David M. Paciocco J.A.