COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Finn, 2021 ONCA 840

DATE: 20211124

DOCKET: C68344

Tulloch, Hourigan and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrance Finn

Appellant

Terrance Finn, acting in person

Philippe Cowle, for the respondent

Heard: November 3, 2021 by video conference

On appeal from the conviction entered on January 23, 2020, by Justice Jocelyn Speyer of the Superior Court of Justice, sitting without a jury, with reasons at 2020 ONSC 0465.

REASONS FOR DECISION

[1] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. We now provide our reasons.

Material Facts

[2] On August 22, 2018, Mr. Finn attended the Peterborough Home Depot with his wife. At the time, they had been married for 55 years.

[3] Just after 8:00 a.m., while in the parking lot and in the presence of six eyewitnesses, he shot her twice at close range, in her head. She died shortly after, as a direct result of the gunshot wounds.

[4] Mr. Finn was subsequently arrested and charged with first-degree murder. He provided an inculpatory statement to the police, admitting to the shooting and explaining that he had intended to kill himself and his wife due to the stress that they were both experiencing as a result of moving in with their son and conducting extensive renovations on their son’s house.

Decision Below

[5] The case proceeded to trial, and Mr. Finn elected to be tried by a Superior Court judge, without a jury.

[6] The sole issue at the trial was Mr. Finn’s state of mind at the time he shot and killed his wife, and whether he had the requisite intent for first-degree murder. The trial judge was tasked with determining whether Mr. Finn planned and deliberated his wife’s death.

[7] The trial judge found that the appellant caused his wife’s death. In addition to Mr. Finn admitting to shooting his wife, there was credible and reliable evidence from five people who were present at the Home Depot that morning corroborating the shooting of Mrs. Finn by the appellant.

[8] With respect to the issue of intent, Mr. Finn provided contradictory and shifting testimony as to whether he intentionally shot the deceased. At trial, he gave evidence that the shooting was not an accident, but minutes later stated that he did not intend to shoot his wife and did not know he shot her twice. Minutes after that, he stated that he had no idea what he did. The trial judge considered all the evidence, including the statement he made in a videorecorded interview with an officer, Detective Reesor. In the interview, Mr. Finn communicated that he had planned to kill his wife and himself at Home Depot. The trial judge accepted that account of events as credible and reliable.

[9] Relying on the interview with Detective Reesor, the trial judge found that Mr. Finn intended to kill his wife. The trial judge also considered the nature of the firearm used, a 38-calibre single action revolver. This firearm requires a manual and intentional loading of ammunition.

[10] The trial judge also considered eyewitness testimony. Witnesses present at the Home Depot described the appellant’s demeanour as calm and composed, not erratic. They observed him lighting and smoking a cigarette after the shooting. The appellant asked one witness to look after his dogs, which were in the car. The arresting officer testified that the appellant was cooperative and responded appropriately to commands. The appellant was also calm during his interview with Detective Reesor, except when discussing the life stressors which had led him to shoot his wife.

[11] The trial judge also considered the appellant’s life stressors in assessing his mental state at the time of the offence, as well as during the course of the trial. There was clear evidence that recent events had left the appellant depressed, anxious, and suicidal. The trial judge determined that the appellant nevertheless had the ability to form an intention to kill his wife and had done so.

[12] The murder was deliberate and planned. Mr. Finn’s statement to Detective Reesor established that, the night before the murder, he decided to kill his wife and then himself when they went to Home Depot. This was further supported by a “to-do” list for the next day, which included a stop at Home Depot. The gun used, which required manual loading, had enough ammunition to kill both his wife and himself. At Home Depot, the appellant exited the car with the gun tucked in his waistband and met his wife at the trunk of the car. This was consistent with a plan to shoot his wife at Home Depot.

[13] Following the trial, the appellant was found guilty and convicted of first-degree murder.

Issues and Discussion

[14] The appellant appeals his conviction. He submits that:

1. The verdict was unreasonable,
2. There was a misapprehension of evidence,
3. The trial judge made errors of law, and
4. He did not have a lawyer.

[15] We see no merit to the first ground of appeal. In the recent decision of this court in R. v. Lights, 2020 ONCA 128, 149 O.R. (3d) 273, at paras. 29-34, Watt J.A. outlined the basic principles governing unreasonable verdicts:

[29] Under s. 686(1)(a)(i), an appellate court may set aside a trial verdict if the verdict is either unreasonable, unsupported by the evidence, or both.

[30] A verdict is unreasonable if it is one that no properly instructed jury, acting judicially, could reasonably have rendered. This test requires not only an objective assessment of the evidence adduced at trial, but also, to some extent at least, a subjective evaluation of that evidence. To discharge this responsibility, we are required to review, analyse, and, within the limits of appellate disadvantage, weigh the evidence. This weighing is only to determine whether that evidence, considered as a whole, is reasonably capable of supporting the verdict rendered.

[31] A verdict may also be unreasonable where a judge has drawn an inference or made a finding of fact that is plainly contradicted by the evidence or is incompatible with evidence that is not otherwise contradicted or rejected.

[32] Two further points warrant brief mention.

[33] When the claim of an unreasonable verdict rests on the assertion that, based on the evidence, the trier of fact could not have reasonably rendered the guilty verdict, an appellate court is entitled to consider that the accused did not testify at trial or adduce other evidence to support any other reasonable inference consistent with innocence.

[34] The remedy available to an appellant who successfully challenges a trial verdict as unreasonable depends on the circumstances of the case and the basis upon which the argument succeeds. Where the appellate court is satisfied that the verdict is unreasonable because no properly instructed jury, acting judicially, could reasonably have reached such a verdict, the appellate court should enter an acquittal. The same result would follow when the court determines that a finding or inference drawn by the judge contradicted by the evidence or incompatible with evidence not otherwise contradicted or rejected and the verdict is unavailable on the evidence. But when the verdict is unreasonable but available on the evidence, the remedy is a new trial. [Internal citations omitted.]

[16] In our view, the verdict was reasonable. Based on all the evidence adduced at trial, including Mr. Finn’s testimony, there was ample evidence to substantiate the findings by the trial judge. In turn, given the totality of the evidence, and the findings of the trial judge, the verdict is one that a properly instructed jury or judge could reasonably have rendered.

[17] The second issue raised by the appellant is that the trial judge misapprehended the evidence. We see no merit to this ground of appeal.

[18] The appellant claims that the trial judge misapprehended the evidence, but he does not identify where in the trial judge’s reasons this misapprehension occurs. In our view, the trial judge’s reasons are clear and unequivocal. Her reasons are thorough and consistent with the evidence adduced at trial. The appellant has not demonstrated that the conviction depended on a misapprehension of the evidence which contributed to him not receiving a fair trial.

[19] Third, the appellant asserts that the trial judge made errors of law, but he does not particularize what the errors are other than that the verdict was unreasonable and that there was a misapprehension of the evidence. Again, we are not satisfied that the trial judge committed any legal errors in her reasoning that warrant appellate intervention.

[20] Finally, the appellant submits that he was distraught and confused during his legal proceedings and did not have the benefit of a lawyer.

[21] The appellant chose to represent himself. The court, however, appointed a very experienced and highly reputable criminal lawyer, Mr. R. Gemmell, as amicus curiae, who was present during the trial both to assist the court as well as to be available for the appellant to consult with.

[22] Therefore, for the foregoing reasons, we dismissed the appeal.

“M. Tulloch J.A.”

“C.W. Hourigan J.A.”

“Harvison Young J.A.”