WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the information relates to a young person who has received an adult sentence;

(b) in a case where the information relates to a young person who has received a youth sentence for a violent offence and the youth justice court has ordered a lifting of the publication ban under subsection 75(2); and

(c) in a case where the publication of the information is made in the course of the administration of justice, if it is not the purpose of the publication to make the information known in the community.

(3) A young person referred to in subsection (1) may, after he or she attains the age of eighteen years, publish or cause to be published information that would identify him or her as having been dealt with under this Act or the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is not in custody pursuant to either Act at the time of the publication.

111(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

138(1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published), 118(1) (no access to records unless authorized) or 128(3) (disposal of R.C.M.P. records) or section 129 (no subsequent disclosure) of this Act, or subsection 38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14) (no subsequent disclosure by school) or (1.15) (information to be kept separate), 45(2) (destruction of records) or 46(1) (prohibition against disclosure) of the Young Offenders Act , chapter Y-1 of the Revised Statutes of Canada, 1985,

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Details

Court: COURT OF APPEAL FOR ONTARIO Date: 2022-02-02 Docket: C65476

Before: Fairburn A.C.J.O., Gillese and Trotter JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

K.T. Appellant

Counsel: Michael Davies and Meaghan McMahon, for the appellant Jennifer Trehearne, for the respondent

Heard: January 28, 2022 by video conference

On appeal from the conviction entered by Justice S. March of the Ontario Court of Justice (Youth Justice Court) on January 16, 2018.

REASONS FOR DECISION

Overview

[1] On August 13, 2016, the appellant’s father was shot through the top of his head while lying on the couch in the living room of the family home. The couch was visible from the appellant’s bedroom doorway. The bullet found lodged in the father’s head was similar to one that could have been shot from a .22 calibre rifle. A .22 calibre rifle, along with a spent .22 calibre shell, were found in the appellant’s bedroom.

[2] There is no certainty around the time of death. What is certain, though, is that on the day that his father was killed, the appellant was captured on video at just after 6:00 p.m., in his father’s car, purchasing food at a fast-food restaurant close to the family home. A GPS in that vehicle established that the appellant drove from the area of the family home, to the area of the fast-food restaurant, and then on to Montreal. The appellant was arrested in Montreal the next day. In his possession were: (i) the receipt from the fast-food restaurant, confirming that the time of purchase was just after 6:00 p.m.; (ii) the father’s identification cards; (iii) the father’s credit card and bank card; (iv) the father’s cellular phone; and (v) numerous items of the appellant’s clothing and other personal items.

[3] There is some dispute as to when the appellant’s brother, B.T., finished work on the day that their father was killed. B.T. was scheduled to work until 7:00 p.m., but he appears to have clocked out of work at 5:00 p.m. Whatever time he finished work, it is clear that B.T. started trying to contact his father around 7:00 p.m. so that he could get a ride home. When B.T. could not reach his father, he eventually sent him a text message, asking where he was. B.T. received no response. Ultimately, B.T. took a taxi home, arriving some time after 7:00 p.m.

[4] After he arrived home, B.T. invited friends over to the family home. Although he did not testify at trial, evidence was elicited that, as the evening progressed, B.T. appeared increasingly concerned for the whereabouts of his father. Eventually B.T.’s grandfather attended at the family home and the police were called. At just before midnight, the police arrived. They found the deceased’s body secreted away in the basement.

[5] The father’s head had been wrapped in a garbage bag. The appellant’s fingerprints were found on that bag. The father’s body was wrapped in a blanket. The appellant’s blood was found on that blanket. There were also water bottles found close to where the body lay. The Crown theory was that the movement of the body must have taken some effort, which may have resulted in the consumption of water. The appellant’s DNA was found on two of the water bottles.

[6] This was a judge-alone circumstantial murder case where the trial judge had to resolve a third-party suspect allegation. The defence pointed to B.T. as the likely third-party suspect.

[7] The trial judge provided extensive and careful reasons for finding the appellant guilty of second-degree murder. His reasons for judgment are organized around ten categories: opportunity, motive, physical evidence at the scene, cause and place of death, movement of the body, DNA evidence, fingerprint evidence, post-offence conduct evidence, recent possession of stolen property, and alternate suspect. In relation to the last category, the trial judge carefully explained why the third-party suspect defence did not raise a reasonable doubt.

[8] The appellant raises three grounds of appeal. For the reasons that follow, we are unpersuaded by any of them.

The Movement of the Father’s Body

[9] While the trial judge found as a fact that the father was killed in the living room, having been shot in the head by the appellant, and that his body was later moved to the basement, the trial judge was unable to find as a fact that the appellant moved the body on his own. The trial judge put it this way:

Although I am not able to infer that the accused had on his own moved the deceased body from the living room to the storage area in the basement, I am satisfied from the expert evidence that the deceased was killed in the living room and his body was moved to the basement storage area. There may have been other persons involved in the movement of the body but this does not raise a reasonable doubt that the accused did not shoot the deceased. [Emphasis added.]

[10] The appellant contends that the trial judge’s reasons demonstrate that he accepted that there was more than one person involved in moving the deceased’s body. The appellant adds that the evidence in support of that finding was overwhelming in nature. The appellant characterizes the trial judge’s finding regarding how many people it took to move the body as a “crucial” issue on appeal because, as he argues, it undermines the trial judge’s ultimate conclusion that the appellant was the shooter. According to the appellant, once the trial judge accepted that there was another person at the scene of the crime, someone who was involved in the movement of the body, it became entirely plausible that the appellant was only an accessory after the fact to murder and not the person who actually shot his father.

[11] As always, the trial judge’s reasons must be read in context.

[12] First, we do not read the impugned sentence – “[t]here may have been other persons involved in the movement of the body” – as the trial judge suggesting that the appellant was not involved in moving the body. To the contrary, read in context, the trial judge’s reasons are entirely clear that, at a minimum, he found that the appellant was directly involved in moving his father’s body to the basement. The trial judge explained that conclusion by focusing upon numerous pieces of evidence, including the appellant’s DNA on the blanket in which the deceased’s body was wrapped, the appellant’s fingerprints on the garbage bag in which the deceased’s head was wrapped, and the appellant’s DNA on the water bottles found close to where the body lay.

[13] Second, we do not read the impugned sentence as the trial judge suggesting that there was in fact someone else involved in moving the body. Rather, we read the trial judge as simply saying that he was not prepared to find as a fact that the appellant moved the body on his own. Accordingly, and at its highest, the impugned sentence leaves open the possibility that someone else was involved in the movement of the body.

[14] Third, there was no evidence at trial that some random person went into the family home to help move the body.

[15] Fourth, while the appellant advanced a third-party suspect defence, he pointed directly at B.T. as being that suspect. Yet the trial judge’s reasons make clear why he rejected the proposition that B.T. was anywhere near the family home until over an hour after the appellant had purchased his fast food and left for Montreal. Given the trial judge’s finding that, at a minimum, the appellant was involved in moving the body, and that B.T. did not go home until after the appellant had left for good, it is clear that the trial judge rejected that B.T. had anything to do with moving the body.

[16] Fifth, there was no need for the trial judge to factually resolve whether someone else – whoever that may have been – helped move the father’s body to the basement. What the trial judge needed to resolve, and in fact did resolve, was who shot the appellant’s father in the head while he lay on the couch. The trial judge explained why he found beyond a reasonable doubt that it was the appellant who shot his father. The fact that the trial judge could not reach a degree of certainty as to whether the appellant moved the body to the basement on his own does nothing more than show how carefully he approached the evidence and his task. His uncertainty on that point did not dilute or render questionable the verdict.

[17] Finally, this was a strong circumstantial case pointing toward the appellant as the shooter. The trial judge’s reasons demonstrate a careful consideration of that evidence, giving rise to factual conclusions that were available on the record. Among the many pieces of circumstantial evidence that formed the backdrop to the prosecution lay the fact that the father was likely killed with a single shot from .22 calibre rifle, a .22 calibre rifle was found in the appellant’s bedroom, an empty shell casing fired from a .22 calibre rifle lay nearby, and the door to the appellant’s bedroom had a sightline to where the father lay on the couch. Combined with the DNA and fingerprint evidence, as well as the reasoned rejection of the third-party suspect defence, this was a strong Crown case.

Post-Offence Conduct

[18] The appellant argues that the trial judge erred in his approach to the appellant’s post-offence conduct. The impugned passage follows:

The after-the-fact evidence of the accused’s flight to Montreal, with his clothing packed in a bag, in the family car, together with the deceased’s cell phone and identification cards, leads me to the conclusion that the accused fled the crime scene as he was responsible for the crime.

[19] The appellant argues the trial judge erred by failing to take into account that there were alternative inferences that could have been drawn for why the appellant may have gone to Montreal with his father’s belongings, as well as a packed bag, which alternative inferences undermined the probative value of this after-the-fact conduct.

[20] The alternative inferences are said to arise from the trial judge’s finding that more than one person was involved in moving the body. That finding is said to act as if it were a defence admission that the appellant moved the body (after the deceased was killed by someone else). With that admission-like finding in place, the appellant argues that all of the after-the-fact conduct is easily explained by an alternative inference: that the appellant fled to Montreal, not because he was responsible for murder, but because of a panicked reaction to having been at the crime scene and having helped move the body. That alternative inference is said to deprive the after-the-fact conduct evidence of its probative value.

[21] Despite the capable submissions made, we do not see it that way.

[22] This entire submission rests on a foundation that we have already rejected. We do not read the trial judge’s reasons as having found that more than one person was in fact involved in moving the body. We will not repeat what has already been said on that point. Therefore, the premise that there was an admission-like finding in place falls away.

[23] What we will add is the following.

[24] First, there is no dispute that the trial judge instructed himself correctly on the legal principles underpinning circumstantial evidence involving after-the-fact conduct evidence and, more broadly, on circumstantial evidence in general.

[25] Second, in our view, the trial judge’s reasons reveal a careful assessment of the after-the-fact conduct evidence. He took into account each of the suggested alternative inferences posited by the defence and gave reasons for rejecting them. We see no error in his application of the law to the facts as he found them.

[26] Again, the reasons for judgment must be read as a whole, including the findings of fact that are well-rooted in the evidentiary record, all of which pointed toward the appellant as the shooter and away from alternative theories that were, as the trial judge said, largely rooted in speculation.

[27] The appellant also argues that the trial judge’s characterization of his conduct as being “after-the-fact” is inherently problematic because no one knows when the father was killed. While the trial judge said it was before 6:00 p.m., the appellant asserts that this was an arbitrarily assigned time, one that is admitting of circular reasoning. In other words, if the father was killed after the appellant left the family home in the father’s car, then the appellant’s actions could not be properly characterized as being “after-the-fact” in nature.

[28] We do not accept this characterization of the time of death as having been arbitrarily assigned. This was a factual conclusion arrived upon by the trial judge, one that is well-supported in the record. As before, the trial judge gave extensive reasons for why he said that the father was dead and hidden in the basement before the appellant left the home for the last time.

The Factual Inferences Drawn

[29] The appellant argues that the trial judge drew numerous unreasonable inferences. He made oral submissions on only two of these points. We will deal with them all.

[30] First, the appellant contends that the trial judge made no attempt to resolve the evidence that the blood spatter evidence on the couch could have been caused by a sneeze. In our view, this was not a factual issue that needed resolution. To the contrary, no one disputed that the murder may have taken place on the couch. Indeed, having the couch as the location of the murder, as opposed to the basement, inured to the benefit of the defence, given that a significant plank of the defence argument was that the appellant alone could not have moved the body to the basement after his father was killed.

[31] Second, the appellant argues that the trial judge erred by relying upon the fact that, if the father had been lying on the couch with his head pointing toward the direction of the hallway, it would have been possible to see the top of his head from the appellant’s bedroom doorway. The appellant points to the fact that it was equally possible to see the top of the father’s head from B.T.’s bedroom doorway. While this is true, it does not undermine the inferential value of the evidence. The trial judge’s observation about the position of the appellant’s bedroom doorway, relative to where the father’s head would have been had he been lying on the couch, was highly relevant, particularly given the location of the .22 calibre rifle and the spent .22 calibre shell.

[32] Third, the appellant argues that the trial judge erred in attaching significance to: (i) the appellant’s DNA found on the blanket in which the body was wrapped; and (ii) the appellant’s fingerprints found on the garbage bag surrounding the father’s head. As he argued at trial, the appellant maintains that these were household items and that the appellant lived in that household. Therefore, it is unsurprising that his DNA and fingerprints were found on those items.

[33] The trial judge was alive to this argument, addressed it, and rejected it. He placed evidentiary value in the proximity of the DNA and fingerprints to the body of the deceased. Although the fingerprints on the garbage bag undoubtedly carry more significant circumstantial heft, it was open to the trial judge to see both pieces of evidence in this way. Looked at against the reasons as a whole, the DNA and fingerprints were merely two more pieces of circumstantial evidence that added to a strong circumstantial case.

[34] Fourth, the appellant says that the trial judge erred in placing any emphasis on the .22 calibre rifle found in the appellant’s bedroom because there was no evidence clearly linking that gun to the father’s death. The appellant argues that the trial judge contradicted himself when saying that the gun appeared to have been hidden in “haste”, particularly in light of the trial judge’s conclusion that the appellant’s departure from the family home was planned and he was not in a panic.

[35] We accept the respondent’s position that there is no contradiction: one can be in haste without being in a panic. We also reject the argument that there was an absence of evidence connecting the .22 calibre rifle and shell to the death and that the trial judge erred in finding such a connection. The connection was palpable on its face.

Disposition

[36] The appeal is dismissed.

“Fairburn A.C.J.O.”

“E.E. Gillese J.A.”

“G.T. Trotter J.A.”