WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

ONTARIO COURT OF JUSTICE

DATE: 2015-01-29

Court File No.: 14-4797

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MITCHELL BROOKS

Before: Justice C.M. Harpur

Heard on: October 20, 21, 22, 23, 24, 2014 & October 27, 28, 29, 30, 31, 2014 & December 8, 9, 10, 11, 2014 and January 16, 2015

Reasons for Judgment released on: January 29, 2015

Counsel:

• D. Russell / J. Armenise — counsel for the Crown
• K. Miles — counsel for the accused

HARPUR J.:

Outline & Issues

[1] At 8:46 p.m. on May 24, 2013 Mitchell Brooks called 911 from his home near New Lowell, Ontario. Mr. Brooks advised that his wife had been shot and, in response to the 911 operator's questions, that she had been shot in the chest with a gun over which he and she had been fighting. The 911 operator dispatched an ambulance and police to Mr. Brooks's address and provided Mr. Brooks with first aid coaching over the phone while emergency personnel rushed to the scene.

[2] The first emergency responder to enter Mr. Brooks's home was Ontario Provincial Police Constable Adam Pinn. He had arrived at the home at 9:04 p.m. In the foyer of the home he observed Mr. Brooks's wife, Deena Brooks, lying on her back on the foyer floor, a black handgun also on the floor to the left of her head. For the purpose of this preliminary inquiry, it is conceded that the handgun had caused a bullet wound in Mrs. Brooks's chest which the paramedics proceeded to find and treat. P.C. Pinn also observed Mr. Brooks crouched by Mrs. Brooks apparently attempting to perform cardio-pulmonary resuscitation.

[3] Mrs. Brooks was pronounced dead at the scene by the paramedics later that evening. The Crown's forensic pathologist, Dr. Toby Rose, testified that the cause of death was the gunshot wound to the chest.

[4] Mr. Brooks was arrested on the evening of May 24, 2013. He is charged with first degree murder.

[5] The preliminary inquiry on this charge was conducted on October 20 – 24, 27-31, December 8 – 11, 2014 and on January 16, 2015. Viva Voce evidence was introduced from twenty-nine Crown witnesses. Fifty-two exhibits were filed, the last of which is a list of admissions.

[6] In submissions, Ms. Miles for Mr. Brooks acknowledges that the record in this preliminary inquiry does contain some evidence on which a reasonable jury, properly instructed, could find Mr. Brooks guilty of manslaughter. Committal for that offence would be with Mr. Brooks's consent.

[7] The defence submits, however, that the record does not contain any evidence of an intention by Mr. Brooks to kill Mrs. Brooks or to cause her bodily harm which he knew was likely to cause her death and being reckless as to whether her death ensued. Thus, Ms. Miles argues, Mr. Brooks ought not to be committed to trial for murder. In the alternative, Ms. Miles submits that, even if the record can be seen as supporting an intention to kill or to inflict bodily harm by Mr. Brooks, it does not provide any basis for finding that Mr. Brooks planned and deliberated Mrs. Brooks's murder or that he forcibly confined her in the course of committing her murder. Accordingly, the defence urges that any committal for murder should be for second degree murder only.

[8] Ms. Armenise and Mr. Russell for the Crown take the view that there exists some evidence which could lead the trier of fact to find all of intention, planning and deliberation, and forcible confinement. The Crown urges committal for first degree murder.

[9] These, then, are the issues.

Is There Some Evidence That Mr. Brooks Intentionally Shot Mrs. Brooks?

[10] I pause here to note the theories of the Crown and the defence at the preliminary. Ms. Armenise and Mr. Russell propound the theory that as a result of Mrs. Brooks advising Mr. Brooks in late March 2013 that the marriage was over, his anger at her disinclination to try to reconcile while they continued to co-habit, and her expressed intention to occupy the matrimonial home without him, Mr. Brooks decided to kill his wife. He tried to do so, the Crown submits, in a manner leaving open the possibility that her death was the result of her attempt to prevent him from committing suicide.

[11] The defence theory is that Mrs. Brooks's effort to thwart Mr. Brooks's attempt to commit suicide was indeed the action which resulted in her accidental death during the "fight over the gun" referred to by Mr. Brooks in his 911 call.

[12] It is essential at this stage of the prosecution to bear in mind that, if the evidence presented supports to any extent the Crown's case in this matter of intention, the issue must be left for trial, even if the evidence is also consistent with an unintentional shooting by Mr. Brooks of Mrs. Brooks: R. v. Sazant, 2004 SCC 77. In my view, some evidence is present, as set out in the following paragraphs under this heading.

a. The Common Sense Inference

[13] Although the evidence called at the preliminary inquiry did not establish whose finger was on the trigger of the handgun when Mrs. Brooks was shot, the defence acknowledges that the prospect of Mr. Brooks being the person who fired the handgun is a reasonable inference from the evidence which has been introduced. This is a sensible concession since the evidence included Mr. Brooks's advice to the 911 operator that Mrs. Brooks was shot as he and she fought over a gun.

[14] As indicated, the gunshot caused Mrs. Brooks to be mortally wounded according to the evidence of Dr. Rose. Since this manner of Mrs. Brooks receiving her fatal injury is available to the trier of fact - that is, by a bullet shot from a gun pointed at her and fired by Mr. Brooks - the Crown can, in conjunction with it, rely upon the common sense inference that Mr. Brooks intended this result. The inference is described in the following manner in R. v. Ortt, [1969] O.R. 461 (O.C.A.):

It has been held by this Court that it is error in law to tell a jury it is a presumption of law that person intends the natural consequences of his acts: R. v. Giannotti, [1956] O.R. 349, 115 C.C.C. 203, 23 C.R. 259. Moreover the word "presumption" alone creates a difficulty in that it may suggest an onus on the accused. I agree with the comment of the authors of Martin's Annual Criminal Code (1968), p. 195:

The difficulty would not arise if the use of the word "presumption" were avoided. A presumption requires that a certain conclusion must be drawn, unless the accused takes steps to make that conclusion unwarranted. An inference, however, is no more than a matter of common sense and merely indicates that a certain conclusion may be drawn if warranted by the evidence.

As was said by Denning, L.J., in Hosegood v. Hosegood (1950), 66 T.L.R. 735 at p. 738:

The presumption of intention is not a proposition of law but a proposition of ordinary good sense. It means this: that, as a man is usually able to foresee what are the natural consequences of his acts, so it is, as a rule, reasonable to infer that he did foresee them and intend them. But, while that is an inference which may be drawn, it is not one which must be drawn. If on all the facts of the case it is not the correct inference, then it should not be drawn.

In my opinion, therefore, the word "presumption" is to be avoided in this context and juries simply told that generally it is a reasonable inference that a man intends the natural consequences of his acts so that when, for instance, a man points a gun at another and fires it the jury may reasonable infer that he meant either to cause his death or to cause him bodily harm that he knew was likely to cause death reckless of whether death ensued or not.

[15] No doubt, the common sense inference is one which can be displaced but the defence has, understandably, led no evidence at this point of the proceeding as to Mr. Brooks's state of mind. Such evidence concerning Mr. Brooks's suicidal inclination as has emerged from the Crown's case would, at its highest, constitute circumstantial evidence competing with the common sense inference on the issue of intention. In this forum, such competing evidence is not to be weighed against the inference supporting the Crown: R. v. Charemski (1998), 1998 ABCA 305, 128 C.C.C. (3d) 225 (S.C.C).

b. Circumstantial Evidence of Intention

[16] Apart from the common sense inference concerning Mr. Brooks's intent, there is also, in this case, a body of evidence from the totality of which an intentional shooting can be inferred, as follows.

(i) The unlikelihood of accidental discharge of the handgun

[17] Both in his report forming part of Exhibit 21 at the preliminary and in viva voce testimony, the Crown's firearms forensic expert, Grant McGimpsey, indicated that the handgun which appears to have fired the bullet which penetrated Mrs. Brooks's body possessed all three of an effective firing pin safety mechanism, a hammer safety mechanism, and a drop safety protection. He concluded that, absent a "steady, continued trigger pull", the handgun would not discharge a bullet.

[18] Mr. McGimpsey also indicated in his report and at the preliminary inquiry that the required force or "pull" on the trigger of the handgun necessary to cause the handgun hammer to fall and thus discharge a bullet was a range of 5.19 to 5.47 pounds for a single action trigger pull (hammer cocked) and 13.63 to 13.81 pounds for a double action trigger pull (hammer not cocked). At trial, Mr. McGimpsey said that "many target pistols have a lighter pull by design", "this was not a hair trigger" and that "substantial force was required" to pull this trigger.

[19] Mr. McGimspey's testimony constitutes some evidence of an advertent act on the part of the shooter.

(ii) The height of Mrs. Brooks's chest when shot

[20] Special Constable Mark Lancaster, an expert bloodstain pattern analyst called by the Crown testified that a stain of Mrs. Brooks's "splattered" blood (i.e. dispersed directly from her wound) was observed on a low part of the interior door of the house foyer in which Mrs. Brooks was found. The stain was, he said, "indicative of an impact pattern with a minimum of one impact to a blood source having occurred no higher than approximately 35 cm above the floor".

[21] Dr. Rose's post-mortem examination evidence described Mrs. Brooks's cause of death as a gunshot wound to Mrs. Brooks's right chest perforating her right back. She describes the wound path as entering the chest at the upper margin of the right breast 35 cm below the top of Mrs. Brooks's head and 5 cm to the right of the mid-line of her body. She describes the exit wound of the bullet as 35 cm from the top of Mrs. Brooks's head and 15.5 cm to the right of the mid-line of Mrs. Brooks's back; that is, Dr. Rose has described a wound moving 10.5 cm within Mrs. Brooks's body from her left to her right and 35 cm below the top of her head. Dr. Rose established that Mrs. Brooks was 5'5" tall.

[22] Taken together, these pieces of evidence reasonably permit an inference that Mrs. Brooks was either seated and slumped on the foyer floor, lying on the floor, or falling to the floor when she received her entry and exit wounds. The evidence is certainly inconsistent with the prospect of Mrs. Brooks being upright when shot. Thus, the trier of fact could conclude that Mrs. Brooks's was not contesting possession of the handgun at the time she was shot and that Mr. Brooks was, at that moment, acting independently of his wife's movements.

(iii) The proximity of the handgun muzzle to Mrs. Brooks's body when the handgun was shot

[23] Mr. McGimpsey testified that, assuming the handgun and a cartridge of the type found in the foyer caused Mrs. Brooks's gunshot wound, then the muzzle of the handgun was less than four inches from Mrs. Brooks when it was fired. The Crown submits and I accept that the firing of a loaded handgun at the chest of a person from this close range provides some evidence of intention. Apt in this regard is the reasoning of Cory, J.A. in R. v. Bains, [1985] O.J. No. 41 (O.C.A.). The case involved convictions at trial for the attempted murder of police officers. The issue on appeal was whether the trial judge had before him proof beyond reasonable doubt of Mr. Bains's intention to kill the officers. Cory J.A. found that he did, as follows:

The trial judge made no error in his review of the testimony he found to be credible. The evidence reveals that the accused attempted to commit murder. Bains and Grewal brought loaded handguns to a demonstration. Bains shot Sukhraj Kalirai in the neck at close range. It was virtually an execution. Bains shot Balbir Kalirai in the left chest at close range while that victim was lying on the pavement. Bains shot twice towards the chest of Constable Fernandez at very close range at a time when he knew he was a police officer. Grewal moved some significant distance from the wall of the building to the site of the struggle between Bains and Fernandez. He then took out his gun and at a distance of five to seven feet shot the constable in the back of the head.

The only inference that can be drawn from this evidence accepted by the trial judge was that the accused intended to kill their victims.

All firearms are designed to kill. A handgun is a particularly insidious and lethal weapon. It is easy to carry and conceal, yet at close range, it is every bit as deadly as a .50 calibre machine gun. It follows that when, at close range, a handgun is pointed at a vital portion of the body of the victim and fired, then in the absence of any explanation the only rational inference that can be drawn is that the gun was fired with the intention of killing the victim. No other reasonable conclusion can be reached: a deadly weapon was used in the very manner for which it was designed – to cause death. It is appropriate to conclude that in these circumstances the gun was fired in order that it might fulfil its design function and kill. An element of surprise arises only if death does not occur.

(iv) The time gap from 7:47 p.m. until 8:46 p.m. on May 24, 2013

[24] Exhibit 50 at the preliminary inquiry is a record of text messages to and from Mrs. Brooks's cellular phone on May 24, 2013 commencing at 7:22 a.m. That day was, in addition to the day of the events which have led to Mr. Brooks's charge, the occasion of the high school prom of Mr. and Mrs. Brooks's daughter Kristin. In the late afternoon, Kristin was taken to the prom by her father. She was ambivalent about attending. At 7:37:19 p.m. Kristin texted her mother "Hey can you come for like 8:15?". At 7:43:22 p.m. Mrs. Brooks texted back "No problem. See you then." At 7:43:39 p.m. Kristin texted her mother "Okay more like 8:00 please lol". At 7:47:00 p.m. Mrs. Brooks texted Kristin "On my way now" followed, at 7:47:13 p.m., by the text "Fast as I can c" [sic].

[25] Between 7:47:13 p.m. and 8:58:49 p.m. Kristin sent six texts to her mother which went unanswered, including "Text me when you're here", "Close?", "You close?" and "Mum". At 9:39:09 p.m. Mrs. Brooks's friend Jo Ann Hellreich sends a text to Mrs. Brooks's saying "Deena you need to answer your cell or phone please".

[26] The police seized Mrs. Brooks's cellular phone containing these texts from the foyer of the Brooks home. It was, according to the evidence of the police exhibit officer, P.C. Brenda Thomas, capable of receiving and sending texts when seized.

[27] As indicated, Mr. Brooks's 911 call began at 8:46 p.m.

[28] The Crown submits and I accept that Mrs. Brooks's non-communication with Kristin after 7:47:13 p.m. on May 24, 2014 through to the time of Mr. Brooks's 911 call at 8:46 p.m. could lead reasonably to the conclusion that Mrs. Brooks's was incapacitated in some manner during that interval. In support, Ms. Armenise and Mr. Russell point out several factors: (i) Mrs. Brooks had a close relationship with Kristin and, that evening, was the anticipated provider of a ride home from the prom with an initial target pick-up time of 8:15 p.m; (ii) between 7:37:19 p.m. and 7:47:13 p.m. Mrs. Brooks had received two texts from Kristin about the pick-up and had responded to them after, respectively, approximately six minutes and approximately three and one-half minutes, that is, she seems to have been responsive to her daughter's texts; and (iii) Kristin's texts had implied increasing eagerness to leave the prom.

[29] There are, as the Crown submits, questions connoting intention which arise naturally from these circumstances and not from mere speculation: if Mrs. Brooks had not been rendered incapable of contacting her daughter at 7:47:13 p.m., why would she not have done so, if only to say that she would be delayed?; if Mrs. Brooks had been seriously but unintentionally injured, or shot unintentionally, at 7:47:13 p.m., why would Mr. Brooks not immediately have sought emergency assistance?

(v) The non-completion by Mrs. Brooks of her final text to Kristin

[30] Ms. Armenise and Mr. Russell highlight the incompleteness of Mrs. Brooks's final text – "Fast as I can c" - and contrast it with the rest of her texts of May 24, 2013. The other texts, if not always perfect in terms of spelling or grammar, are at least complete. The Crown says and I accept that the anomaly has some weight as proof that Mrs. Brooks was taken by surprise at this point in time, that is, was responding to an event precipitated by someone else.

(vi) Mrs. Brooks's "ante-mortem" and "peri-mortem" injuries

[31] Dr. Rose identified contusions over Mrs. Brooks's sternum between her breasts and on the lower inner quadrant of her right breast as being "ante-mortem" or pre-death injuries. So too was an abrasion in Mrs. Brooks's right lower abdominal quadrant.

[32] Dr. Rose characterized as "peri-mortem" - immediately before, at the time of, or immediately after death – several other injuries observed on Mrs. Brooks's body. She testified that there were peri-mortem contusions below the right breast, on the right shoulder, three slightly above the left wrist, on the front of the right thigh, on the lower left leg above the ankle, on the right and left elbows, and of the pectoralis muscle overlying the left fourth and fifth ribs. She noted peri-mortem abrasions on the right elbow, over the left shoulder blade, on the lower inside portion of the right little finger, on the web of skin between the thumb and index finger of the left hand, on the index finger of the left hand itself, adjacent to the fingernail of the middle finger of the left hand and, finally on Mrs. Brooks's right leg just below her knee. Dr. Rose said that Mrs. Brooks's left fourth and fifth ribs were fractured peri-mortem.

[33] Dr. Rose described these ante-mortem and peri-mortem injuries as "blunt force" injuries or injuries caused by blows to the body. With respect to the three contusions observed on Mrs. Brooks's left wrist, Dr. Rose said that they were probably not caused by a single application of force but rather by multiple falls or multiple impacts or multiple grabs of the wrist. With respect to the contusions and abrasions on the back of Mrs. Brook's left elbow, Dr. Rose said that they could be caused by either a fall or a blow but could not opine as to whether they were the result of multiple applications of force. With respect to the contusion of the pectoralis muscle over Mrs. Brook's left fourth and fifth ribs and the fractures of those ribs, Dr. Rose said that these could be caused by either a fall or a blow.

[34] Ante-mortem injuries are, by definition, pre-death, and peri-mortem injuries may be sustained immediately before death. The profusion of such injuries on Mrs. Brooks's body do permit a reasonable inference that Mrs. Brooks was struck and grabbed in an aggressive manner, as part of the violent series of events in which she was shot.

(vii) Mrs. Brooks's ante-mortem statements

[35] The Crown introduced in evidence remarks made by Mrs. Brooks to friends and work colleagues in the months preceding her death. Ms. Armenise and Mr. Russell proffered this type of evidence, and Ms. Miles accepted its admissibility, on the basis that it pertained not to the truth of what Mrs. Brooks was saying to these friends and colleagues, but rather to her state of mind, thus constituting an exception to the hearsay rule. The exception is described in the following manner in R. v. Griffin, 2009 SCC 28:

The connection between a deceased's state of mind and that of an accused arises by virtue of a pre-existing relationship between the two; if a deceased and accused are unknown to one another, this course of logic can find no application. That the relationship between a deceased and an accused was acrimonious or that the two had engaged in a dispute in the period leading up to a murder are highly relevant to the issue of motive because such information may afford evidence of the accused's animus or intention to act against the victim: R. v. Pasqualino, 2008 ONCA 554, 233 C.C.C. (3d) 319, at para. 31. See also R. v. Lemky (1992), aff'd, [1996] 1 S.C.R. 757. This is not to say that a deceased's state of mind alone is capable of proving motive. Insofar as it affords evidence of the nature of the relationship between a deceased and an accused, however, a deceased's state of mind is one piece of evidence that may be relevant to the issue of motive.

[36] In R. v. Candir, 2009 ONCA 915, Watt, J.A., for a unanimous court, described the principle as follows:

In a prosecution for a crime of domestic homicide, evidence of the relationship between the principals, the persons charged and deceased, may be relevant and material: R. v. Moo (2009), 2009 ONCA 645, 247 C.C.C. (3d) 34 (Ont. C.A.), at para. 98. Evidence that shows or tends to show the relationship between the principals may help to establish a motive or animus on the part of the accused. And evidence of a person's animus or motive to unlawfully kill another may assist in proving the identity of the killer and the state of mind that accompanied the killing. Moo at para. 98; R. v. F. (S.D.) (1999), 43 O.R. (3d) 609 (C.A.) at para. 23; R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.) at p. 167; Plomp v. R (1963), 110 C.L.R. 234 (H.C.A.) at pp. 243, 249-50.

Motive or animus has to do with an accused's state of mind, not that of the deceased. Yet evidence of the deceased's state of mind may constitute a link in a chain of reasoning that could lead a trier of fact to conclude that an accused bore the deceased some animus or had a motive to kill the deceased. R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.), at para. 30; R. v. P. (R.) (1990), 58 C.C.C. (3d) 334 (Ont. H.C.), at p. 339.

Evidence that discloses the nature of the relationship between spouses who are the principals in an allegation of domestic homicide, more particularly evidence that discloses animus and motive on the part of one to kill the other, must not contravene an admissibility rule if it is be received in the proceedings.

In cases like this, where the prosecutor alleges that the murder charged was motivated by the appellant's anger in the deceased's decision to end the relationship, the prosecutor is entitled to adduce evidence to prove the deceased's contemporaneous mental or emotional state with respect to the accused, such as dislike, hatred or fear of the accused. From the deceased's state of mind, the trier of fact will be asked to infer and can conclude that the deceased acted in accordance with his or her own motivation to act: P.(R.) at para. 339; R. v. Bari (2006), 2006 NBCA 119, 215 C.C.C. (3d) 346 (N.B.C.A.), at para. 23; R. v. Lemky (1992), at para. 24; Foreman at para. 28.

[37] Thus, the Crown emphasizes Mrs. Brooks's remarks to Royal Victoria Hospital laboratory colleague Faye Dempster. Ms. Dempster said that, some six months before her death, Mrs. Brooks said that (i) she was leaving Mr. Brooks; (ii) she was afraid to advise him of this; (iii) she was afraid of his anger; (iv) Mr. Brooks was "going to go for her pension"; and (v) when Mr. Brooks ceases to take his anti-depressants he is "angry", "unpredictable" and "scary".

[38] The Crown also relied on Mrs. Brooks's remarks to her hairstylist and friend Tamara Hutton, that (i) she intended to leave Mr. Brooks; (ii) he was mentally but not physically abusive; (iii) Mr. Brooks had told her he felt entitled to half of her pension should they separate (iv) she would come to either the home of her friend Denise Parent or of Ms. Hutton if she "needed a safe place"; (v) Mr. Brooks thought Mrs. Brooks was having an affair and she and he had heated conversations on this topic; and (vi) if Mr. Brooks and she had been fighting and he proceeded to his workshop where he kept firearms, Mrs. Brooks would "go somewhere safe".

[39] Cycling friend Lori Mitchinson-Bailey said that Mrs. Brooks's statements to her were that (i) when Mr. Brooks was told by Mrs. Brooks that she intended to buy him out, he said that this would not occur, that the home was a family home or no one's, and that he would "clean her out if she leaves"; (ii) there were guns in the house but she could not find the bullets for those guns and was concerned for her safety; (iii) Mr. Brooks intended to assert a claim to Mrs. Brooks's RRSP and private pensions if they separated; and (iv) he told her "you can't leave and I won't".

[40] Also introduced were Mrs. Brooks's remarks to RVH colleague and friend Kristin Gizuk that (i) Mr. Brooks would be angry if they parted and would attempt to turn the girls against her; (ii) she had told Mr. Brooks that their relationship was over and he had responded both by imploring her not to go and with words to the effect "you're not leaving"; (iii) by May 24, 2013, Mr. Brooks was turning the daughters against Mrs. Brooks, was angry, had told her he intended "to make it tough for her", and had told her he was getting a lawyer.

[41] The Crown called Cheryl Doman, the proprietor of an outdoor recreational store who had done business and become friends with Mrs. Brooks. Ms. Doman said that Mrs. Brooks told her, on May 3, 2013, that (i) she had advised Mr. Brooks that she intended to leave him and start her own life; (ii) she intended to have no "one-on-ones" with Mr. Brooks because they would be "explosive"; and (iii) she was afraid of Mr. Brooks's reactions. Ms. Doman said that, in texts exchanged on May 6, 2013, Mrs. Brooks said that Mr. Brooks was "mad, is even going for spousal support", and that she may have to take advantage of Ms. Doman's offer for Mrs. Brooks to stay at Ms. Doman's house.

[42] Bicycling friend Donald Gain was called as a Crown witness. He said that Mrs. Brooks told him at the beginning of May 2013 that she and her husband were in the course of separating. Approximately one week later Mrs. Brooks told Mr. Gain that Mr. Brooks did not wish to talk about the separation, but when he did he spoke of his entitlement in relation to her pension.

[43] The Crown called Kristin Brooks, both with respect to what her mother had told her about the state of her relationship with Mr. Brooks as well as Kristin's own observations. As to remarks made by Mrs. Brooks, Kristin said that, at Easter 2013, her mother told her that she and Mr. Brooks would be divorcing and, subsequently, that Mr. Brooks had told Mrs. Brooks he intended to prevent her from having sufficient property to leave the relationship.

[44] Finally, the Crown called Denise Parliament, an RVH histology colleague and the person who considered herself Mrs. Brooks's best friend. Ms. Parliament said that Mrs. Brooks told her that (i) she had advised Mr. Brooks of her intention to divorce around the Easter weekend of 2013 and that Mr. Brooks's response was, initially, unhappiness and, subsequently, alternately anger and desperation; (ii) Mr. Brooks had guns in his workshop and she was worried he would kill himself and that their daughters might come home and find him dead; (iii) Mr. Brooks was on an anti-depressant from time to time but he was unusually angry when not taking that medication; (iv) early in 2013, that she was having marital problems, was fed up with Mr. Brooks's anger and was trying very hard to keep Mr. Brooks's from being angry; (v) in the few months prior to her death, that she did not want to be in the presence of Mr. Brooks; (vi) in February of 2013, that she had become involved in a relationship with a male cycling friend; and (vii) subsequently, that Mr. Brooks teased her about, or commented on, the prospect of a romantic relationship between Mrs. Brooks and the cycling friend, referring to him as "your boyfriend".

[45] On the basis of the foregoing ante-mortem statements, Ms. Armenise and Mr. Russell submit that, by May 24, 2013, Mr. Brooks's state of mind concerning his wife was characterized by jealousy, hostility and anger, all supportive of an intentional shooting on that date.

[46] Ms. Miles rightly pointed out that the ante-mortem statement evidence called did not indicate that antagonistic emotions were the only ones being displayed by Mr. Brooks toward Mrs. Brooks by May 24, 2013. Various witnesses who received information from Mrs. Brooks about her husband in the period preceding her death were also told that Mr. Brooks was sad and depressed, that he was striving for reconciliation with her throughout, that her primary concerns having to do with Mr. Brooks and guns were with respect to his potential suicide, that he threatened suicide repeatedly, that she had never been threatened or been assaulted by Mr. Brooks and that she did not fear being in the Brooks home with him. It may be that these additional ante-mortem statements would serve, ultimately, to fully attenuate the Crown's submission that Mr. Brooks's dominant attitude toward his wife by May 24, 2013 was one of hostility. However, at this early stage of the proceeding, I regard them as making some contribution to an inference of animus.

(viii) Kristin Brooks's observations of her parents

[47] In addition to her evidence concerning what her mother had said to her before her death, Kristin testified to observations of her parents' behaviour toward each other in the months prior to May 24, 2013. The Crown introduced this additional evidence with a view to supporting, once again, the suggestion of animus. In this regard, Kristin testified that, although when Mr. Brooks was first told by Mrs. Brooks in late March 2013 that she would be leaving him he "cried all the time", from mid-April onward he no longer seemed to her to be sad.

[48] As with the ante-mortem statement evidence, the evidence comprising Kristin's observations is not supportive only of hostility on Mr. Brooks's part. She said that her father was continuing intermittently to express affection toward Mrs. Brooks subsequent to learning of her plan to leave him and that her parents continued to behave amicably toward each other on occasion. Again, however, it is not for me at this stage to attempt to weigh evidence from which animus can reasonably be inferred against evidence that some other emotion prevailed in Mr. Brooks. Kristin's observations of what might be characterized as a "hardening" of Mr. Brooks's feelings toward his wife, like the ante-mortem statement evidence, lend some, albeit slight, weight on the issue of intention.

(ix) Mr. Brooks's injury on examination by P.C. Brenda Thomas May 25, 2013

[49] P.C. Thomas testified that, at 1:35 a.m. on May 25, 2013, she met with Mr. Brooks in the interview room of the police detachment. She said she examined and photographed his person. Photographs taken by P.C. Thomas showing an injury to Mr. Brooks's right forearm were introduced as Exhibits 2a, b, c, e and f on the preliminary inquiry. Concerning the injury, P.C.Thomas asked Mr. Brooks "what happened here?". His response was "I think it's a bite mark".

[50] Ms. Miles observes that the record contains no evidence as to when this injury was sustained or, if a bite mark, by what or whom Mr. Brooks was bitten. However, given the apparent freshness of the injury and the brevity of the time between the "fight over the gun" mentioned by Mr. Brooks to the 911 operator and P.C. Thomas's observations, an inference that the two things are connected would not be unreasonable. Biting is not necessarily, but may be, defensive violence.

Is There Some Evidence of First Degree Murder in the Form of Planning and Deliberation?

[51] In R. v. Ayotte, [1998] O.J. No. 4700 (Ont. S.C.) Watt, J., as he then was, quotes the following words of Gale, J. in R. v. Widdifield (1961) 6 Crim. L.Q. 152 as the "locus classicus" of the meaning of the phrase "planning and deliberation" in the Criminal Code:

I think that in the Code, 'planned' is to be assigned its natural meaning of a calculated scheme or design which has been carefully thought out and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one and the simpler it is, perhaps the easier it is to formulate. The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared, set out to do the planned act, or alternatively you can wait an appreciable time to do it once it has been formed.

As far as the word 'deliberate' is concerned I think that the Code means that is should also carry its natural meaning of considered, not impulsive, slow in deciding, cautious, implying that the accused must take time to weight the advantages and disadvantages of his intended action. That is what, as it seems to me, 'deliberate' means.

[52] In Ayotte, Watt, J. provided his own description of this form of first degree murder:

For there to be a planned and deliberate murder there must be evidence that the murder was the result of a scheme or design that the accused had previously formulated or designed. The murder must be the implementation of that scheme or design. A murder committed on sudden impulse, without prior consideration, however intentional, is not a planned and deliberate murder.

[53] Here, the Crown has identified what it says are several circumstances which, taken together, lead reasonably to the inference of such a murder.

(i) The evidence of animus

[54] Again, Ms. Armenise and Mr. Russell seek to rely on the evidence previously referred to in these reasons which is consistent with an animus on the part of Mr. Brooks toward Mrs. Brooks by the time of her death, including threats to deprive Mrs. Brooks of property and to try to keep her from leaving.

[55] I do not regard this evidence as properly forming part of the Crown's circumstantial proof on this issue. While it assists the Crown in meeting its limited burden in this proceeding on the issue of intention, it would not point the trier of fact any more toward a conclusion that Mr. Brooks planned and deliberated his wife's murder than that he committed it "on sudden impulse", in the language of Watt, J. in Ayotte. One can act instantaneously on animus as readily as in a cautious and considered manner, and there is nothing in the circumstantial evidence relating to Mr. Brooks's animus which sheds light on which of these he may have adopted.

(ii) The proposition that the handgun had previously been brought into the house and loaded

[56] The Crown submits that it is open to the jury to conclude that the event which caused the abrupt cessation of Mrs. Brooks's texts to her daughter at 7:47:13 p.m. was an attack upon her by Mr. Brooks followed by the fatal gunshot. If the trier of fact reached that conclusion, the Crown says, it would also be open to the trier of fact to conclude that Mr. Brooks must have had the handgun in the home, loaded for some appreciable time prior to 7:47:13 p.m., and that this would imply planning.

[57] The Crown relies in this regard on the evidence of their computer data recovery expert, Special Constable Michael Ryder. Mr. Ryder testified that he was able to examine the contents of the two laptop computers which were seized from the kitchen of the Brooks home, one a white Gateway computer and the other a black Hewlett-Packard computer. He said that the activity history reviewed in each of these computers indicated that both Mr. and Mrs. Brooks used the white computer but that only Mr. Brooks used the black computer. He said that the activity analyses of the computers for May 24, 2013 indicated that the black computer was used from 7:30 p.m. until 7:40 p.m. on that date and that the white computer was last used at 7:42 p.m on that date.

[58] Ms. Armenise and Mr. Russell submit that neither the five minute interval between last use of the white computer and the 7:47:13 p.m. cut-off of Mrs. Brooks's final email to Kristin, nor even the seven minute interval between the last use of the black computer and 7:47:13 p.m., would provide sufficient time for Mr. Brooks to leave the house kitchen, attend in his workshop next to the house, retrieve and load the magazine of the handgun, return to the house, enter the foyer and shoot Mrs. Brooks. Therefore, the argument goes, Mr. Brooks must have taken all or most of these steps at an earlier time, that is, readied himself previously for the eventual shooting.

[59] The Crown's proposition that Mr. Brooks must have left the house to retrieve and load the handgun is based on evidence from Kristin that she was not aware of her father keeping any firearms in the home in the period immediately preceding May 24, 2013, from the previously mentioned ante-mortem statements by Mrs. Brooks to friends and colleagues that Mr. Brooks kept his firearms in his workshop, and from the evidence of the police officers who searched and made seizures from the workshop that the case of the handgun in question and ammunition which could be used in that handgun, as well as additional handguns and ammunition, were all found in the workshop, not the home itself.

[60] Thus, the Crown submits that Mr. Brooks's retrieval and loading of the handgun must have occurred in advance of his 7:30 p.m. – 7:40 p.m. use of the black computer. If Mr. Brooks retrieved and loaded the handgun prior to 7:30 p.m., it is submitted, he was not acting on impulse when, at 7:47 p.m., he proceeded to incapacitate and shoot Mrs. Brooks.

[61] I do not consider this evidence properly to constitute part of the Crown's arsenal on the issue of planning and deliberation. No evidence was called at the preliminary inquiry as to the length of time it would take a person experienced in the use of firearms, as Mr. Brooks appears to have been, to move from the kitchen of the Brooks home to the workshop, to retrieve and load a handgun stored there, and to return to the foyer of the home. The evidence called from the searching and seizing police officers only went as far as establishing that the additional handguns and ammunition were stored in concealed and relatively inaccessible places in the workshop, from which one might infer that retrieving the handgun in question and its ammunition, if similarly secreted, would not be carried out quickly. However, in the absence of evidence as to the sort of time required, I do not regard the time available to Mr. Brooks to take these steps, whether five minutes or seven minutes, as necessarily inadequate for that purpose.

(iii) The potential delay between Mrs. Brooks's injuries and the shooting

[62] As indicated, part of the Crown's theory as to the manner in which Mr. Brooks killed Mrs. Brooks is that he physically disabled her by blows at 7:47:13 p.m. when her text to Kristin was aborted and shot her subsequently. The prospect of Mrs. Brooks's receiving significant bodily injuries before being shot was confirmed by Dr. Rose. The fact that no significant injuries were sustained prior to 7:47:13 p.m. that evening seems clear from the absence of any reference by Mrs. Brooks to them in her texts to her daughter until that time, from the evidence of Mrs. Brooks's neighbour Leonard Robinson that, at approximately 6:30 p.m., he saw Mrs. Brooks jogging with one of her dogs and that she waved to him, and from the evidence of neighbour William Barbour that he saw Mrs. Brooks at approximately 6:30 p.m. walking on Hogback Road near her home, seemingly uninjured.

[63] Although there is no circumstantial evidence to establish the length of any delay between Mrs. Brooks's sustaining injuries at 7:47:13 p.m. and the time she was shot, the fact of a substantial interval between the time of the possibly-aborted text and Mr. Brooks's 911 call do permit the inference of a delay, and one of sufficient duration that Mr. Brooks could deliberate the implications of shooting his wife.

(iv) Mr. Brooks's post-offence conduct

[64] The Crown proposed that certain post-offence conduct by Mr. Brooks could be seen as implying that he had planned and deliberated Mrs. Brooks's shooting. Although R. v. Poitras holds that post-offence conduct can be relevant to this issue if reasonably capable of supporting such an inference, none of the post-offence conduct which the Crown characterized as inculpatory can, in my view, support such an inference here, as opposed to an inference that the killing was committed without forethought.

[65] The Crown's theory is that Mr. Brooks shot Mrs. Brooks, that she died within minutes of being shot (Dr. Rose's opinion), and that Mr. Brooks delayed calling 911 until after he was sure his wife would die. The delayed call is proffered as post-offence conduct supporting planning and deliberation. While there may have been a delay, and it would serve to suggest an intentional killing, it would not shed light on the issue of the extent to which Mr. Brooks turned his mind to the shooting of his wife prior to doing so.

[66] Ms. Armenise and Mr. Russell also noted Mr. Brooks's remarks to the 911 operator that Mrs. Brooks's body was "blue" and that her body was cold. Dr. Rose's opinion was that neither of these phenomena would have been present if Mrs. Brooks had just been shot. The Crown asserts that Mr. Brooks was lying in the 911 call and that the lie evinces planning. Once again, the evidence can be seen as having probative value on the issue of intent - if Mrs. Brooks's shooting was accidental and Mr. Brooks was seeking immediate help, why would he lie about her post-shooting condition? – but does not provide proof one way or the other on the issue of whether the shooting had been considered or impulsive.

[67] The same must be said about the evidence of P.C. Lancaster, relied on in this regard by the Crown, that a smear of Mrs. Brooks's blood was found on the inner doorknob of the foyer door and that drops of her blood were present on the tops of the shoes she was wearing. The doorknob blood was described by P.C. Lancaster as a "transfer stain" or stain the type of which occurs when a bloodied object comes in contact with another object. The Crown submits that the presence of the two stains is indicative of Mrs. Brooks rising from the foyer floor and touching the doorknob after being shot close to floor level and beginning to bleed. The corollary, the Crown argues, is that, whether one regards Mr. Brooks as resisting his wife's effort to rise and depart, or as passive as she rose and reached the door, he was not acting in a manner consistent with her just having been accidently shot. Again, whatever the weight of this bloodstain evidence on the issue of intent or its absence, it does not lead to an inference about planning and deliberation.

Is There Some Evidence of First Degree Murder in the Form of Forcible Confinement?

[68] In R. v. Mullings, [2014] ONCA 895, the Ontario Court of Appeal dismissed an appeal from Mr. Mullings based, in part, on the arguments that the trial jury had erred by (i) failing to find that any forcible confinement which occurred was inherent in the killing; or (ii) concluding that the victim was forcibly confined while being killed by Mr. Mullings despite the fact that any evidence of forcible confinement was to the effect that the confinement followed the gunshot which mortally wounded the victim. In its decision, the Ontario Court of Appeal provided a comprehensive summary of the legal principles to be applied in this type of analysis. The summary is instructive and I have excerpted it despite its length:

[94] In R. v. Harbottle, [1993] 3 S.C.R. 306, the Supreme Court stated, at p. 325, that the Crown must establish the following requirements of s. 231(5)(e) {then s. 214(5)} beyond a reasonable doubt:

(1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime;

(2) the accused was guilty of the murder of the victim;

(3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim;

(4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and

(5) the crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of events.

[95] To unlawfully confine someone is to restrain or direct them contrary to their wishes: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.

[96] In R. v. Kimberley (2001), 56 O.R. (3d) 18 (C.A.), this court observed, at para.108, that "a confinement which is inherent in the very act of killing could not be relied upon to impose liability under s. 231(5)(e)." It explained that:

This is not because there is no confinement, but because s. 231(5)(e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. It is the occurrence of the two criminal acts in the course of the same transaction or series of events that justifies the added punishment imposed for first-degree murder.

[97] In Harbottle, the Supreme Court observed, at p. 323, that s. 231(5) is a sentencing provision, and "the gravity of the crime and the severity of the sentence both indicate that a substantial and high degree of blameworthiness, above and beyond that of murder, must be established in order to convict an accused of first degree murder" (emphasis in original). In Kimberley, this court held at para. 104:

The organizing principle of s. 231(5) is the recognition that murders committed in the course of the unlawful domination of the victim are particularly blameworthy, and those who commit such murders are deserving of the greater punishment imposed for first-degree murder.

[98] The appellant's submissions, as they were developed before us, rest on two propositions. First, he submits that for s. 231(5)(e) to apply, the confinement must be distinct from the killing and not consumed in the killing. The confinement and the killing must constitute distinct criminal acts: Pritchard, at para. 27; Kimberley, at para. 108. Here he submits that the confinement was inherent in the killing.

[99] Second, he raises the issue of whether the victim's death was caused while committing unlawful confinement or whether the unlawful confinement was subsequent to causing of death. He says the victim's death was caused by the first shot, which penetrated the victim's arm and his hear, mortally wounding him. The confinement, he says, occurred after this took place.

[100] I would not give effect to this ground of appeal. I will address the causation argument first.

[101] Whether the first bullet was a sufficient cause of the victim's death was unimportant in this case for three reasons. First, s. 226 of the Criminal Code makes clear that accelerating death is still murder. In this case, regardless of whether the victim was mortally wounded by the first shot, he was still alive when he was shot a second time while confined in the garage. Therefore, it was open to the jury to conclude that the second shot's acceleration of death was an act of killing in itself, which occurred while the appellant was confining the victim. In R. v. Munro, (1983), 8 C.C.C. (3d) 260 (Ont. C.A.) at pp. 288-9, this court said it was an "elementary principle of the law of homicide" that "one who shortens the life of a person suffering from a mortal injury….has caused the death of that person."

[102] Second, there if nothing in the jurisprudence that states the predicate offence under s. 231(5) must precede the mortal wound. In fact, in the context of sexual assault under s. 231(5)(b), the jurisprudence of this court and others supports the proposition that it does not matter whether the sexual assault occurs before or after the death of the victim, provided the sexual assault and murder are part of one continuous sequence of events forming a single transaction: R. v. Westergard (2004), 70 O.R. (3d) 382 (C.A.), at paras. 31-35, leave to S.C.C. refused, [2004] S.C.C.A. No. 521; R. v. Ganton (1992), 77 C.C.C. (3d) 259 (Sask. C.A.). It is not necessary in this appeal to decide whether that same proposition holds true for unlawful confinement under s. 231(5)(e). However, when applying s. 231(5) for any predicate offence, courts should avoid a formalistic and technical analysis of the precise sequence of the killing and the predicate offence where they are closely intertwined. What matters is that the act of killing and the predicate offence, while distinct offences, remain part of the same transaction: R. v. Paré, [1987] 2 S.C.R. 618, at pp. 631-633.

[103] Third, s. 231(5) is concerned with identifying the degree of blameworthiness required to ground a conviction for first degree murder. Apart from the obvious point that the appellant could have had no way of knowing that he had fatally wounded the victim, the confinement and shooting inside the garage removed any possibility of getting assistance for the victim. This is a case like R. v. Simon (2001), 154 C.C.C. (3d) 562 (Que. C.A.), in which it can be said that, even if the wound to the chest was the ultimate cause of death, the subsequent restraint of the victim and the direct shot to his chest prevented any possibility of medical intervention which might have saved his life, however remote that possibility may have been.

[69] For the purpose of my analysis of this issue, I take as a premise that the Crown has introduced some evidence that Mr. Brooks murdered Mrs. Brooks. The question then becomes whether there is some evidence in the record that Mr. Brooks restrained or directed Mrs. Brooks contrary to her wishes as part of the series of events by which he murdered her, but which was not inherent in the murder itself.

[70] This question must be answered in the affirmative. Central in this regard is the aforementioned evidence of Dr. Rose concerning the ante-mortem and peri-mortem injuries sustained by Mrs. Brooks coupled with the gap in time between the cessation of the her texts to Kristin at 7:47:13 p.m. and Mr. Brooks's call to 911 at 8:46 p.m. I have already made reference to the compound nature of the Crown theory. On the one hand, Ms. Armenise and Mr. Russell propose that Mr. Brooks shot Mrs. Brooks and waited some material time after doing so to call 911 to ensure that there would be no chance of revival by emergency personnel. On the other hand, the Crown says that Mr. Brooks injured and incapacitated Mrs. Brooks, rendering her vulnerable to his discrete, subsequent gunshot.

[71] The first of these scenarios is directly addressed in Mullings, supra, at paras. 102-103. These paragraphs make clear that a forcible confinement by Mr. Brooks subsequent to Mrs. Brooks's shooting would not preclude commission of the offence set out in s. 231(5)(2) C.C. As I have indicated, the approximate one hour of silence between Mrs. Brooks's possibly-aborted text to Kristin and Mr. Brooks's call to 911 is, at this point, a mystery evoked by the circumstances; a delay in the making of the 911 call is plausible.

[72] So too, in my view, is the disabled-and-then-shot aspect of the Crown's theory a reasonable prospect at present and it would also give rise to an inference of forcible confinement. I have previously set out the reasons this scenario can be inferred, that is: (i) the ante-mortem and peri-mortem injuries are said by Dr. Rose possibly to have been the result of multiple blows and possibly to have preceded the gunshot; (ii) if they were blows, they would be disabling; and (iii) there may have been an appreciable gap in time between the blows and the shooting.

Conclusion

[73] For the foregoing reasons, I commit Mr. Brooks for trial in the Superior Court on the charge of first degree murder.

Released: January 29, 2015

Justice C.M. Harpur, O.C.J.