COURT FILE NO.: 19-9652 DATE: 20200623 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen Melissa Ernewein, for the Crown

• and -

K.R. Bruce Ritter, for the defendant

HEARD: March 2-6, 9-11, and 16, 2020 at Kitchener

Publication Ban

(a) This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(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.

111. Identity of victim or witness not to be published.— (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if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.

112. No subsequent disclosure.— No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

(b) Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences.— (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( 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.

Reasons for Judgment

P. R. SWEENY J.

Introduction

[1] On December 25, 2017, the body of E. A. was discovered by her brother, R. A., in the house in which she had been living with her son K. R. There was an overwhelming stench in the house. There was dried blood on the floor and walls, and bloody footprints throughout the house. On December 27, 2017, K. R. was arrested and charged with the second degree murder of his mother.

[2] This matter came before me for a judge alone trial on March 2, 2020 on the charge of first degree murder. At the opening of trial, the accused sought to enter a guilty plea to the lesser included offence of second degree murder. The Crown refused to accept the plea.

Issue

[3] The issue before me is whether K. R. is guilty of first degree murder or second degree murder. In order to establish first degree murder, the Crown relies on establishing beyond a reasonable doubt that the murder was planned and deliberate.

The Law

[4] For the most part, the parties agree on the applicable law. The Crown must establish that the murder was both planned and deliberate.

[5] In R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1084, the court quoted from the Ontario Supreme Court case of R. v. Widdifield (1961), 6 Crim. L.Q. 152 (Ont. H.C.), as follows:

I think that in the Code “planned” is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out and the nature and consequences have been considered and weighed.

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

[6] Further on the issue of deliberation, in R. v. Turningrobe, 2007 ABCA 236, 222 C.C.C. (3d) 417, C. Fraser C.J.A. wrote in dissent at para. 159, which was unanimously approved by the Supreme Court of Canada in allowing the appeal, 2008 SCC 17, [2008] 1 S.C.R. 454:

Deliberation does not necessarily require a lengthy period of time providing the accused had a sufficient opportunity in which to decide what to do, consider the consequences of doing so and decided to act on the plan that had been formulated: R. v. Green (1987), 1987 ABCA 135, 36 C.C.C.(3d) 137 (Alta. C. A.). However, it does require that the reasoning for the killing, as well as some form of method to accomplish this goal, be developed thoughtfully and not simply be responsive to passion or impulse or, for that matter responsive to instigating comments by a third party. Thus, deliberation involves a cold-bloodedness that is more than simply having the intent to kill. Were this not so, then “deliberation” would add nothing to first degree murder.

Factual Overview

[7] Many of the facts are not in dispute. What is in dispute, is the inferences that should be drawn from certain facts.

[8] In September 2017, E. A. and her husband, C. R., sold their home in which they had lived separate and apart since January 2017. The couple had two children, M. R. and K. R. M. R. moved with his father to a condominium in Waterloo. K. R. moved with his mother to the house of a friend of E. A.’s who spent significant time in the United States. M. R. would visit his mother and brother for dinner on Thursdays.

[9] On the last Sunday in November 2017, E. A. attended a birthday party for her niece at one of her brothers’ houses. She had a conversation with her brother R. A. wherein she expressed concern about K. R.’s school performance. R. A. advised that in his family, if grades suffer, gaming was cut off completely until the grades improved. It was his evidence his sister thought that was a good solution and she intended to implement it with K. R. I find that E. A. did intend to implement this plan with K. R.

[10] On November 27, 2017, E. A. spoke on the telephone with a guidance counsellor at K. R.’s school. She expressed concern about K. R.’s school performance and the fact that it did not appear that he was making arrangements for college or university applications. The guidance counsellor then spoke with K. R. that day. She assured K. R. that it was still possible to visit universities and colleges and to apply. K. R. assured her that he would take care of his assignments which were overdue.

[11] On November 29, 2017, K. R. attended two of three classes at his high school. That was the last day he attended school.

[12] On the same day, E. A. made a withdrawal from a bank machine in the afternoon. The last email sent from her devices was on November 29 was at 4:44 p.m.

[13] The evidence establishes that from 11:39 p.m. on November 28 to 4:13 p.m. on November 29, 2017, the desktop computer used by K. R. was not in use. The computer was turned on at 4:13 p.m. There was no login until 1:00 a.m. on November 30.

[14] On November 30 at 1:04 a.m., K. R.’s computer shows a search query “how hard is the sk”? Google completed the question to “how hard is the skull?” A Reddit.com article was accessed. After one minute and 13 seconds, the computer returned to the initial search. There were no further Internet searches on the computer until 2:05 a.m. Thereafter, there were a series of Google searches and Internet activity. At 8:00 a.m. a Google search was run for “how to treat a deep cut?”

[15] On November 30 at 6:18:27 a.m. an SMS message was received by M. R. from K. R. which read: “if you were planning to come today ma and me both caught colds and she told me you probably shouldn’t, but really she’s throwing up and shit.” M. R. did not go over.

[16] Over the next four weeks, no one spoke to E. A. No one saw E. A. in person. There were telephone messages left for her which were not returned. Telephone calls were met with a full mailbox. There were emails and text messages which received no responses. There were a few emails and text messages to E. A. which did receive responses. The responses were from K. R. posing as his mother.

[17] On December 24, 2017, K. R. was to go to his father’s condominium for a Christmas celebration. His father and brother went to the house where he was staying. They texted K. R. and knocked on the door. There was no response. They did not have a key. They returned home.

[18] On the morning of December 24, K. R. walked approximately 13 km to the house of the N. twins. He stayed overnight. On December 25, outside of the house, he told A. N. that he had killed his mother and described the events in some detail. He then left.

[19] He was ultimately located outside a Walmart on December 27. He was arrested and charged with the second degree murder of his mother.

[20] E. A. died as a result of blood loss from multiple stab wounds. She was stabbed or cut more than 60 times.

Positions of the Parties

[21] It is the Crown’s theory that E. A. followed through on the suggestion made by her brother and told K. R. he could not use his computer until his grades improved. This happened late on November 28. K. R. was upset about being denied access to his computer and formulated a plan to kill his mother. He conducted the computer search “how hard is the skull” in furtherance of that plan. He then took a knife, went into his mother’s bedroom, and started stabbing her. There was a struggle which continued outside of the bedroom and down the hallway toward the kitchen. She died as a result of blood loss from multiple stab wounds.

[22] The Crown asserts that the plan need not be elaborate. A simple plan is sufficient and only a modest amount of preparation time is necessary. Therefore, the Internet search followed by the stabbing is sufficient to establish a plan.

[23] The defence says that the Internet search, which the Crown relies upon to establish planning, could have occurred after the murder and cannot be relied upon to establish planning. In any event, regardless of when it was conducted, the Internet search does not establish planning. It is only a query about the hardness of the skull, not about stabbing. The Crown cannot establish beyond a reasonable doubt that the murder was planned and deliberate.

Analysis

[24] This was murder.

[25] Based on the evidence, I am satisfied beyond a reasonable doubt that K. R. murdered his mother. I am satisfied that he stabbed his mother and meant to cause her death. The evidence is overwhelming that this happened. There is no air of reality to a defence of self-defence. The expert evidence was that the wounds that K. R. had on his hands were not consistent with defensive behaviour. The wounds on Elizabeth’s arms were consistent with defensive behaviour.

[26] After the murder, which occurred on November 30, K. R. remained in the house with his mother’s body until December 24. He barricaded the front and garage doors. He disposed of the knife or knives that he used by putting them out in the garbage. This is supported by Internet searches he did on the garbage pick-up and is also consistent with what A. N. said K. R. told him.

[27] The facts support a finding of guilt.

Was it planned and deliberate?

[28] The real issue is whether the murder was planned and deliberate and thereby first degree murder. If I am not satisfied beyond a reasonable doubt that is was planned and deliberate, it is second degree murder.

[29] On the evidence before me, I am not satisfied beyond a reasonable doubt that this murder was planned and deliberate.

[30] The Google search done at 1:04 a.m. is not determinative.

[31] The Crown asks me to accept K. R.’s timeline, given in his conversation with A. N., that the murder happened around 1:00 a.m. K. R.’s story to A. N. about how the incident unfolded is not to be believed, but the time he gave is correct. He was denied access to the computer and he planned to kill his mother to allow him to use the computer. He did the search before the murder to find out how to kill her and that is why he searched about the skull. After the search, he went to her bedroom and stabbed her repeatedly. There was no blood in the vicinity of the desktop computer which is consistent with the search occurring before the murder. He was injured in the course of the murder, so if he did the search after, there would have been evidence of blood around the computer.

[32] I do not accept the Crown’s submission on this point. The fact that there was no blood in the vicinity of the desktop computer is consistent with the search being made beforehand. However, he did use the computer extensively afterwards and there was still no blood. There was activity on the desktop computer from 2:51 a.m. to 2:52 a.m. and then from 5:54 a.m. to 6:09 a.m. The search could have been made after the murder, the murder having occurred earlier in the evening. The search for how to treat a deep cut was not until 8:08 a.m.

[33] Even if the Google search was done before the murder, how does that establish planning? It only establishes that he wanted to know how hard the skull was. The skull is hard. Am I to draw an inference that he read how hard the skull was and then decided to use a knife instead? Or because of how hard the skull is, he tried to stab other parts of the body instead? It does not appear that he paid attention to the information.

[34] The Crown says the plan need not be sophisticated. I agree, but it does need to be a plan. The nature of this murder suggests it was not planned and deliberate. After the murder, he stayed in the house with his mother’s body for weeks. I find that the murder itself occurred over an extended period of time and moved along the hallway from the bedroom. There were multiple knife strikes with defensive wounds on the deceased. As the Alberta Court of Appeal noted in R. v. Randhawa, 1990 ABCA 90, 104 A.R. 304, at para. 12, “resort to brutality does not, by itself, proclaim planning and deliberation. It can be evidence of their absence, frequently so in domestic homicides.” That quote is apposite in this case.

[35] Based on the evidence, the Crown has not satisfied me, beyond a reasonable doubt, that the murder was planned and deliberate. therefore, the murder is not first degree murder. Accordingly, I find the accused guilty of second degree murder.

Sweeny J. Released: June 23, 2020