Court File and Parties
COURT FILE NO.: CR-17-006109 DATE: 20200117 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: HER MAJESTY THE QUEEN – and – KEVIN DEONATH Defendant
Counsel: Jeffrey Costain, for the Crown John Struthers and Ashli Pinnock, for the Defendant
HEARD: January 6, 7, 8, and 13, 2020
Reasons for Judgment
1Kevin Deonath and Roy Khan were childhood friends. In early 2017, their friendship became strained as Mr. Khan suspected that Mr. Deonath was somehow involved in the theft of Mr. Khan’s valuables. By early July 2017, the relationship was openly hostile and Mr. Khan threatened violence against Mr. Deonath and his family.
2On July 28, 2017, at approximately 7:00 a.m., Mr. Deonath drove to Mr. Khan’s parents’ home to measure a floor for a tiling job. Moments after entering the home, Mr. Khan approached Mr. Deonath and pointed a loaded handgun at him. Words were exchanged and a struggle ensued. The gun was discharged and Mr. Khan was shot in the back of the head. Unfortunately, he died later that day.
3Mr. Deonath is now on trial for the second degree murder of Mr. Khan. The trial was scheduled to start with jury selection on January 6, 2020. At that time, the required consents for a re-election to judge alone were obtained and the trial proper commenced on January 7, 2020. The trial was conducted in an extremely efficient and professional manner by all counsel. Most of the evidence was tendered through agreed statements of fact and transcripts. I heard viva voce evidence from four brief witnesses. Following just over a day of evidence, I heard focussed submissions by counsel and reserved my decision.
4I wish to state at the outset that I am indebted to counsel for demonstrating a high degree of professional courtesy and cooperation while, nonetheless, skillfully and forcefully advancing their respective positions.
The Issues
5The core issues to be determined are as follows:
- Has the Crown proven beyond a reasonable doubt that Mr. Deonath had the intent for murder?
- Has the Crown proven beyond a reasonable doubt that Mr. Deonath was not acting in lawful self-defence when he shot Mr. Khan?
6The Crown argues that it has established beyond a reasonable doubt that Mr. Deonath intentionally pointed the firearm at the back of Mr. Khan’s head and pulled the trigger. Accordingly, the Crown argues that the only reasonable inference is that Mr. Deonath had the requisite intent for murder under either s. 229 (a)(i) or (ii) of the Criminal Code. The Crown further argues that Mr. Deonath’s conduct was neither reasonable nor proportionate in response to the threat posed by Mr. Khan once he was disarmed and that, as such, the Crown has also proven beyond a reasonable doubt that Mr. Deonath did not act in lawful self-defence. Lastly, the Crown very fairly acknowledges that even if it is successful on these two issues, it remains open to the court to consider whether the partial defence of provocation applies so as to reduce murder to manslaughter in these circumstances.
7The defence argues that this is a classic case of self-defence. Mr. Deonath had a loaded gun pointed at him by someone who had threatened to harm him. There was a very quick struggle during which Mr. Deonath managed to take control of the gun. Mr. Khan was hit on the face and head with a tape measure and the gun. The gun went off unintentionally and Mr. Khan died. The defence argues that Mr. Deonath did not have the intent to commit murder and, regardless, he acted in self-defence in circumstances where his life was very clearly in danger.
The Relationship Between Kevin Deonath and Roy Khan
8Mr. Deonath and Mr. Khan were childhood friends. When they were in their 20’s they continued to hang out together. Their friend group included Mr. Anthony Eccles and Mr. Khan’s older brother Raymond. Roy and Ray Khan were known by the nicknames Bush Jr. and Bush Sr.
9In January of 2017, the relationship between Mr. Deonath and Mr. Khan began to sour. Mr. Khan was the victim of a theft or robbery wherein his Rolex watch was taken. Mr. Khan believed that Mr. Deonath was implicated, perhaps indirectly, in the theft. Mr. Khan also came to believe that Mr. Deonath was involved in the theft of a bicycle or motorcycle that belonged to him.
10Over a period of time, Mr. Deonath and Mr. Khan exchanged insults and taunts. They bickered openly back and forth. Roy Khan’s father, Ali Khan, was aware of the dispute between his son and Mr. Deonath.
11According to Mr. Eccles, Mr. Khan made several threatening phone calls to Mr. Deonath.
12One such phone call occurred on July 9, 2017. Mr. Deonath received this call while he was in Mr. Eccles’ car. Unbeknownst to either Mr. Deonath or Mr. Khan, Mr. Eccles recorded the call.
13During the call, Mr. Deonath and Mr. Khan argue over the missing Rolex and bicycle or motorcycle. There is a mention of the tiling job at the Khan residence. Mr. Khan threatens Mr. Deonath stating “…Don’t call my phone, yo. I’m gonna see you, I’m gonna see your mom, I’m gonna see your sister, anyone is getting it.”
14The call continues with an exchange of barbed comments. Mr. Deonath threatens to go over to Mr. Khan’s home. Mr. Khan indicates “…I gave your sister the dick.”
15According to Mr. Eccles, he interpreted Mr. Khan’s comments about “seeing” Mr. Deonath and members of his family as a threat by Mr. Khan to “roll up” on Mr. Deonath’s house and shoot whoever was there. While Mr. Eccles had never seen Mr. Khan with a gun, he believed that Mr. Khan had one based on comments by Mr. Khan. He also believed that Mr. Khan would bring the gun out to bars and nightclubs.
The Timeline of Events on July 28, 2017
16There is no issue that on the morning of July 28, 2017, Mr. Deonath left his mother’s home in Scarborough and drove across Highway 401 and up to Vaughan. At approximately 6:50 a.m., he purchased gas at an Esso station near the Khan residence which is located at 105 Tall Grass Trail. At approximately 6:55:17 a.m., video surveillance shows a white pick-up truck, similar to Mr. Deonath’s, driving westbound on Tall Grass Trail.
17At 6:56:59 a.m., Mr. Deonath phones Mr. Ali Khan, Roy Khan’s father. The call lasts for 107 seconds. Cell tower data places Mr. Deonath in the vicinity of Tall Grass Trail.
18According to Ali Khan, he received the call from Mr. Deonath who indicated that he was on Mr. Khan’s driveway and was there to take some measurements for a tiling job. Mr. Khan asked if he could take the measurements another time as he had already left for work and Mr. Deonath indicated that he preferred to take the measurements then. Mr. Ali Khan indicated he would contact his mother, Mrs. Lynette Rahaman, who was at the residence, and ask her to let Mr. Deonath into the house so he could take the measurements. At 6:59:07 a.m., Mr. Ali Khan called his mother and the call lasted 48 seconds. He also called Mr. Deonath twice, with the second call starting at 7:01:13 a.m. and lasting 16 seconds. While Mr. Ali Khan was aware of some issues between his son Roy Khan and Mr. Deonath, he did not anticipate there being any problems with Mr. Deonath’s attendance at the home.
19Mrs. Rahaman confirms that she received a call from her son, Ali Khan, indicating that Mr. Deonath was coming to take measurements and that she should open the door for him. She was upstairs in the house and looked outside. She saw a white pick-up truck. She went downstairs and opened the door, letting Mr. Deonath in. She did not notice anything in his hands. She then returned upstairs.
20It appears that Mr. Deonath would have entered the Khan residence around 7:01:30 a.m., give or take a few seconds.
21At 7:05:17 a.m., approximately four minutes later, a white pick-up truck was seen driving southbound on Tall Grass Trail. The truck failed to stop at a stop sign at Pine York Drive, which is approximately 100 metres south of 105 Tall Grass Trail.
22At 7:06:17 a.m., Mrs. Rahaman called Mr. Ali Khan and at 7:07:40 a.m. she called 911. In a subsequent call, Mr. Ali Khan was advised by Mrs. Rahaman that something was “wrong” with Roy Khan and that he was unresponsive. Fire and EMS crews arrived on scene at 7:15:41 a.m. and 7:17:34 a.m., respectively.
23Following his departure from 105 Tall Grass Trail, Mr. Deonath made a number of calls to his friend Mr. Anthony Eccles. The calls take place at 7:09:04 a.m., 7:13:06 a.m., 7:20:50 a.m., and 7:38:59 a.m. Cell tower data shows that Mr. Deonath was travelling away from Vaughan and towards the area of his mother’s residence while these calls were made. A subsequent search of his mother’s home revealed a t-shirt underneath other clothes in a laundry basket in the basement. The t-shirt had Mr. Khan’s blood on it.
24At 7:58:23 am, Mr. Deonath calls Mr. Ali Khan. The call lasts 49 seconds. The call starts with Mr. Deonath offering an estimate for the tiling job. Mr. Khan replies by asking Mr. Deonath “what did you do with Roy?” He also tells Mr. Deonath that the police have been called and are looking for him. Mr. Deonath says “Bring the cops and come.” According to Mr. Ali Khan, Mr. Deonath’s tone during the call was “ignorant.”
25Starting at 8:50:20 a.m., Mr. Deonath again places a number of calls to Mr. Eccles. This series of calls culminates in a call at 10:10:25 a.m., lasting 520 seconds. Unbeknownst to Mr. Deonath that call was recorded by Mr. Eccles, who eventually provided the recording to police.
The Events Inside 105 Tall Grass Trail
26The home at 105 Tall Grass Trail is a modest home. The front door leads to a small foyer, which then leads to a living room and kitchen. There is a stairway in the foyer that leads upstairs. Scene photos and a three-dimensional depiction of the scene were tendered into evidence.
27The foyer also contains a corner cabinet that displays some decorative items. Some broken ceramic or other material is visible on the floor and appears to have been swept up. A blood trail is visible from the living room, through the foyer and out the front door. There is a small pool of blood on the carpet in the living room. There is also some evidence of first aid treatment.
28According to Mrs. Rahaman, when she let Mr. Deonath into the home, Roy Khan was having breakfast. He then went upstairs. After Mr. Deonath entered the home, Mrs. Rahaman went back upstairs and she passed Mr. Khan who was coming back downstairs. She did not see anything in his hands.
29Mrs. Rahaman returned to her bedroom. She heard something break but paid no attention to it. She testified that “a few minutes after I hear a bang, I hear something bang, and then I run downstairs.” When she arrived on the main floor of the home, she saw Mr. Deonath opening the front door and the storm door of the home. She saw Mr. Khan on the floor and asked Mr. Deonath repeatedly “What you do to my son?” She ran to Mr. Khan and shook him. He was lying flat on his back just inside the doorway to the living room.
30She did not recall a response from Mr. Deonath but noted that Mr. Deonath pulled the door closed behind him as he left. Mrs. Rahaman then called Ali Khan and 911.
31The primary evidence as to what occurs during the interaction between Mr. Deonath and Mr. Khan comes from the surreptitiously recorded conversation between Mr. Deonath and Mr. Eccles. The Crown tendered this call as part of its case.
32The call starts with Mr. Deonath telling Mr. Eccles to “put on a pot of coffee” as he will be there soon. He then tells Mr. Eccles that Mr. Khan “got it.” He explains as follows:
…I open the door and start measurin’ the fuckin’ tile. This idiot went upstairs, came down and push a fuckin’ gun in my face, talkin’ ‘bout “What are you doin’ here?” I punch him up couple of times, I disarm him and I box him with it, and it fuckin’ went off.
33Mr. Eccles asks “Did it hit anything?” and Mr. Deonath replies “The smaller. The smaller.” In his evidence before me, Mr. Eccles disputed the accuracy of the transcript and suggested that what was said was “smallaz” and not “smaller.” According to Mr. Eccles, “smallaz” is a reference to the size of the gun and not a reference to Roy Khan who was the smaller of the Khan brothers.
34Mr. Deonath explains that there was a corner piece of furniture with a “whole bunch of plates and glass” and that when he “boxed” Mr. Khan, Mr. Khan fell into the corner and it made “a whole bunch of noise.”
35He tells Mr. Eccles that the gun made a noise as well, though not as loud as one of the tools he uses. He also tells Mr. Eccles that he took the gun with him from the home.
36The following exchange then occurs:
KEVIN DEONATH: And when this idiot was goin’ upstairs I call them to come inside, nobody came in. I’m just like, “All right,” and Roy was like “Yeah, you think I – you think I’m scared to do it in my own house?” I’m like, “Yeah.” ‘Cause Roy was coming to fight. Punch him right in his fuckin’ mouth. “Shut up, yo. Yo, bitch, you’re not doing shit.”
ANTHONY ECCLES: What’d he say…
KEVIN DEONATH: And then….
ANTHONY ECCLES: …after he got hit?
KEVIN DEONATH: Yo, yo, I punch him two times in his mouth and he started fallin’ down, and then I just grabbed it. Yeah. Fuck you, pussy.
And further on:
ANTHONY ECCLES: He didn’t say nothin’?
KEVIN DEONATH: He, yo, when I hit him, the thing it – it went off and the fuckin’ man fell on the ground.
ANTHONY ECCLES: Yeah, yeah, yeah.
KEVIN DEONATH: And he – he was – I don’t know.
ANTHONY ECCLES: He just collapsed?
KEVIN DEONATH: I don’t know what to say.
37Mr. Deonath and Mr. Eccles discuss hiding the car that Mr. Deonath was driving, and they discuss a concern about Mr. Khan and his “crew” coming after Mr. Deonath later that evening. Mr. Eccles suggests that the gun can be used later that day if Mr. Khan returns. Mr. Eccles checks the newsfeeds online to see if the police are reporting the shooting. Mr. Eccles tells Mr. Deonath to sober up and get some sleep. He reminds him to hide his car.
38During the call, Mr. Deonath indicates that Mr. Khan’s grandmother asked him what happened and he replied “You ask this fuckin’ grandson. Idiot” and “Yo, talk to your fuckin’ idiot grandson. He’s a fuckin idiot.” Mr. Deonath also indicates that when Mr. Ali Khan asked “what did you do to my son?” he replies, “Yo, I boxed him in his head. The man dropped like he got it.”
39In his evidence before me, Mr. Eccles indicates that he perceived Mr. Deonath to be “hyped up” or wired during this call. He sounded drunk or high and was not acting his normal self.
The Firearm
40There is no issue that the firearm used to kill Mr. Khan belonged to him. Indeed, the night prior to his death, Mr. Khan sent photos of the firearm to a person with the username “Fade SK”. The photos were taken on a bedspread that was identified as being in Mr. Khan’s bedroom inside his parents’ home. Mr. Khan was not licensed to possess the firearm.
41According to the evidence of Det. Cst. Michael Kamstra, a firearms expert with the York Regional Police, the firearm is a Ruger Mark II Target Pistol. It is a semi-automatic handgun that fires .22 caliber long rifle cartridges. In order to fire the weapon the safety must be off, the firearm must be cocked and then the trigger must be pulled. It is not necessary to re-cock the firearm to continue firing. All that is required is successive trigger pulls.
42The firearm is designed for target practice. It has a lighter than usual trigger action, requiring only 4½ pounds of force. The trigger action for a police service firearm requires roughly 10 pounds of pull force to activate the trigger. This design is intentional for ease of use in target practice where minimal movement of the firearm is required for accuracy. With respect to police service firearms, a higher trigger force is also intentional in order to minimize the risk of unintentional discharge.
43The firearm was also designed with a long barrel, though the barrel of this firearm was partially sawn off.
44The firearm has an ammunition clip that holds 10 cartridges. It appears that the gun was fully loaded at the time of the incident. One shot was fired. Two live cartridges were found in Mr. Deonath’s pocket upon arrest. The firearm was later located inside a home where Mr. Deonath had been working. It was under a sheet and comforter on an air mattress that Mr. Deonath used for rest while working at the home. The firearm was loaded and ready to fire with the safety off. The ammunition clip contained 7 live cartridges.
45In cross-examination, Det. Cst. Kamstra agreed that if a gun was used to hit someone, with the safety off and a finger on the trigger, it could be accidentally or unintentionally discharged.
The Post-Mortem Evidence
46Dr. Ingo von Both was the forensic pathologist who conducted the autopsy on Mr. Khan. He concluded that the cause of death was a single gunshot wound to the head. The entry point for the bullet was on the left back side of the head. The bullet travelled into the head on a slight upward trajectory and into the right frontal lobe of the brain. The main fragment of the bullet was found inside the head. A smaller fragment of the bullet was found lodged in the scalp tissue around the entrance wound. The path of the bullet caused associated skull fractures, brain tissue damage and bleeding. While Dr. von Both opined on the trajectory of the bullet once it hit and travelled through the deceased’s head, he could not offer an opinion on what angle the deceased’s head was in relation to his body when the fatal shot was fired.
47Dr. von Both noted some particular features of the entry wound, including soot present on the wound margins of the skin, a possible “blow back laceration”, the absence of a “muzzle stamp” and the absence of stippling. Based on these features, he opined that the wound was a contact wound, which he described as occurring when the muzzle of the firearm is in contact with the skin. Dr. von Both described how the contact could be “hard contact” or “loose contact.” Given the absence of stippling and a muzzle stamp but the presence of soot in the sub-scalp around the broken skull bone, Dr. von Both opined that this was more likely a case where the firearm was in loose contact with the skin of deceased. That said, based on the caliber of the firearm, he could not rule out that the firearm was in hard contact with the deceased’s scalp when it was discharged.
48In examination in chief, Dr. von Both was asked the following:
Q. Taking your knowledge of the wound and the knowledge you’ve described in relation to contact wounds, I just want to put a hypothetical to you. If someone was hit with the gun, the muzzle of the gun, what would you expect in terms of the wound?
A. If I hit – if I hit with any portion of the gun?
Q. Hit and the gun goes off – let’s say the gun goes off – the person is hit with hard contact with the muzzle, and the gun goes off, what would you expect to see in terms of the nature of the wound?
A. It would look the same. If – if – if the gun goes off while – exactly while it strikes hard the skin, you know, the – the – it takes only milliseconds, you know, for the gas and everything those – I would – would expect to see similar or the same features.
Q. And in that scenario would you expect to see a muzzle stamp?
A. It depends on the angle. It depends on the angle the – the – the muzzle would’ve struck the skin, because if – if the angle wouldn’t – if not the entire end of the muzzle end would strike the skin at the same time, I might not see a full muzzle stamp, I might see no stamp, and….
THE COURT: So you may or may not see a muzzle stamp?
A. May or may not, yeah….
49Dr. von Both also noted the following additional injuries:
a. A laceration to the forehead between/above the eyes; b. A laceration to the right lower lip; c. A bruise to the right lower lip; d. A laceration of skin below the right lower lip; e. A chipped tooth in the right upper jaw; and f. Abrasions to the left thumb, right knee and right upper back.
50In relation to the laceration to the forehead, Dr. von Both opined that it could have been caused by falling into something with a protruding edge, like furniture or by blunt force impact with an object. The injuries to the mouth were caused by blunt force impact.
51In relation to the abrasion on the deceased’s right upper back, Dr. von Both testified that it “could have” been caused by the butt of the gun. He further testified that it was possible that if the butt of the gun caused that injury, the barrel of the gun could have been pointed at the deceased’s head while the injury was caused.
The Law
52Mr. Deonath is charged with second degree murder. There is no issue that he caused the death of Mr. Roy Khan. The issue is whether he caused the death of Mr. Khan intentionally and unlawfully.
53In terms of intent, the Crown relies on s. 229 (a) of the Criminal Code, which states:
s. 229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.
54The mental element is, at all times, subjective. The mental element in s. 229(a)(ii) involves only a slight relaxation of the mental element found in s. 229(a)(i): R. v. Cooper (1993), 78 C.C.C.(3d) 289 (S.C.C.) and R. v. Moo, (2009) 270 C.C.C. (3d) 34 (Ont.C.A.).
55In terms of the lawfulness of Mr. Deonath’s conduct, the central issue is self-defence. Section 34 of the Criminal Code addresses self-defence and provides as follows:
s. 34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.
Factors
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
56Self-defence is a justification based on the principle that in certain circumstances, it is lawful to use force in order to resist force or the threat of force: R. v. Ryan (2013), 2013 SCC 3, 290 C.C.C. (3d) 477. The defence has three elements; a reasonable belief, a defensive purpose and a reasonable response: R. v. Cormier, 2017 NBCA 10. The reasonableness of the response is assessed in accordance with the factors listed is s. 34(2). When assessing the nature and proportionality of the accused’s response to the use or threat of force, the court must not hold the accused to a standard of perfection or require that the accused measure the response to “a nicety”: R. v. Baxter (1975), 27 C.C.C. (2d) 97 (Ont.C.A.) and R. v. McPhee, 2018 ONCA 1016, at para. 24.
57Where there exists an air of reality to self-defence, the Crown must prove beyond a reasonable doubt that the defence does not apply. It is sufficient for the Crown to prove that any one element of the defence does not apply. The Crown does not have to prove that all elements of the defence do not apply.
The Position of the Parties
58The Crown argues that the single available inference on the evidence is that Mr. Deonath pointed the gun at the back of Mr. Khan’s head and intentionally pulled the trigger. The Crown further argues this act manifestly establishes an intent to commit murder under either s. 229(a)(i) or (ii), as common sense dictates that discharging a firearm into the back of someone’s head is likely to result in their death and common sense further dictates that people intend the likely or probable consequences of their actions.
59The defence does not dispute this proposition, but argues that the Crown has failed to prove beyond a reasonable doubt that the firearm was intentionally discharged into the back of Mr. Khan’s head. The defence points to a number of facts that support this conclusion, including;
a. Mr. Deonath and Mr. Khan were engaged in a brief altercation over Mr. Khan’s gun which was fully loaded and ready to fire; b. Mr. Deonath used the gun to hit Mr. Khan more than once; c. The specific gun in question has a relatively light trigger weight; d. The bullet wound to the back of the head is a contact wound, which suggests that the gun was pressed against the skin when the fatal shot was fired; e. The gun was fired only once; despite being fully loaded; and f. In the phone call after the shooting, Mr. Deonath does not appear to appreciate that Mr. Khan has been shot in the head and is dead or dying. Also during this call, he expresses a concern that Mr. Khan will be coming for him. Further, as he is leaving the home, he tells Mr. Khan’s grandmother to ask Mr. Khan what happened, suggesting a lack of awareness as to what happened. His phone call to Mr. Ali Khan suggests an attempt by Mr. Deonath to find out what happened to Mr. Khan.
60On the issue of self-defence, the Crown’s primary position is that the intentional discharge of the firearm into the back of Mr. Khan’s head was an unreasonable and disproportionate response in all the circumstances. While the Crown does not dispute that Mr. Deonath was entitled to act in self-defence when Mr. Khan pointed a loaded handgun at him, the Crown argues that once Mr. Deonath had control of the weapon the need to act in self-defence abated. He had control of the situation and could have left through the front door of the house. The Crown notes that Mrs. Rahaman’s evidence supports the existence of a gap in time between the initial noise caused by the falling ceramic vase or glass and the noise caused by the discharge of the firearm. The Crown argues that crashing ceramic or glass was caused when Mr. Deonath and Mr. Khan struggled over the gun and that this was followed by a break in the action and then the gun shot. The Crown argues that this supports an inference that Mr. Khan was shot in the head at some point after the initial struggle, and therefore Mr. Deonath was not acting in self-defence.
61The Crown also notes that after the incident Mr. Deonath went to his mother’s house where he changed his blood-stained clothing, and then went to another house where he had been working and hid the gun. This supports an inference of culpability on the part of Mr. Deonath. Lastly, the Crown notes that Mr. Deonath suffered no injuries in the interaction with Mr. Khan, supporting an inference that there was no real scuffle between them.
62The Crown takes the position that if Mr. Deonath used the gun to strike Mr. Khan on the back of the head and it accidentally discharged, it nonetheless was unreasonable and disproportionate in the circumstances, albeit less obviously so.
63The defence argues that the interaction in the small foyer of 105 Tall Grass Trail was very brief. The entire incident from Mr. Deonath’s arrival, entry into home, measuring of the tiles, interaction and confrontation with Mr. Khan, exit from the home and driving off through a nearby stop sign, occurred in approximately four minutes. The defence argues that Mr. Deonath did exactly what he said he did in his telephone call with Mr. Eccles. He was confronted with a handgun that was loaded, cocked and ready to fire. He took the gun off Mr. Khan and hit him with it more than once. The wounds to Mr. Khan’s forehead and mouth support Mr. Deonath’s version of events in this regard. The gun, which was calibrated to fire with half the usual force, accidentally discharged during this portion of the interaction. The wound to the head was a contact wound and was not caused by a gunshot fired from some distance. Mr. Deonath did not fully appreciate that Mr. Khan had been shot in the head, and he certainly did not appreciate that he was fatally wounded. In the circumstances, the defence argues that it is reasonably possible that the gun discharged accidentally when Mr. Khan was hit in the head with it. More to the point, the defence argues that Mr. Deonath’s response to having a loaded handgun pointed at him by someone who had threatened to shoot him in the past and who indicated that he would do so in the foyer of the home, was an eminently reasonable and proportionate response in the circumstances.
Analysis and Findings
64The Crown must prove the requisite intent for murder and disprove self-defence and provocation beyond a reasonable doubt. Mr. Deonath does not have to prove anything and, in particular, he does not need to prove that he acted in self-defence.
65Proof beyond a reasonable doubt is a high standard of proof. It requires that I be “sure” of Mr. Deonath’s guilt of the offence charged in order to convict him. Given the factual and legal matrix in this case, including the various admissions and positions of counsel, the following options are available to me:
a. If the Crown proves beyond a reasonable doubt that Mr. Deonath intentionally shot Mr. Khan with one of the subjective mental states described in s. 229(a) and proves beyond a reasonable doubt that Mr. Deonath did not act in self-defence and further proves beyond a reasonable doubt that the partial defence of provocation does not apply, Mr. Deonath will be convicted of second degree murder. b. If the Crown proves beyond a reasonable doubt that Mr. Deonath intentionally shot Mr. Khan with one of the subjective mental states described in s. 229(a) and proves beyond a reasonable doubt that Mr. Deonath did not act in self-defence but fails to prove beyond a reasonable doubt that the partial defence of provocation does not apply, Mr. Deonath will be convicted of manslaughter. c. If the Crown fails to prove beyond a reasonable doubt that Mr. Deonath intentionally shot Mr. Khan with one of the subjective mental states described in s. 229(a) but proves beyond a reasonable doubt that Mr. Deonath did not act in self-defence, Mr. Deonath will be convicted of manslaughter. d. If the Crown fails to prove beyond a reasonable doubt that Mr. Deonath intentionally shot Mr. Khan with one of the subjective mental states described in s. 229(a) and fails to prove beyond a reasonable doubt that Mr. Deonath did not act in self-defence, Mr. Deonath will be acquitted of second degree murder.
66I start my analysis by assessing whether the Crown has proven the requisite intent for murder beyond a reasonable doubt.
67The evidence in relation to Mr. Deonath’s intent is circumstantial. In order for me to be satisfied beyond a reasonable doubt that Mr. Deonath had the requisite intent under either s. 299(a)(i) or (ii), that finding must be the only reasonable inference available on the evidence: R. v. Villaroman, 2016 SCC 33.
68The Crown argues that the timing and position of the gunshot leaves only one inference, which is that there was a scuffle wherein Mr. Khan lost control of the firearm to Mr. Deonath, there was then a break in the scuffle and then the shot was fired into the back of Mr. Khan’s head. The Crown relies principally on the evidence of Mrs. Rahaman to support the inference that there was a pause of some length prior to the gunshot. Further, the Crown argues that the location of the entry wound supports an inference that Mr. Khan was turned away from Mr. Deonath when the shot was fired, which supports the inference that the shot was fired intentionally.
69When I consider the totality of the evidence, I make the following findings:
a. Mrs. Rahaman’s evidence of a pause of a few minutes between the “bangs” must be viewed in concert with the independent evidence of the timing of the events. Mr. Deonath was in the home for a very short period of time. The entire incident, from Mr. Deonath’s entry into the home and his ultimate departure and running of a stop sign a short distance away from the home, is approximately four minutes. I do not accept that Mrs. Rahaman’s evidence about the passage of a few minutes is literal. On the evidence before me, it cannot not be. In my view, her evidence is likely figurative and suggests that there was some brief period of time between the sound of the falling ceramic and the firing of the gunshot. b. The injuries to Mr. Khan’s face, forehead and back support a ready inference of a scuffle or fight of some sort. I find that he was hit by Mr. Deonath more than once with a fist, a tape measure or his own firearm and perhaps all three. The fact that Mrs. Rahaman did not hear anything other than the two loud noises, does not undermine a finding that there was a scuffle of some duration. Mrs. Rahaman was upstairs in her bedroom and made no visual observations of the encounter. c. The Crown accepts that Mr. Deonath did not know he was being recorded when he calls Mr. Eccles. Despite the boastful and bragging tone of the call, and despite some curious comments (for example the comments relating to the presence of others outside the home), it appears that the core content of the call is supported by the evidence. The injuries on Mr. Khan’s head and face corroborate Mr. Deonath’s claim that he punched and “boxed” Mr. Khan in the mouth and head. The broken ceramic supports Mr. Deonath’s claim that Mr. Khan fell into the corner cabinet causing the ceramic to crash onto the floor. Mr. Deonath’s claim that Mr. Khan pointed a gun on him is corroborated by the fact that the gun belonged to Mr. Khan. d. At no point in the call does Mr. Deonath use language suggesting the gun went off intentionally. To the contrary, Mr. Deonath states “I punch him up a couple of times, I disarm him and I box him with it, and it fuckin’ went off.” e. The call between Mr. Deonath and Mr. Eccles, as well as the comments made by Mr. Deonath to Mrs. Rahaman and Mr. Ali Khan, support an inference that Mr. Deonath was potentially unsure whether Mr. Khan had been shot and certainly did not believe he had been killed. While this evidence does not standing alone negate intent, it is some evidence that supports an inference that the gun was not intentionally fired. f. The position of the wound is troubling. However, the wound to the back of the head is a contact wound, meaning the barrel of the gun was in contact with Mr. Khan’s head when the trigger was pulled. This is not a scenario where Mr. Khan was shot from some distance as he was perhaps trying to move away from Mr. Deonath. There is an abrasion on Mr. Khan’s upper back that could have been caused by a strike with a hard object, like a firearm. Dr. von Both testified that if the gun discharged as it was being used to strike Mr. Khan, he would expect to see the same type of wound. The firearm used in this case requires half the usual force to pull the trigger. The firearms expert indicated that assuming the safety was off, the firearm was cocked and a finger was on the trigger, the gun could be discharged while being used to hit someone in the head. g. The wounds to Mr. Khan’s mouth and forehead support a clear inference that he was hit more than once with a blunt object, likely his own gun, but possibly also a tape measure. While I am mindful of the need to avoid speculation, it is reasonable to infer that a person who had been struck twice in the head might turn their head away if they anticipated a third blow. On this basis, I cannot reject the possibility that Mr. Khan’s head was simply turned away when he was hit with the firearm on either the back of his head or his upper back. h. The timing and sequence of the injuries relative to the noises is difficult if not impossible to determine. The injury to the mouth, which includes a chipped tooth, could have been caused by one or more punches, which Mr. Deonath suggests he inflicted initially. It could also have been caused by a combination of a punch or punches and a subsequent strike with a hard object like a gun. The wound to the forehead was likely caused by a strike with a hard object like a gun. The abrasion to the back could have been caused by the gun. It is unclear on the evidence when Mr. Deonath came into possession of the gun, but one reasonable inference is that he obtained possession of the firearm at some point after Mr. Khan was pushed or fell into the cabinet. It is further reasonable to infer that once Mr. Deonath managed to get the firearm off of Mr. Khan, he proceeded to strike him with it causing the injuries. This would account for some passage of time between the noise of the ceramic crash and the gunshot. i. I do not find Mr. Deonath’s post-offence conduct, involving changing his clothing at his mother’s house and hiding the gun at the residence where he worked, to support an inference that he intentionally shot Mr. Khan. Mr. Deonath was involved in a physical confrontation with Mr. Khan. He punched and struck him. The gun that Mr. Deonath took from Mr. Khan was discharged. In these circumstances, the post-offence conduct does not assist in ascertaining his intent. It is equally reflective of his mere involvement in altercation as just described.
70I agree with the Crown that based on the position of the wound and the evidence of Mrs. Rahaman about the timing of the “noises”, one available inference is that the firearm was pointed to the back of Mr. Khan’s head and intentionally fired. However, that is not the only available inference. Another reasonably available inference is that Mr. Khan was simply struck in the back of the head while he had his head turned away, and the gun discharged unintentionally. On this basis, I am not satisfied that the Crown has proven the requisite intent for murder under either s. 229(a)(i) or (ii). In these circumstances, I need not consider provocation.
71I turn next to self-defence. There is no issue that the first two legal criteria for the defence of self-defence have been satisfied by the evidence. Mr. Deonath had a loaded handgun pointed at him by someone who had, on a prior occasion, threatened him. There can be no doubt that Mr. Deonath reasonably feared that potentially lethal force was going to be applied to him. I also accept that Mr. Deonath’s response was for the purpose of defending himself from the perceived threat posed by the loaded firearm that was pointed at him. The remaining issue is whether Mr. Deonath’s response was reasonable in the circumstances. In assessing this issue, I am guided by the criteria listed in s. 34(2) of the Criminal Code. In this regard, I make the following findings:
a. Mr. Khan pointed a fully loaded semi-automatic firearm at Mr. Deonath inside the foyer of his parents’ home. The foyer is a small, relatively confined space. The pointing of the firearm was accompanied by a comment by Mr. Khan indicating he was prepared to use the firearm. b. This happened at approximately 7 a.m., when Mr. Deonath was at the house for a perfectly legitimate purpose. Mr. Deonath did nothing other than enter the home and begin measuring the tiles. c. There was a history of tension between Mr. Khan and Mr. Deonath. A couple weeks prior, Mr. Khan had threatened Mr. Deonath during a phone call. The threat arguably involved a threat to shoot Mr. Deonath and members of his family. d. There was a struggle over the firearm and as indicated above, I am satisfied that at least one reasonable inference is that once Mr. Deonath managed to get the firearm away from Mr. Khan, he used the firearm to strike Mr. Khan in the face, head and back, at which time the gun was unintentionally discharged once. e. I find that using the firearm to strike Mr. Khan is a completely proportionate response in these circumstances. While Mr. Deonath could have retreated out the front door with the gun, he was in a relatively confined space with two closed doors between him and the front porch of the home. A perfectly calculated response is not the test. In these circumstances, I do not fault Mr. Deonath for failing to retreat. f. I do not find that the post-offence conduct evidence undermines self-defence. More particularly, I do not find that the post-offence conduct evidence supports an inference that Mr. Deonath subjectively felt that his response to the threat posed was either unreasonable or disproportionate.
72When I consider all the evidence in accordance with the applicable legal principles, I find that the Crown has failed to prove beyond a reasonable doubt that Mr. Deonath did not act in lawful self-defence.
Conclusion
73This is a tragic case that started with a dispute that in no way warranted the escalation of the events that unfolded. As a result of that dispute, Mr. Khan decided to point a loaded handgun at his childhood friend and threatened to shoot him. He paid for that decision with his life, though it could just as easily have been Mr. Deonath’s life.
74On the whole of the evidence, I am satisfied that Mr. Deonath acted in lawful self-defence and as a result committed no criminal offence.
75Mr. Deonath, please stand. I find you not guilty of second degree murder in relation to the death of Roy Khan.
76You are free to go.
Justice J. Di Luca Released: January 17, 2020
NOTE: As noted in court, on the record, these written reasons are to be considered the official version and takes precedent over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written reasons that are to be relied upon.
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – KEVIN DEONATH Defendant REASONS FOR JUDGMENT Justice J. Di Luca Released: January 17, 2020