COURT FILE NO.: CR 19-334
DATE: 2020/10/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
T. Shuster and T. Morris, on behalf of the Crown Attorney
- and -
KYLE FIRLOTTE
Accused
G. Sandberg and D. Trofimoff, on behalf of the accused
HEARD: September 8, 9, 10, 14, 15, 16, 21 and 23, 2020
A.J. Goodman J.:
REASONS FOR JUDGMENT
Introduction:
[1] The accused, Kyle Firlotte (“Firlotte”) is charged with first degree murder in the death of Johnathan Bailey (“Bailey”).
[2] At the arraignment, the accused entered a plea of not guilty to the offence as charged but guilty of manslaughter. The Crown did not accept the accused’s plea.
[3] The charge relates to an incident that was alleged to have occurred on November 7 and 8, 2017 in the Township of West Lincoln and elsewhere in the Province of Ontario.
[4] The parties entered into an Agreed Statement of Facts (“ASF”). For the purposes of this judgment, Firlotte admitted killing Bailey. The defence concedes that Bailey was abducted and forcibly confined during the course of the events.
[5] It is not disputed that Firlotte’s actions were a significant and substantial cause of Bailey’s death.
[6] Both Crown and defence agreed that the sole issue to be determined is whether the Crown can prove that Firlotte had the requisite intent required to elevate this unlawful act homicide to murder. If so, it is axiomatic that he is guilty of first degree murder. If not, then he is adjudged guilty of manslaughter.
Agreed Statement of Fact (“ASF”):
[7] The relevant segments of the ASF include:
On November 7, 2017 at approximately 7:50 p.m. the Hamilton Police Service were dispatched to 835 Paramount Drive, Stoney Creek, Ontario for an assault in progress call. Information received was that there were two male (“suspects”) assaulting one male. The first suspect was a white male, in his 20’s, wearing a green hoodie and black gloves. The second suspect was a white male, in his 20’s, wearing a black hoodie. The male victim was on the ground, he had been tied up and was put into his own vehicle (a black four door Escape) by the suspects. The vehicle then drove off towards Artfrank Street.
Ms. Antonio finished her shift at August 8 at approximately 7:15 p.m. At approximately 7:50 p.m. Ms. Antonio left through the back of August 8 to walk to the bus stop. From the corner of her eye Ms. Antonio saw a guy hiding behind an electrical box. A man hiding behind the electrical box was wearing a mint-green sweater/hoodie and gray or black sweatpants. He had his hood up and was wearing black gloves. The man was a white male in his 20’s. The man then approached the deceased Black Ford Escape which was parked in a handicap spot behind the KFC drive-thru.
Ms. Antonio saw the man wearing the green hoodie open the driver’s door of the Ford Escape, attack the deceased and drag him out of the vehicle to the ground in the parking lot. Ms. Antonio saw another man wearing a black hoodie come from the area of the Re/Max building and immediately went to the deceased vehicle. Together the two men dragged the deceased down to the ground and started beating him up in the parking lot. The deceased was yelling and the two men were punching him. She could hear the punching. They went through his pockets. The deceased was on the ground and could not move. Ms. Antonio observed that the men had duct tape in the parking lot. Ms. Antonio observed the two men drag the deceased back into his vehicle. She heard the engine start and then the vehicle drove out of the parking lot and turned right (eastbound) onto Paramount Drive towards Stoney Creek.
Mr. Katanic was in his office when he could hear somebody screaming for help. Mr. Katanic opened his blinds and looked out his office window. It looked like a person was being kicked by two individuals in the parking lot. He then left his office and attended the front of the office and looked through the window where he saw two people kicking one person who was laying on the parking lot. It looked to Mr. Katanic like the person laying on the parking lot had his hands tied. Mr. Katanic stated to Ms. Supryka that he believed somebody was fighting outside. Mr. Katanic then went outside to see what was going on. At that moment he observed two people putting one person in a car and then he took his cell phone out and started recording. Mr. Katanic then went back to grab his cell phone. He looked back outside and saw that the two people were still kicking the person on the ground. The two people kicking the person on the ground had hoodies on. He noticed that one hoodie was green and the other one was darker and could have been silver or black. Mr. Katanic took two photos and a video. The first photo was taken at 7:51 p.m.
To Mr. Katanic it looked like the two individuals were wrapping something on the individual. Mr. Katanic observed the two males take the person that was on the ground and put him in the car in the back seat of the driver’s side. The two males then got in the car and took off. Mr. Katanic described their vehicle as a Black or dark coloured Escape. He confirmed that the person in the green hoodie sat in the passenger side of the vehicle and the person with the darker hoodie sat in the driver’s side.
On November 7, 2017, Ms. Supryka was working at the RE/MAX located at 325 Winterberry Drive in Stoney Creek. Her co-worker, Bojan Katanic said something that led her to believe there was a fight in the parking lot in front of their office. Ms. Supryka got out from behind her desk and looked out the window where she observed two people near a vehicle and a man on the ground and two other people were over top of him. Ms. Supryka saw one of the two people grab the man on the ground by the shoulders and drag him across the ground. Ms. Supryka observed this for ‘seconds’ before she called 9-1-1. She did not see any weapons but it looked like the two men were forcing the man on the ground down.
Sergeant Moore secured the scene which consisted of the entire parking lot directly to the south of the RE/MAX building. Sergeant Moore observed objects that were located on the south side of the parking lot near the last row of the vehicles. These objects included: Loose change, Tim Horton’s gift cards, a spent roll of duct tape, a strip of duct tape that had been ripped off, a medical care plan card from Newfoundland Labrador in the name of Jonathan Bailey, and what appeared to be blood.
Ms. Hoang connected Kyle to Johnathan as she knew Kyle wanted to purchase drugs and Bailey sold drugs. She provided each of the two with the other persons phone number. Kyle Firlotte was to purchase cocaine from Johnathan Bailey. Johnathan subsequently scammed Kyle and Kyle confirmed this to Rachel in a text message he sent her on October 27, 2017.
Ms. Rogers met Bailey through mutual friends approximately 4 months prior to his death. Sometimes Ms. Rogers would hang out with Bailey and he would drive her places in his black Ford Escape. She would occasionally attend his home at 125 Young Street in Hamilton where she met his son, Austin and his girlfriend Amanda.
Ms. Rogers communicated with Bailey via text message. She had him saved in her phone under phone number (905) 962-1543 under his nickname “Jibbs”. The last time she spoke to Bailey was on her phone through Facebook on November 7, 2017, the day he died.
On November 7, 2017, Bailey was supposed to come and pick her up. The last thing she heard from Bailey on this day was that he was going to the theatres on Paramount to pick up a friend. Bailey was going to come pick her up and then they were going to drop his friend off. This friend of Bailey’s was also his drug “mule” or “runner”. This call occurred at 7:44 p.m. on November 7, 2017 and lasted 1 minute and 30 seconds.
The last phone call Ms. Rogers made to Bailey on November 7, 2017 was placed through Facebook Messenger. Ms. Rogers made the call to Bailey’s phone via Facebook Messenger at 7:59 p.m. on November 7, 2017. The call lasted 11 minutes and 37 seconds. It was answered by Kyle Firlotte who told Ms. Rogers that he had Bailey’s phone and his car. Ms. Rogers had called Bailey looking for him because he was supposed to come pick her up. Kyle Firlotte told Ms. Rogers that they had kidnapped Bailey’s mule and had his car. Kyle Firlotte told Ms. Rogers that they were looking for Bailey because the he owed him money.
Ms. Rogers told Kyle Firlotte that Bailey owed her money. She had loaned Bailey 3 hundred dollars and he did not pay her back. In response to this, Kyle Firlotte said “Oh, okay, he owes you money too? He’s a dead man”.
Ms. Rogers knew this was Kyle Firlotte on the Bailey’s phone because he told her that he knew who she was. Kyle Firlotte knew Ms. Rogers through her Aunt Lori-Lynn St. George and her sons (Ms. Rogers’ cousins, James and Dylan Laking).
Ms. Rogers grew up with Kyle Firlotte. During this call Firlotte told her that she threw a Tonka truck at him when she was younger. He told her that her aunt (Lori-Lynn St. George) used to live on East 21st Street and asked her if she had cousins named James and Dylan Laking. She confirmed that his parents were in fact Grant and Lois.
On November 7, 2017 Allan Bailey received a phone call from Jonathan Bailey’s phone that lasted between three and five minutes. Before he could even say “hello” the male voice on the other end of the phone said “we’re lookin’ for John”. The person said “Well, we got his runner, Brian, and we’re lookin’ for John, he owes us money. If we don’t get our money John’s a dead man”. Then the caller put the so-called runner “Brian” on the phone for 2 or 3 seconds and he confirmed that they had him. “Brian” said “if you know where John is please tell them because they’re going to kill me if not”.
During this phone call Allan Bailey did not hear any background noise. The voice that came back on the phone after “Brian” sounded like the same voice Allan Bailey was speaking to originally. Allan Bailey took this to be a joke and said “well, when you catch up to him tell him I’d like the money he owes me”. Allan did not take this call seriously because he had received phone calls like that before. When the phone call was over there was nothing about the conversation that led Allan Bailey to think that it was serious. Once the phone call was over it was a non-event in his life.
Jonathan Bailey owed Allan Bailey money because he had recently traded him vehicles. Jonathan Bailey traded his Grey 2001 Town and Country van for Allan Bailey’s Black Ford vehicle. This switch took place approximately two weeks before Jonathan Bailey’s death. This vehicle was the vehicle that was ultimately recovered by the NRPS following Jonathan Bailey’s death.
Mr. LaRosa owned the residence located at 125 Young Street in Hamilton, Ontario on November 7, 2017. On this date, Jonathan Bailey lived on the main floor of that residence. Mr. La Rosa’s telephone number on November 7, 2017 was (905) 929-1890. On this day, at approximately 8 or 8:30 p.m., Mr. LaRosa received a phone call from Jonathan Bailey’s phone. Mr. LaRosa answered the phone but the person on the other end was not Johnathan Bailey.
The person on the phone was yelling when they spoke and said “you the landlord?”. Mr. LaRosa responded “yes”. The person on the other end of the phone stated “your tenant Johnathan Bailey owes me $5,000.00”. Mr. La Rosa replied, “why you call me for?” The caller said “because, to let you know that he owe me $5,000.00”. Mr. LaRosa replied, “don’t call this number again”.
Austin Tupper is Jonathan Bailey’s son. On November 7, 2017 he was 18 years old. November 7, 2017 was the last day Mr. Tupper spoke to his father. At this time Mr. Tupper recalls having two cell phone numbers. Mr. Tupper knew his father’s phone number to be (905) 962-1543.
On November 7, 2017 the last time Mr. Tupper spoke to his father was approximately 3 o’clock p.m., and the last time he saw his father was around 6 o’clock p.m. when he was in his vehicle. They had just gotten into an argument and did not speak. Mr. Tupper believed that his father’s vehicle was a black Jeep Wrangler that he only acquired about two or three weeks prior. Later that evening Mr. Tupper received a call from his father’s phone number at approximately 7:30 p.m. The male caller was not his father, and said “is this Johnathan Bailey’s son? Your dad has tried to rip us off for some money.” Mr. Tupper asked “how much”, the caller responded, “$5,000.00”. Mr. Tupper asked if there was anything he could do to help and stated that he did not have any money. The caller replied, “if you have the money you can come meet us at McDonald’s by a movie theatre”. Mr. Tupper reiterated that he did not have any money, and the caller hung up.
On Wednesday, November 8, 2017, Ivan Persin was driving eastbound on South Chippawa Road. South Chippawa Road is in a rural area. While travelling along South Chippawa Road Ivan’s attention was drawn to something in the field. Ivan passed what he saw in the field, turned his vehicle around and stopped to get a better look. Ivan had binoculars with him and used them to confirm that there was a human body laying out in the field approximately 70-80 meters from the road.
On November 8, 2017 Constable Haughie was on general uniform patrol in 8 District which covers the small townships of Lincoln, West Lincoln, and Grimsby. At approximately 9:35 a.m. Constable Haughie was dispatched to the area of South Chippawa Road in the Township of West Lincoln. He arrived at this location at approximately 9:46 a.m. When he arrived on scene he noted that he was between the addresses of 8891 South Chippawa Road and 9032 South Chippawa Road. On arrival, Constable Haughie parked on the north side of the road, on the westbound shoulder. Constable Haughie located two witnesses, Ivan Persin and David Kiss who were parked on the same shoulder of the road. Constable Haughie looked to the south side of the road and observed a body laying in the field.
Constable Haughie walked to within approximately 5 feet of the east side of the body and noticed that he was obviously deceased. The male was on his back, the head was face-up towards the north (towards South Chippawa Road) and the feet were facing south. The male’s hands were in a position together on his chest near his sternum. Constable Haughie observed that the body was covered head to toe in blood and mud. A water bottle was located to the left side of the head. There was some duct tape that was in a circular shape beside the head.
Muayad Abdelgadir is close friends with Kyle Firlotte. On November 7, 2017, Mr. Abdelgadir was 19 years old. He had known Kyle Firlotte for approximately 7 years. They had attended elementary school together. Later in the evening on November 7, 2017, Kyle Firlotte contacted Mr. Abdelgadir and asked him to pick him up.
Detective Stoehr was present during the seizure of Kyle Firlotte’s cell phone on May 5, 2018 pursuant to a General Warrant. Detective Stoehr searched the cell phone according to these parameters. The Logical Extraction provided Detective Stoehr with same files the user would see when operating the phone. However, in order to get a complete Physical Extraction of everything on Kyle Firlotte’s cell phone, Detective Stoehr had to send the cell phone to Cellebrite.
The official certified weather record from the Government of Canada for the location of the recovery of the deceased remains (South Chippawa Road, Township of West Lincoln) for the date range November 7 - 8, 2017, can be found at Tab #7 in Trial Binder #2. This document is an accurate source of information for the temperature change during that time frame. Since the exact time of death is unknown, the minimum temperature to which Mr. Bailey was exposed ante mortem is unknown.
There were a total of 60,906 interceptions of private communications, with some duplicates. Of the 60,906 interceptions, 3,563 intercepts were identified as pertinent calls by the investigators. Of those intercepts, 75 calls were transcribed. There were 11 total relevant intercept sources including: cell phones, land lines and automobile probes. Copies of the intercepted calls and conversations are attached in Trial Binder #5 and are identified by date, time, parties, and duration and voice identification is admitted as identified in these transcripts. The transcripts of the intercepts accurately identify the speakers in the intercept. Each transcript has been labelled as to the identity of the speaker.
Ms. McIlveen testified during the Preliminary Inquiry with respect to the Subscriber Information, Call Detail Records, and Cell Tower Records of Bell Cellular telephone number 905-379-1160 (Kyle Firlotte’s cell phone).
Danielle Fortier works for Rogers Communications Canada Incorporated (“Rogers”) and has been so employed since 2006 as a senior investigator in the lawful access response department. Ms. Fortier provided the Court with a PowerPoint presentation entitled “Cell Phone Basics” regarding the basics of cell phone communications and how they connect with cell towers at the Preliminary Inquiry. This PowerPoint presentation is not in dispute.
Renata Dziak has been a Forensic Scientist in Biology at the CFS since June, 2004. Renata Dziak completed 9 Biology Reports between November 22, 2017 and September 11, 2019 and provided evidence at the Preliminary Hearing on September 23, 2019. The 9 Biology Reports can be located in tabs 2-10 of Trial Binder #7. The transcript of her preliminary inquiry evidence is attached and can be located at Tab 11 in Trial Binder #7 and is not in dispute.
A sample of blood was obtained from the deceased. DNA Profile #1 (Bailey) was then compared to the other items that were submitted to CFS for DNA comparison from the three relevant scenes: Abduction Scene (835 Paramount Drive, Stoney Creek), Deceased Body Recovery Scene (8891 South Chippawa Road), and the Jonathan Bailey’s Vehicle (2005 Ford Escape). Johnathan Bailey could not be excluded as a contributor with a Random match Probability of 1 in 27 quadrillion from the following exhibits from the Abduction Scene: Empty duct tape roll; Duct tape detached from Roll; Scene Swabs. Jonathan Bailey could not be excluded as a contributor with a Random match Probability of 1 in 27 quadrillion from the following exhibits from the Deceased Body Recovery Scene: Right black glove east of deceased; Left black glove at foot of deceased; Powerade Bottle; Bloodstain on grey duct tape beside deceased head; Bloodstain on black tape from tire impression area close to deceased. Jonathan Bailey could not be excluded as a contributor with a Random match Probability of 1 in 27 quadrillion from the following exhibits from the Jonathan Bailey’s Vehicle: Bloodstain on blade and handle Machete from driver’s floor; Blood swab from rear left headrest; Blood swab from back of Driver’s headrest.
A DNA warrant was executed on Kyle Firlotte. A DNA profile was generated for Kyle Firlotte. Kyle Firlotte could not be excluded as the source of Profile 2 from the Arizona Can from Jonathan Bailey’s vehicle with a random match probability of 1 in 1.3 quintillion. Kyle Firlotte could not be excluded as a contributor to mixture 3 from the swab of the inside surface of an empty duct tape roll from the abduction scene. The DNA results are estimated to be 73,000 times more likely if they originate from Jonathan Bailey and Kyle Firlotte than if they originate from Johnathan Bailey and one unknown individual unrelated to Kyle Firlotte.
[8] The various trial binders, including photographs and reports filed along with the evidence of Detective Constable Racine and Detective Constable Schneider were all admitted.
[9] The Crown called Dr. L. Kocovski and the defence presented Dr. M. Shkrum, both forensic pathologists, to give their expert opinions respectively.
Positions of the Parties:
[10] The Crown submits that Firlotte orchestrated, planned, and enacted a plan to attack, abduct, bind, and transport Bailey to a secluded rural area. Firlotte had a motive to murder Bailey. Apparently, the deceased owed money to the accused. During the abduction, Firlotte told two individuals on Bailey’s cell phone that Bailey was a “dead man”. Firlotte’s plan evolved to include the use of a machete to cause sharp force injuries to both of Bailey’s hands that are indicative of ‘torture’ style wounds.
[11] Firlotte took Bailey to a location where he continued the assault causing serious bodily injury which was a significant contributing cause to his death. Firlotte actively chose to remove Bailey from a place where others could assist him or render aid and took him to a remote area and left him there with injuries that significantly compromised his ability to help himself.
[12] The Crown says that the court ought to consider all of the circumstances, including: the abduction, the attack, the consequences of the injuries on Bailey’s level of consciousness, the location, the weather, and the decision to leave Bailey in the field. Firlotte had the requisite intent for murder. On the entirety of the evidence, the charge has been established beyond a reasonable doubt.
[13] Mr. Sandberg rejects the Crown’s position that his client had the requisite state of mind to commit murder. The defence submits that this is a circumstantial case and there are several competing inferences. His client’s intent was to collect on an outstanding debt, nothing more. While Firlotte may have been frustrated, that intent did not change during the course of the events, nor did his client ever intend to murder.
[14] The defence submits that by self-identifying on the cell phone to various persons, Firlotte did not intend to escalate his actions. He merely attempted, albeit by menacing language to recover monies owed to him by Bailey. The field where Bailey was found was not as secluded as the Crown suggests.
[15] Mr. Sandberg submits that the expert medical evidence belies the Crown’s theory of the case. There were multiple injuries that contributed to Bailey’s death, most of which could not have been known to Firlotte at the time. The blunt and sharp force injuries were not life threatening on their own. The evidence does not support that Firlotte knew how temperatures at about the freezing mark might adversely affect a person.
[16] The evidence in its totality must leave the court in a state of reasonable doubt as to Firlotte’s intention. Counsel submits that his client must be found guilty of manslaughter.
Legal Principles:
[17] All of the evidence must be considered by the trier of fact. An accused is entitled to the benefit of the presumption of innocence and is not required to give any evidence. The defence was not required to disprove the offences occurred as alleged by the Crown and in the manner proposed by the prosecution. The defence was not required to substantiate their theory of the case. The burden of proving guilt of the accused lies upon the prosecution throughout the trial. Before an accused can be found guilty, a court must be satisfied beyond a reasonable doubt that the evidence establishes all of the essential elements of the offence charged against him.
[18] Some of the evidence adduced by the Crown was circumstantial. I am cognizant of the proper approach to the use of circumstantial evidence in order to convict an accused person of a crime.
Reasonable Doubt:
[19] The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases. In R. v. Lifchus, 1997 SCC 319, [1997] 3 S.C.R. 320, at para. 14, the Supreme Court explains that the meaning of proof beyond a reasonable doubt is "[a] standard of proof [that] is higher than… a balance of probabilities, yet less than proof to an absolute certainty."
[20] The law provides for no burden of proof on the defendant at any stage in the proceedings. The standard of proof in a criminal matter is the higher standard of proof; namely, beyond a reasonable doubt. Absolute certainty is not required, for that would be an impossibly high standard for the prosecution to achieve. However, it does demand considerably more than probable or likely guilt.
[21] Further, reasonable doubt cannot be based on sympathy or prejudice, but must be founded in reason and common sense and be logically connected to the evidence or the absence of evidence.
[22] I am mindful that I must consider all of the evidence fully and fairly and not assess the defence evidence with any greater scrutiny than the witnesses presented by the Crown, or arbitrarily place less weight on the testimony of the defence witnesses.
Assessing Credibility:
[23] The framework for evaluation of the evidence and the credibility of the witnesses is the three-step method of analysis described by the Supreme Court of Canada in R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742. This seminal test is straightforward. First, if the trier of fact believes the evidence of the accused, then the accused must be acquitted. However, even if I do not believe the accused’s testimony, or the evidence adduced by the defence, I would be obliged to dismiss the charge if it leaves me in a position of reasonable doubt. Finally, even if I am not left in doubt by the evidence of the accused or defence, I am required to ask myself, having regard to the whole of the evidence presented at trial and on the basis of the evidence that I do accept, whether I am convinced beyond a reasonable doubt of the accused’s guilt.
[24] It is trite law that a trier of fact may believe all, none, or some of a witness’ evidence. A judge is entitled to accept parts of a witness’ evidence and reject other parts, and similarly the trier can accord different weight to different segments of the evidence that is accepted.
[25] Much of the evidence in this case is circumstantial. The relevant considerations must be applied in addressing the relationship between circumstantial evidence and proof beyond a reasonable doubt was discussed by the Supreme Court of Canada in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, [2016] S.C.J. No. 33, at paras. 35-38. See also the discussion in R. v. B. (S.), 2018 ONCA 807 at paras. 122-124.
Discussion:
[26] This was a very short trial. As mentioned, there is only one issue for my determination.
[27] Section 229 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, provides that murder has three essential elements, all of which Crown counsel must prove beyond a reasonable doubt. The first two are: that Firlotte caused Bailey’s death; that Bailey’s death was caused unlawfully. Those two elements have been conceded by the defence.
[28] The Crown relies on both s. 231(2) of the Criminal Code, planning and deliberation, and s. 231(5)(e) of the Code, forcible confinement, to raise the murder from second degree to first degree.
[29] In this case, the Crown and defence positions on the issue to be decided were clearly stated at the start of the trial; whether the Crown has proven that Firlotte had the requisite mens rea for murder. This means that Firlotte either intended to kill Bailey or intended to cause Bailey bodily harm that he knew was likely to cause Bailey’s death and he was reckless whether Bailey died or not.
[30] Proof of an increased degree of participation is necessary before the accused may be convicted of constructive first degree murder. The prosecution must prove that the accused has done a series of acts that are of such a nature that they must be considered as a substantial and integral cause of the victim’s death. He must play a very active role, usually a physical role in the killing: R. v. Harbottle, 1993 SCC 71, [1993] 3 S.C.R. 306. That being said, Firlotte’s degree of participation is not in dispute.
[31] The defence also concedes that the assault on Bailey was brutal, vicious and gratuitous, albeit without any intent to commit murder.
[32] In fact, given the concessions by the defence, I need not delve further into the other legal principles outlined in the jurisprudence to establish murder.
[33] The relevant evidence includes Bailey’s Black Ford Escape drove away from the Abduction Scene while Reza Antonio was on the phone with 911. Hamilton Police were dispatched to this location at 7:52 p.m. The call detail records indicate that Bailey’s cell phone accessed cell towers moving from the abduction scene towards the Body Recovery Scene between 7:57 p.m. and 8:17 p.m., and the call at 8:17 p.m. accessed a tower close to the Body Recovery Scene. It can be reasonably inferred that Firlotte arrived at the farmer’s field or Body Recovery Scene at approximately 8:17 p.m.
[34] The time from abduction to the Body Recovery scene where majority of injuries occurred is approximately 25 minutes. The exact route taken is unknown, however the most direct route is approximately a 25 - 27 minute drive. Bailey’s cell phone was used seven times between 7:57 p.m. and 9:10 p.m. after he was abducted.
[35] As cited earlier, during the Facebook Messenger call with Michkala Rogers (“Michkala”), Firlotte identified himself and stated that he had Bailey’s cell phone and his vehicle. He stated that they had kidnapped Bailey’s “mule” and were looking for Bailey because he owed them money. Firlotte also stated that Bailey was a “dead man” after hearing that Bailey owed her $300 as well. This evidence was uncontradicted. Unlike the concurrent call to Allan Bailey, (“Allan”), Michkala did not treat Firlotte’s statements in jest or as a non-sequitur.
[36] Bailey’s phone was first in the vicinity of the Body Recovery Scene at 8:17 p.m. The last call by either Bailey or Firlotte’s phone accessing a tower at this scene was at 8:42 p.m. It can reasonably be inferred that the time spent in the area of the Body Recovery Scene is at least 25 minutes (8:17 p.m. to 8:42 p.m.) and some additional time between until 8:54 p.m., which is the first time when either phone accesses a tower away from the Body Recovery Scene. Exactly how much of this time was spent in the field is unascertained.
[37] Firlotte and his accomplice entered the farmer’s field and drove deeper into the area until they encountered a drainage trench. The photographs suggest that the vehicle then turned and travelled parallel to the trench and stopped at the area of disturbance where the body was discovered. The vehicle stopped at this location in the field proximate to where the body lay. Bailey was removed from the vehicle where a further significant attack occurred. At this point, Bailey received significant blows to the body/head/face/top of head. These blows were delivered with hands, feet, and one or more weapons and included a machete that inflicted sharp force injuries (cuts/slices) to the hands.
[38] There are no markings in the field apart from where the body was found which form a trampled-down area surrounding the body. It can reasonably be inferred, and Dr. Shkrum agreed, that Bailey was delivered to that location and he never left that location in the field.
[39] Based on the duct tape found at the various scenes and the roll in the Ford Escape, it appears that Bailey was restrained by his ankles and potentially by his wrists. This is also in keeping with Mr. Katanic’s limited observations at the abduction scene. It can also be reasonably inferred that Bailey had duct tape around his head at some point as Dr. Shkrum agreed that this was a possibility.
[40] The clothing Bailey was wearing included his ripped T-shirt and jeans that were partially pulled down. According to Dr. Kocovski’s evidence, the temperature range from the time Bailey arrived to the scene until his body was discovered was cold enough to cause hypothermia. The weather report confirms and Dr. Shkrum agreed, that from the time Bailey arrived at the scene to when his body was discovered, the temperature remained below freezing, as it never rose above 0 degrees Celsius.
[41] I accept that although the precise time of death cannot be determined. Firlotte and his accomplice chose this rural area and left Bailey at this dark, remote location approximately 200 feet from the road. Firlotte or his accomplice had thrown Bailey’s shoes 12.47 meters to his right and 15.55 meters to his left.
[42] I am mindful of the onus on the Crown to prove intent to commit murder. Yet, as a part of the continuing transaction, there is no evidence to suggest that Firlotte or his unindicted accomplice left Bailey in the field with his own phone or means of transport to an urban, populated area for someone to find him, or drop him off somewhere he could get assistance for his injuries, or anonymously call for help. Or, re-use Bailey’s phone to text or call any of his contacts to let them know where he was situated. Firlotte or his accomplice had time to make two calls while in the area of the field.
[43] In her revised report of August 2020, Dr. Kocovski concluded that the cause of death is best understood as having resulted from the contributing effects of: multiple injuries; intoxication with fentanyl, cocaine, methamphetamine/amphetamine; cardiomegaly; and exposure to cold environment, or hypothermia.
[44] During her evidence, Dr. Kocovski stated that she never interpreted Bailey’s enlarged heart as a disease process. As Dr. Shkrum rightly pointed out, “large hearts are prone to developing abnormal heart rhythms and that in his setting that may have been a contributing factor with the other stressors, such as the drugs, the cold environment and also the adrenaline that would’ve been coursing through his system from the injuries”. According to Dr. Kocovski, “all those factors could have predisposed his large heart to a fatal heart rhythm causing death”.
[45] Dr. Kocovksi testified that the blunt force injuries, or the sharp force injuries, and the drugs alone were not fatal. However, being left in the field after sustaining multiple serious injuries, suffering mild traumatic brain injury, with the fentanyl in his system, and hypothermia could have adversely affected his enlarged heart to result in a fatal heart rhythm. According to Dr. Kocovski, all of these factors worked together in leading to Bailey’s death.
[46] Dr. Shkrum authored a Postmortem Report dated May 11, 2020 in order to “ascertain the significance of the scene, autopsy and toxicology findings in the determination of Bailey’s death”. Dr. Shkrum concluded that when he was “dumped” at the scene, Bailey could have had a diminished ability to move because of the effects of the mild head injury and the fentanyl in his system. Further, as Bailey lay in the field, the catecholamine effects of multiple factors – cocaine, methamphetamine, amphetamine, blunt and sharp force injuries triggered by hypothermia on his abnormally enlarged heart could have contributed to a fatal cardiac arrhythmia.
[47] Dr. Shkrum testified that the physical injuries suffered by Bailey were physiological stressors that contributed to Bailey’s cause of death. He also agreed that the below freezing temperature as well as Bailey being partially undressed, led him to conclude that hypothermia likely contributed to Bailey’s death. Finally, Dr. Shkrum testified that one must consider the injuries Bailey suffered in their entire context. This includes the stressors, the beating, his lowered level of consciousness, the drugs in his system and his heart, which rendered him incapable of removing himself from the scene. As Bailey lay there in the field, Dr. Shkrum opined that Bailey would have required some type of medical intervention.
Application of the Facts to the Legal Principles:
[48] My analysis requires consideration of the degree of concurrency between the wrongful act and the requisite mens rea.
[49] In order to obtain a conviction under s. 229(a)(ii) the Crown must prove that the accused caused and intended to cause bodily harm that he knows was likely to cause death of the victim. If death results from a series of wrongful acts that are part of a single transaction, then it must be established that the requisite intent coincided at some point with the wrongful acts.
[50] In R. v. Cooper, 1993 SCC 147, [1993] 1 S.C.R. 146, [1993] S.C.J. No. 8, at paras. 19 - 22, the Supreme Court stated clearly that it is not necessary for the guilty act and the intent to be completely concurrent. The court relied upon two English decisions.[^1] The principles that emerge from Cooper include: A series of acts may be part of one continuing transaction; It is not always necessary that the requisite mens rea persist throughout the commission of the wrongful act; It is sufficient that the intent and wrongful act coincide at some point; It is not required that the Crown prove a persistent or continued awareness of a likelihood of death right up to the moment of death or until the precise moment when it is established that death is likely to occur.
[51] In the proper case, an assault resulting in grievous bodily harm, (without the intent for murder), and where the accused knew or was willfully blind to the fact that the victim was alive; I accept that if further acts or omissions of the accused such as intentionally transporting the victim or leaving him or her in an area where one would be fully exposed to the elements with inadequate clothing could amount to murderous intent: R. v. Frederickson, [2013] B.C.J. No. 2435, (B.C.S.C.) at para. 117, relying on R. v. Bradley, [1956] S.C.J. No. 5.
[52] In R. v. Bigras, [2004] O.J. No. 3528, 2004 CarswellOnt 3527, (C.A.), the accused moved for a directed verdict on the murder charge on the basis that while there was evidence that they had beaten the deceased “to teach him a lesson”, there was no evidence from which a jury could find the requisite intention to kill him. The trial judge accepted the submission and removed murder from consideration by the jury. The Crown appealed. The appeal was allowed and Court of Appeal ruled at paras. 12 - 17:
Despite the absence of evidence of words spoken by any of the accused regarding their intentions with regard to the victim, there was evidence of conduct from which their intentions could be inferred.
To survive the motion for a directed verdict of acquittal to second degree murder pursuant to s. 229(a)(ii), the Crown had to lead evidence from which a properly instructed jury could reasonably infer that each of the respondents intended to cause Cleroux bodily harm that he knew was likely to cause Cleroux's death and that he was reckless whether death ensued or not. In my view, there was evidence from which a properly instructed jury could reasonably infer that mental state.
I point to the following facts that, in my view, taken cumulatively, could provide a reasonable basis for the inference of the requisite intention for second-degree murder:
(1) Cleroux was bound with tape and an electric cord, leaving him Defenceless to the blows that were administered to his head.
(2) The fatal injuries were not the product of an unprovoked or spontaneous outburst of violence and there was considerable evidence of a planned and deliberate attack.
(3) There was evidence from which the jury could infer that the respondents collectively decided to pay Cleroux back for his attack on Bigras and to prevent him from causing further trouble.
(4) They waited for Cleroux to return to his residence and then set upon him.
(5) The respondents took Cleroux to a remote location on a December night and left him alone, bound and severely beaten, either dead or dying, without hope of rescue from the consequences of his injuries or from the elements.
The trial judge's reasons indicate that he failed to weigh in the balance what was perhaps the most telling evidence against the respondents. Not only were they parties to the beating on Cleroux: they left him, bound and either dead or dying, in a remote location near Ottawa on a December night in circumstances in which help was unlikely to come his way and would be difficult if not impossible to summon.
In my view, given the trial judge's proper finding that the jury could find the respondents all to be parties within the meaning of s. 21 to forcible confinement and the unlawful assault, it matters not that the Crown's evidence pointed to Larivière as the source of the lethal blows. The respondents participated in the forcible confinement of Cleroux that enabled Larivière to punch and kick Cleroux in the head. From their continued participation in the attack on Cleroux from the time it started at his house until it ended at the cabin, by keeping him bound and confined and by taking him to the cabin where Larivière repeated his attack, the jury could infer that they were willing participants with the requisite intention for second degree murder.
I conclude, accordingly, that the trial judge erred in directing an acquittal to the charge of second-degree murder.
See also: R. v. Shevaley, 2019 BCCA 296.
[53] It is settled law that a trier of fact may infer a state of mind, such as intention from the doing of an act. Where the prosecution proves that an accused engaged in conduct, the natural consequence of which would be a certain result, in the absence of evidence of an explanation, the trier of fact may infer that the accused engaged in such conduct with the intent alleged.
[54] I am satisfied beyond a reasonable doubt on all the evidence that the common unlawful design alleged in fact existed and Scalzo was a participant in the abduction and beating of the deceased.
[55] During the discussion Bailey had with Firlotte on October 18, 2017, regarding the botched drug deal, Bailey appears to refer to the original deal where he had to calm down someone involved in the deal because he “had been smoking meth”. Firlotte communicated with Bailey about ensuring that everything goes smoothly this time. Bailey describes how and where the deal will take place. Nevertheless, it seems that Firlotte was scammed again.
[56] As a result, Firlotte developed a plan to respond to this drug rip-off. The plan involved a public attack with his accomplice who lured Bailey to a public location where he was removed from his vehicle, bound and then placed in his own vehicle. The plan morphed into being driven to a remote location with attempts to recover monies owed by the deceased.
[57] I find that Firlotte made the impugned phone calls to Michkala and Allan and others at the relevant time.[^2]
[58] I draw the reasonable inference based upon the phone calls that took place during the abduction that Bailey did or said something that escalated the intensity of the already violent plan. In context, it is argued that Bailey was pretending to be a runner named Brian rather than “Jonathan Bailey”, despite the fact that he appeared in the parking lot in response to Firlotte’s plan, in Bailey’s vehicle, with identification and his phone. I agree with the Crown that any actions on the deceased’s behalf, if in fact they did occur, did not deflect the attackers, it intensified their attack and their intent. Weapons were not observed by eye witnesses or on surveillance images. It is reasonable to infer that resort to weapons was not initially contemplated. During the course of the abduction the intensity of the plan elevates to include not only threats to murder, but also action including utilizing weapons at hand. At the Abduction Scene, while eyewitnesses observe assaults by both assailants with punches and kicks, an examination of the recovered Bailey vehicle revealed a relatively small amount of blood staining.
[59] The scene of the recovery of the deceased’s remains and an examination of his remains and clothing demonstrated that a significant blood-letting event occurred in the field. Dr. Kocovski identified sharp force injuries to the hand of the deceased that were caused by a slicing action. The injuries are lined up in a series that are parallel and appear on both hands. Due to the greater presence of nerves in the hand, the injuries would have been very painful and debilitating.
[60] It is related to the motive identified in the phone calls and the reason that abductors say they will resort to murder if their goal is frustrated. Dr. Kocovski agreed that the machete found in the driver’s side of the recovered vehicle, which had mud and the deceased’s blood on it, could have been used to cause the sharp force injuries.
[61] I accept both pathologists’ opinion that Bailey was still alive when he was left in the field in a rural area in the middle of the night. While the exact cause of death is determined to be a combination of factors, it is clear that the beating with resulting blunt and sharp force injuries, and the location where the deceased was left in the cold environment was a substantial, contributing, albeit not a determinative cause of Bailey’s demise. Of course, I accept that there were other factors that may not have been readily apparent to the accused.
[62] Due to multiple blows to the head, Bailey suffered some injury to his brain. Dr. Kocovski testified that this injury could lead to impaired consciousness, due to the whipping motion of the head back and forth, side to side or torsionally as blows are delivered causing the brain to hit the inside of the skull.
[63] Bailey suffered a broken sternum and severe bleeding from a blow to the chest. This demonstrates the level of forcefulness of the blows he received. Bailey’s hands were severely sliced, causing debilitation of his ability to open and close and therefore use his hands. Bailey’s eyes were swollen shut. I am persuaded that the attack was carried out on a victim rendered unconscious and vulnerable.
[64] As mentioned, the outdoor temperature from the time Bailey was transported to the field until recovery of his remains ranged from 0.6 degree Celsius at the time he arrived at the field to below 0 degree Celsius until his remains were discovered. These temperatures were described by Dr. Kocovski as being within the range capable of leading to hypothermia in a person exposed to the elements with inadequate clothing. Recall that hypothermia was found by both forensic pathologists to be one contributing cause of death.
[65] It is reasonable to infer that the ring of silver duct tape had been around Bailey’s head. These were likely placed on Bailey during the abduction as the ring of duct tape and the four strips of duct tape were located upright and close to the deceased’s head and not in a flattened or crushed state. Bailey was left by Firlotte and his accomplice lying semi-conscious or unconscious, eyes swollen shut, hands debilitated in mud and blood in a t-shirt, with no shoes, cell-phone or vehicle.
[66] With respect, I must disagree with defence counsel’s assertions regarding the scene. The farmer’s field where Bailey was killed was in a sparsely populated rural area. When the abductors drove into the field they drove as far as they could before being faced with a drainage ditch. Thereafter they drove parallel to the ditch before circling and stopping. The attack occurred in a small area proximate to the place where Bailey was removed from the vehicle. The deceased was bound with duct tape, at least on some parts of his body. In pitch darkness, in the middle of a rural field, Bailey would not be observed by anyone from the road for hours. I accept that Firlotte and his accomplice sought out this remote location and drove as far as they could into the farmer’s field to deliver a brutal beating so that Bailey could not be rescued or aided during the attack or soon thereafter.
[67] Further, of significance is the evidence wherein Rogers told the accused that Bailey owed her money and did not pay her back. In response, Firlotte said “oh, okay, he owes you money too? He’s a dead man.”
[68] Firlotte informed Allan that he was “looking for John” and “[W]ell, we got his runner, Brian and we’re lookin for John, he owes us money. If we didn’t get our money John’s a dead man”. The caller then put the so-called runner “Brian” on the phone for two or three seconds and he confirmed that they had him. “Brian” said “if you know where John is please tell them because they’re saying they’re going to kill me if not.” Alan believed that it was the same speaker on the phone and that Bailey owned him money as well.
[69] I reject the assertions that the statements to Michaela and Allan were, as the defence described, merely intended to intimate the recipient in order to collect on a debt. The accused’s statements speak directly to his intention at the most relevant time during the course of the continuing transaction. Whether or not the focus was on the deceased or the so-called “runner”, I agree with the Crown that the situation escalated in the vehicle culminating with the severe beating in the field.
[70] Firlotte was a sane and sober person and intended the natural consequence of his actions. His timely text messages or conversations during the actual course of Bailey’s abduction to both Allan, and in particular to Michkala, speak volumes as to his intention. A reasonable inference is that this severe and brutal beating is evidence of the escalation of intensity of the attack and elevation to the requisite intent for murder.
[71] If I am in error as to accused’s intent by virtue of his communications whilst on route from Hamilton to West Lincoln; the fact that with the cold November evening temperatures, suffering the debilitating consequences of his beating at the hands of the accused, leaving the victim alive and in a helpless and vulnerable state to the elements, away from a rural road in pitch darkness, without prospect of aid or assistance, amounts to murderous intent flowing from the authority in Bradley and its progeny.
Conclusion:
[72] The Crown has established that Firlotte subjectively intended to cause Bailey bodily harm that he knew was likely to cause Bailey’s death and was reckless whether Bailey died or not. In applying the requisite legal criteria, I am satisfied beyond a reasonable doubt that Firlotte had the state of mind required for murder.
[73] The defence concedes a forcible confinement by virtue of Bailey’s abduction. This satisfies the elements for constructive first degree murder pursuant to s. 231(5)(e) of the Criminal Code. As such, I need not develop any further analysis on the issue of planning and deliberation.
[74] Therefore, I find Kyle Firlotte guilty of first degree murder. A conviction shall be registered on the indictment.
A.J. Goodman J.
Date: October 9, 2020
COURT FILE NO.: CR 19-334
DATE: 2020/10/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and -
KYLE FIRLOTTE
Accused
REASONS FOR JUDGMENT
A. J. GOODMAN, J.
Date: October 9, 2020
[^1]: Fagan v Metropolitan Police Commissioner, [1968] 3 All E.R. 442, (D.C.), Meli v. R., [1954] 1 W.L.R. 228 (P.C.).
[^2]: If so, the trier of fact may consider in deciding whether the accused’s guilt has been proven, the acts or declarations of other likely participants, even unindicted co-conspirators I was not invited by the parties to consider the Carter analysis, (R. v. Carter, 1982 SCC 35, [1982] 1 S.C.R. 938). In any event, if I am in error as to the actual identity of the caller, I accept that Firlotte participated as a co-conspirator in the murder.