COURT FILE NO.: CR-18-00000015-0000

DATE: 201106

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BRANDON PHILLIP GEORGE BAPTISTE

Paul Layefsky and Lynn D. Ross, for the Crown

Anthony G. Bryant and David R. Newton, for the Defendant

HEARD at Belleville: 24-28, 31 August, 1-4, 8-11, 14-18 and 21-25 September 2020

MEW J. (orally)

REASONS FOR Decision

[1] Kenneth Ferrill was killed in the early hours of 2 April 2017 by a single gunshot wound to the torso.

[2] The fatal shot was fired by the defendant Brandon Baptiste from inside his home at Unit 1, 28 Deserontyon Drive, Tyendinaga Mohawk Territory out through a window on the front (and only) door leading into the unit.

[3] As a result of this incident, Mr. Baptiste stands charged with three offences, namely:

a. The second-degree murder of Kenneth Ferrill, contrary to section 235(1) of the Criminal Code of Canada;

b. Without lawful excuse, pointing a firearm (a rifle) at Jennifer Ferrill, contrary to section 87 of the Criminal Code; and

c. Possessing firearms (two rifles and a shotgun) without being the holder of a licence, contrary to section 91(1) of the Criminal Code.

[4] Mr. Baptiste pleaded not guilty to all three charges. The Crown and defence consented to trial by judge alone.

[5] The defence called no evidence. However, a three-hour, four-minute videotaped interview of the defendant by Detective Constable Gaston Thibodeau was admitted into evidence (reasons reported at 2020 ONSC 5677). In addition, certain admissions were made by the defendant pursuant to section 655 of the Criminal Code.

[6] Mr. Baptiste admits that the gun which he used was a JR Carbine rifle. A single nine-millimetre calibre bullet was used. The fired bullet was retrieved from the clothing of Mr. Ferrill. A shell casing was found and recovered by the police on the floor of the entrance hallway inside the unit occupied by Mr. Baptiste.

[7] There was no evidence of more than one shot being fired.

[8] A number of other important uncontested facts were placed on the record either by way of oral testimony or filed exhibits, including that, in addition to his possession of the JR Carbine rifle, Mr. Baptiste also had possession of two other firearms, a FN Browning .22 calibre rifle and a Remington Wingmaster 12-gauge shotgun. The latter items were found by the police during the execution of a search warrant at 28 Deserontyon Drive.

[9] Furthermore, searches of firearms registration records disclose that Brandon Baptiste did not have a licence to possess these firearms.

[10] While not acknowledging commission of the firearms possession charge, the defence does not contest that the evidence supports a finding that each element of that offence has been established.

[11] As a result, a finding of guilt on the third count on the indictment will be recorded.

Kenneth Ferrill

[12] Kenneth Ferrill was 43 years old when he died. He was a member of a large family. Many of the family members live in or near the Tyendinaga Mohawk Territory. He had two children of his own as well as four step-children. His brothers include, Joey (now deceased), Aaron and Terry Ferrill. His sisters included Sherry Rhode. She is married to Randy Rhode. Chevy Rhode, about whom more later, is the daughter of Sherry and Randy Rhode.

[13] Kenneth Ferrill was married to Jennifer Ferrill. They had a shared interest in riding motorcycles. They also ran a business called Best Price Fencing.

[14] Kenneth Ferrill was a big man. He was five feet, eleven inches tall and weighed 284 pounds. According to Jennifer Ferrill, he had a high tolerance for alcohol. As she put it, “he can drink a lot”. However, Mr. Ferrill was also diabetic and took pain controlling medication for bad knees and a bad back.

[15] Mr. Ferrill was the president of the Devil’s Syndicate Motorcycle Club, which he had helped found in March 2016. The motorcycle club had a clubhouse located on Old Highway 2 east of Belleville.

Brandon Baptiste

[16] The defendant was 25 years old at the time of the incident. He was in a common law relationship with Katie Anderson, which has since ended. They have one son together. Mr. Baptiste also has a daughter from another relationship.

[17] Mr. Baptiste is a status Indian who was born and lives in Tyendinaga Mohawk Territory. He owns two businesses, PeaceMaker 420, a company supplying cannabis related products and a business providing local security services.

[18] 28 Desorontyon Drive is a four-plex located in a development known locally as “the subdivision”. The defendant’s parents, Mario Baptiste Sr. and Kathy Baptiste, lived at 364 York Road, approximately 11 km to the west of the defendant’s residence. The business premises of PeaceMaker 420 are also located at 364 York Road.

[19] Mr. Baptiste’s nicknames include “Buzz”, “Buzzy” and “Merl”.

Events Giving Rise to the Charges Against Mr. Baptiste

[20] The events leading up to the death of Mr. Ferrill, and the consequential charges laid against Mr. Baptiste, involve a number of people, events and places.

A Night Out in Belleville

[21] Although there are some prior events which may have had a bearing on the mindset of some of the individuals involved, I will begin the narrative on the evening of Saturday 1 April 2017. A group of four women went for an evening out in Belleville. The accounts of what happened that evening – where the group went, how much alcohol was consumed, who spoke to and said what to whom – vary. However, some core facts of what occurred that evening can be stated with confidence.

[22] Chevy Rhode, Tara Fisher, Kaitlyn Anderson and Melissa Wells met up at Shoeless Joes in Belleville. Melissa Wells was the outsider in the group. She worked as an aesthetician at the same salon as Chevy Rhode and had accepted an invitation from Ms. Rhode to meet with her and her friends that evening. Kaitlyn (or “Katie”) Anderson was, as already noted, the girlfriend of the defendant at the time. They lived together at the Deserontyon Drive residence. Chevy Rhode and Katie had been friends for approximately five years. Ms. Rhode’s spouse is Sean Anderson, who is Katie Anderson’s brother. Tara Fisher, who has since passed away, was a friend of Ms. Anderson and Ms. Rhode.

[23] Some, if not all, of the women had dinner at Shoeless Joes. They then attempted to go to a club (although there was not consensus on which club it was) but could not gain admission because Tara Fisher did not have identification with her. Then they went onto Little Texas, a bar/restaurant. While accounts as to exactly what occurred there vary, after arriving at Little Texas, they discovered that the defendant was there, along with his cousin, Kyle Baptiste, a woman called Taylor Billings, who was a friend of Katie Anderson, and another woman.

[24] Accounts of what happened there vary, not only as between Ms. Wells, Ms. Anderson and Ms. Rhode, each of whom testified at trial, but, also, between aspects of their trial testimonies and what either or both of them said in their previous statements to the police and testimony at the preliminary inquiry. Suffice it to say that Katie Anderson was upset to encounter the defendant at Little Texas. She said the cause of her upset was that she did not know he would be there (according to Ms. Anderson, she had understood that Mr. Baptiste was going out to dinner and drinks with his cousin that evening but, seemingly, had not expected them to have female company). Words appear to have been exchanged between Ms. Anderson and the defendant at the time, although details of what was said by whom were not forthcoming. Video footage taken at Little Texas shows that the entire encounter lasted less than sixty seconds.

[25] By some accounts (but not Chevy Rhode’s), the women then went to another establishment where a further drink or drinks were had by each of them, before returning to Little Texas. Katie Anderson said that Ms. Rhode had told her that she was upset with Mr. Baptiste and wanted to go back to Little Texas to confront Taylor Billings. Ms. Rhode denies this. However, video footage from Little Texas does show Ms. Rhode returning, engaging verbally with Mr. Baptiste and then being removed by security.

[26] There is greater certainty about what happened next. In the parking lot outside Little Texas, there was a physical encounter involving Ms. Rhode and Mr. Baptiste. Ms. Anderson and Mr. Baptiste (by way of his police interview), regard Ms. Rhode as having started the encounter. Ms. Rhode claims that Mr. Baptiste was the aggressor, that he approached her from behind, spun her around and started hitting her. It is unclear who hit who and how many times. However, what is uncontested is that Chevy Rhode bit Mr. Baptiste, landed at least one punch on him and, according to her statement to the police (although denied by her at trial) she was scratching and digging her nails into him.

[27] Katie Anderson said that she was sober, and Chevy Rhode was drunk and aggressive. Indeed, Ms. Anderson said that before the return trip to Little Texas, she had taken over the driving because Ms. Rhode was too drunk.

[28] Chevy Rhode, on the other hand, says that she was sober, but that Katie Anderson seemed to be “very hyper” and “not sober”.

After Little Texas

[29] Following this incident in the Little Texas parking lot, the various parties involved dispersed. Melissa Wells went home. Katie Anderson, Tara Fisher and Chevy Rhode went in Chevy Rhode’s vehicle, which Ms. Anderson drove.

[30] They went first to the Desorontyon Drive residence. There Ms. Anderson retrieved her dog and a Dodge Caliber vehicle that she shared with the defendant.

[31] Jeff Gareau, a Belleville taxi driver, picked up Brandon Baptiste and another man, presumed to be Kyle Baptiste, at Little Texas at around 2:00 a.m. The front seat passenger (Mr. Baptiste) had what Mr. Gareau described as “a major bite” on his hand. Mr. Baptiste said that he had been bitten by “some girl”. The male in the back was going to Shannonville and was dropped off there. The defendant asked to be taken on to the subdivision. However, as the taxi approached York Road and Highway 49, Mr. Baptiste asked Mr. Gareau to take him on to an address on York Road instead. Mr. Gareau dropped his passenger off at the side of the road right by the business premises of PeaceMaker 420. He saw Mr. Baptiste head towards a house across the road.

[32] Mr. Baptiste told the police that he and Kyle had taken a taxi from Belleville. They had dropped Kyle Baptiste off and continued on to the Deserontyon Drive address. He said that when he got there, the Dodge Caliber and his dog were gone. The reference to his dog being gone suggests that he went into the house, something that Mr. Gareau did not mention. The cab would presumably have remained at Desorontyon Drive while Mr. Baptiste went inside. In any event, Mr. Baptiste eventually arrived by taxi at his parents’ house.

Saturday Night at the Devil’s Syndicate Clubhouse

[33] On the evening of Saturday 1 April 2017, there was a regular Saturday night party at the Devil’s Syndicate Clubhouse. It was attended by members of the club, their families and friends. A “probate” club member, Pat Lenex, was operating the bar.

[34] Jennifer and Kenneth Ferrill were at the party. They had arrived at 5:00 to 5:30 (according to Jennifer Ferrill). Before arriving, Jennifer Ferrill said that she had taken marijuana and then consumed more marijuana while she was there. (indeed, she acknowledged that she smokes pot “all day” and has done for thirty years). Both of them drank steadily throughout the evening. Drinks were served in red solo cups. Jennifer Ferrill was drinking vodka and grape juice. At trial she initially said that she was not keeping track of the number of drinks she had, but “had a lot”. When reminded that she had told the police that she had had twelve and fifteen drinks, she testified that she had probably more than that. She was drunk by the end of the evening. Kenneth Ferrill was drinking Caesars. Jennifer estimates that he had between twelve and fourteen drinks.

[35] Jennifer Ferrill’s weight at the time would have been 150 to 160 lbs.

[36] Normally, the Ferrills would be among the last to leave at the end of a Saturday night party. However, on this occasion, they left earlier. Jennifer Ferrill said that she was not paying close attention to the time, but estimates it was between 1:30 and 2:00 a.m. on 2 April. Jennifer Ferrill took a drink to go in a red solo cup. Pat Lenex came with them. Mr. Ferrill was driving his pickup truck. They dropped Mr. Lenex off in Belleville by the Airport Parkway.

Towards Village Variety

[37] Randy and Sherry Rhode had spent the evening of 1 April at the casino. They left the casino in the early hours of 2 April when they received a telephone call from their daughter Chevy. She was looking for her uncle, Ken Ferrill’s, telephone number. After Sherry Rhode had spoken to her daughter, she told her husband that Chevy was in trouble and that someone was following her. They drove home, changed vehicles and left again, heading east towards Shannonville.

[38] Kaitlyn Anderson, was in Ms. Rhode’s vehicle when Chevy Rhode called her parents to ask for Ken Ferrill’s phone number. They were en route from Belleville to Deserontyon Drive. Although Ms. Anderson said she at trial that she could not recall the content of that discussion, she had told police during an interview on 5 April 2017 that Chevy Rhode had said that she was going to tell her family that Mr. Baptiste had hit her.

[39] Ms. Anderson acknowledged at trial that she had a bad feeling about what would happen if Ms. Rhode called her family. She had had a prior “bad experience with them”. I will come back to that. Ms. Anderson said that she had come to believe that whenever there was a problem with one of the Ferrills, they would all come running.

[40] After picking up her dog, Ms. Anderson got into her car and followed the other vehicle, which was now being driven by Chevy Rhode. Ms. Anderson thought they were going straight to the house which Chevy Rhode shared with her brother, Sean. However, Chevy Rhode’s vehicle stopped at the Village Variety Store and Gas Bar located close to the intersection of Old Highway 2 and Shannonville Road.

[41] Cellular telephone records indicate that there were six calls between Chevy Rhode and Kenneth Ferrill between 12:12 a.m. and 2:36 a.m. The duration of two of those calls was four seconds or less from which it is inferred that no conversation actually took place. The first call was placed by Ms. Rhode at 2:12 a.m. Ms. Rhode claims not to remember what was discussed.

[42] Jennifer Ferrill said that her husband had been on the phone while they were driving Pat Lenex home. After they dropped him off, Mr. Ferrill told her that Chevy was calling him and that “Buzzy” was chasing her in the car. Mr. Ferrill showed Jennifer Ferrill a picture of Mr. Baptiste’s bitten hand that had been sent on Facebook Messenger. Mr. Ferrill told Jennifer that he had told Chevy to meet them at Village Variety.

[43] Between 2:18 a.m. and 2:25 a.m., there were a number of telephone and text communications between Kenneth Ferrill and the defendant. Phone records indicate that at 02:18:07, Mr. Ferrill texted the defendant “Hey what’s going on”. The response from the defendant’s phone was “Not vary fuckin good man”. A number of images were then sent including, according to Jennifer Ferrill, a photograph of Mr. Baptiste’s bitten hand. At 02:19:28, Mr. Ferrill messaged Mr. Baptiste “can u tell me what’s going on I heard some shit”. After two further text exchanges, there was then a five minute, twenty-eight second telephone call.

[44] Ms. Ferrill cannot recall what was said during that conversation.

[45] Kenneth Ferrill’s truck was a blue Dodge Ram. According to the time stamp on the security cameras at Village Variety, the Ferrill truck arrived at 2:45 a.m. The owner of Village Variety confirmed at trial that the time stamp on the video footage would have cooresponded with the time on his computer. While he believed time to accurately reflect the actual time, his computer time was not automatically synchronized with an internet clock. The Ferrill truck entered the parking area from Old Highway 2 and backed up to the North, to a place out of sight on the video recording. Jennifer Ferrill said that the Ferrill vehicle had backed up between two nearby buildings and a church so they would not be seen “when Buzzy shows up”. Ms. Ferrill did not explain why they were expecting Mr. Baptiste to show up.

[46] A minute or so after the Ferrill truck had arrived at Village Variety, Chevy Rhodes vehicle is shown entering the parking lot area, followed by Katie Anderson’s vehicle, which stops beside the Rhode vehicle. Soon afterwards, Kenneth and Jennifer Ferrill come into view on the video recording, walking towards the two cars. Mr. Ferrill is holding a long object with his left hand. Jennifer Ferrill says that she and her husband went over to Chevy Rhode’s vehicle to talk to her.

[47] In the meantime, the defendant had arrived at his parents’ house in Mr. Gareau’s taxi. Jamie Brant was there when he arrived. Mr. Baptiste explained that he provides a security service for certain business on the Territory and that Jamie Brant worked with him. After giving some sort of account of his evening to Jamie Brant, Mr. Brant reportedly said he was thirsty and suggested going to Jumping Johnnie’s, a 24-hour restaurant. They got into Mr. Baptiste’s Chevrolet Tahoe SUV, which had been parked at the York Road address. Mr. Brant was driving.

[48] As the Baptiste vehicle passed Village Variety, Mr. Baptiste saw his Dodge Caliber and Chevy Rhode’s vehicle in the parking lot.

[49] While the exact accounts of what happened, and in what order, vary somewhat, the security camera recording captures some, but not all, of the movements of the people and their vehicles.

[50] The Baptiste vehicle turned into the Village Variety parking lot and Mr. Baptiste got out. He told the police that he saw Mr. Ferrill but did not know where Mr. Ferrill had come from. According to the account which Mr. Baptiste gave to the police, Mr. Ferrill was standing, holding a club or a stick and saying something about Mr. Baptiste having hit Mr. Ferrill’s niece.

[51] Mr. Baptiste’s account to the police suggests a very short conversation before Mr. Baptiste headed back to his vehicle.

[52] Jennifer Ferrill’s account also has Mr. Baptiste getting out of his vehicle after first arriving. She said that her husband and Mr. Baptiste were hollering at each other but eventually shook hands.

[53] In his account to the police, Mr. Baptiste, after describing his brief conversation with Mr. Ferrill in the Village Variety parking lot, said that Mr. Ferrill started coming at him. Mr. Baptiste said that he got back into the Tahoe. The window was half way down. He says that Mr. Baptiste reached in through the window at him and Mr. Brant took off.

[54] Jennifer Ferrill also remembers Mr. Baptiste having got back into his vehicle after speaking to Mr. Ferrill. She expressed a distinct memory of Mr. Ferrill approaching the Baptiste vehicle and, upon seeing Mr. Brant saying “Do you remember me you fucking little goof”. She believes that Mr. Brant said something back to him.

[55] Jennifer Ferrill agreed with the suggestion that Mr. Ferrill had gone from friendly and jovial to swearing at the driver of pickup in a split second. She was standing behind her husband and remembers putting her hand on his shoulder. At the same time as Mr. Ferrill leaned through the window to try and grab Mr. Brant, Mr. Brant “floored” it and the Tahoe pulled away. She claims that as a result, Mr. Ferrill was hit in the head and her foot was run over.

[56] The video footage shows Ms. Ferrill being helped to her feet and walking after the departing Baptiste vehicle and throwing a long object – it looks like a stick - towards it. While Ms. Ferrill remembers getting off the ground, she does not recall then picking up a stick and throwing it in the direction of the Baptiste vehicle.

[57] The Baptiste vehicle then stopped and backed up before moving forward again. As the Baptiste vehicle starts forward for the second time, a person can be seen on the right-hand passenger side of the vehicle.

[58] According to Ms. Rhode, when the Baptiste vehicle came back in, it hit both Kenneth Ferrill and Jennifer Ferrill. They both fell down. Ms. Rhode said that although they were both able to get back up, Mr. Ferrill was limping afterwards. He told Ms. Rhode to go home and that he would follow. However, she said, her uncle did not seem upset.

[59] The witness accounts and footage confirm the departure of the various vehicles after this incident. The Baptiste vehicle turned left and disappeared onto Old Highway 2 in an easterly direction. Chevy Rhode’s vehicle, followed by Ms. Anderson’s, exit onto Old Highway 2 heading west, and then turning north onto Shannonville Road. The Ferrill truck exited onto Old Highway 2 heading west and continued straight through the intersection with Shannonville Road.

[60] Mr. Baptiste told the police that he and Mr. Brant drove the Tahoe back to Mr. Baptiste’s parents house. His thought was to take his mother’s car and drive it to the Deserontyon Drive residence. He explained to the officer that he figured that “they” were going to be looking for his Tahoe. But then he said that Mr. Brant suggested that they should not leave the Tahoe at Mr. Baptiste’s parents because “they” would drive by and do something to the vehicle in his parents’ driveway. Mr. Baptiste said that he agreed with this suggestion. Mr. Baptiste then drove his mother’s car to the Deserontyon Drive address, parking it in the parking lot beside the house. Mr. Brant drove the Tahoe and parked it in front of the house.

[61] Ms. Anderson and Ms. Rhode went to the house, near Roslin, which Ms. Rhode and Sean Anderson shared.

[62] Kenneth Ferrill’s vehicle did not, in fact, follow his niece home. Exactly where he went immediately after leaving Village Variety is unclear. Jennifer Ferrill described having a “dream” about where they went after leaving Village Variety. She asserted that she could not recall details because of her intoxication.

[63] Her next recollection of any particular location was driving on York Road. Assisted by having her memory refreshed with the statement she gave to police shortly after the incident, she said that they passed the residence of Mr. Baptiste’s parents and that they were going to Buzzy’s to beat the shit out of Jamie. She denies that she and Mr. Ferrill stopped anywhere on the way. Although their intended target was Jamie Brant, she added that if Buzzy decided to get involved he would have got a punch in the face.

[64] Ms. Ferrill described her husband as driving at highly dangerous speeds as they drove along York Road.

[65] After changing vehicles at their house, Sherry and Randy Rhode had become aware that everyone was meeting up at Village Variety. Sherry Rhode was on the phone. Among other information she gleaned was that someone was chasing their daughter. However, by the time they passed by Village Variety, they had heard that Chevy was already on her way home. Mr. Rhode said that he stayed on the road because Kenneth Ferrill was going down to Mr. Baptiste’s house. He did not know how many other people were doing the same thing. He understood that Mr. Ferrill was upset with Mr. Baptiste for some reason.

[66] There were a lot of other telephone calls and texts flying backwards and forwards. Somewhere along the way, Mr. Rhode was in communication with Aaron Ferrill. He understood that Aaron Ferrill was also on the way to Mr. Baptiste’s.

[67] Four minutes after the departures from Village Variety, there was a telephone call of 4:56 in duration between Kenneth Ferrill and Sherry or Randy Rhode. This call ended at 3:02:26. It appears to have overlapped, or perhaps been interrupted by, an incoming phone call from Chris Ferrill, Kenneth Ferrill’s nephew, which started at 2:59:51 and lasted for 1:44 until 3:01:35.

[68] Aaron Ferrill said that until he got a call from Randy Rhode, he did not know there was anything going on with Chevy Rhode, Mr. Baptiste or Kenneth Ferrill. Aaron Ferrill had been at the Devil’s Syndicate clubhouse earlier in the evening but had left by 10:30 or so. After being awoken at around 3:00 a.m. by the call from Randy Rhode, Aaron Ferrill got in his truck right away and went driving, looking for Kenneth.

[69] Chris Ferrill remembers getting a call in the early morning of 2 April and speaking to his uncle, Kenneth Ferrill. Kenneth was on the road, but Chris Ferrill claims that his uncle never really told him what he was doing. However, he put Jennifer Ferrill on the phone and she said something about her foot getting run over. Chris Ferrill claims that there was no discussion about where they were going. Telephone records show that at 2:59:51 Chris Ferrill made a call to Kenneth Ferrill’s phone. In his evidence-in-chief he suggested that the conversation was probably about his rotweiller dog but could have been about Jennifer Ferrill’s foot. However, under cross examination he said that in one of the telephone conversations which he had with his uncle that night, Kenneth Ferrill told him that there had been an incident between Mr. Baptiste and a female Ferrill family member. Kenneth Ferrill said that he would call Chris Ferrill back later.

[70] Chris Ferrill sent his uncle some texts. At 3:20:34 he wrote “wanna roll up on them tonight?”. He acknowledged that this was a reference to Mr. Baptiste. He believed that there had been a fight or something. A message at 3:23:19 stated “I’m ready I got my baseball bat says I’ll beat someone retarded with it just let me know I’m up”. Chris Ferrill acknowledged that this message also related to Mr. Baptiste. He also said that when he spoke to Jennifer and Kenneth Ferrill, he got the impression that they were in a hurry to go somewhere. Under cross-examination he agreed that Kenneth Ferrill had told him what had happened and agreed when it was put to him that he was prepared to join the activity in teaching Buzz a lesson because you can’t do that to a Ferrill. However, on re-examination, he said that he did not recall being told that Kenneth and Jennifer Ferrill were on a mission to find Mr. Baptiste.

[71] At 3:02:54, just 26 seconds after the call with Sherry or Randy Rhode terminated, Kenneth Ferrill attempted to contact Mr. Baptiste. A minute later at 3:04:00, Mr. Ferrill left a Facebook Messenger audio message. In a voice that was audibly angry, Mr. Ferrill said:

“Now it’s not fucking good bud now you’ve fucked with the wrong people. Call me now”

[72] There is no evidence as to whether or not Mr. Baptiste heard this message before the shooting incident.

[73] Having got back to Deserontyon Drive, Mr. Brant and Mr. Baptiste appear to have gone inside. Mr. Baptiste says he locked the front door.

[74] Mr. Baptiste’s telephone records indicate that he was on the phone with someone called “Carla” at 3:07:09. There was no evidence at trial as to who Carla is.

[75] The Ferrill vehicle arrived at the Desorontyon Drive residence. Based on the evidence of Jennifer Ferrill, the statement of Mr. Baptiste and the physical location of the Tahoe and other objects in the vicinity, the Ferrill vehicle rammed Mr. Baptiste’s vehicle three times. Photographs of the resting place of the Baptiste vehicle taken sometime later, show a garbage can and another pail lodged under the front bumper of the vehicle, and a partially knocked-over table. A blue bin appears to have been upended and there are knocked-over chairs. It would seem that these objects were struck or displaced by the Tahoe.

[76] Having got back to his house with Mr. Brant, Mr. Baptiste believed that someone had been in and gone through the house while he had been out. He had only been there for what seemed like four or five minutes before “they came back”. By “they” he meant Kenny and another individual. He could not say whether that other individual – presumably Jennifer - was a male or a female. He thought it was that person who had been driving the vehicle that rammed his Tahoe, and that while that was happening, Mr. Ferrill was coming towards his house on foot. Then Mr. Baptiste says he saw Mr. Ferrill go back to the Tahoe and hit it, before coming back towards the door of Mr. Baptiste’s house.

[77] Mr. Baptiste told the police that he was not sure whether, on the first approach Mr Ferrill made towards his house, he tried the door knob. He was worried that when Mr. Ferrill turned around and went back to the Tahoe that maybe he (Mr. Baptiste) left his keys in that vehicle.

[78] There was a light in the alcove outside the front door.

[79] Mr. Baptiste claims that the whole time that Mr. Ferrill was outside his house, he had a gun in his hand. He acknowledged that he could not see how Mr. Ferrill was holding the gun. He believed it was a rifle rather than a shotgun. Mr. Ferrill was yelling. There was also lots of banging going on. He believed that Mr. Ferrill either hit or attempted to hit the passenger door of the Tahoe with the butt of the gun.

[80] As Mr. Ferrill came back towards the front door for the second time, Mr. Baptiste claims that Mr. Ferrill raised the gun and pointed it at Mr. Baptiste, who remained inside his house on the other side of the glass windowed door.

[81] Mr. Baptiste asserts that he did not retrieve his rifle until the Ferrills started smashing things up outside. When he saw that Mr. Ferrill had a rifle, he got the JR Carbine. There was a single bullet sitting right by the butt of the stock. He told DC Thibodeau that he was not sure if he had any other 9mm ammunition at his house (a subsequent search indicated that he did). He loaded the bullet on the way down from the main floor level to the entrance hall. He was holding the gun low and ready but at no time brandishing it.

[82] The incident happened as soon as he got to the bottom of the stairs. He felt that he did not have enough time to do anything. He did not shoulder the weapon. He was adamant that he did not point the weapon at either Jennifer Ferrill or Kenneth Ferrill. He says that the only time the weapon got raised at all, it went off. He says he never closed an eye or aimed it (the weapon does have a laser but it was not hooked up).

[83] In his interview, Mr. Baptiste tried to explain how, when he saw Mr. Ferrill pointing a rifle at him, he raised his own gun. He said he was not standing straight. He agreed with DC Thibodeau that he “let a round go”. He pulled the trigger. He claimed, however, that he didn’t purposely mean to pull it.

[84] The only witness to the incident who testified at trial was Jennifer Ferrill. She, of course, was outside. She was pressed up against a wall and would not have been able to see Mr. Baptiste or his actions at the moment the bullet was fired.

[85] I pause to note that, based on her weight at the time and her reported alcohol consumption, a toxicologist from the Centre for Forensic Science, who testified at trial, estimated that Jennifer Ferrill’s blood alcohol concentration at 2:30 a.m. on 2 April 2017 would have ranged anywhere from 95mg to 480mg/100mL of blood. Such a person would be significantly intoxicated, although someone with a high tolerance could never the less appear to be sober, even at such levels.

[86] Kenneth Ferrill had a blood alcohol concentration of 71mg/100mL blood at the time of his death.

[87] Jennifer Ferrill testified that Kenneth Ferrill was driving their truck when they arrived at Mr. Baptiste’s house. She said that Mr. Ferrill smashed his vehicle into Mr. Baptiste’s vehicle three times.

[88] Ms. Ferrill had got out of the vehicle and was initially trying to break the rear passenger side window of the Tahoe with her fists. There was a blue recycling box next to the wall of the house which she picked up. She tried using it to break the window without success. She says that while she was doing this, an outside light came on. She then turned around and she says she saw Mr. Baptiste standing inside the door and slightly to the right. She claimed that he was holding a gun which was pointing at her. She said she was scared so she turned and put up against a cement wall. She was standing against the wall when her husband walked by her. She says that she did not have a chance to stop him. She says that she said “No baby he has a gun”.

[89] Then Kenneth Ferrill was shot.

[90] Ms. Ferrill acknowledged that her husband’s state of mind as he was bashing his vehicle into the rear of Mr. Baptiste’s vehicle was “upset”. Her description of events had Mr. Ferrill approaching the front door of the Baptiste residence just once. She denies that he was carrying anything in his hands, let alone a gun. According to her, Mr. Ferrill did not possess a gun and had no interest in guns.

[91] A search of the Ferrill vehicle and the area around it, conducted after the incident at a point on Highway 49 where it had stopped, located a 40.25inch stick on the roadside near the truck. A shorter stick was also retrieved from the back of the truck, measuring 37.5 inches.

After the Shooting

[92] Mr. Baptise told the police that he did not know whether his shot had hit Mr. Ferrill or not. There was some further noise after the incident which he thought was a continuation of the attacks on his vehicle. Then the Ferrill vehicle left.

[93] Mr. Baptiste said that he expected the Ferrills to return. He made reference to an incident that had occurred in January 2017. Katie Anderson had talked about the same incident in her testimony. On that occasion two men, who she believed were Ferrills or associated with them, turned up at the door and asked if Brandon was at home. She said there were six trucks outside. Although no one threatened her at the time, she felt threatened. She subsequently found out through Mr. Baptiste that the men had been looking for Jamie Brant.

[94] After the shooting incident, Mr. Baptiste said that he was concerned that the Ferrills would return. He and Mr. Brant therefore took Mr. Baptiste’s mother’s car and went to Mr. Baptiste’s parents’ residence. He took the JR Carbine rifle with him.

[95] Jennifer Ferrill testified that she was able to get her husband back into the truck into the passenger seat. She got into the driver’s seat. She backed the truck up along the front of the Baptiste residence to the parking lot/driveway and then drove west along Deserontyon Drive to Huron Brant Drive, and then north to Old Highway 2.

[96] The first 911 call was made at 3:14:32. On cross-examination Ms. Ferrill said that she was at the end of Huron Brant when she made that call. She said that for some reason the call dropped. She then tried Aaron Ferrill; again the call does not seem to be completed. Then called 911 again. She was just making a turn to go onto Highway 49 when she made this second 911 call. She got frustrated. They were asking “stupid questions”. She then called Aaron Ferrill again. She got through and told him that Kenneth had been shot. 911 called back. Ms. Ferrill said that the operator told her to put pressure on the wounded area. Ms. Ferrill explained that she was driving. The operator told her to pull over. Ms. Ferrill pulled over on the shoulder of the Highway 49 facing north. She took off the t-shirt she was wearing and applied pressure to Mr. Ferrill’s abdomen.

[97] Emergency services arrived soon after. First, Constable Corey Bowman of the O.P.P. Not long after that, First Nations Constable Sheldon (Sam) Maracle of the Tyendinaga Police Service. Followed, a few minutes later, an ambulance.

[98] Numerous other people soon descended on the scene. Members of the Ferrill family, alerted by a flurry of telephone calls and texts. Members of the Mohawk Fire Department. More police officers.

[99] For some time, Kenneth Ferrill remained in his vehicle while he was tended to by PC Bowman and then EMS staff. He remained conscious and was eventually transferred to an ambulance and taken to Kingston General Hospital. Unfortunately, he lost consciousness en route to Kingston. His vital signs were absent upon arrival at Kingston General Hospital and he was pronounced dead.

[100] Members of the Ferrill family who attended the scene were closely questioned by counsel for Mr. Baptiste to determine the extent to which there would have been opportunities for any weapon that Mr. Ferrill may have had with him to be removed from the scene. None of these witnesses either say that they saw a weapon or acknowledged having had any involvement with the removal of a weapon from Mr. Ferrill’s vehicle or the scene.

[101] Brandon Baptiste was arrested, without incident, at his parents’ residence at approximately 9:30 on the morning of 2 November. His father, Mario Baptiste Sr. handed over the JR Carbine rifle to the police soon after.

The Crown’s Theory of the Case

[102] The Crown asserts that Mr. Baptiste shot Mr. Ferrill in anger. Mr. Ferrill did not have a firearm. Nor did Jennifer Ferrill. Anticipating the reliance by Mr. Baptiste on self defence, the Crown refers to paragraph 54 of the recent decision by the Court of Appeal for Ontario in R v. Khill, 2020 ONCA 151 where the Court stated:

Absent a defensive or protective purpose, the rationale for the defence disappears. Vengeance, even if righteous, is blameworthy and cannot be camouflaged as self-defence.

[103] The Crown points to a number of angry emails sent by Mr. Baptiste following the Little Texas incident.

[104] At 2:10 a.m., having sent Sean Anderson a photo of his bitten hand, Mr. Baptiste wrote “Your girlfriend just fucking with me and I hope to God that you know that you’re going to suffer or repercussions from it so good luck” and, a few messages later “you fucking guys think I’m joking but I’m the type of guy to show up at someone’s placement pointman and fuck them right up I don’t give a fuck how big you are”.

[105] The message string continues “you know what Shawn you think I did come on down You dumb fuck Meet me” and then, a few more messages on “Kenny phone me told me tell I come down” and, at 2:41 a.m. “Lol you better not go out in any boats”, an apparent reference to a fatal boating incident, that Mr. Anderson interpreted as a threat.

[106] In the meantime, there had been an exchange of texts and one telephone conversation between Mr. Baptiste and Mr. Ferrill the logical inference, according to the Crown is that even prior to the incident at Village Variety, there was something going on between Mr. Baptiste and Mr. Ferrill.

[107] There was also an exchange of emails between Mr. Baptiste and Katie Anderson suggestive of an evolving domestic dispute between them, no doubt related to what happened earlier in the evening in Belleville. At 2:08, Mr. Baptiste sent an outgoing message – presumably to Kaitlyn Anderson “I goin slit your brothers fucking throat”.

[108] Even if, as may have been the case, some tension was momentarily relieved during the discussion which took place between Mr. Baptiste and Mr. Ferrill in the parking lot of Village Variety, things flared up again when Mr. Ferrill apprehended Jamie Brant driving the Tahoe. According to the Crown, the cumulative effect of these events was a heightened animus between Mr. Baptiste and Mr. Ferrill.

[109] The Crown suggests that the Ferrills’ arrival at 28 Deserontyon Drive and the subsequent smashing of Mr. Baptiste’s vehicle raised the temperature further.

[110] Even after he had been arrested and was being interviewed by DC Thibodeau, Mr. Baptiste remained angry, saying that he wanted Chevy Rhode charged for assaulting him and referring to the recently deceased Mr. Ferrill as “a loser”.

[111] The Crown further argues that Mr. Baptiste’s explanation of how the shooting occurred is unconvincing. Mr. Baptiste acknowledged that he was an experienced hunter. Yet he claimed that he did not intend to fire a shot. Why, then, the Crown asks, did he have his finger on the trigger? An experienced hunter would not have had his finger on the trigger of a rifle that was not being pointed or aimed at anything or anyone.

[112] The Crown postulates that Mr. Baptiste, an experienced hunter, with a clear view through the door and a firearm that was equipped with a flashlight, deliberately aimed a centre mass shot at Mr. Ferrill. The Crown invites the court to ask itself what are the odds of a bullet going through the window and striking Mr. Ferrill where it did, if the gun had been discharged in the manner described by Mr. Baptiste. The Crown also asks why Mr. Baptiste would have put himself in the line of fire when he could have been anywhere else in the house if Mr. Ferrill had ended up coming in.

[113] The Crown also questions Mr. Baptiste’s description of loading the gun on the stairs after he found a sole bullet. As was demonstrated by a forensic firearm specialist at trial, loading a single bullet into that type of weapon would require a deliberate series of actions that were inconsistent with Mr. Baptiste’s claim of an accident.

[114] The centre mass injury is, the Crown says, indicative of an intention on the part of Mr. Baptiste to kill Mr. Ferrill. That is second degree murder. Alternatively, if it was to be found that the defendant did not have the state of mind required for murder but, rather, fired out of rage with the intention of either hurting Mr. Ferrill or scaring him off, the evidence would still support a conviction for manslaughter.

The Defence Theory of the Case

[115] The defence argues that Mr. Baptiste acted in self defence. He was at home when he saw Kenneth Ferrill get out of his truck with a gun. He armed himself with a rifle and a single bullet which were kept in his home, but not for a dangerous purpose. As he got to the hallway, he saw Mr. Ferrill raise what he believed to be a gun and point it at him. Mr. Baptiste discharged his weapon – accidentally – in the midst of an effort to defend himself from an armed assault from a much larger, very angry man with a firearm.

[116] The Crown’s case is heavily reliant on the statement which Mr. Baptiste gave to DC Thibodeau and on the testimony of Jennifer Ferrill. That testimony was coloured by her rage, fueled in no small measure by her intoxication and perceived injury to her self esteem.

[117] The defence says that there is no evidence that a firearm was pointed at Jennifer Ferrill or trained on her. She looked inside the house and claims to have seen Mr. Baptiste holding a firearm pointed at her. However she quickly moved out of the way. Taking her evidence at its highest, what she saw was Mr. Baptiste with a firearm held in a certain position prior to Ms. Ferrill crossing across the front porch, which remained fixed in whatever position she claims to have seen it in as she continued to move. In other words, not trained on her.

[118] The defence makes the alternative argument that even if Mr. Ferrill did not actually have a gun, Mr. Baptiste’s subjective belief that he had a gun was reasonable.

[119] According to the defence, notable by its absence was any testimony from Jamie Brant, who was with Mr. Baptiste at Deserontyon Drive at the time of the shooting, from Kyle Baptiste who was with the defendant throughout the Belleville portion of the evening, or Taylor Billing, who the apparent cause of the fight between Mr. Baptiste and Chevy Rhode and who, it was speculated during the course of argument, might have been the “Carla” who Mr. Baptise was seemingly on the phone with around the time of the shooting incident.

[120] These gaps in the evidence are said to diminish the Crown’s case. Indeed the defence argues that it is open to the court to draw an adverse inference from the failure of the Crown to call these witnesses.

[121] In short, the defence argues that the Crown has failed to meet its onus of proving the guilt of Mr. Baptiste beyond a reasonable doubt.

Elements of the Offences Charged

Second Degree Murder

[122] Section 229 of the Criminal Code provides that culpable homicide is murder where the person who causes the death of a human being means to cause his death, or means to cause bodily harm that he knows is likely to cause death, and is reckless whether death ensues or not.

[123] The Crown must prove each of the essential elements of second degree murder beyond reasonable doubt which, applied to the present case, requires the Crown to prove:

a. That Mr. Baptiste caused Mr. Ferrill’s death;

b. That Mr. Baptiste caused Mr. Ferrill’s death unlawfully; and

c. That Mr. Baptiste had the state of mind required for murder.

[124] Mr. Baptiste admits that he caused Mr. Ferrill’s death but denies that he did so unlawfully. He says that Mr. Ferrill’s death occurred while he (Mr. Baptiste) was defending himself against the actual or threatened use of force against him. Alternatively, he argues that what happened to Mr. Ferrill happened by accident.

[125] The law does not require Mr. Baptiste to prove that he was acting in lawful defence or protection of himself or that what happened to Mr. Ferrill was an accident. Rather, the Crown must prove beyond a reasonable doubt that Mr. Baptiste was not acting in lawful defence or protection of himself, or must prove beyond a reasonable doubt that what happened to Mr. Ferrill was not an accident.

[126] Section 34(2) of the Criminal Code provides that in determining whether and act said to have been committed in self defence 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 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 use of force; and

h. Whether the act committed was in response to a use or threat of force that the person knew was lawful.

[127] If the Crown is able to prove beyond a reasonable doubt that Mr. Baptiste caused Mr. Ferrill’s death unlawfully, to secure a conviction for second degree murder, the Crown must then prove beyond a reasonable doubt that Mr. Baptiste had the state of mind required for murder. This requires the Crown to prove that Mr. Baptiste either meant to kill Mr. Ferrill, or meant to cause Mr. Ferrill bodily harm that Mr. Baptiste knew was likely to kill Mr. Ferrill, and was reckless whether Mr. Ferrill died or not.

[128] If the Crown cannot establish the requisite state of mind for murder, Mr. Baptiste would be guilty of manslaughter.

Pointing a Firearm

[129] Section 87 of the Criminal Code makes it an offence to, without lawful excuse, point a firearm at another person, whether the firearm is loaded or unloaded.

[130] To secure a finding of guilt on this charge, the Crown must prove beyond a reasonable doubt each of the following elements of the offence:

a. That Brandon Baptiste pointed a firearm;

b. That Brandon Baptiste pointed a firearm at Jennifer Ferrill;

c. That Brandon Baptiste had no lawful excuse for pointing the firearm.

[131] To point a firearm means to direct or aim it intentionally. Not accidently, absent mindedly or simply by chance. Pointing involves a choice, an intentional act of directing the weapon towards a person or object as a target: Justice David Watt, Watt’s Manual of Criminal Jury Instructions, 2^nd ed. (Toronto: Carswell, 2015), at p. 496.

[132] Mr. Baptiste asserts that he did not point a firearm. Even if it is found that he did, it is argued on his behalf that he did not point a firearm at Jennifer Ferrill. And were it to be found that he did point a firearm at Jennifer Ferrill, it is argued that he had a lawful excuse to do so given the exigent circumstance which he was facing at the time.

Discussion and Analysis

[133] The ultimate aim of any trial is to seek and ascertain the truth. The search for truth in a criminal trial is undertaken to determine whether an accused is, beyond a reasonable doubt, guilty of the crime or crimes with which he is charged. For an accused person to be convicted, the evidence presented in court must be sufficiently convincing that the trier of fact – in the present case the Judge – is satisfied beyond a reasonable doubt that the accused is guilty: R v. Nikolovski, 1996 158 (SCC), [1996] 3 S.C.R. 1197, at para 13.

[134] As in any other criminal case, a person accused of a crime is presumed innocent. That presumption can only be displaced if the Crown proves the guilt of the accused – in this case Brandon Baptiste – beyond a reasonable doubt.

[135] Proof beyond a reasonable doubt does not mean proof to a standard of absolute certainty. But the standard of beyond a reasonable doubt falls much closer to absolute certainty than to probable guilt.

[136] Probably or likely guilt is not enough. As Molloy J. observed in R. v. Nyznik, 2017 ONSC 4392, at para 7:

If all I can say is that the defendants in this case are likely guilty, I must acquit. It would not be safe to convict someone of a criminal offence with only that degree of confidence. Before I can find the defendants guilty, I must be sure that they committed the offence charged.

[137] To find Mr. Baptiste guilty on any one or more of the charges that have been laid against him I must, therefore, consider all of the evidence relevant to each charge that has been admitted at this trial and, having done so, be satisfied beyond a reasonable doubt that the offence charged has been committed. I can only consider the evidence that is before the court. I cannot speculate about evidence that was not presented or what witnesses who were not called might or might not have said.

[138] The burden of proof lies upon the Crown throughout. Mr. Baptiste is not required to provide evidence or to prove anything in this case. Indeed, the defence elected not to call any evidence at all. Nevertheless, as part its case, a statement given by Mr. Baptiste to Detective Constable Thibodeau was admitted into evidence.

[139] The divergent accounts of certain events provided, on the one side, by Mr. Baptiste in his statement to DC Thibodeau and, on the other side, by the rest of the evidence tendered by the Crown, engages the analytical process enunciated by the Supreme Court of Canada in R v. W (D), 1991 93 (SCC), [1991] 1 S.C.R. 742 which, paraphrased, requires me to ask and answer these questions:

1. Do I believe Brandon Baptiste’s evidence as reflected in his statement to DC Thibodeau that he did not commit the offences charged? If I do, I must acquit him.

2. If I do not believe Mr. Baptiste’s statement on the essential elements of the offences, but it leaves me with a reasonable doubt about his guilt, or, about an essential element of any of the offences charged, I must acquit him.

3. Even if Mr. Baptiste’s statement does not leave me with a reasonable doubt of his guilt, or about an essential element of any of the offences he has been charged with, am I convinced beyond a reasonable doubt of the guilt of Mr. Baptiste on the basis of the evidence which I do accept?

[140] A considerable amount of time at trial was devoted to what happened in the hours leading up to Mr. Ferrill’s death. Those events were recounted through the testimony of various participants, including, but not limited to, Jennifer Ferrill, Aaron Ferrill, Andrew Ferrill, Chris Ferrill, Randy Rhode, Sean Anderson, Kaitlyn Anderson, Chevy Rhode and Melissa Wells.

[141] The mindset of Kenneth Ferrill and that of Brandon Baptiste are significant factors in assessing the events that led up to Mr. Ferrill being shot by Mr. Baptiste.

[142] It was Katie Anderson that made the observation that whenever there was a problem with one of the Ferrills they would all come running. That is what appears to have been evolving in the early hours of 2 April 2017.

[143] Following a number of telephone communications, Kenneth Ferrill had become aware that Chevy Rhode, his niece, had been involved in some sort of altercation involving Brandon Baptiste. Mr. Ferrill told Chevy Rhode to meet him at Village Variety. He also spoke and texted with Brandon Baptiste.

[144] The security video shows Mr. Ferrill backing up his truck out of sight. According to Jennifer Ferrill, this was done in order that Mr. Baptiste, who by some accounts had been said to be following Chevy Road, would not see them parked there.

[145] Trouble was already brewing.

[146] Not long after Mr. Ferrill’s arrival, Chevy Rhode and her retinue turned up in two vehicles, one of which was the Dodge Caliber owned by Mr. Baptiste but, on the evening in question, being used by Katie Anderson. The video shows Mr. Ferrill walking towards where the two cars containing the women had stopped. He is carrying what appears to be a large stick like object.

[147] Mr. Baptiste arrived not long after. He was a passenger in his own SUV, which was being driven by his friend Jamie Brant.

[148] There was history involving Mr. Baptiste and the Ferrills. On 1 January, five truck loads of individuals, thought by Katie Anderson to be Ferrills or members of their entourage, had turned up at the Deserontyon Drive residence, asking for Mr. Baptiste. Mr. Baptiste was not home and the men left after a few minutes. Ms. Anderson was subsequently told by Mr. Baptiste that the Ferrills were looking for Jamie Brant.

[149] Mr. Baptiste said nothing in his statement to Detective Constable Thibodeau about the Village Variety being one of his destinations that evening. He said that he and Mr. Brant were on their way to a Jumping Johnnie’s for refreshment. However, they pulled into the Village Variety lot. According to Mr. Baptiste, this was because he saw the Dodge Caliber there.

[150] An encounter of some sort ensued. Exactly what was said and by whom is unclear. However, according to at least one version of events – albeit from Jennifer Ferrill, likely not the most reliable witness because of her intoxication – Mr. Baptiste and Mr. Ferrill shook hands. This drop in the temperature, if it in fact occurred, was short-lived. Mr. Ferrill reacted with apparent anger when he became aware that Mr. Baptiste was with Mr. Brant. Mr. Ferrill tried to grab Mr. Brant. Mr. Brant drove away. One or both of Jennifer and Kenneth Ferrill fell to the ground. Ms. Ferrill can be seen angrily throwing a stick at the Baptiste vehicle as it departs. A little later a person can be seen walking back towards the Ferrill truck carrying a long object.

[151] Within minutes following the departures from Village Variety, Kenneth Ferrill was on the telephone with either Sherry or Randy Rhode. This call appears to overlap with an incoming call from Chris Ferrill. Then, as already noted, Mr. Ferrill tries to contact Brandon Baptiste. He ended up leaving an audio message on Facebook Messenger. I would describe the tone of Mr. Ferrill’s voice in that message as angry and menacing.

[152] While it is not known what was said between Kenneth Ferrill, Sherry or Randy Rhode, and Chris Ferrill, subsequent texts sent by Chris Ferrill suggest that further activity was planned; “wanna role up on them tonight???”, Chris Ferrill texted and “I’m ready I got my baseball bat says I’ll beat someone retarded with it just let me know I’m up”.

[153] Randy Rhode was also part of the call to action. He called Aaron Ferrill to bring him into the loop.

[154] Within very few more minutes, Mr. Ferrill was deliberately ramming his truck into the back of Mr. Baptiste’s Tahoe outside the front of Mr. Baptiste’s home. Jennifer Ferrill said that they were after Jamie Brant. But if Mr. Baptiste got in the way, he would get it as well.

[155] While Mr. Baptiste thought that the other person in the Ferrill vehicle – presumably Jennifer Ferrill – was driving at the time that the Ferrill vehicle was ramming the Tahoe, I accept Jennifer Ferrill’s evidence that Mr. Ferrill was driving.

[156] Brandon Baptiste had already had an eventful night. He had been confronted by his partner when she found him out with Taylor Billings. He had experienced a physical altercation with Chevy Rhode. He was aware that Kenneth Ferrill had been drawn into an escalating circus of messages and threats.

[157] Mr. Baptiste, was also angry. His exchange of text messages with Sean Anderson and Katie Anderson are indicative of that.

[158] Mr. Baptiste’s account of what happened at Village Variety does not accord with Jennifer Ferrill’s. He recounted Mr. Ferrill standing there with what he described as a “club” accusing Mr. Baptiste of hitting his niece. He figured Mr. Ferrill was going to “wack me with this big stick”.

[159] Regardless of whose version of events is closer to the truth, it seems that Jamie Brant pulled away after Mr. Ferrill leaned into the Tahoe and that this action caused one or both of Jennifer and Kenneth Ferrill to fall to the ground.

[160] After the incident at Village Variety, there was every reason for Mr. Baptiste to be expecting more trouble. He anticipated that Mr. Ferrill would be coming for him. He knew from previous experience that if he did, Mr. Ferrill might not be alone.

[161] Rather than run the risk of Mr. Ferrill seeing the Tahoe parked at his parents’ house, Mr. Baptiste and Mr. Brant went to Deserontyon Drive. Mr. Baptiste drove his mother’s car. Mr. Brant drove the Tahoe.

[162] The telephone records indicate that it was a very few minutes before Kenneth Ferrill and Jennifer Ferrill arrived.

[163] According to Mr. Baptiste, he had locked the front door. He may have been on the phone with Carla, whoever she is.

[164] Aside from the physical evidence – the displaced Tahoe, the single bullet hole in the door to the Deserontyon Drive residence, the shell casing on the floor – there are two accounts of what happened during the approximately three minutes that appears to have elapsed between the arrival and departure of the Ferrill vehicle. On the one hand, there is the statement of Mr. Baptiste, given to D.C. Thibodeau a little more than 24 hours after the incident. A statement untested by cross-examination. The other account is that of Jennifer Ferrill, her perspective infused with alcohol and anger. There is good reason to doubt the reliability of each of these accounts.

[165] Mr. Baptiste’s account has him getting back to his residence with Mr. Brant. He is anticipating trouble. Yet he is on the phone to Carla. He has three weapons and plenty of ammunition in his residence. He says that he does not arm himself until he hears the commotion outside and sees Mr. Ferrill with what Mr. Baptiste perceives to be a weapon.

[166] The Crown argues that the way Mr. Baptiste describes how the shooting occurred makes no sense. The Crown asks, rhetorically, would someone like Mr. Baptiste, experienced in using guns, end up doing something like this by accident. He had his finger on the trigger, something that an experienced person would only do if they intended to discharge the weapon. In his demonstration to D.C. Thibodeau, the Crown suggests that Mr. Baptiste has him pointing the gun in different directions. The Crown asks, “what are the odds of a bullet going through the window and striking Mr. Ferrill where it did”, submitting that Mr. Baptiste’s account is simply not true.

[167] I share some of the concerns that the Crown has raised about Mr. Baptiste’s account. I cannot be confident that events occurred in the manner described by him. Following the W(D) analysis, I cannot ground my decision on whether Mr. Baptiste is guilty or not on the basis of his statement to D.C. Thibodeau.

[168] I am not persuaded on the evidence that Mr. Baptiste’s discharge of his weapon was accidental. Instead of retreating out of harm’s way and calling 911 (as the Crown suggests he should have), he had come down the stairs from the living area of the house to the entrance hallway. Mr. Ferrill was on the other side of the door, ultimately advancing in Mr. Baptiste’s direction. Mr. Baptiste had a loaded weapon with his finger on the trigger. Under those circumstances, I am satisfied that the discharge of his weapon was not an accident.

[169] Was it self-defence?

[170] I have already referred to the provisions of section 34(2) of the Criminal Code which lists relevant circumstances which are to be taken into account when considering whether the act claimed to be in self-defence was reasonable in the circumstances.

[171] Mr. Baptiste submits that the nature of the force or threat faced by him was patent. Mr. Ferrill, he says, was armed with a firearm and was pointing it at Mr. Baptiste.

[172] I am not satisfied on the evidence that Mr. Ferrill was carrying a gun when he approached Mr. Baptiste’s front door. Throughout the cross-examination of members of the Ferrill family, the defence attempted to advance the theory that, between Village Variety and Deserontyon Drive, Mr. Ferrill may have picked up a weapon and that, subsequently, after the shooting, the weapon was removed from the Ferrill vehicle by a member of the Ferrill family.

[173] None of the witnesses at trial associated Mr. Ferrill with the possession or use of firearms. There is no evidence that he owned guns or that he used guns. There is no evidence that the Ferrills picked up a gun on their way to Desorontyon Drive, or that a gun was removed from the Ferrill vehicle after the incident.

[174] What I do find, however, is that Mr. Ferrill was angry – very angry - that his behaviour was extremely threatening, and that it is likely that he was carrying a weapon in the form of a stick.

[175] Having regard to section 34(2)(b), I agree with the defence that the use of force by Mr. Ferrill was clearly imminent. While Mr. Baptiste could, perhaps, have retreated further into his house and called 911, as the Crown suggests, realistically, it was more likely, and reasonable in the circumstances, that Mr. Baptiste would respond to the potential use of force by arming himself in order to protect himself and Mr. Brant if needed.

[176] Mr. Baptiste’s role in provoking Mr. Ferrill’s anger was limited. Although Mr. Ferrill left an enraged voicemail message for Mr. Baptiste minutes before he launched his attack at Desorontyon Drive, the principal object of Mr. Ferrill’s anger was Jamie Brant.

[177] In relation to subparagraph (d), while I do not find that Mr. Ferrill used or threatened to use a gun, I do find that he was brandishing a weapon in the form of a stick. And I cannot rule out the possibility that, in the middle of the night, albeit with the benefit of illumination from a single light bulb, and in circumstances of high tension and possibly panic, Mr. Baptiste may have genuinely thought that Mr. Ferrill had a gun.

[178] The size, age, gender and physical capabilities of the parties are also a factor. Although Mr. Baptiste evidently liked to portray himself as a tough guy, he was no physical match for Mr. Ferrill, who was almost double his weight. Mr. Ferrill was someone you did not mess with.

[179] Both the recent and long-term history of dealings between Mr. Baptiste and Mr. Ferrill was such that there was a reasonable basis for Mr. Baptiste to believe that Mr. Ferrill intended to perpetrate violence against Mr. Baptiste and Mr. Brant.

[180] In R. v. Khill, 2020 ONCA 151, Doherty J.A. observed, at paras. 57-58:

[57] Section 34(2) directs that, in determining the reasonableness of the accused’s act, the court must consider “the relevant circumstances of the person, the other parties and the act”. This language signals that the reasonableness inquiry in s. 34(1)(c), like the reasonableness inquiry in s. 34(1)(a), blends objective and subjective considerations.

[58] The “relevant circumstances of the accused” in s. 34(2) can include mistaken beliefs held by the accused. If the court has determined, under s. 34(1)(a), the accused believed wrongly, but on reasonable grounds, force was being used or threatened against him, that finding is relevant to, and often an important consideration in, the court’s assessment under s. 34(1)(c) of the reasonableness of “the act in the circumstances”.

[181] While I am not prepared to accept that things unfolded in exactly the manner described by Mr. Baptiste in his interview with D.C. Thibodeau, I do accept that things happened quickly. The whole transaction, from the arrival of the Ferrills to their departure, occurred in approximately three minutes. For all of his bravado, I accept that the situation was a threatening one from Mr. Baptiste’s perspective. Mr. Ferrill had already used force against Mr. Baptiste’s property by using his truck to repeatedly ram Mr. Baptiste’s vehicle. He had a weapon, even if it was not a gun. He was not approaching the house for a friendly chat. He intended to threaten and, quite possibly, to do violence. Once Mr. Ferrill got inside the Baptiste residence, there would have been no escape for Mr. Baptiste.

[182] Whether Mr. Baptiste raised the gun to his shoulder, took aim and fired, or whether his discharge of the weapon was less precise, I find that the Crown has failed to prove beyond a reasonable doubt that his purpose in discharging his weapon was not to defend himself and Mr. Brant from the use or threat of force, and that his actions were not reasonable in all of the circumstances.

[183] It follows that the Crown has not proved that Mr. Baptiste acted unlawfully when he killed Mr. Ferrill.

[184] I therefore find him not guilty on the charge of second degree murder.

[185] On the charge of pointing a weapon at Jennifer Ferrill, there are obvious concerns about the quality of her evidence.

[186] In R. v. Savich, [1979] A.J. No. 654 (Alta Q.B.), it was held that:

… the gravamen of the offence created by s. 84(1) of the Criminal Code is the menacing or threatening use of a firearm …

[187] It is sufficient that a firearm be pointed in a general way towards the complainant: R. v. Phillips, 2009 2922 (ON SC); R. v. Jakubowych (1968) 1968 997 (AB KB), 66 W.W.R. 755 (Alta S.C.); R. v. Minish, [1984] S.J. No. 468 (Q.B.).

[188] Jennifer Ferrill’s account is the only evidence about what happened (other than Mr. Baptiste’s statement). She says she was initially attracted to what was going on inside the house by the sudden or unexpected illumination of the outdoor light. But other evidence points to that light having been on at all material times. She then moved and turned to look inside the house, and it was then that she claims to have seen the firearm pointed at her by Mr. Baptiste. She testified that she then quickly moved out of the way.

[189] It follows from the findings that I have already made that Mr. Baptiste was in the hallway of his residence and had a gun. At some point in time, the gun fired a shot through the door which struck Mr. Ferrill, ultimately leading to Mr. Ferrill’s death. Mr. Baptiste is not, however, charged with pointing a firearm at Mr. Ferrill. Rather, the charge is of pointing a firearm at Jennifer Ferrill. I cannot be confident from her evidence that Mr. Baptiste had his gun trained on her. Indeed, I cannot be confident about where she was at any time that Mr. Baptiste had his weapon raised or pointed at or in the general direction of either of the people outside of his house.

[190] In short, I cannot be satisfied beyond a reasonable doubt that Brandon Baptiste pointed a firearm at Jennifer Ferrill.

[191] Even if I am wrong about that, to the extent that Mr. Baptiste may have raised his firearm, he did so in self-defence and therefore, for the purposes of the point firearm charge, with lawful excuse.

[192] I therefore find Mr. Baptiste not guilty on the point firearm charge.

[193] As I indicated early on in my reasons, there will be a finding of guilt on the third count on the indictment, namely that Mr. Baptiste possessed two rifles and a shotgun without being the holder of a licence, contrary to section 91(1) of the Criminal Code.

[194] Let me add two comments.

[195] First, the defence invited me to draw an adverse inference from the failure by the Crown to call Taylor Billing, Kyle Baptiste or Jamie Brant to testify. I decline to do so. The Court of Appeal in R. v. D.E., 2018 ONCA 883, has made it very clear that a trier of fact should draw an adverse inference from the failure of a party to call a witness only with the greatest caution. Because, based on the evidence that is before the court, the Crown has failed to meet its burden of proof on the first and second counts on the indictment, it would be redundant for me to comment further on the absence of these witnesses.

[196] Second, and in conclusion, the events of 2 April 2017 were tragic. Kenneth Ferrill’s life was needlessly lost. I very much hope that, with the benefit of mature reflection, Mr. Baptiste now deeply regrets the events of that night notwithstanding some of the ill-chosen sentiments which he expressed in his interview with D.C. Thibodeau. Any loss of life is tragic. A needless loss of life, arising from a dispute over nothing of consequence, fuelled by anger and testosterone, is a particular tragedy. While I cannot be satisfied beyond a reasonable doubt that the requisite elements of second-degree murder have been established and, in particular, that there is no reasonable possibility that Mr. Baptiste acted in self defence, Mr. Baptiste will have to live the rest of his life knowing that he was responsible for another human being’s death.

Mew J.

Handed down (orally): 6 November 2020

COURT FILE NO.: CR-18-00000015-00

DATE: 201106

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

BRANDON PHILLIP GEORGE BAPTISTE

REASONS FOR DECISION

Mew J.

Handed down (orally): 6 November 2020