R. v. Smeltzer, 2021 ONSC 4878

COURT FILE NO.: 19-70

DATE: Oral 2021/07/5

Written 2021/07/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Brandon Smeltzer

Defendant

Isabel Blanchard and Elaine Evans, counsel for the Crown

Paolo Giancaterino, counsel for the Defendant

HEARD: April 12,13,14,15,16,19,20,21, 22,23,26,27,28,29,30/2021 May 3,4,5,6,7,10,11,13,26, 28/2021

reasons for judgment

Lacelle, j.

I. Introduction

[1] Brandon Smeltzer stands charged with the first degree murder of Emilie Maheu. Ms. Maheu and the accused were domestic partners who had been separated for a number of months at the time of the murder. They shared a young daughter, E., who was just shy of her 2nd birthday when Ms. Maheu was killed.

[2] Mr. Smeltzer admits that he intentionally killed Ms. Maheu and that he is guilty of second degree murder. The Crown has rejected his plea to that offence and seeks to prove its case for first degree murder. The Crown argues that the killing was planned and deliberate, and that it was committed in the course of an unlawful confinement.

[3] Accordingly, the central issues in the trial relate to whether the Crown has proved beyond a reasonable doubt either of these routes to a finding of first degree murder.

II. Overview of the evidence

[4] There are a number of facts that are not in dispute in this case. They include the following.

[5] The victim was killed by the accused near the town of Alexandria, Ontario, on October 11th, 2018.

[6] The victim and the accused met in Nova Scotia and lived together there for a period of time. Their daughter E. was born in December of 2016.

[7] The victim left Nova Scotia with E. in March of 2018, which was roughly 7 months before she was killed.

[8] In the time the victim was in Ontario with E., the accused and the victim were in conflict over parenting issues relating to E., including the time the accused would have with E. In July of 2018, the victim filed an application in Family court seeking sole custody and child support.

[9] During the time she had returned to Ontario, the victim was struggling financially. She had a credit card debt that was causing her significant stress. At the time of her death, she was seeking the accused’s assistance in discharging that debt.

[10] In mid-August of 2018, the victim started a relationship with a friend from her high school days, Patrick Viau. Mr. Viau moved into the victim’s apartment with the victim and E. about a month after starting the relationship. The accused met Mr. Viau and was aware of the relationship. In and around the time of the final court appearance on October 1st, the accused, the victim, Mr. Viau and E. all went apple picking together. During the outing, E. at one point dropped the accused’s hand and took that of Mr. Viau.

[11] At some point around this time, the accused told the victim that he was dying of cancer and had only a few months to live. This was untrue.

[12] On October 10th, 2018, the accused unexpectedly attended the victim’s apartment. Mr. Viau was present. The accused told them he had done something bad in Nova Scotia and was on the run from police. The accused was wearing black and carrying a knife.

[13] After some time, everyone travelled into Cornwall so the accused could attend the bank with the victim to pay off the credit card debt. However, when they arrived, the bank had closed.

[14] The accused spent the night at the victim’s apartment so that the next day he and the victim could go to the bank to deal with the credit card debt. The accused slept on the couch while the victim and Mr. Viau slept in their bedroom.

[15] The next day, the accused went to the victim’s workplace. From there, he and the victim left her workplace in the accused’s vehicle. They travelled country roads. After driving about twenty minutes, the accused pulled the car over on a country road surrounded by farmland. He got out of the vehicle and opened the trunk. The accused smoked a joint sitting on the edge of the open trunk. The victim got out of the car. She went to the trunk area where the accused was located.

[16] The accused says he then hugged the victim and picked her up and threw her in the trunk. At this point he tried to strangle her. Then, he took a sawed-off shotgun from the trunk of his car, loaded it and shot the victim in the chest, also hitting her hand. The accused then reloaded the gun and shot the victim in the head.

[17] After killing the victim, the accused travelled directly to Nova Scotia with the victim’s body still in the trunk. He had left his cell phone in Nova Scotia and used a burner phone for his trip to Ontario. Upon returning to his residence, he replied to various calls he had received on his cell phone from the victim’s friends and family asking if he knew where the victim was. He returned those calls and said he did not know where the victim was.

[18] The accused then returned to Ontario in the same vehicle, with the victim’s body still in the trunk. Once in Ontario, he selected a cornfield not far from where he had killed the victim and disposed of her body. Then he attended at the police detachment where he gave a statement saying that he and the victim were supposed to meet at the bank. He said the victim had not shown up and he returned to Nova Scotia.

[19] The victim’s body was found the next day, on October 13th, 2018.

[20] By October 16th, 2018, the accused had told his family he had killed the victim. On that date, while stating he was intending to commit suicide, he spoke to two different police officers and admitted to killing the victim. He was convinced to turn himself into police that night.

[21] Later on October 18th, 2018, the accused did a videotaped interview with police where he also admitted to killing the victim. The next day he showed officers the route taken by him and the victim and the location where he shot the victim. A shotgun shell was subsequently found at that location.

A. Overview of the accused’s statements

[22] The Crown has adduced various statements made by the accused to various individuals. They are outlined below.

Statements October 12th, 2018

The statements to police when the victim was missing

[23] The accused’s first interactions with police occurred when the victim was missing. Police sought to speak to him to learn if he knew anything about the victim’s whereabouts. On October 12th, 2018, he told an officer in Nova Scotia and police in Ontario that he had no knowledge of where she was.

[24] The accused provided a similar account of his last dealings with the victim to the officers in both provinces. In brief, his account was that he had come to Ontario to help the victim pay off her debt. He had stayed overnight at her apartment. She was supposed to meet him at the bank in Cornwall on October 11th after finishing her workday. He travelled to the bank and waited for her for two hours, but she never showed up. He then returned to Nova Scotia.

The phone call with Karina Quesnel

[25] The accused spoke with the victim’s best friend, Karina Quesnel, as he was driving back to Ontario from Nova Scotia with the victim’s body in the trunk of the car on October 12th, 2018. At the suggestion of police, Ms. Quesnel recorded the call.

[26] The accused told Ms. Quesnel he had been supposed to meet the victim at the bank in Cornwall, that he had waited for two hours, she hadn’t shown up, and he had driven right back to Nova Scotia.

[27] During this call, the accused told Karina that he knew it “looked bad” on him because he was the last person to see her, and because “we all know that I hated her guts so bad like before we talked in August”. He said: “Karina, like I told you in your house in your kitchen … I could have had a hole in my bladder and she can be on fire and I wouldn’t have pissed her out”. He went on to say: “the whole way it went down I just I couldn’t stand looking at her, but it got better like with the months that passed”. He said that it had gotten ten times better.

[28] During the call, the accused also referenced having cancer and said he was still unsure about whether he would “do chemo”.

[29] Eventually, Karina asked him to let her know if he heard anything, and the call ended.

Statements October 16th, 2018

The statements to the staff at the Flying J

[30] A few days after the victim’s body was found, the accused repeated his earlier account of events to two staff members, April Fitzgerald and Theresa Lapierre, at a local truck stop. He spoke to them on October 16th, 2018 at about 9:22 a.m.

[31] By this point, the news of a missing woman who had been found dead in a cornfield had spread in the community.

[32] The accused showed one of the staff members a picture of his daughter on his phone. He told the staff members that the woman who was found in the field was his “baby’s mama”. He said that he and the victim’s current boyfriend were both suspects in the investigation. He said that he had nothing to hide. He told them he consented to the police searching his vehicle.

[33] One of the witnesses, Ms. Fitzgerald, said that the accused was providing them with a lot of information. He told the women he had no problem with the victim moving back to Alexandria. He also told them the victim’s friends were expressing concerns on Facebook about her current boyfriend. Throughout the conversation, he seemed calm and collected. She described him as calm and chatty.

[34] The accused told them he was supposed to meet the victim at the bank to repay $6,000 in credit card debt. He told them the victim had received a text from her current boyfriend saying he didn’t like that they were in the car together. He said he took her back to her workplace and this was the last he saw her. He waited for her at the bank, but she never showed up.

[35] The accused also told these women that he had stage four prostate cancer and had until the end of the year to live.

The phone call with Sgt. Anderson

[36] By October 16th, it appears that the accused’s family had travelled to the Cornwall area and were staying with him at a motel. At some point, the accused told his family that he had killed the victim. He also took his mother’s car and left the motel. In the early evening, his mother called the police and reported she was concerned for her son’s safety.

[37] Sgt. Anderson, an officer from the Cornwall Police Service who was uninvolved in the murder investigation, sent a text to the accused to check on his safety at 7:22 p.m. It was his understanding that the accused was possibly suicidal. In the text, the officer told the accused that his parents were worried about him. The officer asked the accused to text him back.

[38] Fifteen minutes later, the accused called Sgt. Anderson. First, they spoke about the concern that the accused was suicidal. Then the accused said he suspected the police were going to arrest him. At one point, he made a comment that he had “blown Emilie’s brains out”. Sgt. Anderson pulled his vehicle over and started to record the call.

[39] Once recording, the officer suggested to the accused that “bad things happen you know and sometimes spur of the moment things happen”. The accused responded: “spur of the moment no … things just don’t happen. You don’t pick Emilie up off the [unintelligible], throw her in the trunk of a car, strangle with your own fucking bare hands and put two fucking shotgun shells into her … no things don’t just happen”. Sgt. Anderson then said, “so this this wasn’t a spur of the moment thing?”.

[40] At this point, the call was ended by the accused who reported that Mario (a.k.a. D/Sgt. Fedele) was calling.

[41] Sgt. Anderson described the accused as sounding troubled and like he was having a hard time. He agreed with the suggestion by defence counsel that the accused was emotional with him during the call.

The phone calls with D/Sgt. Fedele

[42] D/Sgt. Fedele had a number of dealings with the accused throughout the investigation. On October 16th, 2018, he spoke with the accused in the morning at about 10 a.m. The accused wanted to know if police had found anything in the search of his vehicle. The accused was also concerned about E., as he had been throughout his dealings with the officer. He wanted to know if he could have her and take her in his charge. The officer again explained that the CAS would not approve that at that point.

[43] The accused called a few more times during the day but the officer didn’t pick up.

[44] The officer was later made aware that the accused’s mother had called Cornwall Police. The information provided was that there was concern the accused was going to kill himself. The officer tried to contact the accused on his cell phone.

[45] As I have already stated, D/Sgt. Fedele called the accused as he was on the phone with Sgt. Anderson. The accused answered the call. At this point, the conversation was unrecorded because the officer was travelling in his vehicle. He testified that the accused told him that he couldn’t live with what he did, that he had killed the victim, and now he wanted to join her.

[46] D/Sgt. Fedele testified that the accused started yelling it was her fault, she had taken E. away and she shouldn’t have done that, and that he was almost blaming her. He was saying he was going to hurt himself. The officer told him that E. shouldn’t lose both parents. He tried to instill the theme with the accused that killing himself was not a solution. This communication went on for about 4 minutes before the officer lost the call signal.

[47] The officer made his way to an OPP detachment so that he could reconnect and record his conversation with the accused. In the subsequently recorded portion of the conversation with the officer, the accused said the following things:

a. Emilie ran away and took him to court and he tried to be okay with it but he wasn’t. He loved those two girls more than anything.

b. He couldn’t get over Emilie. Knowing that another guy was around his daughter did not sit well with him.

c. He came up to help her pay off her debt and they did go to the bank [the day before he killed her].

d. That night he was up all night and couldn’t sleep – “you know how it feels to sleep on a couch when your ex-girlfriend and her new partner was sleeping in the bed that you used to sleep in”.

e. He went to the victim’s workplace and from there they drove off. He suggested they take the back roads.

f. They went and they “got there” and were “somewheres in the back roads”. His heart started racing and he went and popped the trunk open and smoked a joint.

g. He was standing and Emilie came in to give him a hug and he picked her up and threw her in the trunk. She said you’re not fucking serious, and he said “yup”. Then he “choked her out” and “blew one shell”. He thought he got one of her fingers in her chest. Then he “blew another one into her brains” and he “blew her brains” and “it blew her eyes open”. This all occurred while the victim was in the trunk of his car.

h. He then closed the trunk and drove away with the victim still in the trunk. He brought her all the way to Nova Scotia.

i. When asked why he did that, he said it was because he wanted to take her into the house and set her down on the floor against the wall. He was going to get his rifle and blow his brains out right beside her so they could be a family again.

j. When asked if anyone else was involved, the accused said: “nope I was alone in all this I could not ask anyone else to do this buddy”.

k. The accused said that, when he came down, his plan was initially just to help the victim with the debt. The officer responded that he was trying to understand where it went wrong, what changed, so that he went from wanting to help the victim to killing her. The accused said: “Seeing how E. was with Pat … it was more this time … they were more huggy and kissy … don’t be hugging and kissing but no Pat couldn’t handle that … he was just being a total fucking asshole and enough was enough and I made sure that if I wasn’t gonna have my daughter or my girls neither of us were gonna and now I said that for uh for a fucking long while I said it in my head and said it in my head said it in my head and I said no I can’t do that I I’d never be able to do that well they pushed me to the fucking limit that I fucking was able to do it”.

l. At another point, the accused said to the officer: “do you know how hard it is to be driving in my truck twenty-four seven just to fucking pay a lawyer bill to see my daughter over Face Time … and Emilie’s just sitting there fucking on welfare and fucking as high as a fucking uh uh sitting there high fucking royalty … she’s on welfare her lawyer is paid for do you know how bad it feels when you make too much and you gotta fucking pay your own lawyer that you don’t even have the fucking money for? … I finally snapped man and that’s all it is is I snapped I’m a big boy I’m a big fucking branch bud and she finally snapped this fucking branch in two … and that’s all it is”.

m. The officer then went on to ask: “was it just what happened that night that like had you said when you woke up that morning it was it was over it was done you were gonna do it or was it something she said during the ride or”. The accused responded: “No uh it was when I woke up that day it was it was done”.

n. The accused told the officer that his family knew that he had killed Emilie and that he was killing himself that night.

o. A few moments later, the accused told the officer that if the victim didn’t have Pat, if Pat didn’t have to “fucking rub it in” his face and be “all fucking lovey dovey” while he was around, this wouldn’t have happened.

[48] The officer again told the accused he shouldn’t kill himself and asked him to think about the consequences of that decision for his family and E. He suggested to the accused that it was still possible for him to have a relationship with E. The accused said he wanted to speak with his family to get their opinions and promised to call the officer before he did anything stupid.

[49] By the end of their contact that day, the accused agreed to turn himself in. He was arrested that night in Grand Falls, New Brunswick.

Statement October 18th, 2018

The videotaped statement by D/Sgt. Fedele

[50] Police flew to New Brunswick to assume custody of the accused, who turned himself in at an RCMP detachment. On his return to Ontario, he was interviewed on video by D/Sgt. Fedele.

[51] In this statement, the accused again described how he killed the victim. He told the officer a number of things, including:

a. They were driving on a dirt road having a conversation and the victim was going on about Pat.

b. His heart started racing. He had a joint in the car and he pulled over. He popped the trunk and sat on the car trunk because he doesn’t smoke in the car.

c. The victim came and gave him a hug. He doesn’t know what snapped or how it snapped or anything at all. All he remembers is picking her up and her saying “really”. He said “yeah”, then his hand was around her neck. Then she struggled and she gouged him. He showed the officer a mark on his body and said it had healed now. He told the officer he then “blew the two shotgun shells into her”.

d. A grey truck drove by. He had blood on his hand, and something in her hand was bleeding. He drove off. He was in a daze.

e. He drove to Nova Scotia, stopping at the gas stations he had told the officer about previously. Once home, he was planning to “blow his brains out” because he loved her that bad and he just wanted to go back with her.

[52] As for when he decided to kill the victim, during this statement, the accused said it wasn’t until he and Emilie were talking during the car ride and she said she and Pat wanted to have kids that he was “pushed over the limit”. The officer confronted him with the fact that, a few days earlier, the accused had told the officer he knew he was going to do it that morning. The accused said he didn’t remember saying that and that he was in shock. He said he snapped and that the breaking point was when the victim was in the car talking about her and Pat having kids.

[53] During this statement, the accused also said that the reason he had left his cell phone at home was because he was planning to do a cigarette run in order to pay for the loan he was planning to take out to pay the victim’s debt. He also said this was why he had taken the license plate off his car and had a sawed-off shotgun in the trunk.

B. The ante-mortem statements of the victim

[54] Various ante-mortem statements made by the victim have been admitted in the trial evidence. The statements relate to the victim’s relationship with the accused. Amongst other things, they contain allegations that:

a. The accused had hit the victim while they were living in Nova Scotia – she reported this to both her best friend Ms. Quesnel and to her step-mother Ms. Lemieux;

b. The victim was concerned about how far the accused would go in their dispute about parenting E.;

c. The accused had said to the victim that if he couldn’t have E., no one would;

d. The victim was engaging in controlling behaviour and she was concerned he would find out about her relationship with Mr. Viau; and

e. On the day she was killed, and before Mr. Viau left for work, she asked him to stay home because she was scared to be alone with the accused; that the accused was scaring her and she thought he knew it; and that she felt ill.

C. Additional evidence

[55] Additional evidence was given by the pathologist who examined the victim’s body and a CFS firearms analyst.

[56] The court also had the benefit of various visual materials, including a video made of the route travelled by the accused and the victim to the location where she was killed, and aerial footage of the area.

III. The positions of the parties

The Crown

[57] The Crown argues that it has proved that the accused committed first degree murder beyond a reasonable doubt, because the murder was both planned and deliberate, and committed in the course of a forcible confinement.

[58] The Crown’s theory is that the relationship between the victim and the accused was troubled and abusive prior to her leaving Nova Scotia. After the victim left Nova Scotia and moved to Ontario with their daughter E., the accused became resentful toward her. While the victim was in Ontario, they had a number of disputes relating to E. The victim was also experiencing significant financial stress and child support was an issue that led to conflict with the accused. The Crown argues that the accused also demonstrated controlling behaviour toward the victim, who worried about him finding out when she started seeing Mr. Viau.

[59] The Crown submits that the evidence shows that the accused never accepted the breakup with the victim or his diminished role in E.’s life, particularly once the victim got another boyfriend. His animosity and hatred for the victim grew. He tried to manipulate the victim, most notably when he lied to her and told her he had terminal cancer. The Crown argues that the accused eventually realized that his attempts at manipulation were unsuccessful, and his attempts at having more time with E. had failed. After E. let go of his hand and took Mr. Viau’s during the apple picking excursion, an act that broke his heart, he decided he had had enough and had nothing to lose. The Crown says that this is when the accused began the planning and deliberation of the victim’s murder.

[60] The Crown’s theory is that the accused attended Ontario on October 10th, 2018, planning to kill the victim upon arriving at her apartment. This is why he parked on a side road, was dressed all in black, and was carrying a knife. The Crown says that when he attended unexpectedly at the victim’s apartment, the accused did not expect that the victim’s boyfriend, Mr. Viau, would be there.

[61] The Crown maintains that the accused never intended to repay any of the funds owed on the victim’s credit card. The proposed trip to the bank was the perfect cover up for his plan to attend the victim’s apartment unexpectedly and to justify his presence if ever it was discovered that he had been in Ontario. However, his intention was to not be discovered. Accordingly, he left his cell phone at home, parked his vehicle on a side street, and took the license plate off his vehicle. The Crown theorizes that while the victim was working on October 11th, the accused selected the remote location where he would kill her.

[62] The Crown argues that other circumstantial evidence points to the fact that this murder was planned and deliberate. This evidence includes:

• the fact that, when he killed the victim, the accused had driven backroads in the opposite direction from where the bank was located;

• the choice to drive all the way back to Nova Scotia with the victim in his trunk;

• that after the murder, he acted consistently in pursuit of getting his daughter back into his custody and that this was part of his plan;

• his presence of mind after the murder in putting the license plate back on his vehicle and in keeping certain of the victim’s possessions, like the key to the safe where E.’s birth certificate was kept; and

• the detailed and fabricated account of his last dealings with the victim which he repeated to a number of individuals.

[63] The Crown rejects the notion that the accused ever intended to kill himself, and argues that his plan in driving the victim’s body back to Nova Scotia was to delay the police in finding her, which would give him time to bring E. back to Nova Scotia.

[64] The Crown further argues that the victim was forcibly confined prior to the murder. The Crown argues the confinement was made out because the victim was placed in the trunk. The Crown also argues that the court should find that the confinement started as soon as the victim entered the accused’s vehicle and was driven down country roads to a remote location from which she could not escape.

The defence

[65] The defence argues that the Crown has not proved any of planning and deliberation or the required elements of constructive murder beyond a reasonable doubt.

[66] The defence argues that the Crown must prove that the only reasonable inferences arising from the evidence prove that 1) the killing was planned and deliberate, or 2) that it occurred while he forcibly confined the victim. If there is a reasonable inference that he did neither, he must be acquitted of first degree murder and found guilty of second degree murder. The same result would be obtained if I have a reasonable doubt that the required elements of either of these two ways of proving first degree murder have not been proved beyond a reasonable doubt. The defence submits that looking at the evidence, and absence of evidence, critically and as a whole, “1 or 2 are not the only reasonable inferences”.

[67] The defence submits that where a case rests on circumstantial evidence, guilt has to be the only reasonable inference available on the evidence. Speculation is not permissible.

[68] With respect to the issues of planning and deliberation, the defence emphasizes that a murder committed on an impulse, even with an intention to kill, is not a planned murder. A planned murder is one that has been carefully thought out before it is committed. The requirement that the murder be “deliberate” means that it is considered, not impulsive, carefully thought out, not hasty. The court must be satisfied that the actor has taken the time to weigh the advantages and disadvantages of his act. Of critical importance is that an intent to kill is not conflated with planning or deliberation, since it is distinct.

[69] The defence highlights the correct approach to the analysis of an accused’s out-of-court statements when they are introduced in evidence. In particular, the defence emphasizes that the court cannot operate based on a presumption that the inculpatory aspects of the statements are true. Where a statement contains both inculpatory and exculpatory elements, the exculpatory portion need only raise a reasonable doubt, even if the court disbelieves it. The court must conduct an analysis consistent with the principles of R v W.(D.), 1991 93 (SCC), [1991] 1 SCR 742 (SCC), and may accept some, all, or none of the evidence.

[70] As for the Crown’s theory of the case, while the defence says it is clear that the relationship between the victim and the accused disintegrated over time, the evidence does not establish the level of animus the Crown asserts, and certainly not a level of animus that would support a finding that the accused planned and deliberated the murder of the victim.

[71] The defence argues that the relationship needs to be looked at in context. Doing so shows that the accused was not the only instigator in disputes between him and the victim, and further shows that the victim was capable of using violence against him. It is also well-established on the evidence that the victim was over-protective of E., a fact which paints their disputes about her in a different light. The defence points to the evidence that the accused and the victim were trying to work things out civilly. The defence argues that while the accused may have been unhappy that his visits with E. were sporadic and controlled by the victim, this type of tension in a relationship post-separation is not unusual and does not necessarily equate to an animus between the parties. To suggest that this gives rise to a motive to plan the victim’s killing goes beyond what the weight of the evidence can bear.

[72] Insofar as the Crown is relying on the evidence of the victim’s ante-mortem statements, the defence emphasizes that the admissibility of the statements does not end the analysis. The court must now assess their ultimate reliability, which the defence argues is lacking. This is because the statements often lack detail, or there are inconsistencies in the hearsay recipient’s evidence. While the hearsay recipient witnesses were generally credible, their evidence about what the victim told them is not reliable. The defence submits that no weight should be given to this evidence.

[73] With respect to the specifics of the Crown’s theory about the accused’s planning and deliberation, the defence argues that the evidence, including from phone records, is clear that the victim was persistently calling the accused in the days leading up to him travelling to Ontario. This supports his contention that he was coming to Ontario to provide some form of financial relief to her so she would stop calling him. While the defence says it is clear that the accused still had feelings for the victim, it also shows that he did not take any issue with the victim dating Mr. Viau. For instance, he also started seeing someone else. The defence says the accused accepted the relationship with the victim was over and moved on. He entered the final court order on consent and to suggest he was upset about the outcome in court is conjecture.

[74] The defence submits that a great deal of the Crown’s theory as to how the accused executed his alleged plan is speculative, such as the suggestion that he intended to kill her upon arriving on October 10th. The accused’s ultimate admission that he was involved in cigarette smuggling explains why he used a burner phone instead of his own cell phone, why he took off his license plate during the trip, and why he had a sawed-off shotgun in the car. The fact that the accused wanted to leave for Nova Scotia the night of the 10th, a fact confirmed by Mr. Viau, goes against the idea that he was planning to kill the victim the next day. This supports the argument that the killing was more impulsive in nature.

[75] The defence also disputes the Crown’s argument that the accused chose the perfect location for the murder. The choice of a road with a blind curve, where the accused would be unable to see traffic from both directions, undermines the idea the murder was planned. The location was also not completely desolate, since a car came by just after the accused killed the victim.

[76] As for the driving route chosen by the accused, the defence submits that the victim and the accused were talking about life and the victim’s plans, and this was part and parcel of their interaction in the past. The victim’s cell phone was on, and there is no reason to think that the time taken for the drive or its ultimate location is suggestive of a plan to kill the victim.

[77] As for the Crown’s reliance on after-the-fact conduct, the defence emphasizes that where, as here, an accused has admitted to killing the victim, the evidence is less likely to have the probative value the Crown seeks to ascribe to it. In particular, while the evidence may be probative of culpability, it is rarely probative to a particular level of culpability. The evidence relied upon by the Crown as probative to proving the murder was planned and deliberate is equally consistent with an impulsive killing. The defence says that the accused was in a state of shock and panic after the killing. Driving with the victim’s body back to Nova Scotia suggests that the accused was panicking and did not know what to do. His ultimate disposal of the body suggests he had no plan. The accused was essentially doing things on the fly, not giving his actions any thought beforehand. This is also true as regards his conduct in relation to E. in the time after he killed the victim.

[78] With respect to some of the utterances made by the accused during his phone calls with Sgt. Anderson and D/Sgt. Fedele on October 16th, when he denied that this had happened on the sudden and said that when he woke up that morning it was done, the defence argues that the accused was panicked at the time. The defence submits that the accused corrected his account when he did his videotaped statement a few days later.

[79] The defence points to the number of truthful things the accused told police and submits that any lies he told the police do not disqualify his exculpatory statements from being considered for their truth. The court should accept that the accused had no plan in advance of his trip to Ontario other than to assist the victim financially, and that the decision to kill was an impulsive one that was made only after the accused snapped when the victim talked about having kids with her new partner. Alternatively, the evidence should leave the court with a reasonable doubt that the murder of Ms. Maheu was planned and deliberate.

[80] Finally, the defence argues that the Crown has not proved the necessary elements to find that the accused forcibly confined the victim and is guilty of first degree murder on the basis of s. 231(5)(e) of the Criminal Code, RSC 1985, c C-46. I will elaborate further upon the defence position when I address that issue later in my reasons.

IV. General legal principles

[81] The law that pertains to the proof of first degree murder will be reviewed further below. By way of general principles, I start with the fundamental principles that apply in a criminal trial.

[82] With respect to the rules that I am applying, I think it is important that I explain one of the most important rules in our criminal justice system. This is that, in our law, an accused person is presumed innocent until proven guilty. As a result, it is always the Crown attorney who bears the burden of proving any criminal offence charged beyond a reasonable doubt. This also means that an accused person does not have to prove he is innocent.

[83] Our law requires that if a judge has a reasonable doubt about whether the accused committed a criminal offence, the accused must be acquitted.

[84] In a case like this, where the accused has given statements which are in evidence before me, a case from the Supreme Court of Canada, R v W.(D.), 1991 93 (SCC), [1991] 1 SCR 742, tells me how I must consider the evidence. In summary, it tells me that if I believe what the accused says in his statements, or if what he says leaves me with a reasonable doubt after I have considered it along with all the other evidence in the case, he must be acquitted of the offence charged. Assessments of the credibility and reliability of what he says are required in that analysis, as they are in respect of what evidence is accepted from all witnesses.

[85] It is important to note, however, that in deciding a case, a judge is not simply comparing accounts and deciding which account to believe. I can believe some of a witness’s or an accused person’s account but not all of it. It is also important to note that a judge can believe a witness but still be left with a reasonable doubt about whether the Crown has proved an offence after considering all of the evidence.

[86] Further, even if a judge disbelieves what an accused person has said or is not left with a reasonable doubt by what he has said this does not mean that the Crown has proved its case. A judge must always determine whether the Crown has proved each element of every offence charged beyond a reasonable doubt. This will only happen when there is evidence that the judge accepts that supports each element the Crown is required to prove.

[87] As for what is meant by “reasonable doubt”, it is not an imaginary, far-fetched or frivolous doubt, and it must not be based upon sympathy or prejudice. It is based on reason and common sense. It is logically derived from the evidence or the absence of evidence, that is, what the Crown has failed to prove: R v Mann, 2021 ONCA 103 at para 15, citing R v Darnley, 2020 ONCA 179 at para 33. Probable or likely guilt is not sufficient to meet the standard in a criminal trial. But the burden of proof is also not impossibly high. The Crown is not required to prove its case to an absolute certainty.

[88] If at the end of the case a judge concludes only that the accused is likely or probably guilty, the accused must be acquitted. Before an accused may be found guilty, and face the consequences of a conviction, a judge must be sure that he or she committed the offence charged: see D. Watt, Watt’s Manual of Jury Instructions, 2nd ed (Toronto: Thomson Reuters Canada Ltd., 2015) Final 13, “Reasonable Doubt”; and R v Lifchus, 1997 319 (SCC), [1997] 3 SCR 320 at paras 36-40. It is also important to note that “an acquittal need not be based on a conclusion about innocence, but can rest on an inability to conclude guilt”: Mann at para 15, citing R v Darnley, 2020 ONCA 179 at para 35.

A. The evidentiary use of an accused’s statement

[89] Given the facts in this case, the law relating to the evidentiary use of an accused’s statement is also relevant. The following helpful summary was provided in R v Yerxa, 2021 ONSC 1821 at para 131-132:

Once the statement of any witness, including an accused, is admitted into evidence, the trier of fact must consider the entirety of that statement as original evidence. The trier of fact may accept some, part or none of the statement. It is incorrect for a trier of fact to apply a different burden of proof to suggest a presumption of truthfulness for incriminating statements made by an accused and a presumption against truthfulness for exculpatory aspects of the same statements.

Where an accused’s statement contains both inculpatory and exculpatory parts, the exculpatory portion of the accused’s statement only need to raise a reasonable doubt even it if is not believed to be true. The inculpatory portion of an accused’s statement can only support the Crown’s case if the trier of fact is satisfied of its truth beyond a reasonable doubt. [citations omitted]

[90] In R v Strong, 2021 ONSC 1906 at paras 136-141, Di Luca J. also provided a helpful explanation of the analysis that a judge must make where the evidence in a case includes a statement by the accused that contains both inculpatory and exculpatory utterances:

Mr. Strong, as is his absolute right, did not testify. However, his two lengthy statements to police and some utterances he made upon arrest were introduced into evidence by the Crown. This is not a classic credibility case where the statements are on the whole exculpatory or advance an affirmative defence. The initial utterances are mainly inculpatory. The subsequent police statements contain both inculpatory and exculpatory portions. They also contain repeated exercises of the right to silence, which have no evidentiary value, see R. v. Turcotte, 2005 SCC 50 and R. v. Kiss, 2018 ONCA 184.

In accordance with R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, I need not accept the exculpatory portions of Mr. Strong's statements in order to rely on them. There is an alternative between complete acceptance and complete rejection of a defendant's evidence, see R. v. Edwards, 2012 ONSC 3373 at para. 20 and R. v. J.M. ,2018 ONSC 344 at paras. 9-20. Even if I do not accept the exculpatory portions of his statements, I may be left with a reasonable doubt on an element of the offence or on the offence as a whole based on the exculpatory portions that I am unable to reject. Even if I completely reject the exculpatory portions of his statements, I must nonetheless consider whether the balance of the evidence that I accept satisfies me beyond a reasonable doubt that Mr. Strong committed one or both offences charged.

In considering the first two steps of the W.(D.) analysis, I must consider the exculpatory portions of Mr. Strong's statements in the context of the evidence as a whole. In other words, the assessment is not simply whether the exculpatory portions standing alone and without context are believed or leave a reasonable doubt, see R. v. Carriere (2001), 2001 8609 (ON CA), 159 C.C.C. (3d) 51 (Ont.C.A.) at para. 51, R. v. Hull, 2006 26572 (ONCA), and R. v. J.J.R.D. (2006), 2006 40088 (ON CA), 215 C.C.C. (3d) 252 (Ont.C.A.).

Lastly, in assessing the inferences that can be drawn from the circumstantial evidence, I must consider not only the portions of Mr. Strong's evidence that I accept, but also those portions that I do not entirely reject either. Again, an assessment of the available competing inferences does not need to be based on "accepted facts."

In assessing Mr. Strong's statements and utterances, I must also guard against using a rejection of his evidence as positive evidence of guilt. Rejected evidence is simply rejected evidence. It proves nothing.

One exception to this rule arises where the Crown is able to point to independent evidence of fabrication capable of demonstrating the falsity of a statement, see R. v. O'Connor (2002), 2002 3540 (ON CA), 62 O.R. (3d) 263 (C.A.) and R. v. Bradey, 2015 ONCA 738. The independent evidence can come from other evidence in the case, but it must be "independent of the evidence tending to show the falsity of the statements", see O'Connor, supra, at para. 30. It can also come from the very content of the impugned statements, including instances of self-contradiction by the accused, see R. v. Ching, 2019 ONCA 619, R. v. Shafia, 2016 ONCA 812 and R. v. Al-Enzi, 2021 ONCA 81. Where independent evidence of fabrication exists, it is open to the court to consider the fabricated statement as a form of after the fact conduct that supports an inference that the accused fabricated the statement because he was conscious of having committed an offence. The resort to independent evidence of fabrication serves to protect against the prospect of turning the simple disbelief of an accused's statement into affirmative evidence of guilt, see R. v. Johnson-Lee, 2018 ONCA 1012 at para. 41.

[91] The central point is that any exculpatory portions of an accused’s statements may be relied upon unless rejected as untrue. Further, the accused’s statements may raise a reasonable doubt even if not accepted as true.

B. Inferences and circumstantial evidence

[92] When proof of one or more elements of an offence depends exclusively or largely on circumstantial evidence, a trier of fact must be cautious about too readily drawing inferences of guilt. An inference of guilt drawn from circumstantial evidence should be the only reasonable inference available on the evidence: R v Villaroman, 2016 SCC 33 at para 30.

[93] A trier of fact must guard against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences and be vigilant about the path of reasoning involved in drawing inferences from circumstantial evidence. An inference of guilt drawn from circumstantial evidence must be the only reasonable inference that such evidence permits. The inferences that may be drawn from any set of facts must be considered in light of all the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense: Villaroman at paras 29-30.

[94] It is important to confirm that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. To hold otherwise would reverse the burden of proof. As explained in Villaroman, “[t]he issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt”: para 35. Accordingly, an alternative theory to guilt is not “speculative” only because it arises from a lack of evidence: Villaroman at para 36, R v S.B., 2018 ONCA 807 at para 131.

[95] As further directed in Villaroman at paras 37-38:

When assessing circumstantial evidence, the trier of fact should consider “other plausible theor[ies]” and “other reasonable possibilities” which are inconsistent with guilt … I agree with the appellant that the Crown thus may need to negative these reasonable possibilities, but certainly does not need to “negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused” … “Other plausible theories” or “other reasonable possibilities” must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation.

Of course, the line between a “plausible theory” and “speculation” is not always easy to draw. But the basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. [citations omitted, emphasis in original]

[96] Ultimately, circumstantial evidence does not have to “totally exclude other conceivable inferences”: Villaroman at para 42, S.B. at para 153. Further, alternative inferences must be reasonable, not just possible: Villaroman at para 42.

[97] Where a case involves reliance on inferences, they may be inculpatory or exculpatory. The Court of Appeal has confirmed that it is an error “to suggest that an exculpatory inference must be “a much stronger conclusion” than a speculation or guess. That language imports the need for a strong inference, when an exculpatory inference relating to a required element of the offence need merely raise a reasonable doubt”: Mann at para 15, citing Darnley at para 36.

[98] As with all evidence, circumstantial evidence must be assessed in light of the entirety of the evidence; it should not be considered in isolation: R v Stewart, 1976 202 (SCC), [1977] 2 SCR 748 (SCC).

C. Motive, animus and proof of planning and deliberation

[99] The defence has emphasized in its submissions that evidence of motive and opportunity are not enough, in themselves, to permit an accused to be committed to be tried on a count of first degree murder or found guilty of first degree murder on the basis that it was planned and deliberate: see e.g. R v Hall, 2021 ONSC 28 at paras 318-9; R v McKenzie, 2018 ONSC 2006 at paras 33-34; R v Evaloakjuk, 2001 39421 (NU CA), 2001 NUCA 1 at para 18. Otherwise, as noted by some of the authorities, where there was evidence of a motive and an opportunity to plan, “virtually every culpable homicide would potentially be first degree murder”: see McKenzie at para 34; Hall at para 319. Clearly, proof of motive and opportunity alone are not equivalent to proof of planning and deliberation.

[100] For its part, the Crown submits that planning and deliberation, like intent, relates to a state of mind that can be inferred from direct or circumstantial evidence: R v Dadshani, 2007 ONCA 493 at paras 3 and 5. The Crown highlights various authorities that have held (implicitly or explicitly) that evidence of motive and animus are relevant to the issue of planning and deliberation. It cites: R v Bottineau, 2007 13358 (Ont. S.C.) at paras 23-29; R v Bablitz, 1996 ABCA 105 at paras 3-5; R v Riley, 2009 15451 (Ont. S.C.) at para 95; R v Osborne, 2012 ONSC 109 at para 27; R v Brooks, 2015 ONSC 7350 at paras 27 and 44; R v Dupe, 2010 ONSC 6423 at paras 21 and 57; R v Polimac, 2006 40107 (Ont. S.C.) at para 61; R v. Pan 1999 3720 (ON CA), [1999] OJ No 1214 (C.A.) at paras 246-7; R v Coke, [1996] O.J. No. 808 (Gen. Div.) at paras 28-30; R v Bannash, [1991] M.J. No. 468 (C.A.); R v Odesho, 2016 ONSC 4631 at para 28.

[101] The authorities amply establish that evidence of motive and animus are relevant to the issue of planning and deliberation. For instance, in Bottineau, Watt J. (as he then was), held at para 28 that “evidence of animus or motive may be used prospectantly to help establish the planned and deliberate nature of a murder” [emphasis in original]. Similarly, in R v Singh, 2016 ONSC 3136, Fairburn J. (as she then was), relying on jurisprudence from the Court of Appeal for Ontario, held as follows at para. 81:

There is some evidence of animus and motive in this case. As O’Connor J.A. (as he then was) held in R. v. F.(D.S.) (1999), 1999 3704 (ON CA), 43 O.R. (3d) 609 (C.A.), at para. 23: “It is well established that evidence of motive is admissible to prove the doing of an act as well as the intent to which the act is done,” See also: R. v. Jackson (1980), 1980 2945 (ON CA), 57 C.C.C. (2d) 154 (Ont. C.A.) at p. 167. In addition to intent and identity, evidence of motive or animus can be probative on the issue of planning and deliberation: R. v. Riley, 2009 15451 (ON SC), [2009] O.J. No. 1374 (S.C.J.), at paras. 98-99; Bottineau, at para. 28.

[102] It is well established, particularly in the context of homicides involving the killing of an intimate partner, that the state of the relationship between an accused and a deceased in the time leading up to the homicide may demonstrate animus and motive on the part of the accused, and further, that this is relevant to not only identity, but to the state of mind that accompanied the homicide. It is also well established that a deceased’s mental state may be relevant to an accused’s motive to commit an offence. Statements of the deceased may also afford evidence of the deceased’s state of mind and thus be relevant to prove a motive and animus: see R v Carroll, 2014 ONCA 2 at para 104; R v Griffin, 2009 SCC 28 at paras 60-61; R v Moo, 2009 ONCA 645 at para 98.

V. Was the victim’s death caused while the accused was committing the offence of forcible confinement?

[103] I commence my analysis with whether or not the Crown has proved beyond a reasonable doubt that the victim’s death was caused while the accused was committing the offence of forcible confinement, since the evidence relevant to this issue is more focused.

A. The legal principles

[104] The legal principles begin with the provisions of the Criminal Code.

[105] By virtue of s. 231(5)(e) of the Code, “[i]rrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit” the offence of forcible confinement. This type of first degree murder is often referred to as “constructive first degree murder”.

[106] The Criminal Code describes the offence of forcible confinement as follows in s. 279(2): “[e]very one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty” of the offence of forcible confinement.

[107] In R v Parris, 2013 ONCA 515 at para 44, Watt J.A. summarized the elements the Crown must prove to justify a finding of constructive first degree murder premised on unlawful confinement:

First, to establish first degree murder under s. 231(5)(e), the Crown must prove each of five essential elements beyond a reasonable doubt:

i. that the accused unlawfully confined or attempted to unlawfully confine the victim or another person;

ii. that the accused murdered the victim;

iii. that the accused participated in the murder of the victim in such a way that the accused was a substantial cause of the victim’s death;

iv. that no intervening act of somebody else resulted in the accused no longer being substantially connected to the victim’s death; and

v. that the crimes of unlawful confinement, whether completed or attempted, and murder were part of the same transaction, in that the victim’s death was caused while the accused was confining or attempting to unlawfully confine the victim or another as part of the same series of events.

[108] The issues in this case are focused on certain aspects of the law. Accordingly, I review only the law pertaining to those issues, since there is no dispute about a number of the elements outlined above.

“Significant” period of time

[109] There has been some discussion in the case law about whether, to prove constructive murder under s. 231(5)(e), the Crown must prove that the forcible confinement was for a “significant” period of time. This language was used in some of the leading cases prior to 2014 to describe the proof required.

[110] The issue was considered in Parris. Watt J.A. observed that the word “significant” appeared in prior jurisprudence suggesting the proof of confinement was sufficient where it was made out during “any significant period of time”: see R v Pritchard, 2008 SCC 59, at para 24. He concluded that this phrase in the jurisprudence appears to be “used synonymously with ‘confinement not limited to what was integral to the particular act of killing’.”: Parris at para 61. He further noted at para 61 that:

Neither Harbottle nor Pritchard requires the inclusion of "significant" or its functional equivalent for the purpose of jury instructions under s. 231(5)(e). Indeed, to some it may seem anomalous to include such wording when the predicate offence requirement can be satisfied by the preliminary crime of attempted unlawful confinement where no actual confinement would occur.

[111] This approach was taken by the court in White at paras 58-59 and by the Manitoba Court of Appeal in R v Frank, 2000 MBCA 133 at para 40, where the court held that “confinement for any period of time … is unlawful confinement”. More recently, in R v Gervais, 2020 ABCA 221, leave to appeal refused 2021 8835 (SCC), the Court of Appeal for Alberta also confirmed this interpretation of the requirements of the law. Relying on Parris and White, the court upheld the trial judge’s finding that there is no minimum time requirement for an act of unlawful confinement. It held at para 32:

[t]here is no legitimate basis for the requirement that confinement be for a "significant" period of time; that the predicate offence is made out in the event of an attempted unlawful confinement provides further support that there is no minimum time requirement for an act of unlawful confinement. Confinement for any period of time is unlawful confinement, and whether the offence is made out will depend on the facts of each case.

[112] Indeed, in Parris, the court held that confinement is complete when the victim is restrained against their will: at para 47. Earlier cases affirm the principles that: 1) provided the evidence demonstrates the required degree of restraint, nothing in s. 279 sets any limits on the time during which the restraint of the victim must continue (Bottineau at para 34); and 2) a person is forcibly confined as soon as he is deprived of his liberty to move from one place to another (R v Tremblay (1997), 1997 10526 (QC CA), 117 CCC (3d) 86 at p 91).

The requirement of separate and distinct criminal acts

[113] The law has long held that the murder and the predicate offence of forcible confinement must be linked together, both temporally and causally, in circumstances that make the entire course of conduct a single transaction: Pritchard at para 35; R v Paré, 1987 1 (SCC), [1987] 2 SCR 618 (SCC) at para 34; White at para 55.

[114] Nevertheless, there must be distinct acts that constitute each of the offences of forcible confinement and murder. As for what this means, the law is that “[t]he distinct act requirement demands only that the confinement be distinct and independent from the act of killing”: Parris at para 57; White at para 57.

[115] Examples from the case law provide further insight into what is sufficient to constitute a distinct criminal act. For instance, in White, the Court of Appeal found that the restraint of the victim in a bear hug for about two to three seconds prior to his stabbing met the distinct act requirement. The court described the bear hug and the stabbing as “patently distinct criminal acts”. Its rationale, set out at paras 106-107, is instructive in this case:

Here, Johnson grabbed and restrained Akila about two to three seconds prior to the stabbing. Notably, the grabbing and the bear hug were the culmination of a pursuit of Akila. Both the grabbing and the bear hug prevented Akila from making good his escape.

Although the grabbing facilitated the stabbing, on these facts, the grabbing and restraint were independent of, rather than part of, the stabbing. By means of the bear hug, Johnson dominated Akila and rendered him defenceless as Akila attempted to escape. It was only after Johnson restrained and controlled Akila that White proceeded to stab him. In these circumstances, in my view, the bear hug and the killing were patently distinct criminal acts. [emphasis added]

[116] Further, the court found that the conduct of the perpetrators of that murder, in persistently restraining the victim even as he moved his arms and tried to break free, reinforced “the presence of an intention to dominate and confine the victim”: White at para 97.

[117] In Gervais, the victim was killed when a number of people blocked his exit from the scene and pinned him against a dumpster in an alley. The trial judge found that the accused exploited and exercised extra domination over the victim’s vulnerability by virtue of the ongoing confinement, which led to the infliction of fatal stab wounds. The court further held that without the confinement, the accused would have had a much more difficult time trying to stab the victim. It held that the confinement was independent of but related to, and not consumed by, the act of killing: “The confinement continued throughout, restricted his escape, exercised domination, and permitted the Accused to easily affect [sic] his purpose in fatally stabbing the Deceased”: see R v Gervais, 2019 ABQB 344 at para 444. These conclusions were upheld on appeal: R v Gervais, 2019 ABQB 344 at paras 440-444, cited in R v Gervais, 2020 ABCA 221 at para 49.

The intent to commit forcible confinement

[118] Proof of an intent to forcibly confine a person is made out based on proof of an intent to effect deprivation or freedom of movement. The minimal intent associated with unlawful confinement is to prevent the victim from leaving or from being removed: see R v S.J.B., 2002 ABCA 143, at para 41; R v K.M., 2016 ONCA 347, at para 18; Singh at para 60; R v Kematch, 2010 MBCA 18 at para 60; Bottineau at paras 32-33.

[119] In Gervais, the Court of Appeal for Alberta confirmed that a trial judge may rely on a common sense inference to find an accused had the required intent to commit an offence: see paras 41-43. In the case of unlawful confinement, which is a general intent offence, there is no requirement for an "ulterior purpose" for which the intentional actus reus is done. It is sufficient that the actus reus is accomplished: R v Bernard, 1988 22 (SCC), [1988] 2 SCR 833 (SCC) at pp 863-64. The court cited Sopinka J. in R v Daviault, 1994 61 (SCC), [1994] 3 SCR 63 (SCC) at p 123, where the court held: “[g]eneral intent offences as a rule are those which require the minimal intent to do the act which constitutes the actus reus. Proof of intent is usually inferred from the commission of the act on the basis of the principle that a person intends the natural consequences of his or her act.”

B. The positions of the parties

The Crown

[120] As I have already referenced, the Crown argues that the victim was forcibly confined from the moment she entered the vehicle with the accused at her workplace.

[121] The Crown also argues that the victim was further confined by the accused when he put her in the trunk of his vehicle before strangling and then shooting her.

The defence

[122] The defence argues that neither route to a finding of confinement is made out.

[123] The defence argues that the theory that the victim was confined from the moment she got into the accused’s vehicle is speculative. There is no evidence of any force or threat that resulted in the victim entering the vehicle. Whatever her prior plans, there is insufficient evidence to conclude she was forced to get in the vehicle and was confined once there.

[124] With respect to the accused’s conduct in putting the victim in the trunk, the defence argues that the Crown has failed to prove beyond a reasonable doubt either that the confinement was for a “significant period of time”, or that it was a distinct criminal act. The defence argues that the placement of the victim in the trunk was part of the act of killing the victim. In other words, the confinement was consumed in the actual act of killing. The defence points to the lack of evidence about how long the entire transaction took, and argues that the absence of this evidence is important given that the Crown must prove that the confinement did not occur in the act of killing.

[125] Further, the defence argues that to the extent the accused’s statements disclose the sequence of events, his statements leave a significant doubt as to whether he was using confinement or control over the victim’s movement as a means to effect the killing. The accused’s statements also leave open the possibility that there is no distinction between the confinement and the act of killing because there was no intent to confine the victim at all, just an intention to kill her.

C. Findings of fact

[126] For the purposes of this analysis, I commence with consideration of the facts as they relate to the alleged confinement of the victim by putting her in the trunk of the car.

[127] The evidence relating to this issue is mostly found in the statements of the accused. In various statements, he described how he killed the victim. He was consistent in those statements that when he stopped the car, he went to the back of the vehicle where he sat on the edge of the open trunk and smoked a joint. The victim joined him at the back of the car and gave him a hug. He then picked the victim up and threw her in the trunk of the car (he uses the word “threw” in his statement of October 16 to Sgt. Anderson and again later when speaking that day with D/Sgt. Fedele). The victim said “you’re not fucking serious” or “really” and he said “yup”. Then, his hand was around her neck and he strangled her or “choked her out”. After that, he shot her in the chest. After that, he reloaded the sawed-off shotgun, put it to the victim’s head, and shot her again. This caused her eye to bulge out.

[128] The defence does not suggest that any portion of this set of facts as reported by the accused is unreliable. Regardless, I find these facts have been established beyond a reasonable doubt. The accused has been consistent in this part of his description of how he killed the victim and it fundamentally accords with the evidence from the pathologist and firearms expert.

[129] Accordingly, these are the facts to be considered in determining whether the accused forcibly confined the victim while committing murder on the basis of the theory that the confinement occurred when the victim was put in the trunk.

The victim’s resistance

[130] A finding that the victim struggled is not necessary to make out the offence of forcible confinement. It may become an important factual finding depending on the context of the case, and the parties have given some focus to this issue.

[131] To the extent that it matters here, I find beyond a reasonable doubt that the victim did struggle with the accused after she was placed in the trunk of the car. The evidence on this point is robust.

[132] First, the accused tells D/Sgt. Fedele that the victim gouged him after he put his hand around her neck. He showed the officer where she gouged him and said that the injury had healed. That the victim gouged the accused as he said is corroborated by the fact that a profile consistent with the accused’s DNA was found under the victim’s fingernails.

[133] The accused also tells D/Sgt. Fedele that she “didn’t really try to struggle” until his hand was on her neck. When the officer told him her family would want to know if she suffered, he responded that she did. He said this was when he was strangling her. I infer from these statements that, at the very least, the victim struggled when the accused started to strangle her.

[134] The accused also told the officer that the victim was “still moving around” after the first gun shot so he reloaded and shot her again. The accused’s account, together with the evidence of the pathologist, supports the finding that the victim was still alive after the shot to her chest, which I find was the same shot that went through her hand. The fact that the accused then felt the need to shoot her at close range in the head is more confirmation that she remained alive and struggling even after the first shot.

[135] While the injury to the victim’s hand may have been caused because her arm was outstretched to resist being shot, it is not necessary given the evidence above to decide that issue beyond a reasonable doubt. I am fully satisfied that other evidence establishes beyond a reasonable doubt that the victim did not die after being strangled or shot in the chest, and that she struggled at least through the first part of the attack upon her (the choking) before ultimately succumbing to the shot to her head. These conclusions are consistent with both the accused’s account and the evidence of the pathologist about how the victim died.

D. Analysis

[136] The defence argument would be stronger if the evidence left me with any doubt about how the victim came to be in the trunk of the car. If she had landed there during a struggle that had started outside the vehicle, and had then been killed in the course of that struggle, there might be a basis for doubt about whether the confinement was consumed in the act of killing. There might also be doubt in this scenario about whether the accused intended for the victim to be put in the trunk. However, the facts of this case are that the accused “threw” the victim in the trunk before he commenced any of his more serious assaults upon her.

[137] I find beyond a reasonable doubt that the accused forcibly seized the victim while she was at the back of the car and “threw” her in the trunk of his vehicle. Once in the trunk, the victim was certainly confined. She was deprived of liberty to move from one place to another: Tremblay at p 91. Her restraint continued for the entire time she was in the trunk. The actus reus for the offence of forcible confinement is made out.

[138] I find beyond a reasonable doubt that the mens rea for the offence of forcible confinement is also made out. I infer from the accused’s conduct in putting the victim in the trunk, prior to any assault upon her, that he intended for her to be in the trunk. He said he picked her up and threw her there. When she asked if he was serious, he said yes. I can see no basis to infer anything other than he intended for her to be in the trunk, which he surely understood would have the effect of restricting her mobility and confining her.

[139] I also find that putting the victim in the trunk was separate and distinct from the act of killing. While there is no minimum period of time required to find that a forcible confinement has occurred, in this case, the killing was a significant period of time after the victim was placed in the trunk. The time between throwing the victim in the trunk and the act that killed her lasted more than the few seconds that the court considered on the facts of White. After the accused put the victim in the trunk, she made a comment to him expressing her surprise (“are you fucking serious” or “really”) and the accused replied “yeah”. Then he strangled or choked her. This went on long enough for the victim to struggle and gouge the accused. Then the accused loaded his shotgun. Then he shot the victim in the chest, also hitting her hand. The victim was still moving. Then the accused reloaded his shotgun and put it to the victim’s head and shot again, this time killing her. During the time it took to do all of this, the victim was confined.

[140] As in White, I find that the act of putting the victim in the trunk is a patently distinct act from any of the violence perpetrated afterwards. It is worth noting that many criminal acts followed the accused’s seizure of the victim and his placement of her in the trunk, and not just the criminal act that killed her. The assault inherent in strangling or choking the victim as well as the act of shooting her in the chest were two further and distinct criminal acts. The criminal act which constituted the murder was the last of the acts committed – it was shooting the victim in the head. I find beyond a reasonable doubt that the act of shooting the victim in the head was the act that killed her. I also find beyond a reasonable doubt that this act was clearly distinct from picking her up and putting her in the trunk of the car. This was not a confinement that was inherent in the act of killing.

[141] As I understand the law, an intention to dominate the victim is not one of the elements the Crown must prove to prove the offence of unlawful confinement (or its attempted commission), even in the context of proving constructive murder. All that need be proved is the intention to forcibly confine the victim. That the confinement permits an accused to exploit the victim’s vulnerability is the rationale for elevating a homicide from second degree murder to first degree murder.

[142] It is worth noting, however, that the facts of this case place it squarely in the realm of those cases intended to be captured by s. 231(5). Here, the confinement allowed the accused to fully dominate the victim. Given that she was in the trunk when the violence started, the victim was particularly vulnerable to the domination of the accused. The act of placing her in the trunk made her even less able to defend herself. It made her helpless. As the trial judge found in Gervais at para 442, “without the confinement, the Accused would have had a much more difficult time trying to [kill] the Deceased”.

[143] I find beyond a reasonable doubt that the Crown has proved all the essential elements to establish that the accused committed first degree murder under s. 231(5)(e) of the Code on the basis of these facts. In the circumstances, there is no need to consider whether the confinement of the victim started as soon as the victim entered the accused’s vehicle. The evidence is not clear that the offence of forcible confinement is made out on this basis, for all the reasons argued by the defence.

VI. Was the murder planned and deliberate?

A. The legal principles

[144] In our law, a murder will be characterized as first degree murder where it is proved that the murder was both planned, and deliberate. This is because “[t]he luxury of reflection increases the offender’s moral blameworthiness”: R v Pereira, 2019 ONSC 2703 at para 23.

[145] The meaning of “planned” and “deliberate” has been clarified by various cases.

[146] As succinctly summarized in R v Smith, 2014 ONCA 324 at para 29,

[p]lanned means that the accused must have a previously formulated scheme; deliberate means slow in deciding, cautious, not impulsive. The accused’s plan need not be complicated but if the murder is committed on sudden impulse without consideration, it will not be a planned and deliberate murder, even though it is an intentional killing. [emphasis added]

[147] See also: R v Widdifield (1961), 6 CRLQ 152 (Ont HC); R v Reynolds (1978), 1978 1269 (ON CA), 44 CCC (2d) 129 (ONCA) at 137; R v Jaquard, 1997 374 (SCC), [1997] 1 SCR 314 at para 26; R v More, 1963 79 (SCC), [1963] SCR 522 at 534; R v Denison, 2001 BCCA 703 at para 14; R v Wolfe, 2009 SKQB 448 at para 60; Pereira at paras 20-30; D. Watt, Watt’s Manual of Jury Instructions, 2nd ed (Toronto: Thomson Reuters Canada Ltd., 2015) at p 691.

[148] Importantly, assessing whether a murder is “planned” and “deliberate” will involve different legal analyses since each term has a different meaning. The Crown must prove both planning and deliberation beyond a reasonable doubt.

[149] The planning and deliberation must also both precede the act of killing, although the time between the completion of the planning and deliberating and the killing may be very short: see for instance R v Morin, 2021 ONCA 307 at paras 30-43; R v Nygaard, 1989 6 (SCC), [1989] 2 SCR 1074; Pereira at para 23.

[150] In R v Tremble, 2017 ONCA 671 at para 79, the court confirmed that where the Crown relies on circumstantial evidence to establish planning and deliberation, “[w]hat matters is whether planning and deliberation can reasonably be inferred in all the circumstances”. In doing so, it relied upon R v Mitchell, 1964 42 (SCC), [1964] SCR 471 at pp 478-479, where Spence J. described what a trier of fact had to consider in deciding whether an accused had planned and deliberated murder:

The pattern of evidence which it must now consider is not a series of facts, which, in order to establish guilt, just lead to a single conclusion. The jury is now concerned with the mental processes of a person who has committed a crime. In relation to that crime it has to consider his actions, his conduct, his statements, and his capacity and ability to plan and deliberate. It must consider the whole of the evidence in relation to the issue of planning and deliberation. In nearly every case some of this evidence may indicate planning and deliberation and some may indicate the contrary. The jury must weigh all of this evidence and arrive at a conclusion. [emphasis added]

B. The direct evidence relevant to planning and deliberation

[151] There is direct evidence in this case that the accused planned and deliberated the murder of the victim. This evidence comes from his statements to two police officers on October 16th, 2018.

[152] However, the accused has given a number of statements in this case, and they are not consistent. As I have outlined, these statements may be accepted in whole or in part or rejected in their entirety.

[153] The evidence in this trial demonstrates the need to be careful in considering the credibility and reliability of what the accused has said. The accused has been shown to have made untruthful statements repeatedly, and to a number of people. For instance, he was not truthful with the victim when he told her he was dying of cancer. He repeated this falsehood to the judge in family court who confirmed the final order. He said this to police, and later admitted it was not true. He referred to having cancer in his call to Karina Quesnel and elaborated even further on that falsehood by saying that he was not sure if he would get treatment. He even told this falsehood to strangers, since it was part of what he told the women working at the Flying J.

[154] Further, the accused repeatedly told police and others, including complete strangers, that he did not know where the victim was after she was reported missing. He told a detailed and false story about waiting for her at the bank in Cornwall, and knowing nothing of her whereabouts, knowing that this was not true. Suffice it to say that the accused has significant credibility issues.

[155] Nevertheless, as the defence has pointed out, the accused has provided truthful and accurate information to police and others in many instances. In assessing the evidence, and what parts of his statements to accept or reject, I am mindful that the accused has also provided reliable and truthful information.

[156] With respect to the issue of planning and deliberation, as I have reviewed, during the accused’s phone conversation with Sgt. Anderson, the officer suggested to the accused that “bad things happen you know and sometimes spur of the moment things happen”. The accused responded: “spur of the moment no … things just don’t happen. You don’t pick Emilie up off the [unintelligible], throw her in the trunk of a car, strangle with your own fucking bare hands and put two fucking shotgun shells into her … no things don’t just happen”.

[157] The defence highlights that that the sound quality is poor for this utterance. In the circumstances, it is important that I be cautious about my findings. However, I have listened and relistened to the tape and I am satisfied beyond a reasonable doubt that this is what was said by both the officer and the accused.

[158] This utterance is consistent with the theory that the murder was planned and deliberate, while it is inconsistent with the theory that the murder was impulsive and not considered in advance. The accused in this utterance expressly denies that it was a decision made on the sudden, or in the “spur of the moment”. He said, “things don’t just happen”. This is strong evidence in support of the theory that the murder was planned and deliberate.

[159] The statements made by the accused later that evening in the phone call with D/Sgt. Fedele are also consistent with the theory that the murder was planned and deliberate. In that call, the accused says a number of revealing things. The defence argues that in his video statement, the accused later corrected any impression left by his statements during the phone call with D/Sgt. Fedele and that his later account should be accepted by the court. I do not accept his later account, for reasons that I will elaborate on here, and later in these reasons.

[160] First, during the phone call with D/Sgt. Fedele, the accused says that he was alone “in all this” and that “I could not ask anyone else to do this buddy”. This statement makes sense if the murder was planned and deliberate. It makes no sense that someone else might have been involved or that the accused might have asked anyone to help him if the decision to kill was made on the spur of the moment when he and the victim were alone in the car and she was talking about having kids with Pat, which is his account in the videotaped statement.

[161] During the phone call with D/Sgt. Fedele, the accused is asked “where it went wrong”, what changed, so that he went from wanting to help the victim with her debt to killing her. The accused said:

Seeing how E. was with Pat … it was more this time … they were more huggy and kissy … don’t be hugging and kissing but no Pat couldn’t handle that … he was just being a total fucking asshole and enough was enough and I made sure that if I wasn’t gonna have my daughter or my girls neither of us were gonna and now I said that for uh for a fucking long while I said it in my head and said it in my head said it in my head and I said no I can’t do that I I’d never be able to do that well they pushed me to the fucking limit that I fucking was able to do it.

This statement is consistent with the accused having deliberated about the murder. It shows he “said in his head”, “for a fucking long while” that he was going to make sure that if he wasn’t going to have his daughter or his girls, neither he nor Mr. Viau would. I find this statement shows that the accused weighed whether or not to kill the victim.

[162] As for the moment when the accused snapped, on the defence theory, consistent with the accused’s post-arrest videotaped statement, that was when the victim was in the car talking about Mr. Viau, and not earlier. However, other comments by the accused during the phone call with D/Sgt. Fedele are to the contrary. The whole context for the utterance is important. First the accused tells the officer that “I finally snapped man and that’s all it is is I snapped I’m a big boy I’m a big fucking branch bud and she finally snapped this fucking branch in two … and that’s all it is”. The officer then asks, in effect, when he made the decision to kill: “was it just what happened that night that like had you said when you woke up that morning it was it was over it was done you were gonna do it or was it something she said during the ride or”. The accused responded: “No uh it was when I woke up that day it was it was done”. In context, this is the accused’s account of when he snapped and made the decision to kill, after having thought about it “for a long while in his head”.

[163] Again here, the accused expressly denies the suggestion that he might have “snapped” or made the decision to kill based on something the victim said during the ride: “No uh it was when I woke up that day it was it was done”. I find that this statement is consistent only with the theory that the murder was planned and deliberate. It is compelling evidence that the accused’s actions in killing the victim were considered and confirmed by him at least as early as when he woke up the day he killed the victim.

[164] That this was the moment he firmly decided to act on his plan to kill the victim is consistent with the motive he describes for killing her in this statement. The accused tells the officer that if the victim didn’t have Pat, if Pat didn’t have to “fucking rub it in” his face and be “all fucking lovey dovey” while he was around, this wouldn’t have happened”. This utterance goes against the idea that it was something the victim said in the car that caused him to lose control and decide to kill her.

[165] Two days later, the accused’s account of when he made the decision shifted. It was quite different. The defence refers to this as a “correction” by the accused. I find it is more than that – it is a fundamentally inconsistent account.

[166] I note that when the accused was confronted by the officer, who also recognized the inconsistency, the accused told him that he did not remember telling the officer he knew he was “going to do it” that morning. He said he was in shock. He again reiterated the new account that he had snapped and that the breaking point was in the car when the victim was talking about her and Pat having kids.

[167] I find the suggestion that the accused had no memory of what he told the officer just two days before convenient. I do not believe him when he says that. Nor do I believe that he made the decision to kill the victim while in the car when she was talking about her and Pat having kids. This account also does not leave me with a reasonable doubt when I consider it in the context of all the evidence. On the totality of the evidence, that account makes no sense. In arriving at this conclusion, I rely on other circumstantial evidence relevant to the issue of planning and deliberation.

C. The circumstantial evidence relevant to planning and deliberation

[168] The circumstantial evidence relevant to planning and deliberation includes evidence of animus and motive, the accused’s conduct leading up to the killing, the way in which the victim was killed, and the accused’s conduct after the killing. I will address each of these in turn.

The accused had animus toward the victim and a motive to kill her

[169] Where the offence charged is murder, proof of an accused person’s animus, that is his hostility or ill feeling towards a victim, may be relevant to proof that the accused had a motive to kill the victim.

[170] Motive is “a state of mind, a specific intention to do the very act charged in relation to a particular victim. Evidence of a mental state, or motive, may be relevant to prove the accused did the act constituting the offence or it may be relevant to prove his or her intention or other mental state”: R v Brissard, 2017 ONCA 891 at para 17. Evidence of motive may include evidence of relevant emotions or desires: Brissard at para 18. Motive may be understood as referring to “the emotional state of the accused which led to his commission of the act charged”: Pereira at para 32. It may be proved by conduct or utterances expressing the emotion, and by the emotion’s prior existence: Brissard at para 18.

[171] While proof of motive may assist the Crown in proving a case beyond a reasonable doubt, proof of motive is not required to prove the offence of first degree murder. Motive is not an essential element of the offence.

[172] In this case, I find that there is considerable evidence to prove the accused had motive to kill the victim. While proof of these issues is not required since animus and motive are not elements of the offence, I find beyond a reasonable doubt that the accused had animus towards the victim and that his animus provided him with a motive to kill the victim.

[173] I arrive at this conclusion based on the accused’s statements to police and Karina Quesnel, the victim’s best friend, the morning after he had killed the victim. The accused made a number of comments about his relationship with the victim and his feelings about her over the course of their separation, as well as his comments about his relationship with their daughter E, which show he had ill feelings towards the victim. In his own words, his feelings towards her rose to the level of hatred. I find these comments allow for ready inferences about the accused’s motive for killing her.

[174] For instance, during the accused’s phone call with Karina Quesnel the morning after he had killed the victim, the accused said to Ms. Quesnel: “we all know that I hated her guts so bad like before we talked in August”. He said: “Karina, like I told you in your house in your kitchen … I could have had a hole in my bladder and she can be on fire and I wouldn’t have pissed her out”. He went on to say: “the whole way it went down I just I couldn’t stand looking at her, but it got better like with the months that passed”. I do not believe, nor am I left with a reasonable doubt, that the accused actually felt that things had gotten better with the months that passed, having regard to the totality of the evidence, including his comments to police, summarized below. I do believe and find beyond a reasonable doubt that he felt hatred for the victim and that he had expressed this to Ms. Quesnel within a few months of committing the murder.

[175] The accused’s descriptions of his feelings during his phone call with D/Sgt. Fedele on October 16th, 2018 are also a basis for my conclusion about the accused’s animus and motive. In that call, the accused says that:

a. Emilie ran away and took him to court and he tried to be okay with it but he wasn’t. He loved those two girls more than anything;

b. He couldn’t get over Emilie. Knowing that another guy was around his daughter did not sit well with him – he tried making it ok with Emilie but it didn’t work;

c. That night he was up all night and couldn’t sleep – “you know how it feels to sleep on a couch when your ex-girlfriend and her new partner was sleeping in the bed that you used to sleep in”;

d. He honestly believed that if E. wasn’t involved, if the victim and E. had moved back to Nova Scotia, or he had full custody of E. this would never have happened;

e. And if the victim didn’t have Pat … if Pat didn’t have to “fucking rub it in my face that and be all fucking lovey dovey doing it while I was around this wouldn’t have happened”.

[176] More support for a finding that the accused had animus and motive is found in his utterances in his videotaped statement of October 18th, 2018, where the accused tells D/Sgt. Fedele that:

a. After the victim left Nova Scotia with E., “I just started having the hatred and you know what you want to tear her from her father go ahead cuz I did not a damn thing wrong …”;

b. “I tried, everything was just a fight with her like I didn’t care what she did with her life you know what we’re done, it’s over with, am I over you? No I’m not over you but … clearly you are over me”;

c. He wasn’t able to see E. on his birthday when he was in Ontario, but Mr. Viau got to spend it with her;

d. Even to see E., he had to have an agenda, when he wanted to have her the whole time when he was visiting – he didn’t know why he couldn’t have his daughter for a whole week when the victim had had her for the last 6 months;

e. He knew as soon as he came up to Ontario that all he was going to be to E. was a babysitter;

f. On another visit after the first court date, which also included the day they went apple picking, he “just decided you know what I’m going to make you feel as bad as you did and I told her that I had stage four prostate cancer and her heart just shrunk … and I’m like good like now you’re starting to realize how much you might have hurt me”;

g. When they were apple picking, E. was holding his hand and holding the victim’s and then E. let go of his and held Mr. Viau’s and it just broke his heart;

h. He could never say goodbye to E. because then he had to do the 12-hour drive and his heart just broke – he had a playlist for when he was leaving Ontario that was “just sad father and daughter songs”;

i. The victim had the “nerve” to ask him for six thousand dollars – she had a new man, and she wanted him to “clean up her shit” while she was getting money from welfare, and still couldn’t get her act together;

j. The night before he killed the victim and was staying at the victim’s apartment, “Pat was just all over Emilie. Anyway I’m not, I’ll guarantee it I’m not over E. or Emilie. Anyway, I just I had a bad day and I was up all night and I was just sitting there tossing and turning” and he finally fell asleep;

k. The accused was not sorry about lying to the victim about having cancer and the fact that she was devastated by that because it made her feel the way that he felt;

l. The victim had been “slutting around” and had already been with four men;

m. The victim was not taking care of E. even while she was receiving government money and getting a free lawyer;

n. It really stung when the victim went – she took E. away from him and didn’t even appreciate her;

o. He never got over the breakup; and,

p. If he could take back time, he’d go back and make sure the victim never left Nova Scotia and they were actually still a couple.

[177] The accused’s tone during some of his recorded statements is remarkable. In the videotaped statement on October 18th, D/Sgt. Fedele talked to the accused about their conversation a few days earlier. The officer described the accused as “screaming” during the phone call on October 16th when the accused said that the victim took everything away from him. During the videotaped interview, the accused agreed with that description of how he spoke during the phone call. I have no way to assess whether this was an accurate description of the accused’s tone of voice in the unrecorded portion of the call at any point, but I take from this that the accused was speaking with some degree of emotion.

[178] I have had the benefit of hearing the recorded portion of the conversation between the accused and the officer. In my view, the accused sounded frustrated and angry in the recorded portion of their conversation that night.

[179] The accused’s emotion when speaking about some of the evidence set out above while on video was also plain. There was every indication that the accused was sincerely expressing his feelings when he said these things.

[180] I am mindful of the limits of demeanour evidence, and the reasons for caution in considering demeanour evidence: see for instance R v M.M., 2016 ONSC 5027 at para 59; R v Levert (2001), 2001 8606 (ON CA), 159 CCC (3d) 71 (ONCA), at para 27; R v Hull, 2006 26572 (ONCA) at para 8, citing R v Boyce, 2005 36440 (ONCA) at para 3; R v R.D., 2016 ONCA 574 at para 25; R v N.S., 2012 SCC 72; R v O.M., 2014 ONCA 503; R v Hemsworth, 2016 ONCA 85. While the accused’s demeanour during his statements is not a reason for any of my conclusions, I do find that there is nothing in the way the accused expressed himself that suggests he was being anything but sincere about his feelings when he described his feelings about the victim and their separation.

[181] Ultimately, I have no reason to reject any of the accused’s comments about how he felt about the victim during the course of their separation. I accept as truthful those portions of his statements.

[182] The comments made by the accused allow me to conclude beyond a reasonable doubt that he was jealous about the victim’s and E.’s relationships with Mr. Viau. He was hurt. He was angry about what had happened to his relationships with the victim and E. He wanted to prevent anyone else from having relationships with them.

[183] I arrive at these conclusions based on the accused’s own utterances. It is not necessary to rely on the evidence of the victim’s ante-mortem statements, or to individually assess their ultimate reliability in the circumstances. The ante-mortem statements provide insight into the victim’s experience of the relationship, but the animus and motive in this case are plain based on the accused’s statements alone. I see no reason to infer from the victim’s state of mind or utterances what feelings towards the victim were held by the accused when he makes those feelings clear himself.

[184] Before leaving this issue, I will address the defence argument that the level of animus in this case did not rise to the level that is consistent with having planned and deliberated the victim’s murder. First of all, I know of no case that sets thresholds on the sufficiency of animus and motive evidence to be relevant to or consistent with a theory of planning and deliberation. It seems to me that depending on the facts of a case, the nature of the evidence may affect a weighing of the importance of the evidence to proving planning and deliberation, but it is not the case that evidence of animus or motive needs to reach a certain threshold to be capable of supporting a theory that a murder is planned or deliberate. Human experience shows us that the choice to kill another human being may be based on a variety of feelings and motives, and that the strength of those factors are generally not compelling to anyone other than the killer.

[185] In any event, I disagree with the defence that the evidence does not show a degree of animus sufficient to motivate the accused in this case to plan and deliberate the commission of Ms. Maheu’s murder. I find that the evidence of animus shows the accused had very strong feelings about the victim. He says he felt hatred for her. He says he wanted to hurt her so she would understand how she had hurt him. He said he was not over her and could not get over her. He said if he couldn’t have the victim and E., no one else would.

[186] I find that the evidence of animus and motive in this case are at least consistent with a theory that the accused acted on those feelings not just in killing the victim, but also in planning and deliberating upon her killing.

[187] Evidence of motive and animus are circumstantial evidence, however, and by themselves, they do not prove that the accused planned and deliberated the killing of the victim. I turn now to my findings in respect of other evidence which is relevant to whether this killing was planned and deliberate.

The accused’s conduct prior to the victim’s killing

[188] The accused’s statements and other evidence proves a number of circumstances beyond a reasonable doubt, including that: the accused left his cell phone at home in Nova Scotia when he travelled to Ontario on October 10th, 2018 and used a burner phone; the accused removed the license plate from his vehicle after he crossed the bridge on Highway 30 in Quebec on his way into Ontario; he had put the license plate back on before crossing the bridge after killing the victim; and the accused had a sawed-off shotgun in his trunk during this trip.

The accused’s account of cigarette smuggling

[189] The accused says that the reason he left his cell phone at home, took the plate off his vehicle, and had a sawed-off shotgun in his trunk was because he was intending to do a cigarette run during his trip. If I believe his account, or it raises a reasonable doubt, this would alter the significance of his conduct in trying to remain undetectable while in Ontario, and his reasons for travelling to Ontario with a sawed-off shotgun.

[190] In my view, this account by the accused is not credible. I do not believe it. Nor does it leave me with a reasonable doubt that the accused was planning to engage in cigarette smuggling during the course of this trip.

[191] I arrive at this conclusion for a number of reasons. Before outlining them, I note that the accused’s account that he was planning to engage in cigarette smuggling during this trip was only given in the statement of October 18th, after the accused had been arrested. There is no hint in any of the accused’s other statements to police that he was involved in cigarette smuggling or that it played a role in any of his decisions. It first comes up when the officer asks the accused why he left his cell phone in Nova Scotia.

[192] Ultimately, I reject this account because the accused’s account of his involvement in smuggling is wholly inconsistent, and because his account of intending to engage in that activity during this trip makes no sense.

[193] With respect to the inconsistencies in his account, first, the accused tells the officer he had never done a cigarette run before. Then, when he was explaining why he had a sawed-off shotgun in his car, he said it was for doing these cigarette runs and that it wasn’t his first time.

[194] He was also plainly inconsistent about having made a great deal of money from this activity. First, he told the officer that police would find hundreds of thousands of dollars in his garage, money he had obtained from doing cigarette runs. Later, he told the officer that this was not true, and that the money had been cleared out of his garage when police first became involved in the case.

[195] In addition to these inconsistencies, the accused’s account makes no sense. At first, he says that the reason for doing the cigarette smuggling is to get money to pay back the six-thousand-dollar loan he is planning to get while in Cornwall to discharge the victim’s debt. It makes no sense that he would need a loan if he had access to hundreds of thousands of dollars from prior cigarette runs. His explanation that he still needed the loan because the victim did not know about his smuggling activity is unconvincing. The accused seemed to have no issue with lying to the victim about other things, like having cancer. He could easily have explained how he came into six thousand dollars without disclosing his illegal cigarette runs, if in fact any of that was true.

[196] The cigarette run as a way to explain the removal of the vehicle’s license plate also makes no sense. According to the accused, the plan was to do the cigarette run on the way back to Nova Scotia, and he would pick up the cigarettes in the Montreal area. Yet, by his own account, he had removed the license plate during his time in Ontario. Other evidence in the trial shows that the plate was on when he crossed the bridge on Highway 30 in Quebec, which is west of Montreal and a relatively short distance from the Ontario border and the victim’s residence. It was not on the vehicle when it was observed by Mr. Viau parked on the road near the victim’s apartment after the accused unexpectedly arrived on October 10th.

[197] The accused was asked by the officer why he had his plates off on the way to the victim’s residence if his plan was to pick up cigarettes on his way back from seeing the victim. The accused said he took off the plate on his way in because otherwise, “you just looking for frigging heat man from a cop”. When the officer said this made no sense, the accused said he understood it made no sense and that he didn’t have an answer.

[198] The evidence is unequivocal that the license plate was only removed after the accused was past the bridge, and therefore already west of Montreal. Had the concern about having a visible license plate been in relation to cigarette smuggling, the license plate could have stayed on while he was in Ontario. That it was not undermines the idea that removing the plate was about avoiding detection while doing a cigarette run.

[199] The accused’s account was evolving and inconsistent. It makes no sense. I reject it. I do not believe that the accused left his cell phone at home, took his license plate off his car, or had a gun in his trunk because he was planning to do a cigarette run after getting a loan at the bank to discharge the victim’s debt. Nor do I have a reasonable doubt about whether this is the reason for the accused’s conduct in doing those things.

[200] I am also satisfied that there is no other plausible or reasonable inference that might explain why the accused left his cell phone in Nova Scotia and used a burner phone and removed the plates from his vehicle when he did. Given these findings, I am not left with a reasonable doubt that the sawed-off shotgun might have been in the accused’s vehicle because he used it for skeet shooting. It bears repeating that the accused’s explanation for having the gun with him was that it was to be used in aid of cigarette smuggling, not skeet shooting, in any event.

[201] It is an easy inference that the accused carried a burner phone, removed his vehicle’s license plate, and had a sawed-off shotgun with him for a reason. The reason led him to want to be undiscoverable by police while he was in Ontario, and to have a lethal weapon at his disposal. This conduct is consistent with the accused having formed a plan to kill the victim prior to his trip to Ontario on October 10th, 2018 and strongly supports that inference.

The location where the victim was killed

[202] The evidence establishes the route taken by the accused and the victim after leaving the victim’s workplace in the accused’s vehicle. The route is through rural backroads. The location where the victim is ultimately killed is relatively remote.

[203] The route taken is not toward the bank in Cornwall, which was the intended destination according to the accused. The route taken was in the opposite direction. While Cornwall is located to the south-west of the victim’s workplace, the route chosen by the accused while driving with the victim was to the south-east.

[204] On this point, it is of some relevance that the accused, who was employed as a truck driver, told the police about his ability in navigating roads. The defence has not suggested, and I reject the possibility, that the accused was lost in an area that was unfamiliar to him. He had in fact travelled to the bank in Cornwall the night before with the victim and Mr. Viau. He had spent time in the area both before and after the victim returned to Ontario (Ms. Quesnel’s evidence confirms occasions where the couple visited her house prior to the separation). He was able to recreate for police the route he took when driving with the victim and the location where he shot her. He was clearly accurate about the location where he shot the victim, since a shotgun shell of the same kind as was used to kill her was found there. All of which is to say, there is a basis to conclude that the accused had some basic facility with the geography of the roads in the Alexandria and surrounding area. The accused also told the police that he suggested to the victim that they take the backroads to the bank. This also shows his decision to be on those roads was intentional.

[205] The circumstances also lead me to conclude that the choice of location to kill the victim was intentional. The evidence does not permit any conclusions about whether the location was chosen in advance. I find the Crown’s theory that the accused picked the location where he killed the victim during the day while the victim was at work is speculative. In any event, it is not necessary to a finding that the accused planned to kill the victim to show how he came about choosing the location where he would do so. Whether he had pre-planned his location or not, I am satisfied beyond a reasonable doubt that the accused planned to kill the victim at some point along the drive. The location where she was killed was remote and unpopulated. I reject the idea that the accused suddenly formed his intention to kill the victim after he had been coincidentally driving in a remote area.

[206] I have considered the argument by defence that the location chosen was not actually remote or chosen by the accused in advance. The defence emphasizes the statement of the accused to police where he says that a truck passed by on the roadway after the accused killed the victim, since the presence of this truck on the roadway shows it was a travelled road. The defence also submits that the location where the victim was killed is on a roadway with a blind curve, and that it would make no sense for the accused to plan to kill the victim in this type of location.

[207] As I have said, I do not need to resolve the factual issue of when the accused selected the precise location where he killed the victim. As for the argument that it would make no sense to choose a spot in the roadway with a blind curve as the location to kill the victim, I agree that this may not have been the most perfect of locations. In all the circumstances, this fact does not undermine the conclusion that the location selected to kill the victim was remote and therefore likely to permit the killing to occur unobserved. That this is precisely what occurred shows that the accused’s choice of location did make some sense, even if the location he picked was not perfect.

[208] I conclude that there was no reason for the accused to have taken the route he did if there was no plan to kill the victim. I do not believe he and the victim were talking and taking the backroads as part of a leisurely drive, as has been suggested. If that was the case, the backroads chosen should at least have been in the direction of the bank. They were not. I do not believe that the accused was lost while driving, or that he did not know which way he needed to drive to reach the bank in Cornwall. I do not believe that the location where the victim was killed was a matter of coincidence. Nor do I have a reasonable doubt about these things. I find that both the route taken by the accused with the victim and the location that he selected to kill her are consistent with the theory that the murder was planned and deliberate, and inconsistent with the accused’s account that he was travelling to the bank with the victim when he suddenly snapped and decided to kill her.

The manner in which the victim was killed

[209] The manner in which the victim was killed is also inconsistent with a killing that occurred based on an intention formed on the sudden.

[210] On every account given by the accused, he says that when he stopped the car, he got out, and smoked a joint. Before smoking the joint, which he took with him from the car, he opened the trunk. Then he says he smoked the joint while sitting on the edge of the open trunk.

[211] I cannot reconcile taking this time to set himself up to smoke a joint with his account that the victim’s comments in the car caused him to snap, and the next thing he knew he was killing her. I would think that if the victim’s comments in the car caused him to snap and form the intention to kill her, he would have acted on that intention with some immediacy. Instead, he pulled over, opened the trunk, sat on it and lit and smoked a joint.

[212] The act of going to the trunk and opening it before doing anything else is, by itself, significant. The accused said he got out of the car to smoke the joint because he did not smoke in the car. Yet he went to the trunk and opened it, rather than going anywhere else to smoke the joint. He might have sat on the hood. He could have stood by the car. Instead, he decided to open the trunk. I infer he did that for a reason.

[213] Then, when the victim came to the back of the car and reached in to hug him, he hugged her back, picked her up, and threw her in the trunk. At this point, on both versions of the accused’s account, the victim said something like “are you serious” or “really”, and the accused told her he was. The accused’s statements prove beyond a reasonable doubt that the victim did not end up in the trunk by accident, or as a result of some tussle near the open trunk. The accused’s answer to the victim that he is serious about what he is doing is revealing. It confirms, at a minimum, that he intended for her to be in the trunk. That he intended this suggests it was part of a plan.

[214] The act of putting the victim in the trunk before killing her makes little sense in the context of anything other than a planned and deliberate killing. The sawed-off shotgun was readily available in the trunk and the accused, had he been acting on a suddenly formed intention to kill the victim as he suggests in his videotaped statement, might have taken the gun from the trunk and shot the victim while she was still seated in the front seat, or somewhere outside the vehicle. Instead, he put the victim in the trunk before he shot her.

[215] It is clear that putting the victim in the trunk allowed the accused to control the victim while he killed her. It also allowed him to more easily control the discoverability of her remains and other evidence of the killing, such as blood at the scene, once she was dead. That the victim was only killed after she was put in the trunk is a circumstance which strongly supports the inference that the accused considered how he would kill the victim in advance, and that he acted on that plan.

D. After-the-fact conduct

[216] The Crown relies on evidence of the accused’s conduct after he killed the victim in proof of its case. The defence resists the argument that this evidence demonstrates anything about whether or not the accused had a plan to kill the victim. The defence says the evidence relied upon by the Crown is equally consistent with the conduct of a panicked person who had killed on the sudden and without any planning or deliberating.

The legal principles

[217] Evidence of an accused person’s conduct after an alleged offence is circumstantial evidence. It may be used, where relevant, to impugn the accused’s credibility. In some instances, it may also be used to support guilt or innocence. Because of the dangers of the reasoning process where the evidence is said to be supportive of guilt, the admissibility and use of this type of evidence has been carefully considered by various courts.

[218] In this instance, the accused has admitted to the actus reus and mens rea of second degree murder, that is, that he intentionally killed the victim. Therefore, the only issue to which the after-the-fact conduct may be relevant is the accused’s level of culpability and whether or not the murder was planned and deliberate. There is no bar to considering after-the-fact conduct in the assessment of this issue. After-the-fact conduct may be used to prove that a murder was planned and deliberate: R v Gough, 2020 ONCA 296 at paras 52 and 58.

[219] The Supreme Court has recently considered the issue of after-the-fact conduct. In R v Calnen, 2019 SCC 6, 2019SCC 6, the court was considering whether contested after-the-fact conduct evidence was admissible to prove the requisite intent for second degree murder. While the context in that case did not involve an admission by the accused or the same offence, the following principles set out by Martin J. nevertheless provide guidance in my analysis of the after-the-fact conduct evidence in this case:

a. It is important for counsel and trial judges to specifically define the issue, purpose, and use for which such evidence is tendered and to articulate the reasonable and rational inferences which might be drawn from it (at para 113).

b. To meet the general concern that such evidence may be highly ambiguous and susceptible to jury error, the jury must be told to take into account alternative explanations for the accused’s behaviour. In this way, jurors are instructed to avoid a mistaken leap from such evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear of a false accusation, or some other innocent explanation (at para 117).

c. There is no legal impediment to using after-the-fact conduct evidence in determining the accused’s intent, and it may be used to distinguish different levels of culpability (at para 119).

d. Whether or not a given instance of after-the-fact conduct has probative value with respect to the accused’s level of culpability depends entirely on the specific nature of the conduct, its relationship to the record as a whole, and the issues raised at trial. There are no automatic labels which make certain kinds of after-the-fact conduct always or never relevant to a particular issue (at para 119).

e. Where an accused has admitted culpability, after-the-fact conduct may, in some cases, be unable to assist the trier of fact in determining the accused’s level of culpability between two offences (at para 121).

f. The importance of an admission is an important contextual factor because it establishes a baseline culpability such that the legal issue becomes whether the after-the-fact conduct evidence is equally consistent with two or more offences (at para 123).

g. As long as the evidence is more capable of supporting the inference sought than the alternative inferences, then it is up to the fact finder, after considering all explanations, to determine what, if any, inference is accepted, and the weight, if any, to be provided to a piece of circumstantial evidence (at para 145).

h. A key factor in assessing probative value is the specific nature of the conduct. What steps were taken, when they were taken, and at what risk may all be factors to consider when assessing the nature of the conduct in a particular case (at para 125). The strength of the inferential link between the evidence and the fact to be established may be assessed by reference to such factors (at para 146).

i. The relationship between any explanation provided by the accused for his or her actions and the accused’s actual actions may also inform the determination of whether the inference is reasonable and rational as a matter of logic, common sense, and human experience (at para 126).

j. The trial judge may take into account the disproportionality between the explanation proffered and the conduct at issue (at para 126).

k. After-the-fact conduct is assessed in context. Its significance may be strengthened or weakened by the presence or absence of other evidence, but it is not a secondary form of evidence (at para 133).

l. As in all cases engaging after-the-fact conduct evidence, the strength of the inference will be determined by the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence. If the totality of the evidence satisfies the chain of reasoning for a particular inference, then that inference is available – regardless of whether supporting evidence is part of the evidentiary record (at paras 135 and 138).

The principles applied

[220] In this case, the admissibility of the evidence was not contested. What is at issue is its ultimate use, if any.

[221] The Crown has identified a number of aspects of the accused’s after-the-fact conduct which it says support its theory that the accused planned and deliberated upon his killing of Ms. Maheu. I am persuaded that, at the very least, the accused’s conduct in driving from the location of the killing to Nova Scotia with the victim’s body in the trunk of his car is supportive of the inference sought by the Crown.

[222] I have already found that the killing of the victim after she was placed in the trunk of the accused’s car is a circumstance which strongly suggests that the accused considered how he would kill the victim in advance.

[223] Regardless, it is clear that the accused then proceeded to drive to Nova Scotia with the victim’s body still in his trunk. The Crown argues that the act of driving to Nova Scotia in these circumstances is after-the-fact conduct that permits a further inference that he was acting in accordance with a plan, and which makes the existence of such a plan more likely. The defence submits that the better explanation for driving the victim’s body back to Nova Scotia is that the accused had killed the victim on the sudden and was panicking about what to do next. In this scenario, his choice to drive back to his house in Nova Scotia reflects his indecision, as opposed to a plan. I have considered both of these theories. They are not equally consistent with the totality of the evidence. The conduct more strongly supports the inference sought by the Crown.

[224] In determining what inference to draw from this conduct, and the weight to be given to it, I have considered that the accused was asked by D/Sgt. Fedele why he drove the victim’s body back to Nova Scotia. This was during their phone call on October 16th. The accused said he did this because he wanted to take the victim into the house and set her down on the floor against the wall. He said he was going to get his rifle and blow his brains out right beside her so they could be a family again. He also discussed his intention to kill himself after killing the victim during his videotaped statement. I have no reason to reject this account by the accused and I accept it.

[225] In assessing the probative value of this conduct, I consider the factors set out in Calnen. I consider the explanation the accused provided for his conduct when speaking with police, as well as the argument of counsel that this conduct is consistent with a panicked person who had killed on the sudden and did not know what to do next. I consider the risk inherent in driving across three provinces with a body in the trunk of his vehicle, and the other steps that might have been taken by the accused to dispose of the victim’s body between Ontario and Nova Scotia if he was in a panic following an unplanned killing, including disposing of her body in the fields in the area where she was killed. Notably, the accused ultimately chose to dispose of the victim’s body in a cornfield not far from where he killed her when he returned to Ontario the day after the killing.

[226] I ultimately conclude that this conduct, assessed in the context of the whole of the evidence, supports the inference that the accused planned the murder. This inference is strong enough to have some weight in the overall analysis of the case. However, I give it less weight than the other circumstantial evidence I have discussed.

E. Findings with respect to planning and deliberation

[227] Given the accused’s admission in this case that he intentionally killed Ms. Maheu, only two alternatives are possible: he did so on the sudden, as has been argued by the defence in this trial, or he did so after planning and deliberating the murder, as has been argued by the Crown.

[228] I have considered the totality of the evidence and the able arguments of defence counsel regarding the evidence that is supportive of the theory that the killing was done on the sudden, after the accused “snapped” upon Ms. Maheu’s comments about her new life with Mr. Viau while they travelled together towards the bank in Cornwall. Given the totality of the evidence, I reject that theory. The evidence also does not leave me with a reasonable doubt that this was a planned and deliberate killing.

[229] In arriving at this conclusion, I consider the evidence showing the accused had animus toward the victim and motive to kill her.

[230] I rely heavily on the accused’s first admissions to police where, in admitting he killed the victim, the accused denied that he had done so on the sudden. He said that when he woke up that morning “it was done”. He told police why he killed her. His words show that he killed her because he was jealous, he was hurt, and he was angry. He knew he wasn’t going to be in the lives of the Ms. Maheu or E. in the way that he wanted to be. He told the police that he made sure that if he wasn’t going to have them, no one else would. His utterances make out the elements of both planning and deliberation.

[231] I find the circumstantial evidence strongly supports the theory of a planned and deliberate killing and cannot be reconciled with a killing on the sudden, and so I accept the accused’s first account of the circumstances leading up to the killing. In that regard, the following circumstantial evidence is particularly compelling:

1. the accused travelled to the victim’s residence without his cell phone so he could not be traced;

2. he had removed the license plate of his vehicle and parked on a side road upon his arrival at the victim’s apartment;

3. he had a sawed-off shotgun in the trunk of his car;

4. using the promise to pay off her debt, he drove the victim to a remote location in the opposite direction of the bank; and,

5. he put the victim in the trunk of his vehicle before committing any acts of violence, allowing for control of the victim as he killed her and in the subsequent movement of her lifeless body.

[232] Given the totality of the evidence, I find beyond a reasonable doubt that the accused planned and deliberated upon the murder of Ms. Maheu.

VII. Additional issues

[233] Before concluding my reasons, I want to be clear about what evidence and arguments I have not relied upon in arriving at my conclusions.

[234] I begin with the considerable body of hearsay evidence that was tendered by the Crown. In the main, this evidence was adduced for the purpose of demonstrating the accused’s animus toward the victim, the victim’s state of mind, and evidence of motive. As I have said, to the extent that I have found evidence of animus and motive in this case, those findings follow from a review of the accused’s utterances in the context of all the evidence. I have not conducted analyses of the ultimate reliability of various individual utterances by the victim since, even if I determined they had no weight, given the statements of the accused, my findings on the issue of animus and motive would be the same.

[235] Some of the hearsay evidence was not contested. This evidence functions as context or narrative in this case and that is the limit of how I have used it. None of it undermines any of the conclusions I have drawn on the remaining record. The utterances of the victim are consistent with the narrative provided by the accused in his statements.

[236] Had I not been satisfied that the accused’s statements could be relied upon as credible and reliable evidence of his state of mind and his feelings towards the victim in the time leading up to his decision to kill the victim, the hearsay evidence would have gained significance in the final analysis and would have required further consideration. However, I see little point in conducting further analysis of the ultimate weight of individual utterances, with one exception that I will address below, given the totality of the evidence and the conclusions available on uncontested evidence.

[237] It is perhaps also useful to clarify what impact some of the more prejudicial portions of the hearsay utterances have had in my analysis. For instance, there is evidence that there was prior violence in the relationship between the accused and the victim when they lived in Nova Scotia. This type of evidence may be important in the context of a homicide of a domestic partner to show an accused’s animus towards the victim, but I do not rely upon it in my analysis in this case. I prefer to rely on the evidence of the accused’s animus towards the victim provided by other evidence which shows the accused’s feelings towards the victim closer in time to the murder.

[238] As for the comment the accused allegedly made to the victim that if he could not have E. no one would, given in evidence by her step-father, I prefer not to rely on this evidence. The evidence of the hearsay recipient on this point and a number of others was contradictory, or given for the first time during the trial. It raises reliability issues which are of importance in assessing the ultimate reliability of the hearsay evidence. In any event, the accused’s own utterances on this point are in evidence and I have accepted them.

[239] I also want to be clear that I do not accept all aspects of the Crown’s theory in this case. As the law requires me to do, I have focused on the evidence that proves or disproves the elements of the offence. I agree with many of defence counsel’s submissions about various aspects of the Crown’s theory that are not sufficiently grounded in the evidence to be made out, such as the theories that:

1. the accused killed the victim in part because he wanted to get E. back in his care;

2. the accused intended to kill the victim when he arrived on October 10th but was surprised by the presence of Mr. Viau at her apartment (this seems unlikely given that the accused knew Mr. Viau was living with the victim);

3. that the accused scouted out the location where he would kill the victim while he waited for her to finish work that day;

4. that the accused began the planning and deliberating of the murder after E. took Mr. Viau’s hand while apple picking because that was the moment he decided he had enough and had nothing to lose; and,

5. that the accused never intended to kill himself and that his plan in driving the victim’s body back to Nova Scotia was to give himself time to bring E. back to Nova Scotia.

While the Crown may or may not be right about any of this, the evidence does not allow for safe conclusions on any of those issues.

[240] Proof of the offence of murder committed with planning and deliberation does not require proof of the exact moment when the plan was conceived, the circumstances that caused it to be conceived, or even proof of the details of the plan. All that is required is that the trier of fact be satisfied, beyond a reasonable doubt, that the murder was planned and deliberated upon in advance of the killing. I am so satisfied. I am satisfied that the accused had conceived of his plan prior to driving to Ontario on October 10th, 2018. Whatever his intentions upon arriving at the victim’s apartment the afternoon of October 10th, I am satisfied that by the morning of October 11th, the accused had firmly decided to go ahead with his plan to kill the victim and that he had deliberated upon this decision.

VIII. Conclusion

[241] In summary, I am satisfied beyond a reasonable doubt that the accused forcibly confined Ms. Maheu and then killed her. This makes him guilty of murder in the first degree.

[242] I am also satisfied beyond a reasonable doubt that the accused planned and deliberated the killing of Ms. Maheu. Therefore, he is also guilty of murder in the first degree on this basis.

Justice Laurie Lacelle

The Honourable Justice Laurie Lacelle

Released: Oral July 5, 2021

Written July 16, 2021

COURT FILE NO.: 19-70

DATE: Oral 2021/07/5

Written 2021/07/16

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Brandon Smeltzer

REASONS FOR JUDGMENT

The Honourable Justice Laurie Lacelle

Released: Oral July 5, 2021

Written July 16, 2021