COURT FILE NO.: CR-19-13-00 DATE: 2021-11-09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

P. Keen and S. Burden, for the Crown

• and -

AUSTIN WESLEY

A. Seib, for the Accused

Accused

HEARD: August 10, 11, 12, 13, 16, 17, 19, 31, 2021, at Kenora, Ontario.

BEFORE: Mr. Justice W. D. Newton

Reasons

Overview

1On December 6, 2017, Isaac Gray, 51, and Tyrese Shakakeesic, 18, were shot and killed.

2Mr. Wesley, then also 18, was charged with committing the first-degree murder of his father, Mr. Gray, and his best friend, Mr. Shakakeesic.

3At the conclusion of the case, the Crown conceded that first-degree murder could not be proven as the evidence adduced did not establish, beyond a reasonable doubt, that the murders were planned and deliberate.

4Mr. Wesley conceded that the evidence leads to the conclusion that he shot and killed his father and friend but argued that he did not have the state of mind required for murder because of his intoxication. He submitted that he should be convicted of manslaughter instead of second degree murder.

5Mr. Wesley was also charged with attempting to murder Amy Keesickquayash because of his alleged actions immediately after he shot and killed Mr. Gray and Mr. Shakakeesic. Mr. Wesley argues that the Crown has not proven this charge beyond a reasonable doubt.

6Because of Mr. Wesley’s actions prior to the killings, he was also charged with committing an assault on his grandmother, Susan Shingebis. As the evidence adduced was that the assault could have been accidental, the Crown concedes Mr. Wesley should be acquitted on this charge.

7Thirteen witnesses, including Mr. Wesley, testified. Most witnesses testified in person in the courtroom. Some witnesses testified remotely via ZOOM video conference on consent. Certain facts and forensic reports were admitted. Final submissions were received via ZOOM video conference on consent.

The Evidence

The Location

8Austin Wesley lived with his father, Isaac Gray, on Cat Lake First Nation. Cat Lake First Nation is a remote reserve in northwestern Ontario located approximately 200 km northwest of Sioux Lookout. About 700 people live on the reserve. The community is accessible primarily by air, with winter road access at times. Services include a Band Office, a Nursing Station/Healing Centre, and a NAPS (Nishnawbe-aski Police Service) detachment. There was one NAPS officer in the community at the time of this incident.

9Mr. Gray lived with Austin and three other sons in a bungalow style home on Lakeside Road. To the left of the house, facing Mr. Gray’s home from the road, is the nursing station some distance away. To the right, about 260 meters away, is Susan Shingebis’ house. Susan Shingebis is Austin’s grandmother. It is admitted that it takes just under four minutes to walk between the two residences. Just beyond Ms. Shingebis’ home is the Band Office.

10Mr. Gray’s home had four bedrooms. The main floor was elevated above a three-foot-high crawlspace that was used for storage. The home was entered by ascending a staircase leading up to a landing at the front door. Upon entering the doorway there was a living room area that extended to a kitchen area with a table and chairs. To the left of the kitchen/living room area was a hallway that led first to a bathroom on the left, one of the other son’s bedrooms on the right, then another bedroom on the left shared by Mr. Gray and his girlfriend, Amy Keesickquayash, then another bedroom on the right shared by two other brothers. At the end of the hallway was Austin’s room. That room had the access to the crawlspace. The room appeared to be a converted porch. It had a door leading to a small storage area and in that room, there was another exterior door. That door was not used and was tied closed with a rope. Therefore, the only way to enter or exit the home was through the front door. A laundry room was located off the kitchen and behind the bathroom.

The Witnesses

Austin Wesley

11Although Austin has no memory of the shootings or the events immediately preceding or subsequent, he testified. He has always lived with his father and brothers but would stay with his grandmother, Susan Shingebis, if he had an argument with his father. When they argued it was usually about Austin not having a job or not contributing to the household.

12Austin stopped attending school after grade six or seven. He was not employed but would help his brother with woodcutting.

13Austin was an experienced hunter, often hunting every day. He owned four firearms: a pump action .308 Remington rifle with a four-shot magazine or clip, two shotguns and a .303 rifle. He described the .308 as his primary moose gun. He described himself as a “pretty good shot.” He acknowledged that he was aware of the damage that a bullet could do when a moose is shot in the area of the heart and lungs.

14Usually, the firearms and ammunition were stored in the crawlspace. However, if he was hunting the next day, he would keep the firearm and ammunition in his bedroom.

15He testified that he was not a regular drinker, drinking only once or twice a month, if at all. He had never experienced a “blackout” until this incident.

16The day before the shootings Austin was hunting moose by snowmobile. His snowmobile broke down and he got a ride back to the community with a fellow hunter. His intention was to retrieve his snowmobile the next day. That day, his father and his girlfriend had switched rooms with Austin so that Austin was in the room at the end of the hallway with the crawlspace access. Austin was not involved with the move. He testified that the .308 Remington rifle was left standing in the corner of that room. He said it was unloaded and the clip, containing four bullets, was on the bed in that room.

17On December 6, he woke up before noon on the couch in the living room. He did not remember whether that is where he went to bed because he was “really stoned” from marijuana. He wanted to retrieve his snowmobile, but his father did not want him to go because it was snowing heavily. He spent the afternoon playing video games in his brother’s room. The only other persons present were his father and Amy and perhaps his younger brother, Darien, as his other brothers had left. Darien left before the shootings began.

18Late in the afternoon, his friend Tyrese Shakakeesic arrived. Tyrese had just turned 18 a few days before. He brought alcohol and wanted to celebrate. Tyrese had a 26-ounce bottle of vodka and two mickeys of rye. Initially, Tyrese and Austin started drinking in Austin’s room. Shortly thereafter, Mr. Gray asked them to go to the store for some items and to drop off a letter at the Band Office. Tyrese and Austin took Mr. Gray’s truck. When they returned after the errands, they went back to Austin’s room and continued drinking and smoking marijuana. At one point, Austin showed Tyrese his .308 Remington and Mr. Gray saw them handling the rifle through the open doorway and had them stop, telling them that he did not like them handling guns while they were drinking. Austin returned the rifle to the corner of the room. He testified that he thought the ammunition clip was on the bench at that point. They continued drinking in the room, but later Mr. Gray had them move to the kitchen. At that point, Austin said that he was starting to get drunk.

19Austin sat at the kitchen table with his father and his friend. He could not recall whether they were playing cards or dice but remembers looking at maps and discussing his previous day’s hunting trip. He said that Amy was mostly in his father’s room.

20He thought they were drinking at the kitchen table for about two hours. He remembered that he and Tyrese had drank a mickey and most of the 26-ounce bottle of vodka. He remembered grabbing the other mickey out of the freezer and thought that he was “pretty drunk”. He remembered Tyrese urging him to chug the mickey down. He thinks that he drank about half of the mickey and cannot recall much else that happened.

21He has memories or flashbacks of seeing his father on the floor and prodding him with his foot, of sitting on the couch, of being outside and seeing a bright light, and of being in the back of a police cruiser with his hands behind his back and yelling.

22Mr. Wesley’s examination in chief concluded with this exchange:

Q. Did you want to shoot your dad that day?

A. That day?

MR. SEIB: Yeah.

A. No.

Q. Have you ever wanted to shoot your dad?

A. No.

Q. Did you want to shoot Tyrese that day?

A. No. I didn’t....

Q. Have you ever wanted to shoot Tyrese?

A. No.

Q. Did you intend to shoot Amy that day?

A. No.

Q. Okay. Have you ever wanted to shoot Amy?

A. No.

Q. Okay. Have you ever been this drunk before in your life?

A. No.

Amy Keesickquayash

23Ms. Keesickquayash described Mr. Gray as her best friend. She is 34 years old. She assisted Mr. Gray with household chores like laundry and cleaning because Mr. Gray had his right arm amputated because of an accident in his teens.

24On the morning of December 6, she woke up in Mr. Gray’s room. Mr. Gray had been out to the nursing station that morning. She spent most of the day in Mr. Gray’s room watching videos on a laptop.

25Later, in the afternoon, Tyrese arrived, and she heard them celebrating in Austin’s room. She was aware that they were drinking and later she heard Mr. Wesley arguing with his father in the kitchen while she was still in Mr. Gray’s room. The argument was about Austin drinking and not having a job. She could tell from his speech that Austin was “really drunk”. She heard Austin tell his father that “you’re never happy with what I do” or words to that effect. As this discussion was taking place, she came out of Mr. Gray’s room and saw Austin grab his father and throw him down to the floor. She saw Tyrese then jump on Austin’s back to restrain him with his arms around Austin’s chest, his hands just behind Austin’s head and his legs wrapped around Austin’s midsection.

26After the altercation, she said that Austin then left the house. A bucket with mop water from the day before had been knocked over and she started to mop the water up.

Ronald Gray

27Ronald Gray is Isaac Gray’s eldest son. He had been to his father’s house to borrow the truck. While there, he saw Austin, Tyrese, and his father. He could tell that Austin and Tyrese were drinking. He got the keys to the truck and left.

28About 20 minutes later he was on his way back to return the truck when he saw Austin walking on the roadway towards Susan Shingebis’ house. He said that his brother was clearly drunk, walking almost in the middle-of-the-road. He said that his brother did not recognize the truck or make any attempt to move from the middle of the roadway.

29He went into his father’s home to return the keys, but his father told him to take the truck. He saw that something was spilled on the floor and that things were out of place. His father told him that this was family stuff and not to worry about it.

Susan Shingebis and James Shingebis

30Neither Ms. Shingebis nor her son, James, speak English. They gave their evidence through a translator.

31They testified that Austin arrived at their house and was very intoxicated, so intoxicated that Ms. Shingebis stayed outside when Austin went into the house. She asked James to call the police because Austin was not wanted at her house because he was intoxicated.

32She fell into the snow when Austin was near. She said she was pushed but conceded in cross-examination that it was possible that Austin stumbled into her because he was so intoxicated.

Amy Keesickquayash

33Ms. Keesickquayash said that Austin was gone less than 10 minutes and came back into the house swearing and angry. She testified that Austin was telling Mr. Gray and Tyrese to leave him alone and to get out of his way. She went back into Mr. Gray’s room when Austin returned.

34She heard Austin storming into his room and heard the door slamming behind him. She could hear him telling Mr. Gray and Tyrese to leave him alone. She heard Mr. Gray trying to calm his son down but then heard Austin say, “go ahead and call the cops”. Mr. Gray responded that no one was going to call the cops and that is when she heard the sound of a door being kicked open and slamming against the wall. She heard Austin say “who is a fucking pussy now eh Isaac. Who’s a fucking coward now eh Isaac?” From her room through the doorway, she saw Mr. Gray raise up his arm and then she heard a shot and saw Mr. Gray grab his chest and fall.

35She saw Tyrese run, and then Austin run after him. She heard a gunshot outside and then another gunshot shortly thereafter. She had grabbed a towel to give first aid to Mr. Gray and she said he was telling her to run.

36The distance from the doorway to Austin’s room to where Mr. Gray fell was about 4 m. The bullet entered his right chest disrupting the right and left ventricles of his heart. His blood alcohol level was .084 percent.

Constable Chris Head

37Constable Head attended at Susan Shingebis’ home in response to the call that Austin was there and unwanted as he was intoxicated. When Constable Head discovered that Austin was not there, he drove to Mr. Gray’s residence in his NAPS vehicle.

38As he approached the Gray residence, about 50 m away, he saw a male running through the snow with no shirt. That person went up the stairs and into the house.

39When he got out of his vehicle and approached the house, he heard a voice say, “I’ve been fucking shot.” He got his flashlight and saw a person laying in the snow. He pulled his firearm and observed movement within the house.

40He saw someone come to the doorway twice. The third time, the person with no shirt opened the front door and came out with his hands in the air.

41Constable Head estimated five minutes had elapsed from the time he saw the person running into the house until the person exited although in cross-examination, he admitted that it could have been three to five minutes.

Amy Keesickquayash

42When Ms. Keesickquayash heard Austin return inside, she hid. She went back to Mr. Gray’s room and attempted to open a window, but it was frozen closed. She took off her boots so that her footsteps could not be heard. She said that Austin yelled out her name, said he knew that she was in the house, and said that he was going to “blast” her “too”. As she heard him enter his room, she snuck into the room across the hall to check the window in that room. It was also frozen, so she hid behind the door. Through the crack at the door hinge, she saw Austin walk by holding the rifle. She said that Austin told her he was looking for her and yelling “Amy where are you, like fucking bitch …see what they made me do.” She heard him searching in the laundry room - she heard the dryer door close - and in the kitchen – she heard cupboard doors close. She then snuck back across the hall to Mr. Gray’s room since she had heard Austin in there before. She hid in the closet alcove and saw Austin come into that bedroom and try and get the window open by pounding on it with the butt of his rifle. She thought he was doing that because he saw the police cruiser outside.

43He left the room and then she heard him say “fuck it.” It became quiet in the house and she moved to another bedroom, looked out the window and saw Austin in the snow with his hands being handcuffed behind his back by the NAPS officer.

44The .308 rifle was found by the couch in the living room with a round in the chamber.

Constable Chris Head

45According to Constable Head, as Austin came out of the house walking through the snow he almost fell. He placed him on his belly and handcuffed him. He told Austin that he was arresting him for shooting a person. Austin replied “I did it. I did it.” Austin was placed in the back of the NAPS vehicle.

46Rebecca Boyce had driven up in her vehicle with Roy Keesickquayash. Constable Head approached the person laying in the snow who was later determined to be Tyrese. He was not moving. He was found approximately 15 meters from the doorway of the house. He had been shot twice. One injury was a grazing injury to his left lower back. The other was a bullet wound to the left upper chest which exited through the back of the chest. Tyrese bled to death. He had a blood alcohol level of .197 percent.

47With Roy’s assistance Tyrese was placed in the rear of Rebecca’s vehicle. Both vehicles proceeded to the nursing station.

Rebecca Boyce

48Rebecca is Isaac Gray’s sister. As she and Roy were driving past the Gray home, she saw Austin coming out of the house with his hands up. When they stopped, Austin was in the snow and then in the back of the cruiser.

49Tyrese was placed in the back of her truck. He did not move or make a sound. Once they were at the nursing station, Tyrese was moved inside using a stretcher. Inside, she observed a 26-ounce vodka bottle that was less than half full that had been in Tyrese’s coat.

50She was asked by Constable Head to watch Austin in the back of the cruiser. Austin was yelling. Some of what he said was unintelligible, but she heard him say “I’m sorry – I shot my dad. He is dead at the house.” She could tell he was highly intoxicated.

Roy Keesickquayash

51Roy saw Austin trip as he came down the stairs and through the snow. He saw Constable Head handcuff Austin and place Austin in the back of the cruiser.

52He helped put Tyrese in the back of Rebecca’s pickup truck and noted that Tyrese was not moving or speaking.

53At the nursing station he replaced Rebecca who was watching Austin. Roy sat in the front of the cruiser. He said that Austin was crying and yelling that he shot his dad – “I shot your friend.” In cross-examination, he agreed that some things that Austin said did not make sense and that, at one point, Austin said something like “I didn’t know it would kill my dad.” He described Austin as highly intoxicated.

Constable Head

54Despite the efforts of the staff of the nursing station and a trauma physician via teleconference, Tyrese could not be revived.

55Constable Head proceeded to the detachment with Roy. Video taken of the detachment garage depicts Austin stumbling as he was taken into the detachment. Constable Head admitted that Austin would have probably fallen over had he not been holding onto him.

56Austin was lodged in a cell and his clothing was removed. Constable Head heard Austin say, “I killed my fucking Dad.”

57After leaving a guard with Austin, Constable Head and Roy went to Mr. Gray’s house where they found Amy at the front door crying and Mr. Gray unresponsive. Constable Head cleared the residence and saw the .308 pump action rifle leaning against the couch.

Mr. Wesley’s state of intoxication

58The two witnesses who had the most contact with Austin around the time of the incident and after were Amy Keesickquayash and Constable Head.

59Amy Keesickquayash testified that Austin was “blackout, fall down drunk.” She said that she had never seen him like that – “like his eyes were different”, “like he’s there, but not all there”. She said that she knew he was blacked out because he never “disrespected” his father.

60Constable Head had never dealt with Austin when he was intoxicated. His initial impression was that Austin was intoxicated and once they removed him from the NAPS vehicle, he determined that Austin was highly intoxicated.

61The following facts about the effects of alcohol were admitted:

Alcohol is a central nervous system (CNS) depressant.

• The effects of alcohol are directly related to the blood alcohol concentration (BAC), which is directly related to the amount of alcohol consumed. This means that as BAC increases, the central nervous system depressant effects increase as well.
• In addition to BAC, the effects of alcohol are highly dependent upon the degree of tolerance the person has developed. The effects of alcohol are also dependent upon a number of other factors, including circumstances/setting of the drinking episode, health of the individual, co-administered drugs, pattern of drinking, concentration of alcohol consumed.
• Alcohol has disinhibitory effects which can modify behaviour.
• Alcohol can cause a variety of CNS depressant effects, including initial feel good effects, drowsiness, sedation, possible confusion, motor (gross and fine) incoordination, slurred speech, impaired consciousness etc.
• It is not possible for a toxicologist to offer any opinions regarding what a conscious person, who is under the influence of alcohol, is thinking, what type of behaviours they may or may not display, whether or not a person can form intent to commit a crime, whether or not they can make rational reasoned decisions etc. Behavioral questions are in the realm of a forensic psychiatrist.

Positions of the Parties

Mr. Wesley

62Relying upon R. v. Daley¹, counsel for Mr. Wesley submits that the evidence demonstrates that Mr. Wesley was in state of “advanced” intoxication such that Mr. Wesley lacked specific intent “to the extent of an impairment of the accused’s foresight of the consequence of his … act sufficient to raise a reasonable doubt about the required mens rea.”²

63Counsel for Mr. Wesley accurately states that all witnesses, including the NAPS Constable, testified that Mr. Wesley was highly intoxicated. He submits that Amy Keesickquayash’s observations support the conclusion that Mr. Wesley was in a particularly advanced degree of intoxication and points to her observations that Mr. Wesley was “blackout, fall down drunk...” “like his eyes were different… “like he’s there, but not all there.” She also testified that Mr. Wesley’s behaviour was uncharacteristic. She said that he never “disrespected his father”. Mr. Wesley’s brother, Ronald observed Mr. Wesley walking down the middle of the roadway and not moving or otherwise acknowledging the approaching vehicle. All witnesses who observed him in the cruiser noted Mr. Wesley’s unintelligible and, at times, incoherent utterances. Roy Keesickquayash heard Mr. Wesley say something like “I didn’t know it would kill my dad.”

64All these observations, submits Mr. Wesley’s counsel, raise a reasonable doubt about whether Mr. Wesley appreciated the consequences of his actions due to his advanced intoxication.

65Additionally, with respect to the charge of attempted murder, counsel for Mr. Wesley submits that there was no act which constituted attempted murder, but concedes that, if Ms. Keesickquayash’s evidence is accepted, the facts support a conviction for uttering threats.

The Crown

66The Crown points to 18 reasons establishing intent and knowledge of the consequences:

1. Mr. Wesley’s choice of weapon and knowledge of firearms.
2. Mr. Wesley’s experience in hunting and cleaning shot animals.
3. Mr. Wesley statement to “go ahead, call the cops” indicating awareness of the consequences of his actions before the shooting.
4. Mr. Wesley’s selection of his victims, his father and friend, whom he had argued and fought with, and Amy Keesickquayash, the only eyewitness.
5. Mr. Wesley’s words to his father at the time of the shooting “who’s a fucking pussy now, eh Isaac? Who’s a fucking coward now, eh Isaac?” are evidence that he knew the consequences of pointing a rifle.
6. That Mr. Wesley shot Mr. Gray in the chest is evidence of his intent to cause death or bodily harm that he knew was likely to cause death.
7. That Mr. Wesley shot Mr. Shakakeesic in the chest is evidence of his intent to cause death or bodily harm that he knew was likely to cause death.
8. That Mr. Wesley had the fine and gross motor skills necessary to hit a running target, twice, is evidence of his intent to cause death or bodily harm that he knew was likely to cause death.
9. The steps required in loading the firearm and firing three times and then loading another round in the chamber are evidence of his intent and knowledge of the consequences.
10. Identifying that Ms. Keesickquayash was still in the house is evidence of his intent to murder her.
11. Threatening to “blast” Ms. Keesickquayash “too” is evidence of his intent to murder Mr. Gray and Mr. Shakakeesic and Ms. Keesickquayash.
12. That Mr. Wesley was immediately aware of what he had done - “see what they made me do” - is evidence of his intent and knowledge of the consequences.
13. Calling out for Ms. Keesickquayash and searching throughout the house for her is evidence of his intent to murder her.
14. The fact that Mr. Wesley appeared to have panicked and attempted to escape when the police arrived – going to the door twice before surrendering and trying to open or break a bedroom window – is evidence that Mr. Wesley was aware of what he had done.
15. Acknowledging that he “did it” when arrested for shooting someone is evidence that Mr. Wesley was aware of what he had done.
16. Telling Rebecca Boyce that he shot his dad is evidence that Mr. Wesley was aware of what he had done.
17. Telling Roy Keesickquayash that “I shot your friend” is evidence that Mr. Wesley was aware of what he had done.
18. A permissive, not presumptive, inference is that a person usually knows the predictable consequences of his actions.³

67The Crown notes that Mr. Wesley was not so intoxicated as to not be able to load and use a firearm and hit a running target. Mr. Wesley was aware of what he had done, and that Ms. Keesickquayash was still in the house. There is nothing in the evidence to suggest the contrary: What did I do? Where am I? What just happened? The Crown notes that there is no supporting expert evidence opining on the lack of intent.

68Relying upon R. v. Daley, the Crown submits that “a drunken intent is nonetheless an intent.”⁴

69With respect to the charge of attempted murder upon Ms. Keesickquayash, relying upon R. v. Boone⁵ and R. v. Boudreault⁶ the Crown submits that the Crown must prove, beyond a reasonable doubt, the specific intent to kill combined with conduct by Mr. Wesley for the purpose of carrying out the intention to kill that is more than merely preparatory.

70The Crown notes that Mr. Wesley had just killed two other people and that he was actively searching for her calling her name. He had the gun with him with another round loaded in the chamber. He expressly told her that he was going to “blast” her “too”. The Crown submits that these actions are more than merely preparatory and that the Crown has proven attempted murder beyond a reasonable doubt.

Analysis

Second Degree Murder

71In this case, the only issue is whether Mr. Wesley had the state of mind required for murder.

72The Crown must prove, beyond a reasonable doubt, that Mr. Wesley either intended to kill or intended to cause bodily harm that he knew was likely to cause death and was reckless whether death ensues or not.

73Pointing and firing a .308 calibre rifle, a weapon designed to kill large game, at a person’s chest is likely to kill or cause bodily harm likely to cause death.

74As stated by the Crown, a permissive, not presumptive, common sense inference is that a person usually knows the predictable consequences of his actions.

75In determining whether it is appropriate to draw the common sense inference that Mr. Wesley intended the natural consequences of his actions, I must consider evidence of his impairment at the time.

76I accept that Mr. Wesley was highly intoxicated. He and Mr. Shakakeesic consumed alcohol together. Mr. Shakakeesic had a blood-alcohol level of just under .20. There is evidence, which I do accept, that, before and after the killings, Mr. Wesley was having difficulty maintaining his balance. There is also evidence, which I do accept, that he was very emotional and crying and sometimes incoherent while in the back of the cruiser. There is also evidence, which I do accept, that his behaviour in fighting and disrespecting his father was uncharacteristic.

77In assessing intent to kill or intent to cause bodily harm that is likely to cause death, I can consider the experience and skills of the accused.

78Despite his young age, Mr. Wesley was an experienced hunter. He was skilled in the use and operation of his 308 pump action rifle. He knew, firsthand, the traumatic effects caused by a bullet entering the chest cavity of a moose.

79I accept the evidence of Amy Keesickquayash as to what she heard and saw that evening. Her evidence was not significantly impeached at trial.

80Despite his impairment, upon returning to his room, Mr. Wesley was capable of locating his rifle, locating the ammunition clip, inserting the clip into the rifle, chambering a round by activating the pump, and ensuring that the safety was off.

81He kicked or opened his door and confronted his father with the loaded rifle threatening him with the words “pussy” and “coward”.

82He aimed the rifle at his father, who was no more than 4 meters away, and shot him in the chest.

83He followed and chased Mr. Shakakeesic outside while chambering another round.

84He aimed and fired at Mr. Shakakeesic shooting him with either a grazing or a fatal wound.

85He chambered another round and aimed and fired at Mr. Shakakeesic again, shooting him with either a grazing or fatal wound.

86He chambered another round and re-entered the house.

87The subsequent statements by Mr. Wesley heard by Ms. Keesickquayash, Constable Head, Ms. Boyce, and Mr. Keesickquayash demonstrate that Mr. Wesley was aware of his actions. I accept that Mr. Wesley was incoherent at times while observed and that Mr. Keesickquayash heard something like “I didn’t know it would kill my dad”. However, I accept that Mr. Wesley told Mr. Keesickquayash, Ms. Boyce, Constable Head and Ms. Keesickquayash that he shot and killed that night.

88At the end of his examination in chief Mr. Wesley, who had no memory of the shootings, testified that he did not want to kill anyone. That testimony is inconsistent with his actions.

89Immediately after the shootings Mr. Wesley voiced his understanding of what he had done. I am satisfied, beyond a reasonable doubt, that Mr. Wesley, as an experienced hunter, intended to kill Mr. Gray and Mr. Shakakeesic. He knew what firing a large calibre bullet into the chest cavity of a moose would do. He shot into his father’s chest cavity and into his friend’s chest cavity. The steps required to intentionally kill a moose were identical to the steps that Mr. Wesley took to kill Mr. Gray and Mr. Shakakeesic. All of the evidence of Mr. Wesley’s actions and words, before and after the shootings, lead to the conclusion that he intended to kill Mr. Gray and Mr. Shakakeesic.

90Consequently, I find Mr. Wesley guilty of second-degree murder in the deaths of Mr. Gray and Mr. Shakakeesic.

Attempted Murder

91The indictment accuses that Mr. Wesley “did attempt to murder Amy Keesickquayash while using a firearm, threatening to kill Amy Keesickquayash while holding a rifle, contrary to section 239(1) (a.1) of the Criminal Code.”

92The crime of attempted murder requires proof beyond a reasonable doubt that the accused intended to kill⁷, coupled with conduct by the accused done for the purpose of carrying out that intention. The conduct must amount to “some act more than merely preparatory.”⁸

93In R. v. Boudreau⁹, the Nova Scotia Court of Appeal considered an appeal from a conviction for attempted murder when Mr. Boudreau pointed a rifle at his former partner.

94On the issue of whether Mr. Boudreau’s actions went beyond “mere preparation”, MacDonald C.J.N.S. followed authority from the Supreme Court of Canada stating:

28 The question of when preparation ends and an actual attempt begins has, over the years, been the subject of significant commentary by both judges and academics. The leading authority on this issue is the Supreme Court of Canada decision of R. v. Deutsch, 1986 21 (SCC), [1986] 2 S.C.R. 2. Here, Le Dain, J., beginning at para. 26, found the distinction to be a "qualitative one" premised on "common sense":

26 Several different tests for determining whether there is the actus reus of attempt, as distinct from mere preparation to commit an offence, have been identified as reflected at one time or another in judicial decisions and legislation. All of them have been pronounced by academic commentators to be unsatisfactory in some degree. For a thorough analysis of the various tests, with suggestions for an improved test, see Meehan, The Law of Criminal Attempt -- A Treatise, 1984, chapter 5, and Stuart, Canadian Criminal Law, 1982, pp. 529 ff. There is a succinct appraisal of the various tests in the English Law Commission's Report No. 102 of 1980 entitled, Criminal Law: Attempt, and Impossibility in relation to Attempt, Conspiracy and Incitement. It has been frequently observed that no satisfactory general criterion has been, or can be, formulated for drawing the line between preparation and attempt, and that the application of this distinction to the facts of a particular case must be left to common sense judgment. See, for example, Kelley v. Hart (1934), 1934 358 (AB CA), 61 C.C.C. 364, per McGillivray J.A. at p. 370; R. v. Brown, 1947 381 (ON CA), 88 C.C.C. 242, [1947] O.W.N. 419, per Laidlaw J.A. at p. 421; R. v. Cline (1956), 1956 150 (ON CA), 115 C.C.C. 18, per Laidlaw J.A. at p.26; and Haughton v. Smith, [1975] A.C. 476, per Lord Reid at p. 499. Despite academic appeals for greater clarity and certainty in this area of the law I find myself in essential agreement with this conclusion.

27 In my opinion the distinction between preparation and attempt is essentially a qualitative one, involving the relationship between the nature and quality of the act in question and the nature of the complete offence, although consideration must necessarily be given, in making that qualitative distinction, to the relative proximity of the act in question to what would have been the completed offence, in terms of time, location and acts under the control of the accused remaining to be accomplished. I find that view to be compatible with what has been said about the actus reus of attempt in this Court and in other Canadian decisions that should be treated as authoritative on this question. [Emphasis added.]

95In upholding the conviction for attempted murder, MacDonald C.J.N.S. noted that the trial judge had evidence of the accused doing the following:

• either before entering Ms. Boudreau's kitchen or on Ruby Swaine's veranda, loading the gun with three bullets,
• carrying the gun from his car to the victim's home with "one hand in the trigger area",
• pointing the gun at his victim on at least three occasions,
• following his victim across the street to Ms. Swaine's home,
• attempting to kick Ms. Swaine's door open.¹⁰

96As the Ontario Court of Appeal noted in R. v. Gordon¹¹, “injury to the victim is not an essential element of the crime of attempted murder.”

97Mr. Wesley had chambered another round after he shot Mr. Shakakeesic the second time. When he re-entered the house, he called Ms. Keesickquayash’s name saying that he knew she was in the house. He announced to Ms. Keesickquayash that he was going to “blast” her “too”.

98I am satisfied, beyond a reasonable doubt, that the Crown has proven that Mr. Wesley had the intent to kill Ms. Keesickquayash.

99As to conduct, “some act more than merely preparatory”, the evidence discloses that Mr. Wesley:

– chambered another round after killing two other persons; – carried the rifle with him in the house as he went from room to room; – called out to Ms. Keesickquayash asking where she was; and – actively searched for Ms. Keesickquayash in the bedrooms, the laundry room, and the kitchen.

100While some of Mr. Wesley’s movements within the house were consistent with an intention to escape, such as going to the door twice and attempting to break the window in Mr. Gray’s room, his actions in searching cupboards and the dryer are consistent only with searching for Ms. Keesickquayash as he shouted out for her.

101These actions took place immediately after Mr. Wesley had shot and killed Mr. Gray and Mr. Shakakeesic. The only remaining acts to be accomplished by Mr. Wesley were to find and shoot Ms. Keesickquayash. Fortunately, he did not find her and surrendered.

102Assessed qualitatively, in these circumstances I am satisfied that Mr. Wesley’s actions went beyond “mere preparation” and constitute an attempt to murder Ms. Keesickquayash.

103Consequently, I find Mr. Wesley guilty of attempting to murder Ms. Keesickquayash.

Conclusion

104On Count 1, I find Mr. Wesley not guilty of first-degree murder but guilty of second-degree murder on the person of Isaac David Gray contrary to section 235(1) of the Criminal Code.

105On Count 2, I find Mr. Wesley not guilty of first-degree murder but guilty of second-degree murder on the person of Tyrese Jerome Shakakeesic contrary to section 235(1) of the Criminal Code.

106On Count 3, I find Mr. Wesley guilty of attempting to murder Amy Keesickquayash while using a firearm, threatening to kill Amy Keesickquayash while holding a rifle, contrary to section 239(1) (a.1) of the Criminal Code.

107On Count 4, I find Mr. Wesley not guilty of committing an assault on the person of Susan Shingebis, contrary to section 266 of the Criminal Code.

108I wish to thank counsel for their assistance in this difficult case and commend them for their cooperation in narrowing the issues for trial and agreeing on admissions and exhibits.

The Hon. Mr. Justice W. D. Newton

Released: November 9, 2021

COURT FILE NO.: CR-19-13-00 DATE: 2021-10-09

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

Crown

• and –

AUSTIN WESLEY

Accused

REASONS

Newton J.

Released: November 9, 2021

/cjj

24(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.

Footnotes

1. 12007 SCC 53.
2. 22007 SCC 53 at para. 41.
3. 3R. v. Walle, 2012 SCC 41 at para.63-64.
4. 42007 SCC 53 at para. 48.
5. 52019 ONCA 652.
6. 62005 NSCA 40.
7. 7The mens rea for attempted murder is the specific to intent to kill: R. v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225.
8. 8R. v. Boone, 2019 ONCA 652 at para. 49. Section 24(2) of the Criminal Code provides:
9. 92005 NSCA 40.
10. 102005 NSCA 40 at para. 29.
11. 112009 ONCA 170 at para 56.