Court File and Parties

OSHAWA COURT FILE NO.: CR-18-15006 DATE: 20220121

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

CORY FENN Defendant

COUNSEL: Michael Newell and David Slessor, for the Crown Self-Represented, for the Defendant Mary Cremer, as Amicus curiae

HEARD: September 20-24, 27-29, October 1, 4-7, 12, 18, and 25, 2021

REASONS FOR JUDGMENT

LEIBOVICH J.

[1] Mr. Fenn is charged with three counts of second-degree murder. He is charged with the second-degree murder of Krassimira Pejcinovski (Krissy), and two of her children, Ratomir Pejcinovski (Roy), who was 14 years old at the time, and Venellia Pejcinovski (Vana), who was 13 years old. Given that all the victims share the same family name, for the sake of clarity, I will refer to them by their first names.

[2] Mr. Fenn is representing himself. He was represented by counsel throughout the preliminary inquiry and various appearances at the Superior Court of Justice. During the course of, and towards the end of, the pre-trial motion on alleged prior discreditable conduct, which commenced via Zoom, Mr. Fenn caused a commotion ending that Zoom appearance. Eventually Mr. Fenn was brought back in person before the court. His counsel at that time brought a request for a fitness assessment, pursuant to s. 672.11 of the Criminal Code. It was granted on consent. On September 3, 2021, the report came back indicating that Mr. Fenn was fit to stand trial. Mr. Fenn discharged his counsel and indicated that he wanted to represent himself and wanted a judge alone trial. The Crown consented, and Mr. Fenn officially re-elected to a judge alone trial. The trial was supposed to start on September 13, 2021, but it was agreed by all, including Mr. Fenn, that the trial should be adjourned a week to September 20, 2021. On September 20, 2021, Mr. Fenn confirmed again that he did not want a jury trial and that he wanted to be tried by judge alone. He also confirmed that he wanted to represent himself.

[3] I appointed, over Mr. Fenn’s objection, his former counsel, Ms. Cremer, to act as amicus curiae. It was apparent to me, given Mr. Fenn’s earlier comments that led to the fitness assessment and the comments he made when he discharged counsel on September 3, 2021, that the appointment of amicus curiae was necessary to ensure that Mr. Fenn receive a fair trial. Amicus curiae was allowed to make legal submissions and to cross-examine witnesses. Any cross-examination by amicus curiae was done after Mr. Fenn exercised his opportunity to cross-examine. In R. v. Walker, 2019 ONCA 765, the Court of Appeal discussed at paras. 60-61 a judge’s duty to ensure a fair trial and the appointment of amicus curiae:

Judges have an overarching duty to protect the fairness of the proceedings before them. In the case of self-represented accused, there is a heavy onus placed upon judges to provide them with assistance: R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at para. 112. That obligation arises from the judge's role as the ultimate guardian of fair proceedings.

Judges are frequently called upon to perform difficult balancing exercises: preserving their judicial roles as neutral and objective deciders, while at the same time assisting self-represented accused with advancing full answer and defence. In rare situations, despite a judge's best efforts, he or she will not be in a position to alone ensure the fairness of a proceeding. In those situations, amicus curiae may be required to assist the court in meeting that obligation.

[4] Using the language set out in R. v. Walker, Ms. Cremer’s role in this case as amicus curiae was to assist the court by providing a perspective that Mr. Fenn was simply unable of providing himself; a perspective that was meant to go some distance to restoring the balance within the adversarial process of this serious criminal proceeding. As stated in R. v. Walker at paras. 72 and 119:

The amicus' role in this case was not to help the court at large. The court did not need help at large. Nor was it to assist in advancing submissions already before the court through the capable assistance of experienced Crown counsel.

It was the responsibility of amicus to say what could be said on behalf of Ms. Walker. If she could not find anything to say in favour of Ms. Walker, then her obligation was to say nothing that could undermine Ms. Walker's interests.

[5] Mr. Fenn was provided with an electronic copy of the disclosure and before each witness he was also provided with a hard copy of their prior statements and testimony. Sylvia Verestoi was under the age of 18 when she testified. I appointed Ms. Cremer to conduct her cross-examination, pursuant to s.486.3(1) of the Criminal Code. Victoria Pejcinovski (Victoria) was 20 at the time she testified at trial. The Crown asked that I make an order pursuant to s. 486.3(3) to allow only Ms. Cremer to conduct her cross-examination. Mr. Fenn indicated that he did not intend to cross-examine Victoria and I made the requested order. The order was necessary for a full and candid account and was in the interest of the proper administration of justice. Mr. Fenn requested, and was provided with a Criminal Code of Canada, a Black’s Law dictionary and an Oxford English dictionary. He was also provided with an electronic and hard copy of a manual to assist self-represented individuals in judge alone trials.

[6] Mr. Fenn has stated on occasion before the trial and during the trial that he found his soul at the Toronto South Detention Centre, that he was inanimate before and he is therefore not responsible for any prior acts. These comments and others like them did not cause me any concern that I should revisit the fitness issue and order a new assessment. He said similar comments in court prior to being assessed. I have observed Mr. Fenn closely throughout the proceedings and I am satisfied that Mr. Fenn is fit and has been fit throughout. He has politely refused to cross-examine any witnesses. He has chosen, as is his right, to remain silent. The burden is on the Crown to prove Mr. Fenn’s guilt beyond a reasonable doubt for each offence. Mr. Fenn comes before the court with the presumption of innocence. In other words, he has a clean slate. The presumption is only discharged when, and if, the Crown proves Mr. Fenn’s guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case. Mr. Fenn does not have to prove anything. The Crown is required to prove the essential elements of each offence beyond a reasonable doubt. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of Mr. Fenn beyond a reasonable doubt: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.

Evidence called at trial

Brief overview

[7] Krissy lived at 36 Hilling Drive with her three children, although her son Roy often lived with his dad as it was easier for him to take Roy to hockey. The girls had rooms upstairs. Roy’s room moved around in the house. Sometimes he would stay in his mom’s room, which was a makeshift bedroom in the main room. Mr. Fenn was dating Krissy and had been for approximately a year. Mr. Fenn lived in the basement apartment at 36 Hilling Drive. It had a separate entrance and it could only be accessed from the outside.

[8] On March 14, 2018, Krissy, who was an aesthetician working at Spa Sedona, did not show up for work, nor did she pick up her daughter, Victoria, to take her for her driving lessons. Krissy’s boss, Sherry Robinson, was concerned. She attended Krissy’s house. The police were called. Roy’s deceased body was found on the main floor of the residence, then Vana was found, barely alive, in Mr. Fenn’s basement apartment. She received medical treatment and was taken to the hospital, but she died at 10:10 p.m. that night. Approximately three hours after Roy and Vana were found, the police discovered Krissy’s deceased body under a pile of tires and garbage bags in the garage.

[9] The police arrested Mr. Fenn at 6:20 p.m. on March 14, 2018. Mr. Fenn was found in a loft/shelf area of a backyard shed at 81 Phillips Street in Oshawa, the address of Mr. Fenn’s ex-girlfriend and mother of his two children. He provided a video statement to the police the next morning. I was satisfied beyond a reasonable doubt that the statement was given voluntarily. My reasons for admitting the statement can be found at R. v. Fenn, 2022 ONSC 284, 2022 ONSC 0284. The Crown called experts in forensic pathology, DNA analysis, and blood splatter. The Crown also called Dr. Woodall and Dr. Klassen who testified about cocaine induced psychosis.

The relationship between Mr. Fenn and Krissy

[10] The Crown elicited evidence from Krissy’s surviving daughter, co-workers, and supervisor regarding her relationship with Mr. Fenn.

[11] Victoria testified that in the beginning of their relationship, Mr. Fenn would spend time upstairs but as the relationship progressed, he was there less and less. Towards the end, Mr. Fenn spent all his time in the basement. Victoria testified that she could hear Krissy and Mr. Fenn arguing through the kitchen and upstairs bathroom vent. She could hear yelling and angry voices but could not make out any words. Sometimes she would hear a bang, as if someone was banging a wall. The fights were more frequent towards the end of the relationship. They argued on and off. Not long after one argument, Mr. Fenn asked Victoria for her approval for him to propose to Krissy.

[12] Victoria testified that starting in the fall of 2017, her mother spent a lot more time with Mr. Fenn in the basement. Towards the end, Krissy would make the children dinner and then go and spend the night in the basement with Mr. Fenn. She would come back up in the morning and would drive Victoria to school. If she was not at work, Krissy was in the basement with Mr. Fenn.

[13] Victoria testified that Krissy and Mr. Fenn would break up and then get back together. Sometimes the break ups would last a few days, once it was a week. Ms. Ferlito, Krissy’s co-worker, testified as well that Krissy told her that they would break up and get back together a lot. It was hard for Ms. Ferlito to keep track of when they were dating or not. Ms. Robinson testified that in February 2018, Krissy told her that she had broken up with Mr. Fenn. Then in March 2018, Ms. Robinson was worried that Mr. Fenn was back in the picture.

[14] Ms. Robinson testified that Krissy came to her in November 2017 and said that Mr. Fenn did not want her giving massages to male clients. Ms. Robinson agreed not to require her to massage new male clients. A text exchange was entered into evidence between Krissy and Mr. Fenn where Mr. Fenn told her not to give massages to men.

[15] Ms. Robinson also testified that Krissy’s appearance changed and that starting in November 2017, she would arrive at work without makeup. She would then put her makeup on at the makeup bar at the start of her day but would then remove it at the end of the day. Krissy said that Mr. Fenn did not like it, it made her look old. Krissy told Ms. Ferlito that Mr. Fenn did not want her wearing makeup because it made her look like a slut. Victoria also testified that her mother stopped dressing up for work.

[16] Ms. Robinson agreed in cross-examination that Krissy was worried in November and December 2017 that Mr. Fenn was cheating on her and spending more time without her. Ms. Ferlito testified that Krissy also told her that she was worried that Mr. Fenn was cheating on her. Ms. Ferlito texted Mr. Fenn pretending to be a female friend, to see if he was in fact cheating.

[17] Ms. Robinson agreed in cross-examination that Krissy’s work had started to suffer, that she started to call in sick more than before, and she had problems arriving on time. Before, she had always been early. There was a concern that she was using drugs at home and that it was spilling over into her work. Victoria agreed that her mother started to take time off of work and called in sick a lot and that she had never done that before. Ms. Findlay and Ms. Ferlito, who both worked at the spa, also testified that Krissy’s work at the spa started to suffer. Ms. Ferlito testified that she saw Krissy come to work hungover from drinking and consuming drugs with Mr. Fenn. Ms. Findlay testified that Krissy had been extremely reliable. She always arrived at work early. She was the backbone of the spa. By the fall of 2017 that had changed. Krissy would arrive at the last minute, disheveled. She would be absent more often.

Mr. Furze

[18] Mr. Furze testified that on February 14, 2018, Valentine’s Day, Krissy called him and said she was single and asked him if he wanted to go to dinner. He said yes. They went to Boston Pizza. The dinner ended when her son called and asked to be picked up from hockey. Mr. Furze and Krissy did not date again. Shortly after that, Mr. Furze received a number of texts from Mr. Fenn on February 17th and March 1st. Mr. Furze was able to ascertain that they were from Mr. Fenn based on the texts. The texts were filed at trial. I will not detail them, except that they contained threats by Mr. Fenn because Mr. Furze had dated Krissy. Mr. Furze testified in cross-examination that he was not intimidated by the texts. He found them childish and immature. Mr. Furze said that he saw Mr. Fenn at the gym in between February 17th and March 1st. Mr. Furze said that while it appeared that Mr. Fenn was throwing punches in the mirror which were aimed at Mr. Furze, he did not fight or have any contact with Mr. Fenn.

The shoving and breaking of the cell phone

[19] In mid February, Krissy arrived at the spa upset. She told her supervisor and co-workers that the day before she had gone home, and Mr. Fenn was moving things. They got into a fight. He pushed her against the wall and her phone screen cracked. Her co-workers saw the broken phone.

March 13, 2018, the day before

[20] Victoria testified that on March 13, 2018, she came home from her driving lesson. She spent the rest of the day at home. She went to make dinner but could not find the proper utensils. She went into Mr. Fenn’s basement apartment. She knew he was not there. She saw what she believed to be a block of cocaine on the stove top with some lines as well. She was angry, upset, and disappointed. She spoke to Vana. They wanted to call the police, but they waited to speak to their mother.

[21] Victoria spoke to her mother when she came home. She told her mother that she did not want cocaine in her house and that Mr. Fenn had to leave. Her mother said that she was going to break up with him and to not worry. Victoria threatened to call the police. Her mother then went to the basement. Victoria testified that she was angry with her mother. She went and stayed at her father’s. Victoria left the house around 9:30 p.m. When she left, her mother, sister, her sister’s friend Sylvia and Mr. Fenn were all at the residence.

[22] Victoria testified that she spoke to her mother again later on that evening, either on the phone or via text, and asked if she could pick her up the next day for her driving lesson. The records from her phone indicate that Krissy’s last outgoing call to Victoria was at 8:23 p.m. on March 13, 2018.

[23] Sylvia Verestoi testified at the trial. She was friends with Vana. She was dropped off at Vana’s house around 7:00 p.m. There was shrimp on the stove. She testified that Victoria came into Vana’s room asking for money for an Uber. Roy came home later. He had been at a hockey game. He was in the living room playing Fortnight with a friend online.

[24] They decided to order a pizza. They ordered one pizza and Vana, Roy, and her split it. Sylvia and Vana made a video after midnight. Vana put on Victoria’s old graduation dress and went downstairs and showed Roy. The video was made an exhibit at trial.

[25] Sylvia testified that afterwards her and Vana left the house and walked to their school and back. When they returned, they watched “Mean Girls” until the end of the movie. Vana fell asleep first. Sylvia never saw Vana’s mother or Mr. Fenn that night.

[26] Steven Boehm worked at the LCBO at Bayly and Harwood in Ajax on March 13, 2018, and he served Mr. Fenn that night. He had previously seen Mr. Fenn in the store. Mr. Fenn would come in a couple of times a week. He was always polite and cordial. Mr. Boehm learned his name the next day when he read about the incident in the papers. He checked and confirmed the store’s camera footage. The still images entered into evidence showed Mr. Fenn arriving at the LCBO at 8:21 p.m. A minute later, he was at the cash and paying for a bottle of Grey Goose vodka. It appeared to be an extra-large size bottle of vodka. Mr. Boehm testified that Mr. Fenn’s speech seemed fine, there were no obvious signs of drug impairment or any indicia of impairment by alcohol. He had received training at work to recognize signs of impairment. He agreed that he did not receive as much training regarding signs of impairment by drugs. But he received some – he looked to see if an individual was sketchy, jittery, opening and closing their mouth. He had worked on the job for 22 years.

The morning of March 14, 2018

[27] Victoria testified that typically her mother would send her a text when she was on her way. Victoria did not receive a text that morning. Victoria texted her a number of times, asking her where she is. She texted Vana in the morning, asking her to find her mother. Vana said that she did not want to check on her because she was still in bed. She never heard from Vana again. Victoria’s phone records show that she started texting Vana at 10:20 a.m. Vana responded at 10:35 a.m. Vana’s last text to Victoria was at 10:38 a.m.

[28] Sylvia testified that she woke up in the morning because Vana’s phone was vibrating. It was around 10:30 a.m. She saw the text messages coming through. It was Victoria saying to check on her mother. Victoria needed to get picked up. Sylvia woke Vana up. Vana said that she was going downstairs to check on her mom. Sylvia testified that she was waiting, playing on her phone, lying horizontal on the bed with legs against the wall. She testified that she heard loud footsteps and heavy breathing. It sounded like someone had just gone on a run. It was Cory Fenn. He looked into Victoria’s room and then the bathroom and then came to Vana’s room. He asked Sylvia, “where is Victoria?”. Sylvia testified that she was holding her phone. She responded, “I’m not sure.” Mr. Fenn seemed normal. There was nothing unusual about his balance or walking or talking. They only spoke for a few seconds. Sylvia testified that she heard him walk down the stairs. She stayed on the bed with her phone.

[29] Sylvia testified that five minutes later, she heard a conversation between a man and a female. A couple of minutes later, she heard someone enter the house, a female, calling for Krissy, asking if she was okay. Sylvia did not come down. She stayed put. She testified that afterwards a female police officer came upstairs. She told the police officer she was sleeping over. The officer told her to go outside. She went outside – she was not dressed for winter – and she waited with a blonde person, who she met, named Sherry. Officer Knowler testified that at 10:59 a.m., she was dispatched to 36 Hilling drive and she arrived at 11:07 a.m. She went inside and found Sylvia and brought her outside.

[30] Sherry Robinson was expecting Krissy at work on March 14, 2018. Krissy’s first appointment was at 10:00 a.m. She therefore expected Krissy to arrive by 9:45 a.m. Krissy did not. Ms. Robinson and her receptionist, Anita, both called and texted Krissy but received no response. Ms. Robinson texted Krissy’s oldest daughter Victoria. Victoria texted back that she did not know where her mother was and that she was waiting for her mother to take her to her driving lesson. Ms. Robinson testified that while Krissy had been late before and had called in sick before she never, except for one time, had left her “hanging like this.”

[31] Ms. Robinson left the spa at 10:35 a.m. and went to Krissy’s house. Along the way, she stopped and called a police officer that she knew. She then proceeded to 36 Hilling Drive. She arrived at 10:48 a.m. She knew the time because she looked at her phone. She saw Mr. Fenn’s and Krissy’s cars in the driveway.

[32] Ms. Robinson testified that she rang the doorbell. She heard footsteps coming down the stairs quickly. The door opened quickly. It was Mr. Fenn. He looked surprised. He was breathing heavily. He was not wearing anything on top. He was barefoot. The following exchange ensued:

SR: Is Krissy home? CF: She is sick, can’t come to work. You’re her boss right? SR: Correct. Can I talk to her? CF: No, she is sick, she took too many drugs last night. SR: I would really like to see her CF: I will have her call you.

[33] Ms. Robinson testified that she saw that Mr. Fenn had dried blood on his right arm – near his bicep. She also saw wet blood on his left foot. Ms. Robinson testified that, except for his heavy breathing, Mr. Fenn’s speech seemed normal. Mr. Fenn appeared to understand her, and he had no problems with his balance or coordination. Ms. Robinson had previously met Mr. Fenn with Krissy at the Keg restaurant and she had bought them dinner.

[34] Ms. Robinson left. She was shaking and scared. She drove up the street and called the police officer that she knew. She believed that he called 911. She talked to the officer for five minutes. She turned her car around and saw that Mr. Fenn’s truck was gone. She called her police officer friend back, but no one answered. She went back to the house and rang the doorbell. She knocked on the door and the door opened. She went inside the house. She called out for Krissy. She was anxious. She did not see anyone. She went outside and waited for the police. Sherry testified that she was in the house for five minutes. She testified that it took the police 10 minutes to arrive.

[35] Ms. Robinson testified that while she was waiting outside with the police, a little girl, who she now knows to be Sylvia, walked out of the house with a police officer. She was shocked. Ms. Robinson waited with Sylvia.

The discovery of the victims

Roy

[36] Roy was found on the main floor next to the bed. He was wearing red boxers and a t-shirt. Detective Knowler testified that he was covered by a comforter with his feet sticking out. Detective MacIver testified that there were signs of a struggle. The headboard of the bed had broken off, there were towels and clothing on the floor. By comparison, the upstairs of the house was neat and tidy with no signs of a struggle. Detective Janovitz took photographs of the house. Exhibit 16A and B, slide 27 depicts where Roy was found. He was sandwiched between the bed and the wall. Ms. Robinson did not see Roy when she briefly went into the house. She saw the bedroom and described it as in shambles, with the headboard broken and on its side, and the sheets pulled off and in a ball.

Vana

[37] Detective MacIver testified that at 11:46 a.m. he was told to clear the basement. The basement door was unlocked. He identified himself as the police and walked in. He saw blood on the floor to his left. There was blood in the bathroom and the kitchen stove had been partially pulled out from the wall. He peeked around the corner to the main room and he saw the lower legs of a person. The upper body was under the bed. He could see the person’s chest and stomach rising up and down. He heard choking sounds. He screamed for EMS to come. Detective MacIver was a 20-year veteran at the time he testified at trial. He had difficulty maintaining his composure as he described the situation. He realized that the person was a female. He pulled her out from underneath the bed. There was trauma to her face and neck. Her neck was slashed open and there were stab wounds to her chest. He applied pressure to the wounds and started performing CPR. He could not tell her age because of the trauma to her head and face. EMS came in. Vana was removed within 15 minutes and taken to the hospital. She was later declared dead that night at 10:10 p.m. Exhibit 4A contains photos of Detective MacIver and EMS attempting to save Vana and the bloodied state she was in.

[38] Detective MacIver testified that the bedding had been piled up, and there was blood on the end of the bed. There were bloody footprints on the tile of the bathroom floor.

Krissy

[39] Officer Lang was on containment duty in the backyard at 36 Hilling drive. He was there for an hour and half. The garage door was open. He was pacing back and forth. At 2:10 p.m., he noticed snow tires laid down in domino fashion, not stacked. He saw a foot and painted toenails. He radioed for assistance. He uncovered the tires. There were also garbage bags and cardboard boxes covering the female body. Officer Lang testified that he had walked past the garage, a number of times, and did not notice anything. Detective MacIver testified that he walked through the garage but also did not see anything unusual.

[40] Officer Lang checked for a pulse. She was lying on her back with trauma to her neck and face, covered in blood. He thought there was a stab wound to the neck. Exhibit 16A and B, slides 45-47, show’s Krissy’s bloodied body, uncovered from the tires and garbage bags.

Mr. Fenn’s phone and truck

[41] The police were looking for Mr. Fenn’s truck, a black 2017 GMC. Officer Bryan found the truck at 11:50 a.m. in front of a medical clinic. The truck can be seen in Exhibits 6A and 6B.

[42] The police received information that Mr. Fenn’s cell phone was pinged in the area of the truck. A search was commenced for the phone. It was found. A subsequent forensic examination revealed that the phone’s data had been wiped and the phone reset at approximately 5:00 a.m. on March 14, 2018.

10:59 a.m. Mr. Fenn at the Petro Canada

[43] Mr. Shah testified at trial. He worked at the Petro-Canada at 1800 Brock Road. He had been the store manager for five years. The police attended and he helped them retrieve the security camera footage from March 14, 2018. The cameras were in good working order. Still images and a video from the Petro-Canada were made exhibits. At approximately 10:59 a.m., Mr. Fenn entered the Petro-Canada, went to the refrigerator, took a bottle of water, opened it, started drinking it and stood in line to pay. He can be seen on the video paying for the water with cash. After he received his change, he moved away from the counter and then returned. He was then given a cell phone. Mr. Shah explained that Mr. Fenn asked for the phone so he could call a taxi. Mr. Shah did not give him the taxi number, but he gave him the address at the Petro-Canada. Mr. Shah testified that he did not have any concerns about Mr. Fenn’s coordination or sobriety. He did not slur his words. During cross-examination, he agreed that the interaction was only a couple of minutes. He agreed that he would not remember all the details without viewing the camera footage.

[44] After the call was made, Mr. Fenn returned the cell phone, took his water bottle and left.

[45] Mr. Fenn can be seen on the video outside the gas station walking back and forth and sitting down. He then moved and waited at the shed. At approximately 11:09 a.m., the taxi arrived. Mr. Pannu, the taxicab driver, testified. He picked up Mr. Fenn and asked Mr. Fenn where he wanted to go. Mr. Fenn said Oshawa, at a gas station at the 401 and Simcoe. Mr. Fenn asked for a flat rate. Mr. Pannu responded that he would put the meter on, but he would give him a discount. Mr. Fenn agreed. Mr. Pannu testified that Mr. Fenn seemed absolutely normal, he made sense when he spoke, and he did not have any problem focusing on the conversation.

[46] Mr. Pannu testified that he approached the gas station at Simcoe and 401 and Mr. Fenn told him to take a right on Simcoe Street. Mr. Pannu went south (i.e. right) on Simcoe. Mr. Fenn told him to make a left on Albert Street. Mr. Pannu complied. Mr. Fenn told him to stop. Mr. Fenn paid and exited the car. Mr. Pannu turned the taxi around and he saw Mr. Fenn. It appeared that Mr. Fenn was trying to determine where to go next. Video surveillance shows that Mr. Fenn was dropped off at approximately 11:24 a.m. He can then be seen on video, two minutes later, walking away from that area. Mr. Pannu testified in cross-examination that he did not talk to Mr. Fenn during the cab ride.

The arrest of Mr. Fenn

[47] Mr. Fenn was found in a loft/shelf area of a backyard shed at 81 Phillips Street in Oshawa, the address of Mr. Fenn’s ex-girlfriend and mother of his two children. Numerous members of the Durham Tactical Support Unit testified about the arrest. While not all the officers saw all the parts of the arrest of Mr. Fenn, in general they testified that Mr. Fenn was found in the loft[^1] area of the shed. He was behind a wooden snowman decoration. Mr. Fenn was told to keep his hands up and then to come down from the loft. He made his way down from the loft with his back towards the police officers. Once he was down, Mr. Fenn made an abrupt move and a scuffle, lasting 30 seconds to one minute, ensued before the police were able to handcuff Mr. Fenn.

[48] As a result of his arrest, Mr. Fenn suffered some injuries. Paramedic Derek Lantz testified that he treated Mr. Fenn at 81 Phillips Street. Mr. Fenn had a two-inch cut above his right eyebrow, had blood from his nose and a small cut on his right index finger. His nose was bleeding but not deformed. It was slow and active with clots. The bleeding over the eye was a controlled bleed. Mr. Lantz testified that Mr. Fenn did not complain of any pain, but he said he had right knee discomfort. Mr. Lantz checked Mr. Fenn for head injuries. Mr. Fenn knew where he was, who he was, and when it was. He was coherent and communicating properly. He checked Mr. Fenn’s vital signs. He had a strong pulse. His pupils were normal size. His heart rate was 130 bpm. There were no complaints of blurred vision or headaches. Mr. Fenn did not ask for any medical assistance. Mr. Lantz had no concerns about Mr. Fenn’s sobriety. Another paramedic removed the taser probes from his back at 6:15 p.m. Mr. Lantz placed a bandage around his head. He took Mr. Fenn’s vital signs again at 6:20 p.m., and the only change was that his heart rate was declining. Mr. Fenn was compliant and respectful. He was not rude or threatening.

[49] Officer Whelan testified that he placed Mr. Fenn under arrest at 6:20 p.m. for two counts of second-degree murder and one count of attempted murder. He read Mr. Fenn his rights to counsel. Mr. Fenn seemed to understand and seemed to be coherent. He said he did not have any money and was not working, and he did not know who to call. Officer Whelan explained that if he did not have a lawyer to call, he could call duty counsel, which is free. Mr. Fenn said that he wanted to speak with duty counsel. Officer Whelan said that Mr. Fenn appeared to understand; he did not ask for clarification. Mr. Fenn was handed over to Officer Suthers at 6:32 p.m., who brought him to the police station.

[50] Officer Whelan testified that at the police station he spoke again with Mr. Fenn to gather some tombstone information. He asked Mr. Fenn specific questions and received answers that were responsive to those questions. He was focused and responsive. There were no slurred speech or balance issues or other impairment issues. He put Mr. Fenn in contact with duty counsel at 7:25 p.m.

[51] The booking video was entered as an exhibit at the trial. Officer Suthers testified that he was present when the forensic identification unit gave Mr. Fenn instructions at the police station. Mr. Fenn was compliant with those instructions and had no difficulty understanding the instructions. Mr. Fenn was transported to the hospital, assessed, triaged, and photographed. At the hospital he was the same as at the police station. He was quiet, compliant, and appeared to understand. He was able to focus on what the hospital staff told him. At 10:25 p.m., Officer Taylor, in Officer Suthers’ presence, read him his rights to counsel as a third count of second-degree murder was added, as Vana had succumbed to her injuries. Mr. Fenn said he understood, and he did not want to call a lawyer. Mr. Fenn did not appear to be under distress.

Mr. Fenn’s bag

[52] Mr. Fenn’s gym bag was found in the loft. It contained a bottle of vodka, cocaine, GHB, testosterone, Viagra, and anabolic steroids. It also contained cigarettes, lightning charger, a scale, iPhone charging cube, one Puma sock, baggies, a spoon, half a straw, and approximately $4000 in cash.

[53] A knife, matching the one found in the garage, was found in the loft area of the shed. Mr. Fenn’s wallet was also found in the loft.

Mr. Fenn’s statement to the police

[54] Mr. Fenn gave a videotaped interview to Officer Pillman the next morning at approximately 9:00 a.m. He admitted killing the three victims. He stated that he had been on a five-day cocaine binge and he committed the acts during a cocaine-induced psychosis. He stated that he had been doing cocaine for the last three months, but he had been doing it hard the past five days. He said that it affected him to the point where he did not remember, he went into a psychosis, almost in a dream. He stated:

Five-day cocaine. I’ve been doing cocaine for the last three … three months every day … every day, but like this last five days was like hard, hard, hard, and it … it affects you to the point where you don’t remember, you don’t r-- … you go into like a psychosis, you’re almost in a dream. And that’s exactly what that … that was, and I don’t … like I remember bits and pieces, but like I that was not me, that’s … you know, like …

[55] He stated that he never would have committed the offences if he was in his right mind; if he was sober.

[56] Mr. Fenn said that he met Krissy at the gym. They had been dating for about a year.

[57] He stated that the consumption of cocaine had taken over his and Krissy’s life. He said that Krissy would go into a cocaine psychosis, and that they would both go into it.

[58] In his statement, he said that she watched him turn into a completely different person:

And you turn into a different … she watched me turn into a completely different person, I know who I am, and I would witness the same thing where you are not you, you … you are living in a real-- … you’re not living in reality, you’re somewhere else.

[59] Mr. Fenn could not say when he started consuming cocaine before the incident. He said that he had been consuming cocaine every day. He did not remember the days or the months. He had not worked since the end of November. He has been on stress leave from his job at the Toronto School Board.

[60] Mr. Fenn said he remembered bits and pieces of what happened, but he did not want to discuss them:

DCP: What are the pieces that you remember?

CF: I don't really even wanna fuckin’ say, you know what I mean, like ...

[61] Mr. Fenn stated that he was drinking and consuming cocaine. He stated that he could drink alcohol all day long and it did not affect him, but the cocaine overtook everything. He testified that he was selling cocaine and because he had cocaine on him all the time it took over his life. He was selling enough so as to never run out.

[62] Mr. Fenn stated that there was no altercation with him and the three victims but there was with respect to Krissy. He remembered, but he did not really remember what the “hell’s going on.” He stated:

CF: I just like … I’m not going through detail, like I’m not going through detail as in like I don’t fucking know, I … I picture one thing and I picture the next thing and I don’t know what’s … what’s happening first and what’s happening second and--.

DCP: But you remember that it started with Krissy though?

CF: Yeah.

[63] Mr. Fenn stated that he was not going into detail about what happened, but he was not in the right state of mind, he was high on cocaine, he was not Cory, it was not him, but he did it.

[64] Mr. Fenn stated that he was not moving out. Krissy was back and forth; they would split up and everything would be fine. He stated that there was no argument and that they were sitting together getting high on cocaine, drinking vodka with orange juice:

We were sitting there high on cocaine, if I was supposed to be moving out, why are [we] sitting there doing blow and drinking?

[65] He said that he did not want to get into details and that he does not know what took over his body or brain:

…that’s it. I’m not really getting into crazy detail of (inaudible), like I don’t wanna think about nothing, I just … that wasn’t me, that’s not me man, uh, I don’t know what the fuck took over my body to do something like that or what’s running through my fucking brain to do that, and I don’t wanna look back and think of how, honest to God I don’t.

[66] Mr. Fenn said that what he did was sickening, that he should be killed, that he should be injected. He ruined people’s lives; he was “fuckin’ devastated”.

[67] Mr. Fenn said that after he dropped his car off at Pickering Parkway, he took a taxi to Oshawa. It was Rapid Taxi. He threw his phone away. After he walked around, he went to 81 Phillips Street. He wanted to see his kids and Kylie.

[68] He knew he was going to get caught eventually but he just wanted to see his kids. He had $5000 in cash in the bag for his kids. He said that the steroids were in the bag from before. He said that it had been a while since he used steroids. He then clarified that it had been a while since he was completely off steroids but that he had not been using them properly in the last little while.

[69] He stated that he recalled speaking to Sylvia, the girl that was sleeping over. He did not know why he was looking for Victoria. He said that he remembered leaving the house after the woman (Ms. Robinson) came. He said that he was not in the right state of mind. He said that he was “all fucked up” when Ms. Robinson came to the door. He did not remember what she asked him or what he told her, but he did know that she was Krissy’s boss.

[70] The officer told Mr. Fenn that he wanted to guide him through explaining what set him off with respect to each person. Mr. Fenn said that he did not want to do that and that would not even make sense. He told the officer that he is trying to make sense out of what happened but there is no sense:

CF: I’m not gonna sit there and try to go through my fucking cocaine psychosis and my Texas mickey of alcohol to try to make sense … try to pick … make sense of that or pick things that happened and …

DCP: Yeah.

CF: … at the end of the day you can piece anything together. That’s what happened and it wasn’t in the right state of mind at all, not me.

[71] He was asked if he remembered killing or attacking the victims. Mr. Fenn said that he remembered pieces. He just knew what he did, but he did not want to look into it, it is “fuckin’ disgusting”. He said that he did not “wanna remember shit”. He said that he did not want to get anything off his chest. That would make it worse.

[72] He said that he was sitting in the house and he believed that he was surrounded by the police. He said he thought so because he was on cocaine and paranoid. He was living in a dream world. It was the first time it ever really happened to him. But it had happened to Krissy before. Krissy was the one who always got it, “it” being the cocaine psychosis. She would get up, look through every drawer, look behind the TV. Krissy would ask where she was, claiming that she knew Mr. Fenn had her. She would look under the bed and pull the bedframe apart. Krissy would cut the bed open looking for a person hiding there. Krissy would go to the TV, look under the bed, back to the kitchen, look through the same drawers, open the washer and dryer. Mr. Fenn said it was crazy. Krissy was doing this the day of the incident. “She did it every fucking day”. Mr. Fenn said that he calmed her down, he looked up what was happening to her and explained it to her. He explained that once you consume too much your brain is on overload. Mr. Fenn stated that this happened to Krissy all the time.

[73] He explained to Krissy that no one was there, that he did not bring anyone there. He stated that once she went running outside naked in the backyard. He stated that he watched her for her six to nine hours straight, going through her routine. He would tell her to be quiet so her daughters would not hear. They never heard or saw her experience this psychosis. It happened all the time to Krissy.

[74] Officer Pillman asked Mr. Fenn if it ever happened to him:

CF: Well you start to see things, you start to see … you start to hear and see things.

DCP: Like what?

CF: Uh, mm, you’ll … you’ll hear, uh … I’ve heard a voice, you know, and then the one I heard, uh, this was the same day, was when I’m driving and you just like look at a light pole. I’m lookin’ at the light pole and as I’m driving on the road there’s like twenty kids running, twenty kids like in full detail, like you’re watching, like it’s …

DCP: Yeah.

CF: … (inaudible) real life. There’s twenty like kids running. And then they’re running up the pole, the light pole.

[75] Mr. Fenn told Krissy that they had to stop consuming cocaine. The cocaine was hurting the relationship. They would be “on and off, on and off”. Cocaine also affected Krissy’s work and personal life.

[76] Mr. Fenn could not say how much cocaine he would consume in a week. At the beginning of the relationship he would hang around on the main floor with the family. But afterwards, he would not want them to see him on cocaine. He would stay in the basement, like a hermit.

[77] Mr. Fenn said he liked being on cocaine, it made him more social. It did not make him more aggressive. In fact, he said it was the opposite:

No. Not at all. (inaudible) if anything the opposite. If I were just drinking I’m more aggressive, if I do drinking and cocaine then I’m perfectly leveled, they balance each other out, one’s an upper, one’s a downer, right?

[78] He said he was living off cocaine, alcohol and cigarettes.

[79] He stated that sometimes the kids must have heard him and Krissy arguing.

[80] He stated that he put the knife in the garage on top of the gray shelf. The knife that was found on the loft of the shed at 81 Phillips Street was in the bag that he packed. He knew he was going to get caught.

[81] Officer Pillman asked him about what started the attacks with each of the victims. Mr. Fenn said:

‘Kay listen, listen, enough, yo, I’m not gonna … I’m not gonna … I’m done talking with ya, I’m not gonna say anything else now. Done talkin’, I don’t wanna replay my cocaine psychosis that wasn’t me over in … in my head again. I’m fuckin’ sick enough that I gotta live with this shit the rest of my … my life, and, you know, I don’t wanna fuckin go through … over it and try to make sense of something so sick and twisted that I … I don’t wanna be any … a part of at all and I just wanna die now, so, I don’t know. And I don’t have to relive it ‘cuz I don’t fucking wanna relive it. And that is, man. It’s sick. Sick. I don’t even wanna live with myself right now. You know what I mean? So it’s nothing, I’m not trying to hide shit, I don’t … you know? There’s nothin’ to fuckin’ hide, I don’t…

[82] Later he said that drugs will ruin your life and that it would turn you into a monster that you never thought you could be.

[83] Regarding why he attacked Roy, he said that he had killed Krissy and he went through the house and Roy was the first one he saw. He was in a rage, in a “psychosis rage, I don’t know what the fuck’s going on.” After he killed Roy, he was thinking for hours that the police had him surrounded. He was in a different world. He said that he used his hands on Roy and that he strangled him. He was punching and strangling Roy.

[84] Mr. Fenn said that he covered up Roy, “Just ‘cuz you’re sick in the head you ... you don’t wanna look, you … what did you just do?” And, “You can’t look at it.” He said that when he left Roy he was still breathing, and he hoped that he would live. He did not think of calling an ambulance to get anyone help.

[85] With respect to Krissy, Mr. Fenn said that he did not move her to the garage but that it happened in the garage. Krissy was in the garage naked because she was looking for girls. She was having a psychosis. It was a normal thing for Krissy to go into the garage looking for girls. The following exchange ensued:

CF: Yeah, she looks in the garage every time too. I come out with her and she looks through there and there and there. It’s a normal thing.

DCP: And then did you just have enough of that?

CF: Either I had enough of that or I started like getting into psychosis with her and that’s what it is, ‘cuz to me I could always deal with her, I could always deal with … I think I … she started like fucking my head up so much with her psychosis that I started getting into it.

DCP: Yeah.

CF: ‘Cuz before I’d be like, yo, uh, you can’t do it no more, I told her all the time you can’t do it ‘cuz you’re--. Then I get sitting there watching non-stop and her accusing me a thousand times of having someone, and then I’m fuckin’ drugged, I don’t know what the fuck (inaudible). I’m sure there’s pieces of that, but, you know, it’s all--.

[86] Officer Pillman asked him where he got the knife from:

CF: The knife was afterwards. I just strangled her in the …

DCP: In the garage.

CF: …in the garage. And then after, ‘cuz she kept breathing, that I went and got a knife. I had … the whole time I had her face … the bag draped over and she kept breathing and breathing and I … I was so like just fucked up man, I just wanted her to die and…

DCP: Yeah.

CF: That’s it, that’s as much as I’m gonna give you, honestly, that’s all (inaudible)…

[87] Krissy did not say anything when he was killing her. He stated:

CF: Said nothing. And thanks for bringing that up. I don’t … you know, that would be the hard one if she was …

DCP: Well--.

CF: …saying somethin’, but like why are you hittin’ me with these ones for…

DCP: Well…

CF: …like come on.

DCP: …I just wanna know what she’s sayin’, right?

CF: Wanna … wanna know what she’s saying while I’m trying to strangle her? Come on, like it’s fuckin’ retarded. The whole thing is just sick, it’s sickening, I just wanna leave it alone, deal with what I have to deal--. Why would I wanna look back at all this shit? I don’t wanna fuckin’ look back, I wanna forget every goddamn thing and pretend that it’s a goddamn dream in my … my mind and just die. It’s just not something that you wanna sit here and now you got nobody ... nobody … you have nothing, there’s nothing to live for, there’s nothing … zero to live for. No, that’s not … you know, I’m not gonna be there and it’s unfortunate.

[88] With respect to Vana, he kicked her. He said:

CF: Kicked, kicked, kicked, I musta kicked. Not looking down and kicking ‘cuz you don’t wanna see what you’re doing, like fuck, I mean, come on, that’s it, man, don’t put me through this shit.

DCP: Okay.

CF: Yeah. Fuck man. Sick, man, sickening.

DCP: ‘Cuz she was lookin’ for Mom? Or still in the psychosis? Still just fucked right up?

CF: The whole time I was … the whole time you’re in the same state. The whole time I’m some … you’re in that state, that takes hours and hours to get out of.

The injuries and cause of death

[89] Dr. Ball, a forensic pathologist, testified at trial. He did not conduct the autopsy but had peer reviewed Dr. McAuliffe’s findings. He was able to review Dr. McAuliffe’s notes, diagrams, and photographs and provide an opinion on the cause of death and the injuries inflicted on the victims. The diagrams and photographs were filed as exhibits. The autopsies for Krissy and Roy were conducted on March 15, 2018, while Vana’s autopsy was conducted on March 16, 2018. Dr. Ball’s power point presentation was made Exhibit 34. The slides referenced below are from that presentation.

Roy

[90] Dr. Ball testified that Roy died of manual strangulation. Dr. Ball testified that when a person is strangled, they can lose consciousness quickly, in a matter of seconds. But death does not happen that fast. Death can occur within minutes or days or even a week later. If a person is strangled oxygen is not delivered to the brain. If pressure is not removed, then death can occur within minutes. If the pressure is stopped than a person may be able to recover or may not be able to recover from the deprivation of oxygen to the brain.

[91] Dr. Ball testified that in his opinion, Roy had the following injuries:

1. A 12-centimetre contusion on the left side of his scalp that was visible underneath the skin, when the scalp was peeled. The best he could say was that considerable force was required to inflict the injury;

2. Numerous abrasions, at least 11, under his chin. Dr. Ball testified that the abrasions fit with force being exerted by hands as opposed to rope. The abrasions can be clearly seen in slides 15, 19, 20, and 21;

3. Blunt force injuries to his neck, more so to the right side. The right side of the neck was congested. If the neck is compressed, blood cannot exit, resulting in little red dots appearing from the rupturing of blood cells. The congestion to the face can easily be seen in the photograph found at slide 12;

4. His tongue and lip were bruised. This might have been due to the strangulation or could be a separate injury; and,

5. Contusions on his left back and bruising on his limbs and thumbs and fingers. The injuries on the arms could have resulted from being grabbed by the arms. Dr. Ball could not be more specific regarding their origin. He also testified that the injuries to Roy’s hands could be defensive wounds.

Krissy

[92] Dr. Ball testified that the cause of death for Krissy was stab wounds to the chest. She suffered stab wounds, blunt force injury to her head, neck, torso and limbs and multiple rib fractures. More specifically, Dr. Ball testified that Krissy suffered the following injuries:

1. Two stab wounds to the left breast. One was 2.5 centimetres and the other was 3 centimetres. The wounds penetrated the chest wall. The pattern of the cuts suggested that a serrated blade was used. The first stab wound entered the chest wall and the left lobe of the lung, surrounding the heart. There was bleeding around the heart. It was a fatal injury. The second stab wound entered the chest wall between the fifth and sixth ribs and entered the upper lobe of the left lung. There was bleeding around the lung. The stab wounds to the left breast can be seen in photographs 49 and 50;

2. There were 24 small puncture wounds on the lower breast. Dr. Ball described the wounds as paired wounds, consistent with a knife with two points. The pairing can be seen on photographs 49 and 50;

3. Four cuts around the neck area. The cuts to her neck can easily be seen in photograph 38 and 40. Dr. Ball testified that the redness in the picture might be a post-mortem injury;

4. An incised wound over the left eyebrow. Dr. Ball testified that this was a sharp force injury;

5. A black eye;

6. A fractured orbital bone;

7. A fractured cheekbone;

8. A fractured jaw. The fractured displayed jaw is evident from slides 33 and 34, and the photograph of her injury can be seen in slide 36;

9. A fracture near the chin and left side of the face;

10. Bruising on the neck and upper shoulder. The bruising can be seen in slide 47. Dr. Ball testified that the pattern of the injury may have emanated from a shoe;

11. Seventeen rib fractures;

12. Eight contusions on her upper arm; and,

13. Multiple contusions and abrasions to the front and back of her legs.

Vana

[93] Dr. Ball testified that Vana died as a result of stab wounds to her chest. She suffered stab wounds to her lung, neck, and hemothorax. She suffered incised wounds to her face and neck and blunt force injury to her head, neck, and upper limb. More specifically, she suffered:

1. A stab wound to the left side of her neck;

2. Two adjacent cuts to her jugular vein;

3. Four stab wounds to her chest. One of the stab wounds (1.77 centimetres) penetrated the left breast and entered the chest wall and lung. It was a fatal wound without timely medical intervention. There was another 2.5 centimetre stab wound to her breast, and a third two centimetre stab wound to her breast. The wounds can be seen in slide 69;

4. A stab wound to her stomach, to the right of her bellybutton;

5. Incised wounds to her face and neck. She had an incised wound above her left eyebrow (slide 64), a superficial incise wound on her left cheek, and a two-inch incise wound over her right cheek (slide 65);

6. A 6.5-centimetre cut, and a 7-centimetre cut to her neck. Dr. Ball testified that there are at least seven incise wounds to her neck (slide 67);

7. A 1-centimetre cut to her forehead (slide 62);

8. Two black eyes;

9. Massive bruising to her lips and along the left side of her jaw. The bruising can be easily seen in slide 62; and,

10. Bruising on the back of her head and to her right and left ears.

Diana Polley – The DNA evidence

[94] Ms. Polley was qualified as an expert in DNA analysis in bodily fluid examination, interpretation, deposition, transfer and persistence. She worked at the Centre of Forensic Sciences at the time of the incident.

[95] Mr. Fenn was self-represented and not in a position to make any admissions with respect to continuity of items seized and then analyzed. The Crown called a number of witnesses to testify about the continuity of items, about the process for keeping track of items, sealing items and unsealing items. The trial was littered with different identification numbers given to various items to satisfy the court that a particular item seized, for example, from 36 Hilling Drive, was the same item analyzed by the Centre of Forensic Sciences. I have tracked the various identification numbers and related evidence and I am satisfied that the Crown has established continuity of the relevant items. Therefore, I will simply refer to the item and where it was found, without referencing all the evidence that the Crown led to establish its continuity[^2].

[96] Ms. Polley explained that there are a number of stages in DNA analysis and comparison:

1. A visual look at the seized item to see if it contains blood;

2. A chemical test to confirm that the suspected item is in fact blood;

3. The breaking open of the item’s cells to see if there is enough DNA present that can be extracted and used for comparison purposes. Dr. Polley explained that one does not need a lot of DNA for comparison purposes; and,

4. Comparing the DNA profile obtained from the seized item with a known DNA profile.

[97] Ms. Polley was not the initial scientist in this case. The original case manager is now on leave. However, Ms. Polley has reviewed all the case material and underlying analysis and is able to adopt it as her own. She analyzed the following items:

1. The knife seized from the garage;

2. A puma sock found on the main floor of 36 Hilling Drive;

3. The butter knife found in Mr. Fenn’s basement apartment; and,

4. Blood swabs taken from 36 Hilling Drive by Officer Bennet.

The knife seized from the garage

[98] The knife was found in the garage at 36 Hilling Drive, on a plastic shelf. It can be seen in Exhibit 16A and B, slide 50.

[99] There was blood on the blade close to the hilt. Krissy could not be excluded as the source of the blood. The blood was 480 trillion times more likely to have originated from Krissy as opposed to an unknown person. A similar result was found for blood found higher up on the blade.

[100] A swab was taken from the handle of the blade. It contained a mixture of male and female DNA. Krissy could not be excluded as the source of the DNA. The DNA was 1.2 billion times more likely to have originated from Krissy as opposed to an unknown person. Mr. Fenn could not be excluded as a contributor to the male portion of the DNA.

[101] An identical knife was found in the main floor kitchen at 36 Hilling Drive. It can be seen in Exhibit 26, slide 74. It also matches the knife found in the loft of the shed at 81 Phillips Street that was brought by Mr. Fenn. It can be seen in Exhibit 26, slide 38.

Puma sock found on the main floor of 36 Hilling Drive

[102] Blood was found on the sock. Vana could not be excluded as the source of the blood. The blood was 140 trillion times more likely to have originated from Vana as opposed to an unknown person. Krissy was excluded from this sample. Another sample of blood was taken from the sock. It was a mixture of three people. Mr. Fenn, Krissy, and Vana could not be excluded as the source. The blood was 22 billion times more likely to have originated from Krissy as opposed to an unknown person and 22 million times more likely to have also originated from Vana. The statistical likelihood was not calculated with respect to Mr. Fenn. A third DNA sample, not blood, was taken from the sock. It was a mixture of three people, but only two DNA profiles were generated. Krissy and Mr. Fenn could not be excluded.

[103] Ms. Polley explained that the statistical probability depends on the nature of the DNA found. The more DNA present the higher the statistical weight. When a mixture of DNA is found the statistical numbers decrease.

[104] Ms. Polley testified that she could not say who wore or last handled an object or ever wore it as there could be secondary transfers from other means such as laundry or folding socks.

The butter knife found in Mr. Fenn’s basement apartment

[105] The butter knife found in Mr. Fenn’s basement apartment was stained in blood. Four samples were taken from the knife and analyzed. Blood was taken from the tip of the knife and also the right side of the knife towards the tip. Vana could not be excluded as the source. It is 330 trillion times more likely that she was the source of the blood as opposed to someone else. Blood taken from another part of the blade showed a mixture of three people but only generated two DNA profiles. Vana and Roy could not be excluded. It was 76 trillion times more likely that she was the source as opposed to someone else and it was 230 million times more likely that he was also the source as opposed to someone else. Krissy was excluded as a source. Another blood sample was taken from the right side of the knife, closer to the hilt. It produced two profiles. Vana and Roy could not be excluded. It was 100 billion times more likely that she was the source as opposed to someone else and it was 32 million times more likely that he was also the source as opposed to someone else. Mr. Fenn and Krissy were excluded.

Blood swabs taken from 36 Hilling Drive

a) Swab of blood taken from the front door.

Vana could not be excluded as the source. The random match probability of someone else being the source was more than one in a trillion. Detective Bennet testified that the blood pattern on the door looked like a swipe. It can be seen in Exhibit 19, slide 45.

b) Swab of blood taken from the main floor bathroom

Vana could not be excluded as the source. The random match probability of someone else being the source was more than one in a trillion.

c) Swab of blood found on the main floor kitchen on the interior door handle of the sliding glass door

This swab of blood produced a mixture of three, with at least one male and one female. Vana could not be excluded as a source. The random match probability of someone else being a source was more than one in 21 billion. The remaining components could not be interpreted.

d) Swab of blood taken from the trigger guard area of the pellet gun found on the main floor

Roy could not be excluded as the source of the DNA. The random match probability of someone else being the source was more than one in a trillion.

e) Swab taken from the pool of blood in the main floor bedroom west of the bed

Roy could not be excluded as the source of the DNA. The random match probability of someone else being the source was more than one in a trillion.

f) Swab of blood taken from the basement kitchen floor closest to the cupboards

Vana could not be excluded as the source. The random match probability of someone else being the source was more than one in a trillion. Detective Bennet testified that the blood was a transfer stain which appeared to stem from a sock. There was a trail of blood from the basement floor to the basement kitchen. The trail can be seen on Exhibit 19, slide 16. Each gray sticker is a transfer blood stain.

g) Diluted blood found in the bathroom basement sink.

The DNA profile of two people was found in this swab. One was a male. Mr. Fenn could not be excluded as the source. The random match probability of someone else being the source was more than one in a trillion.

h) Swab of blood taken from the basement floor at the foot of the bed

Vana could not be excluded as the source. The random match probability of someone else being the source was more than one in a trillion.

i) Swab of blood taken from the wall in the basement

Vana could not be excluded as the source. The random match probability of someone else being the source was more than one in a trillion. Swab Bl8 seen in Exhibit 19, slide 12 was taken from the highest spatter stain on the north wall of the basement bedroom wall. The blood would have hit the wall at a 90 degree angle.

j) Swab of blood taken from the garbage bags in the garage

Krissy could not be excluded as the source. The random match probability of someone else being the source was more than one in a trillion.

Testimony of Dr. Klassen

[106] Dr. Klassen was qualified as an expert in the field of forensic psychiatry. Dr. Klassen performed an assessment pursuant to s. 672.21 of the Criminal Code. The report was not filed as part of the trial. Dr. Klassen testified about cocaine-induced psychosis. He was asked to comment about certain aspects of Mr. Fenn’s interview with Officer Pillman. Dr. Klassen did reference, in his testimony, some comments that Mr. Fenn made directly to him. I will ignore that aspect of Dr. Klassen’s testimony as the statements made by Mr. Fenn to Dr. Klassen about the material events constitute protected statements as defined by s. 672.21 of the Criminal Code and are inadmissible pursuant to s. 672.21(2); R. v. Genereux, [2000] O.J. No. 4646 at paras. 25-26, 29-31, 33-36.

[107] Dr. Klassen explained that cocaine is a stimulant. If one takes enough cocaine or, if a person has a unique predisposition the person may experience psychotic symptoms. How much one has to consume will depend on a person’s body chemistry and their chronicity of use. If you use cocaine sporadically, you may be less likely to experience psychosis with a certain dose compared to someone who regularly uses cocaine. How the cocaine is administered, and the purity of the cocaine are also factors. It is difficult to predict whether a person will or will not become psychotic on a certain does of cocaine, as there as so many variables.

[108] The psychotic symptoms are grouped into three clusters:

1. Delusions – Delusions are defined as fixed false beliefs;

2. Hallucinations – Hallucinations are perceptions in the absence of a stimulus; and,

3. Gross disorganization – Gross disorganization occurs when people are very psychotic and their speech, thinking, and behaviour, become disorganized to the point of incoherence. At that point you usually cannot elicit information about delusions and hallucinations, but they are presumed to be present because of the extent of the disorganization.

[109] If a person is suffering from one of these three categories of symptoms the person would be diagnosed as being psychotic.

[110] Stimulant psychosis, in this case cocaine, in many ways resembles the kind of psychosis that you might get from a psychotic illness, such as schizophrenia. But cocaine-related psychosis falls on a continuum. It can be very mild. It can be very severe, and it can look different at times because it is connected to the consumption and waning of the cocaine. As the amount of cocaine that the person has in them wanes, the psychosis itself will wane.

[111] All cocaine-related psychoses are self-limited. There is no such thing as an enduring cocaine-related psychosis. They will all end at some point. Dr. Klassen added in cross-examination:

At some point they - they - they began that process completely lucid and without a single psychotic symptom, and they end that process inevitably with not a single psychotic symptom.

[112] Dr. Klassen testified that the duration of a cocaine-related psychosis most commonly parallels the effect of the cocaine itself, but it doesn’t have to, there may be a trailer effect of psychotic symptoms after the body’s excretion of the substance, but “not much of a trailer.”

[113] Dr. Klassen testified that if a person is experiencing a mild cocaine-induced psychosis, the symptoms may be concealed, especially in a brief interaction. If a person is experiencing a significant or severe psychosis, then it would be unmistakeable. It would be obvious, even to an untrained eye, that something is very wrong.

[114] Dr. Klassen testified that the most common example of delusional thinking is paranoid thinking. A person may appear furtive, or guarded, or tentative, or suspicious, or agitated. The extent of the paranoid thinking is on a continuum.

[115] Dr. Klassen testified that many people with a cocaine related psychosis will have insight that they are having that psychosis. If they are a practiced cocaine user, they will know because they have experienced that symptom before. “But again, if you become psychotic enough, irrespective of your prior experience, insight can be completely lost.”

[116] Dr. Klassen explained that you can have a general sense of being paranoid while being intoxicated but not in a psychotic state. Dr. Klassen stated that the key variable is whether the person has lost insight:

So if a person says, “I feel like the police might be outside my door, but I'm not sure,” that’s not, strictly speaking, psychosis. If the person says, “The ETF are right outside that door, and they've got my room wired, and they are about to hit my room with explosives, and I have no doubt about it,” that for example would be psychosis.

[117] Dr. Klassen testified, that while there is variability, typically the hallucinations will be auditory not visual. There may be a visual illusion, such as seeing a shadow, without graphic details. The auditory hallucinations are more detailed.

[118] Dr. Klassen testified about psychosis and memory. He stated that:

It is a common misconception that suffering psychotic symptoms significantly compromises memory. And, you know, having assessed hundreds, and hundreds, and hundreds of people for criminal responsibility who have been psychotic, and from what we know generally about psychosis, it doesn't typically impair memory.

[119] He explained that you can remember what you did while you were psychotic and “the narrative weaves the factual elements, for example I hit somebody, and the delusional elements, for example they were the devil, together.” He added in cross-examination:

I – I’m not saying there should be no impact, but in the broad scheme of things, if I had said to, let’s say, a person with a stimulant-induced psychosis, you know, “What time did this happen,” they might not say, “It happened at,” you know, "02:43 hours,” but they - but they should be able to say, you know, “This happened before midnight and after” - pardon me, “after midnight and before the sun came up”.

[120] Dr. Klassen testified that it could cause patchy memory. He explained:

The - in my opinion, I would say the skeleton, if you will, of what happened should be available. Some of the specific elements, you know, may not be because, in an accelerated state, your ability to receive multiple inputs, what colour was their clothing, what time was it, how exactly were you feeling is - is more challenging. You tend to be more focussed on particular inputs, particular stimuli that are highly salient in that accelerated state, so you maybe - by “patchy”, I - I mean their may be lacuna. There may be gaps. But unless you are extremely psychotic, to the point of gross disorganization, the basic structure of what happened, the skeleton of what happened, including your thoughts and how they link to those actions, should in the main be available to the person.

[121] Dr. Klassen testified that cocaine, like alcohol, can work as a disinhibitor.

[122] Dr. Klassen opined on Mr. Fenn’s description to Officer Pillman that he saw 20 kids running up a light pole while driving his car:

I think what I would say is - maybe I will take a step back. My approach to this would be to say, let’s try to understand this context, you know. You’ve had some cocaine. What symptoms did you experience? When did they start? Were you still able to navigate a vehicle? You know, was this something fleeting? Was it sort of a - shadows of a - you know, a bunch of children? Was it more detailed? Put another way, my confidence in that statement would be lower if he said, “I had no problems driving a vehicle. It was an extremely detailed visual hallucination and it was the only symptom I had.” My confidence in that statement being true might be higher if he said, “It was sort of fleeting. It wasn't a very detailed process. In fact, it was part of a mixture of unusual perceptions that compromised me to the extent that I drove my vehicle off the road,” or, “I had to stop driving my vehicle.” That might make more sense, if I can put it that way.

[123] Dr. Klassen testified that he assessed Mr. Fenn. He did not diagnose him with a major mental illness. In cross-examination, he stated that Mr. Fenn has a substance use disorder. Dr. Klassen testified that “It seems highly likely that substance intoxication was a major driver of the behaviours.” Dr. Klassen explained that he was not saying anything uniquely medical, just that the incident is a departure from anything Mr. Fenn had done in the past and that it makes sense that one of the explanations for his behaviour could be his use of substances. Dr. Klassen also adopted from his report his comment that, “It does seem probable that this gentleman's behaviour at the material times was likely significantly affected by substance intoxication, possibly up to and including substance-induced psychosis.” He explained that one “shouldn't draw anything unique from that sentence, that you didn't draw from the major driver sentence.”

[124] Dr. Klassen agreed that it was absolutely possible that any previous psychotic symptoms that Mr. Fenn experienced in the early morning hours of March 14, 2018 would have worn off by the time he was arrested that evening.

Testimony of Dr. Woodall

[125] Dr. Woodall was qualified as an expert in the field of forensic toxicology on the analysis of alcohol and drugs in biological samples, absorption, distribution and elimination of drugs, and the effects of alcohol and drugs in the human body.

[126] She testified that 7.1 nanograms per millilitres of cocaine was found in Roy’s blood. She testified that this was a very low concentration and she believed that it was not indicative of cocaine use by Roy. Rather, the cocaine must have come from another source. She could not say where it came from. She agreed in cross-examination, that it could have entered his blood through an open cut during the struggle.

[127] Dr. Woodall testified that cocaine was found in Krissy’s blood. In addition, Benzoylecgonine was detected. The amount of cocaine in her system was 20 mg per 11 litres in the urine sample. There were 11 milligrams per 100 litres of alcohol in her blood sample. Dr. Woodall testified that cocaine has a short half life and that it is eliminated quite rapidly. She believed that Krissy used cocaine close in time to her death, within hours of her death. Dr. Woodall testified that this was the type of concentration that one would expect to see in a recreational user of cocaine.

[128] Dr. Woodall testified that cocaine is a stimulant drug. It acts on the brain, providing more energy and allowing a person to stay awake. Cocaine creates an experience of euphoria. It can make you feel good. However, the more you take the more negative effects it has, such as: racing heart, anxious, paranoia, hallucinations and cocaine induced psychosis. The psychosis symptoms parallels that of schizophrenia.

[129] Dr. Woodall testified that even though cocaine is not classified as a hallucinogenic drug, it is a side effect. The hallucinations tend to be auditory ones. One can have visual ones where you look at something and get a strange effect.

[130] Dr. Woodall testified that snorting cocaine is an efficient way to absorb the drug into your body. The effect will be felt within minutes, with the peak effect being felt within 30 minutes. After 30 minutes, the effect wears off. Once the drug is eliminated from the system sometimes people feel a crash phase. The user feels very tired and can go into a very deep sleep. In this crash phase there is no pharmacological effects because the drug is not in the body. The duration of the effect of cocaine is hours, not days. Disinhibition is a well-known side effect of the drug.

[131] In cross-examination, she testified that the duration of the psychosis varies from person to person. There is no precise science that indicates what amount of drug one has to consume to reach psychosis.

[132] Dr. Woodall testified that cocaine does not have the same effect on memory as alcohol. Cocaine is not associated with black out periods. It is not a substance that is associated with short term memory loss. In small dosages, it can actually improve memory. She is not aware of large doses of cocaine being associated with black outs or fragmented memory.

[133] Mr. Fenn’s blood was taken at the hospital at 9:12 p.m. on March 14, 2018. No cocaine was found in his body, but one milligram per liter of Benzoylecgonine was detected. Benzoylecgonine is the substance that cocaine breaks down into. Dr. Woodall testified that cocaine is the drug that is the most difficult to determine when it was last consumed. She testified that its possible that there was cocaine in the blood sample when taken but it broke down in the lab before it was analyzed. If a large amount of cocaine had been consumed before he was arrested, it is possible that it still could have broken down by the time the blood was analyzed but she would have expected a higher level of Benzoylecgonine. She would not expect there to be anything in Mr. Fenn’s system at the time of his police interview on March 15, 2018.

[134] Dr. Woodall testified that if a person was in a drug induced psychosis, it would be hard to drive a car safely.

Law and Analysis

Positions of the parties

[135] The Crown submits that Mr. Fenn murdered the three victims. The Crown submits that the requisite intent for murder for all the victims can be inferred by the devastating violence Mr. Fenn inflicted upon them. With respect to Vana, all the evidence confirms that he was clearly aware of his surroundings. He was not operating under any hallucinations or delusions. Those who encountered him noted no evidence of impairment of any kind. With respect to Roy, he covered Roy’s body indicating that he knew full well what he had done. The Crown submits that Mr. Fenn was evasive and lied in his statement to the police, pretending that he had no recollection of what happened. The Crown submits that it does not have to prove a motive, but the evidence shows that Mr. Fenn was a jealous man and that the relationship was one of turmoil and getting more tumultuous closer to the day of the killings. The murders of Vana and Roy reflected an extension of the rage and violence he felt towards their mother, Krissy.

[136] Mr. Fenn submits that he should be acquitted of all counts. Mr. Fenn did not refer to any evidence in support of his position that he should be acquitted. Rather, he submitted that he found his soul, his true purpose at the Toronto South Detention Centre. He submitted that once you have your true purpose of life, the beginning, the root, “that’s everything, and that cancels out any heinous crime.” He submits that he is a new person and that he has redeemed himself from his transgressions and thus should be acquitted. He said:

I have redeemed myself. Redemption. I’ve reformed of my transgressions. I have, before – I’ve basically died and become somebody brand new.

[137] While I understand Mr. Fenn’s position that he is now a different person, this is not a valid defence, nor does it assist me in determining whether the Crown has proven its case.

[138] Amicus curiae submits that there is clear evidence that Mr. Fenn was intoxicated at the time of the attacks. She submits that Dr. Klassen diagnosed Mr. Fenn as having a substance use disorder. Cocaine was found at the scene, in his truck, and in his bag upon arrest. She submits that Mr. Fenn’s statement to the police where he said that he committed the acts in a cocaine induced psychosis is supported by the evidence of his cocaine consumption and the testimony of Dr. Klassen. Amicus curiae submits that the conditions of the victims supports the argument that the acts were “overkill” and that Mr. Fenn was not in full control when he committed them.

[139] Amicus curiae submits that I should accept Mr. Fenn’s statement to the police that he did not have the intent to kill, or at the very least it should cause me to have a reasonable doubt, because he was in the middle of a cocaine induced psychosis. He was candid in the interview and provided a stunning acknowledgment and took complete responsibility. He did not feign memory loss, as the Crown submits. He merely did not want to think back and address the harm that he caused. Amicus curiae submits that “the overall tone and tenor of this videotaped statement, in my respectful submission it establishes a lack of any evidence of intent to kill, even on the reckless disregard branch.” Amicus curiae left open the possibility, in her submissions, that I could find that Mr. Fenn was in a state of automatism when the acts were committed. She concluded that:

…At a minimum, the evidence here points towards a lack of intent on the part of Mr. Fenn, as caused by advanced state intoxication. As such, at a minimum, Your Honour should find Mr. Fenn not guilty of second degree murder, and all of the evidence points to three counts of very tragic manslaughter.

General legal principles

[140] Mr. Fenn is charged with three counts of second-degree murder. He is entitled to separate verdicts for each count. The burden is on the Crown to prove Mr. Fenn’s guilt beyond a reasonable doubt for each count. Mr. Fenn comes before the court with the presumption of innocence. In other words, he has a clean slate. The presumption is only discharged when, and if, the Crown proves his guilt beyond a reasonable doubt. The Crown at all times bears the onus of proving the case, with respect to each offence. The Crown is required to prove the essential elements of each offence beyond a reasonable doubt. I must assess the case on the whole and decide whether, on the basis of all of the evidence, or lack thereof, the Crown has proven the guilt of Mr. Fenn beyond a reasonable doubt for each offence; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320.

[141] The standard of proof beyond a reasonable doubt is an exacting one. It is more than probable or likely guilt. Indeed, proof beyond a reasonable doubt falls much closer to absolute certainty than it does to proof on a balance of probabilities. Mr. Fenn cannot be convicted unless after considering all the evidence or lack of evidence I am sure that he is guilty of the offence.

[142] To find Mr. Fenn guilty of second-degree murder, the Crown must prove:

i. that Mr. Fenn caused the death of the named persons unlawfully; and ii. that Mr. Fenn had the state of mind required for murder.

[143] As I will explain, the case is overwhelming that Mr. Fenn unlawfully caused the death of Krissy, Roy, and Vana Pejcinovski. The only real issue in this case is whether the Crown is able to prove beyond a reasonable doubt that Mr. Fenn had, with respect to each victim, the requisite state of mind for murder. Section 229 of the Criminal Code states that a homicide is murder where the person who causes the death of a human being

(i) means to cause the person’s death, or (ii) means to cause bodily harm that he knows is likely to cause the person’s death, and is reckless whether death ensures or not.

Did Mr. Fenn unlawfully cause the deaths of Krissy, Roy, and Vana Pejcinovski?

[144] There could be no issue that the victims were killed unlawfully. Krissy and Vana were beaten and stabbed to death, while Roy was beaten and strangled to death. Furthermore, as I mentioned earlier, the evidence is overwhelming that Mr. Fenn unlawfully caused the death of Krissy and her two children, Roy and Vana. I say this for the following reasons:

1. Mr. Fenn admitted to the killings in his video taped statement to the police. Those admissions happened throughout the interview. They were clear and unambiguous. While he did not want to initially, by the end of the interview, Mr. Fenn described, to various degrees, his killings of the three victims;

2. Even without Mr. Fenn’s videotaped statement, the evidence all pointed to him having killed the victims. I say this for the following:

a. Krissy was last seen heading into Mr. Fenn’s basement apartment;

b. Roy was killed in the middle of the night when only Vana and her friend were in the main house;

c. Vana was found in Mr. Fenn’s basement apartment, partially underneath his bed;

d. Minutes after Vana must have been attacked, Mr. Fenn answered the front door for Ms. Robinson. He was topless, barefoot, and breathing heavy. He had blood on his right arm and foot;

e. Vana’s blood was found on the front doorframe. The logical inference is that it was left there when Mr. Fenn opened the door for Ms. Robinson;

f. Similarly, Vana’s blood was found in the main floor bathroom near the front door. Again, the logical inference is that it was left there by Mr. Fenn before he opened the door for Ms. Robinson or afterwards;

g. The knife that was used to inflict the fatal wounds to Krissy was found in the garage. It matched the one found on the loft near Mr. Fenn upon his arrest and another one found in the main floor kitchen;

h. The knife that was used to stab Vana was found in Mr. Fenn’s basement apartment; and

i. Mr. Fenn’s conduct afterwards:

• Mr. Fenn lied to Ms. Robinson and said that Krissy was not feeling well because she had taken too much drugs. As I will explain in more detail later on, at this point in time Mr. Fenn had already covered up Krissy’s dead body in the garage with tires and boxes. He knew she was dead yet pretended to Ms. Robinson that she was not;
• After Ms. Robinson left, Mr. Fenn quickly took off from the house and then abandoned his phone and truck; and
• He was found hiding in the loft of his ex-girlfriend’s shed when he was arrested that evening.

[145] This conduct of lying and fleeing is part of the package of circumstantial evidence demonstrating that Mr. Fenn committed the acts, although the conduct does not assist in assessing his level of culpability: R v Ching, 2019 ONCA 619, [2019] O.J. No. 3866, at paras 41-43. To be clear, this evidence is probative of whether Mr. Fenn killed the victims, but it is not probative and of no assistance regarding whether Mr. Fenn had the state of mind for murder. As explained in R. v. Angelis, 2013 ONCA 70, 296 C.C.C. (3d) 143, at paras. 52 and 53:

…evidence of post-offence conduct may be susceptible to jury misuse, especially when, as in this case, the accused has admitted to committing the actus reus of an offence and the Crown is relying on the post-offence conduct to demonstrate a specific level of intent. Although this evidence will often be prejudicial to the accused, it will rarely have any significant probative value going to the accused's state of mind during the commission of the criminal act. That people will generally behave one way after they kill someone purposefully and another way after they kill someone accidentally is often a dubious assumption.

Therefore, in a long line of cases, both the Supreme Court of Canada and various courts of appeal, including this court, have held that an accused's post-offence conduct may be probative of an accused's culpability, but not of the level of that culpability. These courts have so held because the accused's post-offence conduct is as consistent with an inference that the accused committed manslaughter as it is with an inference that the accused had the intent for murder.

[146] However, as I will detail later, Mr. Fenn’s conduct after he attacked Vana is highly probative to his level of intoxication and his ability to form the intent at the time of the attack.

[147] One of the factual issues that I have tried to resolve is when the victims were killed. The answer is quite simple with respect to Vana. The testimony of Sylvia, Ms. Robinson, along with Victoria’s testimony, and the cell phone records show that Mr. Fenn must have attacked Vana between 10:38 a.m. and 10:48 a.m. on March 14, 2018. According to Sylvia and Victoria, Victoria texted and asked Vana to find their mother. Vana went to find her. Victoria’s cell phone records show that the last text she received from her sister was at 10:38 a.m. At 10:48 a.m., Mr. Fenn opened the door to Ms. Robinson. Mr. Fenn had to have attacked Vana during these 10 minutes. The time frame is even shorter when you consider that, according to Sylvia’s testimony and Mr. Fenn’s statement to the police, Mr. Fenn came upstairs and briefly spoke to Sylvia before he answered the door for Ms. Robinson.

[148] With respect to Krissy and Roy, the exact time is simply too unclear. We do know that Krissy was killed first and then Roy. Krissy was last seen going into Mr. Fenn’s apartment. Victoria did not provide a time, except that it occurred after her mother had come home the afternoon of March 13th. Sylvia testified that when she arrived at the household at 7:00 p.m., she did not see Krissy or Mr. Fenn. Victoria testified that she did speak to her mother again that night about picking Victoria up the next day to take her to her driving lessons. Victoria’s cell phone records indicate that she spoke with her mother at 8:23 p.m. on March 13th. Roughly at this time, Mr. Fenn was buying alcohol at the LCBO. Victoria tried to reach her mother the next morning but could not. The first text that Victoria sent on March 14th that went unanswered was at 8:22 a.m.

[149] With respect to Roy, the video of Vana in Victoria’s graduation dress which captures Roy’s voice was made after midnight. He was clearly alive at that point. Sylvia testified that after midnight her and Vana left the house and walked to their school and back. When they returned, Vana said goodnight to Roy. Roy was alive at this point. Vana and Sylvia watched “Mean Girls” until the end of the movie and then they went to sleep. This would, in my estimation, have been at approximately 2:00 a.m.

[150] While I think it was more likely that Krissy and Roy were attacked after Vana and Sylvia went to sleep since they would have likely heard the commotion (especially from the attack on Roy, which happened in the house and his head board was broken) I simply do not know.

[151] However, in my view both Krissy and Roy must have been killed by 5:00 a.m. Mr. Fenn, in his statement to the police, said that after he killed Roy, he was thinking for hours that the police had the house surrounded. According to the forensic examination, Mr. Fenn wiped his phone at 5:00 a.m., which is consistent with Mr. Fenn’s concerns about the police. Krissy and Roy must have been killed by then.

Did Mr. Fenn have the requisite intent for murder?

[152] For an unlawful killing to be murder, the Crown must prove beyond a reasonable doubt that Mr. Fenn either meant to kill the person ( s. 229 (a)(i)) or meant to cause the person bodily harm that he knew was likely to kill the person, and was reckless whether the person died or not (s.229)(a)(ii)). The Crown does not have to prove both routes.

[153] With respect to s. 229(a)(ii) the essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likely to result in the death of the victim. The reckless criteria is considered an afterthought. As explained by Fairburn J.A. in R. v. Zoldi, 2018 ONCA 384 at para. 40:

Once the Crown establishes the principal's intention to cause such grave and serious bodily harm that he knows it is likely to result in death, recklessness follows as almost a matter of course: R. v. Nygaard, 1989 CanLII 6 (SCC), [1989] 2 S.C.R. 1074, at p. 1088. See also: Cooper, at p. 154-155; Rodgerson, at para. 23, aff'd on other grounds, 2015 SCC 38, [2015] 2 S.C.R. 760; Moo, at para. 63. This is why being "reckless whether death ensues or not" is often referred to as an "afterthought".

[154] In other words, to prove that Mr. Fenn committed murder, the Crown must prove beyond a reasonable doubt either that Mr. Fenn meant to kill the person, or that he meant to cause the person bodily harm that he knew was so serious and dangerous that it would likely kill the person and proceeded despite his knowledge that the person would likely die as a result of that bodily harm.

[155] There is evidence that Mr. Fenn consumed alcohol and cocaine the night of March 13, 2018. Mr. Fenn stated that when he committed the killings, he was not sober, he was in the midst of a cocaine-induced psychosis. I must consider if this is a case of “extreme intoxication” or a case of “advanced intoxication.”

Extreme Intoxication

[156] Evidence of extreme intoxication, akin to automatism, can negate the voluntariness of the act and if found to exist leads to a complete defence to criminal responsibility. Section 33.1 of the Criminal Code had precluded this defence from being used for acts of violence. However, s.33.1 was declared unconstitutional by the Court of Appeal in R. v. Chan 2020 ONCA 333[^3]. Where such a defence is raised, the onus is on the accused to show on a balance of probabilities that his consumption of drugs and/or alcohol resulted in him being in a state of automatism. The defence must be supported by psychiatric evidence. As stated by the Supreme Court of Canada in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 at para. 45:

As for extreme intoxication akin to automatism, the approach adopted in Daviault and confirmed in Stone imposes an evidentiary burden on the accused to satisfy the trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In all cases, this will require that the defence make an assertion of involuntariness and call confirming psychiatric evidence: see Stone, at paras. 182-84; Daviault, at pp. 101-102.

[157] The trial judge must examine all the available evidence: R v. McCaw, 2019 ONSC 53, at paras. 340 and 341; R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at paras. 156-192; R. v. Ghiorghita, [2019] B.C.J. No. 207 (C.A.), at paras. 44, 52.

Advanced Intoxication

[158] However, even if an accused is unable to meet his or her burden and show that they were in a state of extreme intoxication akin to automatism, the Crown must still prove beyond a reasonable doubt that the accused had the requisite intent for murder. An accused who was under the influence of alcohol and/or drugs and thus in a state of advanced intoxication may not have had the requisite intent to commit murder. As explained by the Supreme Court of Canada in R. v. Daley:

Second, there is what we might call "advanced" intoxication. This occurs where there is intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused's foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea. The Court in Robinson noted that this will most often be the degree of intoxication the jury will grapple with in murder trials:

• In most murder cases, the focus for the trier of fact will be on the foreseeability prong of s. 229(a)(ii) of the Criminal Code, R.S.C., 1985, c. C-46, that is, on determining whether the accused foresaw that his or her actions were likely to cause the death of the victim. For example, consider the case where an accused and another individual engage in a fight outside a bar. During the fight, the accused pins the other individual to the ground and delivers a kick to the head, which kills that person. In that type of a case, the jury will likely struggle, assuming they reject any self-defence or provocation claim, with the question of whether that accused foresaw that his or her actions would likely cause the death of the other individual. [para. 49] [emphasis added]

[159] Manslaughter is a general intent offence while murder is a specific intent offence. Where a person has unlawfully killed another but did not have the requisite intent for murder because of their consumption of alcohol and/or drugs, they will be acquitted of murder but convicted of manslaughter. The Court of Appeal in R. v. Chan at paras. 45 and 46 explained the differences and explained how the consumption of alcohol/drugs affects the analysis:

However, the primary distinction between general intent and specific intent offences lies in the complexity of the thought and reasoning process required to commit the relevant offence: R. v. Tatton, [2015] 2 S.C.R. 574, [2015] S.C.J. No. 33, 2015 SCC 33, at para. 21. The mental states required to commit general intent offences simply relate to the performance of the illegal act with no further ulterior purpose; therefore, they involve "minimal mental acuity": Tatton, at paras. 35, 41; Daviault, at p. 89, per Cory J.; and R. v. Bernard, 1994 CanLII 61 (SCC), [1988] 2 S.C.R. 833, [1994] S.C.J. No. 77, at p. 863 S.C.R., per McIntyre J. These mental states tend to be so basic or rudimentary that, ordinarily, it is not realistic to believe that intoxication could prevent an accused who has committed the prohibited act from having the mental state the offence requires. Proof of intoxication is typically irrelevant in general intent offences, as the requisite mental state can usually be inferred from the mere commission of the act: Bernard, at p. 878 S.C.R., per McIntyre J.; Daviault, at p. 123 S.C.R., per Sopinka J. (dissenting on other grounds).

In contrast, specific intent offences tend to require more complex mental elements over and above the minimal intent required for general intent offences: Daviault, at pp. 123-24 S.C.R., per Sopinka J. (dissenting on other grounds). The actus reus must be coupled with an intent or purpose going beyond the mere performance of the prohibited act; for example, striking a blow with the intent to kill: Bernard, at p. 863 S.C.R., per McIntyre J. For specific intent offences, the fact of intoxication may well be relevant in deciding whether the accused had the more complex specific intent and so, proof of self-induced intoxication is permitted.

[160] The Crown tendered Mr. Fenn’s statement to the police. Mr. Fenn, in that statement, said numerous times and in numerous ways that he did not have the intent for murder, and he would not have committed the killings if he had been sober and in his right mind. Mr. Fenn’s statement is clearly relevant to the issue of intent. If I believe his statement, or if it raises a reasonable doubt regarding whether he had the requisite intent for murder, I must acquit him of murder. At the end of the day, the Crown has the onus of proving its case beyond a reasonable doubt: R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 SCR 742; R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 66, 67; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 21.

Mr. Fenn’s statement to the police

[161] Mr. Fenn has not met his burden to show that he was in a state of extreme intoxication akin to automatism and that his actions were involuntary. Firstly, his claim is not supported by the psychiatric evidence, as required. While Dr. Klassen testified that Mr. Fenn’s behaviour could be explained by his consumption of substances, Dr. Klassen’s evidence does not support the assertion that Mr. Fenn acted involuntarily. The following comments by Thomas J. in R v Ahmadi, 2020 ONSC 5672, [2020] O.J. No. 4963, at para. 75 apply here:

I have no psychiatric evidence of the type clearly required to make out such a defence. The defence has failed to meet the burden resting upon it to prove involuntariness on a balance of probabilities.

[162] Furthermore, for reasons that I will explain momentarily, I do not accept Mr. Fenn’s statement to the police that he was in a cocaine induced psychosis, nor do I think it could possibly be true.

[163] Amicus curiae submits that irrespective of whether Mr. Fenn has met his onus to show that he was in a state of extreme intoxication, I should accept Mr. Fenn’s statement to the police or that it should at least raise a reasonable doubt that because of his advanced intoxication Mr. Fenn did not have the requisite intent for murder. Amicus curiae submits that a review of the police interview shows a raw, genuinely remorseful Mr. Fenn. Any inconsistencies in Mr. Fenn’s account can be explained by a genuine attempt by him to determine what had happened.

[164] I do accept parts of Mr. Fenn’s statement to the police. As mentioned earlier, I accept his admission that he killed the three victims. I also accept that he had consumed cocaine and alcohol with Krissy Pejcinovski the night of March 13, 2018 and into March 14, 2018. I say this for the following reasons:

1. Steven Boehm from the LCBO confirms that Mr. Fenn bought alcohol at the LCBO at 8:30 p.m. March 13th;

2. Victoria saw a block of what she assumed was cocaine in Mr. Fenn’s basement apartment on the afternoon of March 13th. That block was gone when the police entered the apartment on the 14th, although there was some white residue remaining;

3. Krissy’s blood had cocaine in it. Evidence was led from Krissy’s co-workers about her consumption of drugs with Mr. Fenn which led to her deteriorating appearance and performance at work. Dr. Woodall testified that the presence of cocaine indicated that she had recently consumed it prior to her death. It makes sense to me that Krissy would have consumed cocaine with Mr. Fenn, as opposed to just by herself, that fatal night;

4. Cocaine was found in Mr. Fenn’s truck and his bag upon arrest;

5. Alcohol was found in Mr. Fenn’s basement apartment;

6. Cocaine was found in Roy’s blood. The most logical answer is that this was transferred from Mr. Fenn’s hands when Mr. Fenn killed him; and,

7. Dr. Klassen diagnosed Mr. Fenn with a substance use disorder. Mr. Fenn had not been working for a number of months at the time of the murder. Mr. Fenn indicated in his statement to the police that he had easy access to cocaine because he was selling it. The presence of cocaine in his bag and his truck is consistent with his easy access to cocaine. It makes sense that Mr. Fenn was consuming cocaine that night just like he had other nights.

[165] However, while I do agree that Mr. Fenn’s statement to the police reflects a great deal of remorse for his actions, I do not accept Mr. Fenn’s various assertions that he killed the victims during a cocaine-induced psychosis, nor does it raise a reasonable doubt with respect to the issue of intent. As I will elaborate, I say this for the following reasons:

1. Mr. Fenn’s statement gives little beyond bald assertions that he was in a cocaine-induced psychosis;

2. Mr. Fenn’s limited descriptions of the effect of the cocaine-induced psychosis on him is inconsistent with the expert evidence on how cocaine-induced psychosis operates;

3. Mr. Fenn’s statement that he was in a cocaine-induced psychosis when he attacked Vana was inconsistent with the testimony of the witnesses who saw Mr. Fenn immediately after he attacked her;

4. Mr. Fenn’s statement is internally inconsistent regarding what he can and cannot remember about the killings;

5. Mr. Fenn’s statement is internally inconsistent regarding his history of cocaine-induced psychosis; and,

6. Mr. Fenn’s various assertions throughout his police interview that he did not know what he was doing is inconsistent with his own description of his killings of the victims.

Inconsistent with the expert evidence

[166] Looking at Mr. Fenn’s statement to the police as a whole, it is evident that Mr. Fenn was comfortable talking about some areas but not others. Mr. Fenn was comfortable talking about his abuse of cocaine. Mr. Fenn mentioned that he was in a cocaine psychosis numerous times throughout his police interview. Yet, even though he was clearly comfortable about talking about this topic, beyond saying he was in a psychosis and “fucked up” and in a “dream”, he gave very few details on what that meant to him and what effects his consumption of cocaine had on him.

[167] Dr. Klassen described three psychotic symptoms: 1) delusions; 2) hallucinations; and, 3) gross disorganization. The most common example of delusional thinking is paranoia. Dr. Klassen explained that you can also have a general sense of being paranoid while being intoxicated but not be in a psychotic state. The key variable is lack of insight.

[168] Mr. Fenn described no hallucinations. There is no evidence of gross disorganization.

[169] Mr. Fenn described no delusions that led to his attack on the victims. Mr. Fenn described, at length acts of paranoia exhibited by Krissy when she consumed cocaine, in the past and the night she was killed. Mr. Fenn’s described Krissy being paranoid that Mr. Fenn was hiding other females. But the only symptom Mr. Fenn described experiencing that night was feeling paranoid and sitting in the house, thinking he was surrounded by the police. Critically Mr. Fenn did not connect this experience to what he was feeling before or at the time of the killings. Rather, he said he was experiencing this concern about the police after he killed Roy:

You know, after Roy, the … the … I’m thinking for hours that the police have surrounded the hou-- … you’re in a fucking different world.

[170] Being concerned about police detection after killing two people is actually quite understandable.

[171] In any event, the few details that Mr. Fenn did give about the cocaine psychosis he was experiencing are atypical and are inconsistent with the expert testimony of Dr. Klassen and Dr. Woodall. Dr. Klassen and Dr. Woodall are both highly qualified experts in their area. They were also very balanced and careful in their testimony and made sure to stay within their lanes of expertise. I accept their evidence.

[172] Memory and cocaine consumption: Mr. Fenn’s statement that he was unable to remember because of his cocaine consumption is inconsistent with Dr. Klassen’s expert evidence on this point. Dr. Klassen testified that cocaine consumption does not typically impair memory and that it is “a common misconception that suffering psychotic symptoms significantly compromises memory.” He explained that one remembers what you did while you were psychotic and “the narrative weaves the factual elements, for example I hit somebody, and the delusional elements, for example they were the devil, together.” Dr. Woodall also testified that cocaine does not have the same effects on memory as alcohol and the cocaine is not associated with black out periods.

[173] Length of the psychosis: Cocaine-induced psychosis stems from the consumption of cocaine. According to the expert evidence it does not endure endlessly, a person will start lucid and end lucid. Cocaine related psychosis will look different at different times because it is connected to the consumption and waning of cocaine in the body. Cocaine-related psychosis most commonly parallels the effect of the cocaine itself with a small trailer. Dr. Woodall testified that the peak effects of cocaine will be felt within 30 minutes of consumption but after the 30 minutes its effects start to wear off. Dr. Klassen deferred to Dr. Woodall’s expertise in this area.

[174] Yet, Mr. Fenn stated in his interview that he was in the same cocaine state the entire time and that he was in the same state when he killed Vana as earlier. Mr. Fenn’s description of the effects does not match with the science. Similarly, he said that he saw Krissy act in a cocaine induced psychosis for six to nine hours “straight of going through the same routine.” Again, given the early effects of cocaine and its quick elimination from the system, this makes no sense.

[175] Mr. Fenn told the police that at the time he was on a five-day cocaine binge. As I stated, I accept that he consumed cocaine that night with Krissy, but how much he consumed is unknown. Mr. Fenn is unable to say how much cocaine he had, “I couldn’t even say”. There is no evidence that Mr. Fenn continued to take cocaine that night after he killed Krissy and/or after he killed Roy. There is no evidence that he continued to ingest cocaine throughout the night and into the early morning. This becomes especially important when one considers that the events took place over numerous hours and that there was a gap in time between the attacks on Roy and Vana.

[176] The visual hallucination: Mr. Fenn described one visual hallucination he had on a previous occasion. He said that while he was driving, he saw 20 kids running up a light pole. Yet, Dr. Klassen testified that while hallucinations can be visual, they are typically auditory. However, when they are visual, it is uncommon to see a completely new visual hallucination as opposed to a visual distortion of something that is actually there. It is odd that Mr. Fenn described a completely new hallucination yet did not describe any difficulty in driving when he saw this hallucination. As Dr. Klassen noted: “Put another way, my confidence in that statement would be lower if he said, “I had no problems driving a vehicle.”

The killing of Vana

[177] Mr. Fenn said that when he killed Vana he was in a cocaine-induced psychosis. Mr. Fenn was seen by Sylvia and Ms. Robinson minutes after he killed Vana. Dr. Klassen said that if a person is experiencing a significant or severe psychosis, then it would me unmistakeable. It would be obvious, even to an untrained eye. Sylvia testified that apart from breathing heavily as if he had been running, she saw nothing wrong with Mr. Fenn when she spoke to him. I appreciate amicus curiae’s submissions that their encounter was a brief interaction and Dr. Klassen testified that if a person is experiencing a mild cocaine psychosis, the symptoms may be concealed, especially in a brief interaction. I agree that there was no reason for Sylvia to have paid much attention to Mr. Fenn. However, her description of Mr. Fenn matches the description given by Ms. Robinson.

[178] Minutes after Mr. Fenn saw Sylvia, Ms. Robinson knocked on the front door. She had a more detailed conversation with Mr. Fenn. Apart from his heavy breathing, she saw nothing wrong with him or his speech. She had every reason to pay attention to Mr. Fenn as she attended the house because she was worried about Krissy. I fully accept her evidence. Furthermore, according to both Mr. Fenn and Ms. Robinson, he recognized her. And he lied to her. Amicus curiae submitted that it is unclear that at this point Mr. Fenn knew that Krissy was dead. I disagree. Leaving aside his police statement where he talks about killing Krissy, he must have buried Krissy under the tires in the garage before he killed Vana. It is impossible for him to have buried Krissy after Ms. Robinson came to the door. There was simply no time. He left the house minutes after that conversation. Mr. Fenn was not in an intoxicated state, let alone a psychotic state when he attacked Vana. He had the wherewithal to lie to Ms. Robinson and say that Krissy was sick and that he would have her call. This lie is being used by me not to assess Mr. Fenn’s level of culpability but to assess the level of his purported intoxication by drugs and alcohol. As stated by Thomas J. in R. v. Ahmadi, at paras. 90 and 91:

Here, the after the fact conduct is not being used to demonstrate a consciousness of guilt. It is being used to assess the level of the accused's intoxication, and his ability to form intent at the time of the crime. In those cases, the after the fact conduct was being sought to be admitted to prove consciousness of guilt. The accused could be fleeing or destroying evidence subsequent to either of those offences. It might be consciousness of guilt but for what offence? Here, the defence is one of intoxication by drugs. The evidence of what Daniel Ahmadi did immediately after the offence is instructive on the issue of capacity and thence on the issue of his intent at the time of the offence.

As Laskin J.A. said at para. 55 in Angelis:

[55] Post-offence conduct, therefore, is not subject to blanket rules. It is circumstantial evidence whose probative value depends on the nature of the evidence, the issues at trial and the positions of the parties. Thus, we do not automatically label certain kinds of post-offence conduct as always or never relevant to a particular issue. Rather, we must consider all the circumstances of a case to determine whether the post-offence conduct is probative and, if so, what use the jury may properly make of it. In the words of Rothstein J., at para. 36 of R. v. White (2011), the overriding question is this: what do "logic and human experience" suggest that a jury can legitimately or rationally infer from the accused's post-offence conduct?

[179] The Crown has referenced, in their written submissions, that when Mr. Fenn was arrested later on the police and paramedics all testified that they saw no evidence of intoxication. This is correct. But given the passage of time, Mr. Fenn was arrested at approximately 6:20 p.m., coupled with Dr. Klassen’s testimony that any previous psychotic symptoms that Mr. Fenn experienced in the early morning hours of March 14, 2018 would have worn off, I do not find this evidence helpful in assessing Mr. Fenn’s level of intoxication at the time of the attacks.

[180] However, Ms. Robinson spoke to Mr. Fenn at 10:48 a.m., again within minutes of his attack on Vana. After he lied to Ms. Robinson, he quickly packed a bag, left the house, ditched his phone and car. [Again, his after the fact conduct of fleeing is being used by me to assess his level of intoxication.] He was at the gas station at 10:59 a.m. and was seen on camera and observed by Mr. Shah. Mr. Shah saw nothing amiss. The gas station video shows nothing wrong. Mr. Fenn was able to call the taxi by memory. When the taxi arrived, he was able to negotiate the fare. He was clearly not in a cocaine-induced psychosis and does not appear at all intoxicated.

[181] Mr. Fenn’s assertion that he was in a cocaine-induced psychosis when he killed Vana is contradicted by all the civilian witnesses who saw him shortly afterwards.

[182] Mr. Fenn’s assertion that he was in a psychotic state when he killed Vana also does not make any sense given the evidence that he buried Krissy’s body underneath the tires and garbage bags. Let me explain. Mr. Fenn buried Krissy’s body so effectively that it was not observed by police officers who attended at the house until three hours later. I do not know when Mr. Fenn buried Krissy, but at the very least he buried Krissy sometime after he murdered Roy and before he attacked Vana. Mr. Fenn clearly was not in a psychotic state when he buried Krissy. Therefore, for him to have been in a psychotic state when he attacked Vana, as he claims, he would have to have consumed more cocaine after he buried Krissy (for which there is no evidence) and entered a new psychotic state, even though those who saw him immediately after the attack saw no indication of intoxication, let alone him being psychotic. It makes no sense.

Mr. Fenn’s memory

[183] Mr. Fenn was inconsistent in his statement to the police regarding his memory. There are two different and inconsistent themes running throughout his interview: 1) that he could not remember because he was in a dream-like state; and, 2) that he did not want to think about and remember what he did.

[184] Regarding his inability to remember, he said, for example:

a. “it affects you to the point where you don’t remember, you don’t r-- … you go into like a psychosis, you’re almost in a dream.”

b. “I picture one thing and I picture the next thing and I don’t know what’s … what’s happening first and what’s happening second and—”

c. “you're gonna try to pull shit from me and it’s not gonna make sense 'cuz I don't fucking know what the ... you know what I mean?”

d. “I don’t remember shit now”

[185] Regarding his desire not to remember, he said, for example:

a. “I’m not really getting into crazy detail..like don’t wanna think about nothing”

b. “I don’t “wanna remember shit.”

[186] I disagree with amicus curiae’s submission that Mr. Fenn’s description of his memory is just an honest attempt by him to sort things out. Rather, I find that he was simply toggling back and forth between excuses as to why he was not going to describe the killings, as Officer Pillman requested.

[187] Mr. Fenn’s memory was also purposely selective. He told Officer Pillman that when he opened the door for Ms. Robinson he did not know “what the fuck was going on”. He did not remember what Ms. Robinson asked him or what he told her. Yet he had no difficulty remembering what he did and thought immediately right after that encounter with Ms. Robinson. He remembered packing a bag, realizing he was going to get caught and packing money to give to his kids’ mother. He remembered throwing his phone away shortly afterwards and even remembered the name of the taxi he took to Oshawa.

Frequency of cocaine-induced psychosis

[188] Mr. Fenn said a number of different things regarding whether he had ever previously been in a cocaine-induced psychosis. He said that with respect to the events of March 14th, that it was the first time it has happened to him, although it had happened frequently to Krissy. But he described a prior incident where he saw 20 kids running up a light pole. Finally, he said that he and Krissy would go into a psychosis. He said, “she would go into cocaine psychosis type – thing, like we’d both go into it”.

Description of the Killings

[189] Mr. Fenn told Officer Pillman that he was in a dream-like state and he did not know what was going on. These comments are inconsistent with the descriptions he gave of his actions when he attacked each victim which clearly show the opposite. He described strangling and stabbing Krissy, kicking Vana, and punching and strangling Roy. He explained that he covered Roy with the comforter because he knew what he did was wrong and did not want to look at what he had done:

DCP: Well Roy was covered up, did you cover him up on purpose?

CF: Just ‘cuz you’re sick in the head you … you don’t wanna look, you … what did you just do?

DCP: Yeah.

CF: You can’t look at it.

DCP: So you covered him up ‘cuz you realized what you did was wrong, right?

CF: Yeah. I don’t really wanna talk about anything else, man, honestly. You … you’re living in a fucking dream world.

[190] I will return to Mr. Fenn’s description of the killing later in these reasons.

Has the Crown proven beyond a reasonable doubt that Mr. Fenn had the state of mind for murder?

[191] Even though I have rejected Mr. Fenn’s statement that he was in a cocaine-induced psychosis and too intoxicated to have the intent for murder and found that it does not raise a reasonable doubt, I must still look towards the evidence that I do accept to see if the Crown has proven beyond a reasonable doubt that Mr. Fenn had the requisite intent for murder with respect to each victim.

Count 1: Krissy

[192] The Crown relies on the circumstances surrounding the killings, Mr. Fenn’s description of the killings to Officer Pillman, and the evidence of jealousy to support their assertion that Mr. Fenn had the requisite intent for murder.

[193] The Crown submits that Mr. Fenn was jealous and controlling of Krissy and that it cannot be a coincidence that she is killed the night she tells her daughter that she was going to break up with Mr. Fenn. Amicus curiae submits that there is no motive, this is not a case of a domestic homicide and the evidence of jealousy is weak. Amicus curiae submits that while the Crown does not have to prove motive, the absence of motive, in conjunction with Mr. Fenn’s obvious consumption of cocaine and alcohol shows that he did not have the intent for murder.

[194] The testimony of Mr. Furze, Krissy’s daughter Victoria, Krissy’s co-worker and supervisor, and Mr. Fenn’s statement to the police all show that at the time of the killings that Mr. Fenn and Krissy were involved in an unhealthy toxic relationship characterized by arguing, frequent break ups, mutual jealousy and mutual use of cocaine.

[195] Break ups and arguing: Victoria, Krissy’s co-workers, Ms. Robinson, and Mr. Fenn in his statement to the police, provided evidence that in the time leading up to March 14th, Mr. Fenn and Krissy broke up and got back together frequently. Victoria commented that she could hear the two arguing through the vents and that one moment they were broken up and the next Mr. Fenn was asking for her approval to marry her mother. On Valentine’s Day, Krissy called Mr. Furze and they went on a date. She got back together with Mr. Fenn afterwards. Mr. Fenn told Officer Pillman that he and Krissy frequently broke up and got back together afterwards.

[196] In mid February, Krissy told a number of people that she got into an argument at work and Mr. Fenn shoved her up against the wall and broke the screen of her phone. I do not doubt that the witnesses accurately reported what Krissy told them. I also do not doubt that her phone screen was broken, as it was seen by the same witnesses. However, while I am certain that there was some type of argument between Krissy and Mr. Fenn, I cannot be satisfied beyond a reasonable doubt that Mr. Fenn assaulted Krissy on this occasion as she described. During this same period, Krissy was having trouble at work and consuming drugs. There is reason to doubt whether she was an accurate historian at that point in time. However, I do see Krissy’s telling of this story to others as another indication that at the very least, from her perspective, the relationship was tumultuous.

[197] Mutual jealousy: Krissy’s co-workers and her supervisor, Ms. Robinson, provided evidence, that I accept, that shows that Mr. Fenn was jealous about Krissy seeing other men, as the Crown has submitted. But the same witnesses also show that Krissy was jealous of Mr. Fenn seeing other women. I accept Ms. Robinson’s evidence that Krissy asked that she be excused from giving massages to men at the request of Mr. Fenn. The text exchange (Exhibit 10 at trial) between Mr. Fenn and Krissy clearly shows that Mr. Fenn did not want Krissy to give male massages. But the same texts show that Krissy did not want Mr. Fenn getting a massage from any female. Mr. Fenn texted her that his barber told him that he could get a massage upstairs. Krissy responded:

U better cancel I'm not fucking joking!

I don't trust that mother fucker

I don't trust ur barber

Cancel the app

I swear, you go out is really done

[198] Mr. Furze’s testimony, which I accept, and which is confirmed by the text exchange also shows Mr. Fenn’s jealous side. I wish to be clear that I, like Mr. Furze, find the comments in the texts were childish and not to be taken seriously and do not otherwise assist me.

[199] I accept the evidence of the co-workers and Ms. Robinson that Mr. Fenn also did not want Krissy wearing makeup. Amicus curiae submits that the evidence that Krissy put her makeup on at work could easily be explained by the fact that she was becoming routinely late to work and Krissy’s comments that Mr. Fenn did not want her to wear makeup was just a convenient way to deflect blame from herself. I appreciate and understand this point, but it does not explain why Krissy took her make up off at the end of the day before going home.

[200] However, Ms. Robinson also testified that Krissy was concerned that Mr. Fenn was cheating on her and spending less time with her. Victoria testified that her mother was worried about Mr. Fenn was spending time with his ex-partner and that this led to an argument and break up. Ms. Ferlito testified that Krissy told her that she was worried that Mr. Fenn was cheating on her. Ms. Ferlito, at Krissy’s urging, texted Mr. Fenn pretending to be a female friend, to see if he was cheating. This evidence supports Mr. Fenn’s comments in his statement to the police that Krissy accused him of having other women.

[201] Mutual cocaine use: The evidence also indicates that along with Mr. Fenn, Krissy was using cocaine. By March 13, 2018, Krissy had spent almost all her time, upon her return from work, in Mr. Fenn’s basement apartment. Her appearance and work suffered. I agree with the Crown that Mr. Fenn’s description of Krissy’s cocaine use is exaggerated and does not quite match with her work records. That being said, there can be no doubt that her cocaine use was affecting her work and time with her children.

[202] It is against this backdrop that Krissy was last seen going to Mr. Fenn’s basement apartment. I agree with the Crown’s submission that Mr. Fenn and Krissy’s relationship was, at the time, tumultuous. It was, as I have stated, toxic and unhealthy. However, I cannot draw the straight line that the Crown submits that I should draw from Krissy’s assertion to Victoria that she was going to break up with Mr. Fenn to Mr. Fenn’s attack on her. The evidence shows that whether or not she actually told Mr. Fenn that the relationship was over, she spent numerous hours with Mr. Fenn before she was killed. She consumed cocaine with him, and she was found in the garage naked. There is no evidence that she was forcibly brought to the garage or that she was moved there after she was killed. In addition, as mentioned, Mr. Fenn and Krissy often broke up. Even if I could be certain that Krissy did tell Mr. Fenn that night that she wanted to end the relationship, I cannot be certain that this was the catalyst for Mr. Fenn’s attack on her.

[203] The Crown does not have to prove motive. However, I have considered in this case whether the absence of a clear motive to kill Krissy, in conjunction with Dr. Klassen’s comments that cocaine was a driver for these offences, should result in the Crown being unable to prove that Mr. Fenn had the requisite intent for murder, as amicus curiae submits. In my view, it does not. In my view, a review of the injuries inflicted on Krissy and Mr. Fenn’s statement to the police regarding his thoughts at the time he killed her shows that the Crown has proven that Mr. Fenn meant to cause the death of Krissy.

[204] Krissy’s injuries are set out in full at paragraph 91 above. I will not repeat them all. I accept Dr. Ball’s evidence. His evidence is uncontested, clear and logical and supported by the post-mortem pictures that were taken. Dr. Ball testified that the cause of death for Krissy was stab wounds to the chest. She suffered stab wounds, blunt force injury to her head, neck, torso and limbs. She had 24 small puncture wounds to her breast and 17 rib fractures. Her jaw was broken. Her cheekbone was broken. Her orbital bone was broken. Vicious and brutal are just some of the descriptors that I could use in describing the attack. As stated in R. v. Herlichka, 2020 ONCA 307 [2020] O.J. No. 2223, at para. 11 leave to appeal refused [2020] S.C.C.A. No. 341, “These injuries demonstrated the brutality of the attack, both in terms of the sheer force of the blows and the spread of the attack over different parts of the body which spoke to the appellant's foresight of likely death under s. 229(a)(ii).” These injuries demonstrate at the very least that Mr. Fenn saw that Krissy was likely to die from them, pursuant to s. 229(a)(ii) of the Criminal Code.

[205] However, in this case, the cumulative effect of the evidence shows that Mr. Fenn did not just mean to cause bodily harm to Krissy that he knew was likely to cause her death. Rather, it is clear that he meant to cause her death. This can be seen quite clearly, in my view, by his statement to Officer Pillman. Mr. Fenn said that during the attack Krissy was still breathing so he went and got the knife and “just wanted her to die.” He said:

CF: The knife was afterwards . I just strangled her in the . . .

DCP: In the garage.

CF: …in the garage. And then after, ‘cuz she kept breathing, that I went and got a knife. I had … the whole time I had her face … the bag draped over and she just kept breathing and breathing and I … I was so like just fucked up, man, I just wanted her to die and…

DCP: Yeah.

CF: …at the time it was … Like fuckin’ … you’re all fucked up, like I don’t know what the fuck was going on, man.

DCP: Yeah.

CF: That’s it, that’s as much as I’m gonna give you, honestly, that’s all.

[206] The above exchange is quite revealing. While Mr. Fenn might have been “fucked up” as he claimed, he clearly knew he was strangling Krissy and critically he knew that she was still breathing. However, he did not want her to continue breathing. He wanted her to die, so he left and retrieved a knife to finish the job. The matching knife was found in the main floor kitchen. Therefore, Mr. Fenn left the garage, went to the house and took the knife from the kitchen, returned to the garage, and finished the job by stabbing her to death. Amicus curiae has submitted that the extent of the attack shows that Mr. Fenn was out of control and thus did not have the intent to commit murder. I reject this argument. The evidence shows the complete opposite. The evidence shows that irrespective of whatever amount of cocaine and alcohol he had consumed at the time, Mr. Fenn had the state of mind to realize that his initial method was not accomplishing his goal so he switched gears and retrieved the knife to finish the job. These comments, in my view, scream murder. As noted by the majority of the Court of Appeal in R. v. Harbottle, 1992 CanLII 7452 (ON CA), 8 OR (3d) 385, [1992] OJ No 923 at para. 11:

When the planned method of killing did not succeed because of Ms. Bown’s successful resistance to Ross' attempts to slash her wrists, they considered and chose another. They decided to strangle her. In my view, the decision to adopt a second method of killing, when the first proved unsuccessful, demonstrates the deliberation with which this murder was committed.

[207] I also note that at the end of this description Mr. Fenn again toggles in quick succession between professing to being unable to recall, “I don’t know what the fuck’s going on, man” and not being willing to share any more details, ‘that’s as much as I’m gonna give you, honestly, that’s all.”

[208] Turning back briefly to the topic of motive. While I do not know the specific reason why Mr. Fenn attacked Krissy, Mr. Fenn’s statement to Officer Pillman does provide us with a hint. He told Officer Pillman that he was in the garage “watching non-stop and her accusing me a thousand times of having a girl”. He said that he attacked because of his cocaine psychosis (again, I have explained above why I have rejected this explanation and why it can not be reasonably true) or because he had enough of the accusation:

DCP: And then did you just have enough of that?

CF: Either I had enough of that or I started like getting into psychosis with her

[209] I am satisfied beyond a reasonable doubt that Mr. Fenn meant to cause the death of Krissy, in accordance with s.229(a)(i) of the Criminal Code and I find him guilty of count 1.

Count 2: Roy

[210] In my view, Mr. Fenn was in a violent rage from having killed Krissy. He went into the house, saw Roy sleeping and attacked him. Roy struggled but Mr. Fenn strangled him to death.

[211] Amicus curiae submits that there was no motive for Mr. Fenn to have wanted to murder Roy. There was no evidence of animus between the two. The Crown submits that Mr. Fenn murdered Roy because he was Krissy’s son.

[212] The reason Mr. Fenn killed Roy can be found in Mr. Fenn’s statement to the police. Roy was killed after Krissy. Mr. Fenn said that he killed Krissy and that he was losing it and he then went through the house and the first person he saw was Roy. He said that he was in a rage and then qualified that it was a psychosis rage and that he didn’t know “what the fuck was going on.” I have earlier explained why I do not accept his assertion that he was in some type of cocaine psychosis and did not know what was going on. I fully accept that Mr. Fenn was in a rage from having killed Krissy and that he vented his rage on Roy.

[213] In my view, the nature of Mr. Fenn’s attack on Roy and his statements to Officer Pillman demonstrate that Mr. Fenn, even though he was in a rage, had the state of mind for murder and at the very least meant to cause Roy bodily harm that Mr. Fenn knew was so grave and serious that he knew it was likely to result in Roy’s death but he proceeded anyway. I say this for the following:

• Mr. Fenn attacked Roy in his sleep while he was laying in bed. Roy was wearing a t-shirt and underwear. His phone can be seen charging on the nightstand next to the bed (perhaps the most obvious sign that a teenager was done for the night and going to sleep). The bed’s broken and smashed headboard supports the irresistible inference that he was attacked on his bed;
• Roy was strangled to death. Dr. Ball testified that when a person is strangled, they can lose consciousness quickly, in a matter of seconds but that death does not happen that fast and that further strangling needs to occur to result in death. Mr. Fenn was a large strong man. Roy was a 14-year-old boy. The act of strangling in this context in itself shows that Mr. Fenn knew that he was causing Roy bodily harm and that death was likely to ensue; and
• Roy was not only strangled to death. Dr. Ball’s evidence was that in addition to being strangled Roy received a large blow to his head that resulted in a 12-centimetre contusion and that he received contusions to his right ear, back, and triceps. This is supported by Mr. Fenn’s statement to Officer Pillman. He told Officer Pillman that he strangled and punched Roy. The punching, the broken headboard, Roy’s final resting place on the floor next to his bed all support the inference that Roy struggled but that Mr. Fenn persisted in the attack and strangled him to death.

[214] I am satisfied that Mr. Fenn meant to cause Roy bodily harm that he knew was likely to cause death, in accordance with s.229(a)(ii) of the Criminal Code. I find him guilty of count 2.

Count 3: Vana

[215] The evidence is overwhelming that Mr. Fenn meant to cause the death of Vana when she came looking for her mother the morning of the 14th. This is evident from the injuries Mr. Fenn inflicted on her and his statement to Officer Pillman.

[216] As set out above, Vana sent her last text at 10:38 a.m. on March 14th. Ms. Robinson spoke to Mr. Fenn at 10:48 a.m. During these 10 minutes, Mr. Fenn killed Vana, then spoke with Sylvia before speaking to Ms. Robinson. Mr. Fenn, in this relatively short period, inflicted significant amounts of damage on Vana. Mr. Fenn was a massive man. He was bigger than Roy and bigger than Krissy. But a comparison between the photo of Mr. Fenn, taken that night at the police station, and the video of Vana goofing around in her sister’s graduation dress, shows the enormous size differential between the two of them. Her wounds are set out in full at paragraph 92. With a butter knife he found in the kitchen, he stabbed her four times in the chest, stabbed her on the left side of her neck. She had numerous other cuts. Mr. Fenn did not just cut her; he savagely beat her. She had two black eyes, massive bruising to her lips and along the left side of her jaw and bruising on the back of her head and to her right and left ears. The trauma to her face was so severe that Detective MacIver could not tell her age when he found her. When asked how he caused so much damage to Vana’s face, Mr. Fenn said he was kicking her. He ultimately stuck her halfway under his bed and left her there.

[217] The nature of the attack does not, in my view, simply show that Mr. Fenn meant to cause Vana bodily harm that he knew was likely to cause her death, but that he meant to cause her death. I do not see any other conclusion one could draw from this savage attack.

[218] Mr. Fenn’s statement to the police further confirms that he knew what he was doing as he purposely looked away as he was kicking her:

DCP: ‘Cuz let me tell ya, I’m not gonna show you pictures, but her face was out to here and I'm just wondering what ... what you woulda used.

CF: Fuck.

DCP: I know. And it ... it 's sickening for you to hear, but I just ... I just wanna know what you woulda used.

CF: Kicked, kicked, kicked, I musta kicked. Not looking down and kicking ' cuz you don't wanna see what you're doing, like fuck, I mean, come on, that's it, man, don't put me through this shit.

[219] Amicus curiae submits that the savage nature of the attack again shows a person who was not in control and therefore could not have formed the requisite intent for murder, again because of his consumption of alcohol and more critically, cocaine. I disagree. While no one observed Mr. Fenn after he killed Krissy and Roy, he was observed minutes after he attacked Vana. I have outlined that evidence earlier in these reasons, but it shows that he was not intoxicated when he attacked Vana.

[220] Amicus curiae further submits that there is no evidence of any animus by Mr. Fenn towards Roy or Vana, why would he want to kill them. The Crown submits that Mr. Fenn hated Roy and Vana because he hated their mother. As I have explained above, I found that Mr. Fenn’s rage from killing Krissy led him to his attack on Roy. With respect to Vana, I find that Mr Fenn attacked her in a futile pathetic attempt to escape detection. By the time Mr. Fenn had attacked Vana, Mr. Fenn had already killed Krissy and Roy and buried Krissy’s body under the tires and garbage bags. Mr. Fenn did not go looking for Vana. Vana, came to him, looking for her mother, and he murdered her for it.

[221] The Crown submits that afterwards Mr. Fenn went hunting for Victoria. I accept Sylvia’s evidence that Mr. Fenn did indeed ask the whereabouts of Victoria. But I am unsure why he was asking, and I am not prepared to speculate. There is some logic to the Crown’s submissions but again after killing Roy, Mr. Fenn did not go looking for Vana or Victoria.

[222] I am satisfied beyond a reasonable doubt that Mr. Fenn meant to cause the death of Vana, in accordance with s. 229(a)(i) of the Criminal Code and I find him guilty of count 3.

Conclusion

[223] Mr. Fenn, I find you guilty of second-degree murder on all three counts.

Justice H. Leibovich

Released: February 10, 2022

[^1]: Different police witnesses have referred to this loft as a loft, ledge, rafters or shelf. For the sake of convenience, I will simply refer to it as a loft. [^2]: Similarly, the Crown called all the officers who handled Mr. Fenn’s phone from the time it was located to the time it was examined. [^3]: An appeal to the Supreme Court of Canada has been heard and the decision is reserved.