COURT FILE NO.: 15629/21

DATE: 20221123

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

THOMAS PRENDERGAST

Nenad Trbojevic and Curtis Sell, for the Crown

Kiran Grewal and Alan Richter, for Thomas Prendergast

HEARD: November 21 and 22, 2022

Speyer J.

JUDGMENT

A. Introduction

[1] Thomas Prendergast is charged with the second-degree murder of his mother, Rita Prendergast. He has pleaded not guilty to that charge. He has elected, with the consent of the Crown, to be tried by a judge alone.

[2] At the outset of the trial, I was advised by counsel that the defence would not cross-examine the Crown witnesses, and that much of the evidence to be presented by the Crown would be provided in the form of admissions by the defence. At the close of the Crown’s case, the defence elected to call no evidence. Defence counsel advised me that the defence position was taken in accordance with clear instructions from Mr. Prendergast.

[3] I have also been advised that if the Crown proves that Mr. Prendergast unlawfully killed his mother, that the Crown will seek to establish that he was not criminally responsible on account of mental disorder (“NCRMD”).

B. What is to be determined at this stage?

[4] I will briefly address what it is that the Crown must establish at this stage of the trial. This question engages consideration of when the Crown may raise the issue whether an accused person is NCRMD.

[5] In R. v. Swain, 1991 CanLII 104 (SCC), [1991] 1 S.C.R. 933, Lamer J. considered whether the common law rule which allows the Crown, in certain circumstances, to raise evidence of insanity over and above an accused's wishes is inconsistent with the Charter. Swain established a common law rule governing the Crown's authority to independently raise the issue of what was then called "insanity" where the accused does not put his or her mental capacity in issue. The common law rule was described this way, at pp. 987-8:

Under the new common law rule, there will only be two instances in which the Crown will be entitled to lead evidence of insanity. First, the Crown may raise evidence of insanity after the trier of fact has concluded that the accused is otherwise guilty of the offence charged. In these circumstances the Crown's ability to raise evidence of insanity cannot interfere with the conduct of the accused's defence because the Crown's ability to do so will not be triggered until after the accused has concluded his or her defence. Second, the Crown may raise evidence of insanity if the accused's own defence has (in the view of the trial judge) put the accused's capacity for criminal intent in issue. In these circumstances the Crown's ability to raise evidence of insanity is not inconsistent with the accused's right to control the conduct of his or her defence because the very issue has been raised by the accused's conduct of his or her defence. Furthermore, as was stated above, the Crown's ability to raise evidence of insanity only after an accused has put his or her mental capacity for criminal intent in issue does not raise the problem of the Crown's being able to place an accused in a position where inconsistent defences must be advanced.

[6] In Swain, the Supreme Court did not address the cases where it is difficult, if not impossible, to isolate the issue of capacity for intent from the question whether a particular accused actually formed the requisite intent. Mr. Swain was charged with assault and aggravated assault, offences which do not require proof of a specific intent. Where the charge is murder, which requires proof of a specific intent, there may be significant overlap between the issue of capacity to form a particular intent, and whether the accused is fact formed that intent.

[7] The Supreme Court of Canada in Swain did not consider s. 672.34 of the Criminal Code, although it came into force on January 17, 1991, before Swain was decided, undoubtedly because Mr. Swain’s conviction was governed by the predecessor to s. 672.34.

[8] Section 672.34 of the Criminal Code, which provides for the NCRMD verdict, provides:

672.34 Where the jury, or the judge or provincial court judge where there is no jury, finds that an accused committed the act or made the omission that formed the basis of the offence charged, but was at the time suffering from mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), the jury or the judge shall render a verdict that the accused committed the act or made the omission but is not criminally responsible on account of mental disorder. [Emphasis added.]

[9] Section 672.34 is quite different than the legislative provision that governed the return of a verdict of “acquitted on account of insanity”, which was the verdict considered by the Supreme Court of Canada in Swain. Then, s. 542 of the Criminal Code provided:

Where, upon the trial of an accused who is charged with an indictable offence, evidence is given that the accused was insane at the time the offence was committed and the accused is acquitted,

(a) the jury, or

(b) the judge or magistrate, where there is no jury,

shall find whether the accused was insane at the time the offence was committed and shall declare whether he is acquitted on account of insanity.

[10] The Ontario Court of Appeal considered the proper approach to be taken in cases where the accused’s NCRMD defence sought to negate the mens rea for the offence in R. v. David, 61 OR (3d) 1, 169 CCC (3d) 165, 2002 CanLII 45049, at paras. 46-56. The Court of Appeal referred to the requirements of s. 672.34 of the Criminal Code and concluded that it would have been preferable for the jury to first consider s. 16, concerning the accused’s capacity to form intent, and, if they rejected the s. 16 defence, then to consider whether the accused actually formed the intent for the offence. See also: R. v. McClenaghan, 2008 ABCA 7, at para. 147-8.

[11] The David approach was recently adopted by Copeland J. (as she then was) in R. v. MacKinnon, 2021 ONSC 4763. In that case the parties agreed that the NCRMD evidence and submissions could be heard blended with the rest of the trial. While the evidence was heard in that blended fashion, Copeland J. addressed the NCRMD defence before turning to the issue of whether the Crown proved the intent for murder or for attempted murder beyond a reasonable doubt, relying on David, at paras. 46-56.

[12] In this case, the defence does not raise the issue of NCRMD. If I find that the Crown has proved that the defendant committed the act that forms the basis of the offence alleged, the Crown intends to lead evidence to prove that the defendant was NCRMD when his mother was killed. I have been advised by experienced defence counsel who have carefully considered the issue and the evidence, and who have obtained specific instructions, that if I find that the defendant committed the act, a verdict of not criminally responsible on account of mental disorder will not be opposed.

[13] In my view, in the circumstances of this case, the correct approach is to determine whether or not the Crown has proven beyond a reasonable doubt that Mr. Prendergast committed the act that formed the basis of the offence, in accordance with the language of s. 672.34 and the reasoning in David. That act is unlawfully causing the death of Rita Prendergast.

C. The evidence

[14] As I indicated at the outset of these reasons, much of the Crown’s evidence was presented as admissions. While counsel for the Crown and the defence characterized that evidence as “Evidence admitted pursuant to s. 655 of the Criminal Code”, some of the statements contained in Exhibit 1 are not properly so characterized.

[15] In R. v. Stennett, 2021 ONCA 258, at paras. 56-8, the Ontario Court of Appeal described the nature of formal admissions made pursuant to s. 655 and the different character of informal admissions:

[56] In proceedings on an indictment, an accused or their counsel may “admit any fact alleged against him” for the purpose of dispensing with proof of that fact. This is the effect of s. 655 of the Criminal Code, R.S.C. 1985, c. C-46. These are formal admissions. They dispense with the need to prove the fact admitted by other evidence. They are binding on the party and may only be withdrawn with leave of the court: Castellani v. The Queen, 1969 CanLII 57 (SCC), [1970] S.C.R. 310, at p. 317; R. v. Korski, 2009 MBCA 37, 244 C.C.C. (3d) 452, at paras. 121-22.

[57] Sometimes, admissions may be informal. They are not conclusive but rather may be contradicted or explained by evidence adduced at trial. In essence, they are items of evidence, thus subject to qualification or rebuttal. Informal admissions may be or include statements of what a witness could or would say if called to give evidence: Korski, at paras. 123-24, citing Matheson v. The Queen, 1981 CanLII 202 (SCC), [1981] 2 S.C.R. 214, at p. 217.

[58] Informal admissions may be labelled or designated “Agreed Statement of Facts”, but that does not make them so. Those that recite what a witness would say retain their true character, however they may be styled. An agreement about what a witness could say or would have said is not an agreement that what they say is true: Korski, at para. 125

[16] In R. v. Scott, 2021 ONCA 625, at paras. 66-67, Trotter J.A. noted that formal admissions made pursuant to s. 655 are admissions as to objective facts. Admissions as to the anticipated evidence of a witness (informal admissions), are an agreement about what a witness could say or would have said and are not an agreement that what they say is true.

[17] I am grateful to all counsel for their efforts to streamline the presentation of the evidence in this case. Most of the admissions contained in Exhibit 1 are admissions of objective facts. I have considered those admissions that are in the nature of informal admissions differently and have assessed the weight to be given to those informal admissions. I note that the defence did not dispute the credibility or reliability of the informal admissions.

D. Did Thomas Prendergast unlawfully cause the death of Rita Prendergast?

[18] The evidence that Mr. Prendergast unlawfully caused the death of Mrs. Prendergast is overwhelming.

[19] Mrs. Prendergast died in her home at 26 Sunrise Drive in Blackstock on September 24, 2015. Her death was caused by multiple sharp force injuries. She bled to death.

[20] Dr. Noel McAuliffe, the forensic pathologist who conducted the post-mortem examination, observed the following injuries to Mrs. Prendergast:

1. 23 incised wounds to the right arm, 7 of which were scrapes and the others were cuts.
2. 4 stab wounds in the right upper arm, under the shoulder joint.
3. 27 incised wounds to the left arm, 2 of which were gaping wounds.
4. 13 incised wounds or cuts to the right hand
5. 10 cuts to the left hand.
6. 4 incised wounds to the right leg.
7. 8 incised wounds to the left leg.
8. A stab wound to the neck
9. 7 cuts to the left chest.
10. 4 shallow stab wounds to the centre chest.
11. 5 shallow stab wounds to the right chest.
12. 4 sharp force injuries to the abdomen.
13. 7 shallow stab wounds to the back.
14. 4 stab wounds that penetrated the chest cavity.

[21] The four stab wounds that penetrated the chest cavity were particularly significant. A wound to the right chest cut two ribs and entered Mrs. Prendergast’s lung and aorta. The wound pattern suggested that the weapon was partially withdrawn and reinserted. A wound to the right breast cut two ribs and entered the lung. There were four penetrating wounds associated with this wound, which indicated that there were multiple movements of the blade through the wound. A wound on Mrs. Prendergast’s back over the kidney entered her liver, cut a rib, penetrated through the diaphragm, and entered her lung. Another wound on her back passed through her liver and diaphragm and cut two ribs. Two wound tracks through the liver indicate that the blade was thrust more than once through the wound.

[22] The wounds to Mrs. Prendergast’s hands and arms had the appearance of defensive wounds.

[23] The attack on Mrs. Prendergast occurred in a fairly confined area on the landing of the stairs of her home, where she was found when the police attended, lying on her right side, surrounded by a large amount of blood, with a blanket partially wrapped around her. The area of bloodstaining is quite limited, and apart from the area of the landing and the stairs and floor immediately adjacent to the landing, the rest of Mrs. Prendergast’s immaculately maintained home was undisturbed.

[24] I find that Mrs. Prendergast’s death was caused by the person who repeatedly stabbed and cut her.

[25] The evidence establishes beyond a reasonable doubt that Mr. Prendergast was that person.

[26] Three people lived at 26 Sunrise Drive in Blackstock: Mrs. Prendergast, her husband Gerald, and the defendant, Mr. Prendergast. Gerald Prendergast last saw Mr. Prendergast on September 24, 2015, at about 6:45 a.m., when Mr. Prendergast Sr. left for work. That left Mrs. Prendergast and the defendant in the house.

[27] Three witnesses, all neighbours of Mrs. Prendergast, testified. They were not cross-examined. They each gave their evidence in a forthright and careful manner. I accept their evidence as credible and reliable.

[28] Elizabeth Morden lived in the house behind the Prendergast residence. She left her house to go to an appointment at 11:10 a.m. As she left her house, she heard screaming. She heard a female voice yelling “Help. Please stop”. She could also hear a male voice that sounded very angry, but she could not make out what he was saying. Her neighbour Jen Hallett joined her. They discussed whether to call 911. Ms. Morden went back into her house and called 911. The call was placed at 11:13 a.m. Ms. Morden heard the screaming for about one minute before she made the call.

[29] Jennifer Hallett was in her garage when she heard screaming. She heard an adult woman’s voice screaming “Help me!” over and over again, about ten times. She also heard a loud male voice saying “Just hold still. Just stay still.” Her recollection was that she heard this at around 11:00 a.m., or shortly after that. She heard the yelling and screaming for about two minutes before 911 was called. She described the yelling and screaming as “horrific”. She did not have her cell phone with her. She joined Ms. Morden, and then Ms. Morden made the 911 call.

[30] Police officers were dispatched to 26 Sunrise Drive at 11:18 a.m.

[31] Lindsay Davidson lived across the street from the Prendergast residence. On the morning of September 24, 2015, she was in her driveway with her mother. They were talking about landscaping and admiring how nice Mrs. Prendergast’s house looked. On an otherwise regular day, Ms. Davidson saw the front door of the Prendergast residence fly open abruptly. The defendant, Mr. Prendergast came out, entered Mrs. Prendergast’s car, backed it out of the driveway abruptly, pulled forward on the street, and then backed into the driveway on an angle quickly, until the car bumped into the patio flagstone. The back of the car then faced, and was pointed in the direction of, the front door of the house.

[32] Ms. Davidson noted that Mr. Prendergast had no shirt on. He was wearing khaki-coloured pants, and gloves like exercise or work gloves.

[33] After the car came to a stop, Mr. Prendergast got out of the car, went to the trunk, opened the trunk, and bent over into the trunk. He left the car engine running. He left the trunk open and went back into the house, leaving the front door open a bit.

[34] Ms. Davidson then heard approaching police cars, a very short time after Mr. Prendergast went back into the house. Two police cars arrived.

[35] Constables Collins and Street arrived at the Prendergast residence at 11:35 a.m. They made the same observations of the residence and the vehicle that was in the driveway as had been noted by Ms. Davidson. As Constable Collins approached the house, the front door closed for a few seconds and then it re-opened, and Mr. Prendergast came out. He was immediately arrested. His gloves were removed by the officers when they hand-cuffed him. He was placed in Constable Street’s police cruiser. Mr. Prendergast had blood on his upper wrists and forearms, and on the bottom of his pants.

[36] The officers found Mrs. Prendergast on the stair landing, lying in a pool of blood. Her clothing was soaked with blood. The officers noted that she had stab wounds. The officers could not locate a pulse but commenced chest compressions. EMS arrived and transported Mrs. Prendergast to hospital.

[37] Constable Collins checked the residence and determined that no one else was there. Later examination of the house revealed no evidence of forced entry and no basement windows were open.

[38] Photographs of Mr. Prendergast taken shortly after his arrest show that he was wearing green pants, with red staining on the pants. He was shirtless. He appears to be a muscular young man. He did not have any significant injuries. The red stain on his pants was found to be a blood stain that contained a DNA profile from blood for which Rita Prendergast cannot be excluded as the contributor. The probability that a randomly selected and unrelated individual would share that profile is one in 870 quadrillion.

[39] Swabs were taken of fingernail clippings taken from Mrs. Prendergast. These revealed a DNA profile and Thomas Prendergast cannot be excluded as the contributor of that DNA profile. It is 2,000 times more likely that the profile originates from Thomas Prendergast than from an unknown unrelated person.

[40] When police executed a search warrant at the Prendergast residence, they located a garbage bag in the first-floor laundry room, at the doorway to an attached bathroom, not far from the stair landing where Mrs. Prendergast was found. The bag contained red-stained jeans, a red-stained t-shirt, five towels, a bed sheet, green plaid boxer shorts, and a face cloth. All items in the bag exhibited red staining.

[41] A bloodstain on the front of the T-shirt found in the garbage bag was found to contain a single DNA profile from blood for which Rita Prendergast cannot be excluded as the contributor. The probability that a randomly selected and unrelated individual would share that profile is one in 870 quadrillion. A swab of the back neckline of that T-shirt contained a single profile, and Thomas Prendergast cannot be excluded as the contributor. The random match probability of the latter swab is one in one trillion.

[42] The police found a large kitchen knife in the kitchen sink. The knife appeared to be quite clean, but a swab from the cutting edge of the knife near the tip of the blade was found to contain a single DNA profile from blood for which Rita Prendergast cannot be excluded as the contributor. The probability that a randomly selected and unrelated individual would share that profile is one in 870 quadrillion. A swab from the knife handle generated two DNA profiles: Rita Prendergast could not be excluded as the contributor of blood in that swab. Thomas Prendergast cannot be excluded as the other contributor. The random match probability for Rita Prendergast is the same as previously noted. It is 3.8 to 13 thousand times more likely that the other profile originated from Thomas Prendergast than from an unknown unrelated individual. A swab of an unstained area of the knife handle generated the same results as the swab of the blood stain.

[43] A kitchen drawer that contained knives in a knife rack had an empty slot.

[44] Taken in its totality, the evidence establishes beyond any doubt that Thomas Prendergast inflicted the wounds that caused the death of Rita Prendergast. They were alone in the house when the wounds were inflicted. The wounds could not have been self-inflicted. The attack was heard by Ms. Hallett and Ms. Morden, who called the police. The time between when they heard the attack, and the observations made by Ms. Davidson of Thomas Prendergast’s actions in relation to his mother’s car, and his clothing when he moved the car, was sufficient time for him to have removed his clothing and placed it in the garbage bag along with other items apparently used to clean up and to have put on a clean pair of pants, though some of Mrs. Prendergast’s blood ended up on the knee of those pants. The DNA evidence provides convincing proof that the T-shirt found in the garbage bag was Thomas Prendergast’s T-shirt, and that it had his mother’s blood on it. Thomas Prendergast’s DNA was found under his mother’s fingernails. While his injuries were insignificant, there were marks on him that could have been caused by Mrs. Prendergast’s attempts to defend herself. The knife found in the kitchen sink could have been the weapon used to inflict Mrs. Prendergast’s injuries as her blood was on the blade and the handle and a DNA profile from which Mr. Prendergast cannot be excluded was found on the handle. In and of itself, this might not mean much, as he lived in the house and could have used the knife for its intended purpose in the kitchen. However, given the totality of the evidence, I am satisfied that the knife found in the sink was the knife used to stab Mrs. Prendergast, and that Mr. Prendergast tried to clean the knife.

[45] I remind myself that in order to find beyond a reasonable doubt that Mr. Prendergast inflicted the injuries that caused Mrs. Prendergast’s death, that conclusion must be the only conclusion reasonably available on the evidence, and that the evidence must be inconsistent with any other rational conclusion.

[46] I find that the Crown has proven beyond a reasonable doubt that Thomas Prendergast committed the act that forms the basis of the offence charged, that Thomas Prendergast unlawfully caused the death of Rita Prendergast.

The Honourable Madam Justice J. Speyer

Released: November 23, 2022

COURT FILE NO.: 15629/21

DATE: 20221123

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

THOMAS PRENDERGAST

JUDGMENT

Justice J. Speyer

Released: November 23, 2022