COURT FILE NO.: CR-19-45

DATE: 20230127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MICHAEL WENTWORTH (a.k.a. MICHAEL VERNEY)

Defendant

Fraser Kelly and Holly Chiavetti, for the Crown

John Kaldas and Raymond Wong, for the Defendant

HEARD: September 13, 14, 15, 20, 21, 22, 23, 27 28, 29, October 4, 7, 11, 13, 14, 18, 19, 20, 21, 25, 26, 27, 28, November 1, 15, 22, 23 and 24, 2022

LACELLE J.

REASONS FOR JUDGMENT

PART I

I. Introduction

[1] The accused Michael Wentworth (a.k.a. Michael Verney) is alleged to have committed a number of offences between 1995 and 2001. The offences include three homicides, a bank robbery, and a car bombing. All but the car bombing are alleged to have occurred in the area of Kingston, Ontario, where the accused was living.

The investigation

[2] In the aftermath of the alleged offences, police suspected the accused’s involvement in two offences, both of which are alleged to have been committed in 1995: (a) an alleged homicide involving the accused’s associate, Richard Kimball; and (b) the robbery of a TD Bank in Kingston. In 1996, a friend of the accused known as “Barney”, told police that the accused had told him that he had killed Mr. Kimball. Barney also implicated the accused in the TD Bank robbery. While police investigated at the time, no charges were laid.

[3] Years later, the police approached Barney and secured his cooperation as a police agent in their renewed investigation relating to Mr. Kimball and the TD Bank robbery. Barney will be referred to in these reasons as either “Barney” or “the PA”. In the course of that investigation, an undercover officer also became involved (“the UC”) and befriended the accused.

[4] The accused interacted with the PA and the UC over a period of approximately nine months, beginning in May 2018 and concluding with the accused’s arrest in February 2019. Towards the end of the investigation, another undercover officer was introduced. He will be referred to as “Rocky”. As I will discuss further in my reasons, the accused travelled from Kingston to Montreal with the UC to meet Rocky, on the pre-text that Rocky could set them up with work, including a contract killing.

[5] During the investigation, the accused made statements implicating himself in both the killing of Richard Kimball and the TD Bank robbery. The accused also made utterances implicating himself in other criminal offences. The accused now stands trial on five counts.

The charges

[6] The indictment reflects the chronology of the alleged events and itemizes the counts as follows:

1. Manslaughter (causing the death of Henrietta Knight by assaulting her with intent to steal from her) on or between June 2, 1995, and November 4, 1995;

2. Robbery of the TD Bank on July 4, 1995;

3. First degree murder of Richard Kimball on or between November 1, 1995, and November 30, 1995;

4. Causing damage by explosion to property on July 19, 2000;

5. First degree murder of Stephen St. Denis on October 21, 2001.

Overview of the allegations

Count 1 – Manslaughter of Henrietta Knight

[7] Briefly, the first count involves a home invasion at the home of an elderly woman, Henrietta Knight, in Kingston. Ms. Knight was beaten during the home invasion. She died approximately five months later.

[8] The Crown alleges that the accused targeted Ms. Knight because he had received a tip from a woman named Lori Parker (with whom he was having an affair) that Henrietta Knight had money. There is no issue that a home invasion was committed. The issues to be determined at trial are whether the accused was the perpetrator, and if so, whether he caused the victim’s death.

Count 2 – Robbery of the TD Bank

[9] The second count involves the robbery of a TD Bank in Kingston a month after the home invasion. The accused is alleged to have committed the robbery by backing a stolen cube van through a bank window and making off with the night deposits as they were being transported by staff to the bank vault. The accused is alleged to have committed this offence with his friend, Pat Madigan. There is no issue that the robbery occurred. The issue at trial is whether the accused was one of the perpetrators of the robbery.

Count 3 – First degree murder of Richard Kimball

[10] The third count, the first degree murder of Richard Kimball, involves an allegation that the accused shot and killed Mr. Kimball, a long-time associate. In the main, the allegation is that the accused decided to kill Mr. Kimball because the accused was concerned that Mr. Kimball would “rat” on the accused about his involvement in the TD Bank robbery.

[11] The Crown alleges that after shooting Mr. Kimball, and with the assistance of Pat Madigan, the accused dismembered Mr. Kimball’s body by removing the head and hands. The accused is alleged to have disposed of the body by dumping some of it in a river and burying some of it near Montreal. This offence is alleged to have occurred four to five months after the bank robbery. No body connected with this alleged offence has ever been found.

Count 4 –David Allan vehicle bombing

[12] The fourth count involves an allegation that during the summer of 2000, the accused worked in conjunction with others in a marijuana grow operation in the Kingston area. The allegation is that the accused was sent to Toronto to kidnap an individual named David Allan, who had a conflict with a partner in the grow-op. The accused allegedly tried to kidnap David Allan, had difficulty doing so, and decided instead to set a pipe bomb under Mr. Allan’s vehicle. There is no issue that a pipe bomb detonated in a residential neighbourhood in Toronto under a vehicle associated with David Allan. The issue on this count is whether the accused was the perpetrator of that offence.

Count 5 –First degree murder of Stephen St. Denis

[13] The final count involves an allegation that the accused killed Stephen St. Denis, with whom the accused worked in the grow-op. The allegation is that Mr. St. Denis was a former partner of David Allan’s, the target of the car bombing in count 4. Mr. St. Denis is alleged to have told the accused that he planned to go to Toronto and work with David Allan and that he would likely disclose to David Allan what the accused had done. The accused allegedly determined that he had no choice but to kill Mr. St. Denis to protect himself and his family.

[14] The accused is alleged to have had the assistance of Pat Madigan and taken Mr. St. Denis to a bar where the two men put drugs in Mr. St. Denis’ drinks. The two men then returned Mr. St. Denis to his house. Once Mr. St. Denis was incapacitated, the accused is alleged to have started a fire in an electric frying pan in the kitchen and left Mr. St. Denis to die. There is no issue that Mr. St. Denis died in a house fire on October 21, 2001. At the time the death was determined to be accidental. The issue on this count is whether the accused planned and committed Mr. St. Denis’ murder.

II. The available verdicts

[15] I have already ruled that the utterances the accused made during the undercover investigation are admissible in this trial. The defence accepts that if the accused’s utterances and the remaining evidence lead me to find beyond a reasonable doubt that the accused did what he said he did, then, with the exception of the manslaughter count (count 1), the offences would be made out. In relation to the two first degree murder counts (counts 3 and 5), counsel agree that planning and deliberation and the mens rea for the offences would be made out.

[16] Accordingly, in my analysis, I focus solely on the issues in dispute. In its written submissions, the Crown accurately outlines the elements it must prove; I will not repeat them here. I am mindful that to demonstrate the accused’s guilt, the Crown must prove every element of each offence charged beyond a reasonable doubt.

[17] The parties agree that the verdicts available to the court on all counts, except the manslaughter of Henrietta Knight (count 1), are either guilty or not guilty; there are no included offences for the remaining counts. The parties also agree that the manslaughter count subsumes the included offence of robbery.

III. The overarching positions of the parties

[18] There are some overarching themes or arguments in the submissions made by each of the parties. I have considered these arguments in my analysis for each count.

The Crown

[19] The Crown acknowledges the law that directs courts to be cautious of the assessment of confessions derived in a Mr. Big type investigation. It emphasizes that in this case, there is not just one confession, but many of them, consistently delivered, with lots of detail, to lots of people. The case needs to be approached with this in mind.

[20] As for evidence that it says confirms the accused’s accounts of his offences, the Crown submits that it is wrong to argue an individual piece of evidence does not conclusively prove a factual proposition because “bricks are not walls”.

[21] It relies on this explanation of the principle from R. v. Okojie, 2021 ONCA 773, at para. 142:

A final point concerns the manner in which circumstantial evidence is to be assessed. Neither triers of fact at first instance, nor appellate courts on review for unreasonableness, examine individual items of circumstantial evidence separately and in isolation, adjudging them against the criminal standard and rejecting them should they fail to measure up to that standard. No individual item of circumstantial evidence is ever likely to do so. They are bricks with which to construct a wall, not the wall itself. In circumstantial cases, it is commonplace that individual items of evidence adduced by the Crown, examined separately and in isolation, have not a very strong probative force. But all the pieces of evidence have to be considered, each one in relation to the whole, and it is the whole of them taken together whose cumulative force must be considered and may constitute a basis for conviction: Coté v. The King (1941), 1941 CanLII 348 (SCC), 77 C.C.C. 75 (S.C.C.), at p. 76; R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, at pp. 361-62.

[22] While the Crown acknowledges that not everything the accused said was confirmed, a lot of it was, and enough to prove that what the accused was saying was true.

[23] The Crown submits that the accused should be found guilty on all counts.

The defence

[24] The defence asserts that the Crown is seeking convictions based on the confessions alone since no evidence connects the accused to any of the offences charged aside from his self-incriminating statements. To the contrary, there is only independent evidence that contradicts his account.

[25] The defence argues that the accused’s utterances in this case were compelled by a “dangerous mix of inducements and external pressures (if not outright threats)” given the structure of the investigation. To convict on the accused’s standalone confession, as noted in R. v. D.J.N., 2018 BCSC 2277, at para. 23, the “surrounding circumstances of a confession … must be evaluated with a trenchantly critical eye to avoid a wrongful conviction …”.

[26] The defence submits that the accused’s credibility is a live issue. It says I cannot take for granted that anything the accused said throughout the undercover operation was accurate without some sort of corroborating independent evidence.

[27] The defence also submits that I need to be mindful that the accused is a “storyteller”. He exaggerated and boasted throughout the undercover operation. For instance, he claimed that David Allan, a.k.a. the Fat Man, was a monster who weighed 360 pounds. The accused said he split Allan’s forehead open with the butt of his shotgun when he tried to kidnap him. All of this was contradicted unequivocally by David Allan.

[28] The defence asserts that not all stories a person tells are the truth. The evidence shows that the accused lied to or was willing to lie to each of the PA, the UC and Rocky. For instance, he tells the UC that he will not give exact details about offences even to the UC, and says “I always mixed-up stuff”. This amounts to the accused telling the UC to his face that he will lie to him. The accused also told the UC about his rule about not talking about his offences in a car (for fear of being recorded), and yet he continued to tell many stories to the UC in the UC’s vehicle. The accused is therefore clearly lying about something, whether it is his “supposed rule” or the individual stories. Further, to the extent that the accused repeats things, repeating a detailed lie multiple times will not make it true.

[29] In summary, the defence argues that the confessions lack any hallmark of reliability that would provide comfort they are trustworthy. They not only contradict themselves internally, the accused’s account also directly contradicts the external evidence called by the Crown. The lack of any corroborative evidence on the material elements of the allegations cannot be saved by the corroboration of collateral details that have no bearing on whether the accused actually committed any of the alleged crimes. The defence submits that the Crown has not met its onus and the accused must be acquitted on all counts.

IV. The Legal Principles

[30] A number of legal principles apply in this case. I will not summarize them all. It is important, however, to explain some of the applicable principles. In this section of my reasons, I address the issues that apply to every count charged. Other issues are addressed where required as part of my analysis.

a) The Fundamental Principles of Criminal Law

[31] An accused person is presumed innocent until proven guilty. The Crown bears the burden of proving all elements of a criminal offence beyond a reasonable doubt. That burden never shifts. An accused person is not required to prove his or her innocence. If a judge has a reasonable doubt about whether the accused committed a criminal offence, the accused must be acquitted.

[32] A judge can believe the evidence of a witness or witnesses but still be left with a reasonable doubt about what happened even after considering all the evidence. A reasonable doubt can survive a finding that credible evidence has been given on a particular issue: R. v. T.A., 2020 ONCA 783, at para. 29.

[33] Further, a judge must always determine whether the Crown has proven, beyond a reasonable doubt, each element of every offence charged. An offence is proven beyond a reasonable doubt when the judge accepts evidence which supports each element the Crown must prove.

[34] “Reasonable doubt” is not an imaginary, far-fetched or frivolous doubt; it must not be based upon sympathy or prejudice. Reasonable doubt is based on reason and common sense. Reasonable doubt is logically derived from the evidence or from the absence of evidence: R. v. Bryce (2001), 2001 CanLII 24103 (ON CA), 140 O.A.C. 126 (C.A.), at paras. 13-20. Probable or likely guilt is not sufficient to meet the standard in a criminal trial. But the burden of proof is also not impossibly high. The Crown is not required to prove its case to an absolute certainty.

[35] If at the end of the trial a judge concludes only that the accused is likely or probably guilty, the accused must be acquitted. Before an accused may be found guilty, and face the consequences of a conviction, a judge must be sure that the accused committed the offence charged: see David Watt, Watt’s Manual of Jury Instructions, 2nd ed. (Toronto: Carswell, 2015) at pp. 261-267; R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at paras. 36-40.

b) Other Applicable Principles of Law

• The Crown’s case is not substantially based on circumstantial evidence

[36] The parties agree that the utterances of the accused in this case are properly characterized as direct evidence. The accused’s admissions constitute direct evidence of guilt, and not circumstantial evidence, because if believed, the utterances settle the case.

[37] Even though a significant body of evidence in this case can be described as circumstantial evidence, the Crown’s case is not based wholly or substantially on circumstantial evidence. The directives in R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, about circumstantial evidence therefore do not strictly apply.

[38] Regardless, even in cases based largely on circumstantial evidence, the circumstantial evidence does not have to totally exclude other “conceivable inferences”. The trier-of-fact must still “decide if any proposed alternative way of looking at the case is reasonable enough to raise a doubt”: Villaroman, at para. 56; R. v. Chacon-Perez, 2022 ONCA 3, 159 O.R. (3d) 481, at para. 80. Even in a case to which Villaroman applies, the Crown must negative all reasonable possibilities consistent with innocence, but not every possible conjecture: R. v. Brown, 2022 ONCA 516, at para. 10.

• Counts receive separate consideration, but the evidence that applies to each is not siloed

[39] In my analysis, I consider each count separately. There was no application to admit the evidence across counts for the purposes of a “similar fact” analysis. As I will discuss further, general propensity reasoning is prohibited.

[40] However, evidence that applies to one count may be considered in relation to another count. “[E]vidence can be relevant to more than one count without qualifying as similar fact evidence”: R. v. Baksh, 2022 ONCA 481, at para. 28. What is not permitted is a chain of reasoning based on general propensity. I accept the Crown’s assertion that, for instance, proof derived from another offence charged that the accused had motive to commit a particular crime is circumstantial evidence that increases the likelihood that the accused committed the crime and that he had the requisite intent: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at paras. 113-117.

• Eyewitness Identification

[41] I am mindful of the law that applies to eyewitness identification. As explained in the report from the Sophonow Inquiry, eyewitness identification evidence is at the heart of many historical wrongful convictions: see also R. v. Hanemaayer, 2008 ONCA 580, 234 C.C.C. (3d) 3, at para. 29, where Rosenberg J.A. noted: “Mistaken eyewitness identification is the overwhelming factor leading to wrongful convictions”.

[42] As stated by Molloy J. in R. v. Maharaj, 2007 CarswellOnt 5848 (S.C.), at para. 25, “[o]ne must be exceedingly careful about relying on such identification, particularly where there was limited opportunity to observe the perpetrator, where the observations were made under stressful circumstances, and where the perpetrator was a complete stranger to the witness.”

[43] Where the limitations on a witness’s ability to make accurate observations are such that the evidence is given little weight and identification comes from other sources, a trial judge need not resolve inconsistencies in the evidence relating to the description of a perpetrator and an accused’s person’s appearance: per Fairburn A.C.J.O., R. v. Medford, 2021 ONCA 27, at paras. 18, 29.

• Motive is circumstantial evidence

[44] Evidence that a person has a motive to commit an offence is circumstantial evidence which may be relied upon by the Crown in proving its case. Motive is not an element of the offence that the Crown must prove, however.

[45] Where evidence demonstrates a motive to commit an offence, this evidence may give rise to a conclusion that the accused person is more likely to have committed the offence and to have done so intentionally: Watt, Jury Instructions, at p. 334. On the other hand, where a person does not have a motive to commit an offence, this circumstance may give rise to a doubt that the accused committed the offence, or that they did it intentionally.

[46] In murder prosecutions, evidence of motive is relevant to prove intent and the fact of the murder: R. v. Cloutier, 1939 CanLII 26 (SCC), [1940] S.C.R. 131; R. v. Merritt, 2017 ONSC 5302, at para. 33.

• Adoptive admissions

[47] An adoptive admission is a statement made by a third party in the presence of and adopted by the accused. The accused’s assent of the statement’s truthfulness may be inferred by his words, actions, conduct or demeanour. It may also be inferred from an accused’s silence, or an equivocal or evasive denial. Where the circumstances give rise to a reasonable expectation of reply, silence may constitute an adoptive admission.

[48] In these circumstances, several conditions must also be met: 1) that the accused heard the statement; 2) the statement must be about a subject matter of which the accused is aware; 3) the accused must not have been suffering from any disability or confusion; and 4) the declarant must not be someone to whom the accused would not be expected to reply, for instance, a child: R. v. Robinson, 2014 ONCA 63, 118 O.R. (3d) 581, at paras. 48-55.

[49] In other words, an inference can be drawn that an accused person adopted a statement by silence where the circumstances are such that the accused person can reasonably be expected to have responded: Robinson, at para. 78. The full factual context in which the statement is made will be important in determining whether to draw this inference: Robinson, at para. 80.

• The use of the accused’s confessions/utterances

[50] The Crown’s case centers on what it says are confessions made over the course of a lengthy undercover investigation. This is a substantial body of evidence. The defence also relies, in support of its position, upon aspects of this same body of evidence.

[51] Evidence of the accused’s utterances during the undercover investigation may function both for and against the accused. This evidence may be accepted or rejected, in whole or in part. This evidence is considered in the context of and together with the rest of the evidence, and not in isolation apart from the remaining evidence in the case: David Watt, Watt’s Manual of Criminal Evidence, (Toronto: Carswell, 2017), at p. 673, 682.

[52] An inculpatory statement may support the Crown’s case only where the trier of fact is convinced of its truth beyond a reasonable doubt: R. v. Harrison, 2001 BCCA 272 156 C.C.C. (3d) 117, leave to appeal refused, [2001] S.C.C.A. No. 321.

• Assessing confessions obtained in an investigation attracting Hart concerns

[53] The confessions/utterances were obtained during an investigation to which the Hart rule applies: R. v. Hart, 2014 SCC 52, [2014] 2 S.C.R. 544. I am mindful of the need to carefully and cautiously assess this evidence given the context in which it was obtained.

[54] As noted in Hart, undercover police investigations may come with a price – powerful inducements and veiled threats raise the spectre of unreliable confessions. Further, “unreliable confessions present a unique danger. They provide compelling evidence of guilt and present a clear and straightforward path to conviction. They have been responsible for wrongful convictions”: Hart, at paras. 5-6. Writing for the court in Hart, Moldaver J. endorsed the common-sense view that the potential for a false confession increases in proportion to the nature and extent of the inducements held out to the accused: Hart, at para. 69.

[55] As noted by Moldaver J. at para. 44 in R. v. Mack, 2014 SCC 58, [2014] 3 S.C.R. 3, the companion case to Hart, “even in cases where Mr. Big confessions are admitted into evidence, concerns with their reliability and prejudice will persist”. The ultimate reliability of the confession is “affected by the circumstances in which the confession was made and by the details contained in the confession itself”: Mack, at para. 52.

[56] In accordance with the principles set out at para. 52 in Mack, I consider the length of the undercover operation; the number of interactions between the PA, the UC, and the accused; the nature of the relationships between the accused and the PA and the UC; the nature and extent of the inducements offered; the presence of any threats or pressure; the extent to which there is any interrogation of the accused; and the personality of the accused.

[57] Following the principles set out in para. 53 in Mack, I consider the markers of reliability and unreliability that are contained in the confessions, including: the level of detail; whether the confession led to the discovery of additional evidence; whether the confession identified any elements of the crime that had not been made public; and whether the confession accurately described mundane details of the crime the accused would not likely have known had he not committed it.

[58] A number of specific dangers have been highlighted in this case, which I will review in greater detail later in these reasons.

• Evidence of Bad Character and the Potential for Propensity Reasoning

[59] I also caution myself with respect to the extensive evidence of bad character that has been admitted in connection with the undercover investigation and which was otherwise adduced at trial. The jurisprudence is clear that a person should not and may not be found guilty for committing a crime based on the kind of person they are. This general principle is particularly important in the context of the type of undercover investigation conducted in this case.

[60] The evidence of the accused’s history, and his willingness to participate in simulated criminal offences, are only context for other admissible evidence. Providing context is the only purpose these portions of the evidence serve.

[61] As suggested in Mack, at para. 55, I note that some of the bad character evidence in this trial (e.g., the accused’s willingness to participate in simulated criminal activity) came about following the fabrication of scenarios or encouragement by agents of the state.

[62] In any event, I caution myself against general propensity reasoning. I do not rely on any evidence of the accused’s bad character in determining whether the Crown has proven that the accused is guilty of any of the offences. I understand the prohibition against propensity reasoning and I have remained vigilant in guarding against the risks presented by both moral and reasoning prejudice: see also Wruck at paras. 18, 87.

• The Use of the Accused’s Prior Consistent Statements

[63] The accused is alleged to have repeatedly spoken about each offence charged. He is also alleged to have spoken to several people about certain offences years before the undercover investigation.

[64] The extent to which the accused’s statements are internally consistent, and consistent with things he said years ago, is an issue in this trial. I will therefore review general principles which govern how this type of evidence may be treated by the trier of fact.

[65] A prior consistent statement may not be used as confirmatory evidence, subject to well-defined exceptions. A statement is not more likely to be true just because a witness has repeated it many times. Introducing a prior out-of-court statement also offends the rule against hearsay. There are, however, exceptions to the rule prohibiting the admissibility of prior consistent statements.

[66] A trial judge may rely upon prior consistent statements if the statements are relevant and probative “through inferences other than that repetition indicates accuracy”: R. v. Klaus 2019 ABCA 483, at para. 11, citing R. v. M.C., 2014 ONCA 611, 314 C.C.C. (3d) 336, at para. 60. As noted in M.C., at para. 60, “[t]ypically, the exceptions permit introduction of the prior consistent statement where proof of it is relevant without an inference of credibility enhancement because the witness said the same thing previously”.

[67] The concerns about admitting a prior consistent statement are different when the statement is that of the accused person. A prior consistent statement of the accused person is not inadmissible hearsay. As the court explained at para. 35, in R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, confessions by an accused person,

fall within a recognized exception to the hearsay rule, and the very rationale for the admissibility by an accused is that admissions against interest are likely to be true. As Cory J. stated in R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449, at para. 17:

… the basis for the admission of a statement of the accused as an exception to the rule against hearsay is that what people freely say which is contrary to their interest is probably true.

[68] The Crown may adduce several consistent statements by the accused. As noted by the court at para. 14 in Klaus, “if an accused confesses to the crime to ten different people, the rule against prior consistent statements does not prevent the Crown from putting in all ten admissions: R. v. Mack, 2014 SCC 58 at para. 34, [2014] 3 SCR 3; R. v. Randle, 2016 BCCA 125 at paras. 81-2, 384 BCAC 243.”

[69] In cases involving repeated confessions by an accused in the Mr. Big context, the assessment of the reliability of the accused’s utterances may require consideration as to whether similar versions of the confessional account were given by the accused over many occasions. For instance, in Klaus, at paras. 11-15, the reviewing court held that the fact that the accused had told “variations of the same general version” supported the trial judge’s confidence in the reliability of the account given by the accused during the investigation, which differed from the accused’s evidence at trial. The situation in Klaus is similar to this case because in Klaus both the Crown and the defence relied on the accused’s statements to argue that the consistency or inconsistency of the confessions supported different inferences: see Klaus, at para. 18.

[70] Similarly, the British Columbia Court of Appeal was careful to note that while “repetition does not, and should not be seen to, enhance the value or truth of testimony”, the trial judge “was entitled to consider the internal consistency of the Mr. Big confession as suggesting ‘reliable recitation from memory’ as opposed to a made up story”: see R. v. Moir, 2020 BCCA 116, at paras. 111-112, citing R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 31. Other appellate level decisions in which the repetition of incriminating statements was found to have properly enhanced reliability include R. v. Randle, 2016 BCCA 125, at paras. 81-82 and Perreault c. R., 2015 QCCA 694, 19 C.R. (7th) 393, at paras. 69-70. As argued by the Crown in its written submissions, “[t]he point is not that repetition makes something more believable – but it does belie any suggestion that [the accused] was remembering a story from somebody else”.

[71] In this way, the case law is consistent with the view taken by David Paciocco, “The Perils and Potential of Prior Consistent Statements: Let's Get It Right” (2013) 17 Can. Crim. L. Rev. 181 at p. 196 that

[t]he consistencies are relevant solely to enable the decision-maker to judge whether the relevant statement is really materially inconsistent when looked at as a whole, and to gauge the impact that that any differences in detail should have on the overall credibility and reliability of the witness. In effect, the consistent features of the prior statement do not add affirmative weight to the party’s scale They are used simply to knock the “inconsistency” challenge off of the opposing party’s scales, or to reduce the weight of those inconsistencies that may remain.

[72] Two important prohibitions remain, however. The first prohibition is that it is impermissible to assume that because the accused made the same statement in the past, he or she is more likely to be telling the truth. In such a circumstance, the account could be a fabrication from the outset. I pause to note that the defence in the matter before this court makes that very argument.

[73] The second prohibition is that repeated statements to the same effect may not be used to corroborate each other. This is because “corroboration requires support from an independent source”, and not from a prior statement of the same declarant: see Paciocco, pp. 185-186.

[74] In the matter before this court, the accused’s discussions of various similar topics on a number of occasions are important for two reasons then: 1) they contribute to the level of detail in his account of each alleged offence because not all details are disclosed at the same time; and 2) the repetition of various details and the extent to which the accounts are consistent or inconsistent informs the assessment of the ultimate reliability of the accused’s utterances.

• Confirmatory Evidence

[75] An important issue in this case is my assessment of the ultimate reliability of the utterances made by the accused during the undercover investigation. As I did in the Hart application dealing with the admissibility of the utterances, I rely on the following principles from the Vetrovec line of authority as confirmed in R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, and subsequent cases. These principles include the following:

[76] Confirmatory evidence is to come from a source independent of the declarant that is capable of enhancing trustworthiness: see Khela, at para. 39.

[77] Confirmatory evidence may include evidence that is “not strong”: R. v. Dhillon (2002), 2002 CanLII 41540 (ON CA), 161 O.A.C. 231 (C.A.), at paras. 25-26; see also R. v. Ponce, 2012 MBCA 87, 292 C.C.C. (3d) 171, at para. 71.

[78] Confirmatory evidence must touch on a relevant or material aspect of the account, but the confirmatory evidence need not, itself, be incriminatory in nature: see R. v. Kehler, 2004 SCC 11, [2004] 1 S.C.R. 328, at paras. 14-15; Khela, at paras. 40-43; R. v. McFarlane, 2012 ONCA 355, at paras. 11-12; and R. v. Tse, 2013 BCCA 121, at paras. 117-118, aff’d 2012 SCC 16, [2012] 1 S.C.R. 531.

[79] Whether or not the potentially confirmatory evidence is consistent with guilt or innocence is not the question – rather, the question is whether the evidence confirms or supports relevant parts of what the declarant said: see McFarlane, at para. 12; Khela, at para. 43.

[80] One witness’s evidence, and even that of an unsavoury witness, can confirm the evidence of another witness: see R. v. Magno, 2015 ONCA 111, 321 C.C.C. (3d) 554, at paras. 17, 30; Tse, at paras. 107-111.

[81] Individual items of confirmatory evidence need not implicate the accused. However, when looked at in the context of the case as a whole, the items of confirmatory evidence should give comfort to the trier of fact that the declarant’s assertions are trustworthy: see Khela, at paras. 41-42.

PART II - The Hart factors and ultimate reliability

[82] The factors that were relevant in the admissibility voir dire remain important considerations in assessing the ultimate reliability of the accused’s utterances. I address those factors now.

I. Overview of the evidence

The accused’s circumstances at the time of the undercover investigation

[83] At the time of the undercover investigation, the accused was living in a warehouse, which contained a residential apartment. He used propane to heat the apartment. He had no running water and used rainwater to flush the toilets. There was no hydro. Even so, the accused said as late as January 7, 2019, that he “loved” the warehouse and he wanted to be there.

[84] The accused’s finances were a source of stress at various times. He owed money on taxes relating to the warehouse and he risked losing it through foreclosure. He needed money to get his license reinstated. He talked about being desperate for money, and at one point expressed that he was relying too much on the UC.

[85] But this situation was not static. At other times the accused talked about having a good business going as a plumber, but said he preferred doing crime. By January 2019, he had also started to receive a pension check and had received $6000. He said he would be receiving ODSP back pay. He was thinking about getting back into plumbing where he would make $60-$80 per hour. By January 20, 2019, he described himself as “rolling in it” and said he did not need anyone to move in and help him pay bills. He was also in the process of selling his warehouse.

[86] Socially, the accused had a close relationship with his daughter. They had very regular contact by phone and in person. She lived nearby. He described her being there for him “one hundred percent”. The accused could stay with her in the winter when it got cold. The accused was also still in contact with his ex-wife, Sandra.

[87] The accused shared his living quarters with a few others. He complained about them sometimes, referring to them as “cockroaches”. Evidently, they were drug users. He was worried they had stolen things from him – on one occasion it was drugs, on another occasion, a new pellet stove. One of the roommates was named Emily, another Tobin. The PA said as far as he knew these were friends of the accused. The PA thought that sometimes the accused seemed “pissed off” with them, other times he was not. The PA said that just about every time he visited the accused at the warehouse, others were around.

[88] While he may not have had a license, the accused did have access to vehicles. He used his daughter’s car, and sometimes Tobin’s dad’s car.

The undercover investigation

The PA

[89] The PA and the accused met when they were serving a penitentiary sentence together in the early 1990s. They became friends after the PA protected contraband belonging to the accused and returned it to him. After that, according to the PA, they became close. The PA also knew the accused’s brother (who was in jail with them) and met his wife Sandra and the accused’s kids.

[90] After their release from custody, the two remained friends. They would spend a few days together at a time.

[91] The PA said their friendship ended after the accused told him about what he did to Richard Kimball and asked him to go shoot some other men who had beaten him up. As I have explained, the PA provided information to police in 1996 about what the accused told him.

[92] The PA formally became a police agent in 2018. He had not seen the accused since 1996.

[93] Over the course of the investigation, the accused and the PA had regular contact. Their contact started in May 2018 and concluded in February 2019. The PA was on parole for most of this time. The accused knew that.

[94] Generally speaking, their contact was very friendly. They spent time together in various locations. They talked freely with one another. Both men were talkative.

[95] The PA frequently attended at the accused’s warehouse (travelling by bike or by taxi) and spent time with the accused there. They would sometimes go out to eat at places like Tim Horton’s and truck stops. Sometimes the accused would drop by the recycling depot where the PA worked part-time. During these occasions the accused was given things for his warehouse, such as propane canisters. Sometimes, after the UC became involved, they participated in simulated criminal activity together, or looked for locations for a future grow op. They did not travel far from Kingston.

[96] On the whole, the contact between the PA and the accused during the investigation was relaxed and unforced, as might be expected between long-time friends.

The UC

[97] The initial contact between the accused and the UC was on June 29, 2018. It was a brief meeting at the accused’s warehouse. The officer had no knowledge of the crimes under investigation.

[98] The UC pretended to be a long-time friend of the PA. In their cover story, they had a history together involving petty crime. At one point in the investigation, the accused was told that the UC had connections to bikers and the Irish mob in Montreal.

[99] According to the undercover narrative, the UC lived in Quebec. The accused came to refer to the UC as “Frenchie” or “Denis”. The UC portrayed himself as a criminal with a background in trucking.

[100] The second meeting between the accused and the UC was on September 12, 2018. A simulated crime was set up for that day. The UC asked if the accused and the PA would act as lookouts as the UC apparently retrieved some guns from a storage unit.

[101] Even though it was only their second meeting, the accused disclosed a number of things to the UC that day. He told the UC that: he once robbed an unnamed bank of its night deposits; he did this by making a “ram” on his bumper and that he “went right through the window”; he had a singular partner during this offence; he got $140,000 and his partner’s share was $80,000; he had escaped from Hamilton Wentworth Detention Center by going over the wall; he had been involved in a significant grow operation that suffered a $1,000,000 loss as a result of a robbery; he knew how to make bombs, and that he had done one that had lifted a vehicle up.

[102] Between their second meeting on September 12, 2018, and February 14, 2019, the day of the accused’s arrest, the UC continued to have contact with the accused based on their common interest in criminal activity. They were each supposed to bring work for the other. They met 18 times.

[103] The recordings of their meetings, which varied in length, show that the men had an easy rapport. The tone of their interactions was consistently friendly. The accused was very talkative. He discussed his past repeatedly and usually without prompting.

[104] As I will describe further below, the accused appeared to view the UC as a student of crime. The accused often offered the UC advice on how certain offences might be committed. The UC, for his part, gave every indication he was happy to receive the advice. His tone towards the accused was respectful of the accused’s past life and experience.

[105] The undercover investigation included simulated criminal offences which had been planned by the investigative team. The accused was paid for his involvement in these simulated criminal offences. He also went out for meals with the PA and UC and was given cell phones. He had some assistance with the payment of fines relating to his driver’s license. He got propane canisters (which he used to heat the living quarters in his warehouse) from the PA.

The promise of funds from future crime – the murder for hire and the grow-op

[106] The prospect that the accused might be paid to commit a murder came up during the investigation. On January 18, 2019, the UC told the accused that his “buddy” who was commissioning the murder thought that a drugging/burning (like the alleged St. Denis murder) would be a good way to do it. The accused suggested they could get $25,000 for this.

[107] On January 19, the UC asked the accused if he wanted to join him on a trip to Montreal. The accused agreed to go. The UC suggested they could discuss the price for their services under the murder contract. The accused asked whether the objective was to make it look like an accident. He told the UC, “it does get more involved when you wanna make it look like something else you know that”.

[108] On January 31, 2019, the UC and the accused travelled to Montreal to meet “Rocky”. The plan was also to discuss a potential grow-op. From the investigative perspective, the purpose of the trip was to see if they could get the accused to reveal where Richard Kimball’s body was.

[109] On the trip home from the meeting with Rocky, the accused raised for the first time his involvement in the case of Henrietta Knight. He would talk about it again in the days leading up to his arrest.

II. The Positions of the Parties

The Crown

[110] The Crown argues that the idea that the accused was so emotionally bonded to the PA and UC that he said false things to impress them and further his association with them is unsupported. Nor does the record support the inference that the accused was pressured into doing crime or making his utterances.

[111] As for his financial situation, the Crown argues that while the accused’s situation was not great, his contentment was fluid. Sometimes the accused was upset about his circumstances, sometimes he was content. He also had other means to make a living but said from the beginning he wanted to commit crime.

[112] There is no evidence the accused was addicted to any drugs or that he was vulnerable to police tactics by reason of an addiction. With the exception of one day, there is no evidence that the accused was impaired by drugs or alcohol at the time of the utterances admitted at trial.

[113] Further, the accused was not threatened. The interaction between the accused and the UC that the defence says was threatening is the opposite of a threat when it is considered in context. The accused did not act frightened, he did not say he was frightened, and there was nothing objectively frightening that occurred during the investigation.

[114] Nor was the accused isolated or mentally ill. In sum, there is no basis to find that the accused falsely confessed due to his circumstances, nor any pressures brought to bear upon him during the investigation.

The defence

[115] The defence submits the court should have real concerns about the truthfulness of what the accused said because of his circumstances during the undercover investigation. The factors considered in the admissibility hearing for the accused’s statements still apply, including the accused’s living conditions, his poverty, drug use, social isolation, the presence of threats, and his character.

[116] The defence argues that the accused was living in terrible housing conditions and using drugs when the police offered him a way out of poverty. The financial motivations for the accused to impress the UC included the financial benefits of the simulated crimes they were involved in, the murder-for-hire contract and the significant financial benefits that would come from setting up a grow-op. This project was discussed with Rocky and the UC, and the accused and the PA also talked about setting one up. The financial benefits from these proposed grow-op schemes would have been substantial.

[117] Further, the accused’s statements were induced by implicit threats by the UC, or at least pressures that were created by the investigation. The UC was represented as someone who was a dangerous criminal with ties to organized crime and access to firearms. The UC had referred to killing two people. The UC also made implicit threats against the accused’s family.

[118] In sum, the defence argues that “[t]o get out of poverty and stay safe [the accused] had to say he had committed crimes”.

III. Analysis

The accused’s financial and life circumstances

[119] I agree with the defence that the accused was living in poverty at the time of the undercover investigation. He lived in his warehouse without access to running water or heat. He was also concerned about money, and in particular, about the taxes he owed on his warehouse. He said he could not drive because of his unpaid fines. And he could not pay for his cellphone service at one point. In this context, receiving propane to heat his warehouse, meals, phones, and money for simulated crimes could function as an inducement to continue his relationships with the PA or UCs.

[120] To the extent that associating with the PA and the UC provided such benefits to the accused, I am satisfied that these benefits did not rise to the level of overcoming the accused’s ability to decide whether to speak to the UC or PA about his crimes. Nor do I find that the financial and social inducements in this investigation were of such magnitude that they compelled the accused to speak untruthfully.

[121] For whatever reason, the accused seemed very attached to his warehouse. The hardships associated with living there seemed to bother him more at certain times than others. Sometimes he was very intent on wanting to keep the warehouse. Later he expressed that he did not care that he had lost it.

[122] It is relevant that the accused had worked as a plumber at one point and had his own business. He had “prospects for legitimate work that would have paid even more than the undercover officers were offering”: Mack, at paras. 33, 36. Even the murder-for-hire payout ($25, 000 which would presumably be split between the accused and the UC) was not so much money that it functioned as a significant inducement. The murder-for-hire contract also came very late in the investigation.

[123] For the same reasons, I reject the argument that the possibility of establishing a grow-op was such an overwhelming inducement as to compel the accused to fabricate accounts of his criminality to remain involved with the UC. To the contrary, as I will review shortly, the accused was quite ready to end his involvement with the UC even with the possibility of a grow-op on the horizon.

The accused’s drug use

[124] While some evidence shows that the accused used drugs during the undercover investigation, and he had a history of addiction, no compelling evidence proves that his statements were made while he was high.

[125] Only on one day, October 1, 2018, is there evidence that the accused might be high while making statements upon which the Crown now relies. The PA suspected the accused was high on that day. However, the UC, who was a trained drug officer, said he did not think the accused was ever high when he was with him.

[126] Both the UC and PA were present for the utterances that were made on October 1 upon which the Crown now relies. The utterances relate to the robbery of the TD Bank. I have listened to the audio excerpt again. The sound quality is very clear. Nothing in the way the accused speaks causes me to think he is high on this occasion. He is coherent as he recounts how to go about robbing a bank. I hear no difference in his speech as compared to other occasions. I do not believe the accused was impaired by drugs when he was speaking.

[127] The finding that the accused was vulnerable to the pressures of the undercover investigation because of a drug addiction is insufficiently supported. Whatever his past issues with addiction, at the time of the undercover investigation, the accused said he was not an addict and did not use drugs daily. This is consistent with the observations of the PA and the UC. I find the accused was not vulnerable to police tactics by reason of an addiction.

The accused was not pressured to commit crime or talk about crime

[128] The Crown is correct that from the start of the investigation, the accused expressed the desire to do crime. I agree that the record does not support the inference that the accused was intent on living a crime-free life but was pressured to change.

[129] The accused was never told directly or indirectly that he had to participate in any of the simulated criminal activity. As I will explain shortly, I find that he was not threatened, impliedly or directly. He was never spoken to harshly.

[130] I am satisfied that the accused was acting voluntarily when he became involved in the simulated criminal offences that were part of the undercover investigation. As I will outline, I am also satisfied he spoke about his criminal history voluntarily.

[131] The record supports the conclusion that a significant reason the accused talked as much as he did to the UC about his criminal history was because he viewed himself as the UC’s teacher. The accused viewed himself as a mentor to the UC.

[132] For instance, on February 1, 2019, while talking with the PA about his meeting with the UC and Rocky, the accused expressed some concern that the meeting sounded a lot like a Mr. Big scenario. The accused then said this about the UC: “but he’s picking my brain which is fine because he wants to learn and he picked the right guy to learn from” [emphasis added]. Even when he suspected he might be the target of a Mr. Big operation, the accused was still happy to teach the UC.

[133] As for his motivation in speaking with the PA, the record supports the conclusion that this is rooted in their relationship and history together. It also seems to be part of the accused’s character – he is a talkative person. He likes to recount stories. Their truthfulness will be examined further as I deal with the evidence pertaining to each allegation.

The accused was not afraid

[134] Considerable evidence shows that the accused was not afraid of anyone involved in the undercover investigation.

[135] The accused said he loved the PA like a brother, and their interactions are consistent with that. They are long-time friends and have an easy rapport. The accused never expresses any fear of the PA. To the contrary, he tells the UC that the PA is not cut out for killing people. He also tells the UC he is not worried about the PA ratting on him about the accused’s involvement with Kimball or the TD Bank because the PA knows that the accused would find a way to kill him, even from jail. There is no evidence the accused is fearful of the PA.

[136] I find that the accused viewed the UC as his student. The tone of their interactions is consistently to that effect. There were no harsh words, arguments, or raised voices in their interactions. There was no persistent questioning and no interrogations. Instead, the UC sometimes flatters the accused and tells him how smart he is. The accused speaks openly and freely. From time to time the UC asks some questions about how the accused did things. The accused appears happy to impart his wisdom and to tutor the UC. In many instances, his utterances are made in a stream of consciousness fashion, without much, if any, prodding by the UC.

[137] That the accused was happy to share his knowledge with the UC is clear when he is talking with the PA on February 9, 2019. The accused tells the PA what he thinks of the UC and says, “he’s a fucking bum boy for them”. In context, this means that the accused thought the UC was a “bum boy” for the people who had been involved in one of the simulated offences he had done with the UC.

[138] The accused then continued on, talking about how the UC was not “coming round” anymore. He said: “I was just trying to educate him on you know … on uh good ways to do things”. This passage demonstrates the accused’s attitude toward the UC. The UC was a student to be tutored. He was not a crime boss to be feared - he was a “bum boy” for others.

[139] As for Rocky, the evidence supports the conclusion that the accused was uneasy about Rocky because of his concerns about being the target of a Mr. Big operation. The evidence does not show that he was afraid of Rocky, however.

[140] For instance, on February 1, 2019, towards the end of the investigation, the accused was speaking to the PA about his meeting with the UC and Rocky. He expressed frustration at being asked to prove himself. He had been asked to take photographs of the location where the “accidental” fire had occurred so Rocky could verify his account.

[141] The accused said that if he was asked to do anything more than taking a picture he was going to “tell them to fucking jam it up their asses”. He went on to say that if there was anyone who did not have to prove themselves it was him.

[142] No fear is expressed here, or at any other time, about Rocky.

[143] Ironically, this conversation had been preceded by another conversation with the PA where the accused talked about the Mr. Big sting. He said: “You know I seen on TV where it’s called a Mister Big sting … They uh they introduce the guy to the big boss … Where he’s gotta prove himself uh why he’s legit … it scared me yeah it scared me … it scared me because I was like uh I don’t have to prove myself ”. This passage demonstrates that if the accused was scared about anything, it was being asked to give up too much information in “proving himself”, and what that might mean if this was indeed a Mr. Big operation.

[144] The accused picked up on that theme again the next day while talking to the PA. He told the PA that he liked doing his own work and that he needed money now. He suggested that if the UC had a “sweet deal” that did not involve the accused having to talk to anybody (by which I understand him to mean to convince them of his trustworthiness) then they would do it. But he was not going to meet anyone and prove himself anymore. His mind was made up. He said: “I’m not gonna meet these guys ever again. I know I’m not proving myself for anybody”.

[145] The accused went on to say that with the sale of his warehouse, and other changes in circumstances, he was now in a position to set things up on his own.

[146] I conclude from these interactions that the accused was prepared to walk away from further dealings with the UC and Rocky. He was not afraid of them. Nor was he dependent on them emotionally, socially or financially.

There were no threats

[147] I reject the argument that anything the UC said to the accused was a threat, implicitly or explicitly.

[148] I am satisfied that the accused did not fear the UC because of anything the accused inferred about the UC’s status in the criminal underworld. While the UC had reported ties to the Irish mob in Montreal, and the circumstances of the investigation did suggest that the UC had other criminal associates and access to weapons, there is no indication that the UC was part of any organized group. The accused never expressed any fear of the UC because of these circumstances. To the contrary, on February 1, when he was expressing some unease that he might be involved in a Mr. Big sting, the accused told the PA he might “whack” the UC if the UC continued to ask questions of him.

[149] I also find that nothing said by the UC amounted to a threat or a conditional threat. Nor did the UC create such pressure on the accused that he was driven to fabricate accounts of his own serious offending in an effort to stay safe. The argument that the UC suggested he would harm the accused’s family finds no support in the exchange cited by the defence. If anything, the UC is agreeing with the accused during this exchange that harming family is off-limits.

[150] Nor do I find that the UC’s accounts of having committed two murders frightened or intimidated the accused. The accused discussed his own history of violence from the beginning of his contact with the UC. Before the UC said he had murdered anyone, the accused had disclosed considerable information about his own criminal offending to the UC, including murder. When the UC talked about one of the murders he had supposedly committed, the accused sympathized with the UC about having to kill someone you liked.

[151] When the subject of murder came up, the accused never gave any indication that he was frightened or intimidated by anything said by the UC. I do not believe the accused had any fear of the UC because of the UC’s fictional accounts of having murdered two people.

The accused was never told he needed to be honest

[152] The defence argues that unlike in a traditional Mr. Big operation, the accused was never told he needed to be truthful.

[153] No interrogation occurred in this case. The absence of an exhortation to truthfulness no doubt reflects that fact.

[154] In any case, when the accused suggests to the UC that he could make up a story to tell Rocky to convince Rocky of his trustworthiness, the UC tells him “Oh fuck don’t don’t make a story up”. In effect, he was told to be honest.

[155] Given the personality of the accused, I rather doubt that an exhortation to truthfulness would have had much impact in any case. As I will review shortly, the accused was very much in control of the narratives he told. He plainly said to both the PA and the UC at different times that in talking about his past crimes, he mixed up details or gave “wrong facts” so that anything he said could not be used against him later.

[156] I have considered that the accused was capable of fabricating details about his offences and that he likely did so at various times when he recounted his past criminal offending. But I do not find that this practice undermines the reliability of the accused’s utterances to the point that nothing he says can be relied upon. However, it is an important factor that I keep in mind as I assess whether the Crown has met its burden on the totality of the evidence.

IV. Conclusion on Hart factors and reliability

[157] As noted in R. v. Yakimchuk, 2017 ABCA 101, 48 Alta. L.R. (6th) 207, at para. 59, several Mr. Big cases deal with accused persons who are unemployed or receiving social assistance. This alone is not enough to show that financial or lifestyle inducements are overwhelming or that the accused is “destitute”: R. v. Allgood, 2015 SKCA 88, at para. 58; R. v. West, 2015 BCCA 379, at paras. 86, 100; R. v. M.(M.), 2015 ABQB 692, at para. 86; R. v. Johnston, 2016 BCCA 3, 333 C.C.C. (3d) 555, at para. 66.

[158] A very important consideration in my assessment in this case is that the accused reveals himself during the undercover investigation to be a sophisticated, smart and wilful person with a strong personality. I find that by reason of this character, he was far less vulnerable to manipulation than his circumstances might otherwise suggest: see e.g., Yakimchuk, at paras. 68-69; Perreault, at para. 89; M.(M.), at para. 112; West, at para. 86. I reject the idea that the accused was shamed into exaggerating and lying about his criminality because he needed to present himself as a serious criminal – the totality of the record of his interactions with the PA, the UC and Rocky do not support that view.

[159] Throughout the investigation, the accused described himself as a “professional”. This is clearly how he viewed himself. He prided himself on it, in fact.

[160] The accused did not just claim to be a professional, he demonstrated again and again that he was savvy and street-smart. He was alert to police techniques. He was aware he could be the subject of a wiretap investigation and said he “got wiretapped about six times and they never went against me”. He said he considered “that every phone’s tapped”. Consequently, he said he would never “say anything out loud that I wouldn’t want repeated in court” (September 26; he also made a similar utterance on November 24). He was aware of the Mr. Big technique and had watched a documentary about it.

[161] The accused also discussed techniques to avoid detection of criminal offences or to frustrate their investigation. He said he always “mixed stuff up”, so that if people tried to rat on him, their statements would be useless. He told the UC (on November 24) “I’m not giving you exact details but enough to let you know I know what I’m doing”. These utterances suggest the accused was very much in control of the narrative he was telling.

[162] This undercover investigation was lengthy. It presented some financial and social benefits to the accused to associate with the UC and the PA. These benefits were not so significant, however, as to give rise to a concern that the police tactics resulted in coerced statements. This is particularly so since I am satisfied that the accused was not a person who was vulnerable to police manipulation. I find that the reliability of his statements is not undermined by any of the conditions created by the undercover investigation.

[163] This conclusion does not foreclose the possibility that the accused was not being truthful in his accounts of his offences for other reasons. I turn now to consideration of the ultimate reliability of his utterances having regard to the additional evidence presented on each count.

PART III: COUNT 1 - MANSLAUGHTER OF HENRIETTA KNIGHT

I. The Crown’s theory

[164] Henrietta Knight was a 92-year-old woman who lived alone in a small house in Kingston. On June 2, 1995, the accused is alleged to have entered her home to rob her.

[165] The Crown alleges that the accused targeted Ms. Knight for a robbery because he had received a tip from a woman named Lori Parker. Lori Parker lived across the street from Henrietta Knight. Lori was married to the accused’s best friend, Robert Parker. However, she was having an affair with the accused.

[166] Lori Parker told the accused that Ms. Knight had money.

[167] Having received this tip, the accused entered Henrietta Knight’s home with the intention of robbing her. Once inside, he bound Ms. Knight to a chair. During the offence, he beat her about the head. At some point, Ms. Knight managed to make her way to a neighbour’s house, and police were called.

[168] Ms. Knight was treated in hospital the day of the offence and then released. She returned to hospital a few times one month later in early July 1995.

[169] On July 11, 1995, a CT scan was done for the first time. It showed bleeding on her brain. Ms. Knight remained in hospital where she had a surgical procedure to treat her brain injury. She was eventually moved to a chronic care facility where she died on November 4, 1995. The Crown theory is that the accused’s assaults upon Ms. Knight caused her brain injury and, eventually, her death.

[170] The case was never solved. Police issued various media releases over the years with general appeals to the public for information. The media releases contained some information about the offence.

[171] Almost a year after Henrietta Knight died, Lori Parker is alleged to have told her husband, Robert Parker, that she told the accused that Henrietta Knight had money. Lori was worried about going to jail. Lori also told Robert Parker that the accused threatened that if she told anyone, he would harm their children.

[172] The next day, the Crown says that the accused directly confessed his involvement to Robert Parker. The accused also made other comments implicating himself in this offence in Robert Parker’s presence at other times.

II. The Issues

[173] That Ms. Knight was robbed and assaulted in her home on June 2, 1995, is not controversial. That she died on November 4, 1995, is an admitted fact.

[174] The issues relating to this count are whether the Crown has proved beyond a reasonable doubt that: 1) the accused was the perpetrator of the robbery of Ms. Knight; and if so, 2) that the accused’s unlawful actions in assaulting Ms. Knight with an intent to steal from her caused her death.

[175] The parties agree that robbery is an included offence given the framing of the manslaughter count on the indictment. If I have a reasonable doubt that the accused caused the death of Ms. Knight, then the accused may be convicted of robbery so long as I am satisfied the Crown has proved beyond a reasonable doubt that the accused is the person who went into the home on June 2, 1995, to rob Ms. Knight.

III. Issue #1: Was the accused the perpetrator of the robbery?

a) The Positions of the Parties

The Crown

[176] The Crown argues that the accused confessed to committing this offence more than once to the UC and to more than one person – both the UC and Robert Parker. It says the court’s assessment of the reliability of the accused’s statements to these individuals is the most significant issue relating to this count.

[177] The Crown submits that certain findings made in the Hart motion should be made again now, including that: 1) there is a compelling amount of detail in the accused’s utterances about his assault of Henrietta Knight; 2) the accused’s expression of feelings of regret suggest this account was based on genuine and not fabricated events and are the opposite of boasting to impress the UC; 3) the details he gave were repeated after his first disclosure; 4) none of the disclosures were made as a result of suggestions by the UC or in an apparent effort to impress anyone; and 5) there is extensive confirmation of what he said to the UC about this crime.

The Defence

[178] The defence argues that the ultimate reliability of the accused’s utterances about this offence has not been proved beyond a reasonable doubt.

[179] In relation to this count, the defence emphasizes inconsistencies in what the accused said about this offence and other evidence. For instance: 1) the accused told the UC the victim died weeks after he had assaulted the victim when it was in fact months later; 2) the accused said he had worn a mask, but this contradicts the description given by Ms. Knight of her attacker; 3) the accused’s comments to the UC suggest the offence occurred in winter, when it was in fact in June; 4) the time the accused said he spent in the house (a couple hours) does not accord with the account of Ms. Knight (about half an hour); 5) the accused said only that he got a tip from Lori Parker, whereas, according to Robert Parker, Lori Parker said she had planned the robbery with the accused; 6) Ms. Knight said the robber brandished a revolver during the robbery, something never mentioned in the accused’s account; and 7) Ms. Knight said the robber said he was from Montreal, whereas the accused never claimed to have said that during the offence.

[180] Further, the defence focuses on the extent to which the physical description of the perpetrator given by Ms. Knight is inconsistent with the description of the accused, who had a mustache at the time. The composite sketch prepared by police does not resemble the accused in any way.

[181] The defence also takes issue with the existence or significance of other evidence which the Crown says is confirmatory.

[182] As for the tip allegedly given by Lori Parker to the accused, the defence strongly contests the credibility and reliability of the hearsay recipient, Robert Parker, on this point. No credibly independent evidence establishes that Lori Parker gave a tip to the accused.

[183] Further, the accused was aware of the local media attention given to this case, which kept being publicized by the police. The media accounts included significant details, including that: 1) Ms. Knight was attacked after answering a knock to her door; 2) the attacker was male and demanded money; 3) Ms. Knight was bound and beaten; 4) Ms. Knight suffered injuries to her neck, wrist and face; 5) Ms. Knight was bound to her chair; and 6) Ms. Knight later died from her injuries. The media release also included a composite picture of the suspect. No reference was made, however, to the perpetrator brandishing a revolver.

[184] There were also other sources of information in the community (for instance Robert Parker, Lori Parker, and Bob Wiltsie) from whom the accused could have learned the details contained in his account.

b) Preliminary findings of fact

[185] Some preliminary findings of fact are proved without resort to the accused’s utterances or any of the hearsay statements admitted in the trial. I make these findings with a view to narrowing the factual issues.

[186] The evidence for this offence includes photographs of Ms. Knight’s person and home following the home invasion. The photographs of Ms. Knight show extensive bruising to her face and neck, a bruise on her left shoulder, and bruising to her arms and hands. Some of her skin had been torn off her arms where she had been taped up.

[187] The photographs of Ms. Knight’s home show that it was ransacked (for instance, drawers were pulled out and overturned). The photographs speak for themselves. Further, I accept the evidence of Ms. Knight’s niece, Diane Woods, that Ms. Knight did not live this way.

[188] The photos also show a chair with tape attached. Police seized the chair, to which grey duct tape was attached, as well as a piece of similar tape from beneath the chair. Police also seized some scissors and a lamp cord. DNA analysis confirmed that bodily fluids from Henrietta Knight were on the tape on the chair, the piece of tape from beneath the chair, and the scissors. A lamp cord from the living room had blood on it, but the amount was too little to develop any DNA profile.

[189] The police who first attended at Ms. Knight’s home also testified and I accept their evidence about their observations. There was no visible evidence of forced entry.

[190] Quite apart from the evidence given by Ms. Knight or the accused, the remaining evidence relating to this count satisfies me beyond a reasonable doubt of a number of facts, as follows.

[191] Ms. Knight was home on June 2, 1995, when a person came to her home and gained entry. I infer based on the photographs of Ms. Knight’s home and her body that this person ransacked the house, from which I infer an intention to rob her. I infer that during these events Ms. Knight was assaulted in the area of her head. The injuries to her arms, and her DNA on tape found on a chair at the scene, lead me to conclude that she was taped to that chair at some point in time.

[192] In other words, the evidence demonstrates beyond a reasonable doubt that Ms. Knight was the target of a home invasion and that she was assaulted during the offence.

[193] I turn now to a review of the evidence that bears on the remaining facts to be decided. This review is lengthy, since it includes consideration of four statements made by Ms. Knight in the aftermath of these events, and the evidence of Robert Parker, who is the recipient of the hearsay statement allegedly made by Lori Parker. Given the need to carefully assess the ultimate reliability of the hearsay evidence, and the credibility and reliability of Mr. Parker, I have provided fulsome summaries of this evidence.

[194] I have also spent some time on the circumstances in which the accused comes to be speaking about this offence during the undercover investigation, since this is important to the analysis of the ultimate reliability of the accused’s account of his involvement in this offence.

c) Review of the evidence

The absence of forensic evidence

[195] No forensic evidence, such as fingerprints, linked the accused to the scene. His DNA was not found within Ms. Knight’s residence.

The statements of Henrietta Knight

[196] Four statements made by Henrietta Knight have been admitted into evidence. In ruling they were admissible, I found that the core of Ms. Knight’s account was that a man had come into her house, assaulted her, pushed her into a chair, bound her to it, and said he wanted money. I found this core narrative was corroborated in various ways and met the standard of threshold reliability. The alternative explanation that she misperceived or misremembered these details was not equally consistent with the explanation that she reported them because they were true.

[197] The defence position on this application was that once one of Ms. Knight’s statements was found to be admissible, fairness required that they all be admitted. This is because Ms. Knight is not consistent in the details she provides in her statements.

[198] Some of the details provided by Ms. Knight are now cited by each of the parties in support of their positions. The ultimate reliability of these details is a significant issue. Accordingly, I review the details Ms. Knight provided and other evidence about the circumstances in which she made those statements.

1. Verbal statement to paramedic Jeff O’Field

[199] Paramedic Jeff O’Field assessed Ms. Knight upon his arrival on the scene. He recorded what she told him about what had happened. He started taking her statement within a half hour of the 911 call being placed. This first statement was admitted as a spontaneous utterance.

[200] Mr. O’Field reported that Ms. Knight said she was bound around her wrists and tied “into” a chair. While she was restrained, she was struck on the left side of her face by the assailant’s hand/fist. Ms. Knight indicated she had answered a knock on her front door. A young man pushed his way into her house, tied her into a chair, and struck her. She said her husband would be home soon, but the man said he knew that her husband was dead. After being tied for approximately 30 minutes, during which time the man ransacked her house, he cut her free. She then made her way to Bob’s house, at which time police and ambulance were called.

[201] During his assessment, Mr. O’Field completed the Glasgow coma scale, which rates a person’s consciousness or oriented state following a traumatic situation. Ms. Knight’s score was normal for an alert and conscious patient. During the physical exam Ms. Knight was alert and oriented and able to answer all his questions in a coherent manner. She was calm and coherent, with minimal acute distress. Her respiratory rate was normal, as was her pupil response. Mr. O’Field said he had no concerns whatsoever about her ability to communicate.

2. Verbal Statement to Officers at the Hospital on June 2, 1995

[202] Constable Heymans and Constable Wicklam spoke with Ms. Knight at the hospital after her injuries had been photographed. The officers asked Ms. Knight to recount what happened.

[203] Both officers testified that they had no difficulties in communicating with Ms. Knight who appeared to understand them (notwithstanding that PC Heymans had been advised Ms. Knight had a ruptured left ear drum). Her injuries did not appear to have an impact on her ability to provide a statement.

[204] Officer Heymans’ notes indicate that Ms. Knight recounted that there was a knock at the front door and a lone white male forced his way in pushing her back into a chair. He struck her in the head numerous times very hard. He tied her hands behind her back. He demanded to know where the money was. She refused to tell him. He struck her repeatedly about the face and head, and ransacked the house. He told her he had a gun and was going to kill her if she did not tell him where the money was. He showed her a small grey revolver. At this point, the officer notes state “about ½ hour”. The notes continue and indicate that the male then cut the tape and the victim fled out the front door to a neighbour’s house. She does not know where the attacker went. The officer’s notes state that the “suspect is a lone white male” and that Ms. Knight’s arms were taped to the arms of a chair.

[205] Officer Wicklam’s notes indicate that Ms. Knight heard a knock on the front door. She thought it was a neighbour so she opened the door. When she did, a man pushed her back into her residence, slapped her in the face really hard and knocked her back into a chair. There he proceeded to tie her hands to the arms of the chair. He asked her where her money was. She refused to tell him, so he proceeded to slap her more in the face. Then he started ransacking the house and came back asking for the money. She refused to tell him. He then produced a gun – and told her if she did not tell him he was going to kill her. This went on for approximately a half hour then he cut the tape and the victim fled out the front door to a neighbour’s house. She did not know where he went. She believed he was still in the house. She stated that the suspect “cut duct tape with scissors”. The telephone cord was cut and used to tie her up as well.

3. Verbal Statement to Officers on June 3, 1995

[206] Officers Brian Begbie and Sam Smith spoke with Ms. Knight the day after the home invasion. She was at her brother’s home at the time.

[207] During the interview, Ms. Knight was noted by Officer Begbie to be very groggy, sometimes difficult to understand, and perhaps confused. She had just woken up when police arrived and this is when she seemed most confused. Officer Begbie thought Ms. Knight might be under the influence of drugs (he did not know what medication she might have had), though he did not believe her to be intoxicated. She was soft-spoken and it was sometimes hard to hear her. Officer Begbie also noted she also appeared to have difficulty hearing. However, he said she appeared to understand his questions. He said he did not tell her what she had told others or prompt her with his questions. Any questions he asked would have been to seek clarification. At no point did he feel like it was necessary to discontinue taking a statement from her.

[208] Ms. Knight provided a similar account of what occurred as she had provided the day before, although she provided new details about her interactions with the assailant. She said he said he was from Montreal. She reported he got no money. She said she told the assailant she had no money and he told her she had lots of money. She said he forced her into the chair where he taped both arms and her body (torso) to the chair. He kept telling her he would kill her and he wanted money. He told her he would burn the house down and put papers under her chair. She did not tell him the assailant had tied her hands behind her back.

[209] Officer Begbie’s notes indicate she described her assailant as a small man who was 35-40 years old, 5’6”, 150 lbs, neat hair parted on the side, no moustache, clean shaven, dark clothing, no earrings, or tattoos or scars noticed. She said he was “blond above ears, longer in back and blond closer to brown”. She said she had never seen him before, not shopping or anywhere. She said it was not the son in law (“Parry”) of Bob Wiltsie, who had done work at her house in the past.

[210] Officer Smith’s report provides a generally similar description of the man. However, his report indicates the assailant was described by Ms. Knight as having dark brown hair, parted on the side, longer in back, with short sideburns. He also recorded that Ms. Knight said she did not think the assailant was wearing gloves.

4. Sworn Videotaped Statement to Officers on June 5, 1995

[211] Two days later, and three days after the home invasion, Ms. Knight was interviewed at the police station by then Sgt. (and now Chief) Antje McNeely. The statement was given under oath and was videotaped. It was given after Ms. Knight was cautioned that lying under oath was a criminal offence and could lead to perjury charges. Ms. Knight acknowledged her understanding.

[212] Chief McNeely testified that she saw no signs of intoxication from Ms. Knight. She confirmed that she had given Ms. Knight no memory aides, such as reviewing with her what she had previously told other officers.

[213] During the interview Ms. Knight appeared to have difficulty hearing. She appeared very frail. Her face showed extensive and deep coloured bruising. She appeared confused from time to time.

[214] It took some effort on the part of Chief McNeely to have Ms. Knight focus on the issue she was asking about. When Chief McNeely told Ms. Knight she wanted to talk about what had happened the day of the home invasion, Ms. Knight said she could hardly remember. She said she had been so scared. She said she thought she might be able to remember a few things.

[215] Over the course of the 33-minute interview, Ms. Knight did provide an account of what had occurred in her home. This was in response to very open-ended and non-leading questioning. The account Ms. Knight gave was generally similar to her previous accounts – a man had come into the house, assaulted her, pushed her into a chair and bound her to it. He said he wanted her money.

[216] There were also differences in her account. Some of the differences related to how she escaped. When she was first asked how she got away, she said she just walked out the front door, and the man stood and looked at her. However, later in the interview, she said he cut her loose, and then he left. After that she locked the door and called the police.

[217] She was also inconsistent in this interview about where she was while the man searched her house. She told Chief McNeely the man plundered the house while she was out of the house. When asked a follow-up question about this, she said she did not know, she could not remember. Later still, she suggested she had remained in the house when she said that police came after she called them and she let them in. This part of her account is inconsistent with the evidence that Ms. Knight was met by police at her neighbour, Mr. Wiltsie’s house.

[218] During the videotaped interview, Ms. Knight could remember very little about anything the man might have said to her. She reported no threatening comments. While she had earlier reported that the man threatened her and said other things to her, on this occasion she said the man did not say anything, other than he was a thief. She said that it was money that he wanted and he wasn’t “sexy” at all. She said she did not give him any money and that’s why he hurt her, because she did not give him anything.

[219] While she had reported that he had a gun when speaking with Officers Begbie and Smith, this time she said the man did not bring anything with him. There was no mention of a gun being involved. While she had previously said the man had not worn gloves (to Officers Begbie and Smith on June 3rd), this time she said he did wear them, and she thought they were white, made of cotton, and thin.

[220] Ms. Knight was consistent that she did not know the man who entered her house. When she was asked to describe the man, she said he was slight and maybe a little taller than she was (she was five foot four and a half). She thought he was thirty-five or in his late thirties, maybe forty. He had a slim face, not very fleshy. She gestured to the other officer in the room, whose hair (visible on the video) was dark brown, and said she did not think the man’s hair was as dark as the officer’s. He was clean cut. His hair was parted on the side, it was clean cut, and it wasn’t long. When asked more about the shape of her assailant’s face, she said he wasn’t fat at all and was quite slim. His face was kind of thin. She thought he had grey eyes, they weren’t blue, and they weren’t brown.

[221] When asked what time this happened, she said she thought it was in the morning, but “apparently it was in the afternoon”. She again said she had been so scared.

[222] Ms. Knight said that after she called police, they came to her house, and she let them in. She said she did not phone anyone else.

The Accused’s Utterances During the Undercover Investigation

[223] Unlike the utterances relating to the remaining offences charged, the utterances relating to the home invasion and death of Henrietta Knight are made for the first time late in the investigation on January 31, February 13 and February 14, 2019. However, the accused had made other utterances that provided relevant contextual information before then.

[224] The first disclosure that the accused was involved in an offence relating to Henrietta Knight was on January 31, 2019. This first disclosure was made to the UC as they were returning to Kingston after meeting with Rocky in Montreal. As I have explained, Rocky was, in fact, another undercover officer who was involved in the undercover operation. The accused and the UC were ostensibly meeting Rocky to discuss work he might have for them, including establishing a grow-op and doing a contract killing.

[225] During the meeting the accused was told that if Rocky could not verify things the accused had said about his criminal past, then he would not be trusted by Rocky. This would mean the accused would not be given work by him. The defence position is that the accused was desperate financially and also afraid of the UC and Rocky. It argues the accused said false things in a bid to impress them and to get work from them since he was living in poverty and desperate for money.

[226] On the way back to Kingston after the meeting with Rocky, the accused and the UC talked about many things. The conversation was steady and the accused was talkative. At one point, the conversation turned to the types of cases involving a person’s death or disappearance that attract police attention. The accused told the UC that he hated when there were unsolved crimes in Kingston. The UC asked the accused why. The conversation continued as follows:

Michael Wentworth: Well cuz it comes up uh the one I can’t talk to the one the one I was worried about cuz she had these

UC: Huh

Michael Wentworth: She had these it was a she (motioning the shape of breasts at his chest)

UC: Oh it was a she

Michael Wentworth: And that it was very ugly and I don’t wanna talk about that one but it comes up all the time

UC: Oh really

Michael Wentworth: Yeah but I have no con-connection to it but I

UC: You have not what

Michael Wentworth: There’s no way to connect me to it so

UC: Oh okay

Michael Wentworth: Cuz I don’t know the person

UC: Oh

Michael Wentworth: So but unfortunately it went bad

UC: It was a contract

Michael Wentworth: No it just went bad supposed to have a lotta money in the house ya know and that was all bullshit

UC: Aww fuck

Michael Wentworth: And uh I guess I didn’t notice I was as rough as I was I didn’t know and uh later on that was it say a couple of weeks (laughs) so I don’t wanna talk about it but uh it was nothing to brag about it but that’s a tip for you eh a tip

UC: Didn’t get a nickel or a dime

UC: Somebody was telling you they had a lot there

Michael Wentworth: Yeah yeah

UC: And they didn’t have

Michael Wentworth: Yeah she was a hoarder and she’s you know don’t believe in bank and blah blah blah blah blah and the person that give me the tip she’s dead now not because of me…

UC: Okay

Michael Wentworth: She’s she’s the one that had the heart attack uh the brain aneurism

UC: Oh oh the the the the good one uh the tight the tight pussy one

Michael Wentworth: Yeah yeah yeah yeah that’s it but

UC: (laughs)

Michael Wentworth: She’s the one that give me the tip

UC: Ohh

Michael Wentworth: Yeah but she thought so but uh uh and I talked to somebody else and they went who’d ever think she had money I mean she uh blah blah blah they take her grocery shopping and everything else and (unintelligible) so much for that tip (laughs)

UC: Aw fuck did she at least help you clean up the mess or no

Michael Wentworth: No No I didn’t do it… it didn’t happen right there later on … Later on she had medical complications due to what happened

UC: Oh kay kay kay

Michael Wentworth: Yeah and uh its nothing to be proud of I mean it’s I’m disgusted by it but uh uh uh

[emphasis added]

[227] Almost two weeks after this exchange, the accused again discussed this offence with the UC. This time, the UC brought it up. The UC asked the accused if he remembered the cold case he had mentioned and told the accused he had looked it up. He showed him an article on his phone and told the accused to scroll down because there were pictures. The UC directed the accused to the one he thought the accused was talking about and asked, “does that make sense?” The accused replied, “oh yeah, that’s it”. He said, “that was a nothing, that was not meant to be”.

[228] Thereafter, the accused provided further details, though he spoke in a lower tone of voice and made various gestures. While he began by referring to the victim as female, he switched to referring to a male victim. The UC assured the accused that he had “swiped” the vehicle and not to worry. I understand the UC to have been reassuring the accused he had checked the vehicle for a recording device.

[229] In the exchange that followed, while pointing to the media article on the UC’s phone, the accused started winking and put his finger to his mouth as if to indicate he was reluctant to speak out loud. That exchange included the following:

a. While pointing at the article about Ms. Knight, the accused said the victim was a “young guy”;

b. He said, “he wouldn’t open the safe” and said the victim was stubborn;

c. He motioned hitting the head area;

d. He said, “I want the stamp collection whatever” and winked;

e. He knocked to gain entry to the victim’s house;

f. He showed by motion how the victim was bound around the arms;

g. He made a gesture suggesting he had worn a face mask after being asked if anyone would have seen him;

h. The person who gave him the tip was dead. He had loved her and would have “hooked up with her in a heartbeat” when his wife left;

i. The person who gave him the tip had died of a brain aneurism.

[230] At another point in the investigation, the accused had also referred to a person named “Lori” and his relationship with her. He had said that Lori’s husband was Rob Parker and that Lori died of a brain aneurism. Accordingly, the UC referred to Lori as the person who gave him the tip during their next conversation about this offence the next day. The accused did not correct the UC. I find the accused adopted this identification of Lori as the tipster, which is clear from his remaining comments about the tipster in any event.

[231] During this conversation, the accused told the UC:

a. Lori was his wife’s best friend. The accused had had a sexual relationship with her;

b. Lori lived “in a pretty good area” and was “really straight”. When asked by the UC how she knew about Ms. Knight’s address, he said Lori had heard rumours and that there were rumours around when people are hoarders; and

c. Lori could keep a secret – “I mean she knew about (unintelligible) not details but she knew you know what I mean… It’s hard not to know because when something big goes down…”.

The Evidence of Robert Parker

[232] The evidence given by Robert Parker is important to this count and others. I review his evidence in its entirety now, even on the issues that relate to other offences, since I assess his credibility and reliability having regard to his evidence as a whole. Robert Parker testified as follows.

[233] At the time of the robbery of Ms. Knight in June of 1995, Robert Parker was married to Lori Parker. For a time, between 1992 to 1994, they lived with Robert Parker’s grandparents, the Wiltsies. The Wiltsies lived at 155 MacDonnell while Ms. Knight lived at 172 MacDonnell. The houses were across the street from one another, a few houses apart. Confirmation for this part of Robert Parker’s evidence comes from OHIP records for Lori Parker, which indicate her address was 155 MacDonnell Street until 1996, which was after the time of the offence.

[234] Robert Parker and Lori Parker had four children together and eventually separated in 1997 or 1998. Lori died after that in 2001. Robert Parker understood that she had died as a result of a brain aneurysm, since this is what he had been told by Lori’s father.

[235] According to Mr. Parker, his grandfather, Bob Wiltsie, and Ms. Knight were friends. His grandfather would stop by to see Ms. Knight a few times per week.

[236] Mr. Parker also knew Henrietta Knight and “got along fine” with her. He called her “Henrietta”. While they didn’t socialize, he would sometimes pick his grandfather up at her house. Mr. Parker testified that he had done some work on her house. Records entered at trial confirm that Mr. Parker worked on her house in 1994.

[237] At some point when Lori and Robert Parker were living with him, Bob Wiltsie talked about Ms. Knight being “kind of a hoarder”, but jokingly. Mr. Wiltsie was also reported to have said, again jokingly, that Ms. Knight probably had lots of money in her pillowcase or underneath her bed. Mr. Parker thought Lori would have been in a position to hear these comments since she stayed home to help his grandparents while they lived with them. He agreed with defence counsel that his grandfather may very well have made similar comments to other people as well.

[238] Mr. Parker said he had met the accused through work they both did as tradespeople. They both did plumbing work, and Mr. Parker had worked on some jobs for the accused. He also socialized with the accused at the accused’s house on Cottage Farms Road. He said his wife Lori was friends with the accused’s then-wife, Sandra. Mr. Parker said that he and Lori also socialized with the accused and Sandra as couples and had gone out for dinner together a few times.

[239] Mr. Parker met other associates of the accused at the property on Cottage Farms Road. He met Pat Madigan at a party there. He had heard Pat and Mike in conversation a few times while at parties. He recalled that Pat had a Harley-Davidson, though he could not recall its colour. He had also met Richard Kimball.

[240] Mr. Parker testified about certain conversations he heard while at parties at Cottage Farms Road. He was aware of the TD Bank robbery from media reports, and said he heard Pat and Mike talk about it. He said they didn’t go into specifics. He said he heard the accused say that he and Pat and Richard had robbed the Bank of Montreal. He said they had backed up to the bank and gone through the window with a battering ram, gone in, demanded the money, and left.

[241] Mr. Parker also recalled that the accused had spoken about Richard Kimball. He said that the accused was going to “take care of Richard Kimball, get rid of Richard Kimball”, and made a gesture across his throat like he was cutting it. Mr. Parker said that Rick had told him and Lori, while the accused was in the room, that he (Rick) had robbed a jewelry store. Mr. Parker said he thought Kimball had become a threat to the accused, because the accused said Kimball was “shooting his mouth off”. He was not sure if this last conversation was one that occurred at Cottage Farms Road or at his house with Lori on Johnson Street.

[242] Mr. Parker testified that the day of the home invasion at Henrietta Knight’s house, he was at the accused’s house on Cottage Farms Road installing a bay window. He said the accused was not home that day. The accused came in at the end of the day and did not stop and talk, which was “weird” because the accused was a social person. Mr. Parker went home that evening and saw the accused again later because they went out for dinner together with their wives. Mr. Parker said that on the way to dinner he wanted to stop when he saw police on the street near Henrietta’s, but the accused said he didn’t want to stop. Mr. Parker found out later about what happened from his grandfather, Bob Wiltsie.

What Lori Parker Told Robert Parker

[243] Robert Parker testified that at a point after Henrietta Knight had died, and after their twins were born in August 1996, he had a conversation with Lori Parker about her role in the offence involving Henrietta Knight. While he could not recall how Lori had responded to news of the death of Ms. Knight at the time it happened (which was, in fact, November 4, 1995), Mr. Parker said Lori was upset when they had this conversation after August 1996. He said that Lori told him that she told the accused that Henrietta had money and that they had plotted to have Mike go and steal the money.

[244] Robert Parker said this was a very significant discussion to him. He recalls saying to Lori, “How could you do something so stupid? Why wouldn’t you talk to me? I would tell you not to do that. She doesn’t have any money”. Lori said that she didn’t want to tell him [Robert Parker] because the accused did not want Robert Parker to know. Lori said the accused had threatened their four children and their family. She said the accused told her it wouldn’t matter if he was behind bars or not, he’d make sure that he would kill their children, their family. Mr. Parker said he thought Lori was truly scared of the accused. She was shaking. He did not believe this to be an act.

[245] At the time of this conversation, Lori seemed extremely upset. She said to Robert, “You wouldn’t send your wife to jail?” And he said, “you can go in and plead, do something like that, and they would probably give you less time. But, no, that wasn’t going to happen. She said, “you wouldn’t send your wife, and the mother of your four children, to jail?” That was another thing that she was more upset with that, I think than with Henrietta dying”.

[246] Robert Parker testified that he had a brother in the police force, and he suggested to Lori that they could see him for guidance, but Lori wanted nothing to do with it and he could not tell his brother, “no matter what”.

[247] Mr. Parker said that he did not think Lori was convinced during this conversation that Mr. Parker wasn’t going to go and talk to someone. The next day, the accused showed up. Mr. Parker said the accused came in and sat at his dining room table and explained to him that he had robbed Henrietta Knight. The accused said he didn’t mean to kill her. He said he had tied her up and only slapped her, looking for money. Mr. Parker said he knew that the statement that the accused had “just slapped her” wasn’t true because he had talked to a detective about what happened. Mr. Parker says he asked the accused to leave and told him not to come back.

[248] After that, Lori told him that wasn’t a good idea because now the accused would consider them a threat and not trust them. As a result, later on, they continued to have a friendship and socialize. Mr. Parker said he did this because he did not want the accused to ever think he was a threat to him since he might try to harm Mr. Parker’s family.

[249] For instance, Mr. Parker said that a photograph taken with their kids together occurred when they were taking their daughters to camp. By then Mr. Parker had left the Kingston area and had a new partner. When their families met on that occasion, Mr. Parker recalled that the accused told him he was “doing” a grow-op.

[250] Apart from the conversation Mr. Parker says the accused had with him the day after Lori told him she gave the accused information about Henrietta Knight, Mr. Parker testified that the accused also talked about Henrietta Knight while he was drunk. He would say things like “She was the toughest one I ever had to deal with”, that type of thing.

Lori’s Infidelity

[251] The issue of Lori’s fidelity was raised with Mr. Parker. He was aware while they were together that she had had “a fling” with Rick Kimball (the alleged victim of first degree murder in Count 3) because she was charged with an indecent act. Other evidence in the trial confirms both Kimball and Lori Parker were arrested after having sex in public on a lawn outside an apartment building. Mr. Parker said Lori told him nothing had happened, but he was sure that something had.

[252] Mr. Parker said he was not aware that Lori had been involved with the accused or in any threesomes with the accused and his wife until he was told by Detective Watt in an interview after the accused’s arrest in February of 2019. He said that during their marriage, he did not have concerns about Lori being unfaithful with the accused.

Credibility and Reliability Issues with Robert Parker’s Evidence

[253] Mr. Parker has a criminal record with three entries between 1993-1995 for possession of a narcotic, driving while impaired and assault. He did not receive a jail sentence for any of these offences, which is some indication of their level of seriousness. He has committed no offences of dishonesty nor any offences contrary to the administration of justice. This dated criminal record plays no role in my assessment of his credibility.

[254] There are other reasons to be concerned about the credibility and reliability of Mr. Parker’s evidence, however, and I address them now.

[255] Robert Parker spoke to police on February 16, 2019. This was two days after the accused’s arrest. The police came to his home without any prior notice.

[256] At the beginning of the interview conducted with Mr. Parker that day, Detective Watt told him that the accused had been involved in a number of crimes and had confessed to them. Over the course of the interview, Detective Watt went on to tell him various things, including that the accused had no conscience, that he was “done”, and his life was over.

[257] During the interview, Mr. Parker said (or did not say) the following things:

a. He did not mention that the accused or Pat told him about the bank robbery. He said he was not sure if he was told by Sandra, Lori or someone else;

b. He told police he had seen news coverage on CTV about the accused’s arrest for the murders, and that they involved Henrietta Knight, Richard Kimball, Stephen St. denis. He also knew the accused had been arrested for the robbery of a TD Bank;

c. Even so, he told the officer he thought the robbery the accused was involved in was of a Bank of Montreal. He said that Pat, the accused and Kimball were involved. This was based on what Sandra or Lori may have told him;

d. At the parties at the accused’s house on Cottage Farms Roads there was marihuana, drugs, and recreational cocaine use. He had used cocaine at the parties and also had consume alcohol. Other people at the parties were also using a mixture of alcohol and drugs;

e. He said he did not hear Mike and Sandra talking about Kimball being a problem;

f. He did not tell police that Rick Kimball had been involved in the Ciros robbery because he did not remember that at the time of the interview. He agreed he had not offered that information before Detective Watt told him about Kimball and Ciros during the interview.

[258] In cross-examination, Mr. Parker was challenged about whether Lori Parker had said she and the accused had plotted or planned to rob Ms. Knight. He agreed he did not use the word “planning” in the police statement given in February of 2019. When it was suggested to him that Lori had not, in fact, said this, he said: “It did happen. She told me that she had told Mike that she had money, and they planned to rob her … or, that Mike had planned to rob her … I forgot how it was said, but I didn’t forget to say it [to police] … I couldn’t remember the exact words, but it was stated that she told Mike that there was money in the house or that she had money”. When counsel put to him that this was not the same as planning a robbery together, Mr. Parker said “Those weren’t the right words, but that’s what they did”. Later still, he said “She told me that she had told Mike Verney that Henrietta had money in the house, and that Mike was … that they were going to rob her”. He ultimately agreed he made an assumption that they planned the robbery together based on Lori telling him she told the accused there was money in the house.

[259] Mr. Parker agreed that his descriptions of conversations at the accused’s parties were just a general impression of talk that he heard at the parties. When asked about some of his specific recollections, he said that his memory of the accused saying he was going to get rid of Rick and put his finger across his neck came to his memory after he spoke with police in February of 2019. While he agreed he had spoken with police at least twice since that date, and Mr. Kimball’s disappearance was a live issue in the interview in February 2019, he had not disclosed this memory until the week prior to his testimony while meeting with police and the Crown. He said he did not mention it earlier because it didn’t come to his memory. When asked for more detail about his recollections, he said this could have happened at a party, and there could have been drugs and alcohol use at the party.

[260] Mr. Parker also agreed that the first time he had told anyone that the accused had visited him at his house and confessed to having broken into Ms. Knight’s home and assaulted her was the week before he testified. It was suggested to him that he had had several opportunities to raise the issue earlier. He said: “It’s hard to get everything, to remember everything … It’s a long time ago, but I do remember that”. He confirmed that the accused did not threaten the children in this conversation – it was Lori who told him that the accused had made this threat.

[261] Mr. Parker acknowledged that while he had information from both Lori and the accused about who had broken into Henrietta Knight’s house and assaulted her since 1996, he never approached the police with that information even after Lori died in 2001. He said he kept silent about it even after that because the accused would still be a threat, and in particular, he remained a threat to Mr. Parker’s children. He said he had no idea what kind of man the accused was in later years. Similarly, he had not disclosed in over 25 years the accused’s stated intention to get rid of Kimball and the throat-cutting gesture he says the accused made.

[262] Various photographs of Mr. Parker’s children with the accused were entered into evidence. The photos were taken after the accused is alleged to have threatened them. This included the time frame after Mr. Parker had moved away from Kingston. He denied the families were “close” initially, and then agreed that they remained close in the late 90s, getting together for kids’ parties and things like that.

[263] Mr. Parker also acknowledged that at the time of the offences, he bore some resemblance to the composite sketch of the suspected perpetrator prepared by police and released to the public. He testified that while it crossed his mind that he might be considered a suspect when he first spoke with a detective about the case, later, he felt that police knew he did not commit this offence and this was not a concern to him. He disagreed with the suggestion that the accused being charged with this crime was of benefit to him because it meant he was no longer a suspect or at risk of being wrongfully accused. Mr. Parker denied that a fear of being falsely accused of this offence was a motive for him to say the accused had committed this offence.

[264] It was also put to Mr. Parker that he had reason to be concerned that he could be falsely accused of being involved in the disappearance of Richard Kimball. He had a motive to get rid of Kimball given the humiliation he suffered when Lori and Kimball had been discovered having sex in a public place. While Mr. Parker accepted the idea that he could be thought to have such a motive, he said he did not actually have it and he never thought the police would think he had anything to do with Kimball’s disappearance. He denied having a motive to implicate the accused in the disappearance of Kimball to avoid becoming a suspect himself.

[265] Mr. Parker agreed that the first he learned of the accused’s sexual involvement with Lori was during his police interview in February 2019 when Detective Watt told him about it. He agreed Detective Watt told him that the accused “bragged” about it, and that he was having threesomes with Lori and Sandra “regularly”. Mr. Parker agreed at first that it was a bit upsetting to hear that, but he was no longer married to Lori and she had passed away. It was also a long time ago. He denied he found it humiliating and said he didn’t care. He said it shocked him but didn’t upset him. He denied this information made him angry and upset with the accused and said he didn’t care about him one way or the other.

[266] Mr. Parker also agreed that Detective Watt told him a number of negative things about the accused during the interview (e.g., the accused was never getting out, that he was a bum, his life was over, etc.). He agreed with defence counsel’s suggestion that these comments had been “present in his mind” ever since. While Mr. Parker acknowledged their potential to do so, he said these comments did not influence him to say anything other than the truth.

Findings of fact – Robert Parker’s evidence

[267] In my view, the most powerful piece of confirmatory evidence relevant to this count is the evidence that Lori Parker gave the accused the tip that there was money in Ms. Knight’s house. The ultimate reliability of this hearsay evidence from Lori Parker, and the credibility and reliability of Robert Parker, the hearsay recipient, about whether Lori Parker actually told him this, are very important to the analysis.

[268] The defence position is that the credibility and reliability of Robert Parker is so lacking that I should not be satisfied that Lori in fact told Mr. Parker she had given information about Henrietta Knight to the accused. Nor should I believe Robert Parker’s evidence about the accused confessing his involvement in the robbery of Henrietta Knight directly to him after Lori told him what she did. The defence says that Mr. Parker’s evidence that he was told the accused had threatened his children cannot be believed given that Mr. Parker continued to allow his children to associate with the accused after this alleged threat was made.

[269] One of the reasons the defence submits that the evidence of Robert Parker is not credible is because his evidence is tainted from the moment he is improperly told during a police interview that the accused had been sexually involved with Lori Parker. The defence argues that the court should be concerned that this disclosure by the police provided a motive to Mr. Parker to falsely implicate the accused in the offences.

[270] I address the tainting argument first. I consider the law set out in R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 32, where the court discusses the exception to the rule against adducing prior consistent statements except where there is an allegation of “recent fabrication”. The court explained, at para. 33:

To be “recent”, the fabrication need only have been made after the event being testified about … However, a “fabrication” can include being influenced by outside sources (R. v. B.(A.J.), 1995 CanLII 94 (SCC), [1995] 2 S.C.R. 413). To rebut an allegation of recent fabrication, it is necessary to identify statements made prior to the existence of a motive or of circumstances leading to fabrication. … [emphasis added]

[271] Before this court, the suggestion is that the outside influence of the police officer resulted in a fabrication by the witness about what Lori said (and other things), because the witness was given a motive to try to inculpate the accused. However, as was made clear in re-examination on this point, Robert Parker told police that Lori told him she had told the accused Henrietta Knight had money before the officer told him about the affair between the accused and Lori.

[272] No other evidence shows that Mr. Parker was aware of Lori’s infidelity with the accused. I believe Mr. Parker when he says that he was not aware of the infidelity until the police interview. Given that Robert Parker shared his information about what Lori had told him before the moment of potential tainting, the credibility of his evidence that Lori told him she told the accused Henrietta had money is not undermined by this potential motive for inculpating the accused.

[273] It absolutely defies coincidence that Robert Parker would tell police that Lori had given the accused information about Henrietta Knight just days after the accused had said something so strikingly similar if it was not true. The accused tells the UC on both January 31 and February 14, 2019, that Lori gave him the tip that led him to rob Henrietta Knight. There is no suggestion or any evidence that on February 19, 2019, Robert Parker knew about what the accused had said just days earlier. The police are not alleged to have given Mr. Parker this information. Unless the accused and Mr. Parker were colluding with one another, I do not know how both men could be giving such a similar account about Lori giving the accused a tip about Henrietta Knight having money unless it was true. I find that the idea that Parker and the accused were colluding with one another about Lori having given the accused a tip that led to a home invasion is absurd. I can see no reason why they would collude, particularly the accused. I am satisfied that both men gave the account that Lori gave the accused the tip that led to his home invasion because it was true.

[274] Further, I see no other motive for Mr. Parker to have falsely implicated Lori in this offence. His account that she told him she gave information to the accused that Henrietta Knight had money, if true, means that Lori was a party to this offence. This is because it was Lori’s knowledge of Henrietta Knight that led to the accused targeting Ms. Knight for a robbery. This evidence therefore does not paint Lori in a positive light. Nor does Mr. Parker’s disclosure of what Lori told him, so many years later, paint him in a good light either.

[275] The information is not strictly inculpatory against the accused. Arguably, this information diminishes the accused’s culpability, in that his culpability is at least shared. But for the information Lori provided to the accused, Henrietta Knight would not have been targeted for a robbery. Lori’s comment to Robert Parker that “you wouldn’t send your wife, the mother of your four children, to jail” shows she understood she could face jail for what she had done.

[276] Mr. Parker knew about Lori’s involvement as well as the accused’s over twenty years ago and said nothing. Lori and Robert Parker had four children together, all of whom have survived their mother. The children are presumably in a position to learn about their parents’ respective roles in the home invasion and the investigation of it. I can see no reason why Robert Parker would come forward with this information unless it were true. I find his evidence on this issue to be credible.

[277] As for the reliability of Mr. Parker’s evidence about what Lori told him, I consider that this conversation was about a dramatic event and Lori’s role in it. A person would remember this type of conversation even years later. Robert Parker testified that it was a “significant” conversation to him. These circumstances enhance the reliability of his recollection of what Lori said.

[278] However, in his evidence, Robert Parker testified about both what Lori said and what he understood her to be saying about what she told the accused. The defence cross-examined him about his failure to use the word “planning” when he told police what Lori had said to him.

[279] After considering the totality of the evidence, I find that Lori told Robert Parker that she told the accused there was money in the house or that Henrietta Knight had money. An inference can be drawn that Lori’s sharing of this information with the accused was in aide of “planning” to commit the robbery of Henrietta Knight. I find that Mr. Parker drew this inference based on the information he received from Lori, which included her concerns that she could go to jail for what she had done. I find that Mr. Parker’s use of the word “planning” in his evidence does not undermine the credibility of his testimony on this point. In any event, I am satisfied that the material point in Robert Parker’s evidence - that Lori told him she told the accused Henrietta Knight had money - is both credible and reliable.

[280] However, there are some aspects of Mr. Parker’s evidence that trouble me to the point that I find them unreliable.

[281] For instance, Robert Parker testified that the accused came to his residence the day after Lori told him she gave the accused the tip and confessed his involvement to him. This obviously important recollection was not disclosed to police during Robert Parker’s interview in February 2019. It was raised for the first time approximately a week before trial. These circumstances give rise to very legitimate concerns. I do not find it safe to rely on this evidence. Nor do I rely on other evidence given by Mr. Parker that is inconsistent with his police statement in February 2019.

[282] A judge can accept some, none or all of what a witness has said. While I reject some of Mr. Parker’s evidence, I accept other things that Mr. Parker has testified about.

[283] For instance, I accept his account of his life with Lori and the time they lived at his grandparents’ residence across the road from Ms. Knight. I accept his evidence that his grandfather spoke (albeit jokingly) about Ms. Knight as being a hoarder who probably had lots of money in a pillowcase or under the bed, and that Lori would have been in a position to hear these comments.

[284] I accept his evidence about how he came to know the accused and the time he spent with him while working and socialising. I accept that he met Pat at the accused’s residence, and his recollection that Pat had a Harley Davidson. I also accept that he had met Richard Kimball, and that he knew about Kimball’s sexual involvement with Lori.

[285] I accept his evidence that he understood that Lori had died of a brain aneurysm because that is what her father told him.

[286] As I have already explained, I accept Mr. Parker’s evidence that Lori told him she had told the accused that Ms. Knight had money. I also accept his evidence that Lori told him that the accused had threatened their children if she told. I rely on this evidence for the fact that it was said, not for its truth. I do not know if this threat was made by the accused or not. Lori may have fabricated this evidence to protect herself from repercussions for what she did since a threat against his kids would help to ensure that Mr. Parker did not disclose information to police. But what matters insofar as Mr. Parker’s credibility is concerned is whether I accept that Lori told him this, not whether the accused actually made this threat to Lori.

[287] There is no evidence that Mr. Parker has been inconsistent in his account of this particular detail, or that he only recently remembered it. While evidence shows that he continued to associate with the accused, together with their children, after he became aware of this threat, I accept his evidence that this was done because he could not risk the repercussions should the accused ever think that he (Mr. Parker) was a threat to him. Clearly the accused knew what his children looked like and where they lived.

[288] Mr. Parker also testified that he heard rumours about the accused having shot Richard Kimball and dropped him off a trail. While in his police statement in February 2019 Parker said the accused told him this directly, he did not give this account at trial. He said this was “more a rumour”. Regardless, I am satisfied that the idea that the accused was responsible for Kimball’s murder was not a fresh revelation on the eve of trial by Mr. Parker. Given the timing of this revelation in his February 2019 interview, I am also satisfied that this disclosure was not tainted by police conduct during the interview. I accept that Mr. Parker had some information suggesting the accused had killed someone when he was told that the accused had threatened his children or his family.

[289] I accept Mr. Parker’s account of fearing repercussions from the accused if he came forward with what he knew about the accused’s involvement in the robbery of Henrietta Knight. I accept that this is why Mr. Parker did not disclose what he knew until the accused had been arrested.

[290] As I have already said, I accept that Mr. Parker did not know anything about Lori’s sexual involvement with the accused until he was interviewed by police. Any possible tainting of his evidence as a result, consciously or subconsciously, only arose from the point in the police interview when that was disclosed to him, which came after he had provided significant information relating to the accused and his involvement in this offence. I also accept that long before his police interview in February of 2019, Mr. Parker had ceased to have any concern that police might think he was a suspect in the Henrietta Knight home invasion. While he candidly agreed that this thought had crossed his mind after the offence was newly committed, he had long ago been reassured that police did not view him as a suspect.

[291] I believe Mr. Parker when he says he did not provide false information about the accused to protect himself from being a suspect in either the Knight or Kimball offences. It makes little sense that he would do so. Quite apart from his own concerns, there is no evidence the police ever considered Robert Parker a suspect in either offence. Over twenty years had elapsed since he had any reason to think police might suspect him in the offence involving Henrietta Knight. Further, the idea that he would suddenly be considered a suspect by police over 20 years later is extremely remote given that the accused had been arrested for these offences. Mr. Parker knew that the accused had been arrested when he spoke with police because he had seen coverage of this on the news. In these circumstances, I believe Mr. Parker when he says he did not think he was a suspect when he spoke with police on February 19, 2019.

[292] Regarding the possibility that Robert Parker was a suspect in the offence involving Henrietta Knight, this is perhaps a good time to clarify that the defence suggestion to Mr. Parker was not that he committed this offence, but that he had reason to think police might suspect him because he bore some similarity to the composite photo released in the media. Having a reason to think he was a suspect in turn had motivated him to say things about the accused which were not true.

[293] The defence has been clear that it is not advancing an alternate suspect theory here and pointing the finger at Mr. Parker as the real perpetrator of the offence. Given that position, no additional evidence about Robert Parker’s circumstances at the time of the offence has been adduced in this trial. Nor was it suggested to Mr. Parker in cross-examination that he robbed Henrietta Knight – the defence in fact assured Mr. Parker that it was not making that suggestion and would not do so “behind his back” at some later point in the trial.

[294] One obvious problem with the theory that Robert Parker might have committed this offence is that Henrietta Knight did not know her attacker. For reasons I will explain, I accept this part of Ms. Knight’s hearsay utterances to police.

[295] Henrietta Knight did know Robert Parker. He lived across the street from her for a number of years. He was on a first name basis with her. Ms. Knight had hired him to do work at her house. They saw each other when Robert Parker came to pick up his grandfather following one of their visits. If Robert Parker had been Henrietta Knight’s assailant, she knew him well enough to identify him to paramedics and police.

[296] That Robert Parker might be a suspect in this offence seems to rest solely on his resemblance to the composite sketch prepared by police. Given the dangers associated with eyewitness identification, and the questionable value of the composite sketch that was prepared following Ms. Knight’s disjointed account of her attacker’s appearance (it is not even clear what colour hair he had, for instance), while Mr. Parker may have been concerned about any resemblance he bore to the photo, this is not reliable evidence of his involvement.

[297] Returning to the evidence given by Mr. Parker which I accept, I accept his evidence that the accused, while drunk, would say that Ms. Knight was “the toughest one he ever had to deal with”. This evidence has not been shown to be incredible or unreliable because it was disclosed for the first time on the eve of trial. Further, there is no reason to think Mr. Parker offered this evidence to police only after the possible tainting of his evidence by police conduct during the interview.

[298] This comment also bears some similarity to the accused’s account to the UC on February 13, 2019, that the victim of this offence was “stubborn”, “didn’t want to open the safe” and it “pissed him off”. Mr. Parker’s evidence about the accused’s comments to him also dovetails with Ms. Knight’s account that she was assaulted because she would not give her assailant money. This is another part of Ms. Knight’s account that I do accept given the totality of the evidence which confirms its reliability, particularly its similarity to what the accused is reported to have said to Robert Parker. On Ms. Knight’s account, it is an easy conclusion that she had demonstrated “toughness” when faced with a demand for money.

[299] There is no evidence Mr. Parker knew anything about the details of Ms. Knight’s account, or the details of what the accused had said to police a few weeks before. Given these similarities in the accounts, I accept this evidence.

[300] In accepting Robert Parker’s evidence that the accused made these comments, I consider that the accused and Mr. Parker were at one time good friends – the accused at one point during the undercover investigation described Mr. Parker, who he said was “a straight guy”, as his “best friend”. I also accept Mr. Parker’s evidence that he frequently socialized with the accused. I accept that there were parties at the accused’s residence where drugs and alcohol were consumed. Mr. Parker said the accused would make these comments when he was drunk. During the investigation, while talking to the PA about things he had disclosed to the PA in 1996, the accused said he had been “drunk all the time” and had a “serious drinking problem” (July 22). That the accused would say things about Henrietta Knight while drunk to Robert Parker, who he described as his “best friend”, is plausible.

[301] As for other reasons why I have accepted Mr. Parker’s evidence on all the points I have just referenced, I address those now.

[302] Mr. Parker was not challenged on a great deal of what he testified about – his time living across the street from Henrietta Knight with Lori, what his grandfather said about Ms. Knight, and various other details have not been shown to be incredible or unreliable.

[303] I also found Mr. Parker to be a straightforward witness, who presented credibly. He was quite candid in many respects. He acknowledged, for instance, that he could be considered to have a motive in regard to the disappearance of Richard Kimball given that Lori had been unfaithful with Kimball. He acknowledged that what police told him about the accused had the potential to influence his evidence, though he denied that it did. He was very direct about drug and alcohol use while socializing at Cottage Farms Road, including his own use of cocaine. In addition to being candid on issues where he could not be easily contradicted, Mr. Parker was not argumentative with counsel. He did not appear to put a gloss on any of his own behaviour. He did not go off on tangents rather than answer a question directly. While I do not accept all of his evidence (I am not entirely sure of what to make of his revelations on the eve of his trial testimony and so do not rely upon that evidence), I accept a great deal of it.

d) Analysis

[304] I turn now to the arguments about the circumstances and evidence relating to the ultimate reliability of the accused’s utterances about this offence.

The circumstances supportive of reliability

The confession is detailed and compelling

[305] I find a compelling amount of detail in the accused’s utterances about this offence enhances the reliability of the narrative in those utterances. The accused’s description of how the home invasion was an offence that “went bad”, and his feelings about it (e.g., he did not want to talk about it and it was nothing to be proud of) are particularly important details. These comments strongly suggest that this was a lived experience, and not a made-up tale. These comments cannot be reconciled with the scenario that the accused was either afraid of the UC or boasting to him about imagined offences in an effort to impress him.

[306] The details the accused provided on January 31 are compelling on their own. Further, many of these details were repeated in the accused’s subsequent exchange with the UC, including that the accused intended to rob the victim; that the killing of the victim was not intended; and that the accused targeted the victim’s home because he had received a tip that the victim had money and was a hoarder. The accused’s account is fundamentally consistent about those things: see Moir, at paras. 111-112, citing R. v. L.O., 2015 ONCA 394, 324 C.C.C. (3d) 562, at paras. 44-45.

[307] The reliability of the accused’s utterances relating to this count is enhanced because the utterances are captured on very good quality video. The quality is much better than a typical video of an interview in a police station, for instance. This video footage allows me to fully view the accused’s demeanour as he speaks about the home invasion. It is clear he is not proud of the home invasion.

[308] Importantly too, the accused’s gestures as he describes what occurred are clear. The gestures are specific in the detail they provide. The accused gestures about a number of details, including that a large sum of money was supposed to be in the house, how he assaulted the victim, how he bound the victim, and how he knocked to gain entry.

Details Provided by the Accused are Confirmed by Other Evidence

[309] A number of the details the accused provides find support in independent sources of evidence. For instance, the accused’s account of how he assaulted Ms. Knight is clearly given, including with gestures. He provides the detail that assaults would follow, it seems, when Ms. Knight was crying or otherwise being vocal. The videotaped excerpt of his utterances to the UC on February 13, 2019, clearly shows him imitating his victim’s vocalization, and the assault that would follow with the intention of shutting her up.

[310] At about 8 minutes and 50 seconds into the first excerpt the accused first demonstrates an attempt to shut Ms. Knight up. He repeats the demonstration a few minutes later, when the UC asks if the victim “sat quiet”. That Ms. Knight received blows about the head area is manifestly clear from the photos taken of her after these events. The accused’s gesturing of how these blows were administered in these segments generally accords with the injuries Ms. Knight sustained.

[311] The accused’s account of how his victim was bound accords with the forensic evidence and with Ms. Knight’s injuries. The accused demonstrates what part of the victim’s body was bound by gesturing around the arms. The accused also makes the gesture of pointing to his chest. These gestures are in the videotaped excerpt on February 13th. The accused’s gestures on that occasion suggest that the victim’s forearms were bound. This accords with the injuries to Ms. Knight’s wrists and arms. Binding the victim is also consistent with the tape found on the arms of the chair in her house, and the fact that she could not be excluded as the source of the DNA found on the tape. There was also tape around the chair that would correspond to the level of a person’s chest when seated in the chair.

[312] The accused also effectively said he was in the house for hours (“I didn’t leave in a hurry. I went shopping for a couple hours”), and that he took his time. He talked about a story he had heard about a woman in the US who had things hidden all over her house, including in her mattress and in her vacuum cleaner. The photographs support an inference being drawn, and I draw the inference, that the perpetrator of the offence was there for some time, and searched exhaustively, as the accused said he did.

[313] The accused also described, by gesture, how he gained entry to the home. He motioned that he knocked. The accused’s description of knocking is consistent with the observations of the police; they saw no signs of forced entry.

[314] The accused said he was “rough” with the victim. He demonstrated the types of blows he inflicted. His comments and gestures showing how he beat his victim are consistent with the severity of the bruising to Ms. Knight’s face and neck.

[315] Another detail the accused provided is that the victim did not die immediately, but died later, due to medical complications. He also at one point said, “later on, that was it (which in context I understand to refer to her death), say a couple of weeks”. Ms. Knight’s death was in fact months later. To the extent there is any difference in the accused’s account and the actual events, I find that the material point here is that the accused said the victim did not die during or immediately after the assault and the accused description of the timing of Ms. Knight’s death is generally accurate.

The tip from Lori Parker

[316] I am satisfied of the ultimate reliability of Lori Parker’s hearsay statement to the effect that she told the accused that Henrietta Knight had money.

[317] In arriving at this conclusion, I have considered that Lori could have been lying about this. After all, she had shown herself to be capable of deceit in her relationship with her husband Robert Parker. She was not faithful in their relationship. In addition, she lied to Robert Parker about her involvement with Richard Kimball even after her arrest for committing an indecent act with him.

[318] However, because the accused’s account confirms the material point here, which is that Lori gave the accused the tip about Henrietta Knight, I am satisfied of the ultimate reliability of Lori’s hearsay statement. Recall that the accused said: a person gave him a “tip” (his word); that “she was supposed to have a lotta money in the house”; and someone told him “she was a hoarder” and didn’t believe in banks. That the tipster the accused was describing was Lori is confirmed by (a) his adoption of the UC’s comments on February 14, 2019, and (b) the details he provided about the tipster, at an earlier date, including that she died of a brain aneurism. That Lori and the accused provided such similar accounts of the information Lori gave him about Henrietta Knight is a highly improbable coincidence, if is the account is not true.

[319] I confirm at this point that the accused’s identification of Lori as the tipster is not undermined by his lack of precision in identifying the mechanism of her death. Dr. Ian Young, the pathologist who conducted the autopsy on Lori’s body confirmed she died as a result of a dissection in one of the arteries in her brain, which led to a ruptured blood vessel and a very severe brain injury. He confirmed that a person without particular medical knowledge might use the term aneurism when describing a dissection. Robert Parker also understood that Lori died of a brain aneurism, because that is what Lori’s father told him. I am satisfied on all the evidence that Lori Parker was the person who the accused was referring to who had died of an aneurism and who had given him the tip.

[320] Returning to the ultimate reliability of Lori’s utterance to Robert Parker about giving information to the accused, I see no reason why she would have said this unless it was true. I see no reason why Lori would confess her own involvement as a party in this offence unless she was a party to it. Her comments to Robert Parker make it clear she was aware of her own legal jeopardy and the possibility that she could face jail time if her involvement in the home invasion were known.

[321] Further, evidence from the accused’s brother-in-law, Mike Tecchi, provides some support for the ultimate reliability of Lori’s utterance to Robert. Mike Tecchi testified that the accused spoke to him about his affair with Lori. When she died, the accused commented that there was one person less who knows about his life.

[322] When he said this to Mike Tecchi, the accused could have been referring to something else that Lori knew about his life. Nevertheless, this comment, which indicates the accused felt some relief that Lori was dead, is additional independent evidence that provides further support for the conclusion that Lori did know about the accused’s involvement in the home invasion, and the accused’s account that she knew about it because she gave him the tip.

Lori Parker’s Knowledge of Henrietta Knight

[323] Robert Parker’s evidence and OHIP records confirming that Lori lived across the street from Henrietta Knight support the conclusion that Lori was in a position to have the information the accused said he received from her.

[324] In my view, it is not a coincidence that the person the accused identified as the tipster to the UC just happened to live across the street from Henrietta Knight. Nor is it a coincidence that Lori lived in a house where there was talk about Ms. Knight being a hoarder and likely having money. I am satisfied that what the accused said about receiving a tip from Lori is not the product of collusion or chance. He said it because it was true.

The Hearsay Statements of Henrietta Knight

[325] As I have reviewed, Ms. Knight made several statements to a paramedic and police in the aftermath of the home invasion. Both parties rely on parts of what she said.

The Crown

[326] The Crown submits that during these statements, Ms. Knight described things the perpetrator said or did which correspond to other evidence it has led.

[327] For instance, the accused said he got nothing from the robbery, and Ms. Knight said effectively the same thing.

[328] Ms. Knight also said the perpetrator told her he knew her husband was dead. The Crown says this is consistent with the accused receiving information from Lori Parker because this is accurate information about Ms. Knight that the perpetrator would have been unlikely to have known without inside information.

[329] Ms. Knight also gave some details that the accused did not. She said her assailant had a gun, which she described at one point as a small grey revolver. After the accused’s arrest, a person working in the accused’s former warehouse removed part of the ceiling in the residence portion of the warehouse and uncovered two small grey guns. Neither had any fingerprints or DNA linking them to the accused. However, the guns were old enough to have been used in the home invasion.

[330] Ms. Knight also said her assailant told her he was going to burn the house down. Photos show there are newspapers under the chair to which the tape with Ms. Knight’s DNA was found.

[331] Ms. Knight described her assailant’s eye colour and his height. The Crown submits that her description (a) accords with the accused’s appearance (his eye colour) on video during the undercover operation, and (b) is not far off his actual height.

The defence

[332] The defence also relies on specific portions of Ms. Knight’s account. The defence submits that those portions, if accepted, preclude me from finding that the accused was the assailant. For instance, the accused gestured that he wore a mask of some kind; Ms. Knight gave a description of the assailant that did not allow for the possibility that he was masked. The description she gave also does not fit the accused.

Findings as to the ultimate reliability of Ms. Knight’s statements

[333] There are reasons to be concerned about the ultimate reliability of the details given by Ms. Knight in her four statements. She was inconsistent with respect to several details in her account. In addition, Ms. Knight demonstrated significant confusion – during her videotaped statement in particular - where she contradicted herself on details given during that statement alone (for instance about how she was able to leave the residence). Consequently, I do not rely on her statements unless they are meaningfully corroborated by other evidence.

[334] I do not find that her comments about the assailant having a gun correspond to other evidence that is worth much weight. The fact that guns that were old enough to have been used in the home invasion were found in the accused’s attic over 20 years after the date of the offence is not so compelling that it leads me to conclude that Ms. Knight was reliable in that part of her account. I do not rely on the fact that guns were found in the accused’s warehouse in determining whether the accused was Ms. Knight’s assailant.

[335] For the most part, I am not persuaded that the details provided by Ms. Knight that go beyond the core of her account are sufficiently reliable to meet the standard of ultimate reliability. I am satisfied of the ultimate reliability of her account that she did not know her assailant, however. That is a detail about which she was not likely to be mistaken nor to have misperceived, regardless of her condition. She was also consistent about that detail.

[336] Similarly, she was consistent that her assailant beat her because she would not give him money. This account aligns with the accused’s account of not having got even a dime out of the home invasion he described. I accept this part of Ms. Knight’s account.

[337] As for Ms. Knight’s description of her assailant, the Crown relies on parts of it, while the defence emphasizes how it does not match the accused.

[338] I give Ms. Knight’s description of her assailant little weight, however. I find it is unreliable because of the trauma Ms. Knight had just lived through, and because her assailant was a stranger to her. As I have reviewed, there are a number of frailties associated with eye-witness identification in these circumstances.

[339] So, while there is evidence that the accused had a mustache in this general time frame, the absence of this descriptor from Ms. Knight’s account does not preclude a finding that the accused was the assailant. I also decline to give weight to those parts of Ms. Knight’s description of her assailant which are arguably consistent with the accused, such as his eye colour and stature.

Circumstances undermining the reliability of the accused’s account

### The accused’s account is inconsistent with the account of Henrietta Knight

[340] The defence emphasizes other details provided by the accused which are not consistent with Henrietta Knight’s statements.

[341] For instance, the accused’s account includes a gesture that he was wearing a mask of some sort. I consider that this is contradictory to Ms. Knight’s account. However, I do not give it much weight in the analysis because I am not sure that either the account given by the accused or Ms. Knight is reliable on that point.

[342] This detail in the accused’s account was given in the second exchange with the UC where the accused clearly suspected he might be recorded. The accused at various times in the undercover investigation had said he purposefully mixed up details when he spoke about his offences so that they could not be tied to him. For reasons I will explain momentarily, I find he was purposely providing at least some misleading details during this exchange, which is obvious when he changes the account from his victim from a “she” to a “he”, and said he was looking for the “stamp collection”. It may be that this was another deliberately misleading detail. If I had more confidence in Ms. Knight’s description of her attacker, it would matter more. Because I do not have confidence in her description, this inconsistency is not fatal to a finding that the accused was Ms. Knight’s attacker.

[343] Similarly, I place no weight on Ms. Knight’s account that her assailant was in the house for about 10 minutes – the photographs support the conclusion that it was a longer period than that, and in an earlier statement she suggested it was about a half hour. Her account on this point is not reliable.

Other inconsistencies in the evidence

[344] Given the totality of the evidence, I am not concerned that the accused said the offence had taken place at about the time of year he was discussing it with the UC (winter) when in fact it had occurred in June. Whether he was mistaken in his account of events over 20 years earlier or deliberately misleading the UC, this is a minor issue.

[345] Similarly, I do not find the fact that the accused never said a gun was brandished to be of any significant consequence in the analysis, nor whether or not he said he was from Montreal (as Ms. Knight said her assailant had said). I do not share the defence’s view that this evidence could be considered “holdback evidence” which was not confirmed by the accused, and therefore demonstrates he was not involved.

The timing of the confession

[346] I do not find the timing of the accused’s first disclosure about the home invasion on January 31, 2019 to the UC undermines its reliability.

[347] While the accused first mentioned the offence involving Henrietta Knight on the ride back to Kingston after the meeting with Rocky, the offence is raised by the accused quite naturally in his discussion with the UC. The UC had no reason to suspect the accused’s involvement in this offence when the accused raised it. The accused does not suggest he is telling the UC about this event so that the UC can find confirmation in the media about it. While the UC does return to the accused with a media article about it about two weeks later, I am satisfied that this was not at the urging of the accused in a bid to satisfy Rocky’s concerns about him. At no time during their interactions about this offence does the accused inquire of the UC whether he will provide this information to Rocky.

The inconsistencies in the accused’s utterances

[348] I find that there are inconsistencies in the accused’s utterances on January 31 and February 13, 2019. I consider those inconsistencies when assessing the reliability of his account of the home invasion.

[349] The accused initially describes the victim as having breasts and being a woman. He later refers to the victim as a “young guy”, who “wouldn’t open the safe” so the accused could get his “stamp collection”.

[350] In considering the significance of this inconsistency, it is relevant that the accused had at other times during the investigation made it clear that he was suspicious about being recorded, including by someone undercover. He said he would intentionally alter facts to throw off investigators. In this context, and given the accused’s clear concern (particularly obvious when watching the video) that he is being recorded during the second conversation with the UC on February 13th, 2019, the significance of these discrepancies decreases.

[351] Having watched the video capturing the exchanges on each of January 31 and February 13 several times, I am satisfied that in the second account given by the accused, he is deliberately changing details for fear of being audio recorded.

The accused’s knowledge of details comes from media accounts

[352] The defence emphasizes the details about the home invasion which were reported by the media and in the public domain. Those details include: 1) Ms. Knight was attacked after answering a knock to her door; 2) the assailant was male and demanded money; 3) Ms. Knight was bound to her chair and beaten; 4) Ms. Knight suffered injuries to her neck, wrist and face; 5) Ms. Knight would later die from her injuries; and 6) a composite picture of the suspect.

[353] The argument by the defence that the accused may have heard about the offence in the media, and taken credit for it to impress the UC or Rocky, is speculative. The accused’s demeanour as he recounts these events is not suggestive of boasting. Nor is the language he uses to describe it. The accused expresses what appears to be sincere regret about how the home invasion “went bad”. He said he was “disgusted” by it and not proud of it. I cannot reconcile this evidence with the theory that the accused was making up this story to impress others and drew upon details in media reports for his fable.

e) Conclusion

[354] Having considered the totality of the evidence and the arguments ably made by the defence, I am satisfied beyond a reasonable doubt that the accused is the person who robbed and assaulted Henrietta Knight. I am satisfied beyond a reasonable doubt of the ultimate reliability of his utterances saying he was responsible for this offence.

[356] The accused could have made up an account of this offence based on media reports. I find, however, that this scenario is not reasonably plausible because the details provided by the accused would not accord so significantly with the independent evidence as they have in this case if he had only read media reports. The only reasonable explanation for the detail in his account, including the regret he expresses about this offence, is that the accused committed it.

[357] My conclusion is heavily based on the evidence about the tip from Lori. This tip is highly relevant – it establishes the accused’s motive for this offence and explains how he came to be targeting a stranger who had no other connection to him.

[358] Lori’s hearsay statement that she told the accused Henrietta Knight had money is strikingly similar to the accused’s account of having received a tip from Lori. I am satisfied that the accused’s understanding that Ms. Knight had money and was a hoarder was based on what Lori told him. I do not believe that the accused and Lori have coincidentally provided such similar accounts. The accounts are so similar because they are both true.

[359] Nor is it a coincidence that Lori Parker lived across the street from Henrietta Knight in a house where there was talk of Henrietta Knight having money and being a hoarder. If he were making up his account, the accused would not coincidentally identify someone who knew Ms. Knight as the person who gave him the tip about her.

[360] Further, none of this information – that the perpetrator got a tip from someone who lived next door - was in the media. I am satisfied beyond a reasonable doubt that the accused said he targeted Ms. Knight because of a tip he got from Lori because that is precisely what happened.

[361] As for Robert Parker’s evidence that the accused said things like Ms. Knight “was the toughest one I ever had to deal with”, I would arrive at my conclusion that the accused committed this offence even had this evidence not formed part of the trial record. This evidence only serves to reinforce my conclusion that the accused assaulted Henrietta Knight in her home while trying to rob her.

IV.Issue #2: Did the accused cause Henrietta Knight’s death?

a) The Positions of the Parties

The Crown

[362] With respect to the issue of whether the accused’s conduct caused the death of Henrietta Knight, the Crown reminds the court that the Crown is not obliged to prove a specific mechanism or cause of death. Medical certainty is not required, and proof of legal causation does not require evidence of a clear medical diagnosis. In this case, the evidence is that the CT scan done on July 11th revealed a chronic/old subdural hemorrhage. The most common-sense inference is that Henrietta Knight got that injury to the head as a result of the beating the accused delivered the previous month. Pathologist Dr. Tanguay testified that blows by the hand are the kind of force that can cause that kind of injury.

[363] On the issue of causation, the Crown relies on what is known about Henrietta Knight’s circumstances as further evidence in support of finding the accused’s assaultive conduct caused her death. The Crown says a pattern is clear on the evidence. In early June, Ms. Knight lived independently. By early July, she had moved to a nursing home. Then, she became horribly confused and surgeons had to drill a hole into her skull to relieve cranial pressure. There were complications following that and in August, Ms. Knight was moved to a chronic care facility. Then, in relatively short order, Ms. Knight died. These circumstances further support the conclusion that the accused’s assaultive behaviour caused her death within the meaning of the law.

The defence

[364] The defence argues that the Crown has not established the cause of death. The defence emphasizes the following evidence about Ms. Knight’s health: 1) her niece Diane Woods said she seemed mentally fine after the home invasion and before she returned to hospital on July 1; 2) Ms. Knight fell in hospital on July 15, 1995 and hit her head, and this blow could not be excluded by Dr. Tanguay as a potential cause of death; 3) Ms. Knight’s medical records included a number of other naturally occurring conditions that occur with ageing which Dr. Tanguay could not exclude as a cause of death (e.g. congestive heart failure; pneumonia; strokes; atrophy of the brain); and 4) there was no forensic evidence linking the subdural hematoma to blunt force trauma and it could not definitively be tied to the assault.

[365] The defence says “[t]his is not a case in which the cause of death is so obvious that a medical opinion would not be required, such as a victim being decapitated or shot in the head with a gun. Ms. Knight survived her attack. Her death was several months later. Ms. Knight had numerous pre-existing conditions. She suffered a serious fall to her head after the assault and after a period in which she displayed no mental issues to her family. The defence submits that the Crown has not met its onus, and reminds the court that the burden does not rest on the defence to prove an alternate cause of death when the Crown has not excluded numerous other reasonable causes of death.

b) Review of the evidence

### General background

[366] Ms. Knight was taken to hospital by ambulance the day of the home invasion. She was treated and later released the same day.

[367] She returned to the hospital on July 1, 1995, showing signs of confusion. She had also been unable to speak. Medical records indicate the discharge diagnosis was that Ms. Knight had had transient ischemic attacks (“TIAs”), which lay people might refer to as strokes. Dr. Tanguay testified that from his review of the medical records this appeared to be a clinical diagnosis. Prior to her discharge on July 3rd, 1995, Ms. Knight had improved, although she still had some confusion. She was discharged with instructions to continue on aspirin.

[368] On July 10, 1995, Ms. Knight was again back in hospital. She was confused and having difficulty with speech, nausea, and a “decreased level of consciousness”. For the first time, a CT scan was done.

[369] On July 11th, a CT scan confirmed Ms. Knight had a subdural hematoma (bleeding on her brain). It was described as “chronic”, meaning that it had been present for a period of time and was not new. It was drained the following day in a surgical procedure which required a hole to be drilled into her skull to relieve the pressure on her brain. Subsequent CT scans showed no infection, but other changes in the brain were evident.

[370] At some point after that, Ms. Knight was discharged and admitted to a chronic care facility. She died on November 4, 1995.

The gap in medical records

[371] While many of Ms. Knight’s medical records are available, there is a gap in the records available for roughly her last three months of life (e.g., between early August 1995 and her death on November 4, 1995).

[372] An autopsy was performed on Ms. Knight’s body. For reasons I have previously released (R. v. Wentworth, 2022 ONSC 5319), the post-mortem report of the pathologist, Dr. Deck, is not admissible for the truth of its contents.

The evidence of forensic pathologist Dr. Jeff Tanguay

[373] Dr. Jeff Tanguay is an anatomic and forensic pathologist. He is the Director of the Kingston Regional Forensic Pathology Unit.

[374] During his evidence on the voir dire into the admissibility of Dr. Deck’s post-mortem, which evidence also applies to the trial, Dr. Tanguay expanded on the conclusion he provided in a letter to Crown counsel in which he said there was insufficient pathological material available to render an independent forensic pathology review of Ms. Knight’s death. He further testified that while he had “plenty of historic information” required in the first step of a typical autopsy, he didn’t have “much else”. He described various gaps in the information available to him. He said:

There were very minimal pictures of the autopsy taken. For example, I don’t think the inside surface of the brain was even depicted. So, I can’t evaluate that, independently. The microscopic sections, of which Dr. Deck took several, I couldn’t … they could not be located, in Toronto, and therefore I could not examine them independently. So, really, I’m left with the history, as provided – mostly from medical records – and then an autopsy report. So those were my major limitations. I don’t have much material before me. Now, I have reviewed cases where there’s fifty or a hundred pictures of the autopsy. And, I mean, this has changed, over time. Back in the 90s, we maybe didn’t take as many pictures, but now we take a lot more pictures, to allow for independent reviewability. … So that’s what I’m lacking, in this case. You know, the other thing that struck me, in this case, is that I really did not have a good understanding of what happened between the July admission and death. So, that was a whole “black box” to me that, you know, was a problem for me.

[375] Dr. Tanguay additionally gave the following evidence:

a. The striking of a 92-year-old woman by the hand of an adult male is the kind of event that could cause a subdural hematoma;

b. Often people who suffer a head injury go on to develop an acute subdural hemorrhage. There can be a “lucid interval”, which is a period of time when they seem fine, or neurologically intact, but after a period of time they develop symptoms and may go to hospital or may die. The lucid interval is a variable period of time and is caused by the fact that the blood accumulates somewhat slowly. A person can sustain a blow to the head and be able to recount what happened shortly after the event, but as the pool of blood starts to push on the brain, the person becomes neurologically impaired;

c. There were blunt-force injuries to Ms. Knight. He said it was possible, but he could not conclude, that the events of June 2nd and the injury documented in the CT scan of July 12th [sic] related to the same thing;

d. On the day Ms. Knight was assaulted, ambulance and hospital staff found no sign of brain injury;

e. If, after her assault, Ms. Knight fell and truck her head, she could have died as a result of that mechanism and not because she was assaulted;

f. The symptoms of a TIA that appear neurological are similar to the symptoms of a subdural hematoma. However, aspirin, which thins the blood, is not used to treat a subdural hematoma because it could exacerbate the bleeding on the brain;

g. There were complications from the subdural hemorrhage;

h. The available medical records show there were complications following surgery, including pleural effusions (fluid accumulating in the chest cavity), which can be caused by pneumonia, or congestive heart failure. The records show Ms. Knight was given an antibiotic which treats pneumonia. He agreed it was reasonable to conclude that the reason Ms. Knight was in hospital was because of a subdural hematoma, and that the associated treatment (e.g. inserting a breathing tube during surgery) might also have been a risk factor for developing pneumonia. He said it was hard to know whether the complications were directly related to her neurological condition, or whether it was from being in a debilitative state in a hospital bed;

i. Given the state of the medical records, he could not say if any of the medical staff who were treating her at the time thought Ms. Knight’s death was unnatural. It was clear that “someone released her to a funeral home before a coroner probably was involved”;

j. Dr. Tanguay agreed that Ms. Knight had a number of medical factors present that could occur naturally and with age. When asked if she could have died of old age, he said “Well, that’s a possibility”;

k. Dr. Tanguay explained that in looking for causes of death, he is also looking for intervening causes. He said “you know, I was struck by the period of time between the injury and the diagnosis of subdural, and I was looking for evidence of an intervening cause in her chart, but I did not see anything there. But it was also kind of a “black box” so to speak”;

l. The medical records documented that Ms. Knight had a fall while in hospital on July 15th during which she received a small laceration to her forehead and one of her wrists. The fall was taken seriously enough that staff instituted a concussion protocol, and a CT scan was subsequently done. He agreed this fall could potentially be an intervening cause in her death, or an intervening “exacerbation”. While he acknowledged that there were signs of a head injury before this fall, he could not exclude the fall on July 15th as the cause of death;

m. He was unable to come up with “an evidence-based opinion” on the cause of death;

n. It was fair to say that there is “no forensic evidence linking the subdural hematoma to the assault” or to blunt-force trauma. When it was suggested to him that “we cannot forensically tie the assault to her death”, he answered, “not definitely”;

o. About the gap in records between August and November, he said: “there’s several months, there, that are unknown. She is an elderly person, and you know, elderly people have lots of other … You know, I would just want to make sure that nothing else had happened – some intervening medical condition, for example”.

Henrietta Knight’s presentation before and after she was assaulted

[376] Henrietta Knight’s niece Diane Woods knew Ms. Knight to be healthy and active woman before the robbery. Ms. Woods described her aunt as a “very fit person” who walked everywhere, including to do her groceries. Even in her 90s, Ms. Knight mowed her own lawn and shovelled her own snow. She had a vegetable garden and cooked healthy meals for herself.

[377] After the robbery, Ms. Knight stayed with Ms. Woods’ father while they tried to get her a room at a nursing home. Eventually Ms. Knight went to live in in a nursing home called Fairfield Manor. Ms. Woods saw her there three or four times. She said Ms. Knight’s mental state appeared fine – for instance, she could carry on a normal conversation.

[378] On July 1, they brought Ms. Knight back to hospital.

[379] Eventually, Ms. Knight was moved to a chronic care facility where she died on November 4, 1995.

c) The Legal Principles

[380] [Section 222(1)](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) provides that “[a] person commits homicide when, directly or indirectly, by any means, he causes the death of a human being”. Subsection (5) further stipulates that “a person commits culpable homicide when he causes the death of a human being, (a) by means of an unlawful act”.

[381] As noted by Karakatsanis J. in R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30, at para. 1, “[t]he causal link between an accused’s actions and the victim’s death is not always obvious in homicide cases”. She went on carefully explain the law that applies in determining how a court should approach the question of whether an accused person has caused the death of another.

[382] The following principles have emerged from the case law:

a. An accused’s unlawful actions need not be the only cause of death, the direct cause of death, or even the most significant cause; the court must determine if the accused’s actions are a significant contributing cause of death: Maybin at paras. 1, 5, 14 and 20; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 189;

b. There may be a number of contributing causes of death. An unlawful act remains a legal cause of a person’s death even if the unlawful act, by itself, would not have caused that person’s death, provided it contributed beyond de minimis to that death: Smithers v. R., 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506, at p. 522; Maybin, at para. 14. In order to express the legal standard of causation, however, a positive phrase such as “significant contributing cause” is preferable to the use of Latin terms such as “de minimis”: Nette, at para. 71;

c. Factual causation is “an inquiry about how the victim came to his or her death, in a medical, mechanical, or physical sense, and with the contribution of the accused to that result”. The trier of fact usually asks: “But for” the action(s) of the accused, would the death have occurred? Factual causation is therefore inclusive in scope: Nette, at para. 44; Maybin, at para. 15;

d. The principal influence of expert medical opinion evidence in proving cause of death relates to factual causation. However, we do not require medical witnesses to distinguish between causes and conditions, or to rank causes as to their relative significance of contribution to death. Medical diagnosis or medical certainty should not be confused with legal causation: Manasseri, at paras. 192-194; R. v. Fiorino, 2008 ONCA 568, 233 C.C.C. (3d) 293, at para. 49;

e. In any event, the trier of fact must decide the issue on the basis of all the evidence that bears upon the question of causation. A trier of fact often has evidence beyond medical expert opinion upon which to decide the issue. It is entitled to use common sense in resolving the causation issue and entitled to consider all the evidence in doing so: Manasseri, at paras. 193, 195-6; Smithers, at pp. 515-518;

f. Legal causation is a narrowing concept which funnels a wider range of factual causes into those which are sufficiently connected to a harm to warrant legal responsibility. As Arbour J. noted in Nette, this concept, also referred to as imputable causation, is concerned with the question of whether the accused person should be held responsible in law for the death that occurred: Nette, at paras. 45, 83; Maybin, at para. 16;

g. Causation issues are case-specific and fact driven. Different approaches may be helpful in assessing legal causation, depending upon the specific factual context: Maybin, at para. 17;

h. The Crown is not obliged to prove a specific mechanism or cause of death, and the inability to prove a medical cause of death does not automatically undermine the Crown’s ability to seek a conviction. A conviction for murder or manslaughter remains available even where the victim’s body is never found or where there is no known medical cause of death: Manasseri, at paras. 194-196; R. v. Dhillon, 2019 ONCA 159, 373 C.C.C. (3d) 392, at para. 11; R. v. Strong, 2021 ONSC 1906 at paras. 124-125;

i. In a homicide trial, the question is not what caused the death or who caused the death of the victim but rather did the accused cause the victim’s death. The fact that other persons or factors may have contributed to the result may or may not be legally significant … It will be significant, and exculpatory, if independent factors, occurring before or after the acts omissions of the accused, legally sever the link that ties him to the prohibited result: Nette, at para. 77; Maybin, at para. 21.

d) Analysis

[383] In determining whether the Crown has proved beyond a reasonable doubt that the accused caused Ms. Knight’s death, I consider the whole of the evidence relating to Ms. Knight and her death.

[384] Based on the evidence of Ms. Knight’s niece, Diane Woods, which I accept, I am satisfied that prior to the assaults upon her, Ms. Knight was an active woman who lived on her own. She was healthy enough physically that she lived completely independently and was able to maintain her house and property. Ms. Knight was a fit person.

[385] When I consider the evidence in its totality, including the evidence of Dr. Tanguay, I find that the accused’s assaults upon Ms. Knight caused the subdural hematoma that was first diagnosed on July 11 following her first CT scan. This scan was done before Ms. Knight had her fall in hospital. It showed a chronic injury – the injury was not new. It happened sometime before July 11th.

[386] Dr. Tanguay confirmed that the types of blows Ms. Knight received during the assault on June 2nd could produce this type of brain injury. He also confirmed that the fact that Ms. Knight had a lucid interval after the assault and was not presenting with signs of a brain injury immediately does not preclude that the assault caused her brain injury. Finally, there is no evidence of any other intervening event between June 2 and July 11 that might have produced such an injury. I find that the assaults on June 2nd caused the chronic subdural hematoma that was first documented the 11th of July.

[387] However, the evidence from the July admission onward is neither clear nor coherent. A considerable gap exists in the evidence about Ms. Knight’s history and medical progress in the last three months of her life. Practicing forensic pathologists are unable to offer opinions about the cause of death, in part, because of the gap in the records for the final three months of Ms. Knight’s life.

[388] I excluded the evidence of the post-mortem report, for reasons I have already explained. Given the gaps in the evidence, the report’s conclusion could neither be explained nor reviewed by Dr. Tanguay nor another forensic pathologist, Dr. Michael Pollanen. Regardless, the only medical expert who testified at trial about the death of Ms. Knight, Dr. Tanguay, could not, with or without that report, offer an opinion about the cause of death. Dr. Tanguay allowed that Ms. Knight’s death could have been the result of natural causes. He was unable, due to the gap in records, to ascertain whether there were any intervening events or medical conditions.

[389] The Crown need not prove the mechanism of death, or anything more than that the accused’s conduct was a significant contributing cause of death. I am also aware of section 226 of the Criminal Code which provides that “where a person causes to a human being a bodily injury that results in death, he causes the death of that human being notwithstanding that the effect of the bodily injury is only to accelerate his death from a disease or disorder arising from some other cause”. The Crown does not frame its position on cause of death with reference to this section.

[390] In any case, the difficulties in applying s. 226 are the same as those which relate to the proof of causation generally – there is a significant gap in time for which there is no evidence about Ms. Knight’s circumstances, other than she remained in hospital. The evidence does not support a finding that Ms. Knight’s death from some other cause was accelerated by the effect of the bodily harm she sustained as a result of the home invasion

[391] A case involving this type of violence and the violation of a 92-year old woman gives rise to strong feelings. I appreciate that for Ms. Knight’s loved ones, and perhaps the community at large, it appears that the evidence supports an inference that if the accused’s conduct is what put Ms. Knight in hospital with a head injury, where she died within a few months of the date of the attack, her death can fairly be attributed to the accused. This is essentially the Crown’s position.

[392] I have given that position my most careful consideration. I have considered the extent to which I can rely on the fact that the evidence is overwhelming that before the assault, Ms. Knight was a fit and healthy person, whereas afterwards, her health declined, a brain injury was confirmed, and months later, she died.

[393] But given the significant gap in the evidence about Ms. Knight at an important juncture, I am left with a reasonable doubt that the Crown has proved that the accused’s assaults on Ms. Knight were a significant contributing cause of her death. I have no evidence of Ms. Knight’s circumstances or medical progress for a period of three months. I cannot rule out that other events may have occurred, medically or otherwise, that could be significant to the analysis. It would be unsafe to assume nothing of any significance occurred for those last three months, even though it is entirely possible, or even likely, that this is the case. I cannot rely on assumptions about what likely happened to fill this gap in the evidence.

[394] The circumstances in this case are distinguishable from the circumstances in other decisions in which causation was considered. In those cases, there was no gap in what was known about the victim’s circumstances in the time before they died, and the nature of any other intervening act or natural disease process was known and considered: see e.g., R. v. Bushby, 2020 ONSC 7780). For instance, in Maybin, at para. 20, the court concluded that “the [accused’s] assault was either the direct medical cause of death or it rendered the victim vulnerable to” the assault by another. Either way the Crown had proved causation.

[395] Here, I am unable to conclude based on the available evidence that Ms. Knight either died because the assaults produced the conditions that caused her death, or because the assault left her more vulnerable to death by reason of age-related decline or any pre-existing condition. When I pose the question “but for the actions of the accused would Ms. Knight have died?”, as Maybin suggests I do (see para. 21), I am unable to answer that question with sufficient certainty. I am left with a reasonable doubt that the accused’s actions caused Ms. Knight’s death.

[396] One could much more easily reach a conclusion that Ms. Knight probably died because the accused either caused her death or because his conduct left her vulnerable to a hastened decline from other health issues. But proving something is probable (or likely) is not enough to satisfy the burden that the Crown bears. More is required in a criminal trial in order to rebut the presumption of innocence. I find that the Crown has not met its onus with respect to the cause of Ms. Knight’s death.

e) Conclusion on Count 1

[397] Consequently, the accused is found not guilty on the charge of manslaughter, but guilty on the included offence of robbery.

PART IV: COUNT - THE ROBBERY OF THE TD BANK

I. The Crown’s theory

[398] On July 4, 1995, a TD Bank branch located on Days Road in Kingston was robbed by two men brandishing guns. The accused is alleged to have been one of the men. The Crown’s position is that Pat Maddigan was the other.

[399] The robbery took place at 7:55 a.m. on a Monday following the Canada Day long weekend. The accused had planned the robbery for that date and time to maximize the profits from night deposits over the long weekend.

[400] The accused and Madigan gained entry to the bank by backing a cube van into a window of the bank with such force that it smashed the window and surrounding wall. The accused was driving.

[401] The Crown’s theory is that the accused paid a friend of his, Bonnie Nichol, to signal him when the employees in the bank started moving the money towards the vault. This is when he backed the van into the window.

[402] During the robbery, the accused and Madigan had shotguns. They were masked. They made off with the robbery proceeds within minutes.

[403] The cube van used to smash through the bank window and wall had been stolen. It had been modified by the accused so that a wooden ram was attached to it. It was abandoned behind another part of the mall a short distance away. The accused and Madigan made their escape in a second vehicle they had left nearby.

II. The issue to be decided

[404] There is no question that a robbery at the TD Bank occurred on July 4, 1995, or that it was committed by two men. The evidence on these points is overwhelming (the fact of the robbery, in any event, is an admitted fact).

[405] The issue in respect of this count is whether the Crown has proved beyond a reasonable doubt that the accused was one of the two men who committed the robbery.

III. The positions of the parties

The Crown

[406] The Crown argues that the accused confessed to this offence in detail and to various people. He confessed more than once to each of the UC and the PA. He effectively confessed his involvement to Pat Madigan’s former spouse, Deb Rawlins in 2018, and he confessed to Robert Parker (although Parker thought the robbery involved a Bank of Montreal).

[407] The Crown says the detail provided in the confessions alone is impressive and highlights the following. The accused said he used a rental van from Quebec. He described how he altered it with a wooden frame and how he determined the frame’s dimensions to match the size of the window. He said he had a partner – Pat Maddigan. He explained where he parked, and how he knew when to back up, and that this involved help from a signal person. He gave the name of this person (Bonnie) and other information about her. He described that the robbery occurred after a long weekend and why that was a good time to do it. He described other businesses near the bank. He described what occurred inside the bank. He said he and his partner were masked and armed with shotguns. He explained where the money was (on a cart) and how it was sorted (in two bags). He described how he interfered with an employee who was trying to secure the money in the vault. He described the van’s getaway route and having a second vehicle nearby. He said how much money they got in the robbery and that it was at one point stored in Tupperware. He said how his partner Pat used the money, including that he bought a purple Harley Davidson motorcycle.

[408] Further, the Crown argues that there is confirmation for the details in these confessions. Among the many pieces of evidence pointed to by the Crown, it cites the evidence that:

a. During the undercover investigation, the accused showed the PA where the bank was located, where the night deposit box was, and the route used to get away;

b. eyewitness accounts of the robbery suggest there was a female signal person involved. The person identified as the signal person by the accused (Bonnie), who lived on disability benefits, registered a new vehicle fifteen days after the robbery;

c. Deb Rawlins, the then common-law spouse of Pat Maddigan, saw Pat Maddigan come home with a Tupperware container full of bills after the TD Bank robbery had occurred. She also confirmed that Pat purchased a purple Harley Davidson after the robbery;

d. Bank employees testified that two big bags were used to contain all the night deposit bags, which detail corresponds with the accused’s description, and is not a detail that was included in media coverage.

The defence

[409] In addition to the arguments it makes about the unreliability of the accused’s utterances to the UC, PA and other civilian witnesses, the defence emphasizes the inconsistencies in the accused’s account of the alleged offence with other utterances he made and with evidence from other witnesses. The internal inconsistencies relate to: how much money was stolen; who was involved; what he did in the bank; and whether or not Bonnie was happy with her cut from the robbery.

[410] The defence also argues that the evidence from eyewitnesses about the descriptors of the assailants do not match the accused, whose identification, including a parole card, says he is 5’8” tall, 189 pounds, and has brown hair and hazel eyes. Photographs of him in the past show a person with a consistently stocky build and a moustache. The descriptions given by various witnesses, including Alex Mitchell, Janice Massey and Donald Cox (whose statement was admitted for its truth) function to exclude the accused as one of the perpetrators of the robbery.

[411] The defence says that the Crown has not proved that the woman who entered the dental office was the alleged signal person, Bonnie Nichol. There was contradictory evidence from the eyewitnesses about her description. The defence says that police could have done a photo lineup using Bonnie Nichol’s MTO photo from the 1990s with each of the eyewitnesses at some point after police had reason to believe she was involved in the robbery, but they did not. The evidence about the precise location of the woman at the scene of the robbery is also contradictory. As for the evidence that Bonnie Nichol registered a vehicle in her name after the robbery, this does not prove she purchased that vehicle – it could have been a gift, for instance. In this regard, her son’s recollection of a new vehicle purchase placed her purchase of a vehicle years after the robbery in 1997 or 1998.

[412] In respect of the involvement of a signal person, and Bonnie Nichol in particular, the defence also raises logical improbabilities about the theory of the Crown – for instance, it makes little sense that if she were involved, the signal woman would go into the dental office to ask someone to call 911. If Bonnie suffered from agoraphobia, the accused would likely not have chosen her “for a job that required calm”.

[413] Finally, the defence emphasizes that the Crown has not proved the amount stolen from the bank (which it could easily have done) and the figure given by the accused in his account of the amount stolen in the robbery does not constitute “holdback evidence”. Further, the details given by the accused about the offence were entirely in the public domain given extensive local media reporting about this offence. The details in the media included: the time and date of the robbery; reference to the amount stolen as “substantial”; the type of van driven and that it had a ram (the van was also shown in photos, together with the attached ram); the fact that the van was stolen from Montreal; where the van was parked prior to the bank robbery; where the van was abandoned; that shotguns were brandished; how the robbers backed the van through the window and part of the brick wall; the fact that the robbers were masked and how many employees were inside the bank; and that the robbers told the bank employees to lay on the floor. The accused’s utterances show he was aware of the details in the media coverage since he said the media only ever reported that a “substantial amount” was stolen. The fact that several bank employees also confirmed that they discussed their experience had further potential to disseminate the details of this event in the community.

IV. Preliminary findings of fact

[414] As a preliminary matter, as I have indicated, the parties agree that there is no issue that a robbery of the TD Bank occurred on July 4, 1995, at about 7:55 a.m. at 494 Days Road in Kingston.

[415] I am also satisfied beyond a reasonable doubt of the facts I now outline. I make these findings based on evidence from various witnesses which was not challenged and which I accept. I do not rely on the accused’s utterances in making these findings. Since these facts are uncontroversial, I am not further sourcing the evidence in these reasons. I confirm that I have relied on my review and recollection of the evidence and that it accords with the extensive summary provided by the Crown (which outlines what witnesses gave the relevant evidence) in its written submissions.

[416] In brief, I am satisfied beyond a reasonable doubt of the following. The bank robbery was committed by two men. The men gained entry to the bank by backing a cube van into the wall and one of the windows of the bank with such force that the window smashed. The men entered the bank just as the employees were starting their workday on the Monday following the Canada Day long weekend. Consequently, the night deposit box was “unusually full”. The bank was part of a mall containing a beer store and a grocery store.

[417] Employees were processing the night deposit bags that had been deposited by businesses over the weekend. One employee (Lisa McDaniels) wheeled the funds to the vault using a cart. The men involved in the robbery had shotguns. They stole the bags from the cart. The robbery was over within a few minutes. No one was hurt.

[418] The van used to back into the bank left the area and was followed by Donald Cox. Behind the grocery store, the van stopped and Mr. Cox saw the driver get out. This person was a man with a shotgun.

[419] The van was discovered later that day by a police officer, after Mr. Cox led him to it. The van had been recently stolen from a location in Quebec. It had been altered using wooden 4x4s.

[420] No forensic evidence was obtained from the bank or the van that allowed the police to identify any suspects.

[421] Local media covered this event and some information about how the offence had been committed was in the public domain. The details that were made public are as itemized by the defence and previously reviewed in setting out the defence position so I will not repeat them now. Some of the witnesses to this event also confirmed that they spoke about their observations with family and friends.

[422] The man alleged to be the accused’s partner in this event is Pat Maddigan. It is an admitted fact in this trial, supported by a great deal of additional evidence, that the accused and Pat Maddigan knew each other. Pat Maddigan died in London, Ontario, on July 25, 2018. This was in the early stages of the undercover investigation, and prior to any meaningful involvement by the UC.

V. Was the accused one of the men who committed the robbery?

a) Overview of the evidence

[423] The evidence that the accused was one of the men who committed the robbery comes from his utterances during the undercover investigation, and from witnesses who heard him talk about the robbery at a time closer to the events (the PA, Robert Parker and Deb Rawlins) and in 2018 (Deb Rawlins). However, insofar as the evidence from the PA, Robert Parker and Deb Rawlins is concerned, I prefer to rely only on the evidence of Ms. Rawlins given the reasons to be concerned about the reliability of the evidence from the PA and Robert Parker on these points.

[424] I begin with an overview of the evidence that is most relevant to the analysis – the utterances made by the accused during the undercover investigation and the evidence of Deb Rawlins. The parties agree that if I find that the Crown has proven the ultimate reliability of the accused’s utterances during the undercover investigation beyond a reasonable doubt, the Crown will have proven the accused participated in this offence and all elements of the offence will have been made out.

The accused’s utterances during the undercover investigation

[425] The utterances that are relevant to this offence were made over a number of days. The accused said (and sometimes repeated) that:

a. Pat Maddigan was his partner for this offence. Pat Maddigan’s wife is Debbie;

b. He built the ram on the stolen van used to back into the bank and he was the person who drove it into the bank. The ram was made with 4 x 4s;

c. He described backing into the window and having a getaway car, which made any damage caused to the van less of a concern. He said: “the ram you make the ram the same size as the windows you take the whole fuckin thing out… but I miscalculated took out part of the wall too ya… well just didn’t hit it perfect but I knew no matter what is going through… and my getaway car was from here to Tim Horton’s so it didn’t matter what we did to the van cuz if we had to we could have run over to it”.

d. He said he drove through the window “before they even opened”;

e. He paid a woman named Bonnie to signal him when to go – once she gave the signal he backed the truck into the bank;

f. Bonnie was a friend of his and his wife’s. She did not like going out of her house. She had a son who is now an adult;

g. He got $250,000 from the robbery. The newspaper only reported that a “substantial amount” of money had been robbed;

h. He got $140,000 of the proceeds and his partner got $80,000. He gave $10,000 to the woman who signalled him to go;

i. His partner bought a purple Harley Davidson with his funds;

j. He (the accused) had a shotgun during the robbery;

k. In the course of the robbery, he interrupted a lady who was running for the vault. The woman was pushing a cart with the night deposits towards the safe. The accused said he got the night deposit bags, which were “zipper bags”;

l. The getaway car was around the corner;

m. The bank was not the original target and the accused had been watching a beer store; and

n. At least twice, the accused discussed the benefits of robbing a bank after a long weekend because the bank would have received the maximum number of night deposits. He also said it was best to rob a bank first thing in the morning and provided a rationale for that too.

The evidence of Deb Rawlins

[426] The evidence of Deb Rawlins is important to this count and, to some extent, others, given the relationship she describes between the accused and her former common-law partner, Pat Maddigan. Pat Maddigan is implicated by the accused as an accomplice in this offence, in the alleged dismemberment and disposal of Richard Kimball’s body, in the surveillance and preliminary efforts to target David Allan (which relates to the arson count), and in the murder of Stephen St. Denis.

[427] Ms. Rawlins was a very good witness whose evidence went unchallenged by cross-examination. She gave no hint of any kind of bias or agenda as she testified, either in relation to the accused or Pat Maddigan, from whom she had separated a number of years before he died. She was responsive to questioning and direct and factual with her responses. My impression was that she was doing her best to recall the facts she was asked about. She was also clear about what she could or could not recollect. Nothing else in the larger trial record causes me to have concerns about her credibility or reliability as regards any of the issues about which she testified. I have no reason to reject anything about which Ms. Rawlins testified. I accept her evidence in its entirety.

[428] For instance, I accept that the accused and Pat Maddigan spent a lot of time together, including without Ms. Rawlins, and that the accused was the godfather to Ms. Rawlins’ son with Pat Maddigan. Pat Maddigan knew the accused first and introduced Ms. Rawlins to him.

[429] Ms. Rawlins and Pat Maddigan were also social friends with the accused and his wife Sandra Carr. Ms. Rawlins provided police with a photo, taken some time after August 1993, with the two couples and individuals she knew as “Bonnie” and “Bob”. I will discuss this photo further later.

[430] I also accept that Pat Maddigan had health issues, including what Ms. Rawlins understood was Chrohn’s disease. He also had addiction issues and a problem with cocaine in particular, to which he was “very addicted”.

[431] I further accept that on occasion, Pat Maddigan would disappear for days or weeks at a time. These occasions were not planned and Maddigan did not usually tell Ms. Rawlins where he was or what he was doing.

[432] Finally, I accept that in 1995, Ms. Rawlins and Pat lived in the Gananoque area together, and that at the time, Pat was not “solidly employed”. As I will reference momentarily, I also accept that when Pat died in London, in 2018, Ms. Rawlins and the accused traveled from Kingston to London together for his funeral and to help clean out his apartment.

[433] Many of these details about Pat Maddigan were also provided by the accused when he spoke to the PA and the UC about Maddigan.

b) Analysis and findings

Confirmed details that were not in the known media accounts

[434] I begin by taking the defence position at its highest vis-à-vis the argument that evidence confirming facts that were in the public domain, and referenced in the accused’s account of this offence, are of no value in determining whether his statements about his participation in the robbery were true. I begin by considering what confirmation exists for details in the accused’s account which were not reported in the media.

“Bonnie” was the signal person

[435] Whether or not a signal person was involved, and whether that person was Bonnie Nichol, is an important factual point. There was significant media coverage of this offence. But the existence of a signal person was not something that was reported. To the extent that the reliability of the accused’s account may be undermined by the fact that a number of details about the offence were in the public domain, this is a highly specific and material fact that was not.

[436] Given the totality of the evidence, I am satisfied beyond a reasonable doubt that there was signal person for the bank robbery, and that