COURT FILE NO.: 22-M13832 DATE: 2024/11/19

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Jean Berno Fenelon

Counsel: Dallas Mack and Emma Loignon-Giroux, for the Crown Ari Goldkind, for Mr. Fenelon

HEARD: November 4, 2024

REASONS FOR DECISION ON DIRECTED VERDICT

CARTER J

INTRODUCTION

1Jean Fenelon has been charged with first degree murder in the death of Marie Gabriel. At the conclusion of the Crown’s case, the Defence brought an application for a directed verdict. The allegation in this case is that the murder of Ms. Gabriel is elevated to first degree murder by virtue of unlawful confinement and/or criminal harassment. It is submitted that only second-degree murder should be left with the jury.

2After hearing from the Defence, I dismissed the application as it related to criminal harassment. I provided oral reasons at that time. I further found that forcible confinement as a route to first degree murder was not available and indicated that brief written reasons would follow. These are those reasons.

3The test on a directed verdict application pursuant to s. 548(1) of the Criminal Code is whether or not there is any evidence, direct or indirect, upon which a jury properly instructed could return a verdict of guilty.

4The Crown must present evidence respecting every essential element of the offence they are burdened with proving. The Crown’s evidentiary threshold is low, and the trial judge should dismiss directed verdict applications where there is admissible evidence that, if believed, could result in the accused’s conviction. When direct evidence is not presented for every essential element of the offence, the trial judge is tasked with conducting a weighing exercise to determine whether the circumstantial evidence can reasonably support a guilty inference.

5While the trier of fact in a circumstantial case will have to determine whether guilt is the only reasonable inference, on a directed verdict application my role is limited to determining whether guilt is a reasonable inference. If it is, then it will be for the trier of fact to determine whether it is the only reasonable inference. The inferences the Crown seeks to have drawn need only be reasonable. They need not be easily drawn, likely or probable. However, the burden of proof must be kept in mind and the evidence must be capable of supporting not simply an inference of guilt, but guilt beyond a reasonable doubt: R. v. Jama, 2023 ONSC 2375 at paras. 78 and 79.

6On an application for a directed verdict in a circumstantial case, the ultimate goal is to determine whether the essential elements of the offence at issue can be reasonably inferred from the whole of the evidence, when viewed most favourably to the Crown. It has been recognized that the boundary which separates permissible inference from impermissible speculation in relation to circumstantial evidence is often a difficult one to determine. An inference must flow logically and reasonably from the facts, or else it amounts to conjecture and speculation. There is a difference between an inference that flows logically and reasonably from the facts and a hypothesis that is simply consistent with the facts: Jama at paras. 84 and 85.

7The essential element at issue here is whether the alleged confinement constitutes a distinct act which forms part of the same transaction as the murder.

8The Defence submits that there is no evidence that Mr. Fenelon committed any acts of confinement outside of the alleged acts inherent in the murder itself. The Crown argues that it is open to the jury to find that a confrontation began in the kitchen, and that Ms. Gabriel was brought to the basement against her will, being confined in the process. Even if the jury could not find this, they could find that in the basement alone she was attacked about the arms, legs and head, prior to the fatal attack with the dumbbell while she was lying on the floor, but that she tried to flee and was thereby confined, or there was an attempt to confine her.

9I cannot accept the Crown’s contention. Unlike many of the cases relied on by the Crown, there is no evidence from any witnesses, whether it be from the accused or from others, as to what transpired in either the kitchen or basement. This makes the process of determining what distinct acts occurred much more difficult.

10Turning first to whether there is evidence that Mr. Fenelon brought Ms. Gabriel to the basement against her will, I begin my noting that there is no direct evidence this occurred. No one witnessed it. Mr. Fenelon never told the police that it happened. Nor is there any forensic evidence this occurred, such as signs of a struggle in the kitchen.

11That Ms. Gabriel was brought to the basement against her will is nothing more than a Crown hypothesis that is, at its highest, possibly consistent with the evidence. It is based on conjecture and speculation. It is not an inference that flows logically and reasonably from the evidence.

[12] As for what occurred in the basement, there is some evidence of the following: a. bloody barefoot transfer stains heading in the direction of the stairs; b. blood stains in different parts of the basement; c. swipe and wipe marks that could have been caused by Ms. Gabriel being dragged along the floor; d. That Ms. Gabriel was attacked, struck with the piece of wood and/or other items on the leg and arm; e. That she was putting up her arms to defend herself from an attack and was struck more than once; f. That she was knocked to the floor; g. That these acts occurred prior to the fatal blows; and h. That while on the floor she suffered the fatal blows – she was struck with severe force in the head, potentially with the dumbbell, while her head was against the floor.

13The difficulty is that unlike in the cases provided by the Crown, there is no evidence as the timing of these events in relation to one another. Did they occur within minutes of each other? Seconds? What was happening in between, if anything? The evidence from Dr. Milroy and Detective Dimova cannot provide any answers to these questions.

14In short, it is impossible to say whether the confinement and the murder were separate. As noted by the Ontario Court of Appeal in R. v. Kimberley (2001), 157 C.C.C. (3d) 129, a confinement which is inherent in the very act of killing cannot not be relied on to impose liability under s.231(5)(e); not because there is no confinement but because s.231(5)(e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. Once again, it would be conjecture and speculation to conclude that Ms. Gabriel was unlawfully confined in the basement in an act that was distinct from the murder itself.

15There is no evidence, direct or indirect, upon which a jury properly instructed could return a verdict of guilty on first degree murder based on forcible confinement.

Carter J.