Ontario Superior Court of Justice

Court File No.: CR/23-024
Date: 2025/05/05

Between

His Majesty the King
and
Randall McKenzie (Accused)
and
Brandi Stewart-Sperry (Accused/Applicant)

Appearances:
F. McCracken and T. Shuster, for the Crown Attorney
D. Holt and X. Hafizi, on behalf of Randall McKenzie
S. Reid and M. Henriques, on behalf of Brandi Stewart-Sperry

Heard: April 16, 2025
Justice: A. J. Goodman

Ruling on Application for Directed Verdict

Introduction

[1] Randall McKenzie (“McKenzie”) and Brandi Stewart-Sperry (“Stewart-Sperry”) are charged with the first degree murder of OPP Provincial Constable Gregorz (‘Greg’) Pierzchala (“Officer Pierzchala”), contrary to s. 235(1) of the Criminal Code, R.S.C. 1985, c. C-46.

[2] The route to s. 235(1) for Stewart-Sperry is through s. 21 of the Code, which reads as follows:

Parties to offence
21 (1) Every one is a party to an offence who
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to commit it; or
(c) abets any person in committing it.

Common intention
(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[3] Following the close of the Crown’s case, and just prior to being put to her election with respect to the calling of evidence, Stewart-Sperry brought a directed verdict application seeking a dismissal of the charge against her and a directed verdict of not-guilty. In the alternative, Stewart-Sperry submitted that the charge of first degree murder should be removed from the jury’s consideration, leaving only manslaughter for them to deliberate upon.

[4] Upon hearing the submissions of counsel, I ruled that the directed verdict application including its alternative position was dismissed, with reasons to follow. These are my reasons.

Positions of the Parties

[5] Counsel for Stewart-Sperry submit that no jury, properly instructed, could possibly convict Stewart-Sperry beyond a reasonable doubt without filling gaps in the evidence left by the Crown with conjecture or speculation.

[6] Counsel groups the entirety of the Crown’s evidence against Stewart-Sperry into three main categories:
(1) evidence from before the shooting;
(2) evidence surrounding the incident on Townline Road; and
(3) after-the-fact conduct evidence.

[7] Regarding the first category, it is submitted that there is no evidence, direct or circumstantial, that Stewart-Sperry knew McKenzie had a gun or that she knew of his desire to shoot, or engage in a shoot-out with, police. Instead, Mr. Reid submits that there is evidence before the court that Stewart-Sperry was not in the presence of McKenzie for the period of December 10, 2022, to December 22, 2022, just prior to the offence. It is during this time period that the Crown has evidence of McKenzie filming himself with the relevant gun and texting others regarding his desires to shoot police officers. Thus, in totality, there is no evidence that Stewart-Sperry, prior to the shooting of Officer Pierzchala, saw the gun, was told about it, was in a place where she could have seen it at a time when it was known McKenzie possessed it, or was present in a photo or video with McKenzie while he possessed it.

[8] Regarding the second category, Mr. Reid points to a lack of any evidence that Stewart-Sperry knew the police were on their way to the scene of the accident or that McKenzie said anything to her at the scene about his intentions were the police to arrive.

[9] Counsel notes the body worn camera video (the “BWC video”) as critical to the assessment of this application. In this video, Stewart-Sperry is seen with a blanket wrapped around her shoulders. Sometimes this blanket covers her mouth. Here, the testimony of Ms. Tobicoe is relied upon, as she stated having seen numerous other people, following an accident, make the exact same motions with a blanket as Stewart-Sperry did; adjusting it and tightening it around them. At no point in the BWC video is Stewart-Sperry seen or heard speaking to the shooter. Stewart-Sperry speaks to Officer Pierzchala, she answers his questions directly. It is the shooter that moves his position to hide behind Stewart-Sperry, ultimately stepping around her to shoot Officer Pierzchala.

[10] Counsel alleges that the rest of the Crown’s evidence, respecting Stewart-Sperry, falls into the third category, i.e., after-the-fact conduct evidence. This includes the theft of the Silverado, the flight from the scene, the attempts to conceal and repair the Silverado at 3552 Mississauga Road, and the attempt to flee into the brush surrounding 3552 Mississauga Road.

[11] Ultimately, counsel for Stewart-Sperry holds that on the above limited evidence there is no proof, necessary to satisfy ss. 21(1)(b) or (c) of the Code, that Stewart-Sperry had the requisite specific intention of assistance or encouragement, or that she did something in service of this intention (see R. v. Martineau, [1990] 2 S.C.R. 633; R. v. Vu, 2012 SCC 40, para 59; R. v. Hibbert, [1995] 2 S.C.R. 973, para 26; R. v. Briscoe, 2010 SCC 13, paras 14-18). Stewart-Sperry similarly notes there to be no evidence which satisfies s. 21(2) of the Code, which also requires a subjective foreseeability (see R. v. Logan, [1990] 2 S.C.R. 731, paras 18, 23, 31, 35). More specifically, there is no evidence that there was an intention in common to commit an unlawful purpose and that the shooting of the officer was subjectively foreseeable, to Stewart-Sperry, as a consequence of carrying out that unlawful purpose.

[12] Put simply, there is no evidence that Stewart-Sperry either: knew the shooter possessed a gun; knew the shooter intended to shoot an officer; knew the shooter intended to get in a shoot-out with the police; or had the subjective foresight that the activity in which she was engaged in with the shooter would result in such consequences. Both routes to liability hinge on Stewart-Sperry’s subjective knowledge of the shooter’s intention to engage in a shoot-out with the police (prior of course to the shots being fired). The Crown’s assertion of same requires the jury to speculate in order to find Stewart-Sperry had this requisite subjective knowledge.

[13] The Crown’s use of after-the-fact conduct evidence engages circular reasoning that invites the jury to speculate – i.e., Stewart-Sperry left the scene of the shooting with the shooter in the stolen Silverado because she knew she was culpable in the shooting. After-the-fact conduct evidence may not be properly used to carry the entirety of the Crown’s burden of proof, with respect to all essential elements.

[14] Ultimately, counsel for Stewart-Sperry submits that there are gaping holes in the evidence on the essential elements of not only murder, but any culpable homicide.

[15] The Crown responds that there is ample evidence on which a reasonable jury, properly instructed, could find Stewart-Sperry guilty as charged. This includes her actions before, during, and after the shooting.

[16] Pre-offence, the evidence against Stewart-Sperry includes the theft of the Armada, Stewart-Sperry’s negative reaction to the offer to call CAA, and the evidence that she and the shooter were already attempting to steal the Silverado before Officer Pierzchala arrived. The Crown’s position on this pre-offence evidence is that the two were acting in concert before the shooting. When viewed in light of the evidence that similar joint-actions continued after the shooting, the jury is entitled to properly infer that Stewart-Sperry would also have knowingly aided in the shooting itself.

[17] There is circumstantial evidence supporting that Stewart-Sperry would have known about the gun and McKenzie’s intention to use it to engage in a shoot out with police. The two were in a romantic relationship, they were in possession of stolen property, the Armada had clothing strewn throughout and its back seats were down suggesting that the pair were sleeping in the stolen vehicle overnight, and McKenzie had not been shy about telling others of his plan to engage in a shoot out with police rather than go back to jail.

[18] During the offence, as displayed on the BWC video, Stewart-Sperry is seen aiding the shooter. Once Officer Pierzchala states that the pair are being recorded, Stewart-Sperry raises the blanket and covers her mouth. She turns to the shooter. It is open to the jury to infer that she was conferring with him, possibly agreeing with or encouraging him. She then steps forward and places herself in between the shooter and the officer. This act aided the shooter. Whether or not the jury agrees, it is entirely open to them to conclude that she did what she did knowingly and intentionally.

[19] The Crown notes that the inferences they ask the jury to make regarding Stewart-Sperry’s actions as recorded on the BWC video are just that, they are not inappropriate speculation or conjecture.

[20] Regarding Stewart-Sperry’s post offence conduct, the evidence provides ample support for the jury to conclude that Stewart-Sperry both aided in the murder of Officer Pierzchala and formed an intention in common with her co-accused to steal two vehicles, possess other stolen property, and evade arrest by any means necessary. Such evidence is inclusive of the effected theft of the Silverado, the flight without hesitation, the concealment of the Silverado’s licence plates, the lying to Ms. Savage about where the car was from, attempting to change the tire on the Silverado, and fleeing into the woods with McKenzie when such proved not to be possible.

[21] Counsel for McKenzie did not take any position on this application.

Legal Principles

The Directed Verdict Test

[22] The seminal case providing the test for a directed verdict is U.S. v. Shephard, [1977] 2 S.C.R. 1067. That test, set out at p. 1080, is:

... whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[23] Stated another way, an application for a directed verdict must be dismissed in any case in which there is admissible evidence which could, if believed, result in a conviction: see R. v. Barros, 2011 SCC 51, para 48.

[24] In R. v. Bains and Pannu, 2015 ONCA 677, para 159, the Court held that “the standard on a directed verdict application does not differ according to whether the Crown's case consists of direct or circumstantial evidence. But the nature of the judge's task varies according to the nature of the evidence adduced.” See also R. v. Arcuri, 2001 SCC 54, para 22.

[25] If there is direct evidence on each of the essential elements, a motion for directed verdict must be dismissed. In a circumstantial case, a trial judge may engage in a limited weighing, to determine whether there is some evidence that is reasonably capable of supporting the inferences the Crown seeks to have the jury draw: see Bains and Pannu, at paras. 159-160; Arcuri, at para. 23; and R. v. Jackson, 2016 ONCA 736, para 6. The Court in Jackson goes on to note,

[7] In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, para 18; R. v. Foster (2008), 76 W.C.B. (2d) 769, at para. 31 (Ont. S.C.); and R. v. Howells, 2009 BCCA 460, paras 13-14.

[8] If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

[26] Narrowing in on the role of the jury versus the role of the court, in assessing circumstantial evidence for a direct verdict application, the court in Arcuri, at para. 24, cite to Metropolitan Railway Co. v. Jackson (1877), 3 App. Cas. 193 (H.L.), at p. 197, in which Lord Cairns wrote:

The Judge has a certain duty to discharge, and the jurors have another and a different duty. The Judge has to say whether any facts have been established by evidence from which [the matter in issue] may be reasonably inferred; the jurors have to say whether, from those facts . . . [the matter in issue] ought to be inferred. [Emphasis omitted.]

[27] As is well established, speculation and drawing an inference from the evidence are two distinct processes: see U.S.A. v. Huynh, 2005 ONCA 305, at para. 7; and R. v. Munoz, paras 26-28. In Munoz, at paras. 26-28, Ducharme J. noted two ways in which permissible inference drawing can devolve into impermissible speculation. The first is the failure to establish the primary fact. The second is when the proposed conclusion cannot be reasonably and logically drawn from the established primary facts.

Post-Offence Conduct

[28] There are permissible and impermissible uses of after-the-fact conduct evidence. To base an entire case on after-the-fact conduct evidence may be an impermissible use: see R. v. Panzo, 2022 ONCA 359, para 47. Such an analysis is largely case dependent: see R. v. Calnen, 2019 SCC 6, paras 127-138; and R. v. S.B.1, 2018 ONCA 807, paras 71-72. Similarly, while circular reasoning in connection with after-the-fact conduct is not improper, in and of itself, the Court in R. v. Hall, 2018 ONCA 185, paras 47-48, hold that such may indicate the presence or availability of assumptions rather than proper inferences. Again, a case by case determination is required.

[29] R. v. S.B.1, 2018 ONCA 807, para 71 is particularly instructive on the proper use of post-offence-conduct evidence:

… there is no rule automatically preventing the use of post-offence conduct as proof of the level of an accused's culpability: see R. v. White, 2011 SCC 13, paras 40, 42, per Rothstein J.; White (1998), at para. 32. Rather, the use of post-offence conduct for this purpose is governed by the principle of relevance: evidence of post-offence conduct is admissible if it is relevant and its probative value is not outweighed by its prejudicial effect.

[30] Since S.B.1, R. v. Café, 2019 ONCA 775, paras 55-56, confirmed that after-the-fact conduct can support planning and deliberation where, as an example, it shows the accused, in killing the victim and acting in the aftermath, did “exactly what they had planned to do”.

[31] In S.B.1, at para. 63, the Court affirmed that an individual’s failure to express “surprise and horror” or “disbelief, shock or outrage” after a murder can, subject to the evidence and issues in the case, be used to infer participation in a pre-arranged plan to commit that murder. The Court in R. v. White, 2011 SCC 13, paras 67, 74, 86, note the same about flight. Flight – and even more so, flight without hesitation – can be relevant to an individual’s level of culpability in a homicide. See also R. v. Atienza, 2023 ONCA 537, para 92.

[32] Ultimately, as noted by the Court of Appeal in R. v. Gaetan, 2023 ONCA 114, para 41, citing to Calnen and White, the relevance of after-the-fact conduct evidence is best assessed by asking “whether the evidence is capable of supporting the inference sought to be drawn about the accused’s state of mind.” In the same paragraph, the Court goes on to state:

…It will be irrelevant to this issue if the conduct is “equally consistent” with the proposed inference and the alternate inference, such that the conduct no longer allows the trier of fact to choose between available inferences as a matter of common sense, experience, and logic: Calnen, at para. 124. When this is the case, a trial judge must provide a limiting or no probative value instruction to the jury: White, at para. 60. However, the mere fact that after-the-fact conduct can support a range of inferences does not render it irrelevant: Calnen, at paras. 112, 144.

Analysis

[33] I accept Mr. Reid’s statement of the essential elements required to satisfy both ss. 21(1)(b) and (c), and 21(2). Such was not contested, nor the broad focus of this application.

[34] The Crown relies on the following to justify the conclusion that Stewart-Sperry and McKenzie were engaging in a common unlawful purpose and that Stewart-Sperry knew McKenzie had a firearm and an intention to engage in a shoot-out with police officers:

a. The relationship between McKenzie and Stewart-Sperry;
b. That Stewart-Sperry and McKenzie stole the Armada and the Silverado;
c. That the pair were engaged in stealing the Silverado prior to Officer Pierzchala’s arrival, as per the testimony of Ms. Tobicoe;
d. The mess within the stolen Armada;
e. The text messages between McKenzie and two others regarding a desire to engage in a shoot-out with officers;
f. The stolen property within the Armada and on the two accused; and
g. The reaction of Stewart-Sperry to Mr. D. McKenzie at the scene of the ‘crash’ asking to call CAA.

[35] The Crown relies on the following to justify the conclusion that Stewart-Sperry intentionally aided or abetted McKenzie in shooting Officer Pierzchala:

a. The above evidence regarding the parties relationship;
b. The body worn camera footage that depicts Stewart-Sperry concealing her mouth with a blanket, turning to face McKenzie, concealing McKenzie while he prepares the gun in his pocket, distracting the officer during same; and then standing expressionless following the offence; and
c. The after-the-fact conduct evidence of the pair fleeing in the Silverado, the concealment of the Silverado license plate, attempts to fix the popped tire, telling Ms. Savage that the car belonged to her; and fleeing into the woods.

[36] The above inferences are admissible in the sense that the jury is entitled/allowed to make them. Despite being born from circumstantial evidence they are not based in conjecture or speculation, as contemplated in Munoz. Ultimately, while other inferences are available on the evidence such is a job for the trier of fact to weigh and consider: see Arcuri, at para. 24.

[37] Further, the after-the-fact conduct evidence is not being used for impermissible purposes – i.e., to generate assumption, conjecture, or speculation. There is evidence of fleeing and a lack of shock; I find the same to be both relevant and probative. Such can properly be applied to moral culpability/planning and deliberation: see S.B.1, White, and Atienza. A no-probative value instruction is similarly not required, the mere fact that after-the-fact conduct can support a range of inferences does not render it irrelevant: see Calnen, at paras. 112, 144. I am not convinced that the competing inferences/explanations are so equally likely that the jury will be unable to choose between them as a matter of common sense, experience, and logic. As stated by the Court in Calnen, at para. 112, “In most cases, it will be for the jury or judge to determine which inferences they accept and the weight they ascribe to them. ‘It is for the trier of fact to choose among reasonable inferences available from the evidence of after-the-fact conduct’”.

[38] As I advised the parties during my brief oral ruling, the jury will be properly instructed as to the proper and limited use of post-offence conduct, including as it may pertain to their assessment of any level of culpability with respect to s. 21 of the Code.

Conclusion

[39] The Shephard test has been met, there is evidence upon which a reasonable jury properly instructed, could return a verdict of guilty on the offence with which Stewart-Sperry is charged.

[40] The directed verdict application is dismissed.

A. J. Goodman
Date: May 5, 2025

Released: May 5, 2025