Court File and Parties
Court File No.: CR-24-0118-00
Date: 2025-08-06
Ontario
Superior Court of Justice
B E T W E E N:
HIS MAJESTY THE KING
R. Dietrich and L. Taylor, for the Crown
- and -
Joshua Leblanc
J. Fennel and C. Laperriere, for the Accused
HEARD: April 22, 23, 24, 25, 28, 29, May 2, 2025 at Thunder Bay, Ontario
Regional Senior Justice W. D. Newton
Criminal Decision
Overview
[1] Joshua Leblanc was charged with the second-degree murder of Antoine Bouchard.
[2] Mr. Bouchard was shot and killed on January 23, 2022, in Thunder Bay.
[3] Initially, it was not known who shot and killed Mr. Bouchard. However diligent detective work, including examination of cell phone and cell phone tower records, DNA samples collected at the scene, surveillance camera footage from several sites, social media, and identification through a photo lineup, identified Mr. Leblanc as the shooter.
[4] Mr. Leblanc testified and admitted that he shot Mr. Bouchard. He claims that he acted in self-defence as Mr. Bouchard and others, while armed, were attempting to rob him.
[5] Although over a dozen witnesses testified, the key witnesses were Andrew Post, one of the alleged robbers, Danielle Faulconer-Patkau, his girlfriend, Justin Morrison, another alleged robber, and Joshua Leblanc, the accused.
The Forensic Evidence
The Post-Mortem Examination
[6] Dr. Robyn Ndikumana, a forensic pathologist from the Ontario Forensic Pathology Service, performed the post-mortem examination of Mr. Bouchard's body.
[7] Mr. Bouchard was 6'3" and weighed 212 pounds. He had two gunshot wounds: left upper chest and upper left flank. The gunshot wound to the chest passed through the left lung and heart and was likely to result in death. The wound to the left flank passed through the diaphragm, liver, and spleen, which was likely to result in death in several minutes absent medical intervention. The two bullets were lodged in Mr. Bouchard's body.
[8] Dr. Ndikumana was unable to determine which wound was made first, how close Mr. Bouchard was to the shooter, or the position of Mr. Bouchard's body in relation to the shooter.
Examination of the Bullets
[9] Judy Chin is a forensic scientist with the Centre of Forensic Sciences and was qualified as a firearms expert. She identified the bullets found in Mr. Bouchard's body as 45 calibre, hollow point bullets which expand upon contact with the body.
The Witnesses
Andrew Post
[10] In January 2022, Andrew Post was staying with his girlfriend, Danielle Faulconer-Patkau, in a basement apartment she rented on Bethune Street in Thunder Bay. They were drug users. Mr. Bouchard was a friend of Mr. Post.
[11] The afternoon before the shooting, Mr. Post had contacted a person seeking drugs that he could sell out of the apartment. Instead of receiving drugs, a young man who called himself Ben Hector (an alias for the accused) arrived and came into the apartment to sell drugs. Ben gave Ms. Faulconer-Patkau "house pay" – money and drugs in exchange for using the apartment as a base to sell drugs – and had Mr. Post and Ms. Faulconer-Patkau act as runners for him to seek out customers and get him supplies as needed.
[12] Mr. Post was not pleased with this arrangement. He encountered Mr. Bouchard, Justin Morrison, and Anthony Clemenza in an apartment building on Cumming Street a few blocks away. They told Mr. Post that they were trying to get "out of town" drug dealers out of the neighbourhood. Mr. Post responded that there was an "out of town" drug dealer in Ms. Faulconer-Patkau's apartment that he wanted removed. The four of them then headed to the apartment to remove Ben Hector and take his drugs and his money – "whatever was on him".
[13] Mr. Post admitted that he was prepared to use violence to complete the plan, but he said that he did not think it would come to that as Ben Hector appeared to be a skinny kid and unarmed. He also admitted that he had robbed people to get their drugs before. His criminal record, which is extensive (50 plus convictions), includes convictions for robbery with violence (he pleaded guilty to robbing someone while using a knife and wounding his victim) and assault causing bodily harm. Currently he is in custody facing charges involving the use of a replica handgun and other crimes.
[14] Initially, he testified that they were not armed when they went to rob Mr. Hector, but then said that he did not know whether he had a knife – "I don't think I had a knife". A large knife with an orange handle was in the apartment's bathroom when the police searched a few days after the shooting. He denied that Mr. Bouchard had a firearm or replica firearm with him. Shortly after the shooting, Mr. Post was hospitalised for a drug overdose and was questioned by the police concerning a replica firearm. He admitted that he had one in his possession for a "couple of days" and had shown it to Ms. Faulconer-Patkau.
[15] When they arrived at the apartment, Mr. Post entered first, followed by Mr. Bouchard. Mr. Bouchard wore a balaclava over his face. Mr. Post covered his face with a hoodie. Mr. Morrison and Mr. Clemenza were behind them on the staircase. As Mr. Post and Mr. Bouchard entered the apartment, Mr. Bouchard rushed past Mr. Post.
[16] Mr. Post said that the male in the apartment was masked. As they approached the male in the apartment, Mr. Post veered off into a bedroom as he saw that man reach into his pants. After he heard two gunshots, he assumed the man was reaching for a gun. When he exited the bedroom a short time later, the masked man was gone, and Mr. Bouchard was laying dead at the top of the stairs.
[17] During cross-examination, Mr. Post denied that the masked man said he had a gun, and that he had thrown the drugs at them saying, "take my drugs".
Danielle Faulconer-Patkau
[18] Ms. Faulconer-Patkau was Mr. Post's girlfriend in January 2022 and the tenant of the basement apartment.
[19] She identified the accused, Mr. Leblanc, as the man who identified himself as Ben Hector who came to her apartment to sell drugs in a photo-lineup. She described him as "skinny".
[20] She testified that Mr. Post had left the apartment and then she left to look for him. She ended up taking drugs and falling asleep in the stairwell at the Cumming Street apartment building.
[21] She was awakened there by Mr. Post who told her that something bad had happened. She returned with him to her basement apartment and found Mr. Bouchard dead on the staircase. She was high on fentanyl but remembers Mr. Post moving Mr. Bouchard's body from the staircase to the laundry room.
[22] She testified that after the shooting, Mr. Post had a replica handgun that he had shown her and that he was trying to sell it.
Justin Morrison
[23] Mr. Morrison was in custody when he testified. He admitted that he was "coming off the effects of fentanyl", having taken fentanyl the previous morning.
[24] He testified that he had known Antoine Bouchard for about ten years and was present when Mr. Bouchard died.
[25] He was behind Mr. Bouchard when they entered the apartment. He heard Mr. Bouchard shout but could not make out what was said. He heard gun shots, "a couple", and he turned to leave the apartment. He saw Mr. Bouchard run up the stairs and then fall.
[26] He identified himself and Mr. Bouchard on the surveillance video from Cumming Street, but he did not identify Mr. Clemenza or Mr. Post who were also seen on the video.
[27] He admitted that he has done one "drug rip" before, with Mr. Bouchard, and that "drug rips" involved taking drugs from a drug dealer by force.
[28] He admitted prior convictions for forcible entry to property while masked, break and enter, and several convictions for possessing a firearm while prohibited. He did not remember whether he was masked on this occasion, but he admitted that he was carrying a weapon. He was not questioned as to the type of weapon.
Joshua Leblanc
[29] As noted at the outset, Mr. Leblanc admitted that he shot Mr. Bouchard but testified that he was acting in self-defence.
[30] Mr. Leblanc is 30 years old, and 6' 1". He is from Kingston and came to Thunder Bay to make money selling drugs. He was told that he could make $50,000 in a month or less.
[31] He was driven to Thunder Bay and met two men who gave him a "burner phone", a handgun, and drugs to sell. After about one week, he was driven to Ms. Faulconer-Patkau's apartment to sell drugs. When he arrived, he was let in and then gave Ms. Faulconer-Patkau drugs and cash as "house pay". Mr. Leblanc said that she and Mr. Post seemed "happy" that he was there and willing to find him customers. He sent them out to run errands for him. Both Mr. Post and Ms. Faulconer-Patkau left the apartment. Mr. Post returned and Mr. Leblanc asked him to get juice from a nearby store. About twenty minutes later, he heard a noise and Mr. Leblanc described what happened next as, "there's three men barging into the apartment, masked and with hoods and weapons". He saw one with a "big silver knife" and one with what "looks like a gun in his hand". He could not see what the third man had because he was behind the others.
[32] He saw the man with the gun moving faster than the man with the knife. Mr. Leblanc began to stand up and reach into his waist band for his handgun. As he did so, the man with the knife veered off into the bedroom as the man with the gun continued to come towards him. Mr. Leblanc said that he threw his drugs towards the men, yelling "take the drugs, I have a gun." But, he said that the man with the gun kept coming towards him while "lifting his weapon up at me". Mr. Leblanc said that he panicked, fired his gun but did not know whether he hit the man or not as the man kept coming towards him. When the man was about three feet away, Mr. Leblanc fired again and, this time, he knew that he had hit him as the other man froze, turned, and ran out of the apartment.
[33] Mr. Leblanc grabbed his possessions, including the drugs, and ran out of the apartment past the man who he had shot; the man was slouched against the wall at the top of the stairs and breathing heavily.
[34] Mr. Leblanc testified that he was convinced that the intruders were going to kill him.
[35] He made his way back to where he had first sold drugs and the people there took the gun and arranged transportation for Mr. Leblanc back to Kingston.
The Law
General Principles
[36] The basic tenet of criminal law is that everyone charged with an offence is presumed to be innocent, unless and until the Crown proves his or her guilt beyond a reasonable doubt.
[37] To prove any person's guilt of the offences charged, the Crown must prove each and every essential element of those offences beyond a reasonable doubt.
[38] The phrase, "beyond a reasonable doubt", is a very important part of our criminal justice system. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence.
Assessment of Evidence
Statements of the Accused
[39] As instructed by the Supreme Court of Canada in R. v. W. (D.), if I believe the accused's evidence that he did not commit the offence as charged, I must find him not guilty. If, after careful consideration of all the evidence, I am unable to decide whether to believe the evidence of the accused or the evidence in the Crown's case, I must find the accused not guilty. Even if I do not believe the accused's evidence, if I am left with a reasonable doubt about his guilt, then I must find him not guilty. Even if the accused's evidence does not leave me with a reasonable doubt, I may only convict if the rest of the evidence that I do accept proves his guilt beyond a reasonable doubt.
Self-Defence
[40] Mr. Leblanc is not guilty of second-degree murder if the following three conditions were present at the time of the offence:
Mr. Leblanc believed that force, or the threat of force, was being used against him and Mr. Leblanc's belief was based on reasonable grounds;
Mr. Leblanc committed the act for the purpose of defending or protecting himself from the use, or the threat, of force; and
Mr. Leblanc's act was reasonable in the circumstances.
[41] Section 34(2) of the Criminal Code, R.S.C., 1985, c. C-46, lists factors for me to consider in determining whether the act committed is reasonable in the circumstances:
(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person's role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person's response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
[42] Justice Martin observed the following at paragraph 82 of R. v. Khill:
[…] s. 34(2)(b) considers what alternatives the accused could have pursued instead of the act underlying the offence, such as retreat or less harmful measures, relative to the imminence of the threat. The question of proportionality under s. 34(2)(g) similarly juxtaposes the force threatened and the reaction of the accused. Both of these factors ask the trier of fact to weigh the accused's response once the perceived threat has materialized. In this way, s. 34(2)(c) was intended to serve a distinctive, balancing and residual function as it captures the full scope of actions the accused could have taken before the presentation of the threat that motivated the claim of self‑defence, including reasonable avenues the accused could have taken to avoid bringing about the violent incident.
[43] It is not up to Mr. Leblanc to prove that he acted in self-defence. Rather, it is up to the Crown to prove beyond a reasonable doubt that he did not.
[44] If the Crown proves beyond a reasonable doubt that at least one of these three conditions is absent, the defence of self-defence fails.
Analysis
[45] I am satisfied that Mr. Post, Mr. Bouchard and Mr. Morrison intended to rob Mr. Leblanc and, at a minimum, remove Mr. Leblanc from the apartment with force if necessary. Mr. Post and Mr. Morrison had done this before. Both had done this before while armed.
[46] I recognize that the reliability of the testimony of Mr. Post, Ms. Faulconer-Patkau, and Mr. Morrison is suspect due to their drug use at the time. However, when in conflict with the others, I reject the evidence of Mr. Post.
[47] Mr. Morrison admitted that he was armed. At best, Mr. Post was not sure whether he had a knife. That Mr. Post was in possession of a replica handgun in the period following Mr. Bouchard's death could support an inference that Mr. Bouchard was armed with a replica handgun.
[48] That Mr. Bouchard was aggressively approaching Mr. Leblanc is confirmed by the evidence of Mr. Post.
Self-Defence
[49] I accept Mr. Leblanc's evidence and I am satisfied that Mr. Leblanc believed that force was about to be used against him and that he had reasonable grounds to believe so.
[50] I accept Mr. Leblanc's evidence and I am also satisfied that Mr. Leblanc shot Mr. Bouchard for the purpose of defending himself.
[51] The final question is whether the Crown has proven beyond a reasonable doubt that Mr. Leblanc's actions in shooting Mr. Bouchard twice, at close range, were not reasonable in the circumstances.
[52] I have considered factors listed in section 34(2) and, in particular:
a. the nature of the threat,
b. that it was imminent,
c. that the assailants were armed,
d. the number of assailants,
e. that one of the assailants was larger than the accused,
f. and whether the response was proportional.
[53] Mr. Leblanc was faced with three assailants, two of whom he knew were armed – one with what he believed to be a handgun, and the other a knife. Mr. Bouchard was masked, and Mr. Post had his face covered with a hoodie. The only way out of the apartment was to go past these three men.
[54] The nature of the threat of force was serious and imminent. Mr. Leblanc reasonably believed that he could be killed. He was outnumbered. He did not know the identity of the attackers, only that some were armed and masked.
[55] Whether Mr. Leblanc announced that he had a gun or not, I am satisfied that Mr. Post perceived a threat because he veered off to the side room. Mr. Bouchard did not halt his advance and continued after the first shot.
[56] Although tragic, I find that the response was proportional to the threat.
[57] I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Leblanc's actions were not reasonable in all the circumstances.
[58] Accordingly, I find Mr. Leblanc not guilty of second-degree murder.
The Hon. Mr. Justice W.D. Newton, R.S.J.
Released: August 6, 2025