Court File and Parties
Court File No.: CR-11-17495 Date: 2025-08-07 Ontario Superior Court of Justice
Between: His Majesty the King – and – Byron Spence, Accused
Counsel: Dale Cox, for the Crown Christopher Hicks / Mark Falovo, for the Accused
Heard: February 3, 4, 5, 6, 10, 11, 12, 13, 18, 19, 20, 21, & 27, 2025, at Timmins, by Zoom videoconference
Reasons for Decision - Trial
Cullin J.
Overview
[1] The accused, Byron Spence, ("Mr. Spence") appears before the Court charged with one count of first degree murder pursuant to s. 235(1) of the Criminal Code of Canada, R.S.C., 1985, c. C-46 ("the Criminal Code"). He has elected a trial of this charge by judge alone.
[2] The charge arises from a sudden death which occurred on October 24, 2009 (the "offence"). Mr. Spence and his brother, Jonah Trapper ("Mr. Trapper") were alone at the residence of their mother when Mr. Spence discharged a firearm toward Mr. Trapper and killed him.
[3] At trial, it was undisputed that Mr. Spence caused Mr. Trapper's death by an unlawful act. The central issues were whether Mr. Spence had the capacity and intent to commit murder, and whether his actions were planned and deliberate. Mr. Spence argued that he was not criminally responsible due to a mental disorder (the "NCR defence"). He also argued that he lacked the requisite intent to commit murder, and that his actions were not planned and deliberate.
Procedural History
[4] The procedural history below is based upon a review of the information, the indictment, and the endorsements in Mr. Spence's court file.
[5] Mr. Spence was arrested and charged in the hours immediately after the offence. His matter proceeded to a jury trial in September 2014. Following an appeal conducted in May 2017 his matter was returned to this Court for a retrial.
[6] After the matter was returned for a retrial, a fitness hearing was conducted in January 2019 in which Mr. Spence was found to be unfit to stand trial. Assessments followed, and Mr. Spence was eventually detained at the Ontario Shores Center for Mental Health Sciences ("Ontario Shores") where he has remained almost continuously since August 2019. During his detention at Ontario Shores, Mr. Spence received treatment for his mental disorder. For an extended period, his condition appeared to be refractory to treatment. He eventually responded to ECT and in March 2022, Ontario Shores issued an opinion that he was fit to stand trial.
[7] In September 2022, a jury trial was conducted regarding the issue of Mr. Spence's fitness, and he was found fit to stand trial. A "keep fit" order was issued by the Court, having regard to disposition recommendations made by Mr. Spence's treating physician at Ontario Shores and the Ontario Review Board.
[8] Following the finding of fitness there were numerous pretrial conferences which culminated in Mr. Spence's decision in December 2024 to re-elect from a jury trial to a judge alone trial. This re-election was made with the consent of the Crown. It was subsequently followed by a request from Mr. Spence that he be permitted to attend his trial by videoconference from Ontario Shores so that he could continue to receive weekly ECT treatment; that request was granted with the consent of the Crown. To best accommodate conferencing between Mr. Spence and his counsel throughout the trial, it was ordered that the trial itself be conducted virtually; this mode of appearance was granted at the request of the defence and was not opposed by the Crown.
Conduct of the Trial
[9] Mr. Spence's trial commenced on February 3, 2025. A preliminary s.10(b) Charter application was heard to address the admissibility of statements made by Mr. Spence to the police following the offence. The statements proffered by the Crown were determined to be admissible. The evidence on the Charter application was blended with the trial evidence.
[10] The Crown called the following witnesses: Martin Wallingford, a retired Staff Sergeant with the Timmins Police Service; Matthew Beerman, a former Constable with the Timmins Police Service; Michel Fortin, a former Constable and now Staff Sergeant with the Timmins Police Service; Stephanie Matheson, a former Constable with the Timmins Police Service; Derrick Cremin, a paramedic; Dr. Charis Kepron, a forensic pathologist; and, Guy Bouffard, a former Constable and now Staff Sergeant with the Timmins Police Service. The Crown also called Dr. Mark Pearce, a forensic psychiatrist, in response to a defence application advancing an NCR defence.
[11] The defence called the following witnesses: Greg Spence, Mr. Spence's father; Paula Spence, Mr. Spence's stepmother; and, Lillian Trapper, Mr. Spence's mother. The defence also called Dr. Julian Gojer, a forensic psychiatrist, in support of a defence application advancing an NCR defence. Mr. Spence elected not to testify.
[12] At trial, Mr. Spence's identity and his relationship to Mr. Trapper were admitted. The continuity of exhibits was not disputed. The firearm and ammunition used to commit the offence were not required to be admitted as exhibits and instead photographs were admitted on consent.
[13] Given my ruling regarding the admissibility of Mr. Spence's statements to the police, the defence did not dispute, for the purpose of trial, that Mr. Spence caused Mr. Trapper's death, and that he did so by committing an unlawful act.
Summary of the Facts
[14] For the purpose of my reasons, I will not be providing a recitation of the entirety of the evidence. In this summary, I will provide a narrative of the events leading to the charge before the Court. Thereafter, I will discuss evidence and disputed positions as necessary to address the issues. I would note that I reviewed, considered, and grappled with all evidence admitted at trial. As I considered the evidence, I was mindful of the fact that some of the evidence of lay witnesses, particularly those called on behalf of the defence, included hearsay.
[15] This narrative is primarily based upon Mr. Spence's statements to officers of the Timmins Police Service ("TPS"), given shortly after the offence, which were admitted as evidence.
[16] On October 24, 2009, Mr. Spence was at his mother's residence with his half-brother, Mr. Trapper. Mr. Spence and Mr. Trapper were alone. Mr. Trapper lived at the residence with their mother, Lillian Trapper, who was away. Mr. Spence was on a break from his employment at a remote worksite and was visiting; he had been at the residence for a couple of days. He noted that he had been experiencing cold symptoms which kept him at home and taking cough syrup in the days leading to the offence.
[17] As the evening progressed, Mr. Spence and Mr. Trapper become embroiled in an argument. Mr. Trapper was upset because Mr. Spence was not cleaning up after himself and had left garbage, dirty dishes, and a clogged sink in the kitchen. They argued in the living room on the main floor of the residence. When the argument ended, Mr. Trapper went upstairs. Mr. Spence went to the basement, retrieved a firearm - a shotgun - and went upstairs.
[18] The upstairs consisted of a common area which included a computer station, as well as two bedrooms which adjoined the common area. Mr. Trapper was at the computer station with his back to the bedroom doors. He was playing on the computer and listening to loud music.
[19] Mr. Spence described that he was "mad" at Mr. Trapper when he arrived upstairs. He walked past Mr. Trapper, went into one of the bedrooms, closed the door, removed the firearm from its case, and chambered a bullet. He then opened the door, stepped out of the bedroom, and pulled the trigger of the firearm. The shot struck Mr. Trapper in the back.
[20] Mr. Spence described that, after being shot, Mr. Trapper stood, walked toward the doorway to the upstairs staircase, and fell down the stairs. Mr. Spence did not assist him. Instead, he gathered his bags, the firearm and ammunition, and a set of vehicle keys. He went to the computer and typed a message of apology. He then left the residence and drove to the nearby residence of his aunt and uncle. He told them what had happened, and they promptly called emergency services.
[21] It was Mr. Spence's recollection that approximately 30 to 45 minutes elapsed from when he argued with his brother to when he arrived at the residence of his aunt and uncle.
[22] At the time of the offence, Mr. Spence was a few days away from his 25th birthday. Mr. Trapper was 18 years of age.
[23] When emergency services arrived at the Trapper residence, they found Mr. Trapper deceased. He was at the bottom of the staircase as described by Mr. Spence. It was the evidence of Dr. Kepron, who conducted the post-mortem examination, that Mr. Trapper likely died within 10 to 15 seconds of being shot.
[24] Upon arrest, Mr. Spence was described by the attending officers as subdued and quiet. Nothing unusual was noted about his physical appearance or his responses. He demonstrated no signs of drug or alcohol intoxication.
Summary of the Evidence Regarding Mr. Spence's Mental Disorder
[25] Evidence regarding Mr. Spence's mental status at the time of the offence was led by the defence through his parents, Greg Spence, Paula Spence, and Lillian Trapper. The defence called psychiatric expert evidence from Dr. Julian Gojer. The Crown called psychiatric expert evidence in reply from Dr. Mark Pearce. Mr. Spence's interactions with TPS officers and his first videotaped statement to Constable Fortin of the TPS on October 25, 2009 (the "TPS interview") were also sources of evidence about his mental health at the time of the offence.
Greg Spence
[26] Greg Spence is Mr. Spence's biological father. When he was 7 years of age, Mr. Spence began to live with his father and his step-mother, Paula Spence. Except for brief period when he was in Grade 11, Mr. Spence lived with them until he was approximately 18 years of age. He returned very briefly when he was approximately 20 years of age. They lived in Moose Factory, a reserve on the James Bay coast.
[27] Greg Spence described his son as a "good kid" who was considerate and kind as a child. Mr. Spence completed elementary school in Moose Factory and attended high school to Grade 10.
[28] When Mr. Spence was 17 or 18 years of age, his father began to observe odd behaviour. Although there were times that he appeared "normal", there were instances when his father observed him smiling, talking to himself, and pacing at night. There were also episodes of aggressive behaviour in which Mr. Spence damaged property and physically lashed out. On one occasion, Greg Spence called the local police service to remove his son from the family home.
[29] When Greg Spence began to observe his son's odd behaviour, he was concerned that his son may be displaying symptoms of schizophrenia. Their family had a history of schizophrenia, including Greg Spence's two nephews, who were approximately the same age as his son. Greg Spence took his son to the local hospital to be assessed however, with no mental health facilities and limited resources it was of little assistance. Mr. Spence was prescribed some form of medication which he took briefly and then discontinued. Greg Spence was unable to recall what the medication was intended to treat. He did recall some discussion about a bipolar disorder.
[30] When Mr. Spence was approximately 18 years of age, he moved to Ottawa. Greg Spence heard from his son occasionally during that time. Mr. Spence would speak to him about "incredible", non-sensical things, such as his involvement with motorcycle gangs, and he referred to himself as "Maurice", a motorcycle gang member who was on trial. This caused him to be concerned about his son's state of mind. He did not recall seeking assistance for his son's mental health at that time.
[31] It was Greg Spence's understanding that, after a brief return to Moose Factory in his early 20's, his son moved to Timmins to live with his mother, Lillian Trapper. He did not have a lot of information about his son's condition during that time, as they were not in regular contact. He was aware that his son was employed for some time at the Detour Lake Mine.
[32] Greg Spence did recall an incident in April 2008 when the family returned to Moose Factory following the death of his sister. They were hunting and were sleeping in tents. He heard his son pacing outside, and saying, "I'm not listening to you". He was not able to say whether his son was speaking to anyone, as he could not see him, and he did not ask him about it. Once again, he was concerned about schizophrenia but did not seek any interventions for his son at that time due to a lack of support and resources.
[33] Greg Spence did not have contact with his son in the months leading to Mr. Trapper's death. He was stunned when he heard about the offence from his brother in Timmins. He saw his son at the Monteith Correctional Complex afterward and described him as, "pretty reserved". He did not note anything unusual about his presentation but recalled that he did not speak very much.
[34] On cross-examination, Greg Spence confirmed that he gave his son the firearm that was used in the offence. He gave it to him approximately three years prior, as a gift. He did not turn his mind to any mental health issues when his gave his son the firearm. He confirmed that he and his son hunted together using the firearm, and that his son was familiar with the firearm.
Paula Spence
[35] Paula Spence is Mr. Spence's stepmother. In her evidence, she substantially confirmed the biographical details of Mr. Spence's childhood described by his father.
[36] Paula Spence described that Mr. Spence "fit right in" when he moved to Moose Factory. There were some minor challenges that were resolved with family counselling. As a young teen, he was involved in some mischief and vandalism with his friends, but overall was not in trouble.
[37] When he was 17 or 18 years of age, Mr. Spence began to experiment with alcohol and drugs. Mr. Spence's drinking would lead to altercations with his father. At times, Mr. Spence became problematic and started to push, shove, and hit his father. On one occasion, they called the police, who took him until he was sober.
[38] During the same time, Paula Spence began to observe strange behaviour by Mr. Spence. She had to encourage him to shower, as he would often go for a few days without one. Although she would not describe Mr. Spence as violent, there were occasions when she heard him punching things and would thereafter observe holes in the wall in his bedroom.
[39] Insomnia and back pain often kept Paula Spence awake at night. She would observe that Mr. Spence was also awake. He would pace and look out the window. Although he was alone, she would hear him laughing and mumbling. He observed him rubbing his belly, an anxious habit.
[40] Paula Spence echoed the delusional behaviour identified by her husband. She observed Mr. Spence say that he had been in Montreal and that his parents were in a bike gang. He said that he had been with "Maurice", a bike gang leader. He would become upset when his family attempted to correct him.
[41] Paula Spence and her husband attempted to find assistance for Mr. Spence. Like her husband, she was concerned about schizophrenia because their nephews had been diagnosed with it. She recalled contacting a "step-down" program to ask about how they could have Mr. Spence committed or access services to have him diagnosed. She observed that services were limited, and counselling appointments were difficult to schedule.
[42] Another challenge was Mr. Spence's failure to recognize his difficulties. He told his parents that there was nothing wrong with him and that he did not need treatment. His parents did not argue with him, because it would only make him agitated. It was Paula Spence's understanding that, because Mr. Spence was an adult, there was not a lot that could be done, "unless he does something drastic or something serious".
[43] Mr. Spence did not constantly demonstrate signs of mental illness. Paula Spence noted that there were times when he seemed "okay". She would see "glimpses" of him sitting at supper or watching a movie – the person she knew and recognized would present himself. It was her recollection that Mr. Spence was able to hold a job at the Detour Lake Mine for at least 2 years before the offence.
[44] In the days after the offence, Paula Spence and her husband saw Mr. Spence at the Monteith Correctional Complex. There were many silent moments during the visit. Mr. Spence rocked in his seat and hugged himself. His shoulders were slumped.
[45] On cross-examination, Paula Spence confirmed that Mr. Spence was a skilled hunter. She confirmed that she and her husband gave Mr. Spence the firearm that was used in the offence.
[46] I will note here that Paula Spence recalled that, during their visit at Monteith shortly after the offence, Mr. Spence said something to the effect that someone else was with him at the time of the offence, but he did not say who. I noted this, as it was different than the account of Greg Spence, who mentioned nothing about this statement. In later reconciling this evidence, I preferred the account of Greg Spence over that of Paula Spence. While Paula Spence's recollections were often informed by second and third party hearsay, the evidence of Greg Spence focused on his own recollections. I was not confident that Paula Spence's evidence on this point was an accurate reflection of what had occurred, or whether it was influenced by Mr. Spence's later accounts of the offence to others.
Lillian Trapper
[47] Lillian Trapper is Mr. Spence's biological mother. In her evidence, she substantially confirmed the biographical details of her son's childhood described by his father and stepmother. She acknowledged that her mental "filing system" was "scrambled" because of events that had occurred in her life, and that she may be confused about some timelines. To the extent that events were documented, she did not dispute the documentation.
[48] Lillian Trapper described her son as a child with a "normal, fun" personality. He went to live with his father at age 7 not because of any difficulties with him, but because she was attending university with three small children and needed assistance. His father agreed to assist by taking him; she would see him during the summer months.
[49] When Lillian Trapper completed her university program, she returned to her home community of Moose Factory for employment. Her son was still living with his father, but he would visit her. By that time, he had discovered alcohol and would occasionally attend at her home intoxicated; she would put him to bed or send him back to his father's home. He was often angry when he was intoxicated.
[50] Eventually, Lillian Trapper returned to Ottawa with her younger children to pursue an employment opportunity. Her son followed her. He lived with her briefly, but she eventually asked him to leave "because of his lifestyle". She returned to Timmins in 2007 to pursue an employment opportunity. Her son remained in Ottawa, where he spent some time unhoused.
[51] In 2007, Lillian Trapper asked her son to come to Timmins to participate in a traditional hunting gathering. When they were driving home, she observed him smiling and "looking off". She asked him what he was smiling about, and he said, "nothing". When they arrived at her home, she noticed that he was still smiling and that "his eyes were different". As they were unpacking their bags, she noticed a crowbar in his bag. He said it was "for his protection because they were being investigated". Concerned, she took him to the Timmins and District Hospital. He was admitted for an assessment. She was not privy to what he discussed with his healthcare providers or his diagnosis. When he was discharged after about 3 days, he had prescribed medication that he did not want to take.
[52] Lillian Trapper felt afraid and uneasy about her son's behaviour. She felt that it was not normal, and that he was sick. She did not understand what he was experiencing, and she was worried about him.
[53] Lillian Trapper and her family experienced several traumatic events in 2009. Two family members committed suicide and her father, to whom her son was close, died suddenly at his camp. Mr. Spence was present when his grandfather died. Lillian Trapper was unable to speak to the impact of those events on her son but felt that they were difficult times.
[54] On cross-examination, Lillian Trapper acknowledged that her son's symptoms seemed to be less at the time of the offence than they had been in the past. She attributed it to the fact that he was taking medication; she did not elaborate about what medication he was taking.
Dr. Julian Gojer
[55] Dr. Gojer was qualified as an expert in forensic psychiatry, permitted to testify regarding the mental status of Mr. Spence as it pertained to the NCR defence and the issue of intent.
[56] Dr. Gojer prepared a report, dated July 27, 2018. He conducted clinical interviews with Mr. Spence to prepare his report and reviewed his records from the Collins Bay Correctional Institution. A psychological assessment was also conducted by Dr. Milan Pomichalek, which included an interview with Greg Spence and psychological testing of Mr. Spence; Dr. Gojer adopted the results of Dr. Pomichalek's assessment for the purpose of his evidence.
[57] Dr. Gojer acknowledged during cross-examination that his report was prepared as a preliminary report. He noted that he did have an opportunity to review Dr. Pearce's report prior to testifying. He acknowledged that the information he received from Collins Bay was prepared at least 6½ years after the offence. He had no first-hand knowledge of Mr. Spence's presentation at and around the time of the offence. He did not review the TPS interview; he did review the defence appeal factum summarizing portions of it.
[58] Dr. Gojer's report was focused on the issue of the NCR defence, and he acknowledged in cross-examination that, at the time of preparing it, he was not asked to consider or opine on the issue of intent. Nonetheless, he proffered some evidence at trial on the issue of intent.
[59] It was Dr. Gojer's opinion that Mr. Spence was subject to a mental disorder, schizophrenia, at the time of the offence. It was his opinion that, due to his "clouded" mental state, Mr. Spence was not able to appreciate that what he was doing was morally right or wrong.
[60] With respect to the issue of intent, it was Dr. Gojer's opinion that Mr. Spence's capacity to form intent at the time of the offence would have been significantly compromised by his mental disorder. It was his opinion that Mr. Spence acted impulsively, and he attributed this to his "clouded" mental state. It was his opinion that Mr. Spence was unlikely to have foreseen the consequences of his actions.
[61] Mr. Spence's description of the offence to Dr. Gojer differed significantly from the TPS interview. He acknowledged that there was an argument about keeping the house clean. He also, however, alleged: that his brother was plotting to kill him and had in fact attempted to kill him by shooting at him; and, that there was a gel-like robot in the room at the time of the offence.
[62] Dr. Gojer noted that Mr. Spence, both by his own report and that of his father, suffered from a long-standing mental illness that had been present since he was approximately 15 years of age. He was reported to suffer from delusions in the past. His delusions included paranoid delusions and delusions of grandeur. There were inconsistent reports of hallucinations. It was Dr. Gojer's opinion that Mr. Spence's symptoms were consistent with a psychotic illness. It was the opinion of both Dr. Gojer and Dr. Pomichalek that Mr. Spence was suffering from schizophrenia at the time of the assessment and at the time of the offence.
[63] Dr. Gojer noted that Mr. Spence's family history of schizophrenia as well as the onset of symptoms in his mid to late adolescence, added weight to the diagnosis. It was his opinion that the combination of Mr. Spence's early onset of symptoms and the flat affect that he observed during his interviews with him were indicative of a more malignant condition with a poor prognosis that may or may not respond to medication.
[64] Dr. Gojer acknowledged that schizophrenia was a condition which may "wax and wane" over time. He testified that one would have to consider Mr. Spence's individual presentation and the persistence of his symptoms to assess whether that was true of his condition.
[65] In arriving at his opinion that Mr. Spence was suffering from schizophrenia at the time of the offence, Dr. Gojer noted that Mr. Spence had never received any focused treatment prior to the offence. He was not taking medication. He had received no specific treatment that would have altered the course of his schizophrenia prior to the offence.
[66] Dr. Gojer acknowledged that Mr. Spence's presentation to the TPS appeared to be different than his presentation during his later assessments. He noted, however, that Mr. Spence alluded to his mental health during the TPS interview, and that the issue was not explored by Cst. Fortin. He also noted that Mr. Spence reported to Paula Spence within days after the offence that someone else was in the room, which was consistent with what he later reported during his psychiatric and psychological assessments. The source of that information was not apparent to me as neither Dr. Gojer nor Dr. Pomichalek interviewed Paula Spence.
[67] On cross-examination, Dr. Gojer agreed that, at the time of the offence, no observations were made of any overly psychotic behaviour by Mr. Spence, although he noted that he appeared to be confused, which may speak to his mental state. He also acknowledged that Mr. Spence appeared to have some understanding that what he had done was legally wrong, although he did not concede an understanding that it was morally wrong.
Dr. Mark Pearce
[68] Dr. Pearce was qualified as an expert in forensic psychiatry, permitted to testify regarding the mental status of Mr. Spence as it pertained to the NCR defence and the issue of intent.
[69] Dr. Pearce prepared a report, dated October 4, 2019. He was assisted in preparing the report by Dr. Laeticia Eid, a forensic psychiatry fellow. The report was prepared as an independent assessment; following completion, Dr. Pearce became Mr. Spence's treating psychiatrist. On cross-examination, Dr. Pearce denied any conflict of interest in preparing the report.
[70] The sources of information for Dr. Pearce's report included clinical interviews with Mr. Spence, as well as multi-disciplinary assessments and interventions by staff on the Forensic Assessment Unit where Mr. Spence was housed. Lillian Trapper and Greg Spence were interviewed. A social work assessment was conducted by Ms. Diana Davidson. Psychological testing of Mr. Spence was conducted by Dr. Andrea Gibas and Cheryl Young. Dr. Pearce also reviewed: a complete copy of Mr. Spence's correctional records; medical records from the Timmins and District Hospital, the Ottawa Hospital, and the North Bay Regional Health Center; and, a complete copy of the Crown brief, including audio, video, photos, witness interviews, and police interviews with Mr. Spence. Dr. Pearce also reviewed the decision of the Ontario Court of Appeal in Mr. Spence's matter.
[71] Dr. Pearce's report was focused on the NCR defence. At trial, he expressed that the issue of intent was to be determined by the trier of fact. It was his view that there was no clear evidence from Mr. Spence's interactions with the TPS immediately after the offence (for example, blatantly disorganized thought) that could form the basis of a firm opinion that he was prepared to provide to the Court on the issue of intent.
[72] Dr. Pearce noted that it was challenging to prepare a report about Mr. Spence as his assessment was taking place a significant period of time after the offence. He observed that a lot had happened to Mr. Spence since the offence. Diagnostically, present-day assessments could only address the current situation.
[73] Dr. Pearce described that, at the time of the assessment, Mr. Spence was psychotic. He observed that Mr. Spence suffers from a treatment resistant form of schizophrenia and that he has remained psychotic throughout much of his time at Ontario Shores. That degree of schizophrenia is only seen in 3 to 4 percent of the schizophrenic population.
[74] The first reference to a psychotic condition in Mr. Spence's medical records that Dr. Pearce identified related to an admission to the Timmins and District Hospital from September 17 to 20, 2012, after the offence. Dr. Pearce noted that a long period of time elapsed between the offence and when it was recognized that Mr. Spence required intervention. It was Dr. Pearce's opinion that the onset of Mr. Spence's present degree of schizophrenia likely occurred in the "late 2010's".
[75] Dr. Pearce noted that, for the purpose of forming his opinion regarding the NCR defence, he was unable to rely upon the information provided by Mr. Spence during his assessment because much of it was unsupported by the physical evidence of the offence. For example, Mr. Spence reported that Mr. Trapper had attempted to shoot him through the floor; there was no evidence to support that allegation. Instead, Dr. Pearce relied upon the evidence of collateral sources, including family members, medical records, and the police investigation file.
[76] With respect to Mr. Spence's later suggestion that another person was in the room at the time of the offence, Dr. Pearce testified that it was, "hard to know what to make of that". He noted that it could be a product of Mr. Spence's psychosis, but it could also be an effort by Mr. Spence to shift the blame for the offence. It did not alter Dr. Pearce's opinion regarding the NCR defence.
[77] Dr. Pearce was not aware of, and did not review, Dr. Gojer's report prior to preparing his own. He did review the report shortly prior to trial.
[78] Dr. Pearce agreed with Dr. Gojer that Mr. Spence was suffering from a mental disorder prior to the offence but testified that the issue was one of degree. It was Dr. Pearce's opinion that there was insufficient evidence to support a finding that, at the time of the offence, Mr. Spence was suffering from a mental disorder that rendered him unable to appreciate that what he was doing was right or wrong. He noted that, while Mr. Spence presented as "a bit odd" and "a bit confused" at the time of the offence, he did not present as "terribly unwell" during the TPS interview. To the contrary, Mr. Spence acknowledged that he knew what he had done and that it was wrong.
[79] Dr. Pearce also agreed with Dr. Gojer's observation that schizophrenia is a condition that waxes and wanes. Delusions are a feature of schizophrenia but are not necessarily always present. He noted that the condition can be aggravated by substance abuse and stress. He observed that, while it was not impossible, it would be atypical for someone to be psychotic enough to be NCR while also working full-time. He also observed that the more severe a person's schizophrenia is, the more noticeable it is. Dr. Pearce acknowledged that it was possible that Mr. Spence was psychotic at the time of the offence, however it was his opinion that it was unlikely.
Issues and Decision-Making Framework
[80] In determining this case, I am asked to consider three issues:
a. Was Mr. Spence not criminally responsible for Mr. Trapper's death due to a mental disorder?
b. If Mr. Spence was criminally responsible, did he have the requisite intent for murder?
c. If Mr. Spence had the requisite intent for murder, was that murder planned and deliberate?
[81] In R. v. Allard, at p.235, the Court proposed the following approach to these questions, which I will apply in this case:
On a charge of first degree murder, where there is evidence for the jury to consider on the issue of insanity, the jury ought first to decide whether that defence has been made out. If it has, the jury must acquit the accused.
If the defence of insanity fails, the jury must consider all of the evidence, including any evidence tendered with respect to insanity, in order to decide whether the requisite intent for murder has been proven beyond a reasonable doubt. If not, the accused may be convicted of manslaughter, but must be acquitted of murder. [emphasis in original]
If the intent to murder has been established, the jury must then decide whether the murder was planned and deliberate. With respect to each of these elements, the jury must reconsider, separately, all of the relevant evidence, including any evidence as to the mental state or condition of the accused at the time when the offence was committed. Only if the jury is then satisfied that the murder was planned and deliberate may it convict the accused of first degree murder.
[82] As noted in Allard, evidence regarding an accused's potential mental disorder is not considered only within the confines of the NCR defence. Even if the NCR defence does not succeed, such evidence must also be considered in determining the issue of requisite intent, as well as the issue of planning and deliberation: R. v. Jacquard, [1997] 1 SCR 314; R. v. Baltzer, at p.141; R. v. Hilton, at p.208; R. v. Bailey, at para. 18.
Discussion of the Issues
Issue One: Was Mr. Spence not criminally responsible for Mr. Trapper's death due to a mental disorder?
The Law
[83] The NCR defence is established in s. 16 of the Criminal Code, which provides:
16(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.
[84] The underlying rationale of s. 16 of the Criminal Code is the principle that a person who suffers from a mental disorder which renders them incapable of making rational or autonomous choices should not be held criminally responsible: R. v. Chaulk, [1990] 3 SCR 1303, at p.1354.
[85] The NCR defence is established through a two-pronged test, which must be satisfied on a balance of probabilities.
[86] The first prong of the test examines whether the accused was suffering from a mental disorder at the time of the alleged offence. "Mental disorder" is a legal concept, not a medical one. It has been broadly defined to include, "any illness, disorder or abnormal condition which impairs the human mind and its functioning excluding…self-induced states": Cooper v. R., [1980] 1 SCR 1149, at p. 1159 ("Cooper 1979"); R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] 3 SCR 575, at paras. 59-60.
[87] The second prong of the test examines whether the mental disorder rendered the accused: (a) incapable of judging the nature and quality of their acts or, (b) incapable of knowing that their acts were wrong: R. v. Oommen, [1994] 2 SCR 507; R. v. Borsch, 2007 MBCA 111, at para. 74.
[88] In determining whether an accused was "incapable of appreciating the nature and quality of the act or omission" the Supreme Court in Cooper 1979, at p. 1162 adopted the following test:
The test proposed in the McRuer Report, which I would adopt, (save for deletion of the word "fully" in the fourth line) is this:
The true test necessarily is, was the accused person at the very time of the offence—not before or after, but at the moment of the offence—by reason of disease of the mind, unable fully to appreciate not only the nature of the act but the natural consequences that would flow from it? In other words was the accused person, by reason of disease of the mind, deprived of the mental capacity to foresee and measure the consequences of the act? (at p. 13)
The legally relevant time is the time when the act was committed.
[89] The Supreme Court subsequently considered, in Oommen, the test to be applied in determining whether an accused was "incapable of knowing that [their act] was wrong". The Court observed, at p. 518: "The crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not." The Court defined "wrong" as "wrong having regard to the everyday standards of the ordinary person": Oommen, at p. 520. In R. v. Ratti, [1991] 1 SCR 68, at p.78, the Court further clarified that "wrong" meant "morally wrong" and not "legally wrong".
[90] Expert evidence with respect to an NCR defence is not strictly necessary: R. v. Quenneville, 2010 ONCA 223, at para 28. Where expert evidence is called, it is not determinative of either prong of the NCR test. Whether a condition is a mental disorder is an issue of law, to be determined by the trial judge. Whether an accused was subject to a recognized mental disorder is an issue of fact, to be determined by the trier of fact: R. v. Bouchard-Lebrun, at para. 61.
[91] The legal framework for considering expert evidence in the context of an NCR defence was discussed in R. v. Abbey, [1982] 2 S.C.R. 24 and summarized in R. v. Lavallee, [1990] 1 S.C.R. 852, at p. 893:
An expert opinion is admissible if relevant, even if it is based on second-hand evidence.
This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.
Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.
Before any weight can be attributed to an expert's opinion, the facts upon which the opinion is based must be found to exist.
[92] Evidence of after-the-fact conduct by an accused may also be relevant when assessing an NCR defence. Such conduct may speak to an accused's capacity to appreciate the wrongfulness of their conduct, although such evidence must be considered in the context of all other evidence in the case, and alternative explanations for the accused's behaviour must not be overlooked: R. v. Worrie, 2022 ONCA 471, at para. 142; R. v. Pereira, 2025 ONCA 545, at para. 33.
Analysis
[93] On the evidence before me, I am satisfied on a balance of probabilities that Mr. Spence was suffering from a mental disorder at the time of the offence. I am not satisfied on a balance of probabilities that Mr. Spence's mental disorder rendered him incapable of appreciating the nature and quality of his act or of knowing that his act was wrong.
[94] There is abundant evidence that Mr. Spence suffered from a mental disorder that pre-dated the offence. It was not simply the case that Mr. Spence exhibited troubling behaviour when he consumed alcohol – his difficulties went beyond substance abuse.
[95] I believed the evidence of Mr. Spence's parents – his mother, father, and stepmother - when they spoke about his episodes of odd smiles, talking to himself, and pacing. I believed them when they said that, at times, his behaviour made them worried for him and frightened for themselves. I also believed them when they said that they tried to seek help for him and were discouraged when they encountered an absence of resources, and roadblocks to accessing care for their adult child who was reluctant to take his prescribed medications.
[96] On the evidence before me, I am satisfied on a balance of probabilities that Mr. Spence began to exhibit symptoms of schizophrenia as a teen, that his symptoms waxed and waned over time, and that by the mid to late 2010's, after the offence, he had developed an advanced form of treatment resistant schizophrenia which is presently only managed with weekly ECT. I am satisfied that Mr. Spence received no meaningful, sustained treatment for his schizophrenia prior to the offence, and that this makes it unlikely that it was completely absent at the time of the offence.
[97] Mr. Spence had two unusual exchanges with Cst. Fortin during the TPS interview:
Cst. Fortin: You don't eh? Okay ... so were you on the computer at all with uh with Jonah?
Byron SPENCE: No ...
Cst. Fortin: No?
Byron SPENCE: But I did open uh ... uh ... United Nations website ...
Cst. Fortin: Okay .... What was that about?
Byron SPENCE: And I ... and on the email I typed, sorry, I'm very sorry, that was it ...
Cst. Fortin: You typed that on the email?
Byron SPENCE: Yeah.
Cst. Fortin: To who?
Byron SPENCE: To no one ... I left the computer on ...
Cst. Fortin: Oh you left the computer on, you typed I'm sorry, I'm very sorry?
Byron SPENCE: Yeah on my email ...
Cst. Fortin: Okay ... and you just left it on?
Byron SPENCE: Yeah
Cst. Fortin: Okay so you did that after ... you shot him I guess?
Byron SPENCE: After yeah ...
Cst. Fortin: Okay ... When, when this all happened ... did you have a clear mind when this happened? Like were you thinking clearly and ... ?
Byron SPENCE: No ...
Cst. Fortin: No?
Byron SPENCE: I had ... I've been shot up in the dark I was telling you know ...
Cst. Fortin: Okay ...
Byron SPENCE: Kathy and she .... both of them kinda agree .... uh ... counselling help me a bit .. you, you guys ... (unintelligible) to go to put myself in the hospital for depression ...
Cst. Fortin: Umhmm ...
Byron SPENCE: And I have gone through counselling over the past uh years ... even over ten years before ...
Cst. Fortin: Okay ... and, and tonight though ....
Byron SPENCE: And that uh ... it just, it just hasn't done anything ...
[98] In isolation, Mr. Spence's references to opening "the United Nations website" in the moments following the offence, and to being "shot up in the dark" point to the presence of some disordered thinking in and around the time of the offence and the TPS interview.
[99] Considered in the broader context of Mr. Spence's conduct and statements to the police in and around the time of the offence, however, I find that these statements are not sufficient to support a finding that Mr. Spence's "symptom burden" (a term used by Dr. Pearce) was anything more than minor at the time of the offence. On this point, I accepted and concurred with the opinion of Dr. Pearce, who described Mr. Spence's overall presentation following the offence as "organized". Dr. Pearce's opinion on this issue was the result of a more fulsome assessment of the available evidence than Dr. Gojer's opinion, and I preferred it.
[100] I am satisfied on a balance of probabilities that, at the time of the offence, Mr. Spence's symptoms arising from his mental disorder were relatively minor.
[101] In addition to the opinion evidence, I noted that Mr. Spence's mental disorder did not appear to be interfering with his activities of daily living in and around the time of the offence. Mr. Spence was maintaining regular employment at Detour Lake mine, a remote mine site. Lillian Trapper, who had some regular contact with Mr. Spence leading up to the offence, observed that he appeared to be doing well. While Paula Spence suggested that there may have been some issues at his workplace at Detour Lake Mine, her evidence on that issue was hearsay and not sufficiently particularized that I could give any weight to it.
[102] The best evidence of Mr. Spence's mental health at the time of the offence came from the TPS interview, which occurred in the hours following the offence. The TPS interview revealed an individual who was oriented to time and place, who was coherent, and most importantly who made no reference to the significant delusional thinking that was present at the time of his later assessments with Dr. Gojer and Dr. Pearce. In my view, Mr. Spence did not present as significantly confused in the TPS interview.
[103] I am satisfied of a balance of probabilities that, at the time of the offence, Mr. Spence was capable of judging the nature and quality of his acts and was capable of knowing that his acts were not only legally wrong, but morally wrong as well.
[104] One of Mr. Spence's first actions following the offence was to apologize. He typed "I'm Sorry, Very Sorry" on the computer his brother had been using. When he left his house, he immediately went to his aunt and uncle's residence, where he confessed and requested that they call an ambulance for his brother. He left his vehicle running in their driveway when he ran into their house, suggesting that he recognized that there was some urgency to the situation. In my view, this signals an awareness that he had just done something very serious and very wrong.
[105] Mr. Spence also made several statements during the TPS interview that demonstrated an understanding of the gravity of his acts. These statements included the following:
Byron SPENCE: Then I went downstairs ... I thought about running but then I, I left my, my bags there ... I grabbed the gun, the shotgun ... jumped in and sped over to Alex's house ... and I told him what I did ...
Cst. Fortin: Okay ... did you check to see if he was okay at all?
Byron SPENCE: He was there bleeding ... I couldn't look at him.
Cst. Fortin: You couldn't look at him?
Byron SPENCE: I couldn't look at him for ... for the first bit ...
Cst. Fortin: How ... how come?
Byron SPENCE: Because he was still alive ...
Cst. Fortin: He was still alive?
Byron SPENCE: Yeah ...
Cst. Fortin: How long was he alive for?
Byron SPENCE: I have no idea; I didn't watch him die man ...
Cst. Fortin: Eh?
Byron SPENCE: I didn't wanna watch him die ... I just left ...
Cst. Fortin: You just left ...
Byron SPENCE: I, I rushed there after that happened ...
Cst. Fortin: Do you know what you did is wrong?
Byron SPENCE: Yes I do ... that's why I went to my uncle's house to say hey, I shot Jonah ...
Cst. Fortin: Okay ...
Byron SPENCE: He might be dead ....
Cst. Fortin: Uh ... so I'm, I'm assuming it's probably a pump action?
Byron SPENCE: Yes ....
Cst. Fortin: Okay ... um ... so you obviously pumped it at some point ... Why, why did you pump it after you shot him?
Byron SPENCE: I have no idea ...
Cst. Fortin: You don't know?
Byron SPENCE: No
Cst. Fortin: Were you thinking about shooting him a second time or?
Byron SPENCE: No ...
Cst. Fortin: No?
Byron SPENCE: Fuck no ...
[106] I recognize that, in the TPS interview, Mr. Spence alluded to past struggles with his mental health. He advised Cst. Fortin that he had previously received counselling and that he had been hospitalized for "depression". He also noted that, "sometimes I talk to myself because I can't be heard…I can't be heard…just those things that I have been…that I talk about with my own personal issues…"
[107] I did not view these statements as evidence that Mr. Spence had committed the offence while in the throes of an acute mental health crisis. Mr. Spence offered other explanations of his actions as well – that the firearm was supposed to be at his father's residence in Moose Factory, and that he had only intended to shoot the computer and not his brother. Collectively, I viewed these statements as the reflections of someone who was attempting to rationalize the fact that he had just shot his brother over a fight about dirty dishes.
[108] On the evidence before me, Mr. Spence has not satisfied me on the balance of probabilities that he is not criminally responsible for Mr. Trapper's death due to a mental disorder.
Issue Two: If Mr. Spence was criminally responsible, did he have the requisite intent for murder?
The Law
[109] The relevant Criminal Code provisions establishing the elements of the offence of murder are found in the following sections:
222(1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.
222(5) A person commits culpable homicide when he causes the death of a human being,
(a) by means of an unlawful act;
229 Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) if a person, for an unlawful object, does anything that they know is likely to cause death, and by doing so causes the death of a human being, even if they desire to effect their object without causing death or bodily harm to any human being.
[110] Section 229(a)(i) provides that culpable homicide is murder where the accused meant to cause the death. This requires that there be: (a) subjective foresight of the likelihood of causing death, and (b) subjective intent to cause death: R. v. Vaillancourt, [1987] 2 SCR 636, at p.645.
[111] Section 229(a)(ii) provides that culpable homicide is murder where the accused meant to cause bodily harm that they knew was likely to cause death and was reckless as to whether death ensued. This requires that there be: (a) subjective intent to cause bodily harm, and (b) subjective knowledge that the bodily harm is such that it is likely to result in death: R. v. Cooper, [1993] 1 SCR 146, at pp.155-156 ("Cooper 1993").
[112] The meaning of the term "recklessness" was discussed by the Supreme Court in Cooper 1993, at p.155:
The concept of recklessness was considered by this Court in Sansregret v. The Queen, [1985] 1 S.C.R. 570. At page 582 it was said
[Recklessness] is found in the attitude of one who, aware that there is danger that his conduct could bring about the result prohibited by the criminal law, nevertheless persists, despite the risk. It is, in other words, the conduct of one who sees the risk and who takes the chance.
The same words can apply to s. 212(a)(ii) with this important addition: it is not sufficient that the accused foresee simply a danger of death, the accused must foresee a likelihood of death flowing from the bodily harm that he is occasioning the victim.
[113] It is not necessary that requisite intent be simultaneous to the act that causes death, or that it be present throughout the unlawful act or series of acts that causes death. Rather, the two must coincide at some point during the "transaction" that results in death: Cooper 1993, at pp. 156-158.
[114] In some cases, the issue of intent may be resolved by drawing a common sense inference that people intend and understand the natural and probable consequences of their actions. Caution must be exercised, however, to consider all evidence that may impact the accused's capacity to form requisite intent: R. v. Seymour, [1996] 2 SCR 252, at paras. 19-21. Evidence that falls short of establishing an NCR defence, for example, may still raise doubt about whether there was a capacity to form intent: Allard, at p. 235; R. v. Chen, 2019 ONSC 3088, at paras. 12-14.
Analysis
[115] On the evidence before me, I am satisfied beyond a reasonable doubt that Mr. Spence had the requisite intent for murder at the time of the offence. Specifically, I am satisfied that Mr. Spence meant to cause bodily harm to Mr. Trapper that he knew was likely to cause his death, and that he was reckless as to whether death ensued.
[116] It is, of course, impossible to know exactly what Mr. Spence was thinking at the moment of the offence, however his conduct and his description of the event to the police in the hours afterward assist the Court in its task of assessing his intent.
[117] In my view, Mr. Spence's first summary of the event, made during the TPS interview, was the most telling:
Byron SPENCE: Thursday ... Thursday eh, got home and I stayed there ever since ... Stayed in Friday night. I didn't bother going out after (unintelligible) so I, I stayed I was sick .... I didn't bother going anywhere. It was uh ... I don't know ... the way Jonah acts sometimes it's just totally ignorant ... and ... I just figure sometimes you know ....
Cst. Fortin: Umhmm ... you'll have to speak up a bit I can barely hear you sorry ....
Byron SPENCE: (Unintelligible) I don't know ... it just Jonah ...
Cst. Fortin: Okay.
Byron SPENCE: And uh ... For me the past has been pretty bad ... I've been to counselling before ... they checked in the hospital for depression and uh I guess uh ... that ... uh ... I never got to resolve any of my manners though .... I guess it's still been piling underneath ...
Cst. Fortin: Okay ...
Byron SPENCE: And uh ... I don't know ... the shotgun was there ... I got mad ... it was there ... (unintelligible) ... there's no lock for it ... it was supposed to be in Moose Factory locked up at Greg Spence's house ... and ... He got mad over a sink ... uh the sink being clogged ... and you know whatever .... it, it couldn't go through ... So anyways I just said well, it seemed clogged ... I don't know anything about that (unintelligible) and then he got mad ... He got mad at me, slammed the door ... Like I say, I got mad too ... I was sitting there watching TV. I asked him if he wanted anything to eat, are you hungry, no .... I don't know ... and uh ... I came out of the room with the shotgun and uh ... I pulled the trigger. I'm at, I'm at .... the computer is right there ... I shoulda shot the computer ... I was thinking of shooting the stereo because it was blaring ... I don't know ... I'm kinda sick (unintelligible) gets in the way…I shouldn't have done that ...
[118] I recognize that Mr. Spence later went on to explain that he did not intend to shoot Mr. Trapper or to hurt him, and that he only intended to scare him and to shoot the computer in front of him. I also recognize that Mr. Spence alluded to a possible connection between his mental health issues and the offence. As I have noted, I find that those explanations by Mr. Spence were rationalizations intended to mitigate what he had, in fact, done. He had argued with his brother, become angry, retrieved a firearm, and shot him, intentionally.
[119] I find that Mr. Spence's presentation to the TPS immediately after the offence and during the TPS interview do not support a finding that his ability to form the requisite intent to commit murder was impaired any minor symptoms that he was experiencing from a mental disorder. He knew what he had done, was able to recount it coherently and in detail, understood the legal and moral implications of his actions, and had the presence of mind to form justifications for those actions. I find that this is evidence of a working mind, capable of forming requisite intent.
[120] In my view, the challenging question is not whether Mr. Spence was capable of forming requisite intent, but rather whether it was his intent to kill Mr. Trapper or to cause bodily harm to him.
[121] Although it is possible that Mr. Spence intended in the moment to kill Mr. Trapper, I am not persuaded of this beyond a reasonable doubt. Mr. Spence shot Mr. Trapper from behind, while Mr. Trapper was unaware of what was about to happen. Had he intended to kill him, he could have shot him in the head or at a closer range. Instead, according to the evidence of Dr. Kepron, Mr. Spence executed the shot from an intermediate range and struck Mr. Trapper at the bottom of his left shoulder blade. This raises doubt in my mind about whether the intention of the shot was to kill Mr. Trapper, or merely to strike a glancing blow and injure him.
[122] On the evidence before me, I am persuaded beyond a reasonable doubt that, at minimum, Mr. Spence intended to injure Mr. Trapper.
[123] I am also persuaded beyond a reasonable doubt that Mr. Spence chose a weapon to inflict injury that he subjectively knew was likely to result in Mr. Trapper's death, and that he carried out his act reckless as to whether Mr. Trapper's death would ensue.
[124] Mr. Spence was an experienced hunter who was familiar with firearms generally and was specifically familiar with the firearm that he used to commit the offence. This was apparent from the evidence of his parents. It was also evident in the following exchange with Cst. Fortin during the TPS interview:
Cst. Fortin: Okay ... so where was the gun stored inside the house?
Byron SPENCE: It was in the basement.
Cst. Fortin: It was in the basement?
Byron SPENCE: Yeah.
Cst. Fortin: Okay .... and uh ... was it stored? Like was it already loaded or?
Byron SPENCE: Hunh?
Cst. Fortin: How was it stored?
Byron SPENCE: It was stored pretty poorly ... just in the case and that was it ...
Cst. Fortin: Just in the case?
Byron SPENCE: Yeah ...
Cst. Fortin: And where was the ammunition?
Byron SPENCE: Ammunition was right beside it ...
Cst. Fortin: Okay ...
Byron SPENCE: I brought it to work once and I went in the bush because it's on my hunting territory ...
Cst. Fortin: Okay ... and when did you uh load the gun?
Byron SPENCE: Uh ... it was already loaded because I came out of the, out of the bush with it ...
Cst. Fortin: Okay ... so okay you came out of the bush it was already loaded?
Byron SPENCE: Yeah.
Cst. Fortin: Okay.
Byron SPENCE: I loaded it.
Cst. Fortin: You knew it was already loaded?
Byron SPENCE: Yeah.
Cst. Fortin: You knew there was a bullet in there?
Byron SPENCE: No I cocked it and I put a bullet in there.
Cst. Fortin: You did that?
Byron SPENCE: Be ... in my room ...
Cst Fortin: In your room?
Byron SPENCE: In uh ... the, where ... Isaac's room is ...
Cst. Fortin: Okay ...
Byron SPENCE: Where I was sleeping ... Then I came out and then I pulled the trigger.
Cst. Fortin: Okay so you cocked it and you put a bullet in it?
Byron SPENCE: I put a bull ... and there was already four shells in there ...
Cst Fortin: Oh okay ...
Byron SPENCE: There is no plug in there.
Cst. Fortin: Okay ... so you put one in the chamber?
Byron SPENCE: And I, I cocked it ... and I put one in the chamber and I cocked it ...
Cst. Fortin: Okay ... Why did you do that?
Byron SPENCE: I don't know ...
Cst. Fortin: You don't know?
Byron SPENCE: I hunt geese a lot and ....
Cst. Fortin: Okay ...
Byron SPENCE: And went to um ... went through bush and ...
Cst. Fortin: Okay ... when, when you grabbed that gun and
Byron SPENCE: It's just the way I use a shotgun ...
[125] Mr. Spence later went on to acknowledge in the following exchanges that he was aware of the likely outcome of shooting Mr. Trapper with a firearm:
Cst. Fortin: Okay ... Did you know that he was already dead at that point?
Byron SPENCE: I had no idea ... I didn't wanna watch him die ... I just, I just got up and left ...
Cst. Fortin: Okay, so you didn't know if he was dead or not?
Byron SPENCE: I didn't know if he was dead or not ...
Cst. Fortin: Okay ... then why did you tell ... your, your uncle that you knew he was dead?
Byron SPENCE: I said he might be dead cause I shot him with a shotgun man ...
Cst. Fortin: Okay and I realize you, you have some, some issues ... but tonight specifically ... uh ... did you know what you were doing when you grabbed that gun?
Byron SPENCE: Yeah ...
Cst. Fortin: You knew it had the potential of killing someone?
Byron SPENCE: Yes.
[126] On the evidence before me, the Crown has satisfied me beyond a reasonable doubt that Mr. Spence had the requisite intent for murder.
Issue Three: If Mr. Spence had the requisite intent for murder, was that murder planned and deliberate?
The Law
[127] The Criminal Code distinguishes first and second degree murder in the following sections:
231(1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
(7) All murder that is not first degree murder is second degree murder.
[128] Planning and deliberation are separate and distinct terms and consideration must be given to each of them. Each must be established beyond a reasonable doubt. Generally, the evidence must reveal the characteristics of a calculated scheme, carefully thought out, not impulsive, with the nature of the consequences having been considered and weighed: More v. The Queen, [1963] SCR 522, at pp.533-534; R. v. Aalders, [1993] 2 SCR 482, at pp. 502-504.
[129] A "planned" action is not required to be complicated, nor is an accused required to wait to put a plan into action to fall within the purview of s.231(2): R. v. Nygaard, [1989] 2 SCR 1074, at p. 1084.
[130] In R. v. Smith, at para. 28, the Court observed the following about the meaning of the term "planned":
I realize it is both difficult and unwise to attempt to give an exhaustive meaning of the word "planned". It is a common word and to it should be attributed its meaning as understood in everyday life. Clearly, planning must not be confused with intention as the planning would only occur after the intent to murder had been formed. There must be some evidence the killing was the result of a scheme or design previously formulated or designed by the accused and the killing was the implementation of that scheme or design. It is obvious a murder committed on a sudden impulse and without prior consideration, even though the intent to kill is clearly proven, would not constitute a planned murder.
[131] For a murder to be "deliberate," it must be considered and not impulsive. "Deliberate" means "carefully thought out". It is something more than intentional. A person is deliberate when they consider the consequences, including the advantages and disadvantages, of their intended acts: R v Jacquard, [1997] 1 SCR 314, at para. 26.
[132] In R. v. Kirkby, at p.67, the Court observed the following about the term, "deliberate":
I do not think that Parliament, by using the word "deliberate", imported a requirement that the offender's previous determination to kill the victim must be the result of reasonable or normal thinking or must be rationally motivated, provided the Crown has established that the killing was planned, and that the act of killing was considered and not the result of sudden impulse.
[133] A mental disorder that is insufficient to negate an accused's requisite intent may be sufficient, on its own or combined with other factors, to negate planning and deliberation, which require a higher degree of mental functioning. It is possible for an act to be both intended and impulsive: Jacquard, at para. 27.
Analysis
[134] On the evidence before me, I am not satisfied beyond a reasonable doubt that Mr. Spence's murder of Mr. Trapper was planned and deliberate. While there is evidence of planning by Mr. Spence, I am not satisfied that the evidence demonstrates that his actions were deliberate.
[135] The evidence supports a finding that, moments after arguing with his brother, Mr. Spence formed the intent to cause bodily harm to him and devised a plan to achieve that objective. He walked to the basement of the residence they were occupying, retrieved a firearm which he knew to be loaded, walked upstairs where his brother was playing on a computer and listening to music, walked past his brother to a nearby bedroom without saying a word to him, closed the door to the bedroom, unsheathed the firearm from its case, chambered a bullet and cocked the firearm, opened the bedroom door, aimed, and shot his brother.
[136] Viewing this transaction as a whole, one can discern the rudimentary elements of a plan. The fact that Mr. Spence did not unsheathe the firearm until he was behind Mr. Trapper and concealed behind a closed bedroom door leads me to conclude that he turned his mind to ensuring that he could act undetected, and that Mr. Trapper could not defend himself. The fact that Mr. Spence implemented his plan immediately does not detract from the fact that there was a degree of calculation behind his actions.
[137] What is more difficult to reconcile is the deliberateness of Mr. Spence's actions. Immediately after the offence, Mr. Spence was panicked and remorseful. After the initial panic settled, he left to seek help for Mr. Trapper. This suggests to me that his plan and his actions may have been undertaken impulsively and were not carefully thought out.
[138] While I am satisfied that Mr. Spence intended to cause bodily harm to Mr. Trapper and knew that shooting him would likely result in his death, I am not persuaded beyond a reasonable doubt that Mr. Spence turned his mind to the fact that shooting Mr. Trapper would actually result in his death. Whether Mr. Spence's inhibitions were lowered by anger, frustration, the effects of a lingering cold, or an impaired ability to control his impulses due to his mental disorder is impossible to say. Regardless of the motivation for his impulsive actions, I am not satisfied beyond a reasonable doubt that Mr. Spence's murder of Mr. Trapper was deliberate.
[139] On the evidence before me, the Crown has not satisfied me beyond a reasonable doubt that Mr. Spence's murder of Mr. Trapper was planned and deliberate.
Disposition
[140] For the reasons given, I find that the accused, Byron Spence, is not guilty of the offence of first degree murder but is guilty of the included offence of second degree murder. A finding of guilt and a conviction will therefore be entered on the indictment for the offence of second degree murder.
[141] This matter is otherwise adjourned on consent to the September 10, 2025 Assignment Court, at 9:00 a.m. via Zoom, to schedule a date for sentencing.
Cullin J.
Released: August 7, 2025