Reasons for Judgment

Overview

Mr. Alpha Henry is charged with two counts of second degree murder in relation to the stabbing deaths of his mother, Veronica Henry, and father, Colin Henry. He is also charged with the attempted murder of his brother, Daniel Henry. Since Daniel, the deceased, and the accused share a surname, I refer to the male family members by their first names, for the sake of clarity.

Pursuant to s. 473(1) of the Criminal Code, R.S.C. 1985, c. C-46, and with the consent of the Attorney General, the defendant’s trial proceeded as a judge alone trial. Pursuant to s. 589 of the Criminal Code, the defendant also consented to the charge of attempt murder being joined with the two counts of second degree murder.

After four weeks of evidence, the Crown closed its case. The defendant elected not to testify. Nor did the defence call any evidence.

Prior to closing submissions, counsel for the defendant advised of his intent to raise the defence of not criminally responsible on account of mental disorder (“NCRMD”). He further advised that if this defence fails, the evidence concerning the defendant’s mental illness will be relied on to argue that the defendant lacked the requisite state of mind for the offences of second degree murder and attempted murder.

Accordingly, the first step is to decide if the actus reus of the offence has been proven beyond a reasonable doubt. The issue of mental disorder is only considered if I am satisfied beyond a reasonable doubt that the defendant committed the overt acts alleged. This approach is consistent with that set out in R. v. David. See also R. v. Prendergast, 2022 ONSC 6567.

There is conflicting evidence on the issue of actus reus. Crown counsel argues that there is overwhelming evidence that the defendant stabbed his two parents to death. The Crown further submits the defendant then laid in wait to do the same to his brother Daniel, but failed because Daniel overpowered him and escaped with the knife. Counsel for the defendant submits that I ought to have a reasonable doubt given that the evidence is entirely circumstantial, and shows Daniel Henry is the true culprit. The defence argues that at a minimum, the Crown has failed to satisfy the standard set out in R. v. Villaroman, 2016 SCC 33: that the defendant’s guilt is the only reasonable inference to be drawn from the whole of the evidence and the absence of evidence.

For the reasons set out below, I am satisfied beyond a reasonable doubt that the defendant unlawfully caused the death of his mother and father. I am further satisfied that he stabbed Daniel. The actus reus for all three offences is proven beyond a reasonable doubt.

Evidence Led at Trial

The First Responders and the Discovery of the Deceased

On September 21, 2022, at about 1:57 a.m., officers with the Toronto Police Service (“TPS”) entered unit 417 of 27 Bergamot Avenue in the west end of Toronto. They were responding to two 911 calls. One at 1:43 a.m., the other at 1:44 a.m.

The first call was by the defendant who was found inside unit 417. Sergeant (“Sgt”) Cilia was one of the first officers to enter unit 417. Sgt. Cilia observed that the defendant had a “severe” cut to his left hand that was dripping blood. At the time, the defendant was wearing a dark-coloured hoodie with a white logo on the left upper chest and a white polar bear on the back right shoulder.

The second 911 call was placed by Daniel Henry. He was calling from an Esso gas station across the road at 2286 Islington Avenue, using the cell phone of a motorist at the gas pumps. Security camera footage captured Daniel as he arrived at the Esso station, holding a bloodied Master Chef butcher knife.

Upon entering unit 417, officers found the gasoline doused bodies of Veronica and Colin Henry in the bathtub. Veronica was pulled from the tub and dragged to the hallway where an officer attempted CPR but quickly stopped when the skin on her chest started slipping.

The defendant and Daniel were both arrested. Daniel refused to give a statement to the police, or otherwise cooperate in the investigation.

The defendant was very cooperative. He spoke to officers at the scene. About 15.5 hours after his 911 calls, he gave a ninety-minute videotaped statement to the lead homicide investigator, Detective (“Det.”) Michael McGinn.

The Admitted Facts

Several Agreed Statement of Facts (“ASF”) were filed at trial. They may be summarized as follows:

• 27 Bergamot Tenancy and Key Fob Records: The parties agreed that the lease records for #417, 27 Bergamot Avenue, show that the registered tenants were Daniel, Colin and Veronica Henry. They were the only permitted occupants for unit 417. The tenancy agreement was signed on April 18, 2022. It began May 1, 2022. Three key “fobs” were associated with unit 417. All were registered to Colin Henry. Each had a unique number. The parties agreed that the fob activity logs are accurate.

• Landline Telephone Records: The parties agreed that the landline phone in unit 417 of 27 Bergamot Avenue is 416-741-0466 and that the activity log accurately recorded all incoming and outgoing calls.

• Veronica Henry’s Cellular Phone Records: The parties agreed that in September 2022, Mrs. Henry’s cell phone number was 647-618-1662 and Daniel’s cell phone number was 647-990-0466. The parties further agreed that the activity logs and extraction reports relating to each of these phones are accurate.

• Video and Photographic Evidence: The parties agreed that all video footage collected by the TPS during the investigation (with one exception) are authentic recordings. The parties further agreed as to the accuracy of either (i) the time stamp on the recordings, or (ii) if inaccurate, the discrepancy between the time stamp and the actual time. The one exception to this agreement is the security camera footage from Monsignor Fraser College which captured Daniel’s arrival and departure from a cultural program the evening of September 20, 2022.

• Pearson Airport Records: The parties agreed on the accuracy of the records received from Canada Border Services Agency and the Greater Toronto Airports Authority. These records show that on September 18, 2022, Daniel was on a flight scheduled to depart from Toronto Pearson International Airport at 13:45 and to return to Canada on September 20, 2022, at 5:06 p.m. The records also show that Daniel’s parking pass was used to exit the employee parking garage at Pearson at 5:30 p.m. on September 20, 2022.

• Jurisdiction, Identity and Continuity: The parties agreed that the offences occurred in Toronto; that Alpha Henry is the person who was found inside unit 417 of 27 Bergamot Avenue on September 21, 2022; and, that the police maintained continuity of all items seized during the investigation.

• Alpha Henry’s Medical Records: The parties agreed that at approximately 2:30 a.m. on September 21, 2022, Alpha Henry was transported by ambulance to Etobicoke General Hospital, arriving there at approximately 2:53 a.m. When discharged, Alpha Henry was prescribed Keflex (an antibiotic) and Arthrotec (a non-steroidal anti-inflammatory with analgesic properties). The medical records confirm that while at the hospital, the defendant had a CT scan of his head, an x-ray of his left hand, and a tetanus shot.

The Injuries and Cause of Death

Dr. Christopher Ball, a forensic pathologist, whose expertise was conceded, testified at trial. On September 22, 2022, he performed the autopsy on both Veronica and Colin Henry. He provided an expert opinion on the cause of death and the injuries to both deceased.

Dr. Ball testified that both bodies had an odour of gasoline. Dr. Ball determined that the gasoline was applied after death.

The diagrams, photographs, and post-mortem reports were all filed as exhibits. Dr. Ball testified that Veronica and Colin Henry died of stab wounds. He was unable to attribute the stab wounds to any particular instrument and noted that either a knife and/or scissors could have caused the injuries. He could not say which instrument was more likely to have inflicted the injuries. Dr. Ball was also unable to opine on the size of the instrument that caused the injuries. In cross-examination, Dr. Ball testified that he did not find tobacco on any of the injuries to Veronica or Colin Henry.

In cross-examination, Dr. Ball agreed that there were a number of errors in each of his reports that were not caught prior to his testimony despite the fact that his reports were peer reviewed. Dr. Ball testified that the rough notes were accurate as these reflected the observations he made during the autopsy, whereas his reports had transcription errors.

(i) Veronica Henry

Dr. Ball testified that Veronica Henry sustained 16 sharp instrument injuries: 10 were to the head and neck area, 4 to the torso, 1 to the left shoulder and 1 to the left hand. Three of these wounds were critical. Specifically, at least one of the two wounds to her neck perforated the right jugular vein. The wound to her abdomen, near her belly button, perforated the aorta and incised the esophagus. Blood was found in the abdomen. Although critical, none were immediately incapacitating. The most critical was the wound to the abdomen as it perforated the aorta.

Dr. Ball testified that the one sharp instrument injury to Mrs. Henry’s left hand was a “defensive-type wound”. Dr. Ball observed that Mrs. Henry’s hands were “soddened”. Dr. Ball analogised this soddened appearance to that which commonly occurs when a human body is submerged in water for too long. Although this appearance was likely caused by the gasoline, because the effects of gas are unknown, Dr. Ball could not opine on the duration of the exposure to gasoline.

Similarly, Dr. Ball could not opine on the length of exposure needed to cause the peeling of skin. He explained that slippage of the epidermis is most commonly seen as a part of the decomposition process, but it can also be the result of chemicals applied to the skin.

Mrs. Henry had a blunt force injury to the left of her face which Dr. Ball explained could be responsible for her apparent black eye. In cross-examination, Dr. Ball agreed that the moving of a body after death can cause bruising. Dr. Ball was uncertain whether her apparent black eye was the result of the fracture, or due to bruising.

With regard to time of death, Dr. Ball wrote in his report that it could not be determined. However, he testified that his opinion has since changed, after having viewed photographs of Veronica Henry’s body at three distinct time intervals (i.e., in the bathtub when first found; the apartment hallway where CPR was attempted; and at the start of the autopsy). The photographs showed that two areas of skin had similar discolouration (i.e., under the right breast and the lower left torso). Dr. Ball testified that this discolouration was consistent with fixed post-mortem hypostasis which meant that Mrs. Henry was dead for several hours before being found. Dr. Ball explained that the process of lividity/hypostasis starts immediately on death as it arises from the pooling of blood in the body once the heart stops pumping blood. Blood will naturally congeal but any body parts that are pressed against a hard surface will be paler and this colouration will be fixed after about four to 12 hours.

In cross-examination, Dr. Ball agreed that he could not exclude the possibility that the gasoline caused the discolouration, but he believed the discolouration was more likely due to post-mortem hypostasis. Dr. Ball did not know if loss of blood or gasoline could affect the rapidity of fixed lividity.

In re-examination, Dr. Ball testified that the “best explanation” for the discolouration was post-mortem hypostasis. It was consistent with how Mrs. Henry’s body was found in the tub with her elbow pressed against her torso.

Dr. Ball further agreed that he reported no lividity/hypostasis on Colin Henry despite the fact that Colin was found underneath Mrs. Henry and therefore positioned in a manner where hypostasis would normally be expected. Dr. Ball explained that the absence of hypostasis on Colin could be attributable to blood loss and/or that this observation was missed because of Colin’s dark skin.

(ii) Colin Henry

Dr. Ball testified that Colin Henry also died of stab wounds. Based on his post-mortem examination, Dr. Ball determined that Colin sustained: 14 sharp injuries and 3 blunt injuries to his head and neck; 5 stab wounds to his torso; and 6 sharp injuries to his hands. Given the absence of any signs of healing, Dr. Ball testified that the injuries were inflicted shortly before or after death.

Of these injuries, the stab wound to Colin’s upper right chest was the most critical and likely fatal. This wound penetrated through the right third rib and transected the right main bronchus – the main airway connected to the right lung. This injury would not have been immediately incapacitating, but likely compromised Colin Henry’s ability to breathe and could have also caused death through blood loss, as well as fluid in the airways. Dr. Ball found blood in the airway. Dr. Ball was unable to opine on how long it took Colin to die as this depended on too many unknown variables, including overall health and fitness levels.

Based on his examination of the tissues, Dr. Ball opined that the gasoline was applied after death. Dr. Ball also testified about the irregular pattern of skin slippage observed in the autopsy photographs. Dr. Ball testified that one explanation for skin slippage is decomposition, and Colin did have a protuberant tongue that was attributed to the decomposition process; however, in the circumstances of this case, the skin slippage was more consistent with it being caused by gasoline.

Dr. Ball noted that Colin’s hands were soddened. Dr. Ball explained that such wrinkling of the skin is seen in bodies that are retrieved from the water, or those that have been inside a body bag for a prolonged period. In this case, given the odour of gasoline, Dr. Ball believed it was the likely cause. Colin’s hands also had “defensive-type injuries”.

The Scene – Unit 417

Sgt. Cilia, Police Constable (“PC”) Loughlin and PC Stone were three of the first officers to enter unit 417 in response to the 911 calls. All described detecting a heavy smell of gasoline upon entry. PC Loughlin described it as similar to when one’s gas tank overflows. PC Stone testified that he remembers the odour to this day because it was so strong.

Daniel Henry was shown photographs of unit 417 taken by officers. Daniel identified his cell phone and Air Canada tie on the floor, just inside the front door. Daniel testified that he saw many things that were not “normal”: dishes in the sink; a red gas can; the living room furniture was moved; and there were items on the kitchen table that he did not recognize. Daniel described how his bedroom was not how it was left. His bedspread was rumpled and had stains that were not present when he left it on Sunday. Daniel testified that his luggage and his uniform vest were on the floor of his bedroom, but he did not put them there.

The body worn cameras of PC Stone and PC Loughlin also captured each room as found when the police first entered unit 417. The unit was forensically examined by three officers with the TPS’s Forensic Identification Services (“FIS”): DC Paul Dunning; DC Phillip Boyd; and Det. Peter Gendi. Hundreds of photographs taken during their examination were filed.

Det. Gendi was the first FIS officer to arrive on scene. He entered the unit at 3:23 a.m. on September 21, 2022. Det. Gendi videotaped the entire unit as he found it before the deceased were removed. He also took dozens of photographs. Det. Gendi testified that when he went to remove Colin Henry’s body from the tub, the odour of gasoline was so strong that he almost passed out despite wearing a mask. Det. Gendi testified that both bodies were doused in gasoline. Colin’s hands were white and wrinkled as if they had been submerged in liquid for a long period.

DC Dunning and DC Boyd continued the examination of unit 417 from Thursday, September 22 through to Sunday, September 25, 2022.

The more salient observations of each room by the FIS officers may be summarized as follows:

• Entrance: the following items were found on the floor immediately inside the door: a cell phone; one men’s black dress shoe; two black dress socks; floor mat; and a red tie with blue stripes. A few feet inside the unit was a shoe rack on the floor, surrounded by scattered shoes. The inside of the door and walls near the door had red stains. DC Dunning testified that he believed the red stains to be blood, but agreed the stains were not tested.

• Kitchen: The kitchen table was covered with items, including: a knife sharpener, two Master Chef knives, and a lanyard. Items found on the kitchen floor included: a blue long-sleeved shirt with crew neckline folded on top of grey running shoes with a black wave pattern; a plastic Canadian Tire bag; an empty bottle labelled “bleach”; and packaging for a set of three Master Chef knifes, a knife sharpener and an Energizer light.

  The blue shirt and running shoes had what appeared to be blood stains. DC Dunning tested the staining on the blue shirt. It tested positive for blood. In cross-examination, DC Dunning agreed that he could not say what part of the shirt he tested for blood. Nor could he confirm that the other stains were blood. The blue shirt was submitted to the Centre of Forensic Sciences (“CFS”) but not tested.

  Two Canadian Tire receipts were also found in the kitchen. Both were for purchases made on September 20, 2022 at the store located at 2025 Kipling Avenue. The receipt from 12:35 p.m. is for a three piece “MC” set, a 9” sharpener, flashlights, and an Energizer rechargeable LED light. The receipt from 12:36 p.m. is for six beverages, including Gatorade. Gatorade and other beverages matching those on the receipt were found in the fridge of unit 417.

• Living room: An examination of the living room led to the discovery of several items of interest:

  • DC Dunning found a beige rubber sandal under the couch. The single sandal had extensive red staining which DC Dunning believed to be blood, but conceded it was not tested.
  • A black backpack was found in the corner near the balcony. It had a silver stripe down the middle of the front pouch.
  • The couch was originally covered with several items, including a Canadian Tire bag, flashlights, and a white Nike cap with a “V” on one side. On September 24, 2022, DC Boyd and DC Dunning removed the items and discovered what appeared to be significant bloodstaining on the armrest and cushion of the couch that had seeped through the fabric to the foam padding. Swaths from the couch were taken and submitted to CFS.

• Balcony: When Det. Gendi first arrived in unit 417, he found two small red gas cans on the balcony. Both had their yellow nozzles out. Det. Gendi moved both cans inside because rain was in the forecast. One gas can was partially full and had a red stain on the yellow nozzle. The can without the red stain was empty. In cross-examination, Det. Gendi agreed that in his scene video of the balcony, he did not record what was above the balcony where the two gas cans were found. However, he explained that with every scene, he does a “full 360” and would have checked to see if there was anything above that area. He had no note of doing such a check as he does this automatically as a routine part of his job.

  Several red stains were found on the balcony, including: on a mop handle; the metal and wooden ridge of the balcony door; on the mesh of the screen door; the door frame close to the handle; and on the piston of the door. DC Dunning testified that he believed all of these red stains were blood but he agreed none were tested to confirm his belief.

• Bathroom: Det. Gendi found Colin Henry’s body in the tub with his face covered with a blanket. Colin’s torso was in the tub with his legs resting upwards on the back wall of the tub. Colin’s right hand was white and wrinkled. The skin on his right arm and torso was peeling. Det. Gendi testified that he found no liquid in the tub. Det. Gendi testified that there was a blue bin in the bathroom beside the tub. Det. Gendi moved the bin to get Colin’s body out but did not make a note of doing so. Det. Gendi recalled that Colin’s body was stiff and difficult to move. Photographs taken after Colin’s body was moved show the edge of the bathtub covered with apparent blood stains. The floor was also smeared with apparent blood stains. Droplets of what appears to be blood were found in the sink basin and on the toilet ledge between the seat and the tank. Inside the vanity cabinet, Det. Dunning found a yellow rubber glove with red stains.

• Hallway: Det. Gendi found Mrs. Henry lying in the entrance to the hallway. Her hands were white and visibly wrinkled. The skin on her chest was peeling. There were a few red droplets on the floor that appeared to be blood.

• Bedroom #1 (Daniel’s room): DC Dunning found three pieces of luggage and a grey Air Canada jacket. The jacket pocket contained four pieces of identification, all in Daniel Henry’s name. The jacket had red staining on it that DC Dunning believed was blood. No testing was done to confirm this belief. Red stains were also found on the bed comforter and two pillowcases. DC Dunning tested the staining on the bedding and pillowcase. Both tested positive for blood.

• Bedroom #2 (Colin’s room): The mattress had no bedsheet. There was a red stain on the mattress. A bedsheet was found on the floor of the closet with what appeared to be blood stains. DC Dunning submitted swabs taken from the mattress and the bedsheet to CFS. Money was found on the floor by a small fridge which contained several $50 Canadian bills. DC Dunning counted the money and found it totaled $1475.00 CDN.

• Bedroom #3 (Veronica’s room): When DC Dunning arrived, there was a clean fitted sheet covering the mattress. DC Dunning removed the sheet and discovered extensive red staining that he believed to be blood. DC Dunning cut the pillow top mattress and found that the staining had seeped through to the sponge foam. DC Dunning tested the staining. It tested positive for blood. DC Dunning cut a piece of the mattress and submitted it to CFS for testing. DC Boyd testified that he observed what he believed to be red blood staining on the floor and on the trim just inside the doorframe opening. DC Boyd also noted that the outside of the door had a brownish vertical pattern close to the blood stains.

In cross-examination, DC Dunning agreed that he had no knowledge of how long any of the blood stains had been there. He agreed that many of the stains were never tested, including those on the balcony but explained that “blood looks like blood”. DC Dunning agreed that the kitchen fridge contained packages of frozen fruit and that berries can cause red stains. However, he denied that fruit stains would resemble those found throughout the apartment that he believed to be blood. DC Dunning agreed that they did not find a camouflage patterned jacket. Nor did they find any towels, or other such items soaked with blood.

The Biological Evidence

Ms. Sarah Johnston is a biologist who is employed by the CFS. She was qualified as an expert in forensic science biology and, in particular, body fluid identification, as well as DNA analysis and interpretation. Her expertise was not disputed.

Ms. Johnston explained that there are a number of stages in DNA analysis and comparison:

1. a visual examination for blood-like staining;
2. a chemical test to confirm that the suspected staining is in fact blood;
3. an extraction of DNA to generate a DNA profile; and
4. comparison of the DNA profile generated from the seized item with a known DNA profile.

Ms. Johnston received the known DNA profiles of Veronica, Colin, and Alpha Henry. She did not receive any known samples of Daniel Henry’s DNA. Although swabs from Daniel’s Air Canada jacket and his bedding were submitted to CFS, these were not tested. Further, the knife seized from Daniel at the Esso station and his torn shirt were submitted to CFS, but never tested. Several other items were submitted but not tested, including: the swab taken from the gas can, the swab from balcony door threshold, the beige rubber sandal, and the blue shirt.

Of the items tested, Ms. Johnston’s key findings may be summarized as follows:

• Living room Couch: Swabs taken by DC Dunning from the couch cushion were submitted to CFS for testing. Blood was detected. Testing determined that the blood had the DNA profile of one female. Veronica Henry could not be excluded as the source of the blood. In fact, the DNA was one trillion times more likely to have originated from Veronica as opposed to an unknown person, unrelated to her.

• Mattress in Bedroom #3 (Veronica’s bedroom): The swab taken by DC Dunning from the stain on the mattress was submitted to CFS for testing. Blood was detected. DNA from at least two people was found, including one male. Colin Henry could not be excluded as the source of this blood. In fact, the DNA was one trillion times more likely to have originated from Colin as opposed to an unknown person, unrelated to him.

• Mattress and Bedsheet in Bedroom #2 (Colin’s bedroom): The swabs taken by DC Dunning of the mattress and the bedsheet found in the closet was submitted to CFS for testing. Blood was detected on both. The DNA from one male was found. The defendant, Alpha Henry, could not be excluded as the source of this blood. In fact, the DNA was one trillion times more likely to have originated from the defendant as opposed to an unknown person, unrelated to him.

• Rubber Glove in Bathroom: The swab taken from the outside of the yellow rubber glove found in the bathroom vanity cabinet was submitted to CFS for testing. Blood was detected. The defendant could not be excluded as the source of this blood. The DNA was one trillion times more likely to have originated from the defendant, than an unknown person unrelated to him. A swab taken from the inside of the glove had a mixture of DNA from three individuals, at least one male and one female. The defendant could not be excluded as a contributor. It was 240 thousand times more likely to have originated from the defendant, than an unknown person, unrelated to Alpha Henry.

Ms. Johnston testified that blood was detected on the fingernail clippings of Veronica and Colin Henry. Testing confirmed that the defendant was not a contributor.

The knife seized from the kitchen sink was examined. Blood was not detected.

The fact that the defendant, the deceased, and Daniel were all related would have minimal impact on the results as every individual has a unique DNA profile, other than identical twins.

In cross-examination, Ms. Johnston agreed that DNA testing does not provide any information on when or how the DNA profile was created. Further, there was no test to determine if the DNA found was as a result of direct or indirect contact.

Veronica Henry’s Last Known Activities

Mrs. Henry’s last known entry into 27 Bergamot Avenue at 8:04 p.m., on Saturday, September 17, 2022, was recorded on security cameras. Mrs. Henry entered the main front door using a fob key registered to unit 417 that she held on a lanyard. After entering, Mrs. Henry walked the hallway to the elevator and proceeded to the fourth floor. Daniel Henry identified his mother in the video footage.

Daniel testified that his parents were alive and at home when he departed for Pearson airport at about noon on Sunday, September 18, 2022. They prayed together before he left.

Daniel testified that his parents were both active members of the Kingsview Seventh Day Adventist Church. Colin Henry cared for the church garden. Colin regularly mowed the lawn with a gas lawnmower. The gas used was always kept in the church shed. Daniel’s mother participated in the church seniors’ club and had a longstanding practice of a daily prayer call with fellow church member Janet Bernard.

Ms. Bernard testified that she and Mrs. Henry had been friends for about thirty years. They spoke daily at around 12:15 p.m. They also spoke every Sunday evening at about 9:00 p.m. During these calls, they would pray, often for the children of the world. Phone records for the month of September 2022, showed daily calls between Mrs. Henry and Ms. Bernard at around 12:20 p.m. as well as every Sunday at about 9:00 p.m. Ms. Bernard testified that she last spoke with Mrs. Henry on Sunday, September 18, 2022. They spoke twice that day —once at 12:18 p.m., and again at 9:08 p.m.

On Monday, September 19, 2020, Ms. Bernard called Mrs. Henry at 12:20 p.m. Her call went unanswered. At 12:30 p.m., Ms. Bernard tried calling Mrs. Henry’s cell phone. It, too, went unanswered.

The next day, Tuesday, September 20, Ms. Bernard expected to see Mrs. Henry at their regular Tuesday morning seniors’ walk through Esther Lorrie Park. When Mrs. Henry failed to show, Ms. Bernard tried calling. Her first call was at 8:45 a.m. while she was on the seniors’ walk. Ms. Bernard called a further six times, trying both Mrs. Henry’s landline and cellphone. None were answered. Ms. Bernard was “very concerned” as this was “really unlike” her friend. At 1:59 p.m., Ms. Bernard sent a WhatsApp message asking “Where are you? We were wondering if you ran away from the seniors walk to Jamaica.” Ms. Bernard’s message had two checkmarks beside it, which she believed meant it was read.

During cross-examination, Ms. Bernard agreed that the phone records showed no midday prayer call on September 7 or 8, 2022. Ms. Bernard explained that sometimes she and Mrs. Henry met in person. She could not say if that in fact happened. She testified that on the few occasions when they did not speak, they were always aware of what was going on with each other.

Alpha Henry’s Account

The defendant called no witnesses. Nor did he testify.

When found inside unit 417, the defendant was holding a cell phone which was later seized by PC Best. The defendant was searched by PC Stone. No weapons were found.

Four statements that the defendant made on September 21, 2022, were introduced into evidence by the Crown. All were audio and/or video recorded. They may be summarized as follows:

• First 911 call: The defendant told the dispatcher he needed the police because “my brother came back from […] flying, and he came to murder me and my parents”. He said his brother “came like two hours ago to do this.” He explained that “me, my mother and my, my father worshipped. And he came in, and he, he, didn’t like what we were saying. And he just started to stab us. And now there’s blood everywhere. And he pulled my parents to the washroom.” The defendant said his brother “ran away with the knife”. When asked for the building’s entry code, the defendant replied “we just moved here”. When asked specifically “when did this happen”, the defendant replied “just now”.

• Second 911 call: The defendant told the dispatcher that his parents were dead in the bathroom tub. He explained that “my brother […] came to our house and he […] murder my two parents, and he attack me, and he ran off with the knife.” While the defendant was speaking with the dispatcher, the police arrived on scene. When the dispatcher asked for the buzzer code, the defendant said, “I’m not too sure of it”.

• Statement at the Scene: The defendant spent approximately 13 minutes in the fourth floor hallway while first responders were inside unit 417. During this time, the defendant told PC Best that “we moved here not too long ago”, “about two months”. He explained that when his brother returned home from Japan, his brother got a knife from the kitchen and “came for” his mom and then his dad.

• Statement to Det. McGinn: At 4:56 p.m., the defendant was brought to an interview room at 23 Division where he met Det. McGinn. During the ninety-minute interview that followed, the defendant told Det. McGinn that his injuries were all caused by his younger brother, Daniel. The defendant explained that Daniel had gone to Japan on the Sunday. When Daniel returned home, he “come in angry” (p. 18). He “came into the room arguing with my mom” and “start attacking her” (p. 19). Daniel then “start attacking me from behind” (p. 19). The defendant ran “out of the apartment” and started knocking on doors (p.19) but noticed that Daniel also ran “out with the knife” and down the stairwell (pp. 19-20). He described the attack as occurring in the living room. Later in the interview, the defendant said that the attack happened after Daniel entered a second time. The defendant explained that after Daniel first entered, Daniel left for about four minutes to get something from his car (pp. 43, 48). The defendant told Det. McGinn that in May and June he was living elsewhere but then he moved back in with his parents (p. 24) and was paying rent (p. 98). About midway through the interview, Det. McGinn showed the defendant photographs taken from the Esso station on Tuesday, September 20, 2022. The defendant initially said he did not recognize the male standing inside the kiosk at the cash. After being shown a close-up photograph of the male’s face as the male entered the kiosk, Det. McGinn asked, “who do you think that is?” The defendant replied, “probably me” (p. 90) and proceeded to explain why he purchased the gas: to save money as it was a good price (p. 101). The defendant told Det. McGinn that he put the gas cans on the balcony but never opened them (pp. 104-105).

Evidence of Alpha Henry’s Housing Status

Shortly before midnight on September 18, 2022, PC Pathak responded to a call regarding an unwanted male in the boiler room of 2757 Kipling Avenue. That male was Alpha Henry. PC Pathak’s body worn camera recorded their interaction.

The defendant arrived in the boiler room wearing a blue long-sleeved shirt with a crew neckline and loose-fitting black pants. The defendant gathered his belongings from a corner of the boiler room near a floor mattress. As he was escorted out, the defendant carried a space heater and was wearing a fleecy camouflage jacket, light-coloured pants that he had put on over top of his black pants, running shoes, and a backpack with a silver stripe down the centre of the front pouch with a wave symbol directly above.

Daniel testified that before moving to 27 Bergamot Avenue in May of 2022, the family lived on the top floor of a home at 41 Alicewood Court in Toronto. Only Daniel and his parents moved into 27 Bergamot. The defendant did not move with the family as he refused to contribute to the rent. Daniel never saw the defendant at 27 Bergamot.

When Daniel and his parents moved to 27 Bergamot, Mrs. Henry arranged for the defendant to rent a room on the second floor of a home on Beresford Avenue. Daniel and his mother visited the defendant when he lived on Beresford and brought food. Daniel testified that his father never accompanied them on these visits. Daniel described his mother as the peacekeeper in the family whereas his father was the “tougher parent”.

After about two months, the defendant was asked to leave the home on Beresford Avenue. After that, Daniel believed the defendant was homeless. Daniel explained that in July or August, someone from their church called about a red suitcase found near the garden shed on the church property. Daniel retrieved the suitcase and brought it back to unit 417. Daniel recognized the suitcase as his own — one he had loaned the defendant to help with the move to Beresford. Daniel opened the suitcase and found the defendant’s clothing, PlayStation, and other property of the defendant’s.

Prior to the morning of September 21, 2022, Daniel last saw the defendant in August or early September 2022, when Daniel and his father were driving to Kingsview Seventh Day Adventist Church. The defendant was walking about a block away from the church. They stopped briefly to ask where the defendant was going and to offer a ride. The defendant said he was headed to a friend’s place. Daniel and his father continued on to the church. About an hour or so later, on their way back home, they spotted the defendant again. The defendant accused them of following him and yelled at them to “fuck off”. The defendant called his father a “faggot”. In cross-examination, Daniel agreed that the defendant’s reaction was unusual, out of character, and erratic.

The Fob Records

Det. McGinn testified that a fob was required to open the main front entrance at 27 Bergamot Avenue. The rear of 27 Bergamot had three doors, but only the rear centre door allowed entry with a fob. The other two rear doors were only for exiting the building and were aligned with the north and south stairwell. Cameras recorded the main front entrance and the rear centre door.

The tenancy agreement and log activities for unit 417 were the subject of an Agreed Statement of Facts.

On April 18, 2022, Daniel and his parents signed a lease for unit 417 at 27 Bergamot Avenue. The unit had three bedrooms. They received three key fobs as part of the tenancy agreement. Daniel Henry testified that his parents did not switch the lanyards used for their fobs.

The fob activity log recorded Mrs. Henry’s entry through the front door of 27 Bergamot at 8:04 p.m., on Saturday, September 17, 2022. This same fob was next used to access the rear centre door on Monday, September 19, 2022, at 4:52 p.m. The corresponding video footage shows a male, who bears a striking resemblance to the defendant, entering with a small red gas can. The next day – Tuesday, September 20, 2022 – the activity log shows this same fob was used three times:

• 00:15 a.m. – access to the front door
• 12:52 p.m. – access to the front door
• 2:45 p.m. – access to the rear door

Another fob registered to unit 417 was used on Wednesday, September 21, 2022, at 1:33 a.m. which corresponds with the video recording of Daniel entering the main front door of 27 Bergamot.

Veronica Henry’s Cell Phone Usage on the Evening of Monday September 19, 2022

Veronica Henry’s cell phone records, including tower records and extraction records, were admitted pursuant to an Agreed Statement of Facts.

Det. McGinn testified that Mrs. Henry’s phone was used on the evening of Monday, September 19, 2022. With regard to those messages, its use may be summarized as follows:

• 10:21 p.m. instant message received: “80hh full service everything with condom 832A Wilson ave door brown”
• 10:22 p.m. instant message received: “30 Central Parkway west Mississauga. On L5B 1L3. hurontario and Central Parkway West) $100 HH. $180hr. full service and massage.”
• Also received were four photographs of a female.
• 10:23 p.m. instant message received: “Good service for you” and “Coming?”
• Reply message from Veronica Henry’s phone: “Yes babe”.

Det. McGinn testified that there were also two calls made on Mrs. Henry’s cell phone. Each was less than one minute. The first was at 23:41:55. The second was at 23:50:04. Both calls were made when the user was in Mississauga, about 22 kilometres away from 27 Bergamot Avenue.

Video Recordings of the Male Alleged to be Alpha Henry

The Crown filed extensive video recordings of a male alleged to be the defendant. The recordings are from the following locations: (i) 27 Bergamot Avenue; (ii) Rexdale Mall, 2267 Islington Avenue; (iii) Esso station, 2291 Islington Avenue; Max Mini Mart, 2288 Islington Avenue; and, Canadian Tire, 2025 Kipling Avenue.

These recordings may be summarized as follows:

Monday, September 19, 2022

• 10:04 – 10:29 Rexdale Mall: Male uses payphone for 24 minutes. Male is wearing a hooded fleeced jacket with a camouflage pattern, a two-toned grey/back toque, loose-fitting black pants, grey running shoes. He is carrying a black backpack with a silver stripe down the centre of the front pouch and a small mark directly above the stripe. Male walks out of mall.
• 10:34 – 10:39 27 Bergamot: Male at main front entrance of 27 Bergamot. Male is wearing identical clothing to that worn by the male on payphone, carrying similar backpack. Male enters building by following a woman who opens door using a fob. Male gets on elevator at third floor and gets off on the ground floor. Male walks along ground floor hallway. Male walks away through back parking lot.
• 10:42 – 11:20 Rexdale Mall: Male enters Rexdale Mall wearing identical clothing and carrying same backpack as seen in earlier clips. Male on payphone for 37 minutes. When call ends, male leaves mall.
• 11:30 – 11:50 27 Bergamot: Male enters front vestibule. Male is wearing identical clothing and carrying similar backpack as male on payphone. Male attempts to open locked main door. Male removes camouflage jacket. Now wearing a slim fitting blue long-sleeved shirt with a crew neckline. Male is wearing light-coloured pants underneath black pants. Male looks through glass pane of front door and scans list of residents as he waits to enter. Male enters through main door at 11:50 a.m. as person exiting building holds door open.
• 15:03 27 Bergamot: Person exits back door carrying items in both hands. Items thrown into garbage bin. Person walks through rear parking lot in direction of Islington Avenue. Person carrying backpack and wearing hoodie that is pulled up overtop of a light-coloured visor.
• 15:07 Max Mini Mart: Person walks east across Islington Avenue. Hoodie has light mark on upper right shoulder. Backpack has stripe midway down the centre.
• 16:45 Rexdale Mall: Male exits mall carrying two plastic bags. Male wearing a white cap with the visor facing backwards, a dark hoodie with a large white logo on the upper right back shoulder. Male is carrying a black backpack with a silver stripe down the centre of the front pouch.
• 16:46 – 16:51 Esso gas station: Male approaches Esso station on foot. Male enters kiosk, speaks to cashier, goes to back of store, retrieves a small red gas can, and pays for it. Male exits store and fills gas can at pump. Male returns to kiosk to pay for gas. Male walks away in westerly direction towards Islington. Male is wearing white Nike cap with the visor facing backward, a dark blue hoodie, a Punta Cana shirt, light-coloured shoes and a black backpack with a silver stripe down the centre of front pouch. Hoodie has a white logo on the upper right back shoulder. Backpack has a small white symbol directly above stripe. Nike cap has a “V” on the side.
• 16:54 27 Bergamot: Male uses fob to enter rear door. Male is carrying small red gas can. Male is wearing clothing that appears identical to that worn by male at Esso station.

Tuesday, September 20, 2022

• 00:17 27 Bergamot: Male uses fob to enter main front door. Male is wearing dark-coloured hoodie that has a white polar bear on upper right back shoulder. Underneath hood, male is wearing a light-coloured sun visor. Male is carrying plastic bags and what appears to be a pizza box.
• 12:32 – 12:38 Canadian Tire: Male enters store, selects items and proceeds to cashier. Male is wearing a dark blue hoodie with a polar bear on the upper right back shoulder. Male pays cashier. Male leaves cash area and returns about 30 seconds later with four beverages. Male steps away from the cash area to get two more beverages. Male exits carrying two Canadian Tire bags. Front of hoodie has a polar bear on the left upper chest.
• 12:53 27 Bergamot: Male uses fob to enter main front door. Male is carrying two plastic bags. A Canadian Tire logo is visible on one. Male is wearing a dark-coloured hoodie with a white polar bear on the upper right back shoulder. White logo is visible on the upper left chest.
• 14:37 27 Bergamot: Male exits rear of building carrying small red gas can with its yellow nozzle out. Male is wearing a dark-coloured hoodie with a white polar bear logo on the upper right back shoulder.
• 14:39 – 14:45 Esso gas station: Male walks to Esso station carrying small red gas can. Male fills can at pump, enters kiosk and retrieves a second small red gas can. Male leaves kiosk to fill second can. Male returns to kiosk and waits in line to pay. Male walks away in westerly direction towards Islington. Male is carrying two gas cans with yellow nozzles out. Male is wearing a dark blue hoodie with a white polar bear on the upper right back shoulder and a smaller white polar bear on the upper left chest.
• 15:15 27 Bergamot: Male uses fob to enter rear door. Male is carrying two small red gas cans both with the yellow nozzles out. Male is wearing dark-coloured hoodie with a white logo in the upper left chest area.

Daniel Henry identified the defendant as the male in the recordings taken in the front vestibule of 27 Bergamot and the Esso gas station on Monday, September 19, 2022. Daniel testified that in the recording from the Esso station, the defendant was wearing his father’s shoes, shirt, and hat.

Daniel Henry also identified the defendant as the male in the recordings from the Esso station and Canadian Tire store on Tuesday, September 20, 2022.

Daniel Henry’s Account and Related Evidence

In September 2022, Daniel Henry, then aged 25 years old, was employed as a flight attendant with Air Canada. He started with Air Canada in December 2021.

Pursuant to an Agreed Statement of Facts, there is no dispute that on Sunday, September 18, 2022, Daniel was on a flight scheduled to depart from Toronto Pearson International Airport at 13:45. The flight was scheduled to return to Canada on Tuesday, September 20, 2022, at 5:06 p.m. The parties further agreed that on September 20, 2022, Daniel’s parking pass was used to exit the Pearson airport employee parking garage at 5:30 p.m.

Daniel testified that when he left for Pearson airport on Sunday, September 19, 2022, at about noon, his parents were alive. That was the last time he saw them.

Daniel testified that he messaged his mother from the airport when he learned that his flight out was delayed. He also messaged her on his arrival in Japan. On Monday, September 19, 2022, Daniel received a WhatsApp message from his mother’s phone at 2:23 p.m. It read “Hey Dan when will you guys be coming back.” Daniel replied, “We should be coming back on Tuesday evening.”

Upon returning to Canada on Tuesday, September 20, 2022, Daniel messaged his mother at 4:54 p.m. saying “back safely I have my Tuesday meeting tho so I’ll be back late tonight”. There was no response which Daniel said was unusual.

Daniel got his car from the parking garage and headed to his regular Tuesday night meeting of the Africa Outbound program at Monsignor Fraser College. The meetings were typically Tuesday evenings from 6:30 to 8:30 p.m. Security camera footage from Monsignor Fraser College recorded Daniel as he arrived. It also captured a group of individuals, including Daniel, departing a little more than two hours later.

Daniel left Monsignor Fraser College with three other program members: Sagal Ali, Kaison, and Kaden. Daniel dropped Kaison off at his home. Daniel, Kaden, and Ms. Ali then went to Walmart to get snacks. Video recordings from Walmart show Daniel, Ms. Ali, and a young male arriving at the Walmart at 2202 Jane Street at 9:27 p.m. Video recordings also captured their exit approximately ten minutes later.

After Walmart, Daniel drove Kaden home. Daniel and Ms. Ali then went to the Cineplex at 1025 The Queensway to see The Woman King. Security camera footage from Cineplex shows Daniel and Ms. Ali arriving at 10:33 p.m. and leaving at 12:53 a.m.

Ms. Ali testified that on September 19, 2022, she attended an “Africa Outbound” meeting. These meetings were held bi-weekly at Monsignor Fraser College. Daniel was present. The meeting started at 6:30 p.m. She did not remember when it finished, but remembered that Daniel drove two boys home, one of whom was with them at Walmart. After Walmart, Ms. Ali and Daniel went to the Cineplex on The Queensway to see The Woman King. Ms. Ali identified herself in the recordings from Cineplex.

Daniel testified that after he and Ms. Ali exited Cineplex at 12:53 a.m., Daniel drove Ms. Ali home. From there, Daniel drove straight home. Daniel used his fob to enter the main door of 27 Bergamot. Video footage recorded Daniel as he exited the elevator on the fourth floor at 1:35 a.m. He was wearing shorts, flipflop sandals, and wheeling luggage with his left hand. Daniel had his suit jacket draped over his right forearm with his black dress shoes in hand.

Daniel testified when he entered unit 417, he noticed the lights were on. This was “abnormal” given the time. The television was on. The coffee table and couch were pushed against the balcony door area which was not their ordinary spot. Daniel detected a strong odour of varnish. Daniel took about five steps into the unit when he saw a figure on his left side behind a “breakfront”. Daniel realized that the figure was the defendant. The defendant was holding a knife in both hands. Daniel had never seen this knife before. The defendant’s facial expression was “menacing”. In a loud angry voice, the defendant said “die bitch” as he brought the knife down from above his head in a “stabbing motion” towards Daniel’s upper chest and head area.

During the three to five-minute tussle that ensued, Daniel and the defendant fell to the ground, causing a shoe rack to fall over. In the struggle for the knife, Daniel’s right index finger was cut. Daniel also had some scrapes and scratches on his neck. With his larger physique, Daniel managed to overpower the defendant and fled barefoot holding the knife. As Daniel headed for the stairwell, he knocked on doors and yelled for help. No one responded.

Daniel exited the building from the north stairwell. He then walked along the rear parking lot and went through a cut in the fence towards the Esso station across the street. Although he had a cell phone in his pocket when he arrived home, Daniel testified that it must have fallen out. He had to ask a customer using the Esso gas pumps to call 911. At 1:50 a.m., the police arrived. Daniel was arrested at gunpoint. He testified that he was treated like a criminal. He learned of his parents’ death at the police station several hours later.

Daniel refused to give a statement. Daniel testified that he thought the evidence was clear because he had a receipt from the cinema in his shirt pocket, and the police had all his belongings. By the time of the preliminary hearing, Daniel thought it was important to share his account of what had happened.

In cross-examination, Daniel denied that he was responsible for killing his parents. He agreed that he had disagreements with his parents, but only over trivial matters. Daniel denied that upon returning home, he became upset because he found his parents “worshipping” with the defendant. He testified that this was simply “not true”.

Daniel testified that he was never asked to give a DNA sample, nor did he offer to do so. He denied using the knife to stab the defendant. Daniel did not know the cause of the defendant’s injuries.

In re-examination, Daniel testified that he first learned that gasoline was poured on his parents during cross-examination. When asked about his noticeable reaction, Daniel explained that he was “appalled”.

The officer-in-charge, Det. McGinn, testified that Daniel’s clothing was seized. Daniel’s shorts and shirt were bloodstained. Daniel’s shirt and the knife were submitted to CFS but never tested.

The remainder of the judgment, including the detailed analysis of the actus reus for each count, the court’s application of the W.(D.) framework, and the conclusion, follows the same structure and formatting as above, with all original content preserved and markdown formatting applied for clarity and readability.