R. v. Moreira, 2026 ONSC 1957

R. v. Moreira, 2026 ONSC 1957

CITATION: R. v. Moreira., 2026 ONSC 1957

COURT FILE NO.: CJ-101853

DATE: 2026/04/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

- and -

DYLON MIGUEL MOREIRA

Defendant

COUNSEL:

Tom Mack and Jonathan Janke Counsel for the Crown

Stephen Gehl Counsel for the Defendant

HEARD: September 22, 23,24,25,26,29, and October 1,3,6,7 and 9, 2025

REASONS FOR JUDGMENT

GIBSON J.:

Overview

1On a snowy evening on November 15, 2022, police officers from the Waterloo Regional Police Service (“WRPS”) attended at a house at 35 Cayley Court, Kitchener, Ontario, in response to a 911 call from a neighbour. What they discovered there was a chaotic, tragic and grisly scene. A child, two adult women and a dog had been stabbed. The house was covered in blood splatters, “like a scene in a horror movie,” one of the police officers later said. One of the women was unresponsive and was transported by ambulance to St. Mary’s Hospital in Kitchener, where she was pronounced dead at 11:04 p.m. The child and the other adult woman were also transported to hospitals in Hamilton and underwent surgery on an emergency basis to save their lives. The dog subsequently died. The man suspected of committing the stabbings resisted arrest. After being transported to Grand River Hospital in Kitchener and treated for some injuries to his head, he was taken to a police station and held in police custody. He has since been held in custody at Maplehurst pending his trial.

2Dylon Moreira is charged with: 1) the second degree murder of Vanessa Anne Legate, contrary to s. 235(1) of the Criminal Code of Canada; 2) the attempted murder of A.J. by stabbing her, contrary to s.239(1) of the Criminal Code of Canada; 3) aggravated assault on A.J., contrary to s.268 of the Criminal Code of Canada; 4) the attempted murder of Diana Moreira by stabbing her, contrary to s.239 of the Criminal Code of Canada; and 5) aggravated assault of Diana Moreira, contrary to s. 268 of the Criminal Code of Canada. The offences are alleged to have occurred in the five-level backsplit house at 35 Cayley Court, Kitchener, Ontario, on the night of November 15, 2022.

3Vanessa Legate, 41 at the time of her death, was the intimate partner of Dylon Moreira, who was then 32. A.J., then 7, 10 at the time of the trial, is the daughter of Vanessa Legate. Diana Moreira, then 53, is the mother of Dylon Moreira.

4The trial proceeded as a judge-alone trial before me.

5At the election of the accused, this matter proceeded as a bifurcated trial. The process for such a trial was explained by Campbell J. at paras. 2-4 in R. v. Chen, 2019 ONSC 3952:

[2] At the election of the accused, this matter proceeded as a bifurcated trial, recognized as available in R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933, where the Supreme Court of Canada concluded, at pp. 986-988, that an accused has the right to control the conduct of his or her own defence, which means that he or she may elect to: (1) raise the defence of mental disorder only after the trier of fact has concluded that the Crown has established the actus reus and mens rea of the alleged offence; or (2) assert at any point during the trial evidence of mental disorder or impairment that might impact on whether the accused had the necessary mens rea for the alleged offence, or lead to a verdict that the accused is not criminally responsible for the commission of the alleged offence on account of mental disorder.

[3] At the conclusion of the first stage of the bifurcated trial, during which defence counsel did not suggest that the accused suffered from any mental disorder but forced the Crown to establish its case against the accused beyond a reasonable doubt, the jury found the accused guilty of second-degree murder.

[4] Subsequently, in the second stage of the bifurcated trial, the defence sought to establish on a balance of probabilities that the accused suffered from a mental disorder to such an extent that, at the time he killed Ms. Liu, he was incapable of knowing that his conduct was wrong.

6Accordingly, this trial proceeded as the first stage of a bifurcated trial, in which the Defence obliged the Crown to establish both the actus reus and the mens rea of the offences with which Dylon Moreira is charged, without specifically raising the prospect of a mental disorder which could render him not criminally responsible. Although there was some evidence at trial that the accused person Dylon Moreira said that he heard voices in his head telling him not to trust anyone, no expert psychiatric evidence was presented nor submissions made to me at this stage of the trial regarding the issue of the effect of this on his criminal responsibility for the acts which he committed.

7The mens rea elements of second-degree murder and attempted murder were the central issues at trial.

Pre-trial motions

8Pre-trial motions were heard in advance of trial by Latimer J., in July 2025. These centred on the admissibility of extrinsic prior discreditable conduct evidence sought to be adduced by the Crown, from Diana Moreira, and the child witness A.J., for the purpose of informing the trial judge’s assessment of Dylon Moreira’s state of mind at the time of the alleged events. These comprehended allegations that on prior occasions he abused Vanessa Legate, and threatened his mother’s life out of concern that she was going to sell their home. Justice Latimer held that the probative potential of this evidence significantly outweighed any prejudicial impact on the trial, and ruled that it was all admissible at trial, noting, of course, that is for the trier of fact at trial to assess the import and the weight to be given to this evidence at trial.

The evidence at trial

9The Crown presented evidence from 14 witnesses: Detective Constable Matthew McPherson, who took photographs of Dylon Moreira and Diana Moreira in hospital, and photographs of the post-mortem examination of Vanessa Legate, as well as the scene at 35 Cayley Court; Dr. Caroline Lemieux, a forensic pathologist who conducted the post-mortem examination of Vanessa Legate and gave evidence regarding her injuries, including 21 stab wounds, and the likely cause of her death from these; A.J., the young child who was stabbed, who described what she experienced and what she saw on the evening of November 15, 2022, as well as the history of previous interactions between Dylon Moreira and her mother; Dr. James Bain, Chief of Pediatric Plastic Surgery at McMaster Children’s Hospital, who performed surgery on A.J. on November 16, 2022, to treat her nine wounds; Constable Austin Eaves, a WRPS police officer who attended at 35 Cayley Court; Diana Moreira, the mother of Dylon Moreira, who was stabbed seven times; Dr. Samir Faidi, a trauma surgeon at Hamilton General who operated on Diana Moreira and who described her injuries; Detective Constable Matthew Boniface; Constable Colin Dawson; Constable Ashley Vanderkolk; Constable Andrew Crisman; Constable Brent Reeve; and Constable Taylor Smith, all of whom were WRPS police officers who attended at 35 Cayley Court on 15 November, 2022, and who described what they observed there; and Karryn Wall, a forensic toxicology scientist from the Centre for Forensic Sciences in Toronto, who described the analysis of a blood sample taken from the accused Dylon Moreira.

10The Defence called the accused person, Dylon Moreira.

11In addition, a number of Agreed Statements of Fact (ASF) were arrived at between the parties, and made exhibits in evidence:

• An ASF regarding blood swabs and DNA. WRPS Detective Jeffrey Saunders attended 35 Cayley Court to conduct a Blood Pattern Analysis Examination, photographing the scene and collecting several blood swabs, which were later submitted to the Centre of Forensic Sciences in Toronto for analysis by a Biologist. The results of that analysis were: that Vanessa Legate cannot be excluded as the source of a female DNA profile; that Diana Moreira cannot be excluded as the source of another female DNA profile; that A.J. cannot be excluded as the source of a female DNA profile; and that Dylon Moreira cannot be excluded as the source of a male DNA profile. For all four, the STR DNA results are estimated to be greater than one trillion times more likely to have originated from them than if it originates from an unknown person, unrelated to them.
• An ASF regarding a knife and DNA. A fixed blade green handle knife, 8 inches in length with a 3.5-inch blade was located and seized in the upper basement level of the residence. The knife was packaged and submitted to the Centre for Forensic Sciences for analysis by a Biologist. The results of that analysis are: Vanessa Legate cannot be excluded as the source of a female DNA profile from a swab of blood staining on the cutting edge of the knife; Dylon Moreira cannot be excluded as the source of a male DNA profile staining on the cutting edge of the knife; Vanessa Legate cannot be excluded as the source of a female DNA profile located on a swab of blood staining on the handle of the knife; and Dylon Moreira cannot be excluded as the source of a male DNA profile located on a swab of blood staining found on the handle of knife. For all four samples, the STR DNA results are estimated to be greater than one trillion times more likely to have originated from each of them than to have originated from an unknown person, unrelated to them.
• Admissions pursuant to s.655 of the Criminal Code, including: date, jurisdiction, identity, continuity of the scene at 35 Cayley Court and exhibits located therein, and that Dylon Moreira’s November 24, 2022 videotaped statement to Detective Duane Gingerich of the Waterloo Regional Police Service was voluntary;
• Two ASF regarding the treatment of Dylon Moreira at Grand River Hospital in Kitchener and the hospital chart;
• An ASF concerning the CFS Toxicology Report regarding a blood sample taken from Dylon Moreira, indicating that his blood contained: Methamphetamine, Amphetamine, THC and Lorazepam;
• An ASF regarding the time of death of Vanessa Legate, that she was pronounced deceased by hospital staff at 11:04 p.m. on November 15, 2022;
• An ASF regarding photographs of Dylon Moreira receiving medical attention in the upper-level basement of 35 Cayley Court, Kitchener, taken on the evening of November 15, 2022; and,
• An ASF regarding continuity of the knife
• The criminal record of Dylon Moreira was made Exhibit 21 in evidence. Mr. Moreira has criminal convictions for assault, assault with a weapon, aggravated assault, mischief, assault with intention to resist arrest, and failure to comply with a release order.

The evidence of A.J.

12A.J. gave evidence at trial. Pursuant to s 715.1 of the Criminal Code, she adopted the contents of her videotaped statement to police made on November 17, 2022, and this formed part of her evidence at trial. Her evidence was that the catalyst for Dylon Moreira to “snap” and to attack her mother with a knife was his assertion that her older brother Brandon had hacked his computer, and her telling him to “calm down”. A.J. testified that while he was stabbing her mother, he shouted “you’re all dead, everyone’s going down, you’re all dead!” Dylon had no injuries when the incident of him stabbing Vanessa Legate started. When he was attacking them, both A.J. and her mother shouted, “Dylon, we love you!” He picked A.J. up, spun her, threw her to the floor, and started choking her. Her mother was hitting him on the back. A.J. blacked out. When she regained consciousness, she ran upstairs and encountered Diana Moreira, with whom she left the house. A.J. said that the pit bull dog Bricks tried to bite Dylon when Dylon attacked her.

13On cross-examination, A.J. denied that her mother had grabbed the knife first, or stabbed Dylon Moreira first, and insisted that Dylon Moreira had stabbed Vanessa Legate first.

The evidence of Diana Moreira

14The evidence of Diana Moreira was that, prior to the incident on November 15, 2022, “there was a lot of anger in the house.” On that evening, she heard a loud noise and went out into the upstairs hall. She saw Dylon Moreira running towards her. He was coming up the stairs. He said nothing. She tried to run into the bathroom and shut the door, but he overpowered her. He got on top of her. He started to stab her repeatedly with a knife. He put his knife against her neck and tried to cut her, but she was wearing a large cross. The cross blunted the knife stroke, then fell to the floor. She felt blood shooting out of her neck. Dylon then ran downstairs again.

15She went to her bedroom window and yelled out that her son had stabbed her. A neighbour three doors down heard her and told her to come outside. She went down the stairs, saw A.J., grabbed her, and left the house with her.

The evidence of Dylon Moreira

16The accused person Dylon Moreira gave evidence at trial. He related that he had had mental health difficulties for almost three years before the trial. He confirmed that he was taking medication during the trial. He assured the Court that he felt stable enough to testify. At several points during the trial before me, Defence counsel confirmed with Mr. Moreira that he felt focused enough to be able to continue with the trial.

17My own observation was that Mr. Moreira appeared subdued, but alert, and able to give cogent evidence during his testimony. It was evident that he had been closely following the evidence at trial.

18Mr. Moreira denied that he had made statements to his mother before November 15 that he would blow fentanyl in her face, and get out of jail and kill her. He knew that his mother wanted to sell the house.

19Dylon Moreira testified that he frequently heard voices in his head, including that of his brother, father and cousins, telling him not to trust anyone, and saying that Steve Jones was entering the house through a window and was poisoning and drugging him.

20He was prescribed medication by a physician but had stopped taking them before November 15, 2022, because he did not like the way that they made him feel. He confirmed that he used illegal drugs, including crystal meth, up to the time of the incident. He stated that he used crystal meth with Vanessa Legate. He denied that he had hit Vanessa Legate with a chair on a previous occasion, but did acknowledge that on one occasion he had punched her in the ribs.

21Mr. Moreira testified that on November 15, 2022, he had taken crystal meth. He picked up A.J. from her school, then went back to pick up Vanessa from her work at Giant Tiger a 6 p.m. They made dinner and conversed. Both he and Vanessa took crystal meth on that evening by snorting it.

22He said that he was hearing voices telling him not to trust anyone, and that Steve Jones was being let in through the basement window.

23He was upset because he had discovered a virus on his computer the day before, and thought that it had originated from Vanessa Legate’s son. Vanessa insisted that it was not her son who was responsible. He said that he started to walk away from her, then felt something hit him in the back of the head. He did not know at the time what it was. He said that he grabbed the knife and ended up stabbing her back with the knife. He did not see A.J.

24He testified while viewing the photographs taken of him in hospital later that night depicting injuries to his head, that he did not do this to himself, nor did he remove a surgical staple in order to get attention. He was not sure how the wounds got there. He did not have any injuries prior to his interactions with Vanessa. He said neither dog attacked him.

25He said that he went up the stairs and that Vanessa followed him. He said that she stabbed Bricks. He did not know that he had been stabbed when he got to the top of the stairs. After he saw her stab the dog, he fought her for the knife and tried to grab it. His hand got cut.

26He said that he ended up getting the knife, then stabbed Vanessa. Voices were telling him to protect himself. He did not see A.J. and did not hear A.J. say anything to him.

27He was shown photographs of the injuries to Vanessa, and said that he did not remember inflicting them. He specifically said that he did not know how what may have been the fatal stab wound (identified on the autopsy as stab wound “G”) occurred. He said that after stabbing Vanessa the next thing he remembered was the police waking him up on his bedroom floor.

28He testified that he did not remember stabbing A.J. or his mother. He acknowledged that there was nobody else in the house. He said that it had never crossed his mind to want to kill A.J. or his mother.

29He asserted that, when being taken out of the house by the police to an ambulance, he stated that Vanessa had stabbed him first.

30He denied having an intention to kill Vanessa, and said that he did not recollect stabbing her in the face or chest. He said that he was just trying to protect himself.

31On cross-examination, he stated that he was aware enough to drive to pick up A.J. at school, and Vanessa at her workplace at Giant Tiger.

32Mr. Moreira said that the voices that he heard never told him to go out and hurt people. He acknowledged that he never went back to his doctor to change medications, just stopped taking them. He learned how to live with the voices, and carried on with his daily routine.

23He acknowledged that during his statement to Detective Gingerich on November 24, 2022, he had no memory of how he got the injuries on his head, and that he had told Detective Gingerich that he had stopped doing crystal meth and did not like it.

Edgar application

24At the conclusion of Mr. Moreira’s testimony, the Defence made an Edgar application regarding his assertion that he said, “Vanessa stabbed me first”. Pursuant to the dicta of Sharpe J.A. at para. 72 in R. v. Edgar, 2010 ONCA 529, spontaneous exculpatory statements made by an accused person upon or shortly after arrest may be admitted as an exception to the general rule excluding prior consistent statements for the purpose of showing the reaction of the accused when first confronted with the accusation, provided the accused testifies and thereby exposes himself or herself to cross-examination. The purported statement of the accused is not strictly evidence of the truth of what was said, but is evidence of the reaction of the accused, which is relevant to the credibility of the accused and as circumstantial evidence that may have a bearing of guilt or innocence.

25I allowed the application admitting the purported statement into evidence. But its reliability and weight are different issues, which I shall address below.

Findings of Fact from the evidence

26Upon considering the evidence, I make the following findings of fact based on the evidence that I do accept. In 2022, Dylon Moreira lived at 35 Cayley Court, Kitchener, with his mother, Diana Moreira. He occupied a split-level basement on the lower two floors, while Diana Moreira occupied the three floors above. Dylon Moreira’s girlfriend, Vanessa Legate, and her seven-year-old daughter A.J., often stayed in the basement with him.

27In 2022, Diana Moreira decided to sell 35 Cayley Court. On several occasions in 2022, including in November, Dylon Moreira told Diana Moreira that she could not sell 35 Cayley Court because nobody except a member of the Moreira family could live in it. He told her that she was not of the Moreira bloodline and that the house should be his. He told her that if she sold the home, he would burn it down with her inside it.

28On another occasion in 2022, Dylon Moreira told Diana Moreira that if she did not hurry up and die, (Diana Moreira was diagnosed with Non-Hodgin’s Lymphoma in 2016), he would blow pure Fentanyl in her face.

29On another occasion in the summer or fall of 2022, Diana Moreira telephoned police due to an altercation between Dylon Moreira and Vanessa Legate. Some days later, Dylon Moreira told Diana Moreira that if she told anyone about what had happened between himself and Ms. Legate, he would get out of jail and kill her.

30On another occasion in the summer or fall of 2022, Dylon Moreira announced, in front of Diana Moreira, Vanessa Legate and A.J., that if he were ever to hurt anybody in the house, he would “take everybody out” and that the house would be a “bloodbath.”

31On November 15, 2022, at approximately 10 p.m., Dylon Moreira, Vanessa Legate and A.J. were in the kitchen on the lower basement level of 35 Cayley Court. Ms. Legate and A.J. were putting bottled water in the refrigerator. Ms. Legate made a comment to Dylon Moreira, and he began stabbing her with a knife.

32A.J. fled the kitchen and went towards the staircase to the upper basement level. Dylon Moreira ran after her and caught her on the upper basement level. He stabbed A.J. nine times, in her arm, shoulder and back.

33Dylon Moreira left the basement and went to the top floor of the house. Diana Moreira was in the hallway outside of her en-suite bathroom. Dylon Moreira approached her, wrapped his arm around her neck and pulled her to the floor. He stabbed her six times in the neck and right arm. The cross that she wore suspended from her neck blunted the knife, and fell to the floor.

34Dylon Moreira then stopped stabbing Diana Moreira and returned to the basement. Diana Moreira went to her bedroom window and called out to neighbours for assistance. Several neighbours gathered outside of the house and persuaded her to leave the home. At approximately 10:05 p.m., a neighbour called 911.

35Diana Moreira went downstairs and towards the front door. She located A.J. in the ground floor hallway and hurriedly left the house with her, not stopping to find A.J.’s shoes. A neighbour took Diana Moreira and A.J. to their home to wait for emergency services.

36At approximately 10:10 p.m., WRPS officers arrived at 35 Cayley Court. PC Eaves entered the residence, looked into the basement, and saw Dylon Moreira lying at the bottom of the stairs. Mr. Moreira was covered in blood and was holding onto Ms. Legate, whose blood-soaked body had been covered with miscellaneous items.

37Ms. Legate did not respond to verbal prompts or physical contact from police officers. PC Eaves and PC Crowe carried Ms. Legate out of the basement and into a living room upstairs, where paramedics tried to address her stab wounds. Paramedics found stab wounds to the base of Ms. Legate’s skull, the left side of her face, and six actively bleeding stab wounds to the middle and upper right side of her back.

38PC Nelson dealt with Dylon Moreira and noticed several lacerations on the back of his head. PC Nelson told Dylon Moreira that he was under arrest for assault, and Mr. Moreira replied: “Steve Jones.” (Steve Jones is A.J.’s biological father). PC Nelson located a knife approximately 30 cm from Dylon Moreira’s body and arrested him for Assault with a Weapon. The Respondent replied that his name was Dylon Moreira and gave his date of birth.

39At approximately 10:30 p.m., Dylon Moreira was removed from the residence and taken to a waiting ambulance. He was transported to Grand River Hospital for treatment for injuries to his head.

40Vanessa Legate was transported to St. Mary’s General Hospital, where she was pronounced deceased at 11:04 p.m.

41A.J. was transported to McMaster Children’s Hospital in Hamilton, where medical staff identified nine stab wounds to her right ear, right clavicle, upper right arm, right distal thigh, and back/thoracic spine. An operation was done on an emergency basis. The wounds she sustained were life-threatening and might readily have resulted in her death.

42Diana Moreira was transported to Hamilton General Hospital, where medical staff identified six stab wounds to her posterior right neck, right arm, and right hand. She had surgeryon an emergency basis. The wounds she sustained were life-threatening.

Position of the Parties

43The Crown submits that it has proven all of the essential elements of the offences and that Dylon Moreira should be found guilty on all five Counts on the Indictment. It submits that it has proven that Dylon Moreira has a specific intention to kill Vanessa Legate, or that he meant to cause her bodily harm and was reckless as to whether she would die or not, and that he had a specific intention to kill both A.J., and Diana Moreira. It contends that Dylon Moreira’s evidence was incredible and incapable of raising a reasonable doubt, as it was internally inconsistent as well as externally inconsistent with other evidence. It says that there is no air of reality to the defences of self-defence and provocation. It contends that A.J.’s evidence was unshaken on cross-examination, and that the inconsistencies in her evidence were only on minor details. It suggests that Diana Moreira’s evidence was both credible and reliable, except for her evidence regarding what she says she heard Dylon Moreira say when he was being brought out of the house to the ambulance.

44The Defence does not contest that Vanessa Legate, A.J. and Diana Moreira were stabbed, or that Dylon Moreira was the only other person in the house, nor does it suggest that any of the witnesses called by the Crown were lying, although it does question the reliability of some of their evidence. It does advance defences of self-defence and provocation, and that there should be a reasonable doubt on the issue of actual specific intent to kill. It asserts that there is circumstantial evidence that both Dylon Moreira and Vanessa Legate had used crystal meth that day. It submits that Dylon Moreira should be found not guilty on all charges as the Crown has not proven all of the essential elements of the offences beyond a reasonable doubt.

Law

45The first legal issue upon which I must instruct myself relates to the presumption of innocence and the legal standard of proof beyond a reasonable doubt.

46It is fair to say that the presumption of innocence is perhaps the most fundamental principle in Canadian criminal law, and the standard of proof beyond a reasonable doubt in order to displace the presumption of innocence is an essential part of the law that governs criminal trials in this country. Under Canadian criminal law, every person charged with an offence is presumed to be innocent until the prosecution proves his or her guilt beyond a reasonable doubt. An accused person does not have to prove that he or she is innocent. It is up to the prosecution to prove its case on each essential element of the offence beyond a reasonable doubt. An accused person is presumed innocent throughout his or her trial until the trier of fact, weighing all of the evidence, makes their determination at the end of the trial.

47The standard of proof beyond a reasonable doubt does not apply to the individual items of evidence or to separate pieces of evidence that make up the prosecution’s case, but to the total body of evidence upon which the prosecution relies to prove guilt. In order to secure a conviction, it is incumbent on the prosecution to prove each essential element of the offence charged to the standard of proof beyond a reasonable doubt. The burden or onus of proving the guilt of an accused person beyond a reasonable doubt rests upon the prosecution and it never shifts to the accused person.

48The Court must find an accused person not guilty if it has a reasonable doubt about his or her guilt on all the essential elements of the offence after having considered all of the evidence.

49The term “beyond a reasonable doubt” has been used for a very long time. It is part of our history and tradition of justice.

50In R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, the Supreme Court of Canada proposed a model jury charge on reasonable doubt. The principles laid out in Lifchus have since been applied in a large number of Supreme Court and appellate court decisions. In substance, a reasonable doubt is not a far-fetched or frivolous doubt. It is not a doubt based on sympathy or prejudice; rather, it is a doubt based on reason and common sense. It is a doubt that arrives at the end of the case, based not only on what the evidence tells the court, but also on what that evidence does not tell the court. The fact that the person has been charged is no way indicative of his or her guilt.

51In R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 242, the Supreme Court of Canada declared that:

... an effective way to define the reasonable doubt standard for a jury is to explain that it falls much closer to absolute certainty than to proof on a balance of probabilities....

52The rigour of the standard of proof beyond a reasonable doubt of all the essential elements of the offence is our society’s bulwark against the potential for wrongful convictions, and must not be diluted.

53On the other hand, it should be remembered that it is nearly impossible to prove anything with absolute certainty. The prosecution is not required to do so. Absolute certainty is a standard of proof that does not exist in law. The prosecution only has the burden of proving the guilt of an accused person beyond a reasonable doubt. To put it in perspective, if the court is convinced, or would have been convinced, that the accused is probably or likely guilty, then the accused would be acquitted since proof of probable or likely guilt is not proof of guilt beyond a reasonable doubt.

54The second legal issue is the assessment of the testimony of witnesses. Evidence may include testimony under oath or solemn affirmation before the court by witnesses about what they observed or what they did. It could be documents, photographs, videos, maps or other items introduced by witnesses, the testimony of expert witnesses, formal admissions of facts by either the Crown or the Defence, and matters of which the court takes judicial notice.

55It is not unusual that some evidence presented before the court may be contradictory. Often, witnesses may have different recollections of events. The court has to determine what evidence it finds credible and reliable.

Credibility and Reliability

56Credibility is not synonymous with telling the truth, and the lack of credibility is not synonymous with lying. Many factors influence the court’s assessment of the credibility of the testimony of a witness. For example, a court will assess a witness’ opportunity to observe events, as well as a witness’ reasons to remember. Was there something specific that helped the witness remember the details of the event that he or she described? Were the events noteworthy, unusual and striking, or relatively unimportant and, therefore, understandably more difficult to recollect? Does a witness have any interest in the outcome of the trial; that is, a reason to favour the prosecution or the defence, or is the witness impartial?

57The demeanour of the witness while testifying is a factor which can be used in assessing credibility; that is, was the witness responsive to questions, straightforward in his or her answers, or evasive, hesitant or argumentative? However, demeanour must be assessed with caution, and should be assessed in conjunction with an assessment of whether the witness’ testimony was internally consistent, that is, consistent with itself, and externally consistent with the other uncontradicted or accepted facts in the evidence.

58The Court of Appeal for Ontario has repeatedly cautioned against over-reliance on demeanour as a factor in assessing the credibility of witnesses and the reliability of their evidence.

59Minor discrepancies, which can and do innocently occur, do not necessarily mean that the testimony should be disregarded. However, a deliberate falsehood is an entirely different matter. It is always serious, and it may well taint a witness’ entire testimony.

60The Court is not required to accept the testimony of any witness except to the extent that it has impressed the court as credible. The Court may accept the evidence of a particular witness in total, in part, or not at all. In Clark v. The Queen, 2012 CMAC 3, at paras. 40-42, Watt J.A. gave very clear guidance as to the governing principles in the assessment of credibility of witnesses:

[40] First, witnesses are not “presumed to tell the truth.” A trier of fact must assess the evidence of each witness, in light of the totality of the evidence adduced at the proceedings, unaided by any presumption, except the presumption of innocence [of the accused person]: R . v. Thain, 2009 ONCA 223, 243 CCC (3d) 230, at para. 32.

[41] Second, a trier of fact is under no obligation to accept the evidence of any witness simply because it is not contradicted by the testimony of another witness or other evidence. The trier of fact may rely on reason, common sense, and rationality to reject uncontradicted evidence: Aguilera v Canada (Minister of Citizenship and Immigration), 2008 FC 507, at para 39; R.K.L. v Canada (Minister of Citizenship and Immigration), 2003 FCT 116, at paras 9-11.

61Credibility is not an all or nothing proposition. Nor does it follow from a finding that a witness is credible that his or her testimony is reliable. A finding that a witness is credible does not require a trier of fact to accept the witness’ testimony without qualification. Credibility is not co-extensive with proof.

62As Justice Watt indicated at para. 48 of Clark:

Testimony can raise veracity and accuracy concerns. Veracity concerns relate to a witness’ sincerity, his or her willingness to speak the truth as a witness believes it to be. In a word, credibility. Accuracy concerns have to do with the actual accuracy of the witness’ account. This is reliability. The testimony of a credible, in other words an honest witness, may nonetheless be unreliable.

63The concept of reasonable doubt applies to credibility.

64The term “credibility assessment” is a shorthand for the assessment of two qualities of a witness’s testimony: their credibility, and their reliability. It is helpful to distinguish the concepts from one another even though they are analyzed in tandem.

65Credibility and reliability are different. Credibility has to do with a witness’s veracity or honesty. Reliability has to do with the accuracy of a witness’s testimony.

66Accuracy engages consideration of the witness’s ability to accurately observe, recall and recount events in issue.

67Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible or honest witness may still give unreliable evidence.

W.(D.) Assessment

68The accused person Dylon Moreira gave evidence at the trial, and that evidence constituted a denial of many of the essential elements of the offences charged on the Indictment, as well as in support of the defences of self-defence and provocation.

69Given this, the Court must focus its attention on the analytical process specified in the reasons for decision of Justice Cory in the Supreme Court of Canada case of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, for cases such as this where the accused has testified and that evidence essentially constitutes a denial of one or more of the essential elements of the offence.

70The principles in W.(D.) apply in cases where the accused gives evidence. However, the principles of W.(D.) will also apply in any case where a crucial issue turns on credibility: R. v. F.E.E., 2011 ONCA 783, per Watt J.A. at para. 104. The W.(D.) analysis applies not only to an accused’s testimony, but also to other exculpatory evidence that emerges during a trial that relates to a vital issue: R. v. B.D., 2011 ONCA 51, per Blair J.A. at paras. 113 - 114, and R. v. Cyr, 2012 ONCA 919, per Watt J.A. at para. 50.

71The guidance in W.(D.)provides as follows:

a. first, if I believe the evidence of the accused, then I must acquit;

b. second, if I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit; and

c. third, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

72In R. v. J.H.S., 2008 SCC 30 at paragraph 12, the Supreme Court of Canada quoted approvingly the following passage from R v. H.(C.W.) (1991) 1991 3956 (BC CA), 68 C.C.C. (3d) 146 (BCCA) where Wood J.A. suggested the additional instruction:

I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit.”

73Helpful guidance on the application of these principles has been given by Justice David Paciacco, writing extra-judicially, in ‘Doubt About Doubt: Coping with R. v. W.(D.) and Credibility Assessment’, (2017) 22:1 Can Crim L Rev 31.

74This trial is not a credibility contest between the complainants and the accused, in which one simply chooses whose version one prefers. The lack of credibility on the part of the accused does not equate to proof of his guilt beyond a reasonable doubt. The persistence of a reasonable doubt is incompatible with a finding of guilty.

Essential elements of the offence of second-degree murder s.229(a)

75Dylon Moreira is charged with the second-degree murder of Vanessa Legate.

76For Dylon Moreira to be found guilty of second-degree murder, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Dylon Moreira caused Vanessa Legate’s death;

ii. that Dylon Moreira caused Vanessa Legate’s death unlawfully; and

iii. that Dylon Moreira had the state of mind required for murder.

77To prove that Dylon Moreira’s conduct caused Vanessa Legate’s death, Crown counsel must prove beyond a reasonable doubt that Dylon Moreira’s conduct contributed significantly to her death. A person’s conduct may contribute significantly to another person’s death even though that conduct was not the sole or main cause of the other person’s death. It is not always a crime to cause another person’s death. It is a crime, however, to cause the death of another person by an unlawful act.

78The unlawful act alleged in this case is that Dylon Moreira stabbed Vanessa Legate with a knife 21 times.

Did Dylon Moreira have the state of mind required for murder?

79Murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove beyond a reasonable doubt that Dylon Moreira either meant to kill Vanessa Legate, or meant to cause her bodily harm that he knew was likely to kill her, and was reckless whether she died or not. In other words, to prove that Dylon Moreira committed murder, Crown counsel must demonstrate beyond a reasonable doubt either that Dylon Moreira meant to kill Vanessa Legate, or that he meant to cause her bodily harm that he knew was so serious and dangerous that it would likely kill her and proceeded despite his knowledge that she would likely die as a result of that bodily harm. Crown counsel does not have to prove both. One is enough. If Dylon Moreira did not mean to do either, he committed manslaughter.

80To determine Dylon Moreira’s state of mind, what he meant to do, one should consider all the evidence, including:

• what he did or did not do;
• how he did or did not do it; and
• what he said or did not say.

One should look at Dylon Moreira’s words and conduct before, at the time and after the unlawful act that caused Vanessa Legate’s death. All these things, and the circumstances in which they happened, may shed light on Dylon Moreira’s state of mind at the time.

81A common sense inference may be made, that a person usually knows what the predictable consequences of their actions are, and means to bring them about.

Attempted Murder s. 239 Criminal Code

82Dylon Moreira is charged with the attempted murder of A.J. and of Diana Moreira.

83For Dylon Moreira to be found guilty of attempted murder, Crown counsel must prove each of two essential elements beyond a reasonable doubt:

i. that Dylon Moreira meant to kill A.J. and Diana Moreira; and

ii. that he did something for the purpose of carrying out that intention, in this case, by stabbing each of them repeatedly with a knife.

84Attempted murder requires proof of a particular or specific state of mind. Crown counsel must prove beyond a reasonable doubt that when he did the things that amount to an attempt, Dylon Moreira meant to kill A.J. and Diana Moreira. Nothing less will do.

85As the Supreme Court of Canada stated in R. v. Ancio, 1984 69 (SCC), [1984] 1 S.C.R. 225, “the mens rea for an attempted murder cannot be less than the specific intention to kill.”

86To determine whether Crown counsel has proven beyond a reasonable doubt that Dylon Moreira meant to kill A.J. and Diana Moreira when he stabbed them with a knife, one should consider:

• what he did or did not do;
• how he did or did not do it; and
• what he said or did not say.

87At para. 20 in R. v. Payne, 2013 ONSC 4609, in considering whether there is sufficient evidence of the specific intent to kill on a charge of attempt murder involving a stabbing, Then J. set out a list of factors a judge should consider cumulatively and together with all the evidence in the case:

(i) The nature of the weapon;

(ii) Is the stab wound to a vital part of the anatomy (i.e. brain, neck, heart, abdomen);

(iii) The force with which the wound was inflicted;

(iv) The number of wounds;

(v) The evidence or lack of evidence of premeditation or spontaneity;

(vi) The presence or absence of defensive motivation.

88A reasonable inference is available that as a matter of common sense, that a person usually knows what the predictable consequences of their actions are, and means to bring them about.

Aggravated Assault s. 268 Criminal Code

89For Dylon Moreira to be found guilty of aggravated assault, Crown counsel must prove each of these essential elements beyond a reasonable doubt:

i. that Dylon Moreira intentionally applied force to A.J. and to Diana Moreira;

ii. that A.J. and Diana Moreira did not consent to the force that Dylon Moreira intentionally applied;

iii. that Dylon Moreira knew that A.J. and Diana Moreira did not consent to the force that he intentionally applied; and

iv. that the force Dylon Moreira intentionally applied wounded, maimed, or disfigured A.J. and Diana Moreira.

90The application of force may be direct, for example, by Dylon Moreira using a part of his body, such as a hand or foot. Or it may be indirect, by him using an object, such as a knife.

91Force includes any physical contact with another person, whether violent or gentle. However, to be an assault, Dylon Moreira must apply the force intentionally and against A.J. and Diana Moreira’s will. An accidental touching is not an assault because it is not an intentional application of force.

92The word “intentionally” refers to Dylon Moreira’s state of mind when he applies the force. “Intentionally” means “on purpose”. In other words, not by accident.

93To “wound” means to injure someone in a way that breaks or cuts or pierces or tears the skin or some part of the person’s body. It must be more than something trifling, fleeting or minor, such as a scratch. It must be a hurt or injury that interferes with the integrity, health, or well-being of the person wounded. To “maim” means to cripple, mutilate or disable. It means to cause another person to lose the use or function of some part of their body. The loss does not have to be permanent. To “disfigure” means to deform or deface.

94Crown counsel must prove beyond a reasonable doubt that Dylon Moreira’s intentional application of force contributed significantly to the wounding, maiming, or disfiguring of A.J. and Diana Moreira.

95Crown counsel does not have to prove beyond a reasonable doubt that Dylon Moreira meant to wound, maim or disfigure A.J. and Diana Moreira when he intentionally applied force to them by stabbing them with a knife. What Crown counsel does have to prove, however, is that a reasonable person, in the circumstances, would realize that the force Dylon Moreira intentionally applied would put them at risk of suffering some kind of bodily harm, although not necessarily serious bodily harm or the precise kind of harm that they suffered here. “Bodily harm” is any kind of hurt or injury that interferes with another person’s health or comfort. It has to be something that is more than just brief or fleeting, or minor in nature.

Provocation reducing murder to manslaughter s.232 Criminal Code

96Provocation only becomes an issue to decide if Crown counsel has proven beyond a reasonable doubt that, in unlawfully killing Vanessa Legate, Dylon Moreira committed murder. The killing that would otherwise be murder is reduced to manslaughter if Dylon Moreira committed it in the heat of passion caused by sudden provocation.

97In general terms, provocation involves a sudden loss of control by Dylon Moreira in response to a serious criminal offence committed by the deceased. As has often been said in the case law, provocation is a concession to human frailty. It is subject to certain specific requirements.

98Provocation is not something that Dylon Moreira must prove to reduce what otherwise would be murder to manslaughter. It is up to Crown counsel to prove beyond a reasonable doubt that Dylon Moreira was not acting under provocation when he murdered Vanessa Legate.

99To prove that Dylon Moreira was not acting under provocation, Crown counsel must prove beyond a reasonable doubt that any of the essential elements of provocation was absent. It does not matter which element was absent.

100To amount to provocation, Vanessa Legate’s words or conduct must amount to a serious criminal offence. In addition, provocation also involves two separate tests or standards that apply to Dylon Moreira’s words or conduct. The first is the “ordinary person” test. The second is the “accused person” test.

101The purpose of the ordinary person test is to set a standard that everyone is expected to observe. This standard reflects the degree of self-control and restraint that we expect from all members of our society. One considers this ordinary person test or standard first. One goes on to consider the second – the accused person – test or standard only if there is reasonable doubt about whether what Vanessa Legate said or did would provoke an ordinary person to lose their power of self-control.

102The second – accused person – test or standard recognizes that it is appropriate to consider the individual characteristics and circumstances of the person charged in cases where what the deceased said or did would cause an ordinary person to lose the power of self-control. This test requires one to consider Dylon Moreira’s individual characteristics and circumstances.

103The first question, was the serious criminal offence sufficient to deprive an ordinary person of the power of self-control, has to do with the ordinary person’s reaction to the serious criminal offence Vanessa Legate is asserted to have committed. In answering this question, one does not consider any factors or features that are peculiar or unique to Dylon Moreira, for example, temperament, attitude, or intoxication.

104An ordinary person is one who is not exceptionally excitable, combative or intoxicated. The ordinary person has a normal temperament and those powers of self-control that all of us expect our fellow citizens to have and exercise in our society today.

105In this case, an ordinary person is one who is the same age and sex as Dylon Moreira, who shares with him the same relevant characteristics that would give the serious criminal offence a special significance in the circumstances of this case. An ordinary person would also be one who has experienced the same serious criminal offence as him and shares the past history and relationship between Dylon Moreira and Vanessa Legate. In this case, the relevant characteristics are that they were in an intimate relationship.

106The question to answer about the ordinary person is not whether the ordinary person would have lost their self-control and have ended up doing exactly what Dylon Moreira did in this case, killing Vanessa Legate. The question is whether the ordinary person, with the characteristics described, faced with Vanessa Legate’s conduct in the same circumstances, would have lost their power of self-control. In other words, what is important is the loss of self-control, not the precise form it took.

107To answer this question, one must take into account everything that was said or done at the time, as well as the relationship and history between Dylon Moreira and Vanessa Legate, including any previous exchanges that occurred between them. Would an ordinary person in these same circumstances, with the same characteristics, confronted with the same serious criminal offence, have lost their power of self-control?

108If Crown counsel has demonstrated beyond a reasonable doubt that Vanessa Legate’s serious criminal offence was not sufficient to deprive an ordinary person of the power of self-control, one does not go on to consider any other questions about provocation.

108The next question requires one to decide is whether Vanessa Legate’s serious criminal offence occurred suddenly as far as Dylon Moreira was concerned. Suddenness is essential. Provoking conduct or words must strike upon a person’s mind, in this case Dylon Moreira’s mind, unexpectedly, when he was not prepared for it. The immediate effect of Vanessa Legate’s words or conduct, which Dylon Moreira did not expect must be to cause him to lose the power of self-control.

109If Crown counsel has demonstrated beyond a reasonable doubt that Vanessa Legate’s conduct was not sudden for Dylon Moreira, one does not go on to consider any other questions about provocation.

110If there is a reasonable doubt about whether Vanessa Legate’s conduct was sudden for Dylon Moreira, one must go on to the next question.

111Did Dylon Moreira act suddenly before regaining self-control? Dylon Moreira’s reaction to Vanessa Legate’s words or conduct, must be spontaneous, in the heat of passion as it is sometimes described. This means that Dylon Moreira must react to Vanessa Legate’s words or conduct immediately, not after he had regained self-control. And Dylon Moreira’s sudden reaction must also be to her words or conduct, not to something else such as mere anger or desire for revenge.

112To answer this question, one must take into account all the circumstances: Dylon Moreira’s mental, physical and emotional condition. The circumstances in which the serious criminal offence occurred. His personal characteristics. The background and history of the relationship between them. One must also consider whether, even if Dylon Moreira lost his power of self-control, he regained that self-control before killing Vanessa Legate.

113The critical question to decide is whether Dylon Moreira reacted suddenly to Vanessa Legate’s conduct in the heat of the moment before he regained his self-control.

Self-Defence s. 34 Criminal Code

114An accused person who believes on reasonable grounds that force is being used or threatened against them or another person may do something that otherwise would be an offence but be acting lawfully (and not be guilty of any crime) provided that what they do is for the purpose of defending or protecting themselves or another person from that use or threat of force, and is reasonable in the circumstances as the accused knew or honestly believed them to be. This is so even if the accused provoked the use or threat of force or intentionally killed or seriously injured the person who used or threatened to use the force.

115Dylon Moreira does not have to prove that he was acting in lawful defence or protection of himself when what he did what is alleged to amount to murder. It is for Crown counsel to demonstrate beyond a reasonable doubt that Dylon Moreira was not acting in lawful defence or protection of himself.

116The requirements for a valid claim of self-defence are set out at s.34 of the Criminal Code, and have recently been examined by the Supreme Court of Canada in R. v. Khill, 2021 SCC 37.

117To decide whether Dylon Moreira was acting in lawful defence or protection of himself, one considers three issues. Each issue represents an essential element of self-defence:

• Did Dylon Moreira believe, on reasonable grounds, that force was being used against him?
• Did he do something for the purpose or defending or protecting himself from that use or threat of force?
• Was his conduct reasonable in the circumstances?

These elements may be succinctly described as:

• reasonable belief
• purpose
• reasonable response

118Did Dylon Moreira reasonably believe that force was being used or threatened against him? The reasonable belief element requires one to consider Dylon Moreira’s state of mind, his perception of events and circumstances that led him to act as he did. The question is not whether force was actually being used or its use threatened against him, but rather whether Dylon Moreira reasonably believed in the circumstances that force was being used against him. He may be mistaken in his belief about the use or threatened use of force as long as the mistake was reasonable in the circumstances as he knew or believed them to be.

119To answer this question about the reasonable belief element, one considers first whether he actually believed (even if he was mistaken in his belief) that force was being used or its use threatened against him. Unless he actually believed that force or a threat of force was being used against him, he was not acting in lawful self-defence. To decide this issue, which has to do with Dylon Moreira’s state of mind, one considers all the evidence including, but not only:

• what he did or did not do;
• how he did or did not do it; and
• what he said or did not say.

120Dylon Moreira’s belief must also be reasonable in the circumstances as he knew or honestly (even if mistakenly) believed them to be.

121One considers next whether a reasonable person in the same circumstances as Dylon Moreira would have a similar belief that force was being used or threatened against him.

122A reasonable person is sane and sober, not exceptionally excitable, aggressive or fearful, a person who has the same powers of self-control that we expect our fellow citizens to exercise in society today. A reasonable person also shares the same characteristics, experiences and circumstances as Dylon Moreira to the extent that they may shed light on his belief at the time. These include, for example, any prior violent encounters between Dylon Moreira and Vanessa Legate, and any mental disabilities from which he may suffer.

123The danger that Dylon Moreira was in, or that he honestly and reasonably believed himself to be in does not have to be immediate. However, the immediacy, or otherwise of it is a factor to consider in assessing the honesty and reasonableness of his belief.

124To decide whether a reasonable person in the same circumstances as Dylon Moreira knew or would believe that force was being used or threatened against him, one considers all the circumstances including, but not only:

• what Dylon Moreira and Vanessa Legate did or did not do;
• how they did or did not do it;
• what they said or did not say;
• the nature of any prior or existing relationship between the parties, including any prior violence or threat of violence from Vanessa Legate to Dylon Moreira;
• the circumstances in which the words were used;
• the manner in which any words were communicated; and
• Dylon Moreira’s knowledge of Vanessa Legate’s reputation for violence.

125Did Dylon Moreira act for the purpose of defending himself from Vanessa Legate’s use or threat of force? Dylon Moreira’s conduct must be for the purpose of defending or protecting himself from Vanessa Legate’s use or threatened use of force. If he did not act for the purpose of defending or protecting himself from her use or threatened use of force, then he was not acting in lawful self-defence.

126To determine what was Dylon Moreira’s purpose in stabbing Vanessa Legate, in particular whether their purpose was to defend himself from her use or threatened use of force, one considers all the evidence, including but not only

• what they did or did not do;
• how they did or did not do it; and
• what they said or did not say.

One looks at what they said and did before, at the time and after Dylon Moreira did what he did.

127Was Dylon Moreira’ s conduct reasonable in the circumstances? This is the reasonable response element. Its purpose is to ensure that the law governing the defence of oneself, or another person conforms to the standard of conduct we expect of our fellow citizens. The defence is grounded in the conduct expected of a reasonable person with the characteristics and experiences of Dylon Moreira in the same circumstances.

128This element, reasonable response, focuses on what a reasonable person with the same characteristics and experiences as Dylon Moreira would have done in the same circumstances. The focus is not on what he thought at the time, rather on the reasonableness of what he did in the circumstances as he knew or honestly believed them to be.

129Anyone who defends or protects themselves or another person cannot be expected to know exactly how to respond to or deal with the situation or to know how much force to use to achieve their purpose. What is reasonable may include several alternatives. The issue here is not whether Dylon Moreira believed on reasonable grounds that he had no other course of action available to him, but rather whether what he did was a reasonable thing to do in the circumstances as he knew them or reasonably believed them to be.

130Whether Dylon Moreira’s conduct was reasonable is assessed according to the relevant circumstances of the parties, as well as of the conduct itself. This includes how the conduct developed and happened and the role each of the parties, played in it.

131A reasonable person is sane and sober, not exceptionally excitable, aggressive or fearful. They have the same powers of self-control that we expect our fellow citizens to exercise in our society today. A reasonable person has the same characteristics and experiences as Dylon Moreira that are relevant to his ability to respond to the use or threatened use of force. The reasonable person is a person of the same age, gender, physical capabilities, as well as past interaction and communication with Vanessa Legate as Dylon Moreira. A reasonable person cannot be expected to know exactly what course of conduct or how much force is necessary in self-defence.

132Here, one considers all the circumstances including, but not limited to:

• the nature of the force or threat;
• the extent to which the use of force was imminent;
• whether there were other means available to him to respond to the actual or potential use of force;
• Dylon Moreira’s role in the incident;
• whether anyone involved in the incident used or threatened to use a weapon;
• the size, age, gender and physical capabilities of each of the persons involved in the incident;
• the nature, duration and history of any relationship between those involved in the incident;
• any prior use or threat of force by any of those involved in the incident and the nature of that force or threat;
• any history of interaction or communication between those involved in the incident;
• the nature and proportionality of Dylon Moreira’s response to Vanessa Legate’s s use or threat of force;
• whether his conduct was in response to a use or threat of force that he knew was lawful.

Motive of complainants to lie

133In this case, there is no onus on Dylon Moreira to prove that the complainants had a motive to lie.

134It would be a reasoning error in assessing the credibility of an accused to consider his inability to explain why a complainant would lie.

135There is a distinction between the absence of evidence of a demonstrated motive to fabricate and affirmative proof of no motive to fabricate. The absence of evidence of a motive to fabricate must not be confused with the absence of such a motive. One must not conclude that complainants must be telling the truth because no motive to fabricate had been demonstrated. The absence of an established motive to fabricate is only one factor among many in assessing the complainant’s credibility.

136It is dangerous and impermissible to move from an apparent lack of motive to lie, to the conclusion that the complainant must be telling the truth. People may accuse others of committing a crime for reasons that may never be known, or for no reason at all.

137In R. v. Gerrard, 2022 SCC 13, the Supreme Court of Canada has succinctly summarized the relevant factors:

Two of these factors warrant a few additional comments. Lack of evidence of a complainant’s motive to lie may be relevant in assessing credibility, particularly where the suggestion is raised by the defence (R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 10-11; R. v. Ignacio, 2021 ONCA 69, 400 C.C.C. (3d) 343, at paras. 38 and 52).

Absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, is a common-sense factor that suggests a witness may be more truthful because they do not have a reason to lie. That said, when considering this factor, trial judges must be alive to two risks: (1) the absence of evidence that a complainant has a motive to lie (i.e. there is no evidence either way) cannot be equated with evidence disproving a particular motive to lie (i.e. evidence establishing that the motive does not exist), as the latter requires evidence and is therefore a stronger indication of credibility — neither is conclusive in a credibility analysis; and (2) the burden of proof cannot be reversed by requiring the accused to demonstrate that the complainant has a motive to lie or explain why a complainant has made the allegations (R. v. Swain, 2021 BCCA 207, 406 C.C.C. (3d) 39, at paras. 31-33).

Lack of embellishment may also be relevant in assessing a complainant’s credibility and often arises in response to suggestions that the complainant has a motive to lie. But, unlike absence of evidence of motive to lie, or the existence of evidence disproving a particular motive to lie, lack of embellishment is not an indicator that a witness is more likely telling the truth because both truthful and dishonest accounts can be free of exaggeration or embellishment. Lack of embellishment cannot be used to bolster the complainant’s credibility — it simply does not weigh against it. It may, however, be considered as a factor in assessing whether or not the witness had a motive to lie.

Testimony of children

138At the time of the alleged commission of the offences against her, A.J. was 7. She is now 10. She promised to tell the truth when she gave her evidence. The evidence of children must be approached on a common-sense basis bearing in mind their mental development, understanding and ability to communicate. As the trier of fact, I must determine how much or little to believe of her evidence. Relevant factors in this regard include: her capacity to observe; her capacity to recollect; her capacity to understand questions and frame intelligent responses; and her moral responsibility, whether she understands the duty to tell the truth, and the difference between truth and falsehood.

139Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. A.J. is evidently an intelligent young person who was able to communicate clearly during her testimony.

Issues

140The issues the Court must consider on this trial include:

1. Did Dylon Moreira cause the death of Vanessa Legate (actus reus)?

2. Did Dylon Moreira have the intent for second degree murder (foresight of death and specific intention to kill (mens rea)?

3. If so, does provocation of Dylon Moreira by Vanessa Legate reduce murder to manslaughter?

4. Should Dylon Moreira’s purported spontaneous exclamation while being escorted outside by police that “Vanessa stabbed me first” be admitted (as exception to hearsay rule), and, if so, what weight should be ascribed to it?)

5. Did Dylon Moreira act in self-defence?

6. Did Dylon Moreira stab A.J.?

7. Did Dylon Moreira stab Diana Moreira?

8. Should the Court apply “count-to-count” similar fact evidence in respect of the mens rea requirement for second degree murder and attempted murder under ss.229(a)(i) and 239: if the Court finds that a subjective intention to kill has been established in respect of one victim, apply and consider that evidence across counts in the determination of whether a specific intention to kill has been established in respect of the remaining victims.?

9. Did Dylon Moreira have the intent for attempted murder (intention to kill) of A.J.?

10. Did Dylon Moreira have the intent for attempted murder (intention to kill) of Diana Moreira?

11. Did Dylon Moreira have the intent for aggravated assault of A.J.?

12. Did Dylon Moreira have the intent for aggravated assault of Diana Moreira?

Analysis

141I start with an assessment of the credibility of the complainants. I found that A.J. was generally a credible witness, who understood the difference between truth and falsehood. I also found her evidence to be largely reliable. Although she was a young child at the time the incident occurred, and is still a child at the time she gave her evidence at trial, I have found that she is an intelligent young person who is able to communicate clearly and cogently. The trauma of her experiences might reasonably be expected to affect her ability to recount exact detail, and the sequence in which events occurred, but I am satisfied that the core of her evidence is reliable. She gave her evidence in a forthright manner, and her account was not substantially shaken on cross-examination.

142I found Diana Moreira to be a credible witness. She was obviously trying to give her evidence in a way that was most favourable to her son. One can understand this. As she said, she was terribly conflicted as a witness. Her son had stabbed her. Yet, she still loves him as her son. In her words, “it sucks, but it is what it is.”

143I found her evidence to be generally reliable, with one exception. She testified on cross-examination that, when she observed police to be escorting Dylon Moreira out of the house at 35 Cayley Court to an ambulance, she “believed” she heard him say that Vanessa had tried to stab him. There are some obvious problems with this. He was on the front lawn, circled by police. She was in shock. She said that she was approximately 40 feet away from him, but also said that she was sitting on her friend Christina’s front porch, three houses down. Even on a crescent, three housing lots would be significantly more than 40 feet. It was a chaotic scene. None of the police officers who were close to him escorting him to the ambulance testified that they heard Dylon Moreira say this. I conclude that there are insufficient indicia of reliability in the circumstances of the purported statement for me to make a finding of fact that Diana Moreira accurately heard anything that Dylon Moreira said on that occasion.

144As the accused person Dylon Moreira gave evidence, I must consider that evidence in a fashion consistent with the W.(D). analytical framework. I do not believe the evidence of Dylon Moreira, nor am I left with a reasonable doubt by it. The evidence of Dylon Moreira is incredible, unreliable, and incapable of raising a reasonable doubt. It is internally inconsistent, and externally inconsistent with other evidence that I do accept. He denies an intent to kill Vanessa, saying he just wanted to protect himself. This is not credible. He did not need to stab her 21 times in order to protect himself. He did not need to stab her in the back 6 times. He could have just hit her. The wounds he inflicted went far beyond what was required for self-defence. Moreover, on November 23, 2022, during his interview with police, he had no memory how he got the injuries on his head. It is plausible that they were scratch marks inflicted by Vanessa Legate as she fought for her life. His account at trial suggests a recent contrivance. Moreover, there were multiple inconsistencies with his evidence at trial and his prior statement given to police.

145Given this finding, even if I am not left in doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

146I am.

147The evidence is overwhelming that on November 15, 2022, Dylon Moreira stabbed Vanessa Legate, resulting in her death, and stabbed A.J. and Diana Moreira, resulting in serious and life-threatening injuries to them. There is the direct evidence of A.J. and of Diana Moreira, which I accept, that he stabbed them. There is also the direct evidence of A.J. that she saw Dylon Moreira assault her mother, Vanessa Legate.

148There is also the overwhelming circumstantial evidence that there was no one else in the house who could have done these things apart from Dylon Moreira. In R. v. Villaroman, 2016 SCC 33, at paras. 30, 35-42, the Supreme Court of Canada considered the proper approach to circumstantial evidence and proof beyond a reasonable doubt. Where the proof of an essential element depends, largely, on circumstantial evidence, a trier of fact should not draw an inference of guilt from circumstantial evidence unless it is the only reasonable inference that the evidence permits. The basic question is whether circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. In the present case, it is not. Vanessa Legate’s and Dylon Moreira’s DNA were both on the blade and handle of the knife. There was no one else present in the house who could have stabbed Vanessa Legate, A.J. and Diana Moreira.

149As regards a specific intention to kill Vanessa Legate, no other logical conclusion is possible considering that he stabbed her 21 times. Even if this were not so, it indisputably constituted recklessness: there must have been an appreciation of the likelihood of death from so many stab wounds in so many vital areas of her body.

Self-Defence

150There is no air of reality to a s.34 defence of self-defence. I have considered all of the steps in the analysis set out in detail above. First, the claim that Vanessa Legate stabbed Dylon Moreira first is not supported by any reliable evidence. It is contradicted by the direct evidence of A.J., which I accept. I do not believe his evidence that Vanessa Legate stabbed him. It is far more likely that the injuries to his head were the result of scratches she inflicted in a desperate struggle to save herself while he was stabbing her.

151Moreover, Dylon Moreira’s act of stabbing Vanessa Legate 21 times was clearly unreasonable and disproportionate to any threat that she could have posed to him. Even on his account, he had disarmed her. Even if one were to accept his account that she stabbed him first, (which I do not) there is no evidence of an imminent threat towards him after he had taken the knife. There is no evidence that she had another knife or other implement with which to stab him. He knew that he was able to leave the basement, because he voluntarily returned to the basement where he continued the attack on Vanessa Legate after he had gone upstairs to stab his mother, Diana Moreira. The absolute unreasonableness and disproportionality of Dylon Moreira’s response to the purported actions of Vanessa Legate preclude any legitimate invocation of self-defence. The claim fails at each step of the analysis.

152I am satisfied that the Crown has disproved self-defence beyond a reasonable doubt.

Provocation

153There is no air of reality to the assertion of provocation. Provocation must be rooted in a complete loss of self-control. The assertion that Vanessa Legate’s son Brandon had hacked Dylon Moreira’s computer cannot credibly be the basis for a complete loss of self-control. Even if one accepted Dylon Moreira’s claim that Vanessa Legate stabbed him first (which I do not), this cannot justify the duration and intensity of his attack on her, and could in no way justify the stabbing of A.J. and Diana Moreira.

154There is no evidence that what Dylon Moreira did was out of passion or loss of self control. He left the victim, returned, and continued to stab the victim.

155I have considered all of the steps in the analysis set out in detail above. I am satisfied that the Crown has disproved provocation beyond a reasonable doubt.

156There is compelling direct and circumstantial evidence of a specific intention to kill. Dylon Moreira stabbed a helpless young child, and a terminally ill middle-aged woman. When one reviews the Payne factors, it is evident that they are amply made out. He attacked Vanessa Legate with a knife, an instrument entirely capable of causing death. The wounds he inflicted on her would cause death within minutes.

157There are three elements clearly made out here: his intention to cause bodily harm; the knowledge that the wounds he inflicted would inevitably be fatal; and his recklessness as to whether she lived or died.

Count to count similar fact evidence

158At the end of the evidence, the Crown asked this Court to apply count-to-count similar fact evidence in respect of the mens rea requirement for second degree murder and attempted murder under ss. 229(a)(i) and 239 of the Criminal Code. Specifically, it asks that should I find that a subjective intention to kill has been established in respect of one victim, to apply and consider that evidence across counts; specifically, in the determination of whether a specific intention to kill has been established in respect of the remaining victims.

159I agree with the submission of the Crown that the probative value of the similar fact evidence is high. Proximity in time and location; similarity between the stabbings; the circumstances from which the stabbings arose, and the absence of intervening events establish a high degree of similarity between acts. The risk of prejudice is minimal in the context of a “count-to-count” application in a judge-alone proceeding.

160I consider that, on a balance of probabilities, the “count to count” similar fact evidence is admissible.

161Similar fact evidence is presumptively inadmissible on account of the moral and reasoning prejudice therein. Moral prejudice refers to the risk of a conviction based on forbidden reasoning (that the accused is the kind of person to commit the alleged offence); reasoning prejudice refers to the risk of distracting the jury with a multiplicity of incidents: R. v. Handy, 2002 SCC 56, at paras. 101, 139-144.

162However, similar fact evidence is admissible when the crown establishes, on a balance of probabilities, that:

1)the evidence is relevant to, and probative of, an issue at trial; and,

2)the probative value of the evidence outweighs prejudicial effect of admission.

163Similar fact evidence is frequently admitted in respect of triable issues including identification, the rebuttal of anticipated defences and mens rea: R. v. Farah, 2019 ONSC 6737, at para. 12.

164Probative value is assessed by:

1. identifying the issue at trial to which the proposed similar facts are said to be relevant

2. identifying the factors that connect or distinguish the similar fact evidence from the facts alleged in the charge and the degree of similarity required to make the proposed evidence admissible

3. considering the strength of the similar fact evidence (the extent to which the evidence can properly raise the inferences sought by the Crown): Handy, at paras. 69-84, 102.

165While the required degree of similarity between acts varies according to the issues and purpose for which the evidence is being tendered, the acts should establish “objective improbability of coincidence.” In Handy, at paras. 76-78, 82, Binnie J. identified the following non-exhaustive list of factors as demonstrative of the connection (or lack thereof) between the similar fact evidence and the facts alleged in the charge:

1. proximity in time of the similar acts

2. the extent to which the acts are similar in detail

3. the number of occurrences of the similar acts

4. the circumstances surrounding or related to the similar acts

5. any distinctive features unifying the acts

6. any intervening events

7. any other factor which would tend to support or rebut the underlying unity of the acts

166Dissimilarities, and a resultant lack of connection, between the proposed similar fact evidence and the offence charged should also be considered. However, this should not be taken too far. As Binnie J. cautioned in R. v. Shearing, 2002 SCC 58 at para. 60, “the judge’s task is not to add up similarities and dissimilarities and then, like an accountant, derive a net balance. At microscopic levels of detail, dissimilarities can always be exaggerated and multiplied. This may result in distortion.”

167The risk of moral prejudice is minimal in a judge alone proceeding.

168The similar fact evidence is relevant to the mens rea for second degree murder and attempted murder. At the first stage of the analysis, one must identify the specific issue to which the proposed similar fact evidence is relevant. Here, the proposed evidence is relevant to the mens rea for second degree murder under s.229(a)(i) and attempted murder. As I have concluded that a specific intention to kill has been established in respect of Vanessa Legate, that evidence can and should be applied across counts.

169The similar fact evidence is closely connected to the offences charged.

170Dylon Moreira repeatedly stabbed Vanessa Legate, A.J. and Diana Moreira within minutes of one another. Accordingly, the attacks on all three were sufficiently proximate in time as to be intertwined.

171The similar acts are similar in detail. Dylon Moreira stabbed Vanessa Legate, A.J. and Diana Moreira numerous times each: Vanessa Legate sustained 21 stab wounds, A.J. sustained nine stab wounds and Diana Moreira sustained six stab wounds. He stabbed all three in similar areas: he stabbed both Vanessa Legate and A.J. in the back, and both Vanessa Legate and Diana Moreira in the back of the neck.

172The circumstances giving rise to the second-degree murder and attempted murder charges are intertwined. A.J.’s evidence, which I accept, establishes that Dylon Moreira suddenly stabbed Vanessa Legate on the lower basement level of 35 Cayley Court. He immediately chased A.J. to the upper basement level and repeatedly stabbed her. Moments later, he went to the bedroom level and repeatedly stabbed Diana Moreira.

173There were no intervening events. There is no evidence of an intervening event separating the attacks on Vanessa Legate, A.J. and Diana Moreira. There is thus no evidence of an external intervening factor capable of occasioning a change in mens rea as between the three victims.

174A.J. described how Dylon Moreira shouted: “you’re all dead, everybody’s going down and you’re all dead” while stabbing her. This direct evidence establishes an obvious unity between the three stabbings. Similarly, Diana Moreira described Dylon Moreira’s previous threat to “take everybody out” and turn 35 Cayley Court into a “bloodbath.”

175The similar fact evidence is strong and supports the inferences sought by the Crown. I have found that a subjective intention to kill has been established in respect of Vanessa Legate. Dylon Moreira stabbed Vanessa Legate, A.J. and Diana Moreira within minutes of one another. The established subjective intention to kill one victim by stabbing supports the inference that Dylon Moreira subjectively intended to kill the remaining two victims by stabbing.

176The similar fact evidence supports an objective improbability of coincidence that a subjective intention to kill existed in respect of one victim, but not the other two.

177The probative value exceeds the prejudicial effect on a balance of probabilities. The similar fact evidence is relevant to, and probative of, a material issue at trial: whether a subjective intention to kill the three victims has been established. The probative value of the evidence flows from: temporal and locational proximity; that it has a basis in the same circumstances; the similarities between the three stabbings; the absence of any intervening event capable of producing a change in intent; and the accused’s previous statements demonstrating a unity between the three stabbings.

178The events underlying the various counts are part of an ongoing course of dealings, in which the events are interwoven and interrelated, so that as a matter of logic and common sense, the events underlying one count also enlighten and assist me as trier of fact in understanding and assessing the evidence on the other counts.

179The Crown’s request to admit count to count similar fact evidence at trial is granted.

Effect of drugs

180There is some evidence that Dylon Moreira had methamphetamine in his blood on the night of November 15, 2022, based on the Agreed Statement of Facts from the CFS toxicology analysis of the sample of his blood taken at the Grand River Hospital in the aftermath of the stabbings. What to make of this? There is no reliable evidence of him being under the influence of meth at the time of the stabbings. There is no clear or reliable medical evidence of the influence of this on his capacity. One cannot extrapolate from the presence of meth to a conclusion that his degree of intoxication was legally relevant. Where death is the obvious consequence of his actions the possibility that he may have been intoxicated to some degree has little purchase.

181As Bastarache J. stated for the majority of the Supreme Court of Canada at para. 42 in R. v. Daley, 2007 SCC 53, intoxication short of incapacity will rarely raise a reasonable doubt. For homicides where death is the obvious consequence of the accused’s act, (such as here where the accused stabbed the victim 21 times), an accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication defence of the type where he or she seeks a finding that they were so intoxicated that they were not capable of forming an intent to kill.

Prior Discreditable Conduct

182The prior discreditable conduct evidence of Dylon Moreira’s prior violence towards Vanessa Legate should also be considered. His attack on her did not come out of the blue. This evidence of animus towards her speaks to motive and intent. Dylon Moreira’s previous threats to his mother Diana Moreira do the same.

Conclusion

183In summary, I would answer the identified issues that the Court must consider in this trial as follows. Dylon Moreira unlawfully caused the death of Vanessa Legate. He had the necessary mens rea intent for second degree murder, both a specific intention to kill, as well as meaning to cause her bodily harm that he knew was likely to kill her, and he was reckless whether she died or not. The defence of provocation has no air of reality and does not reduce murder to manslaughter. While Dylon Moreira’s purported spontaneous exclamation while being escorted by police may be admitted into evidence, it is unreliable, and no weight should be accorded to it. There is no air of reality to self-defence. Dylon Moreira unlawfully stabbed both A.J. and Diana Moreira with a knife. Count-to-count similar fact evidence may be applied in respect of the mens rea element. Dylon Moreira had the requisite intent for attempted murder, that is, specific intention to kill, in respect of both A.J. and Diana Moreira. All of the essential elements for aggravated assault have been made out, including that Dylon Moreira wounded both A.J. and Diana Moreira by stabbing them with a knife.

184Taken altogether, viewing the evidence as a whole, I find that the Crown has discharged its burden of proving all of the essential elements of the offences charged to the standard of proof beyond a reasonable doubt.

185The Court finds that both the actus reus and mens rea has been established for all five Counts on the Indictment.

186I will refrain from pronouncing a finding of guilt and entering a conviction at this time, having regard to s.672.34 of the Criminal Code, until I am advised by counsel for both the parties of their intentions regarding whether they intend to seek a finding that the accused is not criminally responsible for the commission of the offences on account of mental disorder that rendered him incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong, pursuant to s.16 of the Criminal Code.

M.R. Gibson J.

Dated: April 1, 2026

CITATION: R. v. Moreira, 2026 ONSC 1957

COURT FILE NO.: CJ 101853

DATE: 2026/04/01

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

– and –

DYLON MOREIRA

Defendant

REASONS FOR JUDGMENT

M.R. Gibson J.