Court File and Parties
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Montana William Lewis
Accused
COUNSEL:
H. Mitchell and M. Caputo, for the Crown
D. Bayliss and S. Chuckal, for the Accused
HEARD at Sault Ste. Marie: October 6, 7, 8, 10, 14, 15, 16, 17, 21, 2025
REASONS FOR JUDGMENT
A.D. Kurke, J.
Overview
1The accused, Montana Lewis, is charged on the Indictment before the court with first degree murder in the killing in Sault Ste. Marie on November 12, 2020 of Samuel Graham, the boyfriend of Mr. Lewis’s twin sister Semiah Lewis. On that date, Mr. Lewis struck Mr. Graham in the abdomen with a knife that cut his aorta and caused exsanguination and death. Mr. Lewis has admitted the killing but disputes his culpability and has pleaded not guilty to the charge.
2On consent of Mr. Lewis and the Attorney General, this matter is being tried by a judge of the Superior Court of Justice, sitting without a jury.
Facts
Admissions
3Exhibit 1 offers admissions on the trial, including the following:
a. date, jurisdiction and identity of the accused are admitted;
b. the identification of the deceased as Samuel Graham, as well as the cause of his death, and continuity of his body; and
c. that the accused caused the death of Samuel Graham.
4Central to a determination of the events surrounding the death of Samuel Graham (“Sam”) is the evidence of Montana Lewis (“Montana”), the accused, and of his twin sister Semiah Lewis (“Semiah”), who was called as a witness by the Crown.
Evidence of Semiah Lewis
5Semiah provided a comprehensive narrative of the events of November 12, 2020 from her perspective. At that time Semiah was living with her mother Melissa Ryan and her twin brother Montana at 30 Muriel Drive in Sault Ste. Marie. This was a three-level home with bedrooms on the top floor. They had two dogs, Sidney and Meeko, and a cat named Charlie.
6Semiah and Montana’s parents are not together. They had a rocky relationship. Semiah was 10 or 12 when they broke up as a result of her father physically abusing their mother.
7Montana was minutes older than Semiah, though she feels that she was more mature than Montana was. Semiah agreed that as twins, she and Montana were sensitive to each other’s moods, and could sense when there was something wrong with the other, or when the other was lying. Montana was protective of Semiah like an older brother.
8Semiah observed that something had changed in Montana after his break-up with Kadence Syrette in the summer of 2020. That had been his first serious relationship, and he took the break-up badly. He became a lot angrier than he had been before the break-up. He was out of the house more, and Semiah did not see him as much. He seemed sad and he drank a lot. Semiah knew that Montana drank and used marijuana and had seen him under the influence of alcohol at home.
9Semiah felt that Montana was abusing other substances, but she did not witness it herself. She did hear from a few people that Montana used cocaine, and she connected it to Montana’s being angry all the time. His anger was a “huge change” from before, as he was angry more often, and argued with her and her mother.
10Semiah recalled an occasion after Montana’s break-up with his girlfriend Kadence Syrette when Montana’s friend Jaden Grenier came to their house looking for Montana. Jaden was concerned to find him because Montana had been talking about “taking his life.” Sam and Semiah went to the road behind the house and ultimately saw Jaden and Montana walking out of the forest together where there was a treehouse that Montana and his friends would use.
11Semiah knew that Montana had been in a four-wheeler accident close to November 12, 2020. He had come home hurt from the accident. Sam had seen it also. Montana had a hard time walking and bending his back, and he lay down like he was in pain. He would kneel down to straighten his back. When she saw him after the accident Montana was acting confused and not making a lot of sense, and Semiah likened it to a time when he had a concussion from playing hockey. Semiah did not remember if Montana was still suffering the effects of the accident on November 12, 2020.
12Semiah’s boyfriend on November 12, 2020 was Samuel Graham, “Sam”. They had been together around 2 ½ to 3 years by then. Sam was 19 years old, and a student at Sault College in Indigenous social work. He also worked at Walmart. At the beginning of that relationship, Montana had been concerned for Semiah to be “okay”. Montana did not initially like that Semiah was seeing Sam, but Montana and Sam were getting along better by November 2020. Sam was a year older than Montana, bigger and a little “thicker” than Montana.
13Semiah provided an affidavit to the defence on August 26, 2024, and also offered testimony at trial about problems of intimate partner violence in her relationship with Sam, and Montana’s knowledge of it. She denied having done this to help Montana’s case. In that affidavit she described that Sam had been controlling in their relationship. He had been verbally abusive and called Semiah names, such as “bitch” and “whore”. They argued a lot. He would tell her whom she could and could not talk to, so that she eventually became a little distant from her friends.
14Semiah gave evidence of two occasions when Sam had spit in her face when they were arguing. On at least two occasions he held her down and prevented her from leaving his house. This had left temporary marks, but not bruises, on her wrists. He once pushed her down to the ground. He elbowed her once in the car. Semiah agreed that she would yell at Sam in their relationship and described slapping Sam to defend herself after warning him to back up from her. In cross-examination, Semiah did not remember an occasion when Montana appeared at Sam’s home and told Semiah that he and their father wanted her to come with them. She “did not believe” that this was an occasion when Sam was preventing her from leaving his residence.
15Montana once asked Semiah about abuse, and Semiah lied to him and denied it. She did this because she was worried that Montana would tell their parents about it, and they would forbid her from seeing Sam. Montana had said that he had heard about it from mutual friends. Semiah acknowledged speaking about the abuse with Stu Souliere, a mutual friend of hers and Montana’s.
16Semiah denied having any marks from Sam on her person when talking with Montana about her relationship, and she did not believe that Montana ever saw marks on her. The abuse happened throughout their relationship, though less in the last year. Semiah described that things were better between her and Sam in 2020. There was no yelling or physical violence and by November 2020 their relationship had “matured”. Semiah did not disclose this abuse to police and attributed that to being traumatized when she was speaking to them. She also stated that it took her years to understand that such treatment was wrong.
17On November 12, 2020, Semiah and Sam woke up together. They went their separate ways at about 8 or 9 a.m., to prepare for school. Semiah was also in school at Sault College, studying health sciences. The pandemic was on, and Semiah did her classes online from her room on the top floor of the house. She finished classes at 3:00 that day and saw Sam at her house before he was to go to work for 6 p.m. Montana was also in the house that afternoon. At some point Montana mentioned that Jaden Grenier was coming over.
18Semiah and Sam planned to go to the vape store and were hanging out in her room. Semiah knew that Montana needed vape juice, and Sam offered to get it for Montana. Semiah went to Montana’s room to ask him for money for the purchase. Montana was playing a video game and looking at the television. He got angry at Semiah for interrupting him, and raised his voice at her, saying something “not nice” to her. Semiah was upset. Sam came out of Semiah’s bedroom when the argument between the siblings got heated. Semiah was at Montana’s door, and Montana was sitting on his bed playing the game. This was one of many areas about which Semiah could only remember limited details.
19In cross-examination, Semiah agreed that it was possible that Montana had asked if he could get a ride to a friend Jake Soule’s house on the way to the vape store, and that Sam did not agree to that.
20Sam told Montana not to talk so rudely to Semiah. It “comforted” Semiah to know that Sam was sticking up for her. Montana got off his bed and the three teens were in the hallway outside his room. Semiah was trying to leave with Sam. Montana and Sam argued. Semiah recalled that she was on the staircase and the males were higher up the carpeted steps from the main level, arguing. Sam was angry at Montana, and told him, “you can’t talk to her that way.”
21Either Montana or Sam was standing one step up from the other, Semiah could not remember which. The lower one was on the “landing” where the stairs bent to the right, shown in Exh. 23 with a blanket, some six steps up from Semiah. Sam and Montana had a verbal argument and were “in each other’s faces.” Semiah could tell that Montana was angry by the tone and raised volume of his voice. Sam was “mostly calm” but upset at how Montana was speaking to them. Semiah agreed that she yelled at them to separate. In chief, Semiah did not see any physical contact between them. When it was suggested to her, Semiah did not remember Sam threatening to beat Montana up or Montana telling Sam to “get out of here.”
22Although she could no longer remember it at this trial, Semiah’s statement (from pages 20 to 22 of her November 16, 2020 statement to police) that Sam “pushed or nudged Montana back” when they were on the stairs, but “Montana didn’t fall or anything” was accepted at this trial as “past recollection recorded.” Several pieces of evidence from Semiah were received in this fashion at the instance of both Crown and defence.
23Semiah and Sam then left the house for the vape store. Sam and Semiah drove to the store “Juice on the Loose” on Great Northern Road in Sam’s Mazda. Montana and Semiah snapchatted after she left the house. Semiah was acting as a “middleman” between Sam and Montana as they communicated with each other. Montana was still angry, and Semiah was upset at what he was saying. As Sam drove, Semiah read Montana’s messages to him. Sam had wanted to talk over issues with Montana.
24Semiah became worried that Sam and Montana would get into a physical confrontation. She did not think about whether Montana could compete in such a fight or who might win. Although she could no longer remember them at trial, such comments of Montana’s in snaps to Semiah as “like he’s over, he’s done next time I see him, things like that” (from page 27 of Semiah’s November 16, 2020 statement to police) were admitted as “past recollection recorded” at this trial. Sam was getting frustrated and angry because Montana was not acting “mature”, and Sam told Semiah to pass along the message to Montana that “I’ll talk to you like a man if you’re gonna be mature but if you’re gonna be like that then fuck off.”
25Semiah stayed in the car while Sam went into the vape store. She identified Sam in Exh. 7, a video from the vape store, by his clothing. She continued “conversing” with Montana until they got back to the house, bringing the dog Meeko home. Semiah identified her text name as “Bad Bitch,” and explained that she and Sam thought that name was funny. Semiah texted her parents to let them know about Montana’s argument with Sam. She told her mother that Montana had “like freaked out on me for like no reason and then Sam got mad at him and they almost fought.” Her text to her father was longer and complained about Montana’s bad behaviour and how her mother does nothing to stop him, and she does not want to live with them anymore (Exh. 17). She wanted her father to talk with Montana. Semiah was worried that Montana might get Sam jumped. She told Sam “no”, when he seemed to want to go back and talk to Montana.
26Sam and Semiah returned to 30 Muriel Drive after about 30 minutes, went in through the side door, and turned left at the hall on the main level towards the kitchen. Montana came down and met them in the hallway by the kitchen. He was still very angry, and he and Sam almost immediately confronted one another. One of them said, “you need to apologize to me right now;” Semiah thought it was Montana, although she did not remember which it was. But Semiah did recall that Sam responded, “I won’t apologize for sticking up for her.” In my view, that clarifies the situation; it was Montana who had demanded the apology.
27Then Sam and Montana started punching each other. She did not recall who threw the first punch or how the fight started. She saw their arms moving as they made their way down the hallway, punching each other with their fists, though she could not say if the punches were landing. Semiah was yelling at them to stop, but she didn’t think that either one was listening to her. But they did stop shortly after. The fight lasted not even a minute as they went down the hallway towards the front door. In cross-examination, it was suggested to Semiah that Sam “basically dragged” Montana to the front door. She responded instead that “they both kind of just made their way to the front door.”
28Sam and Montana separated. It was suggested to Semiah that the fight stopped when she grabbed Sam off Montana. Semiah stated that she did not remember grabbing Sam but agreed that she had told that to police in her formal statement of November 16, 2020 and that it could have happened. Semiah instead remembered Montana sitting on the bottom of the steps that led upstairs, and Sam was backed up against the couch near the front door of the house. Semiah told police that Sam threw Montana on the “ground”, but Semiah did not remember that. She testified rather: “I remember Montana ended up on the stairs.” She believes that she might have said “ground” but meant the stairs. In the short pause that followed after the fighting was done, Semiah noted no injuries to Sam. She saw blood in Montana’s mouth, but no other injuries. She did not remember seeing a punch to Montana’s face.
29Semiah told Sam that they had to leave. As Sam and Semiah went out the side door, Semiah was certain that she saw Montana run up the stairs and disappear where the stairs turned past the wall. Although Semiah had accepted the possibility of other things suggested to her, she denied that she had only heard Montana go up the stairs, even while acknowledging that she told the police that in her statement of November 16, 2020. Sam held the side door shut so that Montana could not pull it open. They were going to leave in Sam’s vehicle. Sam was trying to pass Semiah the keys to get into the car. He was shaken up and telling her to get in the car. Semiah acknowledged that she could have been yelling to Sam to come with her. Sam could have been yelling to her while telling her to get in the car.
30Semiah was close to Sam, standing on the passenger side of the vehicle, at the corner of the house. She saw Montana come quickly out the front door of the house, holding a knife in his hand. That was the first time she had seen the knife that day. Semiah recalled that Montana had a knife on his dresser but could not say that it was this knife. Montana moved “fast” down the steps, and she continued to see the knife as he passed her. She was standing back from the corner of the house, and Montana ran past her to Sam. She remembered the blade of the knife as grey in colour. Semiah froze. When Montana came to the corner of the house, he and Sam met there and saw each other at the same time.
31From behind Montana’s back, Semiah saw Montana make a single jabbing motion with his right elbow moving forward towards Sam, who was in front of Montana and facing Semiah. The jab went towards Sam’s left side, his lower abdomen/stomach area. Sam tried to raise his leg to the centre of his body and up. Semiah did not know what Sam was doing with his arms, but they were not above Sam’s head. Semiah did not remember if Sam put an arm forward. To this point Semiah had noticed no injuries to Sam that day. Semiah did not recall any further motion of the knife.
32Semiah stood frozen, really upset, and scared. She next remembered Sam and Montana on the ground “all of a sudden” further back in the driveway from the front corner of the house, past the side door, closer to the backyard and closer to the neighbour’s house. In her evidence she did not remember the men rolling on the ground, but Semiah’s statement (from page 13 of her November 16, 2020 statement to police) that “they were like rolling [on the ground]” was admitted as “past recollection recorded” at this trial. It had happened quickly. Semiah ran over and grabbed the knife from the ground beside them and threw it, as she thought, into the backyard so that it could not be used again. Although she could no longer remember doing so at this trial, Semiah’s statement (from pages 15 and 37 of her November 16, 2020 statement to police) that she “went back to her brother” and “remember[ed] pulling Montana off of [Sam]” was admitted as “past recollection recorded” at this trial.
33After throwing the knife, Semiah testified that her memory becomes blurry. Semiah recalled seeing Sam on the ground, lying on his back closer to the neighbour’s house and to his vehicle than he had been earlier. Semiah went over to Sam and recalled realizing for the first time that he was bleeding from his lower left side. Semiah recalled arguing with Montana near where Sam was lying, but she could not remember what it was about. Montana said to her, “I’m sorry. I love you.” He told her at one point to put Sam on his back, trying to be helpful. At some point, Montana moved and was standing in the front yard. She heard him say, “I’m gonna go to jail.” He was really upset, almost hysterical, and obviously “shocked.”
34Semiah called 911, and began by telling the operator that her boyfriend had beat up her brother, which she agreed was an accurate characterization. Montana was in the front yard. The operator asked her to start CPR on Sam. She took off the red checked jacket she had been wearing, which was Montana’s, and put it on the spot where Sam was bleeding and applied pressure. Sam was pale, his lips were bluish, and his eyes started going back into his head. Semiah called his name, but there was no response.
35Semiah recalls paramedics arriving and taking over the CPR. She went and sat in the front yard. Sam’s car keys on a Walmart lanyard were recovered near the side door. Semiah attended at the hospital and spoke with police there. She acknowledged that she felt that she hated Montana after he killed Sam and told police so at the hospital. She ultimately forgave Montana and wanted eventually to renew her sibling relationship with him.
Evidence of Montana Lewis
36Montana Lewis and Semiah Lewis are the children of Melissa Ryan and Justin Lewis, with September 7 birthdays. They are now 23 years old. Montana Lewis is now about five feet ten inches tall and weighs some 175 pounds but was perhaps 35 pounds lighter and a little shorter on November 12, 2020. Justin Lewis is of the Odawa tribe, the Ojibwe band. Montana was born in Sault Ste. Marie and has lived also in Windsor and Sudbury. His father was always in and out of jail and is currently in custody in Toronto. Montana enjoyed playing hockey and soccer growing up.
37Montana was 10 when his parents separated. His father had been abusive of Montana’s mother, and they separated after his father beat his mother so badly that she had to go to hospital. Montana remembered the injuries to her face and the blood. He felt helpless that there had been nothing he could do to help his mother, and sad because these were his parents. After the separation, Montana and Semiah lived with their mother. They had lived at 30 Muriel Drive for some six or eight years before the events of this case.
38Semiah is Montana’s twin sister. Growing up they were very close and did everything together. Although Montana is only seven minutes older, he considered Semiah his “little sister.” He testified that he was protective of her. They did argue, about “sibling-type stuff.”
39Montana knew Sam Graham, though they did not really ever talk before Sam started dating Semiah. Sam was Semiah’s first relationship, so far as Montana knew. Sam and Semiah started dating about when Montana was at the end of tenth grade. At first Montana did not like their relationship. He asked Semiah about Sam, but she did not want to talk about him with Montana. Montana testified that he did not hate Sam, though he disliked him at first. However, he learned to adjust his feelings to give Sam a chance.
40Montana tried to accept Semiah’s relationship with Sam, although he was not getting good “feedback” about it. Montana felt that Sam did not treat Semiah as he should. Semiah was not allowed to hang out with friends. She had to delete people off her phone. Montana felt that she was being controlled. When Montana texted Sam to invite him to talk, Sam responded, “fuck you.” They did not end up talking about the issues which caused Montana concern. But Sam started coming around to their house.
41Montana “confronted” Semiah about her relationship with Sam and asked her if Sam was abusing her. In her room once he observed bruises on her arm and leg, some six to nine months before the events of November 12, 2020. Semiah claimed that she bruised her leg by falling, but Montana “could tell she was lying,” as Semiah started fidgeting and her voice and body language changed. She “made up” something else to explain her arm. Montana asked whether Sam had done it, and Semiah denied that Sam was doing that to her. Montana asked Semiah about such things multiple times, but Semiah would “slough off” his questions. He knew Semiah loved Sam even though Sam was abusive. Montana knew that Semiah was hiding everything about her relationship from Montana except for good things.
42But he talked to friends and his father about it. A year after Semiah and Sam started dating, Montana’s friend Stu Souliere messaged or called Montana to let him know that Sam was mistreating Semiah and not letting her leave. Stu told Montana that he had promised Semiah not to say anything about this. Montana got his father to drive him to Sam’s. But Semiah would not come to the door when they got there. Sam answered the door and told Montana that everything was fine and refused to send Semiah out. Montana claimed that Semiah finally responded and was crying, though that seems hardly possible for Montana to have witnessed, since it was to her father’s texts that she was responding to, and not to a phone call. Montana believed that his suspicions were confirmed, since Sam “wouldn’t let her leave.”
43Montana testified that “a lot of times” he heard from Semiah’s friends that Sam was mistreating her mentally or physically. When Montana saw Semiah sad, he would ask her how her relationship with Sam was going. But Semiah would always lie and deny abuse and would not talk about the relationship. Semiah told Montana that Sam had not been abusive for at least a year, but Montana believed otherwise. Semiah would vent to Stu about Sam, as Stu was close with her. Stu was reluctant to talk much about it, as he had promised not to say anything. Stu did tell Montana that Sam gave Semiah “Charlie horses.” We did not hear from Stu at this trial. Montana also learned about abuse from Jaden and Dustin and other friends. When he heard about really bad abuse, Montana wanted to fight Sam.
44Montana was himself in a relationship with Kadence Syrette (“Kadence”) from the time he was in grade 11 and she was in grade 9. They were together two years and broke up about 5-6 months before November 12, 2020. He “took it really hard” because he was young, and they had dated quite a while. He was depressed and started using alcohol and substances more. Before the break-up he used marijuana and drank occasionally on weekends. Sometimes he would “smoke weed” through the week. He had tried cocaine. After the breakup he would drink and use marijuana every day, and cocaine weekly. But it was only a short time after his break-up from Kadence that he started a new relationship with Paige Hisco.
45After his break-up with Kadence his relationships changed. He wasn’t home much, and he did not talk to Semiah or his mother as much, to avoid being caught “high”. Montana agreed that when he used cocaine, he became short-tempered, mean, unfriendly and antisocial. Montana claimed that it was at that time that he dropped out of school, and his life started to spiral “in a bad direction.” He was sadder, and more depressed and negative. Montana described contemplating suicide by Xanax overdose at a treehouse that he and his friends used, but Jaden Grenier showed up to check on him, took the pills away, and brought him home.
46In around March 2020 when he was in grade 12, Montana stopped school because he wanted to make money. He started working “out of town,” putting asphalt on highways, runways and parking lots. In October 2020 when the season was changing, Montana was laid off and began to work part-time for a friend’s family business. He was home less and saw Semiah less. He also spent less time with Semiah because of her relationship with Sam.
47About four days before Sam’s killing, Montana was in an ATV accident on the reserve. Montana and a friend had been drinking, and his friend was driving the ATV. They went too fast on a corner of a washed-out trail, and Montana was ejected when the ATV went airborne. He hit a tree and was “knocked out.” His friend woke him, and they walked home. The ATV was “annihilated.” Montana got home really late. He felt terrible and hurt all over. It was hard to breathe, and he was all bloody. Nevertheless, he drank and smoked weed the following morning. His mother took him to hospital that day, and Montana was still intoxicated. Montana had fractured his spine/lower back in three places and bruised his tail bone and hurt his sternum. He could not dress himself and found it hard to bend to get out of bed. His head hurt and he was sensitive to light. His doctor gave him a concussion protocol to follow, involving not using his phone or screens, but Montana basically ignored it. He felt “out of it” and confused. No hospital records concerning that hospital visit were put into evidence.
48On November 11, 2020, Montana hung out at home with Paige, bedridden. On November 12, 2020, Montana still felt the effects of the ATV accident. He was supposed to work, but Paige told him that he could not go to work because of his injuries. However, Montana was getting bored at home and wanted to work. He was broke and wanted money. After his mother had gone to work, he went into his backyard to smoke marijuana and started drinking wine that he bought from a friend; he had a few water bottles’ worth. He was trying to test the limits of his injuries by doing chores and moving around. He did yard work and chores in the shed. At around noon he ate, drank more wine, and did a line of cocaine. He was drinking and smoking more to “self-medicate” after the ATV accident. He played video games and used more cocaine to wake up.
49Montana spoke with a few people. Jacob Soule was supposed to pick him up to hang out at his house. Montana was snapchatting people. He and Kadence also made plans for later in the day. He was also supposed to see Paige when she got off work, and he also made plans with Jaden Grenier.
50Montana was playing video games in bed wearing a headset when Semiah came in and tried to talk. Montana got distracted and lost the game, and “took it out on” Semiah. Semiah asked if Montana wanted anything at the vape store. Montana said that he did and wanted a ride to Jacob’s. Semiah asked Sam, who refused to give Montana a ride. Montana called Semiah a “bitch”. At that point, Sam had come into the room, confronted Montana and stuck up for Semiah. Sam got worked up, and Montana told him to just leave.
51Sam and Semiah were heading downstairs, and Semiah asked Montana again if they could bring him back anything. Montana threw his bank card down the stairs and once again called Semiah a “bitch.” Sam ran up the stairs, with his voice raised, swearing at Montana. Sam got to the landing where the stairs turned up to the right, and Montana was standing at the top. Montana told Sam to get lost. He felt disrespected; as the man of the house, he was owed a measure of respect. Sam shoved Montana with one or two hands, causing Montana to fall against the wall “a little bit.” Montana was slow to get up; his injured back started hurting and getting stiff. Angry and upset, Montana wanted to fight Sam. He went into his room and started drinking more water bottle wine and doing lines of cocaine. At some point he appears to have picked up his debit card; it was in his pocket on his arrest later that day.
52Montana started messaging friends and ranting and sought advice from people. He asked Dustin Boyer, who was also a friend of Sam’s, for permission to fight Sam. He wanted guidance because he knew his thought process was a mess, and he did not want to do something stupid. He also communicated the situation to Jaden Grenier and asked for his advice and support. Jaden offered to come over and help break it up. Given Montana’s injuries, Jaden did not want him to try fighting Sam. Montana told him not to come over, as Jacob was already supposed to come; Montana expected to be already gone when Sam and Semiah returned from the vape store.
53After Sam and Semiah had gone to the vape store, Montana felt a variety of emotions. He was sad and angry at himself for his behaviour towards Semiah, and angry at Sam for pushing him. He was confused and did not know what to do. He had suffered physical harm to his head in the ATV accident and felt like he had a concussion, and mental problems, and was feeling “buzzed” from cocaine and alcohol. He could tell that his heart rate was up. The cocaine made his mind race. The alcohol “erased his filters.”
54He was on his phone constantly and did not put it down except to consume alcohol and do two lines of cocaine. He felt “buzzed” and was not thinking clearly, though he was not stumbling around. Some parts of events were blurry for Montana, but he claimed in his evidence, “most things I remember.”
55He messaged and spoke with Stu, asking that day “if Sam was still beating Semiah.” Montana initially denied that he was looking for an excuse by making this inquiry, but later agreed he wanted a justification for what he wanted to do. Stu told him “yes,” that Sam was still being abusive.
56Montana contacted Jared and chatted by message with a friend Caleb. He did not speak that day to Jaden or Dustin about Sam’s abuse of Semiah. He sent messages to Kadence about killing Sam, wrote that “today was the day,” but he testified that he only meant that he would fight Sam; this was “trash talk,” venting. In the past he had told Kadence that something would eventually happen with Sam, and now that was the day. Montana told Semiah in messages that he did not want Sam to come back to the house.
57Montana testified that when Sam and Semiah came back, he heard a car in the driveway, and he went downstairs, thinking that it could be them or Jacob. He saw Sam and Semiah in the kitchen and went over. Words were exchanged. Sam was angry and very frustrated and had a hard time speaking. Montana thought that Sam told him to apologize, and Montana told him to shut up and listen. Montana denied asking for an apology. At that point, claimed Montana, Sam “sucker punched” him in the face, cutting his lip. Montana tasted blood. From that point, Montana claims that Sam started “non-stop punching” him, forcing Montana backwards, until he was knocked down at the bottom of the stairs. Sam kept up the punching. Montana said that his head was sore the next day, and he had “goosebumps” where he had gotten punched in the face. Exh. 9.3 and 9.4 are photographs of Montana showing where he got hit.
58Montana found himself laying on his back on the steps, with his legs on the floor. Exhibit 2, page 4 shows the back of Montana’s hand. In fact, stated Montana, the bruised knuckle in that image had been injured a month or two earlier while he was messing around with a co-worker who was teaching him how to fight, and had stayed bruised. Montana denied having hit Sam; “I don’t remember punching Sam that day.”
59Semiah grabbed at Sam to pull him off of Montana, crying and repeatedly telling him, “Stop! You need to leave.” Montana was dazed from hitting his head when he fell on his back on the stairs. As Montana started to get up, Sam was trying to “shrug out” of Semiah’s grip. This struggle between Sam and Semiah escalated to “grappling,” as Sam turned his attention to Semiah. It is noteworthy that, in his cross-examination, Montana testified that Sam was never abusive to Semiah in front of him, because “he would not do that,” that they kept the abuse from Montana. But apparently not on this occasion. Semiah tried to pull Sam to the side door.
60Montana went upstairs and grabbed from somewhere in his bedroom a knife that he had gotten a month or two earlier for cutting boxes at work. He retrieved the knife because he panicked when Sam and Semiah “started getting into it.” Montana was scared that Sam was going to beat up his sister. He wanted to intimidate Sam with the knife and “scare him away a little bit.” He had no intention of using it to stab someone. He was “in no position to fight,” but he was worried for his sister. Montana heard Semiah screaming “stop” outside the side door and trying to get Sam to leave. Sam’s voice was raised.
61Montana testified that he thought that Sam was beating up his sister. This thinking was based on Sam and Semiah grappling just before exiting the house, hearing Semiah screaming and crying outside, Sam’s voice being raised, and Sam’s previous abuse of his sister. Montana stated that he felt many things at once. He was angry at Sam, but more concerned for his sister.
62Montana went downstairs with the knife. The side door would not open. He imagined it was because “they” were probably holding the door shut, and he could hear screaming and movement. So, he went out the front door with the knife in his right hand. He was pretty sure the knife was open at that point. He wanted to see his sister as fast as possible. He made his way to the side. At the corner of the house, “Sam was right there.” Semiah was there to his left, but on Sam’s right, near and in front of the car. They were right there when he turned the corner. He did not see them before he got to the corner of the house. Montana denied running by Semiah.
63Sam and Montana went towards each other and ran into each other at the corner. Montana had not expected that. Montana stated that he saw Sam’s arm come forward as though to throw a punch and his leg came up, “maybe to kick me.” Montana explained, “I just kind of reflex stabbed him.” Montana pushed his right hand forward and up. His body just did it “instinctively.” He wasn’t thinking at all or aiming anywhere. He remembered feeling the knife and Sam’s stomach connect. At that point, Sam connected with a punch to Montana’s head. Sam grabbed Montana, and they spun around wrestling until they hit the ground, towards the neighbour’s house and opposite the side door of Montana’s house. Montana dropped the knife on purpose to avoid using it again while they wrestled.
64Montana got up as soon as he could. He could see and smell blood, and he could see the wound to Sam’s stomach. Sam was still trying to get up and fight Montana. Blood was “squirting/oozing” out of Sam’s stomach, so Montana tried to position Sam at an angle so that the blood was not squirting out. Sam was moving towards the car while Montana tried to hold him still and position him in a different way. He got Sam on his back. As Montana tried to cover Sam’s wound, Semiah pulled him off Sam, telling him to “get off, stop.” Montana told her that he was trying to help, that he was sorry, and that he loved her. Semiah covered the wound with her hands. Montana told her to put Sam on his back and call 911, and how to cover Sam’s wound better. Semiah told Montana to get away.
65Montana testified that only one to two minutes had passed between when he first came into the kitchen where Sam and Semiah were until this point. To avoid distracting Semiah, Sam stepped away. Semiah called 911 and was having difficulty with the operator. To help, Montana called 911 himself; Exh. 30 is a copy of the call and a transcript, which Montana claimed was incomplete. Montana remembered telling the operator that he had stabbed Sam and being told that he was probably going to go to jail. Like Semiah, Montana remembered being asked location questions on his call, though they do not appear in the tape or transcript.
66After his 911 call, Montana called Paige, feeling the need to talk to her. He felt sad, distraught, and upset, because he had not meant to do that to Sam. While he was on the phone, Montana heard sirens, and police came. Montana pointed to where Sam and Semiah were, because the car was blocking them from view. An officer asked Montana who had “done this,” and Montana admitted that it was him. He was arrested.
67Montana maintained that he did not want to kill or cause serious harm to Sam, and did not think of using the knife. He just wanted to scare Sam with the knife. At the time that he grabbed the knife, Montana felt that was the only way to protect Semiah or himself. He had been injured, and was no match for Sam. When they met at the corner of the house, “it happened too fast to think.” Had he been thinking, he would not have stabbed Sam. Montana did not remember the cause of the second stab wound, to Sam’s arm. He noticed it first when he was trying to help Sam. He recalled telling Paige that he was going to jail.
68November 12, 2020 was Montana’s first arrest. At the time of his arrest Montana was speaking on the phone with Paige, his girlfriend of about four months. He was brought to the police station, turned over his clothes, and was given an orange jumpsuit to wear. He was devastated, and crying, “a mess.” He felt bad even before learning that Sam had passed away. Exhibit 29 is a three-minute-long video from the police station cell, between 10:29 and 10:32 p.m. Montana is kneeling towards the toilet in the back of the cell. He testified that he was trying at that time to drown himself in the toilet.
69Montana gave a lengthy video statement to police, even though he understood his right to remain silent. He chose to speak anyway. In chief Montana testified that he couldn’t remember everything that he said to police in that interview, but he said he was being truthful and asked for a lie detector test. He testified that he was honest in the statement except he slipped up and lied about stabbing Sam inside the house.
70In cross-examination Montana stated that he did not remember his statement, or only remembered bits and pieces of it. He was “not in a good mental space.” “He was a wreck.” He was coming down from cocaine and not thinking clearly, but he never told police that he was under the influence. He did not remember much about his interaction with the police who dealt with him, Cst. Davies and Ms. McCoy. The statement that he gave was voluntary. He was responsive to questions. Montana nevertheless felt that he was tricked and persuaded to give a statement; the police kept asking him to talk.
71The parties agree that Montana gave a voluntary videotaped statement to police between 11:24 p.m. on November 12, 2020 and 12:34 a.m. on November 13, 2020. Montana agreed that he made the statement, though he did not remember most of it and admitted that one part was a lie. He was “a mess” at that time but admitted that his memory of events would have been better back then. Montana claimed to see in himself in the video the effects of drugs and alcohol. He was closing his eyes because his head hurt. He felt horrified and scared in custody and was on suicide watch for “maybe a week.”
Other evidence in the case
72Exhibit 7 is a store video from the “Juice on the Loose” vape store in Sault Ste. Marie. Semiah Lewis identified the man who entered the store as Sam Graham, her boyfriend, with whom she had gone to the vape store on November 12, 2020. The store is about a ten-minute drive from 30 Muriel Drive.
73At 4:31 p.m., Semiah Lewis called 911 asking for an ambulance (Exh. 3). She described that her brother and her boyfriend Sam had gotten into a fight and that her brother had stabbed her boyfriend. Semiah Lewis was obviously frantic and crying: “Please, he’s dying, please get here.” Her boyfriend was not breathing, and he was making weird noises.
Police involvement
74Cst. Daniel Turco is an officer with the Sault Ste. Marie Police Service (SSMPS). He received notification at 1635 hours to go to 30 Muriel Drive about a male that was stabbed. He arrived at 1639 hours, and observed a male, the accused, on the front lawn pointing to the driveway at the back of the house. There was a female yelling for help and crying hysterically as she was doing chest compressions on a male on the ground, as she knelt beside him in the driveway beside the residence.
75Turco observed that the male, later identified as Samuel Graham, was on the ground on his back. His face was greyish white, and his lips were purple. The officer noted that Sam was “vital signs absent.” He began doing chest compressions. He continued doing chest compressions until firefighters attended and someone else took over. Turco spoke with Semiah on scene and learned that there had been an argument and that a knife was involved. The knife had been thrown into the backyard. While Sam was being loaded onto a stretcher Turco walked to the back and observed a folding knife on the ground by the fence; he left it there for identification officers to recover.
76Cst. Matthew Davies was dispatched to 30 Muriel Drive at 1633 hours for a weapons complaint. He arrived at 1640 and observed Samuel Graham on the ground, grey and with blood around him; an hysterical female, Semiah Lewis; and a male, Montana Lewis, near a bush in the center of the front lawn. Sam was on his back by the part wall of the neighbour’s house where the siding ends and the concrete begins. Semiah was to his right, some five feet away.
77Davies walked up to Montana and asked him who stabbed the male in the driveway. When Montana told him that he had, the officer arrested Montana for assault with a weapon and read him his rights and caution. He escorted Montana to his cruiser and searched him, finding a debit card and $20 in his left pants pocket. Montana’s clothing was wet and had a red tinge that the officer recognized as blood. Montana had a cut on his lower left lip. He seemed distressed.
78Once the scene was secure, Davies brought Montana to SSMPS headquarters, arriving at 1707 hours. He brought Montana to the desk. He provided Montana with his rights to counsel and caution, took off the handcuffs, and searched him again. Montana spoke with counsel and was then brought back before the staff sergeant for booking in. When police learned that Sam had died, they again provided Montana with his right to counsel, and he again spoke with a lawyer. Lewis spoke that afternoon with two lawyers.
79Police had Montana disrobe and they seized his clothing and put it in paper bags: a sweater, a t-shirt, shoes, pants, and underwear. The officer observed blood on the underwear, the hooded sweatshirt, and the t-shirt. Other than the cut to his lip, the officer observed no other injuries to Montana. Montana was given other clothes to wear. When lawyer Bruce Wilson arrived, Lewis was escorted to a private area to speak with him. The officer could see and hear Montana in the soundproof room sitting on the floor and crying loudly. After he finished with counsel, Montana was then placed in cells. He had been cooperative throughout these procedures.
80Cst. Nathan Morin of the SSMPS was on a rest day at home, 41 Muriel Drive, across the street from 30 Muriel. At about 1630 hours he heard a female screaming and a man whose voice he did not recognize say “fuck off” or “get the fuck off”. A young male chased a rottweiler dog down the driveway and then started pacing behind the car in the driveway at 30 Muriel, and then held a phone to his ear. He appeared calm and not in distress. Cst. Morin made himself visible to the male so he would know he was ready to help. The male continued to talk on the phone. Police drove up with their sirens sounding.
81Cst. Morin watched Cst. Davies go up to the male and place him under arrest and warn him not to speak. Morin saw a young, bloodied male in the driveway, and paramedics performing CPR on him. The male was put in an ambulance and other officers taped off the scene.
82Cst. Marcus Policicchio arrived on scene at 30 Muriel at 1639 hours. He observed that Sam Graham had his eyes open, and pale skin. He was not responsive to verbal or physical stimuli. Policicchio held the red plaid jacket (Exh. 2, pp. 8, 37) on Sam’s wound while Cst. Turco performed CPR. They remained there until 1643 hours when EMS and fire personnel arrived and took over. Policicchio helped EMS load Sam on a stretcher and into the ambulance. He then went to the hospital with the ambulance. At the hospital, he encountered Semiah, who was quiet but emotional. He seized Semiah’s white bloody shoes (Exh. 2, Tab 6, pp. 35-36).
83Cst. Shawn Cuglietta was summoned to 30 Muriel at 16:35 hours. He heard Semiah Lewis’s 911 call over the car radio. He arrived at 16:41 hours. Cst. Davies had Mr. Lewis in custody, and Csts. Turco and Policicchio were performing CPR and first aid on Samuel Graham. Cst. Cuglietta approached Semiah, who was standing in the driveway crying hysterically and screaming. Sam appeared lifeless on the ground. Cuglietta spoke with Semiah and tried to comfort her and back her up to give officers more room to deal with Sam. They went onto the grass in the front yard, by the front staircase. The officer described there being a “comprehension issue” involving Semiah but explained that Semiah was not responding to him. I find that Semiah was simply not paying attention to the officer, as her attention was fixed on Sam.
84Eventually, Semiah stopped screaming but continued crying and shivering and pacing back and forth. EMS arrived at 1642 hours, and Semiah asked the officer if she could go to the hospital with Sam. Cuglietta said that he would see what he could do to arrange something. Semiah then looked between the house and the driveway, paced and stated the following rapidly to Cuglietta without any questions from him, as though replaying in her head what had happened and speaking it out loud. Cuglietta wrote it down in his notebook at the hospital shortly afterwards (Exh. 19). It has been received at this trial as a “res gestae/spontaneous utterance”, but its independent probative value is now spent, since Semiah herself testified at trial:
“Semiah’s brother Montana Lewis and her boyfriend Samuel Graham were in her house fighting; Graham went outside onto the driveway to calm down and she followed him. They were standing outside in the driveway and Montana came outside with a knife and stabbed her boyfriend Samuel. Semiah then took the knife from Montana and threw it.”
85Cuglietta brought Semiah Lewis to the hospital in his patrol car at 1653 hours. At the hospital, she was placed in a “soft room” with a crisis nurse, and Cuglietta prepared his notes.
86On November 12, 2020, Katherine McCoy, a civilian member of the SSMPS in the forensic branch, was called into service at 1700 hours because of an assault that had caused serious injuries. Among her various duties, she performed many forensic tasks.
87At 1830 hours McCoy attended Montana Lewis’ booking-in and took photos of his injuries, swabs of his hands, and assisted in the seizure of his clothing. She found Montana quiet and co-operative. He had an injury to his left lower lip, a small cut on his right cheek, a red mark on the right side of his neck, small cuts on his palms, and small scratches on his left elbow and forearm. A photo was taken of bruising on Montana’s knuckle (Exh. 2, p. 4), but McCoy did not know how old that injury was. She noted no other injuries and could not view Montana’s body from her vantage point while he removed his clothing and turned it over to Cst. Davies. Sgt. Cyr took other photos of some mark on Mr. Lewis’s forehead at the hairline (Exh. 9.3 and 9.4). There was blood-like substance on his grey hoodie, and red or dark staining on his t-shirt, pants, and running shoes. The seized clothing was bagged and secured.
88McCoy was unable to recall the accused “moaning and groaning” to Davies while removing his clothing but stopping once he had his jumpsuit on. However, her comments about this were received as past recollection recorded from MCM Briefing Note #2 (Exh. 10).
89McCoy examined 30 Muriel Drive the evening of November 12, 2020. Various items were seized, and photographs were taken, involving:
a. A cellphone on the car in the driveway and another by the plaid jacket;
b. Swabs of blood. McCoy did not take many swabs outside, as she believed that Sam Graham had been the source of all of the blood;
c. A footwear pattern inside the side door;
d. A fob and Walmart lanyard on the ground in the driveway near the side door (later identified by Semiah Lewis as belonging to Sam);
e. A red plaid jacket and black/white sandals; and
f. An open knife by the fence at the top of the driveway. The knife was subjected to examination for fingerprints, but none was developed.
90At the Sault Area hospital, McCoy took photos of the deceased Sam Graham, and his clothing was located, collected, and bagged.
91The following day, investigators returned to 30 Muriel with a search warrant. Rain had washed away or faded much of the blood in the driveway. McCoy took photographs inside the residence. Blood was observed on the hallway floor on the main level; some was swabbed. A partial footwear impression was swabbed. A broken candle was on the ground in the living room, and a baseboard was broken near the front door. There was some red staining on the carpet on the fourth step leading upstairs. McCoy did not know who had already been through the scene, but did observe footprints in blood.
92Four swabs were taken at the residence and sent to the Centre of Forensic Sciences (CFS) for testing. Blood on the knife from the driveway and on the main floor landing came from Sam Graham. It was later determined that the blood on the stair at 30 Muriel came from Montana Lewis.
93McCoy was present at the autopsy of Samuel Graham and took photographs as directed by the pathologist.
94Det. Cst. Pavoni and Sgt. MacLeod reported directly to the Sault Area hospital after they were notified about the stabbing. Semiah Lewis was in a private room with a crisis nurse and doctors were still with Samuel Graham. Semiah Lewis was very emotional, crying uncontrollably and in shock. She provided an eight-minute-long audio statement. At 5:49 p.m., Pavoni learned that Sam had passed away. Pavoni was present when Dr. Parent broke the news about Sam to Semiah. She stared blankly and did not want to believe it.
95The following day Pavoni took part in the execution of a search warrant at 30 Muriel Drive. Samples were collected of blood spattering in the driveway, and on and in the house, along with photographs of the scene.
Autopsy
96Dr. Michael D’Agostino’s statement of qualifications was admitted (Exh. 11) and he was qualified as a forensic pathologist on consent. He conducted a postmortem on Samuel Graham on November 17, 2020 in the forensic pathology unit at the Sault Area hospital, and prepared a report (Exh. 12).
97Samuel Graham was some five feet ten inches tall and weighed approximately 160 pounds at the autopsy. It was clear that EMS had attempted heart massage.
98As to injuries, Dr. D’Agostino noted:
a. A penetrating stab wound of the abdomen. The wound tracked upward, front to back and left to right in the body. It transected the tip of the 10th left anterior rib and inferior pole of the left kidney, incising the walls of the left renal vein and ureter at the renal pelvis. It also incised the wall of the abdominal aorta on its left side, left lumbar paraspinal muscle and superficially incised the left side of lumbar spine L2 vertebral body, exposing bone marrow. The wound to the aorta caused extensive hemorrhaging. Dr. D’Agostino noted 650mL of blood in the abdominal cavity with a large further area of tissue involvement. It was possible that this injury would not immediately show itself;
b. A penetrating stab wound of the left upper arm. The wound tracked upwards, left to right and front to back. It nearly completely cut through the left back of the triceps muscle, and superficially scored the humerus bone, before terminating in the capsule of the left shoulder joint. There was no apparent injury to any major nerve or vascular bundle there. The wound to the arm could represent a defensive-type injury, if the arm had been put in the path of the weapon that was about to cause injury;
c. There was a cluster of red short abrasions on the right back, bruising on the arms and a friction abrasion on the right elbow. There were a red bruise and red abrasion on the back of the right hand. There were six small red abrasions on the back of the left hand.
99Dr. D’Agostino determined that Samuel Graham had died from the stab wound to the abdomen that resulted in fatal blood loss (exsanguination) from the aorta, the largest artery in the body, with development of irreversible shock from blood loss. Dr. D’Agostino described that wound as “an independently fatal injury.” The stab wound to the upper arm was “not necessarily” an independently fatal injury, though it would have required treatment in hospital and surgical repair if Samuel Graham had not died. The other injuries were minor and not significant to the cause of death.
100Dr. D’Agostino opined that the knife that was identified by Semiah Lewis as the one that she threw, and that was recovered by police at the scene, whose blade is 10 cm long, could have caused the 15 cm wound in Sam Graham’s abdomen, because the body compresses during a stabbing. The knife could also have caused the wound to the arm.
101The abdominal wound would have been rapidly lethal from rapid blood loss. There would likely have been immediate or near-immediate heart collapse and loss of consciousness. However, Dr. D’Agostino could not exclude the possibility of a person remaining physically capable and strong after such an injury. Dr. D’Agostino agreed that if the wound had tracked an inch over, it would not have cut the aorta and Samuel Graham might not have died.
102Dr. D’Agostino agreed that with a sharp force injury such as the abdominal wound in this case, once clothing and skin and cartilage were breached, the knife would move through the body easily, with much less resistance.
Cell phone data
103Detective Sergeant Michael Rogers works in the “tech crime” unit at the SSMPS. He executed warrants to analyze various cell phones that had been seized by police during the investigation of this matter and search them for relevant messages. He produced reports on contents from various phones that were made exhibits on the trial.
104Exhibit 17 is the extraction report on Semiah Lewis’ cellphone. Among the messages that she received or sent were the following:
a. A message sent to her mother at 4:14 p.m. on November 12, 2020, reading, “Montana like freaked out on me for like no reason and then Sam got mad at him and they almost fought.”
b. A message sent to her father at 4:19 p.m. on November 12, 2020, reading: “Can u like talk to Montana and tell him to relax like he’s a spaz and always freaking out on me and my mom for no reasons and he’s really mean all the time and calls us names and Sam got mad at him today for it and they were yelling back and forth and almost fought and now Montana is gonna try and fight him or get him jumped or whatever he’s gonna do because Sam stuck up for me and my mom. And my mom does nothing about it and he listens to no one and I don’t wanna live with them anymore because I have too much school and no time to deal with him all the time and he’s just crazy and needs to stop”.
105Exhibit 18 is the extraction report on Kadence Syrette’s phone. She was Montana Lewis’ girlfriend until they broke up in the summer of 2020, though they remained on friendly terms. She and Montana Lewis had message conversations earlier on November 12, 2020 and while Semiah and Sam were gone from 30 Muriel to the vape store that day:
a. The two flirted about being physical with one another. Montana stated at 12:32 p.m. that “Gotta be very very gentle tho” and “I can’t rlly move either lol”, comments apparently relating to the ATV accident he had been in several days earlier.
b. At 3:55 p.m., Montana wrote, “I’m gonna kill Sam today’s the day”. Kadence asked at 4:13 p.m., “what happened”. Montana texted at 4:14, “He’s dead” and “waiting for him to get back.” Kadence asked, “What he do?” at 4:14 p.m., and at 9:09 p.m., “you stabbed him??”
Jaden Grenier-Mercier
106Jaden Grenier-Mercier (“Jaden”) works on the railroad and has known Montana Lewis since they were children. They played hockey and other sports together. They are still “best friends.” Jaden was also a friend of Sam Graham. He and Sam had played football together and went to White Pines high school. Jaden and Montana were supposed to hang out together later on November 12, 2020.
107Jaden knew Montana’s ex, Kadence Syrette. Montana and Kadence had started dating in grade nine and broke up in grade 11. Jaden described their break-up as “messy.” Montana was “super distraught.” Semiah once called Jaden to come over to help Montana; he found Montana in his tree fort, “super upset” and suicidal. Jaden did not observe Montana’s habits to change after the break-up.
108On November 12, 2020, Jaden spoke with Montana on a phone call. Montana called him at about 4:05 p.m. With his voice raised, Montana told Jaden that he and Sam had gotten in a big fight and that Sam had thrown him down the stairs. To Jaden, Montana sounded upset and “super frustrated”, and he announced that he was very angry. Jaden had never experienced Montana that angry. Jaden urged Montana to keep calm. He said he could come pick Montana up, or he could be there for him. Montana told Jaden that he wanted “to fuck [Sam] up.” Jaden felt that Montana was asking permission to fight Sam. Jaden presumed that they would just get in a fist fight “and that would be it.” He had no sense that Montana intended to cause Sam serious injury. Jaden knew that Montana had broken or bruised ribs from the ATV accident.
109Jaden was one of several witnesses whose evidence, relating to Sam and Semiah’s relationship, was segregated on a voir dire until Montana gave evidence of having been motivated, in approaching Sam with a knife, by his concerns for Semiah’s safety from Sam. Once there was an air of reality to that mental state of Montana’s, the voir dire evidence with respect to those witnesses was received in the trial.
110Jaden described that at least a year prior to Sam’s death Montana told Jaden that he had argued with Sam about Sam’s verbal or physical abuse in his treatment of Semiah. “It was just words and then it was settled.” Jaden recalls no further mention by Montana of abuse. Jaden also knew Semiah well and described Montana’s relationship with her as “super close.” Montana was very protective of Semiah.
111Jaden never observed Sam to be abusive with Semiah. Rather, he found that Sam was “super clingy” with Semiah, and that they were “way closer” than people normally were. He would leave school to be with Semiah, which Jaden found “weird.” He did see screaming in the relationship by both on one or two occasions. Sam had called Semiah a “whore” and a “slut.” Montana told Jaden that he had concerns based on text messages about abuse.
Dustin Boyer
112Dustin Boyer also knew Montana Lewis as a childhood friend. In November 2020 he was in grade 12 at White Pines high school. He and Montana met six or seven years before November 2020 in hockey. They would play video games after school. Dustin had been a friend of Sam’s for even longer.
113On November 12, 2020, Montana called Dustin and asked if it was “okay” to fight Sam. Dustin said that he did not know why Montana needed to ask his permission. Montana sounded a little distressed and sad. Dustin thought something was wrong. He found the conversation awkward because it involved two of his friends who were going to fight.
114Dustin recalled that Montana and Kadence broke up in August or September 2020. He did not notice much about Montana after the break-up except that Montana was “maybe a little more wild” and drinking more.
115When Sam and Semiah first started dating, Montana once expressed to Dustin concerns about their relationship. Montana told Dustin that he would be mad at Sam if Sam messed up in a relationship with Semiah. Dustin felt that Montana was just being a protective brother.
Kadence Syrette
116Kadence Syrette met Montana Lewis in 2019, and they became friends. They then started dating. Their relationship ended in July 2020. They would text each other frequently. Kadence knew Sam only because he was dating Semiah. Kadence described Montana’s and Semiah’s relationship as close. They had a sense of what the other was thinking. They knew each other’s moods. Montana looked out for Semiah like an older brother.
117After they broke up in July 2020, Montana took it badly. Kadence observed that Montana was drinking more alcohol and abusing drugs. She would see him drinking and using “weed” every other day on social media. By a month after the break-up, they continued on as friends. Montana liked to spend time with Kadence because she knew how to help him when he was down. She could help him when he got depressed. Kadence knew that Montana had hurt his ribs and chest in the ATV accident.
118On November 12, 2020, Kadence and Montana had been planning to hang out together. Kadence recalled the text conversation in Exh. 18. She only found out that Montana had stabbed Sam online. Montana’s earlier threat to kill Sam was completely different from their conversation earlier that day; Kadence could not figure it out. But she did not call police or think anything of Sam’s message about killing Sam. It was just an expression that people use.
Montana’s statements to Semiah after the stabbing
119The defence argued for the admission of utterances made by Montana to Semiah after Sam’s stabbing. He told Semiah, “put him on his back.” He also told her, “I’m sorry. I love you.” Lastly, Semiah overheard Montana say, as he spoke on the telephone on the front lawn of the house at 30 Muriel Drive, “I’m going to jail; I stabbed him.”
120I do not agree with the defence that utterances by the accused can be led from Semiah at the instance of the defence on the basis of the general “res gestae” exception to the hearsay rule. A general rule limits the reception of out-of-court statements by an accused into evidence to inculpatory use, with some exceptions, such as to show the accused’s state of mind, to rebut an allegation of recent fabrication, or to ensure balance by the introduction of exculpatory aspects when inculpatory portions of a statement have been introduced: R. v. Simpson, [1988] 1 S.C.R. 3, at para. 24; R. v. Rojas, 2008 SCC 56, [2008] 3 S.C.R. 111, at paras. 35-36; see also generally, R. v. Edgar, 2010 ONCA 529, 260 C.C.C. (3d) 1, at paras. 27-36. The limitation is intended to prevent the introduction of self-serving or untested utterances made by an accused to an out-of-court interlocutor.
121The defence argues that the “res gestae” exception is the basis for admissibility of statements by an accused at the instance of the defence in R. v. Graham, [1974] S.C.R. 206, and R. v. Risby, [1976] B.C.J. No. 755 (B.C.C.A.), at paras. 3-7, aff’d 1978 184 (SCC), [1978] 2 S.C.R. 139. Those cases considered situations of utterances made by an accused person to police to explain the instant possession of stolen property or of an illegal substance. The defence argues that if the proximity requirements of the general “res gestae” rule are met, then utterances by an accused person may be received at the instance of the defence, even if they are self-serving and exculpatory. In my view, the rule described in these authorities and their progeny is better described as a subset of “res gestae” in which the hearsay is uttered by an accused as an unrehearsed explanation to a person in authority upon first being confronted with proximate continuing criminal conduct. That exception does not function in the circumstances of this case. At the least, Semiah was not a person in authority.
122However, it is my view that the utterances at issue are receivable pursuant to the “state of mind” exception mentioned in Simpson. At this trial Montana’s statements allow inferences about his state of mind at a time just after he had stabbed Sam. Montana’s state of mind is circumstantial evidence which may assist in determining his intent when he did the actus: see, e.g., R. v. Schwartz and Schwartz, [1978] N.S.J. No. 505 (C.A.), at para. 23. The voir dire evidence with respect to these utterances is received on the trial.
Burden of proof and the test in W.(D.)
123Montana Lewis began this trial presumed to be innocent of the charge of first-degree murder. The Crown has the burden of displacing that presumption with proof beyond a reasonable doubt of the essential elements of that offence or an included offence: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27.
124Montana admits causing Sam Graham’s death. The Crown’s central witness was Semiah Lewis, who testified about her brother Montana’s aggressive interactions with Sam earlier on November 12, 2020, about the anger that Montana expressed to her while she went with Sam to the vape store, and about Montana coming outside with a knife and stabbing Sam in the abdomen, inflicting the wound that caused Sam’s death.
125Montana has testified and has claimed that when he brought the knife outside to where he confronted Sam, he intended only to intimidate Sam and believed that he had to do so to defend Semiah, his sister, and in so doing also to defend himself because of his weakened condition. He claimed that the actual fatal blow was struck without intention on his part, that it was essentially a reflex response to Sam’s apparent aggression against him, and that it was therefore an accident. He has also brought to bear various issues, such as his intoxication by drugs and alcohol, the lingering effects of a traumatic head injury, and a continuing depressed mental state because of his break-up from Kadence Syrette, all of which affected his ability to form the intent for murder.
126The central issue for the court to decide in this case is Montana’s mental state at the time that he struck the fatal blow to Sam. If he had a mental state for murder, he will at least be found guilty of second-degree murder. In that case, if planning and deliberation is proved, a conviction for first degree murder will be recorded. If the court is left with a reasonable doubt based on Montana’s claims of self defence, defence of other, and accident, then he must be acquitted of any culpable homicide. If Montana’s claims of defence of self or other and accident fail, but the court has a doubt about the intent required for murder, then he will be found guilty of manslaughter.
127Other evidence in this case, particularly that of Kadence Syrette, has Montana threatening Sam’s death before their final encounter. The Crown relies on this evidence to help establish the intent to kill and also the further element of planning and deliberation that is required for first-degree murder.
128Montana urges on the court the evidence of his state of mind after the stabbing, as expressed to Semiah, as circumstantial indications that he never intended or thought that Sam’s death would result from the knife that Montana was carrying. The distress that Semiah observed in her brother, his loud weeping at the police station, cooperation with police, and attempt at suicide in his cell are also argued to be pieces of evidence to support the absence of any murderous intent.
129In these circumstances, where Montana Lewis has testified and his evidence is central to the determination of the case, I have instructed myself in accordance with the direction of the Supreme Court of Canada in R. v. W.(D.), [1991] 1 S.C.R. 742, at pp. 757-758. In W.(D.) the Supreme Court instructed:
In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole.
A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [Citations omitted.]
130While it has been said that these three W.(D.) steps are not a “magic incantation”, following the analytic framework set out in that case ensures that the correct burden and standard of proof are applied: R. v. S.(W.D.), [1994] 3 S.C.R. 521, at p. 533. Importantly, the assessment of the accused’s evidence does not take place in a vacuum, but rather in the context of all of the trial evidence: R. v. Hull, [2006] O.J. No. 3177 (C.A.), at para. 5. As earlier noted by Charron, J. in R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para 23:
In a case that turns on credibility … the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt.
Assessment of evidence
Credibility and reliability
131In this case, the court must in particular confront the credibility and reliability of Semiah Lewis and Montana Lewis. They are the central witnesses to events in this case. While their evidence at times runs along the same track, there are also significant differences, and the credibility and reliability of these two witnesses are fundamental to the resolution of trial issues: see R. v. A.J.K., 2022 ONCA 487, 415 C.C.C. (3d) 230, at paras. 28-32.
132In R. v. M.(A.), 2014 ONCA 769, 123 O.R. (3d) 536, Watt, J.A. reviewed applicable principles for assessing the evidence of witnesses as to credibility issues. I excerpt the following for consideration in the circumstances of this case (from paras. 12-15):
12 …[O]ne of the most valuable means of assessing witness credibility is to examine the consistency between what the witness said in the witness box and what she has said on other occasions, whether or not under oath. Inconsistencies may emerge in a witness' testimony at trial, or between their trial testimony and statements previously given. Inconsistencies may also emerge from things said differently at different times, or from omitting to refer to certain events at one time while referring to them on other occasions.
13 Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.
14 …[A] trial judge giving reasons for judgment is neither under the obligation to review and resolve every inconsistency in a witness' evidence, nor respond to every argument advanced by counsel. That said, a trial judge should address and explain how she or he has resolved major inconsistencies in the evidence of material witnesses.
15 …[P]rior consistent statements of a witness are not admissible for their truth. Mere repetition of a story on a prior occasion does not make the in-court description of the events any more credible or reliable. [Citations omitted]
133While inconsistencies on minor matters or small points of detail are normal and are to be expected, a trial judge must be careful not to improperly discount “major inconsistencies” by labeling them as “peripheral”, and thus avoid the duty to address and weigh them: R. v. D.H., 2016 ONCA 569, 338 C.C.C. (3d) 251, at paras. 37, 50, 69-71; R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 17.
134It has been recognized that observations made by witnesses during traumatic events can be difficult for them to recall and to describe accurately later. In addition, a witness may well not retain a faithful memory of peripheral details that occurred during a traumatic event and the inability to recall a minor or insignificant event need not detract from the witness's overall reliability or credibility: R. v. C.(G.M.), 2022 ONCA 2, 159 OR. (3d) 561, at para. 38; R. v. A.A., 2023 ONCA 174, at para. 17.
135Witness credibility is not the only issue to be determined. The reliability of a witness’s evidence is a separate but related issue. As noted by Watt, J.A. in R. v. H.C., 2009 ONCA 56, [2009] O.J. No. 214, credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, at para 41: “Any 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 witness may give unreliable evidence.”
136It is also important not to make credibility and reliability assessments of a witness without taking into account confirmatory or corroborating evidence that assists in making the determinations: R. v. M.W., 2024 ONCA 499, at para. 6. Confirmatory evidence that is more consistent with one witness’s version of events than with that of another witness can assist in the assessment of evidence. To be confirmatory, the evidence need not directly confirm key allegations of the witness or directly implicate the accused: R. v. L.G., 2023 ONCA 804, at para. 37; R. v. S.R., 2023 ONCA 671, at para. 7.
137Both Montana Lewis and Semiah Lewis made statements about the events surrounding the death of Sam Graham before giving their evidence in this court. The evening after the killing of Sam Graham, Montana gave a statement to police that is admitted on this proceeding to be voluntary. Semiah made statements to police on the day of the killing and several days later. She also testified at the preliminary inquiry in this case and, years after Sam’s death, provided an affidavit detailing alleged violence that she had suffered from Sam during the course of their relationship, and what she believed Montana knew about it.
Assessment of credibility and reliability in this case
138With that by way of background, I will consider next the credibility and reliability of witnesses, but particularly Montana Lewis and Semiah Lewis.
Tangential witnesses
139I find that the tangential witnesses in this case generally gave credible and reliable evidence. This was so even of witnesses whose allegiances might lead to concerns about favoritism or bias, such as Jaden Grenier, Dustin Boyer, and Kadence Syrette. I find that those persons seemed even to take care not to overstate or exaggerate their evidence. The police evidence demonstrates police procedures in emergency situations and in the collection of crime scene and other evidence, and no credibility or reliability issues stand out. Certainly, the expert witnesses in the case had no axes to grind; their opinions are straightforward and supportable. The evidence of all these persons is available to play a useful supporting or corroborating role.
Montana Lewis
140Montana Lewis testified about his extensive drug and alcohol use from the morning of November 12, 2020 up through the time that Sam and Semiah returned from the vape store. Wine by the water-bottleful, marijuana, lines of cocaine, he claimed to have consumed many intoxicating substances throughout that day. Within minutes of Sam and Semiah’s return from the vape store, Sam lay dying in the driveway. Montana admitted to being “buzzed” as a result of his consumption of substances. Montana testified that he was not thinking clearly, and some parts of events were blurry, but he remembered most things. I do not accept that claim.
141I find that Montana’s memory has been affected by the consumption of substances. Semiah confirms having heard about Montana’s drug use and attributed his short temper to his use of cocaine. I do not find that Montana’s state of intoxication was so central to the evidence of police who had contact with him that the defence, moreso than the Crown, should have questioned police witnesses about their observations in that regard. I find that, at the least, even if substances did not affect Montana’s ability to function on November 12, 2020, they affected his memory and must cause the court to seriously question the reliability of his evidence.
142Montana also testified about the concussion-like symptoms that he suffered as a result of his ATV accident, symptoms that were only exacerbated by hitting his head on the stairs at the conclusion of his fight in the house with Sam. Montana wants the court to consider that such injuries had an effect on his ability to form an intent for murder. However, I am simply not convinced that any head trauma that Montana Lewis asserts had any significant effect on his mental functioning. He played video games, he did household chores, he conducted a voluminous text correspondence that day. He fought with Sam, he ran up the stairs in his home to retrieve a knife, he ran up to Sam, he stabbed Sam. He seems generally to have had effective control over himself, subject to his consumption of substances and their effect on his mental functioning.
143The parties agree that Montana Lewis gave a voluntary videotaped statement to police between 11:24 p.m. on November 12, 2020 and 12:34 a.m. on November 13, 2020. Montana claimed that he did not remember most of it but admitted that one part of it was a lie. He testified that at the time that he provided his statement he was “a mess”. Montana claimed to see in himself in the video the effects of drugs and alcohol and that he was closing his eyes because his head hurt. Among other things, he told his interviewer, D/Sgt. Geoff Macleod the following things:
a. That he had a knife on his person and in his pocket when he fought with Sam because he had been using the knife for the chores he had been doing;
b. Once Montana engaged with Sam upon Sam and Semiah’s return from the vape store, Sam “basically dragged [Montana] all the way to the front door”. This scenario was put to Semiah and denied by her. Montana did not claim it in his testimony;
c. When Montana was at the bottom of the stairs that led to the bedroom level of the home, Sam was on top of him, punching him non-stop. Montana was scared and pulled the knife from his pocket and stabbed Sam twice, right in front of the front door of the house. Sam got off because Montana stabbed him. This appears to be the part that Montana admitted in his testimony was a lie;
d. Montana denied trying to go out the side door of the house to get outside. He went right out the front door, which was near where he had ended up at the conclusion of the fight, as he claimed in his statement;
e. Montana went out of the house to see his sister, and Sam ran at him at the front door again after Montana went out, “still hammering me”. This was just off the front steps. Montana punched back at first. But Montana stabbed Sam again, pulling the knife from his pocket when he was on the ground: “Ya, he was still punching me that’s why I stabbed him because he was punching the shit outta me”. Sam got him on the ground, and “I hit him one more time with my knife”. Montana just “blacked out.” If he had been in his “right state of mind,” he “would of just took the beat down probably;”
f. As noted in each of the two stabbing situations offered by Montana in his statement, he pulled the knife from his pocket to defend himself when he was down and being beaten by Sam.
144These represent significant inconsistencies compared to Montana’s trial evidence. In closing submissions, the Crown suggested that Montana’s claimed concern for Semiah was late arriving in his trial evidence. On agreement, however, Exh. “f”, containing excerpts from Montana’s recorded statement to police, shows that Montana had raised some concerns about Semiah’s safety in his formal statement to police, thereby formally rehabilitating his evidence in this regard.
145In his statement to police, Montana described himself as being dragged by Sam back towards the stairs and the front door during their aggressive encounter on Sam and Semiah’s return to the house. In his evidence on this trial, Montana testified that he was beaten back by Sam’s blows, until he fell down at the stairs. A description of being dragged paints a picture of Montana as a helpless victim of Sam’s overpowering strength and aggression. Semiah’s evidence, which I accept, has Montana and Sam hurling punches at one another, though Sam ultimately appeared victorious. I find that Montana deliberately exaggerated his frailty to bolster his use of the knife to protect himself (in his statement to police) or to protect Semiah and himself (in his trial evidence).
146It was the stabbing of Sam in the house that Montana acknowledged in his evidence was a lie. But the further claim of a stabbing outside the front door is also greatly at odds with Montana Lewis’ trial testimony. In the description of two stabbings in his statement to police, Montana Lewis presented a version of facts that has him defending himself against Sam Graham’s persistent assaults upon him. This represents a very different narrative than the one that he offered on this trial. This scenario in the statement also has Sam rushing at Montana near the front door and inflicting a beating upon him there, instead of the two meeting at the corner of the house, as in Montana’s trial evidence.
147It is also no small inconsistency that Montana Lewis claimed to police to already have a knife on his person inside the house when Sam was beating him. Whether inside the house or outside the house, Montana claimed to take the knife from his pocket to stab Sam and fend off Sam’s attack on him. That is very different from his evidence at this trial, in which Montana claims to have gone upstairs to retrieve a knife from his bedroom, and to have brought it openly outside in an effort to confront and intimidate Sam to protect Semiah. That Montana went up the stairs to get the knife from his bedroom was also an inference from the evidence of Semiah Lewis, whose evidence I accept.
148In his evidence at trial, Montana testified that he tried to go out the side door after retrieving his knife, but found it held against him. In the version to police, Montana already had a knife in his pocket, and therefore headed directly out the front door after stabbing Sam inside, since it was the closer door. Sam ran up and attacked him at the front door and continued a violent beating.
149What is more troubling even than these significant inconsistencies is Montana’s claim in cross-examination that he only remembered bits and pieces of his statement to police, even though he could not deny that he had made it. I do not accept this wholesale disavowal of the statement that Montana made to police, and I find that Montana chose this strategy to distance himself from what he recognized were significant inconsistencies that he had provided to police.
150Defence counsel has urged the court to recall how traumatized Montana was, and affected by drugs and alcohol, that in his evidence he repeatedly described himself as a “mess”, and not in a good mental space after his arrest. In my view of the evidence, Montana was coherent in the statement that he provided to police. He had spoken to counsel and provided a statement that he agreed was voluntary. That necessarily represents an admission of an operating mind. I observed nothing that contradicts that basic standard. The statement reflects bad judgment, not distorted reality.
151The Crown has urged the court to find against Montana’s credibility because Semiah was not questioned in more detail concerning her conversations with Stu Souliere about Sam’s abuse of her, or about Sam “grappling” with her; because Kadence was not asked to explain the antecedent discussion that explained Montana’s remark that “today is the day”; and that Cst. Davies and Katherine McCoy were not questioned about Montana’s state of sobriety. The “rule in Browne v. Dunn”, on which the Crown relies, does not apply in the circumstances here, as the defence was not seeking to impeach these several witnesses through the giving of that testimony; rather, the accused offered further or additional details about things that the witnesses did not acknowledge, did not discuss, or only touched on in their evidence. Accordingly, I find that fairness to those witnesses did not require that they be confronted during their evidence with what Montana would offer in his own: R. v. McDonald, 2025 ONCA 807, at paras. 57-59. R. v. Quansah, 2015 ONCA 237, 323 C.C.C. (3d) 191, at paras. 75-86.
152Given what I consider to be Montana’s deliberate and repeated untruthfulness or exaggeration in his statement to police and in his claims to remember only bits and pieces of that statement, I find that he is not a credible witness in what he told this court, and I cannot securely rely on his evidence in making findings of fact. Moreover, I find that his evidence about events on November 12, 2020 has additionally been rendered unreliable by the unquantifiable but inevitable effect on his memory of the substances that he consumed throughout the day. Generally, I reject the evidence offered by Montana where it conflicts with evidence offered by Semiah, except where I indicate otherwise.
Semiah Lewis
153For her part, Semiah Lewis provided a coherent and consistent account to the court about the events of November 12, 2020.
154There were many places, however, where Semiah testified that she could not remember various details that were put to her. Many of these places figured in rulings by the court that her “past recollections recorded” could be admitted into evidence, both at the instance of the Crown and the defence.
155While I have serious concerns about what lay behind Semiah’s decision to provide to the defence in 2024 an affidavit detailing Sam Graham’s alleged domestic abuse of her during their relationship, there is evidence from other witnesses that corroborates intimate partner violence in minor ways. When she was questioned about points of detail in relation to that alleged abuse, she often stated, as in many other places in her evidence, that she could not remember. Her lapses in memory throughout her testimony were not obviously attempts to favour one side or the other.
156Sometimes, Semiah accepted counsels’ efforts at refreshing her memory and was able to provide the details that she had offered in earlier statements or evidence. All in all, I did not get the impression of a deceitful witness attempting to hide the truth. Rather, it is apparent that Semiah was severely affected by Sam’s stabbing, her efforts to keep him alive, and his death. Her efforts to get through her trauma and move past it have required her to banish some details from her mind. This is more a reliability issue than a matter of credibility.
157Some differences between Semiah’s evidence at trial and in her formal statement to police are so minor as to merit no downgrading of her credibility or reliability. Whether Montana fell to the ground or onto the stairs at the conclusion of his fight in the house with Sam, or whether Semiah saw, or instead heard, Montana run up the stairs as she and Sam went to leave the house, are matters of little moment. Semiah’s inability to remember how Montana and Sam ended up on the ground after seeing Montana stab Sam is not at all surprising.
158Overall, I was struck by Semiah’s efforts to be truthful in her evidence when testifying at her twin brother’s trial for murder. Although she told police at the hospital on November 12, 2020 that she hated Montana for what he had done to Sam, I accept that her affection for her brother has outlasted that hatred, and that she has generally provided credible and reliable evidence to this court. I do not see her evidence as biased in any way against Montana. The evidence of her affidavit of domestic violence given to the defence rather suggests to me the opposite. The other evidence in the case, including that of Jaden Grenier, Dustin Boyer and Kadence Syrette about Montana’s communications with them while he was also communicating with Semiah, the forensic scene evidence, the 911 call, and at times the evidence of Montana himself, all assist in demonstrating the general reliability of Semiah’s evidence.
159Although I admitted Semiah’s monologue to Cst. Cuglietta as “res gestae/spontaneous utterance”, I have not considered it to bolster her credibility and reliability. Nor will I take it into account in my determination of fact in this case as, after Semiah testified, it represents only a prior consistent statement with limited probative value.
Findings of fact
160On all of the evidence in this case, I find as follows.
161Evidence was given from various witnesses about Montana’s breakup with his girlfriend Kadence Syrette in the summer of 2020, and the effects of that breakup on him. Montana claimed that he was depressed and began to drink more and use marijuana and cocaine more frequently than before the breakup. The cocaine gave his temper a shorter fuse. His friends also noticed changes in his personality. All of this must be moderated by Montana’s evidence that he had taken to working out-of-town and was less often at home until work slowed down in October 2020. It also bears noting that by November 2020 Montana was several months into a new relationship with Paige Hisco and remained on friendly terms with Kadence. I am unable to conclude on the evidence at this trial that Montana remained severely affected or depressed by his breakup from Kadence for very long.
162I do find that Montana had been concerned about how Sam was treating his twin sister Semiah. It is not unusual for victims of domestic violence to conceal that violence from others, and to do so imperfectly, as counsel has submitted. The evidence at this trial comes from various sources. Montana became aware of allegations of abuse from friends and from his own observations. The real issue is Montana’s belief about that abuse, particularly on November 12, 2020. I accept, for the most part, the evidence of Dustin Boyer and Jaden Grenier. They gave evidence about various subjects, and both were friends of both Montana and Sam.
163The evidence at this trial is that at least up until Montana left to work out of town in about the Spring of 2020, Montana and Semiah had been close. So, I accept that when Sam and Semiah first started dating, Montana expressed concerns to Dustin Boyer about their relationship. Montana told Dustin that he would be mad at Sam if Sam messed up in a relationship with Semiah. Although the court was not offered direct evidence from Stu Souliere, I am satisfied that this man, a mutual friend of Montana’s and Semiah’s, did tell Montana about some past alleged mistreatment by Sam of Semiah at some point prior to November 12, 2020.
164Jaden Grenier testified that Montana had told him that he had argued with Sam about verbal or physical abuse in his treatment of Semiah. Montana told Jaden that he had concerns based on text messages about abuse. It seems likely that such messages came from Stu. As Jaden understood it, “it [the argument with Sam] was just words and then it was settled.” Jaden recalled no further mention by Montana of abuse. Jaden never observed abuse by Sam of Semiah, though he found Sam “super clingy” with Semiah, and that they were “way closer” than normal. A less neutral observer, like Montana, could find such conduct by Sam “controlling.” Jaden testified that Sam and Semiah did scream at each other, and Sam had called Semiah vulgar names.
165I do not need to make findings of fact about abuse that Semiah claimed to have suffered from Sam for the purpose of this trial. Semiah provided evidence about problems in her relationship with Sam and Montana’s knowledge of it, initially by an affidavit given to the defence in 2024. Semiah described that Sam had been controlling in their relationship and verbally abusive and called her names, such as “bitch” and “whore”; certainly the name “bitch”, on Semiah’s evidence, was in fact one that she and Sam found amusing, and it became part of her on-line persona. They argued a lot. Semiah described occasions of spitting, and Sam holding Semiah down to prevent her from leaving, leaving marks on her wrists. Sam once pushed her down, and on another occasion elbowed her. Their relationship did mature, and she claimed less violence in its last year.
166Montana asked Semiah about Sam’s abuse, and Semiah lied to him and denied it. Semiah admitted to speaking about the abuse with Stu Souliere. Semiah denied having any marks from Sam on her person when talking with Montana, and she did not believe that Montana ever saw marks on her. Montana recalled “confronting” Semiah about abuse by Sam, and she denied it. Montana claims to have seen bruising, and “could tell she was lying” about its cause. I cannot much trust Montana’s description of situations denied by Semiah, but I can believe that he concluded she was lying when she denied what Stu had told him.
167Montana described an incident where he and his father went to collect Semiah from Sam’s after hearing from Stu that Semiah needed rescuing, and that she would not leave but was crying while communicating with their father. Montana’s assertion that he could tell Semiah was crying from her text messages to their father does not inspire confidence in the reliability of his claim about this incident. Real tears don’t show on electronic texts.
168I am not satisfied that Montana’s information leading up to November 12, 2020 was current or even particularly accurate, but I am satisfied that by that date Montana had heard various things about Sam and Semiah’s relationship that did cause him some concern.
169Several days before November 12, 2020, Montana and a friend had been using ATV’s and had gotten into an accident. Montana testified about various injuries that he claims to have suffered. He may have had a concussion and injuries to back and sternum. Walking was difficult, and he felt very stiff. Unfortunately, no hospital records were produced to the court to clarify or confirm what injuries Montana had actually received or what advice he was given. But Semiah and Montana’s friends did confirm the accident and some physical sequellae. I do not accept Montana’s claim of concussion.
170Montana testified that he was advised to limit screen time but did not. He did limit his physical activities but testified that he went into his yard in the morning of November 12, 2020 to do some chores and try to stretch and exercise his muscles. He also drank water-bottle wine and did drugs. I do not find that Montana was much limited mentally by after-effects of the ATV accident. Certain physical movements caused him pain, as demonstrated by noises and complaints he made while turning over his clothing to police later while in custody. But he chose to move around on November 12, and his injuries do not seem to have slowed him down much in his fight with Sam after Sam’s return from the vape store and during the stabbing.
171Sam and Montana had a confrontation before Sam and Semiah left for the vape store. This confrontation was ignited by Montana’s deliberate and unnecessary crudeness and insulting conduct towards Semiah, who had come into his room to ask him if he wanted anything at the vape store, and if so, to collect money to purchase it. What upset Montana was Semiah’s interruption of his video game, because he was distracted and lost. Montana called Semiah a “bitch.” It is possible that Montana also asked for a ride to his friend Jacob’s house and his request was rejected by Sam. If so, small wonder, given his rudeness to Semiah, Sam’s girlfriend. When Montana again insulted Semiah, Sam stood up for her, impressing Semiah. Sam and Montana had words, and Sam appears to have shoved Montana, causing him to back against a wall, but not to fall down. Here I accept Semiah’s evidence.
172Montana recalled that after Sam and Semiah had left, he messaged friends and sought advice from people he knew. He asked Dustin Boyer for permission to fight Sam and spoke with Jaden Grenier. He claimed that his thinking was “a mess”, so he was seeking guidance and support. Montana declined Jaden’s offer to come help, as another friend, Jacob, was supposed to come over.
173After Sam and Semiah left for the vape store, Montana seethed at being put in his place by Sam. He contacted Kadence at 3:55 p.m. and texted her: “I’m gonna kill Sam[;] today’s the day.” This must have been just after Sam and Semiah had left.
174At 4:05 p.m., Montana called and complained (inaccurately) to Jaden Grenier by telephone that Sam had thrown him down the stairs. Montana’s voice was raised, and he was angrier than Jaden had ever otherwise experienced from Montana. Jaden urged Montana to calm down, but Montana said that he wanted to “fuck Sam up.” Jaden thought that Montana would just get in a fist fight with Sam, and that the situation would be resolved. Jaden was a friend to both. Jaden knew that Montana was injured, and he thought that would limit the violence.
175Montana also called Dustin Boyer and asked if it was “okay” to fight Sam. Dustin said that he did not know why Montana needed to ask his permission. Montana sounded a little distressed and sad. Dustin thought something was wrong. He found the conversation awkward because it involved two of his friends who were going to fight. Like Jaden and Kadence, Dustin was not concerned that Montana intended real harm to Sam.
176Montana also texted Semiah while she was in the car with Sam on the way to the “Juice on the Loose” vape store. Semiah could tell from Montana’s snapchats that he was still angry, and she became upset at what he was saying. Semiah was worried that Sam and Montana would fight, though Sam had wanted to talk it out. Montana’s comments that Sam “was over”, that he “was done”, certainly gave her grounds for her concerns. Semiah could only have viewed Sam’s response to Montana, that he should “fuck off” if he could not be mature and talk it out like a man, as a further step towards a violent confrontation. Semiah was worried that Montana would get Sam jumped, and she did not want to go back to her house. She texted both her parents in hopes that they might exercise some control over Montana.
177Montana felt a variety of emotions. He claimed to have been sad and angry at himself for his behaviour towards Semiah, and angry at Sam for pushing him. He was confused and did not know what to do. He claimed in his evidence to have felt concussed and the buzz from the drugs and alcohol that he had been consuming all day did not help; he was not thinking clearly, and some parts of events were blurry. His mind was racing, and alcohol had erased his “filters.” While I believe that Montana is very much exaggerating the effect of substances on him and the effect of what he claimed to be a concussion, I have real difficulty in accepting Montana’s parallel claim that “most things I remember.” As I stated, I believe that the drugs and alcohol that Montana consumed have compromised the reliability of his recollection and his interpretation of events.
178I specifically reject Montana’s evidence that he messaged and spoke with Stu on November 12, 2020, about whether Sam was “still beating” Semiah. Montana’s evidence about Stu’s re-affirmation that Sam was continuing to abuse Semiah is nothing more than an after-the-fact effort by Montana to embellish grounds to advance in this court for killing Sam. Such a call does not jibe with Montana’s admission in his evidence that he himself felt bad for treating Semiah so badly. Montana had no reason to make such a call to Stu to ask about Sam’s treatment of Semiah. Sam had stood up for Semiah. It was Montana’s own mistreatment of Semiah, as Montana well knew, that had caused Sam to confront him and push him.
179Montana did not speak that day to Jaden or Dustin about Sam’s abuse of Semiah. He sent messages to Kadence about killing Sam, that “today was the day,” but he testified that he only meant that he would fight Sam; this was “trash talk,” venting. In the past he had told Kadence that something would eventually happen with Sam, and that this was the day. Montana told Semiah in messages that he did not want Sam to come back to the house. Like Kadence, I do not believe that Montana’s threats to kill Sam or to “fuck him up,” or that he was “done,” represented genuine expressions of intentions to kill. Montana was acting childishly and immature; this was teenage bravado.
180After about 30 minutes, Sam and Semiah returned to 30 Muriel Drive. They entered through the side door and went up to the kitchen. Montana came down and met them there. Montana confronted Sam. I find that it was Montana who demanded an apology, as Semiah remembers Sam refusing to apologize for sticking up for her. Montana claims that he thought it might be Jacob who had come to the house, but I don’t accept that claim. I have no evidence that Jacob would just walk into his friend’s house without being invited in, and Montana knew that people were in the house. It is clear to me that Montana had been spoiling for a confrontation with Sam, and the time for it had come.
181But it is significant to me that at this point Montana did not have a knife on his person. I accept the inference from Semiah’s evidence that Montana only ran up afterwards to get a knife from his bedroom as confirming Montana’s claim that he did that at that time. If he actually intended to kill Sam as he had stated to Kadence, why not carry the knife with him down to the kitchen and use it there? That could also have represented a simple, yet effective, plan, and some manner of deliberation. To this point, Montana simply had an intent to fight, and not to kill or cause serious bodily harm.
182It was Montana who threw the first punch after Sam refused to apologize. Montana took the opportunity of Sam’s refusal as a justification to start punching; both men had been angry. The fight was on; the fists were flying, though apparently doing little damage to either fighter other than to Montana’s lip. I find that Montana’s right knuckle (Exh. 2, p. 4) was bruised in this fight, and not a month earlier while roughhousing with a work colleague. This was not a completely one-sided fight, though Montana was stiff from the ATV accident, and would have the court believe that he was a passive victim. We know from his friends that Montana wanted this fight.
183Montana described being forced back until being knocked down at the bottom of the stairs. I find that he likely landed backwards on the stairs after backing into them. Whether he fell on the floor near the stairs, or on the bottom stair makes no difference. Montana says that his head fell back and hit the stairs; if so, I reject any notion that this affected Montana’s reasoning. Semiah may have pulled Sam away from Montana to get him to leave, but not, as Montana would have it, while Sam continued to beat Montana while he was down. Exh. 9.3 and 9.4 barely show any sign of the “goosebumps” (“goose eggs”?) described by Montana. I reject Montana’s claim that he suffered much in this fight, except to his lip and his pride.
184More importantly, I also completely reject Montana’s claim that Sam tried to shrug out of Semiah’s grasp and began to “grapple” with her. Even Montana acknowledged in his evidence that in the past Sam would not abuse Semiah in front of him; they kept the abuse from him. It also makes no sense to me that Sam, who less than an hour earlier had stood up to Montana on behalf of Semiah, would have turned aggressively on her at this point. Certainly Semiah, whose evidence I accept, denied it. Just like the call to Stu, I find that Montana has concocted this “grappling” to try to ground a reasonable fear for Semiah’s safety.
185As Sam and Semiah went out the side door, Semiah saw Montana run up the stairs until he disappeared around the bend at the wall. I accept Semiah’s insistence that she saw Montana climb the stairs, although she told police that she heard his climb. Certainly, Montana agreed that he went up the stairs and collected a knife from somewhere in his bedroom. Montana claimed in his evidence that he got the knife because of his panic that Sam and Semiah were “getting into it,” and that he had to protect Semiah but knew he was in no position to do so. I reject that claim, and I find that Sam quite simply was offering no violence to Semiah and Montana harboured no mistake about it. Montana could indeed hear Sam and Semiah yelling outside and he was worried, not that Sam was hurting Semiah, but rather that Sam might leave before he could get down there.
186Montana got the knife because he was very angry and wanted to even the score by hurting Sam after he got knocked down. I do not accept Montana’s claim that he had no intention of stabbing anyone with the knife, and just wanted to use it to intimidate Sam. I find that when Montana went up the stairs, he had every intention of getting the knife and using it to stab Sam. Whatever he knew about Sam’s past alleged abuse of his sister did not even enter Montana’s mind at that moment, as his next actions show. There had been no “grappling” in the house between Sam and Semiah. Sam and Semiah were shouting in the driveway to try to coordinate their safe withdrawal from the situation.
187Montana claims that he was “buzzed” from the drugs and alcohol that he had consumed that day. He was clearly still capable of rational thought. He had communicated verbally and coherently, if rudely, with Semiah and Sam, and called and texted numerous people after Sam and Semiah went to the vape store. If the cocaine that he consumed after Sam and Semiah left had any effect, it was to make Montana angrier, though he still retained his power of thinking. He had sought advice on what he should do about Sam. He was mentally and physically coordinated enough to engage with Sam twice inside the house, and physically capable enough to run up the stairs and find and take his knife.
188Sam, shaken up from the fight inside, was pulling the side door shut so that Montana could not exit, and was trying to pass Semiah his car keys and shouting to her to get in the car. Semiah was yelling at Sam to come with her. The keys on the lanyard ultimately were left lying in the driveway near the side door, for police to photograph.
189Montana came down the stairs and tried the side door. In his evidence he stated at one point that it would not open – that “they” were holding it shut. The word “they” was not Montana offering a neutral pronoun to indicate Sam alone. It was his unintentional acknowledgement that he knew Semiah had nothing to fear from Sam, that she was leagued with Sam in wanting that door to stay closed.
190Montana went to the front door and exited the house; knife open in his hand. He did not need to exit the house at all, as Sam represented no threat to him inside the house, and, as he well knew, no threat to Semiah outside. As Montana exited the house, Semiah saw the greyish blade of the knife in his hand and froze. I find that, just as Semiah was able to see Montana exit the house and rush down the front steps, Montana was able to see her. She was standing back from the corner of the house as Montana ran past her to the corner of the house. If Montana had truly been intent on protecting Semiah, he would have called out to her as he exited the house, he would have stopped by her instead of running by her, and he would have flashed the knife at Sam from there to “scare him a little bit,” as he claimed had been his intention. But he passed Semiah by and ran at Sam. Montana intended something other than Semiah’s protection. He wanted to stab Sam with the knife.
191Sam was himself coming to the corner of the house when Montana got there. On Semiah’s evidence, Montana was ready with the knife and plunged it towards Sam’s left lower abdomen/stomach area with a jabbing motion. I reject Montana’s evidence that he reflexively or instinctively stabbed Sam in response to a sudden threat from Sam. I have found that Montana retrieved the knife from his room intending to stab Sam. He then carried through with his intent. This was not at all a reflex action on Montana’s part in response to any action by Sam. Montana deliberately thrust the knife at Sam and wounded him. Semiah could not see what Sam did with his arm, because Montana’s back blocked her view.
192I reject Montana’s claimed fear or concern that Sam moved his arm to strike him and raised his leg to kick him. Montana had known where he would find Sam, but Sam did not know that Montana was coming for him from that direction. In the short time during which Sam became aware of Montana and his knife, all Sam could do was lift his leg, which was seen by Semiah, and perhaps pull in his arm in attempts to block the advancing blow of the knife. He failed. Montana paid no attention to Sam’s efforts to block the knife. He thrust it deliberately into Sam’s abdomen.
193Montana had thrust with force sufficient to wound Sam. The knife, as described by Dr. D’Agostino, plunged through Sam’s clothing, skin, and cut through the cartilaginous tip of a rib. That required some measure of force to achieve. From there nothing arrested its path. It slipped through the left kidney, the left renal vein and ureter, and passed through the wall of the main trunk of the abdominal segment of Sam’s aorta. It cut through muscle around the spine and scored the L2 vertebral body. The wound to the aorta caused significant, rapid blood loss, and ultimately Sam’s death. On the evidence of Dr. D’Agostino, which I accept, had the wound been an inch over, it would have missed the aorta, and Sam may not have died.
194What happened from there between Montana and Sam did not contribute to Sam’s death. Sam was already wounded to death. Sam and Montana grabbed each other, and struggled, and Montana dropped the knife, but not before it gave him small cuts on his palms. The evidence does not assist in determining how Sam’s arm got wounded. They went to the ground in the driveway until Semiah picked up the fallen knife and threw it towards the back yard and hauled Montana off of Sam. Semiah was frantic. She ordered Montana away and called out to Sam and called 911. At the direction of the 911 operator, she attempted CPR. Semiah took off Montana’s coat that she was wearing to use to apply pressure to Sam’s wound to slow the bleeding.
195Montana observed Sam’s terrible abdominal wound and likely tried to manoeuvre him into a better position. He was horrified at what he had done. When Semiah angrily ordered Montana away, Montana told her he was trying to help Sam. He told her that he was sorry and that he loved her. He told her to call 911 and retreated to the front yard. When Semiah struggled in her panic and shock to provide the 911 operator the information that was required, Montana tried calling also to offer his own assistance. He called his girlfriend Paige and told her that he had stabbed Sam and was going to jail. As police began arriving, he directed Cst. Turco to the driveway, where Sam lay by the neighbour’s wall and Semiah was doing chest compressions. Montana admitted to Cst. Davies that it was he who had stabbed Sam and submitted peacefully to his arrest for assault with a weapon.
196At the police station, Montana’s bloodied clothes were seized, and pictures were taken of his person. He groaned in pain while stripping off his clothing. But his ability to rush around the house, confront and punch at Sam, run up the stairs to collect his knife, run back down and exit the house and stab Sam, all show that he was not much physically hampered by his injuries from the ATV accident.
197When counsel arrived, Montana sat on the floor of the soundproof room crying loudly enough that Cst. Davies could hear him. Later that evening, in his cell, Montana knelt at the toilet. He claimed that he attempted suicide. Although he had spoken with counsel, Montana chose to give an hour-long video statement to police. While I see inconsistencies between that statement and Montana’s trial evidence as significantly damaging his credibility, I do not use them as “after the fact conduct” that circumstantially provides any evidence of the intent required for murder.
Defence of self or other, and accident
198Montana Lewis has advanced as his primary defences, self-defence, defence of other (Semiah) and accident. For the following reasons I reject those defences in the circumstances of this case.
Defence of self or other
199Section 34(2) of the Criminal Code, R.S.C. 1985, c. C-46 has codified the defence of self or others. Section 34(1) sets out three factors to be established for the successful deployment of the defence. A person is allowed to engage in conduct that would otherwise be unlawful in order to defend or protect themselves or someone else from the actual or threatened use of force against them or the other person. Anyone who does something for this purpose, and within the limits of the law, is acting lawfully and commits no offence. But to succeed in that defence requires that the accused be successful in all three factors. If the Crown disproves any one of them, beyond a reasonable doubt, the defence fails.
200For self-defence or defence of other to obtain, the three factors in s. 34(1) include:
a. The accused believed that force or the threat of force was being used against him or another person, and his belief was based on reasonable grounds;
b. The accused committed the act for the purpose of defending or protecting himself or another person from the use or threat of force; and
c. The accused’s act was reasonable in the circumstances.
201To invoke this defence, an accused must subjectively believe that force or the threat of force was being used against him or another person. That subjective belief must be based on objectively reasonable grounds: R. v. Khill, 2021 SCC 37, [2021] 2 S.C.R. 948, at paras. 52-57. Self-defence can be invoked on the basis of reasonable mistakes of fact: R. v. Cunha, 2016 ONCA 491, 337 C.C.C. (3d) 7, at para. 8.
202The second factor goes to the root of self-defence. “if there is no defensive or protective purpose, the rationale for the defence disappears.” The act must not be undertaken for the purpose of vengeance: Khill, at para. 59.
203The third factor examines the accused’s response to the use or threat of force and requires that the response be reasonable in the circumstances. Such an assessment will take into account certain characteristics of the parties and the events, including various matters set out in the Criminal Code ss. 34(2)(a) to (h). Among other factors is an assessment of the accused’s role in the incident, including their actions, omissions, and exercises of judgment from the beginning to the end of the incident, in order to shed light on the accused’s responsibility for the final confrontation that led to the act charged: Khill, at paras. 72-76.
204I have found that Montana did not believe that force or the threat of force was being used against him or Semiah Lewis at the time of the stabbing. By the time that Montana retrieved his knife, Sam had finished fighting with Montana and was not threatening violence to Montana because he was outside with Semiah, holding the side door closed. I have also found that Montana was aware that Sam was in fact not using force or the threat of force against Semiah, and that Montana did not believe otherwise. That eliminates the first footing of this defence, to the point that Montana went outside.
205I have found that Montana stabbed Sam with a knife for the purpose of hurting him. It was not for the purpose of defending himself or Semiah from harm at Sam’s hands. That eliminates the second footing of this defence entirely, as Montana had no defensive or protective purpose in using the knife. Montana stabbed Sam for the purpose of vengeance. He had not liked twice being put in his place by Sam.
206The assessment of the third factor must take into account that Montana had pursued an aggressive outcome from at least the point that Sam and Semiah had left for the vape store. He spoke of killing or fighting Sam to friends, and he rushed to confront Sam upon Sam and Semiah’s return from the vape store. Montana precipitated a fist fight with Sam that Montana lost. Montana retrieved a knife and went outside to use it on Sam, who was unarmed and trying to avoid further conflict. Montana did not need to approach Sam, and Montana was not protecting Semiah. Sam’s reflexive efforts at defending his person from a knife by lifting his leg and perhaps pulling in his arm cannot be construed in this context as a threat that Montana had to defend himself against. Montana’s conduct in stabbing Sam was completely unreasonable and unjustifiable.
Accident
207Where an accused person is unexpectedly faced with the threat of violence or is unexpectedly struck by another person and strikes that person in a reflex action, the court must examine whether the essential element of criminal intent is present in the accused’s conduct: R. v. Sundstrom, [1998] B.C.J. No. 741 (S.C.), at para. 96; R. v. Wolfe (1974), 20 C.C.C. (2d) 382 (Ont. C.A.).
208Montana has claimed that his stabbing of Sam was an “accident” in that it was involuntary and unintentional, a reflex action in response to his belief that Sam was about to strike or kick him when they ran into each other at the corner of the house. But in my factual findings I have rejected this evidence given by Montana. He went at Sam with the intention of stabbing him and carried through on his intention. In such circumstances, there is no room for a finding that Montana struck Sam by accident or without any intent to do so. The only reflexive actions were made by Sam in shifting his leg and perhaps his arm to try to block the blow that was already coming at him. Montana’s defence of accident fails.
209In the circumstances of this case, self-defence, defence of other, and accident offer no defence or justification for Montana’s conduct.
Murder
The elements of the offence
210Montana Lewis is charged on the indictment before the court with the first-degree murder of Samuel Graham in Sault Ste. Marie on November 12, 2020, contrary to s. 235(1) of the Criminal Code.
211For first degree murder, the Crown must prove the following essential elements beyond a reasonable doubt: 1) that Montana caused Sam’s death; 2) that Montana caused Sam’s death by committing an unlawful act; 3) that Montana had the intent required for murder; and 4) that Montana’s murder of Sam was planned and deliberate.
Causation
212Of these elements, Montana has admitted that he caused Sam’s death (Exh. 1). The evidence of Dr. D’Agostino also makes clear that Sam’s death was caused by the knife with which Montana stabbed Sam. That knife cut Sam’s aorta, causing exsanguination and death.
Unlawful Act
213Concerning the unlawful act, Montana killed Sam by stabbing him with a knife in the abdomen. To prove the unlawful act of assault with a weapon, the Crown must prove that Montana applied force to Sam, that he did so intentionally, that Sam did not consent to that force, that Montana knew that Sam did not consent to that force, and that Montana used or carried a weapon.
214On my findings in this case, Montana Lewis assaulted Sam Graham with a weapon. Montana came at Sam with a knife intending to stab him with it. There can be no question that Sam Graham did not consent to being assaulted with a knife and did what he could to prevent it or limit its harm by lifting his leg and perhaps moving his arm. At the moment that Sam was stabbed, he was not even seeking to fight with Montana, as Montana knew. Sam was unarmed and had only an instant to try to defend himself when Montana stabbed him. Montana committed an unlawful act on Sam’s person, killing him. By s. 222(5)(a) of the Criminal Code, he is at least guilty of manslaughter.
An intent for murder
215The central issue in this case is whether Montana possessed an intent required for murder. Section 229(a) of the Criminal Code, for our purposes, defines that intent “where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.”
216The so-called secondary intent for murder in s. 229(a)(ii) requires an intention to cause bodily harm of such a grave and serious nature that the person inflicting the harm, the accused, knows that the harm is likely to kill the victim: R. v. Moo, 2009 ONCA 645, at paras. 45-48; leave to appeal refused, [2010] S.C.C.A. No. 152. Foreseeing a danger that death could ensue or having a vague realization that death is possible are not sufficient to ground the secondary intent for murder: R. v. Cooper, [1993] 1 S.C.R. 146; R. v. Shand, 2011 ONCA 5, 266 C.C.C. (3d) 137, at para. 152.
217There is a commonsense inference that “a person usually knows what the predictable consequences of his actions are and means to bring them about”: R. v. Walle, 2012 SCC 41, 284 C.C.C. (3d) 153, at para. 64. However, a person’s ability to measure and foresee the likely consequences of his or her actions may be affected by the effects of intoxicants on them, and the trier-of-fact might well need to consider that issue in determining whether such a presumption is appropriate in circumstance of intoxication: R. v. Dickson, 2006 BCCA 490, 213 C.C.C. (3d) 474, at para. 53; Seymour v. The Queen, [1996] 2 S.C.R. 252, at paras. 22, 36. An ability to comprehend what is going on, to communicate one’s thoughts, to respond to questions and to engage in a deliberate mental process can tell against a claim that intoxication has compromised the ability to form the intent for murder: R. v. Ahmadi, 2025 ONCA 219, 446 C.C.C. (3d) 497, at paras. 39, 47.
218In the circumstances of this case, the defence has disavowed the applicability of the defence of provocation, though it submits that Montana’s extreme anger should nevertheless figure in a determination of his ability to form the intent for murder.
219In determining whether an accused has the mens rea for murder, the court must consider the cumulative effect of all the evidence relevant to the accused’s state of mind. The question to answer is whether the cumulative effect of the evidence for whatever defences or exculpating circumstances have been advanced, in the context of all the evidence, raises a reasonable doubt about the mens rea for murder: R. v. Ethier, 2023 ONCA 600, 430 C.C.C. (3d) 121, at paras. 30-31; R. v. Srun, 2019 ONCA 453, 377 C.C.C. (3d) 79, at paras. 88-89; R. v. Zaban, 2024 ONSC 1943, at paras. 220-223. After-the-fact conduct can also assist in determining this issue: Ethier, at para. 61.
220After-the-fact conduct is circumstantial evidence that may assist in determining an accused’s intent and different levels of culpability: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 119-120, 138; R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 42, 126; Ethier, at para. 61. If after-the-fact conduct, as a matter of common sense and human experience, makes a material fact in issue more or less likely, it is relevant to that issue: R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 57.
221The defence submits that Montana should not be found to have formed an intent for murder, and argues that factors to consider in determining whether Montana formed an intent to kill would include:
a. Montana’s youth and immaturity. He was 18 years old;
b. Montana’s lack of “criminal antecedents”;
c. Issues relating to self-defence, even though that defence has failed;
d. That Montana was protective of Semiah, and was concerned about Sam’s treatment of Semiah, though I have found that he was not intent on protecting Semiah when he stabbed Sam;
e. The effect of alcohol and drugs on his ability to reason;
f. His extreme anger brought about by his dealings with Sam and after losing his fight with Sam, even though the defence is not advancing a provocation defence;
g. Montana’s possible concussion from the ATV accident, though I have not accepted Montana’s claim that he was concussed;
h. The after-the-fact expressions of Montana’s mental state, and his emotional reaction and attempt at suicide demonstrate that he did not intend to kill Sam or cause him such grievous deadly harm; and
i. The “unexpected” meeting of Sam and Montana at the corner of the house, though I have found that Montana was looking to find and stab Sam.
222The Crown submits that in determining this issue, the court must take into account Montana’s extreme anger at being pushed by Sam and then bested in a fight by him. Then there were the text messages to Kadence threatening that Sam was going to die that day, that “today is the day.” Likewise, Montana messaged Semiah that Sam was “done.” Montana ran up the stairs at the conclusion of his fight with Sam for the sole purpose of collecting a knife to carry out his re-invigorated intention to kill Sam following his “beat down.”
223The Crown argues that Montana’s post-offence conduct reflects merely an understanding that his life was going to fundamentally change for the worse as a result of what he had just done. That is not shock and remorse for unintended consequences, but regret because he would have to go to jail. On the Crown’s view, Montana was very angry at Sam, and vengeful. He communicated with friends about “fucking Sam up” and killing him, and then carried through on his threat. The Crown argues that all events from the point at which Sam and Semiah returned home from the vape store led up to Montana’s stabbing of Sam. It is a continuous course of conduct and not a sudden decision that took root only after Montana was knocked down on the stairs. The Crown argues as well that the court should not trust Montana’s claims about the effects of alcohol and drugs because the defence did not question police witnesses who had contact with Montana about their observations of Montana’s intoxication.
224On all of the evidence in this case, I find that Montana meant to cause Sam bodily harm by stabbing him. What he wanted to do was hurt Sam badly.
225I am unable to find, with the Crown, that Montana meant to kill Sam. If that had been his intent, he would have come down to the kitchen with knife in hand to carry out that purpose. Instead, the two men engaged in a fist fight that caused little injury to either participant. In the driveway, I accept that it was Montana’s decision to drop the knife, and he did so instead of stabbing Sam more times in the abdomen. He did not continue on to ensure Sam’s death.
226The real issue that remains to be determined is whether Montana knew that the stab wound he inflicted on Sam was likely to cause Sam’s death.
227I have concluded that Montana intended to stab Sam because he wanted to hurt him. His extreme anger caused him to make a terrible choice, but it was still a choice. His lack of criminal antecedents has no effect on my decision-making. Even otherwise law-abiding people can be convicted of murder. Nor do I factor in Montana’s concerns about Semiah. As I have explained, I have rejected Montana’s claim that he believed he needed to defend Semiah, and whatever concerns he felt for her were not motivating Montana when he stabbed Sam. I have no evidence from anyone but Montana about the effects of any head injury that Montana suffered in the ATV accident, and I have found Montana’s evidence unreliable and incredible.
228However, I accept that Montana’s expression to Semiah that he was sorry, the shock in his demeanour that Semiah observed, his efforts at helping Sam and police who attended, his ready admissions of responsibility to 911 operator and first responders, all demonstrate that whatever violence he meant to inflict on Sam had much more terrible consequences than he foresaw or intended. And, while I have difficulty believing in Montana’s consumption of such a quantity of substances as he now claims, there is some corroboration for his drug use, and I cannot reject that its use did affect his judgment to some degree.
229Lastly, I find that Montana’s extreme anger also affected his ability to reason what he intended. That anger sparked into life from his initial confrontation with Sam, was fanned into flame after Sam knocked him to the ground and exploded into rage when he found the side door held against him. This was not provocation, but Montana’s anger also affected his judgement.
230Only the single stab wound to Sam’s abdomen was fatal, and I am quite satisfied that Montana had no idea that his stab would clip the aorta. He was barely an adult at 18 years old, and, as hinted at by Semiah, not a particularly mature 18. A matter of an inch ensured Sam’s death. This was not a case where the accused stabbed his victim multiple times, permitting an easy inference of one or the other mental state for murder from the sheer number of blows into such a dangerous location on Sam’s body.
231Accordingly, on all of the evidence in this case, I find that Montana did not mean to cause Sam’s death. I also have a bare reasonable doubt, but still a reasonable doubt, about Montana knowing that the bodily harm he did intend to inflict on Sam was likely to cause his death. In that circumstance, I am unable to find that a mental state for murder has been proved. The verdict must be manslaughter, pursuant to s. 234 of the Criminal Code. I nevertheless conclude, however, that in all of the circumstances of this case, this manslaughter is close to murder and reflects a high degree of culpability.
232Given my finding about mental state and murder, I need not consider whether this killing was planned and deliberate as first-degree murder has been ruled out.
Conclusion
233For the above reasons, Montana Lewis is found not guilty of first-degree murder, but guilty of the lesser, included, offence of manslaughter, pursuant to s. 234 of the Criminal Code.
The Honourable Mr. Justice A.D. Kurke
Released: January 30, 2026