



WARNING

THIS IS AN APPEAL UNDER THE

YOUTH CRIMINAL JUSTICE ACT

AND IS SUBJECT TO:

110(1)          Subject
    to this section, no person shall publish the name of a young person, or any
    other information related to a young person, if it would identify the young
    person as a young person dealt with under this Act.

(2) Subsection (1) does not apply

(a) in a case where the
    information relates to a young person who has received an adult sentence;

(b) in a case where the
    information relates to a young person who has received a youth sentence for a
    violent offence and the youth justice court has ordered a lifting of the
    publication ban under subsection 75(2); and

(c) in a case where the
    publication of the information is made in the course of the administration of
    justice, if it is not the purpose of the publication to make the information
    known in the community.

(3) A young person
    referred to in subsection (1) may, after he or she attains the age of eighteen
    years, publish or cause to be published information that would identify him or
    her as having been dealt with under this Act or the
Young Offenders Act
,
    chapter Y-1 of the Revised Statutes of Canada, 1985, provided that he or she is
    not in custody pursuant to either Act at the time of the publication.

111(1)          Subject
    to this section, no person shall publish the name of a child or young person,
    or any other information related to a child or a young person, if it would
    identify the child or young person as having been a victim of, or as having appeared
    as a witness in connection with, an offence committed or alleged to have been
    committed by a young person.

138(1)          Every
    person who contravenes subsection 110(1) (identity of offender not to be
    published), 111(1) (identity of victim or witness not to be published), 118(1)
    (no access to records unless authorized) or 128(3) (disposal of R.C.M.P.
    records) or section 129 (no subsequent disclosure) of this Act, or subsection
    38(1) (identity not to be published), (1.12) (no subsequent disclosure), (1.14)
    (no subsequent disclosure by school) or (1.15) (information to be kept
    separate), 45(2) (destruction of records) or 46(1) (prohibition against
    disclosure) of the
Young Offenders Act
, chapter Y-1 of the Revised
    Statutes of Canada, 1985,

(a) is guilty of an
    indictable offence and liable to imprisonment for a term not exceeding two
    years; or

(b)  is guilty of an offence punishable on summary
    conviction.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. K.T., 2022 ONCA 94

DATE: 20220202

DOCKET: C65476

Fairburn A.C.J.O., Gillese and
    Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

K.T.

Appellant

Michael Davies and Meaghan McMahon, for
    the appellant

Jennifer Trehearne, for the respondent

Heard: January 28, 2022 by
    video conference

On appeal from the conviction entered by
    Justice S. March of the Ontario Court of Justice (Youth Justice Court) on
    January 16, 2018.

REASONS FOR DECISION

Overview

[1]

On August 13, 2016, the appellants father was shot through the
    top of his head while lying on the couch in the living room of the family home.
    The couch was visible from the appellants bedroom doorway. The bullet found lodged
    in the fathers head was similar to one that could have been shot from a .22 calibre
    rifle. A .22 calibre rifle, along with a spent .22 calibre shell, were found in
    the appellants bedroom.

[2]

There is no certainty around
    the time of death. What is certain, though, is that on the day that his father
    was killed, the
appellant was captured on video at just
    after 6:00 p.m., in his fathers car, purchasing food at a fast-food restaurant
    close to the family home.
A GPS in that vehicle established that the appellant
    drove from the area of the family home, to the area of the fast-food restaurant,
    and then on to Montreal. The appellant was arrested in Montreal the next day.
    In his possession were: (i) the receipt from the fast-food restaurant,
    confirming that the time of purchase was just after 6:00 p.m.; (ii) the fathers
    identification cards; (iii) the fathers credit card and bank card; (iv) the
    fathers cellular phone; and (v) numerous items of the appellants clothing and
    other personal items.

[3]

There is some dispute as to when the appellants brother, B.T., finished
    work on the day that their father was killed. B.T. was scheduled to work until 7:00
    p.m., but he appears to have clocked out of work at 5:00 p.m. Whatever time he finished
    work, it is clear that B.T. started trying to contact his father around 7:00
    p.m. so that he could get a ride home. When B.T. could not reach his father, he
    eventually sent him a text message, asking where he was. B.T. received no
    response. Ultimately, B.T. took a taxi home, arriving some time after 7:00 p.m.

[4]

After he arrived home, B.T. invited friends over to the family home. Although
    he did not testify at trial, evidence was elicited that, as the evening
    progressed, B.T. appeared increasingly concerned for the whereabouts of his
    father. Eventually B.T.s grandfather attended at the family home and the
    police were called. At just before midnight, the police arrived. They found the
    deceaseds body secreted away in the basement.

[5]

The fathers head had been wrapped in a garbage bag. The appellants
    fingerprints were found on that bag. The fathers body was wrapped in a
    blanket. The appellants blood was found on that blanket. There were also water
    bottles found close to where the body lay. The Crown theory was that the movement
    of the body must have taken some effort, which may have resulted in the consumption
    of water. The appellants DNA was found on two of the water bottles.

[6]

This was a judge-alone circumstantial murder case where the trial judge
    had to resolve a third-party suspect allegation. The defence pointed to B.T. as
    the likely third-party suspect.

[7]

The trial judge provided extensive and careful reasons for finding the
    appellant guilty of second-degree murder. His reasons for judgment are organized
    around ten categories: opportunity, motive, physical evidence at the scene, cause
    and place of death, movement of the body, DNA evidence, fingerprint evidence,
    post-offence conduct evidence, recent possession of stolen property, and
    alternate suspect. In relation to the last category, the trial judge carefully
    explained why the third-party suspect defence did not raise a reasonable doubt.

[8]

The appellant raises three grounds of appeal. For the reasons that
    follow, we are unpersuaded by any of them.

The Movement of the Fathers Body

[9]

While the trial judge found as a fact that the father was killed
    in the living room, having been shot in the head by the appellant, and that his
    body was later moved to the basement, the trial judge was unable to find as a
    fact that the appellant moved the body on his own. The trial judge put it this
    way:

Although I am not able to infer that the accused had on his own
    moved the deceased body from the living room to the storage area in the
    basement, I am satisfied from the expert evidence that the deceased was killed
    in the living room and his body was moved to the basement storage area.
There may have been other persons involved in
    the movement of the body but this does not raise a reasonable doubt that the
    accused did not shoot the deceased.
[Emphasis added.]

[10]

The
    appellant contends that the trial judges reasons demonstrate that he accepted that
    there was more than one person involved in moving the deceaseds body. The
    appellant adds that the evidence in support of that finding was overwhelming in
    nature. The appellant characterizes the trial judges finding regarding how
    many people it took to move the body as a crucial issue on appeal because, as
    he argues, it undermines the trial judges ultimate conclusion that the
    appellant was the shooter. According to the appellant, once the trial judge accepted
    that there was another person at the scene of the crime, someone who was
    involved in the movement of the body, it became entirely plausible that the
    appellant was only an accessory after the fact to murder and not the person who
    actually shot his father.

[11]

As
    always, the trial judges reasons must be read in context.

[12]

First,
    we do not read the impugned sentence  [t]here may have been other persons
    involved in the movement of the body  as the trial judge suggesting that the
    appellant was not involved in moving the body. To the contrary, read in
    context, the trial judges reasons are entirely clear that, at a minimum, he
    found that the appellant was directly involved in moving his fathers body to
    the basement. The trial judge explained that conclusion by focusing upon
    numerous pieces of evidence, including the appellants DNA on the blanket in
    which the deceaseds body was wrapped, the appellants fingerprints on the
    garbage bag in which the deceaseds head was wrapped, and the appellants DNA
    on the water bottles found close to where the body lay.

[13]

Second,
    we do not read the impugned sentence as the trial judge suggesting that there
    was in fact someone else involved in moving the body. Rather, we read the trial
    judge as simply saying that he was not prepared to find as a fact that the
    appellant moved the body on his own. Accordingly, and at its highest, the
    impugned sentence leaves open the possibility that someone else was involved in
    the movement of the body.

[14]

Third,
    there was no evidence at trial that some random person went into the family home
    to help move the body.

[15]

Fourth,
    while the appellant advanced a third-party suspect defence, he pointed directly
    at B.T. as being that suspect. Yet the trial judges reasons make clear why he
    rejected the proposition that B.T. was anywhere near the family home until over
    an hour after the appellant had purchased his fast food and left for Montreal. Given
    the trial judges finding that, at a minimum, the appellant was involved in
    moving the body, and that B.T. did not go home until after the appellant had
    left for good, it is clear that the trial judge rejected that B.T. had anything
    to do with moving the body.

[16]

Fifth,
    there was no need for the trial judge to factually resolve whether someone else
     whoever that may have been  helped move the fathers body to the basement. What
    the trial judge needed to resolve, and in fact did resolve, was who shot the
    appellants father in the head while he lay on the couch. The trial judge
    explained why he found beyond a reasonable doubt that it was the appellant who
    shot his father. The fact that the trial judge could not reach a degree of
    certainty as to whether the appellant moved the body to the basement on his own
    does nothing more than show how carefully he approached the evidence and his
    task. His uncertainty on that point did not dilute or render questionable the
    verdict.

[17]

Finally,
    this was a strong circumstantial case pointing toward the appellant as the
    shooter. The trial judges reasons demonstrate a careful consideration of that
    evidence, giving rise to factual conclusions that were available on the record.
    Among the many pieces of circumstantial evidence that formed the backdrop to
    the prosecution lay the fact that the father was likely killed with a single
    shot from .22 calibre rifle, a .22 calibre rifle was found in the appellants
    bedroom, an empty shell casing fired from a .22 calibre rifle lay nearby, and
    the door to the appellants bedroom had a sightline to where the father lay on
    the couch. Combined with the DNA and fingerprint evidence, as well as the
    reasoned rejection of the third-party suspect defence, this was a strong Crown
    case.

Post-Offence Conduct

[18]

The
    appellant argues that the trial judge erred in his approach to the appellants post-offence
    conduct. The impugned passage follows:

The after-the-fact evidence of the accuseds flight to
    Montreal, with his clothing packed in a bag, in the family car, together with
    the deceaseds cell phone and identification cards, leads me to the conclusion
    that the accused fled the crime scene as he was responsible for the crime.

[19]

The
    appellant argues the trial judge erred by failing to take into account that
    there were alternative inferences that could have been drawn for why the
    appellant may have gone to Montreal with his fathers belongings, as well as a
    packed bag, which alternative inferences undermined the probative value of this
    after-the-fact conduct.

[20]

The
    alternative inferences are said to arise from the trial judges finding that
    more than one person was involved in moving the body. That finding is said to
    act as if it were a defence admission that the appellant moved the body (after
    the deceased was killed by someone else). With that admission-like finding in
    place, the appellant argues that all of the after-the-fact conduct is easily explained
    by an alternative inference: that the appellant fled to Montreal, not because
    he was responsible for murder, but because of a panicked reaction to having
    been at the crime scene and having helped move the body. That alternative
    inference is said to deprive the after-the-fact conduct evidence of its
    probative value.

[21]

Despite
    the capable submissions made, we do not see it that way.

[22]

This
    entire submission rests on a foundation that we have already rejected. We do
    not read the trial judges reasons as having found that more than one person
    was in fact involved in moving the body. We will not repeat what has already
    been said on that point. Therefore, the premise that there was an admission-like
    finding in place falls away.

[23]

What
    we will add is the following.

[24]

First,
    there is no dispute that the trial judge instructed himself correctly on the
    legal principles underpinning circumstantial evidence involving after-the-fact
    conduct evidence and, more broadly, on circumstantial evidence in general.

[25]

Second,
    in our view, the trial judges reasons reveal a careful assessment of the
    after-the-fact conduct evidence. He took into account each of the suggested alternative
    inferences posited by the defence and gave reasons for rejecting them. We see
    no error in his application of the law to the facts as he found them.

[26]

Again,
    the reasons for judgment must be read as a whole, including the findings of
    fact that are well-rooted in the evidentiary record, all of which pointed
    toward the appellant as the shooter and away from alternative theories that
    were, as the trial judge said, largely rooted in speculation.

[27]

The
    appellant also argues that the trial judges characterization of his conduct as
    being after-the-fact is inherently problematic because no one knows when the
    father was killed. While the trial judge said it was before 6:00 p.m., the
    appellant asserts that this was an arbitrarily assigned time, one that is
    admitting of circular reasoning. In other words, if the father was killed after
    the appellant left the family home in the fathers car, then the appellants
    actions could not be properly characterized as being after-the-fact in
    nature.

[28]

We
    do not accept this characterization of the time of death as having been arbitrarily
    assigned. This was a factual conclusion arrived upon by the trial judge, one
    that is well-supported in the record. As before, the trial judge gave extensive
    reasons for why he said that the father was dead and hidden in the basement
    before the appellant left the home for the last time.

The Factual Inferences Drawn

[29]

The
    appellant argues that the trial judge drew numerous unreasonable inferences. He
    made oral submissions on only two of these points. We will deal with them all.

[30]

First,
    the appellant contends that the trial judge made no attempt to resolve the
    evidence that the blood spatter evidence on the couch could have been caused by
    a sneeze. In our view, this was not a factual issue that needed resolution. To
    the contrary, no one disputed that the murder may have taken place on the couch.
    Indeed, having the couch as the location of the murder, as opposed to the
    basement, inured to the benefit of the defence, given that a significant plank
    of the defence argument was that the appellant alone could not have moved the
    body to the basement after his father was killed.

[31]

Second,
    the appellant argues that the trial judge erred by relying upon the fact that, if
    the father had been lying on the couch with his head pointing toward the
    direction of the hallway, it would have been possible to see the top of his
    head from the appellants bedroom doorway. The appellant points to the fact
    that it was equally possible to see the top of the fathers head from B.T.s
    bedroom doorway. While this is true, it does not undermine the inferential
    value of the evidence. The trial judges observation about the position of the
    appellants bedroom doorway, relative to where the fathers head would have
    been had he been lying on the couch, was highly relevant, particularly given the
    location of the .22 calibre rifle and the spent .22 calibre shell.

[32]

Third,
    the appellant argues that the trial judge erred in attaching significance to: (i)
    the appellants DNA found on the blanket in which the body was wrapped; and (ii)
    the appellants fingerprints found on the garbage bag surrounding the fathers
    head. As he argued at trial, the appellant maintains that these were household
    items and that the appellant lived in that household. Therefore, it is
    unsurprising that his DNA and fingerprints were found on those items.

[33]

The
    trial judge was alive to this argument, addressed it, and rejected it. He
    placed evidentiary value in the proximity of the DNA and fingerprints to the
    body of the deceased. Although the fingerprints on the garbage bag undoubtedly
    carry more significant circumstantial heft, it was open to the trial judge to
    see both pieces of evidence in this way. Looked at against the reasons as a
    whole, the DNA and fingerprints were merely two more pieces of circumstantial
    evidence that added to a strong circumstantial case.

[34]

Fourth,
    the appellant says that the trial judge erred in placing any emphasis on the .22
    calibre rifle found in the appellants bedroom because there was no evidence
    clearly linking that gun to the fathers death. The appellant argues that the
    trial judge contradicted himself when saying that the gun appeared to have been
    hidden in haste, particularly in light of the trial judges conclusion that
    the appellants departure from the family home was planned and he was not in a
    panic.

[35]

We
    accept the respondents position that there is no contradiction: one can be in
    haste without being in a panic. We also reject the argument that there was an
    absence of evidence connecting the .22 calibre rifle and shell to the death and
    that the trial judge erred in finding such a connection. The connection was
    palpable on its face.

Disposition

[36]

The appeal is
    dismissed.

Fairburn A.C.J.O.

E.E. Gillese J.A.

G.T. Trotter J.A.


