



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kenyon, 2019 ONCA 868

DATE: 20191105

DOCKET: C62695

Benotto, Brown and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Kenyon

Appellant

Lance Beechener and Riaz Sayani, for the appellant

John Patton, for the respondent

Heard: October 30, 2019

On appeal from the conviction entered on April 15, 2014 and the sentence imposed on July 28, 2014 by Justice Michelle Fuerst of the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Paul Kenyon appeals his conviction of second-degree murder in the death
    of his girlfriend, Marion Deacon. Her body was discovered in her home after
    first responders extinguished a fire that had engulfed the home. Mr. Kenyon was
    in the home at the time of the fire. Suffering from smoke inhalation and other
    injuries, Mr. Kenyon ran to a neighbours house, purporting to seek help. Mr.
    Kenyon was charged with Ms. Deacons murder shortly after her body was
    discovered. The Crown theory was that Mr. Kenyon killed her in a dispute about
    his drug abuse and that he stole money from her to acquire drugs. These issues
    had been causing her to question their relationship.

[2]

Mr. Kenyon does not contest that Ms. Deacon was murdered, having been
    bludgeoned to death before the fire started. He contends that there is a
    reasonable doubt about his guilt.

[3]

During the trial, Mr. Kenyon testified that he witnessed one of his drug
    dealers kill Ms. Deacon. He said the drug dealer and an unknown man came to Ms.
    Deacons house and confronted him about owing them money, and then killed Ms.
    Deacon when she showed up at the home.

[4]

Mr. Kenyons account was hampered by prior statements he made to the
    neighbours and emergency response personnel, and by a statement he later gave
    to the police, while being interviewed in the hospital. In those statements, he
    described being alone with Ms. Deacon when he awoke to the fire. He escaped,
    but Ms. Deacon did not get out after attempting to rescue her dogs.

[5]

Mr. Kenyon argues that the trial judge erred in admitting the police
    statement because it was taken in oppressive circumstances as he lay in the
    hospital bed when he was sleep deprived, covered only in a hospital blanket,
    and suffering from his injuries. He urges that the trial judge misapplied the law
    by treating her oppression analysis as confined to the conduct of the police.
    We need not comment on whether it is correct to characterize oppression as an
    objective inquiry. Nor need we opine on the trial judges observation that the
    police did not cause some of the circumstances that Mr. Kenyon relies on as
    oppressive. The trial judge understood that oppression is part of the
    voluntariness inquiry and that voluntariness is to be determined by considering
    all the circumstances. She was aware of all the circumstances, including those
    relied upon by Mr. Kenyon to claim oppression, and properly considered them.
    She was left in no doubt about the voluntariness of the police statement. We
    therefore reject this ground of appeal.

[6]

Mr. Kenyon also argues that the trial judge erred in directing the jury
    that it was open to them to find his prior statements were lies told to conceal
    his guilt, and that she did not properly direct the jury on the care that must
    be taken in making that determination. We disagree. Mr. Kenyon admitted the
    statements were lies. There was also a foundation in the elaborate detail he
    spun when presenting Ms. Deacons death as accidental, which would enable the
    jury to make a finding that he lied to hide the truth about his responsibility
    for her death. The jury direction was approved by defence counsel during a
    pre-charge conference and was adequate.

[7]

Finally, Mr. Kenyon argues that the trial judge erred in her rulings
    relating to his third-party suspect evidence. We disagree. The drug dealer that
    Mr. Kenyon claimed killed Ms. Deacon testified as a Crown witness. The Crown
    called him to testify about efforts Mr. Kenyon had made to get drugs in the
    hours before the fire. The trial judges initial ruling, preventing Mr. Kenyon
    from cross-examining the man about his complicity, was correct. At the time
    that ruling was made, there was not an adequate foundation for the drug
    dealers complicity.

[8]

After making this ruling, the trial judge properly permitted Mr. Kenyon
    to present his third-party suspect defence through his own testimony about
    witnessing this man kill Ms. Deacon. Through Mr. Kenyons testimony, the
    requisite foundation would be laid, and so at that point, his third-party
    suspect defence could properly be presented. Along with the parties, the trial
    judge developed a protocol for calling further evidence on this issue after Mr.
    Kenyon testified. That protocol was followed without objection, and her
    direction to the jury was sufficient. We see no error in any of the trial
    judges rulings.

[9]

The conviction appeal is therefore dismissed. Mr. Kenyon's sentence appeal is also dismissed as abandoned.


M.L. Benotto J.A.


David Brown J.A.

David M. Paciocco J.A.


