



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Finn, 2021 ONCA 840

DATE: 20211124

DOCKET: C68344

Tulloch, Hourigan and Harvison
    Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrance Finn

Appellant

Terrance Finn, acting in person

Philippe Cowle, for the respondent

Heard: November 3, 2021 by
    video conference

On appeal from the conviction entered on
    January 23, 2020, by Justice Jocelyn Speyer of the Superior Court of Justice,
    sitting without a jury, with reasons at 2020 ONSC 0465.

REASONS FOR DECISION

[1]

At the conclusion of the hearing, we dismissed
    the appeal with reasons to follow. We now provide our reasons.

Material Facts

[2]

On August 22, 2018, Mr. Finn attended the
    Peterborough Home Depot with his wife. At the time, they had been married for
    55 years.

[3]

Just after 8:00 a.m., while in the parking lot
    and in the presence of six eyewitnesses, he shot her twice at close range, in
    her head. She died shortly after, as a direct result of the gunshot wounds.

[4]

Mr. Finn was subsequently arrested and charged
    with first-degree murder. He provided an inculpatory statement to the police,
    admitting to the shooting and explaining that he had intended to kill himself
    and his wife due to the stress that they were both experiencing as a result of
    moving in with their son and conducting extensive renovations on their sons
    house.

Decision Below

[5]

The case proceeded to trial, and Mr. Finn
    elected to be tried by a Superior Court judge, without a jury.

[6]

The sole issue at the trial was Mr. Finns state
    of mind at the time he shot and killed his wife, and whether he had the
    requisite intent for first-degree murder. The trial judge was tasked with
    determining whether Mr. Finn planned and deliberated his wifes death.

[7]

The trial judge found that the appellant caused his
    wifes death. In addition to Mr. Finn admitting to shooting his wife, there was
    credible and reliable evidence from five people who were present at the Home
    Depot that morning corroborating the shooting of Mrs. Finn by the appellant.

[8]

With respect to the issue of intent, Mr. Finn
    provided contradictory and shifting testimony as to whether he intentionally
    shot the deceased. At trial, he gave evidence that the shooting was not an
    accident, but minutes later stated that he did not intend to shoot his wife and
    did not know he shot her twice. Minutes after that, he stated that he had no
    idea what he did. The trial judge considered all the evidence, including the statement
    he made in a videorecorded interview with an officer, Detective Reesor. In the
    interview, Mr. Finn communicated that he had planned to kill his wife and
    himself at Home Depot. The trial judge accepted that account of events as
    credible and reliable.

[9]

Relying on the interview with Detective Reesor,
    the trial judge found that Mr. Finn intended to kill his wife. The trial
    judge also considered the nature of the firearm used, a 38-calibre single
    action revolver. This firearm requires a manual and intentional loading of
    ammunition.

[10]

The trial judge also considered eyewitness
    testimony. Witnesses present at the Home Depot described the appellants
    demeanour as calm and composed, not erratic. They observed him lighting and
    smoking a cigarette after the shooting. The appellant asked one witness to look
    after his dogs, which were in the car. The arresting officer testified that the
    appellant was cooperative and responded appropriately to commands. The
    appellant was also calm during his interview with Detective Reesor, except when
    discussing the life stressors which had led him to shoot his wife.

[11]

The trial judge also considered the appellants
    life stressors in assessing his mental state at the time of the offence, as
    well as during the course of the trial. There was clear evidence that recent
    events had left the appellant depressed, anxious, and suicidal. The trial judge
    determined that the appellant nevertheless had the ability to form an intention
    to kill his wife and had done so.

[12]

The murder was deliberate and planned. Mr.
    Finns statement to Detective Reesor established that, the night before the
    murder, he decided to kill his wife and then himself when they went to Home
    Depot. This was further supported by a to-do list for the next day, which
    included a stop at Home Depot. The gun used, which required manual loading, had
    enough ammunition to kill both his wife and himself. At Home Depot, the
    appellant exited the car with the gun tucked in his waistband and met his wife
    at the trunk of the car. This was consistent with a plan to shoot his wife at
    Home Depot.

[13]

Following the trial, the appellant was found
    guilty and convicted of first-degree murder.

Issues and Discussion

[14]

The appellant appeals his conviction. He submits
    that:

1.

The verdict was unreasonable,

2.

There was a misapprehension of evidence,

3.

The trial judge made errors of law, and

4.

He did not have a lawyer.

[15]

We see no merit to the first ground of appeal. In
    the recent decision of this court in
R. v. Lights
, 2020 ONCA 128, 149
    O.R. (3d) 273, at paras. 29-34, Watt J.A. outlined the basic principles governing
    unreasonable verdicts:

[29] Under s. 686(1)(a)(i), an appellate court
    may set aside a trial verdict if the verdict is either unreasonable,
    unsupported by the evidence, or both.

[30]  A verdict is unreasonable if it is one
    that no properly instructed jury, acting judicially, could reasonably have
    rendered. This test requires not only an objective assessment of the evidence
    adduced at trial, but also, to some extent at least, a subjective evaluation of
    that evidence. To discharge this responsibility, we are required to review,
    analyse, and, within the limits of appellate disadvantage, weigh the evidence.
    This weighing is only to determine whether that evidence, considered as a
    whole, is reasonably capable of supporting the verdict rendered.

[31]  A verdict may also be unreasonable where
    a judge has drawn an inference or made a finding of fact that is plainly
    contradicted by the evidence or is incompatible with evidence that is not
    otherwise contradicted or rejected.

[32]  Two further points warrant brief mention.

[33]  When the claim of an unreasonable verdict
    rests on the assertion that, based on the evidence, the trier of fact could not
    have reasonably rendered the guilty verdict, an appellate court is entitled to
    consider that the accused did not testify at trial or adduce other evidence to
    support any other reasonable inference consistent with innocence.

[34] The remedy available to an appellant who
    successfully challenges a trial verdict as unreasonable depends on the
    circumstances of the case and the basis upon which the argument succeeds. Where
    the appellate court is satisfied that the verdict is unreasonable because no
    properly instructed jury, acting judicially, could reasonably have reached such
    a verdict, the appellate court should enter an acquittal. The same result would
    follow when the court determines that a finding or inference drawn by the judge
    contradicted by the evidence or incompatible with evidence not otherwise
    contradicted or rejected and the verdict is unavailable on the evidence. But
    when the verdict is unreasonable but available on the evidence, the remedy is a
    new trial. [Internal citations omitted.]

[16]

In our view, the verdict was reasonable. Based
    on all the evidence adduced at trial, including Mr. Finns testimony, there was
    ample evidence to substantiate the findings by the trial judge. In turn, given
    the totality of the evidence, and the findings of the trial judge, the verdict
    is one that a properly instructed jury or judge could reasonably have rendered.

[17]

The second issue raised by the appellant is that
    the trial judge misapprehended the evidence. We see no merit to this ground of
    appeal.

[18]

The appellant claims that the trial judge
    misapprehended the evidence, but he does not identify where in the trial
    judges reasons this misapprehension occurs. In our view, the trial judges reasons
    are clear and unequivocal. Her reasons are thorough and consistent with the
    evidence adduced at trial. The appellant has not demonstrated that the
    conviction depended on a misapprehension of the evidence which contributed to
    him not receiving a fair trial.

[19]

Third, the appellant asserts that the trial
    judge made errors of law, but he does not particularize what the errors are
    other than that the verdict was unreasonable and that there was a
    misapprehension of the evidence. Again, we are not satisfied that the trial
    judge committed any legal errors in her reasoning that warrant appellate
    intervention.

[20]

Finally, the appellant submits that he was
    distraught and confused during his legal proceedings and did not have the
    benefit of a lawyer.

[21]

The appellant chose to represent himself. The
    court, however, appointed a very experienced and highly reputable criminal
    lawyer, Mr. R. Gemmell, as
amicus curiae
, who was present during the
    trial both to assist the court as well as to be available for the appellant to
    consult with.

[22]

Therefore, for the foregoing reasons, we
    dismissed the appeal.

M.
    Tulloch J.A.

C.W.
    Hourigan J.A.

Harvison
    Young J.A.


