2023 QCCS 5117, 2023 QCCS 5117

Kirby c. R. 2023 QCCS 5117 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF terrebonne No: 700-01-179173-201 DATE: JANUARY 29, 2024 ___________________________________________________________________ presided BY THE HONOURABLE PIERRE LABRIE, J.S.C. ___________________________________________________________________ HOWARD CHARLES KIRBY APPLICANT-Accused v.

HIS MAJESTY THE KING RESPONDENT- Prosecutor ___________________________________________________________________ WRITTEN REASONS OF THE JUDGMENT ON THE APPLICATION FOR AN IMPOSED VERDICT OF ACQUITTAL ON THE FIRST-DEGREE MURDER CHARGE RENDERED VERBALLY ON nOVEMBER 24, 2023 [1] ___________________________________________________________________ OVERVIEW [ 1 ] Mr. Howard Charles Kirby is on trial on a charge of first-degree murder. [ 2 ] He allegedly killed his neighbor, Ms.

Bonnie-Lyn Finnigan, by a single gunshot on October 14, 2020. [ 3 ] The jury was selected on October 30, 2023, and the Crown completed its evidence on November 17, 2023. [ 4 ] Mr. Kirby concedes that there is sufficient evidence to support a second-degree murder charge. However, he argues that there is no evidence to support the essential elements of planning and deliberation, both required for a first-degree murder charge. [ 5 ] Mr. Kirby therefore submits that the first-degree murder charge should not be left to the jury, and that the trial should continue on a second-degree murder charge. THE CONTEXT [ 6 ] Mr.

Kirby and the victim, Ms. Finnigan, were neighbors. They respectively lived at 105 and 101 Edina Road, in a rural setting in Brownsburg-Chatham. [ 7 ] There is evidence of a feud between them over a period of 10 to 12 years regarding the property line, accusations of destruction of trees and flowers, as well as various misconducts from each other. Some of these issues were the subject of a civil court trial. [ 8 ] On October 14, 2020, Ms. Finnigan was working on her land. She would have cut a branch from a tree and removed a piece of wood from a fence, allegedly on Mr. Kirby’s property. This was witnessed by Mr.

Kirby. [ 9 ] Mr. Kirby, who watched Ms. Finnigan for a while, soon after came back with a shotgun and shot Ms. Finnigan in the back while she was trying to flee towards her house after seeing Mr. Kirby with his shotgun. THE RELEVANT EVIDENCE 1. The testimony of Ms. Julie Paquet [ 10 ] Ms. Paquet is an acquaintance of Mr. Kirby. She lives at [...]. [ 11 ] In her testimony, Ms. Paquet referred to the feud between Mr. Kirby and Ms. Finnigan.

[ 12 ] She testified that on multiple occasions, when she met with Mr. Kirby, he told her that it was not going well with Ms. Finnigan. Mr. Kirby referred to court proceedings between them. [ 13 ] She testified that Mr. Kirby told her that he had enough. She said Mr. Kirby told her that it was about the limitation of the property and that Ms. Finnigan had cut trees on his land. [ 14 ] She said Mr. Kirby told her that the court case with Ms. Finnigan was costing him a lot of money for his attorney. He was fed up with it. [ 15 ] Ms. Paquet was asked if other things were said by Mr.

Kirby before October 14, 2020. [ 16 ] She said that once, she met him at a grocery store in Lachute. This was in the year prior to the events in this case. She said Mr. Kirby had a lot of papers with him. He was agitated and a little mad. [ 17 ] Ms. Paquet testified that, on that day, Mr. Kirby told her that another event had taken place. He was mad and he said that one day, he would get rid of Ms. Finnigan, kill her. [ 18 ] She testified on one encounter when Mr. Kirby was taking a walk with his dog. She came by car and he stopped her to talk about Ms. Finnigan. [ 19 ] Ms. Paquet said that Ms.

Finnigan was the only person they both knew. It was the only person they had in common. [ 20 ] She testified that Mr. Kirby talked again about the fees for his attorney. He was mad. He was talking about Ms. Finnigan. He told her that Ms. Finnigan would be better dead. [ 21 ] Ms. Paquet suggested to Mr. Kirby to move in order to alleviate the situation. She testified that this was not an option for Mr. Kirby. [ 22 ] It was suggested that she previously stated that Mr. Kirby, in 2019, said twice that he wanted to kill Ms. Finnigan. [ 23 ] She said that in the months or the year prior to the events in this case, Mr.

Kirby was mad about the court proceedings he was involved with. [ 24 ] Ms. Paquet made a statement to the police on October 25 th , 2023. [ 25 ] She was asked if she remembered that the first death threat allegedly made by Mr. Kirby was in the summer of 2019 and the second one also in 2019. [ 26 ] She testified that she remembered them on a period of two years, but she said it is a question of months. The first event was in the summer of 2019 and the other event was also in 2019. [ 27 ] She agreed that the two events were in 2019 and not a few months before the events in this case.

She testified that when she saw Mr. Kirby on those two occasions, he was mad. He had papers with him. He seemed fed up and angry. [ 28 ] It was suggested to Ms. Paquet that all the legal proceedings between Mr. Kirby and Ms. Finnigan ended in January 2015. [ 29 ] She said she was not aware it was that far back. She added that she minds her own business. She heard about it within a year or two before the events in this case. [ 30 ] She testified that she saw Mr. Kirby not only on those two occasions. She said Mr. Kirby could talk about Ms.

Finnigan and their neighboring feud, but no always in an angry manner. [ 31 ] She only reported the two threats to the police investigators on October 25 th , 2023. [ 32 ] She said this is because in her statement to the police on October 14, 2020, she had to talk about what took place during that day. [ 33 ] She agreed that in her video statement, she said that there was a war between Mr. Kirby and Ms. Finnigan. She said that she used the word « war » to indicate that it was more than a little fight. She said because of the lawyers and the court case, it was more than a little fight. [ 34 ] Ms.

Paquet was asked when was the meeting with Mr. Kirby in 2019 when he would have made the first threats to Ms. Finnigan. [ 35 ] Ms. Paquet testified that Mr. Kirby was walking on the road. She was driving her car. Mr. Kirby waved at her to stop. [ 36 ] She said Mr. Kirby did not say that he wanted to kill Ms. Finnigan at first. [ 37 ] Mr. Kirby said something about his attorney. He said that he was stuck with the court case and the attorney. He said Ms. Finnigan was crazy. He said that he would get rid of her. [ 38 ] Ms. Paquet said Mr. Kirby was telling her about what Ms.

Finnigan was doing that made him upset. [ 39 ] She was asked how Mr. Kirby came on that subject.

[ 40 ] She said that Ms. Finnigan began to be a subject of discussions. He would tell her what Ms. Finnigan did. It was always about Ms. Finnigan or the money for his attorney. [ 41 ] She said that when the grocery store event occurred, there was no snow. She cannot tell when it was in relation to the other event when Mr. Kirby made threats about Ms. Finnigan. [ 42 ] She was asked if Mr. Kirby had court documents when she met him at the grocery store. She said she could not see if the documents were court documents. She did not see writings about court documents. But Mr.

Kirby told her they were court documents and he had a stack of paper. [ 43 ] She explained that on that day, she was doing her grocery. Mr. Kirby saw her and came towards her to talk about the feud with Ms. Finnigan. He said it was costing him a lot of money for his attorney. The discussion did not last long. [ 44 ] She testified that this was the same year as the other event when Mr. Kirby made threats about Ms. Finnigan. [ 45 ] She said that according to Mr.

Kirby, the papers were related to court proceedings, but she did not see the documents. [ 46 ] She said that the event at the grocery store was months before 2020. It could be 14 or 12 months. She said that it’s difficult to say. [ 47 ] She agreed with the suggestion that the event at the grocery store happened in 2019, the same year as the first threats about Ms. Finnigan. 2. The admissions filed as A-8 [ 48 ] These admissions relate to a civil court case between Mr. Kirby and Ms. Finnigan regarding their dispute and the resulting court ruling awarding a sum of money in favor of Ms. Finnigan. 3.

The video recording filed as exhibit P-22 [ 49 ] This video recording was taken from surveillance cameras set up on Ms. Finnigan’s house and pointing towards Mr. Kirby’s property. [ 50 ] The sequence was taken on October 14, 2020. [ 51 ] The Court will refer to this video recording in more details later in this judgment. 4. The video statement of Mr. Kirby filed as exhibit P-39 [ 52 ] The Crown filed a video recording of a statement given to the police by Mr. Kirby on October 14 and 15, 2020. [ 53 ] In his statement, Mr. Kirby refers to the feud with Ms. Finnigan. [ 54 ] Mr.

Kirby also refers to the events that took place on October 14, 2020. Mr. Kirby admits that he shot Ms. Finnigan on that day. [ 55 ] The Court will refer to this statement in more details later in this judgment. ANALYSIS 1. The applicable legal principles

a) The planned and deliberate first-degree murder [ 56 ] In order to prove that a murder was a first-degree murder, the Crown must prove, beyond a reasonable doubt, that the murder was both planned and deliberate. [ 57 ] The words « planned » and « deliberate » refer to two different elements and each must be proved beyond a reasonable doubt [2] . [ 58 ] In the context of a first-degree murder charge, the word « planned » means a calculated scheme or design that has been carefully thought out.

The consequences of it have been thought over, weighed, considered and sized up [3] . [ 59 ] The plan does not have to be complicated, nor sensible. It may be a very simple plan, one that is quite easy to set up. An important factor is the time it took to develop the plan, not how much or little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately.

Another person may prepare a plan and wait a while, even quite a while, to carry it out. [ 60 ] A planned murder is one that is committed as a result of a scheme or plan that has been previously formulated or designed. It is the implementation of that scheme or design. A murder committed on a sudden impulse and without consideration, even with an intention to kill is not a planned murder. [ 61 ] In the context of a first-degree murder charge, the word « deliberate » means « considered, not impulsive », « carefully thought

out, not hasty or rash », « slow in deciding », « cautious »[4]. [62] A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must takeplace before the act of murder starts. A murder committed on a sudden impulse and without prior consideration, even with and intentionto kill is not a deliberate murder. [63] Evidence of motive and animus can relate to and help establish intent, as well as planning and deliberation. [64] In R. v.

Bottineau[5], we can read the following: [23] To prove that a murder was planned and deliberate, like any other issueof fact, the prosecution may rely upon direct evidence, circumstantial evidence,or both types of evidence in combination. Frequently, the prosecutor’s proofconsists entirely or almost entirely of circumstantial evidence. [24] It is well known that in circumstantial evidence there are three types ofargument enlisted to support relevance. [25] Prospectant use of circumstantial evidence involves an argument that thepast or previous occurrence of

an act, state of mind, or state of affairs justifies aninference that the act was done, or the state of mind or affairs existed at the timethat is material in the proceedings. [26] Concomitant use of circumstantial evidence involves an argument thatcircumstances existing contemporaneously with the material transaction renderthe facts alleged by either of the parties more or less probable. [27] Retrospectant use of circumstantial evidence invokes reasoning thatthe subsequent occurrence of

an act, state of mind, or state of affairs justifies aninference that the act was done, or state of affairs or mind existed in the past atthe material time. [28] There would seem no reason in principle to exclude any of the threetypes of argument from use in establishing the planned and deliberate nature of amurder. For example, evidence of animus or motive may beused prospectantly to help establish the planned and deliberate nature of amurder. Or there may be something about the manner in which the murder iscarried out that bespeaks antecedent planning and deliberation. See, byanalogy, R. v.

Davison, DeRosie & MacArthur (1974), (ONCA), 20 C.C.C. (2d) 424, 434-6 (Ont. C.A.) per Martin J.A. [65] Also, in R. v. Singh[6], the Court of Appeal for Ontario stated the following:

[98] Singh submits that in her directed verdict ruling the trial judge did notaddress the distinct elements of planning and deliberation but, instead,improperly relied solely on evidence of animus, motive, and opportunity toconclude there was some evidence that could justify a conviction for first degreemurder along this pathway to liability. [99] I do not read the trial judge’s reasons in that way. [100] First, while the trial judge certainly treated circumstantial evidenceof animus, motive, and opportunity as available to support an inference thatSingh planned and deliberated his killing of his wife, it was open to her to do so. [101] Singh points to a single judge decision of the Nunavut Court of Appealthat stated evidence of motive, standing alone, cannot support an inference ofplanning and deliberation: R. v.

Evaloakjuk, 2001 NUCA 1, at para. 18, citedwith approval by R. v. McKenzie, 2018 ONSC 2006, at paras. 32-34. However,the weight of authority is that evidence of motive and animus can relate to andhelp establish intent, as well as planning and deliberation: see e.g., R. v.Bottineau, [2007] O.J. No. 1495 (S.C.), at para. 28, per Watt J. (as he thenwas); R. v. Bablitz, 1996 ABCA 105, at para. 5, aff’d (SCC),[1997] 3 S.C.R. 1005; and R. v.

Riley, (ON SC), [2009] O.J.No. 1374 (S.C.), at para. 95. [102] Further, whether an accused had the opportunity for a sufficient amountof time to plan and deliberate upon a murder is a relevant factor for the analysis. [103] Ultimately, the task for the trial judge is to consider the evidenceregarding the relevant factors and then determine whether there is any evidencefrom which a jury could reasonably infer that the appellant’s attack was theproduct “of a calculated scheme”, arrived at after weighing “the nature andconsequences” of that scheme; and, having made the plan, the accused“deliberated”, that is weighed the pros and cons of putting the plan intoaction: R. v.

Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 40. [104] In my view, the trial judge committed no error by includingcircumstantial evidence of animus, motive, and opportunity as part of heranalysis. [105] Second, the trial judge’s consideration of the evidence went beyond thatrelating to animus, motive, or opportunity. That formed only part of her analysis,which recognized that applying the test for a directed verdict required assessingthe evidence as a whole. The trial judge considered “other facts” that supportedthe inference that Anita’s killing was planned and deliberate.

These “other facts”included: • Not only the possible causes of an animus that Singh held toward his wife –her lack of support of his immigration application and his inability to obtain akey to the new Residence locks – but also the timing of those events on the veryday of his attacks; • Not only Singh’s presence in the Residence prior to the attacks but also thepace of his conduct in regard to the opportunity to plan and deliberate: namely,sitting alone in the living room; having a discussion with Anita and Sonali in thekitchen about his access to a new door key; then returning to the living room fora period of time before ultimately entering the kitchen and conducting hisattacks; and • Finally, the trial judge reviewed the evidence that led her to conclude that apossible inference was open to the jury that, on his first return into the kitchenwhen the argument about a key to the new lock took place, Singh took the knifehe had earlier placed in the sink, returned to the living room, and then returnedwith it to the kitchen.

Singh then either deliberated further before attacking Anita(on Sandhu’s recollection of events) or immediately attacked Anita upon his re-entry into the kitchen (on Doal’s recollection of events).

b) The legal principles regarding an imposed verdict [66] In R. v. Monteleone[7], the Supreme Court of Canada stated the following:

8 The law on this subject is well settled. In United States of America v.Shephard, (SCC), [1977] 2 S.C.R. 1067, Ritchie J., speaking forthe majority of the Court, said, at p. 1080: I agree that the duty imposed upon a "justice" under s. 475(1) is the same as thatwhich governs a trial judge sitting with a jury in deciding whether the evidenceis "sufficient" to justify him in withdrawing the case from the jury and this is tobe determined according to whether or not there is any evidence upon which areasonable jury properly instructed could return a verdict of guilty.

The"justice", in accordance with this principle, is, in my opinion, required to commitan accused person for trial in any case in which there is admissible evidencewhich could, if it were believed, result in a conviction. [Emphasis added.] The matter came up for discussion in this Court more recently in Mezzo v. TheQueen, (SCC), [1986] 1 S.C.R. 802. In that case, the majority(Beetz, Estey, McIntyre, Chouinard and Le Dain JJ.) reaffirmed the authority ofthe judgment of Ritchie J. in Shephard and reviewed many of the authorities onwhich it is based. R. v.

Comba, supra, relied on by the appellant and adopted bythe trial judge in the case at bar, was discussed and distinguished from Mezzo inthat it was a case where there was no evidence to go to the jury. In relying onthe Shephard case, I am in agreement as to the law, both with the trial judge andthe Court of Appeal. The Shephard test for the giving of a directed verdictapplies to a case resting solely on circumstantial evidence as well as one basedon direct evidence.

The question of whether circumstantial evidence meets therequirement of the so-called rule in Hodge's Case (1838), 1838 CanLII 1(FOREP), 2 Lewin 227, 168 E.R. 1136, is for the jury to determine. This wassettled in Mezzo, at pp. 842-43, in these terms: I am aware, of course, that in R. v. Knox, (BC CA), [1968] 2C.C.C. 348, and R. v.

Sawrenko (1971), (YK CA), 4 C.C.C.(2d) 338, the British Columbia Court of Appeal and the Court of Appeal for theYukon Territory held that, when faced with a motion for a directed verdict in acase dependent on circumstantial evidence, it was the duty of the trial judge todecide whether the evidence satisfied the rule in Hodge's Case. Only if it did,was the case to go to the jury for determination of guilt or innocence. In thissense a weighing process or an assessment of quality was contemplated on thepart of the judge. Those cases, however, were effectively overruled in this Courtin R. v.

Paul, (SCC), [1977] 1 S.C.R. 181, and Lavoie v. TheQueen, (SCC), [1977] 1 S.C.R. 193, and even in circumstantialcases the law now is that any determination as to compliance with the rulein Hodge's Case would be left to the jury. [Emphasis added.] Where there is before the court any admissible evidence, whether direct orcircumstantial, which, if believed by a properly charged jury acting reasonably,would justify a conviction, the trial judge is not justified in directing a verdict ofacquittal.

It is not the function of the trial judge to weigh the evidence, to test itsquality or reliability once a determination of its admissibility has been made. It isnot for the trial judge to draw inferences of fact from the evidence before him.These functions are for the trier of fact, the jury. [67] In R. v.

Arcuri[8], the Supreme Court stated the following principles: 21 The question to be asked by a preliminary inquiry judgeunder s. 548(1) of the Criminal Code is the same as that asked by a trial judgeconsidering a defence motion for a directed verdict, namely, “whether or notthere is any evidence upon which a reasonable jury properly instructed couldreturn a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v.Monteleone, (SCC), [1987] 2 S.C.R. 154, at p. 160.

Under thistest, a preliminary inquiry judge must commit the accused to trial “in any case inwhich there is admissible evidence which could, if it were believed, result in aconviction”: Shephard, at p. 1080. 22 The test is the same whether the evidence is direct orcircumstantial: see Mezzo v. The Queen, (SCC), [1986] 1 S.C.R.802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task,however, varies according to the type of evidence that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task isstraightforward.

By definition, the only conclusion that needs to be reached insuch a case is whether the evidence is true: see Watt’s Manual of CriminalEvidence (1998), at §8.0 (“[d]irect evidence is evidence which, if believed,resolves a matter in issue”); McCormick on Evidence (5th ed. 1999), at p. 641; J.Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in

Canada (2nd ed. 1999), at §2.74 (direct evidence is witness testimony as to “theprecise fact which is the subject of the issue on trial”). It is for the jury to saywhether and how far the evidence is to be believed: see Shephard, supra, at pp.1086-87. Thus if the judge determines that the Crown has presented directevidence as to every element of the offence charged, the judge’s task iscomplete.

If there is direct evidence as to every element of the offence, theaccused must be committed to trial. 23 The judge’s task is somewhat more complicated where theCrown has not presented direct evidence as to every element of the offence. Thequestion then becomes whether the remaining elements of the offence – that is,those elements as to which the Crown has not advanced direct evidence – mayreasonably be inferred from the circumstantial evidence.

Answering thisquestion inevitably requires the judge to engage in a limited weighing of theevidence because, with circumstantial evidence, there is, by definition, aninferential gap between the evidence and the matter to be established – that is, aninferential gap beyond the question of whether the evidence should be believed:see Watt’s Manual of Criminal Evidence, supra, at §9.01 (circumstantialevidence is “any item of evidence, testimonial or real, other than the testimony ofan eyewitness to a material fact.

It is any fact from the existence of which thetrier of fact may infer the existence of a fact in issue”); McCormick onEvidence, supra, at pp. 641-42 (“[c]ircumstantial evidence . . . may betestimonial, but even if the circumstances depicted are accepted as true,additional reasoning is required to reach the desired conclusion”). The judgemust therefore weigh the evidence, in the sense of assessing whether it isreasonably capable of supporting the inferences that the Crown asks the jury todraw. This weighing, however, is limited. The judge does not ask whether sheherself would conclude that the accused is guilty.

Nor does the judge drawfactual inferences or assess credibility. The judge asks only whether theevidence, if believed, could reasonably support an inference of guilt. […] 30 In performing the task of limited weighing, the preliminaryinquiry judge does not draw inferences from facts. Nor does she assesscredibility. Rather, the judge’s task is to determine whether, if the Crown’sevidence is believed, it would be reasonable for a properly instructed jury to inferguilt. Thus, this task of “limited weighing” never requires consideration of theinherent reliability of the evidence itself.

It should be regarded, instead, as anassessment of the reasonableness of the inferences to be drawn from thecircumstantial evidence. 31 The traditional formulation of the common law rule perhapssuggests a different approach. Traditionally, it is said that a preliminary inquiryjudge must commit the accused to trial if there is any evidence upon which aproperly instructed jury, acting reasonably, could find guilt: see,e.g., Shephard, supra, at p. 1080.

That formulation of the rule could bemisunderstood to mean that, if the Crown presents evidence that would on itsown be sufficient to support a verdict of guilty, the preliminary inquiry judgeneed not consider the exculpatory evidence proffered by the defence: see J. P.Taylor, “The Test for Committal on the Preliminary Inquiry: U.S.A. v. Shephard— A View of Sufficency” (1977), 11 U.B.C. L.

Rev. 213, at p. 230 (“carried toits logical extreme, the decision in Shephard, unless it is to be limited to cases inwhich the defense does not offer evidence, would not allow the justice to weighthe evidence of the Crown when compared with the evidence given by thedefense”). [68] In R. v. Sazant[9], we can read the following: 18 The preliminary inquiry judge in this appeal, Moore J., correctly statedthe test for committal and the corresponding onus that falls on the Crown.

Healso recognized that a preliminary inquiry judge is not permitted to assesscredibility or reliability, and that where more than one inference can be drawnfrom the evidence, only the inferences that favour the Crown are to beconsidered. A preliminary inquiry judge who fails to respect these constraintsacts in excess of his or her jurisdiction: see Dubois v. The Queen, (SCC), [1986] 1 S.C.R. 366, at p. 380. [69] In Hunt c. R.[10], the Quebec Court of Appeal stated the following:

[39] The test of sufficiency at a preliminary inquiry is concerned with both the absence of evidence and the presence of weak evidence. If there is an absence of evidence, no trier of fact could reasonably find something proved. If the evidence is present but so weak that no trier of fact could find an essential element proved beyond reasonable doubt , the protective function of the preliminary inquiry requires that the accused be discharged from criminal jeopardy. This is a question of law that necessarily requires a “limited weighing” of the evidence.

It requires the presiding judge to determine whether a trier of fact could find an element of the offence proved and in this limited sense it is inextricably linked to the standard of proof applicable at trial. The presence of circumstantial evidence that is so weak that it cannot reasonably meet this standard is functionally the same as the absence of evidence and the accused must be discharged because there is no case to answer. Evidence that could not support a finding of proof beyond reasonable doubt is a chimera based on nothing but conjecture or speculation. 2. Application to the case at bar [ 70 ] Mr.

Kirby submits that the Crown did not present any direct evidence in support of the deliberate component of the first-degree murder [11] . [ 71 ] Mr. Kirby argues that the threats he would have made in 2019, according to the testimony of Ms. Julie Paquet, do not support the inference that an intent to kill existed in 2020, and that they do not either support an inference of deliberation. According to Mr. Kirby, such inferences would be conjecture. [ 72 ] Mr. Kirby also submits that in his video statement [12] , he told the police officer that, on the day he killed Ms. Finnigan, he « snapped ». [ 73 ] Mr.

Kirby further submits that on the video from the surveillance cameras [13] , from Ms. Finnigan’s residence, we can see that he did not fire at Ms. Finnigan right away when he came back with his shotgun, but that there was a moment of pause before he fired. [ 74 ] According to Mr. Kirby, this evidence does not support deliberation, but rather the contrary. [ 75 ] Mr. Kirby submits that the evidence, as a whole, cannot support inferences that the killing of Ms. Finnigan was deliberate. [ 76 ] Mr.

Kirby also submits that the Crown did not present any direct evidence in support of the planning component of the first- degree murder [14] . [ 77 ] Mr. Kirby argues that there is an absolute lack of evidence that the firearms and ammunitions found by the police were acquired for reasons other than hunting. According to Mr. Kirby, it would be unreasonable to infer that these items were acquired for the purpose of killing Ms. Finnigan. [ 78 ] Mr. Kirby further submits that on the video evidence [15] , there is a delay of 23 seconds between the moment he leaves the place from where he observed Ms.

Finnigan break a branch from a tree and the moment he returned with his shotgun. [ 79 ] Mr. Kirby argues that this delay of 23 seconds is too short to allow an inference of planning. [ 80 ] Mr. Kirby submits that, to the contrary, the only evidence on what happened at the moment Ms. Finnigan was shot is in his statement to the police where he said that he « snapped » [16] . [ 81 ] Mr.

Kirby submits that, when looking at the evidence as a whole, in the limited weighting necessary at this stage of the proceedings, the proposition from the Crown that the murder was both planned and deliberate is just not more probable than not. [ 82 ] For the following reasons, the Court must dismiss the application for an imposed verdict of acquittal on the first-degree murder charge. [ 83 ] The Court is of the view that there is sufficient evidence to support inferences that the murder was both planned and deliberate. [ 84 ] Ms. Julie Paquet testified about the feud between Ms. Finnigan and Mr. Kirby.

She also heard Mr. Kirby uttering death threats directed at Ms. Finnigan. The delay between those threats and the alleged offence on October 14, 2020 is less significant given the fact that the feud was an ongoing thing, and that it was a recurring subject of discussion when she would meet with Mr. Kirby. [ 85 ] The Court finds that the testimony of Ms. Paquet offers probative evidence of animus and the feud between Mr. Kirby and Ms. Finnigan. It also offers probative evidence of motive in the sense that Mr. Kirby told Ms.

Paquet that he was fed up of paying legal fees in relation to this feud and that one day, he would kill Ms. Finnigan. [ 86 ] As stated above, animus and motive can be relevant to establish planning and deliberation. [ 87 ] The animus between Mr. Kirby and Ms. Finnigan and the motive of Mr. Kirby to kill Ms. Finnigan is also supported by the admissions regarding the civil trial between them and the fact that a judgment was rendered against Mr. Kirby to the benefit of Ms. Finnigan [17] . [ 88 ] Furthermore, on the video recording P-22, we can see Mr. Kirby observing Ms.

Finnigan, from a slope on his property, and then turning back [18] .

[ 89 ] On the same video, we can see Mr. Kirby coming back to the same place and observing Ms. Finnigan who is cutting a branch from a tree and moving a piece of wood from a fence. Mr. Kirby then leaves and comes back with his shotgun [19] . [ 90 ] When Mr. Kirby returns with his shotgun, he is pointing the firearm in direction of Ms. Finnigan. Then, Mr. Kirby lowers his shotgun and observes Ms. Finnigan. When she starts running, he aims at her again, follows her with the barrel of his shotgun, and shoots her in the back. Right after he shot Ms. Finnigan, Mr.

Kirby turns back and leaves [20] . [ 91 ] The Court is of the view that the evidence from this video recording can support inferences for both the planning and the deliberation elements of the first-degree murder charge. [ 92 ] As an example, the Court considers that a reasonable inference could be made that Mr. Kirby was conducting surveillance on Ms. Finnigan. [ 93 ] One other example is the fact that Mr. Kirby went back and returned with his shotgun. This evidence supports planning and deliberation. [ 94 ] Another example is the fact that Mr.

Kirby did not fire his shotgun right away upon his return at the top of the slope. There was a moment of pause when he lowered his firearm. The Court finds that a reasonable inference could be made that this corresponds to deliberation. [ 95 ] The fact that Mr. Kirby aimed at Ms. Finnigan, followed her path while she was running to escape, and shot her in the back are elements that support both planning and deliberation. [ 96 ] The video statement Mr. Kirby gave to the police [21] also offers evidence of planning and deliberation. [ 97 ] In his statement, Mr. Kirby told the police officer that after seeing Ms.

Finnigan cutting the trees, he went back to his place. He then loaded his shotgun with 4 cartridges, then went back outside. [ 98 ] Mr. Kirby told the police that he shot Ms. Finnigan in the back when she was fleeing. [ 99 ] Mr. Kirby also told the police that he knew Ms. Finnigan was dead because of the way she fell. He said that she fell like a deer. [ 100 ] The Court finds that reasonable inferences of planning and deliberation can be drawn from this evidence. [ 101 ] It is a fact that in the video statement, when Mr. Kirby was asked why he shot Ms.

Finnigan, he told the police that he « snapped ». [ 102 ] However, the fact that another inference favorable to Mr. Kirby could be drawn from this piece of evidence does not change the Court’s conclusion that there is sufficient evidence to support both the planning and the deliberation elements of the first-degree murder charge. [ 103 ] At this stage, the Court must consider the inferences that are favorable to the Crown.

CONCLUSIONS [ 104 ] The Court concludes that, in this case, there is evidence, which, if believed by a properly charged jury acting reasonably, could justify a conviction on a first-degree murder charge. [ 105 ] Therefore, the application for an imposed verdict of acquittal on the first-degree murder charge must be dismissed. FOR THESE REASONS, THE COURT: [ 106 ] DISMISSES the application for an imposed verdict of acquittal on the first-degree murder charge. __________________________________ PIERRE LABRIE, J.S.C.

Me Maxime Chevalier Maxime Chevalier, avocat Me Gabriel Bérubé-Bouchard Gabriel Bérubé-Bouchard, avocat Counsels for the Applicant-accused Me Steve D. Fontaine

Me Jonathan Rabchuck Director of Criminal and Penal Prosecutions Counsels for the Respondent-prosecutor Hearing date: November 20, 2023