R v. HOWARD CHARLES KIRBY, 2023 QCCS 5118

R. c. Kirby 2023 QCCS 5118 SUPERIOR COURT CANADA PROVINCE OF QUEBEC DISTRICT OF terrebonne No: 700-01-179173-201 DATE: FEBRUARY 2, 2024 ___________________________________________________________________ presided BY THE HONOURABLE PIERRE LABRIE, J.S.C. ___________________________________________________________________ HIS MAJESTY THE KING PROSECUTOR v.

HOWARD CHARLES KIRBY ACCUSED ___________________________________________________________________ REASONS FOR THE ruling on the defence of provocation RENDERED ON DECEMBER 4, 2023 [1] ___________________________________________________________________ OVERVIEW [1] Mr. Howard Charles Kirby is charged with the first-degree murder of Ms. Bonnie-Lyn Finnigan on or about October 14, 2020. [2] Mr. Kirby allegedly killed Ms.

Finnigan, his neighbor, by a single gunshot from a .12-gauge caliber shotgun in the context of a long-lasting feud. [3] The jury was selected on October 30, 2023 and the Defence completed its evidence on November 29, 2023. [4] Mr. Kirby submits that the defence of provocation, pursuant to

section 232 of the Criminal Code , should be left to the jury to consider. [5] The Crown objects on the basis that the objective component of this defence is not satisfied. In other words, the Crown submits that an ordinary person would not have been deprived of the power of self-control by the alleged wrongful act or insult by Ms. Finnigan. 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. [10] The Court will further address the evidence relevant to the defence of provocation later in this ruling. ANALYSIS

Section 232 of the Criminal Code [11]

Section 232 of the Criminal Code states the defence of provocation in the following terms: Murder reduced to manslaughter • 232

(1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation. What is provocation

(2) Conduct of the victim that would constitute an indictable offence under this Act that is punishable by five or more years of imprisonment and that is of such a nature as to be sufficient to deprive an ordinary person of the power of self-control is provocation for the purposes of this section, if the accused acted on it on the sudden and before there was time for their passion to cool. Questions of fact

(3) For the purposes of this section, the questions o (

a) whether the conduct of the victim amounted to provocation under subsection (2), and o (

b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to have given provocation to another by doing anything that he had a legal right to do, or by doing anything that the accused incited him to do in order to provide the accused with an excuse for causing death or bodily harm to any human being. Death during illegal arrest

(4) Culpable homicide that otherwise would be murder is not necessarily manslaughter by reason only that it was committed by a person who was being arrested illegally, but the fact that the illegality of the arrest was known to the accused may be evidence of provocation for the purpose of this section. [12] In Fredette c. R . [2] , the Honourable Myriam Lachance, j.s.c., had to decide whether the new definition of provocation at section 232 (2) of the Criminal Code , which requires an indictable offence punishable by five years or more of imprisonment, constitutes a violation of

section 7 of the Canadian Charter of Rights and Freedoms [3] . [13] Justice Lachance wrote the following:

[215] En résumé, l’objectif législatif de la

Loi sur la tolérance zéro face aux pratiques culturelles barbares est d’empêcher que le meurtre d’honneur soit réduit à un homicide involontaire coupable. [216] Le moyen retenu pour atteindre l’objectif est de restreindre le geste provocateur à celui « qui constituerait un acte criminel prévu à la présente loi passible d’un emprisonnement de cinq ans ou plus » . [217] Cette disposition a pour effet d’exclure l’application de cette défense dans ces situations : 1 ) une femme vulnérable victime de violence conjugale dans les cas où le geste provocateur ne constitue pas une infraction criminelle passible d’un emprisonnement de cinq ans ou plus malgré une perte de maîtrise de soi; 2 ) une personne victime de propos haineux qui, même s’ils sont de nature criminelle, ne constituent pas une infraction criminelle passible d’un emprisonnement de cinq ans ou plus malgré une perte de maîtrise de soi. [218] Il s’ensuit que, dans certains cas, le moyen choisi par le législateur, soit la nouvelle définition du geste provocateur, a une portée excessive face à son objectif. [219] L’atteinte à l’art. 7 n’est pas justifiée au regard de l’article premier de la Charte puisque la modification législative implique des moyens pour réaliser l’objet qui n’ont pas de liens rationnels avec celui-ci ou ne sont pas minimalement attentatoires au droit à la liberté garanti à l'

article 7 de la Charte . [220] La réparation de la disposition doit se faire la suppression des termes qui donne une portée excessive au par. 232 (2) afin de la rendre conforme à la Constitution [4] . [References omitted] [14] Justice Lachance concluded that the portion of section 232 (2) of the Criminal Code which requires the commission of an indictable offence punishable by five years or more of imprisonment is unconstitutional and invalid. Therefore, she suppressed this part of section 232 (2) of the Criminal Code [5] . [15] In R . c.

René [6] , the Honourable France Charbonneau, j.s.c., followed the judgment rendered in Fredette c. R . [7] . [16] Justice Charbonneau wrote the following: [178] En 2015, la

Loi sur la tolérance zéro face aux pratiques culturelles barbares (la « Loi ») a restreint les conditions d’admissibilité de la défense partielle de provocation prévue au paragraphe 232(2) du C.cr . tel qu’en fait foi le libellé de l’

article 232 avant et après la modification législative :

Avant la modification de 2015 232.

(1) Un homicide coupable qui autrement serait un meurtre peut être réduit à un homicide involontaire coupable si la personne qui l’a commis a ainsi agi dans un accès de colère causé par une provocation soudaine. Ce qu’est la provocation

(2) Une action injuste ou une insulte de telle nature qu’elle suffise à priver une personne ordinaire du pouvoir de se maîtriser, est une provocation pour l’application du présent article, si l’accusé a agi sous l’impulsion du moment et avant d’avoir eu le temps de reprendre son sang-froid. Questions de fait

(3) Pour l’application du présent article, les questions de savoir :

a) si une action injuste ou une insulte déterminée équivalait à une provocation;

b) si l’accusé a été privé du pouvoir de se maîtriser par la provocation qu’il allègue avoir reçue, sont des questions de fait, mais nul n’est censé avoir provoqué un autre individu en faisant quelque chose qu’il avait un droit légal de faire, ou en faisant une chose que l’accusé l’a incité à faire afin de fournir à l’accusé une excuse pour causer la mort ou des lésions corporelles à un être humain.(nos soulignements) Après la modification de 2015 232

(1) Un homicide coupable qui autrement serait un meurtre peut être réduit à un homicide involontaire coupable si la personne qui l’a commis a ainsi agi dans un accès de colère causé par une provocation soudaine. Ce qu’est la provocation

(2) Une conduite de la victime, qui constituerait un acte criminel prévu à la présente loi passible d’un emprisonnement de cinq ans ou plus, de telle nature qu’elle suffise à priver une personne ordinaire du pouvoir de se maîtriser est une provocation pour l’application du présent

article si l’accusé a agi sous l’impulsion du moment et avant d’avoir eu le temps de reprendre son sang-froid. Questions de fait

(3) Pour l’application du présent article, les questions de savoir :

a) si la conduite de la victime équivalait à une provocation au

titre du paragraphe (2);

b) si l’accusé a été privé du pouvoir de se maîtriser par la provocation qu’il allègue avoir reçue, sont des questions de fait, mais nul n’est censé avoir provoqué un autre individu en faisant quelque chose qu’il avait un droit légal de faire, ou en faisant une chose que l’accusé l’a incité à faire afin de fournir à l’accusé une excuse pour causer la mort ou des lésions corporelles à un être humain. (nos soulignements) […] [181] La constitutionnalité de cette modification législative a été analysée par la Cour suprême de la Colombie-Britannique dans Simard .

Dans son jugement, le juge Thompson conclut que le nouveau libellé du paragraphe 232(2) C.cr ., qui ajoute la condition additionnelle que la conduite de la victime constituerait un acte criminel prévu au Code criminel passible d’un emprisonnement de cinq ans ou plus, est inconstitutionnel. Selon le juge Thompson, l’objet de la Loi « is to protect vulnerable women by removing any vestige of « honor » as a basis for invoking the provocation defense ». Il conclut que cet amendement législatif est contraire à l’

article 7 de la Charte canadienne des droits et libertés (ci- après Charte ) puisque sa portée est excessive et arbitraire et que cette violation n’est pas justifiée en vertu de l’article premier. [182] La juge Lachance de la Cour supérieure du Québec a également statué sur la constitutionnalité de cette modification législative dans Fredette . La juge Lachance détermine que l’objet de la Loi est « d’empêcher que le meurtre d’honneur soit réduit à un homicide involontaire coupable ».

Elle conclut également que la Loi a une portée excessive, mais qu’elle n’est pas arbitraire, contrairement à ce qui est décidé par le juge Thompson dans Simard . Par conséquent, la juge Lachance conclut que le paragraphe 232(2) C.cr . est inconstitutionnel puisque sa portée est excessive, violant ainsi l’article 7 de la Chartre , et que cette disposition ne peut être sauvegardée par l’article premier .

[183] Concernant la réparation convenable, la juge Lachance énonce que :

(204) La réparation convenable consiste, comme dans l’affaire Simard, à retrancher la

partie « qui constituerait un acte criminel prévu à la présente loi passible d’un emprisonnement de cinq ans ou plus » afin que le par. 232(2) se lise comme suite : 232

(2) Une conduite de la victime de telle nature qu’elle suffise à priver une personne ordinaire du pouvoir de se maîtriser est une provocation pour l’application du présent

article si l’accusé a agi sous l’impulsion du moment et avant d’avoir eu le temps de reprendre son sang-froid.

(205) Le geste provocateur est désormais défini comme « une conduite de la victime de telle nature qu’elle suffise à priver une personne ordinaire du pouvoir de se maîtriser. [184] Cela étant, un juge de la Cour supérieure est-il lié par le jugement d’un autre juge de la même cour? La question est primordiale puisqu’en l’espèce, si l’on considère que l’acte à l’origine de la provocation se situe au moment où la victime invite l’accusé à se battre, cela ne constitue pas une infraction passible d’un emprisonnement maximal de cinq ans.

Par conséquent, selon la modification législative de 2015, l’accusé ne pourrait pas se prévaloir de la défense de provocation. [185] Or, la règle du respect du précédent ( stare decisis ) stipule que sous réserve d’une exception extraordinaire, afin d’assurer la certitude du droit, les conclusions de droit constituant la raison d’une décision s’appliquent de manière verticale, c’est-à-dire qu’elles lient les juridictions inférieures. [186] Tout en partageant l’opinion de la juge Lachance, le Tribunal considère que ce principe, au nom d’une saine administration de la justice, prévaut aussi sur le plan horizontal, du fait que lorsqu’une décision de la Cour supérieure porte spécifiquement sur la constitutionnalité d’une disposition législative, cette décision devrait être suivie par les autres juges de la Cour supérieure.

En effet, la conséquence directe est que la déclaration d’inconstitutionnalité par un tribunal supérieur a une portée à l’égard de tous ( erga omnes ) et pas seulement entre les parties : 65 (…) dans la mesure où une disposition législative est inconstitutionnelle, elle n’est pas simplement inapplicable dans l’affaire en cause. Elle est inopérante et, de fait, retirée du corpus législatif. [187] En l’espèce, la disposition n’a pas été déclarée inopérante, la mesure réparatrice fut plutôt de retrancher la

partie problématique du libellé de la disposition. [188] C’est ainsi que pour en revenir aux conditions d’application de la défense de provocation, suivant le jugement de la juge Lachance dans Fredette , le paragraphe 232 (2) C.cr . doit dorénavant se lire ainsi : 232

(2) Une conduite de la victime de telle nature qu’elle suffise à priver une personne ordinaire du pouvoir de se maîtriser est une provocation pour l’application du présent

article si l’accusé a agi sous l’impulsion du moment et avant d’avoir eu le temps de reprendre son sang-froid [8] . [17] In this case, the Court considers to be bound by the judgments in Fredette c. R. [9] and R . c. René [10] regarding the definition of provocation stated at section 232 (2) of the Criminal Code . [18] The parties agreed to this at the hearing. [19] Therefore, the Court will apply section 232 (2) of the Criminal Code as it was redefined in Fredette c.

R . [11] In other words, the conduct of the victim required by section 232 (2) of the Criminal Code does not have to be an indictable offence punishable by five years or more of imprisonment. 2. The air of reality test [20] The Court will now address the air of reality test that applies to the defence of provocation. [21] In R . v. Tran [12] , the Supreme Court of Canada stated the following:

[39] As noted earlier, s. 232(3) provides that determining whether a particularwrongful act or insult amounted to provocation and whether the accused wasdeprived of the power of self-control by the provocation are questions of fact. Consistent with the wording of this provision, it remains with the jury, and notthe trial judge, to weigh the evidence in order to determine whether the Crownhas discharged its burden of disproving that the killing was caused byprovocation (R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 56,citing R. v. Schwartz, (SCC), [1988] 2 S.C.R. 44.3 [40] However, the

interpretation of a legal standard (the elements of thedefence) and the determination of whether there is an air of reality to a defenceconstitute questions of law, reviewable on a standard of correctness. The term“air of reality” refers to the inquiry into whether there is an evidential foundationfor a defence. Statements that there is or is not an air of reality express a legalconclusion about the presence or absence of an evidential foundation for adefence: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 50 and 55; R. v.Osolin, (SCC), [1993] 4 S.C.R. 595, at p. 682; Parnerkar v.

TheQueen, (SCC), [1974] S.C.R. 449, at p. 461. Thus, this inquiryis not a review of the trial judge’s assessment of the evidence but of the judge’slegal conclusions in relation to the defence of provocation: R. v.Ewanchuk, (SCC), [1999] 1 S.C.R. 330, at para. 21. [41] In a jury trial, the judge is the gatekeeper and judge of the law and musttherefore put the defence to the jury only where there is evidence upon which a“reasonable jury acting judicially” could find that the defence succeeds (Faid, atp. 278).

For the defence to succeed, the jury must have a reasonable doubt aboutwhether each of the elements of provocation was present. This necessarilyrequires that there be a sufficient evidential basis in respect of each component ofthe defence before it is left to the jury: the evidence must be reasonably capableof supporting the inferences necessary to make out the defence before there is anair of reality to the defence (Fontaine, at para. 56; R. v. Reddick, (SCC), [1991] 1 S.C.R. 1086, at p. 1088, citing Pappajohn v. TheQueen, (SCC), [1980] 2 S.C.R. 120, at p. 133).

In a trial byjudge alone, the trial judge must instruct himself or herself accordingly. Therefore, the trial judge errs in law if he or she gives effect to the defence ofprovocation in circumstances where the defence should not have been left to ajury, had the accused been tried by a jury. [22] In R. v.

Mayuran[13], the Supreme Court stated: [18] The primary issue in this appeal is whether the Court of Appeal erredin concluding that there was a sufficient evidentiary foundation for the defenceof provocation to have been put to the jury notwithstanding that it was notraised by the defence at trial. [19] The defence of provocation is set out in s. 232 of the Criminal Code : 232.

(1) Culpable homicide that otherwise would be murder maybe reduced to manslaughter if the person who committed it did so inthe heat of passion caused by sudden provocation.

(2) A wrongful act or an insult that is of such a nature as to besufficient to deprive an ordinary person of the power of self-control isprovocation for the purposes of this

section if the accused acted on iton the sudden and before there was time for his passion to cool.

(3) For the purposes of this section, the questions (

a) whether a particular wrongful act or insult amounted toprovocation, and (

b) whether the accused was deprived of the power of self-control by the provocation that he alleges he received, are questions of fact, but no one shall be deemed to havegiven provocation to another by doing anything that he had a legalright to do, or by doing anything that the accused incited him to do inorder to provide the accused with an excuse for causing death orbodily harm to any human being [20] This Court has held that a defence should only be put to the jury if ithas an “air of reality” (R. v. Cinous, 2002 SCC 29 , [2002] 2 S.C.R. 3,at para. 50).

The air of reality test imposes two duties on the trial judge: to“put to the jury all defences that arise on the facts, whether or not they have

been specifically raised by an accused”; and “to keep from the jury defenceslacking an evidential foundation” (Cinous, at para. 51). Whether a defencearises on the evidence of the accused or of the Crown, the trial judge must putthe defence to the jury if it has an air of reality (Cinous, at para. 53; R. v.Osolin, (SCC), [1993] 4 S.C.R. 595). [21] In determining whether a defence has an air of reality, there must be anexamination into the sufficiency of the evidence. It is not enough for there tobe “some evidence” supporting the defence (Cinous, at para. 83).

The test is“whether there is (1) evidence (2) upon which a properly instructed jury actingreasonably could acquit if it believed the evidence to be true” (Cinous, atpara. 65). For defences that rely on indirect evidence or defences likeprovocation that include an objective reasonableness component, the trial judgemust examine the “field of factual inferences” that can reasonably be drawnfrom the evidence (Cinous, at para. 91). [22] The relationship between the air of reality and the defence ofprovocation was recently considered by this Court in R. v.

Tran, 2010 SCC 58, [2010] 3 S.C.R. 350, where Charron J. explained that : [f]or the defence to succeed, the jury must have a reasonable doubtabout whether each of the elements of provocation was present. Thisnecessarily requires that there be a sufficient evidential basis inrespect of each component of the defence before it is left to the jury:the evidence must be reasonably capable of supporting the inferencesnecessary to make out the defence before there is an air of reality tothe defence . . . . [para. 41] [23] There are two elements to the defence of provocation: an objective anda subjective one.

The two components were described in R. v. Thibert, (SCC), [1996] 1 S.C.R. 37 : First, there must be a wrongful act or insult of such a nature thatit is sufficient to deprive an ordinary person of the power of self-control asthe objective element.

Second, the subjective element requires that theaccused act upon that insult on the sudden and before there was time for hispassion to cool. [Emphasis deleted; para. 4.] (See also Tran, at para. 23.) The objective element of the defence requires that “(1) there must be awrongful act or insult; and (2) the wrongful act or insult must be sufficient todeprive an ordinary person of the power of self-control” (Tran, at para. 25) [23] In R. v. Cairney[14], the Supreme Court stated:

A. When Must the Defence Be Submitted to the Jury – The « Air of Reality »

Question [19] The trial judge appears to have acted on the view that, provided there was any evidence supporting the elements of the defence of provocation, she was required to leave the defence to the jury. [20] The Court of Appeal, by contrast, conducted a detailed examination of the evidence that went into the merits of the defence. [21] Neither of these approaches is strictly correct. “[T]he air of reality test [is not] intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day”: R. v.

Cinous , 2002 SCC 29 , [2002] 2 S.C.R. 3 , at para. 54 , quoted by Fish J. in R. v. Buzizi , 2013 SCC 27 , [2013] 2 S.C.R. 248 , at para. 16 . The question is whether a properly instructed jury acting reasonably could have a reasonable doubt as to whether the elements of the defence of provocation are made out: R. v. Tran , 2010 SCC 58 , [2010] 3 S.C.R. 350 , at para. 41 ; R. v. Mayuran , 2012 SCC 31 , [2012] 2 S.C.R. 162 , at para. 21 .

The trial judge may engage in a limited weighing of the totality of the evidence to determine if a jury acting reasonably on that evidence could draw the inferences necessary to have a reasonable doubt as to whether the accused is guilty of murder, on the basis of the defence of provocation; see the companion case R. v. Pappas , 2013 SCC 56 , [2013] 3 S.C.R. 452 . This Court, per Abella J., described the appropriate approach to the air of reality test in Mayuran : In determining whether a defence has an air of reality, there must be an examination into the sufficiency of the evidence.

It is not enough for there to be “some evidence” supporting the defence ( Cinous , at para. 83 ). The test is “whether there is (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true” ( Cinous , at para. 65 ).

For defences that rely on indirect evidence or defences like provocation that include an objective reasonableness component, the trial judge must examine the “field of factual inferences” that can reasonably be drawn from the evidence ( Cinous , at para. 91 ). [para. 21] [22] If this air of reality test is met, the judge should leave the defence to the jury. While judges must ensure that there is an evidential foundation for the defence, they should resolve any doubts as to whether the air of reality threshold is met in favour of leaving the defence to the jury. 3.

The defence of provocation [24] Provocation, as stated by

section 232 of the Criminal Code , only becomes an issue if Crown counsel has proved beyond a reasonable doubt that, in unlawfully killing Ms. Finnigan, Mr. Kirby committed murder. If the Crown proved beyond a reasonable doubt that, in unlawfully killing Ms. Finnigan, Mr. Kirby committed murder, the killing that would otherwise be murder is reduced to manslaughter if Mr. Kirby committed it in the heat of passion caused by sudden provocation in accordance with the criteria of

section 232 of the Criminal Code . [25] In general terms, provocation involves a sudden loss of control by Mr. Kirby in response to a wrongful act or insult committed by Ms. Finnigan. Provocation is a concession to human frailty. It is subject to certain specific conditions. [26] Provocation is not something that Mr. Kirby must prove to reduce to manslaughter what otherwise would be murder. It is up to Crown counsel to prove beyond a reasonable doubt that Mr. Kirby was not acting under provocation, pursuant to

section 232 of the Criminal Code , when he murdered Ms. Finnigan. [27] To prove that Mr. Kirby was not acting under provocation, pursuant to

section 232 of the Criminal Code , Crown counsel must prove beyond a reasonable doubt that at least one of the essential elements of provocation was absent. It does not matter which element, or whether all jury members agree that the same essential element has been proven beyond a reasonable doubt to be absent. Provided that Crown counsel has proven beyond a reasonable doubt that one of them was absent, Mr. Kirby was not acting under provocation and murder is not reduced to manslaughter on the basis of provocation. [28] Everything Ms. Finnigan said or did to Mr.

Kirby does not amount to provocation so as to reduce to manslaughter what otherwise would be murder. To amount to provocation, Ms. Finnigan must have done a wrongful act or insult. In addition, provocation also involves two separate tests or standards that apply to Ms. Finnigan’s conduct. The first is the “ordinary person” test. The second is the “accused person” test. [29] The purpose of the ordinary person test is to set a standard that everyone is expected to observe. This standard reflects the degree of self-control and restraint that we expect from all members of our society.

This ordinary person test or standard comes first. The second test – the accused person – test or standard applies only if the jury has a reasonable doubt about whether what Ms. Finnigan said or did would provoke an ordinary person to lose their power of self-control. [30] The second – accused person – test or standard recognizes that it is appropriate to consider the individual characteristics and circumstances of the person charged in cases where what the deceased said or did would cause an ordinary person to lose the power of

self-control. This test requires for the jury to decide whether Mr. Kirby murdered Ms. Finnigan while actually acting under sudden provocation and requires to consider Mr. Kirby’s individual characteristics and circumstances. [31] The essential elements of provocation, including those two tests or standards – the ordinary person and the accused person test or standard – may be broken down into four questions for the jury to consider.

a) Did Ms. Finnigan commit a wrongful act or insult? [32] A wrongful act is

an act or conduct that is wrong according to the ordinary moral standards of reasonable members of society. An insult is injuriously contemptuous speech or behavior; a scornful utterance; an action or conduct intended to insult another person’s self-respect; an affront or indignity. [33] The Court finds that the following evidence is relevant to this essential element of the defence of provocation:

a) The video recordings from Ms. Finnigan’s surveillance cameras filed as P-21, P-22 and P-22A;

b) The video recording of the statement given to the police by Mr. Kirby filed as P-39, more specifically what he said about Ms. Finnigan’s conduct on October 14, 2020;

c) The following elements of Mr. Kirby’s testimony at trial: November 28, 2023 1) Mr. Kirby was asked what happened on October 14, 2020. 2) He said a friend came over to take a load of oil, tires and metal parts to put on a trailer and to take them to a recycling site. 3 ) Mr. Kirby said that he was loading the trailer. He heard a branch of a tree snapping. He kept loading the trailer. 4 ) After, he went to look. He did not see anything at first. 5 ) Then Mr. Kirby said that he heard a crack. It was a branch. 6 ) He went to the top of the slope on his property to look.

He said he did this for a couple of hours. 7 ) Mr. Kirby was asked how he came about to shoot Ms. Finnigan. 8 ) Mr. Kirby testified that the snap of the branches took him there. He snapped. He lost it. 9 ) He was asked what he did. 10 ) He said that he loaded his shotgun. He went out. He said that he waited for a bit. Then he heard a snap. Ms. Finnigan was breaking a branch of a cedar tree. He said Ms. Finnigan was also moving a log. 11 ) Mr. Kirby said that at a certain point, he aimed at Ms. Finnigan and shot her. 12 ) Mr.

Kirby was asked to give details of what he did. 13 ) He said that when he first heard a branch crack, he went to see. He said he saw two pieces of a cedar tree broken. 14 ) He said that he felt violated. Ms. Finnigan was not stopping. There was something wrong. 15 ) He testified that after waiting, he went to his house. He tried to calm down and smoked a cigarette. 16 ) He went back out. Then he went back to his house and loaded his shotgun. He returned back outside. 17 ) He said that he watched quietly from the top of the slope. He said that we can see him going back and forth on the video. 18 ) Mr.

Kirby was shown the video P-22 from 13:09 to 13:09:54. 19 ) He testified that on the video, we can see him watching Ms. Finnigan. 20 ) He said that he saw Ms. Finnigan cutting a branch from a tree. He did not have exchange of words with Ms. Finnigan.

21 ) He testified that at that moment he felt nervous. He said the top of the tree was gone. Ms. Finnigan was cutting trees. Mr. Kirby said that he was getting enraged. 22 ) Mr. Kirby was shown video P-21. 23 ) He was referred at 14:16:29 of the video and was asked about Ms. Finnigan moving a branch. 24 ) Mr. Kirby said that this is the big branch that got ripped. 25 ) The video P-21 was replayed from 14:16:00. 26 ) Mr. Kirby said that at 14:16:14, we see him on the video. 27 ) He said it is at that moment that Ms. Finnigan broke a big branch of a tree. Then she placed it at the bottom of the slope. After, Ms.

Finnigan picked up a log. 28 ) The video P-21 was played until 14:16:38. Mr. Kirby was asked what happened between the first time we see him on this video and the time he returned at 14:16:38. 29 ) He said that he went back to his house and loaded his shotgun. His house is about 20 feet away from where he was. The shotgun was in a guitar case inside his house. 30 ) Mr. Kirby loaded one cartridge in the breech and three more in the holder at the bottom of the firearm. He said it’s faster and easier to load the firearm that way. He said it took him 10 to 15 seconds to load the firearm.

Then he came back at the top of the slope. 31 ) Mr. Kirby was asked what was on his mind when he went back. 32 ) Mr. Kirby testified that he had heard a big crack of a branch breaking. Ms. Finnigan had not stopped killing his trees. He said that he snapped and that he lost it. 33 ) Mr. Kirby said that Ms. Finnigan was told to stop for years. 34 ) Mr. Kirby was asked why it was so shocking. 35 ) He said it was the sound of the snap of the branch. He said the whole heart of the branch was pulled out. 36 ) Mr.

Kirby was shown the video P-21 from 14:16: 25. 37 ) His attention was around 14:16:45 and he was asked why he lowered his firearm at that moment. 38 ) Mr. Kirby testified that he was looking for a clear shot because there was a tree in front of him. 39 ) Mr. Kirby was referred to video P-22 from 13:09 to 13:09:56. 40 ) He was asked about a movement at the top of the slope. 41 ) Mr. Kirby said that he was watching Ms. Finnigan doing the damage. He heard the snapping. At that moment, he was not sure if it was damage to his property because, in the morning, Ms.

Finnigan was breaking branches on her property. 42 ) The video P-22 was played between 13:10:25 to 13:10:31. 43 ) Mr. Kirby said that he was at the top of the slope. Ms. Finnigan was tearing branches of the tree. He saw her. He turned around and went to his house. 44 ) He said his heart was torn out. He said Ms. Finnigan was told to stop for years. 45 ) On that day, he did not have any word exchange with Ms. Finnigan. 46 ) Mr. Kirby was asked when was the last time he saw Ms. Finnigan breaking branches before October 14, 2020. 47 ) He testified that it had stopped for a bit, for 2 or 3 months. 48 ) Mr.

Kirby was shown video P-22 from 13:13:54 to 13:14:19. 49 ) Mr. Kirby testified that he was standing behind trees at the top of the slope. He did not know if Ms. Finnigan saw him. 50 ) Mr. Kirby was shown the video P-22 from 13:16:00 to 13:16:10.

51 ) He said he was at the top of the slope, probably smoking a cigarette. 52 ) He said he was watching Ms. Finnigan. 53 ) He was asked how he felt at that point. 54 ) He said he did not know. He started to feel empty. 55 ) Mr. Kirby said that he snapped when he saw Ms. Finnigan break the branch on the video P-21 at 14:16. 56 ) He was asked why he did not snap before. He said he did not know.

He could not explain. 57 ) He said that maybe it was not the same snapping sound of the tree. 58 ) He said that he heard other snaps, but it was not his tree. 59 ) He said that on his cedar tree, all the lower branches are gone. This cedar tree is on his property. 60 ) Mr. Kirby was asked what he did after he shot Ms. Finnigan. 61 ) He said that he went back to his house. He lit a cigarette and tried to take a little air.

d) The testimony of Ms. Audrey Beauchamp-Doré: November 29, 2023 1) Ms. Beauchamp-Doré is a chemist forensic toxicologist. 2) Her resume was filed as exhibit D-20. 3) She has been a forensic toxicologist since April 2017. 4) She signed approximately 2,500 expertise reports for all kinds of files. Reports about deceased persons represent a good part of the 2,500 reports. 5) In the present file, she received samples from the autopsy.

Admissions A-10 were filed on this subject. 6) Her work is to do analysis to detect if there are substances like drug, alcohol or medication. 7) She was asked what is the difference between blood and urine for the sake of her analysis. 8) She said these are two totally different milieux. She said blood is the blood circulating at the time of death. She said for a substance to have effect, it must be in the blood. 9) Urine is the elimination milieu. 10) So urine is a portrait of the history of consumption. 11) Certain substances can only be found in urine.

It can indicate consumption of a substance a certain time ago. 12) She testified that methamphetamine is known by different street names. For example, it is called speed when it is in the form of pills. It is called crystal meth if it is smoked. 13) In the present case, the result in the blood of Ms. Finnigan was 1,158 nanograms per millimetre. 14) She said it corresponds to an

interpretation of high therapeutic. 15) It was also detected in the urine. In urine, there is no concentration. It is either detected or not detected. 16) Methamphetamine can stay in the blood between 24 to 48 hours. 17) In the urine, it can be several days, 4 days or more. 18) She explained that therapeutic concentration is a concentration that brings the effects sought by the individual. It is like drunkenness of alcohol. 19) Toxic means a concentration that could lead to dangerous effects.

20) So she explained that high therapeutic is between both. 21) She said that in this case, it was not the typical concentration seen in users. 22) So this concentration can be seen in cases of consumption of high dosage or repeated consumption. 23) Codeine is an analgesic. It is less strong than morphine.

It is used for light to moderate pain. 24) Here, the concentration was traces. 25) So this concentration has little or no effect in the majority of the individuals. 26) In the case of cannabis, we talk about THC, which is the active substance in the cannabis. 27) Here, we had 19 nanograms per millimeter. 28) With THC, for most consumers, it can be stocked in fat. 29) When a person dies, the THC located in fat will move to the blood.

It’s a post-mortem phenomenon. 30) So it is impossible to say the level of concentration at the time of death because there is no estimation of THC following the death of the person. 31) It is possible that a person consumed cannabis a while ago and that at the time of death, there is no THC in the blood, but because of the post-mortem phenomenon, the THC would be present. 32) She said here it is possible that Ms.

Finnigan consumed within 12 hours preceding her death, but she cannot tell the concentration of THC. 33) She was asked about cyclobenzatrine and hydromorphone. 34) She testified that cyclobenzatrine is a prescribed medication for muscular spasms linked to muscular skeletal troubles. 35) Here, there was no detection in blood. So the person did not have effects linked to that substance. 36) Hydromorphone is known as Dilaudid.

It’s an analgesic used for pain. 37) Here it was not detected in blood, so there was no effect. 38) She was asked about the detection of those substances in urine. 39) She said it means that there was consumption, but it dates back to several hours or several days. 40) She was asked about the physiological effects of these substances. 41) She said methamphetamine is a stimulant of the central nervous system. 42) She said it stimulates and accelerates all the functions of an individual. 43) There is an increased alertness of the person. 44) The general effects are euphoria, a feeling of well-being, hyperactivity, the presence of twitches, which is involuntary and repeated movements, and a decrease of fatigue. 45) She said in certain particular situations, if there is a high dosage or repeated consumption, there can be confusion, anxiety and hallucinations.

These are the general effects. 46) She said an individual can have a couple of these effects or others that she did not name. But these are the general effects. 47) She was asked about the effects on the behavior. She said some behaviors can be more violent or aggressive. A person can have a more compulsive behavior. 48) She said codeine is an analgesic. It’s a depressor of the central nervous system.

It will reduce alertness and reduce all the functions of an individual. 49) The secondary effects can be dizziness and somnolence. 50) She said that in this case, we have traces, so it is unlikely that it had effects on the

individual. 51) She testified that THC can have effects of stimulation and depression. 52) The general effects can be euphoria, a feeling of well-being, somnolence, loss of concentration. She said these are a few examples of noticeable effects. 53) She said that cyclobenzatrine and hydromorphone are both depressant of the central nervous system. They can have the effects of somnolence and dizziness. 54) For hydromorphone, in addition to somnolence and dizziness, there can also be sedation. 55) She was asked if we can interpret something from the mix of these substances. 56) She said it can be complicated.

When several substances are mixed, it is difficult to predict the finality. 57) She said that in this case, with the methamphetamine in this concentration, there is a probable effect of stimulation. But for cannabis, it is difficult to know if it was in the blood or not.

But she said if it is the case, there could have been a more important effect on the central nervous system. 58) She said the depressant effect of the cannabis can diminish the hyperactivity of methamphetamine. 59) It is difficult to understand the final effects of such consumption. 60) It was suggested that other factors, like the age, the height and the weight, can affect the impact of the substances. 61) She said they can have an impact, but the main factor can also be in relation with the individual. 62 ) She said it is mainly the level of tolerance. 63 ) She said a person who uses a substance often or regularly will develop a tolerance. 64 ) To have the effect sought, a person would have to increase the dosage to get the recreational effect. 65 ) She said the mode of consumption can also have an impact on the person.

She gave the example of methamphetamine. If taken by pills, the effects take longer to start. The effect is less intense but will last longer. If the methamphetamine is smoked, there is a very rapid effect, it is more intense, but it does not last as long. 66 ) It was suggested that aside from methamphetamine, all the substances found in Ms. Finnigan’s body are to alleviate pain. 67 ) She said yes. They can be linked to certain pain.

But she said at the site of action, there can be differences. 68 ) But she said it remains at the medical level. [34] Considering this evidence, the Court is satisfied that there is evidence upon which a properly instructed jury, acting reasonably, could have a reasonable doubt as to whether Ms. Finnigan committed a wrongful act or insult [15] .

b) Was the alleged wrongful act or insult sufficient to deprive an ordinary person of the power of self-control? [35] This question has to do with the ordinary person’s reaction to the wrongful act or insult. In answering this question, the jury does not consider any factors or features that are peculiar or unique to Mr. Kirby for example, temperament or attitude. [36] An ordinary person is one who is not exceptionally excitable or disposed to fight (combative).

The ordinary person has a normal temperament and those powers of self-control that all of us expect our fellow citizens to have and exercise in our society today. [37] In this case, an ordinary person is one who is the same age and sex as Mr. Kirby, who shares with Mr. Kirby the same relevant characteristics that would give the wrongful act or insult a special significance in the circumstances of this case. An ordinary person would also be one who has experienced the same wrongful act or insult as Mr. Kirby and shares the past history and relationship between Mr. Kirby and Ms. Finnigan.

In this case, the relevant characteristics are the elements and subjects of the conflict between Mr. Kirby and Ms. Finnigan. [38] The question to answer about the ordinary person test is not whether the ordinary person would have lost their self-control and have ended up doing exactly what Mr. Kirby did in this case, killing Ms. Finnigan. The question is whether the ordinary person, with the relevant characteristics, described above, faced with Ms. Finnigan’s conduct in the same circumstances, would have lost their power of

self-control. In other words, what is important is the loss of self-control, not the precise form it took. [39] To answer this question, the jury must take into account everything that was said or done at the time, as well as the relationship and history between Mr. Kirby and Ms. Finnigan, including any previous exchanges that occurred between them. The question is whether an ordinary person in these same circumstances, with the same characteristics described above, confronted with the same wrongful act or insult, would have lost their power of self-control. [40] The Court finds that the following evidence is relevant to this essential element of the defence of provocation:

a) The video recordings from Ms. Finnigan’s surveillance cameras filed as P-21, P-22 and P-22A ;

b) The video recording of the statement given to the police by Mr. Kirby filed as P-39, more specifically what he said about the conflict with Ms. Finnigan, what Mr. Kirby and Ms. Finnigan did on October 14, 2020 and the fact that Mr. Kirby said that he snapped;

c) The testimony of Ms. Julie Paquet: November 9, 2023 1) Ms. Paquet is an acquaintance of Mr. Kirby. 2) She testified that when they met, Mr. Kirby told her that it was not going well with Ms. Finnigan. There were court proceedings between them. 3) She testified 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 property. 4) She said Mr. Kirby told her that it was costing him a lot of money for his lawyer. 5) He was fed up with it. 6) Ms. Paquet was asked if other things were said by Mr.

Kirby before October 14, 2020. 7) She said 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. 8) Ms. Paquet testified that Mr. Kirby said that another event had taken place. He was mad and he said that one day he would get rid of Ms. Finnigan, kill her. 9) She testified that one time Mr. Kirby was taking a walk with his dog. She came by car and he stopped her to talk about Ms. Finnigan. 10) Ms. Paquet said that Ms. Finnigan is the only person they both knew.

It was the only person they had in common. 11) She testified that Mr. Kirby talked again about his attorney. He was mad. He was talking about Ms. Finnigan. He told her that she would be better dead. 12) Ms. Paquet suggested to Mr. Kirby to move to alleviate the situation. She said this was not an option for Mr. Kirby. 13) It was suggested to Ms. Paquet that there was abnormal lighting at Ms. Finnigan’s place. 14) She said yes, at night, there was a spotlight leading from her house.

It was not a simple light bulb. 15) She said it was like a security spotlight that lights up when you walk by. 16) She said it lights up everywhere. She said that she had something similar at her place, but not as strong. 17) She said that it was attached to Ms. Finnigan’s house. She said

it was strong. 18) She said you could see it when you pass by on the road. She could see that it was lighting up the land. November 10, 2023 19) Ms. Paquet noticed the big lights at Ms. Finnigan’s house in the previous year before October 14, 2020. 20) She said in the months or the years prior to the events in this case, Mr. Kirby was mad because of the court proceedings he was involved with. 21) She was asked if she remembered that the first death threat from Mr. Kirby directed at Ms.

Finnigan was in the summer of 2019 and the second one also in 2019. 22) She testified that she remembered them on a period of two years, but it is a question of months. The first event was in the summer of 2019 and the other event was also in 2019. 23) She agreed that the two events were in 2019 and not a few months before the events in this case. She testified that she saw Mr. Kirby on two occasions and that he was mad. He had papers with him.

He seemed fed up and angry. 24) On October 14, 2020, she told the police about the spotlight issue. 25) She was asked if she told the police about the issue regarding the trees. She said this is what Mr. Kirby told her. She did not see this. 26) Ms. Paquet was asked when was the first meeting with Mr. Kirby in 2019 when he would have made the first threat towards Ms. Finnigan. 27) Ms. Paquet testified that Mr. Kirby was on the road. She was in her car. Mr. Kirby waved at her to stop. 28) She said Mr. Kirby did not say that he wanted to kill Ms. Finnigan at first. 29) Mr. Kirby said something about his attorney.

He said that he was stuck with the court and the attorney. He said Ms. Finnigan was crazy. He said that he would get rid of her. 30) She said Mr. Kirby was telling her about the lights and what Ms. Finnigan was doing. 31) 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. Mr. Kirby told her that they were court documents and he had a stack of paper. 32) She was doing her grocery. Mr. Kirby saw her and came towards her to talk about the feud with his neighbor. He said it was costing him a lot of money in attorney.

The discussion did not last long. 33) She testified that this was the same year as the other event when Mr. Kirby made threats towards Ms. Finnigan. 34) She said the event at the grocery store was months before 2020. It could be 14 or 12 months. She said it is difficult to say. 35) She agreed that she said at the preliminary inquiry that Mr. Kirby was afraid of what Ms. Finnigan could do to him. 36) She was asked if she saw this fear in 2020. 37) She said physically the fear could not be seen. Mr. Kirby said Ms. Finnigan was crazy and he did not know how far her craziness could lead.

38) She was asked if Mr. Kirby looked distressed. She said no, but preoccupied and fed up.

d) The admissions filed as A-8 regarding the civil trial between Mr. Kirby and Ms. Finnigan and the judgment granting a sum of money in favor of Ms. Finnigan;

e) The recording of the testimony of Ms. Bonnie-Lyn Finningan at the civil trial filed as P-40, more specifically her description of the conflict with Mr. Kirby;

f) The testimony of Mr. Kirby at trial: November 28, 2023 1) Mr. Kirby started living at 105 Edina Road in 1993. 2) He bought the property in 2000 from Mr. Laurier Bédard. Between 1993 and 2000, it was not officially his property. 3) At the time, Mr. Kirby was retired. He worked for Mr. Bédard for 4 years. 4) At 105 Edina Road, he liked the tranquility at first. He liked being in the woods. There were animals around, like bears, rabbits, etc. 5) Before Ms. Finnigan, the owner of the property at 101 Edina Road let Mr. Kirby use the place for storage. 6) Mr. Kirby became neighbor with Ms.

Finnigan around late fall of 2000. 7) At the beginning, the relation was cordial with Ms. Finnigan. They were able to talk to each other. He learned a bit about her family and the fact that she was mourning for her son. It was a long mourning. 8) Their relationship was no more than one of neighbors. 9) The conflict began over a couple of things. He did not know when it started. 10) Mr. Kirby was asked about events with Ms. Finnigan. 11) He said one of the things was the electricity. The two houses were connected by a wire. Before, it was only one lot. 12) Ms.

Finnigan was made aware of this when she rented 101 Edina Road. 13) Mr. Kirby testified that Ms. Finnigan started to cut the power because she wanted more money. Mr. Kirby said that he refused to pay more because he was paying 20 $ a month and Ms. Finnigan was asking 5 $ to 10 $ more per month. 14) Mr. Kirby said he was using electricity for a fridge, a stereo and two lights. 15) He did not remember when this conflict occurred for the electricity. 16) In 2007, Mr. Kirby took a civil lawsuit against Ms. Finnigan for damaging his property.

He said she was cutting his trees and that she put surveillance cameras and lights pointing towards his property. 17) Mr. Kirby testified that Ms. Finnigan was cutting trees and that she brought other people to do it as well. 18) Mr. Kirby testified that there were trees from the bottom of the slope to the top when Ms. Finnigan arrived. 19) Mr. Kirby was shown the land surveyor plan joined to admissions A-9. 20) Mr. Kirby was asked who was the owner of the triangle piece of land when he bought the property. He said nobody. It belonged to the land surveyor Mr. Madore. 21) Mr.

Kirby said that in 1993, he was using that piece of land. He built a woodshed on it and this was part of claiming property. 22) Mr. Kirby said that theoretically, when he bought 105 Edina Road in 2000, he was the owner of the wedge because of the woodshed he had put on it.

23) Mr. Kirby was asked where Ms. Finnigan was cutting trees on his property. 24) Mr. Kirby put dots on the triangle piece of land and below the triangle. He testified that trees were also cut on the roadside. He put the letter X on the map and the letters DP to show the deer path. 25) The annotated plan was filed as exhibit D-10. 26) Mr. Kirby did not remember the exact year Ms. Finnigan started cutting trees. He said it was still going on when the events in this filed happened. He said there were short breaks, but he did not remember the dates. 27) Mr. Kirby testified that Ms.

Finnigan was cutting the trees with some friends who had chain saws. 28) Mr. Kirby testified that they cut a good number of maples, cherry trees, cedars and ash trees. 29) Mr. Kirby testified that at least 200 trees were cut. They were all from different sizes. 30) Mr. Kirby was asked why the cutting of the trees was a problem. 31) He said he lost his privacy. Ms. Finnigan put sodium lights and cameras and sensors for the cameras. 32) He was asked how he felt about the cutting of the trees. 33) Mr. Kirby said that it’s like being raped. He said his heart was pulled out. He said that he is a tree lover. 34) Mr.

Kirby testified that when Ms. Finnigan started cutting trees, he tried to address the problem with her, but she told him to go fuck himself. 35) Mr. Kirby testified that Ms. Finnigan never asked permission to cut trees. It was just done like as if he was forced. 36) He was asked about measures he took to end the cutting of the trees. 37) Mr. Kirby testified that he took Ms. Finnigan to court. He also got involved with the municipality. He met with three mayors and the city engineers. 38) Mr.

Kirby testified that he also called the Sûreté du Québec multiple times. 39) He said that was all to no avail. 40) He was told by the Sûreté du Québec that they do not deal with civil matters. 41) Mr. Kirby was asked about a laser. 42) He testified that this is a sensor from Ms. Finnigan’s residence. It’s a laser beam connected to a sensor. One day, he was walking on his property and he saw the laser line. Mr. Kirby testified that he got cataracts because of it. 43) He said he could not do anything about it. 44) Mr. Kirby did not remember the date or the year of this incident. 45) Mr.

Kirby was asked why the lights on Ms. Finnigan’s property were a problem. 46) Mr. Kirby said that he had no privacy. The trees were cut. The lights were on an old-style antenna attached to the house. 47) He said there were all kinds of lights. They were very powerful and there was no reflector on them. 48) Mr. Kirby testified that the lights were pointing in his backyard, in his barbecue area and on the side of his house, where the kitchen is. 49) Mr. Kirby testified that this was every summer from March to September or October. 50) Mr.

Kirby was asked about the effects of the lights on him. 51) He said that he had no privacy at night. There was light inside his house. 52) He could not go outside at night because the light was too strong. He could not see

properly. 53) Mr. Kirby also said that there could be an intrusion in his house because it was lightened up outside. 54) Mr. Kirby was asked what he did with this situation. 55) Mr. Kirby went to the municipality. The first time, he saw the engineers about it. He spoke to Mr. Benoit Cadieux. 56) After that, he went directly to the mayor. 57) He said it was a constant battle to get privacy. 58) The lights were a problem every summer. In the winter, there were also floodlights directed at his place. 59) Mr. Kirby testified that one engineer from the municipality went to see Ms.

Finnigan, but she just laughed at him. She put the lights down and then put them back up. This lasted a couple of years. 60) Mr. Kirby was asked about the cameras. 61) He testified that the cameras took away his privacy. He said that he was living in the bush. He said Ms. Finnigan had two cameras or more. 62) He testified that the cameras were moved around all the time. They were on a tower at the side of Ms. Finnigan’s house. 63) The cameras were pointing at his place. All his privacy was gone.

He said that everything was lightened up or had cameras on it. 64) He did not remember when the problems with the cameras started. He said it lasted for 12 to 15 years. 65) Mr. Kirby was asked what measures he took with respect to the cameras. 66) He said that he went to the municipality. He called the Sûreté du Québec a number of times. Nothing happened. 67) Mr. Kirby testified that he often discussed the cameras with Ms. Finnigan, but that she just laughed. He said it was the same for the lights. He said this was part of his civil lawsuit. 68) Mr.

Kirby testified that there was also a problem with the septic tank on Ms. Finnigan’s property. He said there was a strong smell. He could not use his balcony and his backyard. When he tried to speak about it to Ms. Finnigan, she told him « fuck you ». 69 ) Mr. Kirby went to the municipality and they talked about this. Mr. Kirby said the smell was a problem. Two engineers from the municipality came. They worked on the septic tank. 70 ) Mr. Kirby testified that this problem lasted a long time. It was there for years. 71 ) He said it started in the fall. He started to smell it on his balcony.

He could not use his balcony to take his coffee. 72 ) He went to the municipality. Mr. Kirby said it took Ms. Finnigan over two years to get it fixed. 73 ) According to Mr. Kirby, Ms. Finnigan did not have money to fix the septic tank. That is why it took so long. 74 ) Mr. Kirby testified that he told Ms. Finnigan to call a pump truck. Ms. Finnigan told him to go fuck himself. 75 ) Mr. Kirby testified that Ms. Finnigan started to pump her septic tank in the creek using an electric pump. 76 ) Mr. Kirby drew pink lines on a map to show the creek. The map was filed as exhibit D- 11. 77 ) Mr.

Kirby was asked why this pumping was a problem. 78 ) Mr. Kirby testified that he was afraid it would be backing up in a creek in front of his house. He said he has the first house in front of the creek. He wanted to stop the pollution.

79 ) Mr. Kirby was asked about problems with dogs. 80 ) Mr. Kirby testified that when Ms. Finnigan’s dogs were loose, they came on his property. 81 ) He did not remember when the problems started with the dogs. It was still going on on the day of the events in this case. 82 ) Mr. Kirby was asked how he was affected by the dogs. 83 ) Mr. Kirby said there was defecation on his property. The dogs also peed on newly planted cedars. Ms. Finnigan did not clean up. 84 ) After Ms. Finnigan got her Husky dog, the dog came almost nightly on his property. 85 ) Mr.

Kirby went to the municipality about it and he also called the dogcatcher. 86 ) Mr. Kirby said that he made 8 or 9 calls to the dogcatcher. Nothing was done. 87 ) Mr. Kirby said that the intervention of the dogcatcher did not change Ms. Finnigan’s conduct. 88 ) Mr. Kirby was asked if there were other problems with Ms. Finnigan. 89 ) He said there was always a problem with her. She was constantly encroaching on this property. She was trespassing. Mr. Kirby testified that he put a sign on his land to indicate it was a private property. 90 ) Mr. Kirby was shown picture 96 of album P-5A.

He recognized the private property sign. 91 ) Mr. Kirby testified that on the picture, we can see that the property line was pushed back in the bushes. There is a rope hooked up in branches of trees. 92 ) He made circles on the picture where the property line is hooked up. 93 ) Mr. Kirby testified that the property line was pushed back further on his property. 94 ) The annotated picture was filed as exhibit D-12. 95 ) Mr. Kirby was shown another map from the admissions A-9. 96 ) He was asked where he saw Ms. Finnigan trespassing on his property. 97 ) Mr. Kirby made pink marks on the map.

He said it was mainly in this area and also in the back. 98 ) He said that sometimes Ms. Finnigan was cutting branches or was looking for places to put cameras. 99 ) The annotated plan was filed as D-13. 100 ) Mr. Kirby testified that he bought the triangular piece of land in 2012. 101 ) Mr. Kirby was shown another map from the admissions A-9. 102 ) He recognized his property and Ms. Finnigan’s property. He wrote 101 and 105 on the map. He testified that this is what he bought in 2012. 103 ) He testified that the encroaching of his property by Ms.

Finnigan was almost daily in the summer. 104 ) He was asked why this was a problem for him. 105 ) He testified that he no longer had private property. 106 ) Before 2012, the triangular part of the land was not his property. But he was in a claiming process. He said that if you put a shed or a cabin on it, you are claiming the property. 107 ) Mr. Kirby testified that the encroaching on his property was still going on on the day of the events in this file. 108 ) Mr. Kirby was asked about other problems with Ms. Finnigan. 109 ) Mr. Kirby testified that there was always something going on with Ms. Finnigan.

He said it was a constant nightmare. 110 ) Mr. Kirby was asked what was his objective when he took the civil lawsuit against

Ms. Finnigan. 111 ) He testified that it was to get the lights down and out. It was to get the sensors off the property. It was just to get back to a normalcy of life. 112 ) Mr. Kirby lost the court case in 2015. He testified that he felt like his heart was torn out. It was like being raped, violated. He said he was violated on a daily basis. 113 ) Mr. Kirby said that not much changed after the civil trial. Ms. Finnigan was still back at it. 114 ) Mr. Kirby testified that he started to put up pieces of a fence to get privacy. 115 ) He said that he backed off.

He stopped doing what he was doing with the municipality and the police because there was no exit anywhere. 116 ) Mr. Kirby testified that there was nothing left to do. He endured it for 12 to 15 years. 117 ) Mr. Kirby said that the light problem was still there. The dog problem was still there. The tree cutting still went on. 118 ) Mr. Kirby testified that Ms. Finnigan was doing things to put cameras up to his driveway. 119 ) He testified that Ms. Finnigan was still doing this until the events in this case. 120 ) Mr. Kirby was asked why he did not move. Mr. Kirby said: to go where?

He was retired and did not have a lot of money. 121 ) Mr. Kirby was asked what happened on October 14, 2020. 122 ) He said a friend came over to take a load of oil, tires and metal parts to put on a trailer and to take them to a recycling site. 123 ) Mr. Kirby said that he was loading the trailer. He heard a branch of a tree snapping. He kept loading the trailer. 124 ) After, he went to look. He did not see anything at first. 125 ) Then Mr. Kirby said that he heard a crack. It was a branch. 126 ) He went to the top of the slope on his property to look. He said he did this for a couple of hours. 127 ) Mr.

Kirby was asked how he came about to shoot Ms. Finnigan. 128 ) Mr. Kirby testified that the snap of the branches took him there. He snapped. He lost it. 129 ) He was asked what he did. 130 ) He said that he loaded his shotgun. He went out. He said that he waited for a bit. Then he heard a snap. Ms. Finnigan was breaking a branch of a cedar tree. He said Ms. Finnigan was also moving a log. 131 ) Mr. Kirby said that at a certain point, he aimed at Ms. Finnigan and shot her. 132 ) Mr. Kirby was asked to give details of what he did. 133 ) He said that when he first heard a branch crack, he went to see.

He said he saw two pieces of a cedar tree broken. 134 ) He said that he felt violated. Ms. Finnigan was not stopping. There was something wrong. 135 ) He testified that after waiting, he went to his house. He tried to calm down and smoked a cigarette. 136 ) He went back out. Then he went back to his house and loaded his shotgun. He returned back outside. 137 ) He said that he watched quietly from the top of the slope. He said that we can see him going back and forth on the video. 138 ) Mr. Kirby was shown the video P-22 from 13:09 to 13:09:54. 139 ) He testified that on the video, we can see him watching Ms.

Finnigan. 140 ) He said that he saw Ms. Finnigan cutting a branch from a tree. He did not have exchange of words with Ms. Finnigan.

141 ) He testified that at that moment he felt nervous. He said the top of the tree was gone. Ms. Finnigan was cutting trees. Mr. Kirby said that he was getting enraged. 142 ) Mr. Kirby was shown the video P-21. 143 ) He was referred at 14:16:29 of the video and was asked about Ms. Finnigan moving a branch. 144 ) Mr. Kirby said that this is the big branch that got ripped. 145 ) The video P-21 was replayed from 14:16:00. 146 ) Mr. Kirby said that at 14:16:14, we see him on the video. 147 ) He said it is at that moment that Ms. Finnigan broke a big branch of a tree. Then she placed it at the bottom of the slope.

After, Ms. Finnigan picked up a log. 148 ) The video P-21 was played until 14:16:38. Mr. Kirby was asked what happened between the first time we see him on this video and the time he returned at 14:16:38. 149 ) He said that he went back to his house and loaded his shotgun. His house is about 20 feet away from where he was. The shotgun was in a guitar case inside his house. 150 ) Mr. Kirby loaded one cartridge in the breech and three more in the holder at the bottom of the firearm. He said it’s faster and easier to load the firearm that way. He said it took him 10 to 15 seconds to load the firearm.

Then he came back at the top of the slope. 151 ) Mr. Kirby was asked what was on his mind when he went back. 152 ) Mr. Kirby testified that he had heard a big crack of a branch breaking. Ms. Finnigan had not stopped killing his trees. He said that he snapped and that he lost it. 153 ) Mr. Kirby said that Ms. Finnigan was told to stop for years. 154 ) Mr. Kirby was asked why it was so shocking. 155 ) He said it was the sound of the snap of the branch. He said the whole heart of the branch was pulled out. 156 ) Mr.

Kirby was shown the video P-21 from 14:16: 25. 157 ) His attention was around 14:16:45 and he was asked why he lowered his firearm at that moment. 158 ) Mr. Kirby testified that he was looking for a clear shot because there was a tree in front of him. 159 ) Mr. Kirby was referred to video P-22 from 13:09 to 13:09:56. 160 ) He was asked about a movement at the top of the slope. 161 ) Mr. Kirby said that he was watching Ms. Finnigan doing the damage. He heard the snapping. At that moment, he was not sure if it was damage to his property because, in the morning, Ms.

Finnigan was breaking branches on her property. 162 ) The video P-22 was played between 13:10:25 to 13:10:31. 163 ) Mr. Kirby said that he was at the top of the slope. Ms. Finnigan was tearing branches of the tree. He saw her. He turned around and went to his house. 164 ) He said his heart was torn out. He said Ms. Finnigan was told to stop for years. 165 ) On that day, he did not have any word exchange with Ms. Finnigan. 166 ) Mr. Kirby was asked when was the last time he saw Ms. Finnigan breaking branches before October 14, 2020. 167 ) He testified that it had stopped for a bit, for 2 or 3 months. 168 ) Mr.

Kirby was shown video P-22 from 13:13:54 to 13:14:19. 169 ) Mr. Kirby testified that he was standing behind trees at the top of the slope. He did not know if Ms. Finnigan saw him. 170 ) Mr. Kirby was shown the video P-22 from 13:16:00 to 13:16:10.

171 ) He said he was at the top of the slope, probably smoking a cigarette. 172 ) He said he was watching Ms. Finnigan. 173 ) He was asked how he felt at that point. 174 ) He said he did not know. He started to feel empty. 175 ) Mr. Kirby said that he snapped when he saw Ms. Finnigan break the branch on the video P-21 at 14:16. 176 ) He was asked why he did not snap before. He said he did not know.

He could not explain. 177 ) He said that maybe it was not the same snapping sound of the tree. 178 ) He said that he heard other snaps, but it was not his tree. 179 ) He said that on his cedar tree, all the lower branches are gone. This cedar tree is on his property. 180 ) Mr. Kirby was asked what he did after he shot Ms. Finnigan. 181 ) He said that he went back to his house. He lit a cigarette and tried to take a little air. 182 ) Mr. Kirby said he paid 1 $ for the whole property in 2000. For the wedge, he paid 1 $. 183 ) Mr. Kirby said that the wedge was not shared with Ms. Finnigan.

It did not belong to her. 184 ) Mr. Kirby testified that when Ms. Finnigan put flowers in the wedge, she was encroaching his property. She did put flowers in the wedge. 185 ) Once Mr. Kirby acquired the property of the wedge in 2012, he cleaned it up. He did not give any warning to Ms. Finnigan. 186 ) Ms. Finnigan put a fence. Mr. Kirby chopped the wood of the fence and rolled it down the slope. He did not give a warning to Ms. Finnigan. 187 ) Mr. Kirby was asked about his last conversation with Ms. Finnigan. 188 ) He said if he recalls correctly, it was for the septic tank. 189 ) Mr.

Kirby confirmed that all the issues with Ms. Finnigan were still going on on October 14, 2020. It was the same issues and nothing had changed. 190 ) It was suggested that he knew there was a camera pointing to the front of Ms. Finnigan’s property. Mr. Kirby said that the camera was on a swivel. He said it was pointed towards the road and swiveled towards his place. It was the same camera. 191 ) He said that sometimes the camera was pointing towards Edina Road and sometimes it was pointing towards his house. 192 ) He said that he saw it and that it was the same camera.

g) The testimony of Mr. Alexandre Roy:

November 29, 2023 1) Mr. Roy has been working in animal control for 26 years. 2) He had a contract with Brownsburg-Chatham for more than 15 years. 3) Mr. Roy received phone calls from Mr. Kirby a few times in relation to Ms. Finnigan’s dog being on his land. 4) When Mr. Roy went on patrol, he did not see the dog of Ms. Finnigan. 5) Mr. Roy never saw Ms. Finnigan’s dog on Ms. Finnigan’s land or on Mr. Kirby’s land. 6) Once he received a complaint from neighbors for a dog barking. 7) He went on patrol and he could hear Ms. Finnigan’s dog barking non-stop in the backyard for 10 minutes. 8) Mr.

Roy made interventions 10 to 15 times in relation to Ms. Finnigan’s dog. 9) He spoke to Mr. Kirby in person or on the phone. 10) He observed that Mr. Kirby was tired of the situation and that he was overwhelmed by the barking of the dog. 11) He testified that fines were sent to Ms. Finnigan about the dog. For a couple of years after, he did not hear anything about the dog. 12) The 10 or 15 times he intervened for Ms. Finnigan’s dog was over a period of 1 or 2 years.

h) The testimony of Mr. Benoit Cadieux: November 29, 2023 1) Mr. Cadieux is an urban planner. 2) He worked for Brownsburg-Chatham from 2010 to 2019. 3) His tasks included the issuance of permits, for example construction permits, and the follow-up of permits. He also took care of complaints and offences. 4) When he worked at Brownsburg-Chatham, he had to intervene with respect to complaints made by Mr. Kirby. 5) He testified it happened several times between 2012 and 2017. 6) He testified that there were complaints by Mr. Kirby and complaints by Ms. Finnigan as well. 7) Regarding the complaints from Mr.

Kirby, he said Mr. Kirby would show up to city hall. If he recalls correctly, Mr. Kirby did not have a phone. 8) The greatest part of Mr. Kirby’s complaints were about light sources coming from Ms. Finnigan’s property. 9) There were also complaints concerning the septic tank. 10) Concerning the lights, he did an inspection at Ms. Finnigan’s property at 101 Edina Road. 11) During his inspection, he observed lighting from Ms. Finnigan’s property. 12) He testified that notices were sent to Ms.

Finnigan to correct the situation. 13) He testified that several corrections were made over time. 14) He was asked about the type of lights at Ms. Finnigan’s place. He said he is not a specialist. There were various types of lights used. He said some of them were quite dazzling and bright. 15) He testified that some lights had movement sensors. Some were bigger and installed on an antenna. 16) Some lights were moveable.

17) He was asked why he had to intervene on multiple occasions. 18) He said it was following complaints. He intervened to have the municipal regulations complied with concerning outside lighting. 19) He was asked the number of times he intervened for light problems. 20) He testified that he did not have the exact number of times. But he said it was frequent and constant. It was over several years. He did not recall the exact dates. 21) He said another subject of complaint was the septic tank. 22) He testified that the septic tank of Ms. Finnigan was an issue. First, it was dangerous. Also, the cover was rusty.

He said there was contamination on the ground surrounding the tank. 23) He testified that his intervention was to require the replacement of the septic tank. 24) Mr. Cadieux saw the septic tank of Ms. Finnigan. He said that it was dangerous and it was also smelly. 25) Mr. Cadieux worked on this septic tank file from August 2012 to February 2013. 26) Mr. Cadieux was shown a document. He said these are his notes of an intervention in relation to a complaint from Ms. Finnigan against Mr. Kirby with respect to the septic tank. 27) The complaint by Ms. Finnigan was on October 31 st , 2012. 28) When Ms.

Finnigan filed the complaint against Mr. Kirby, Mr. Cadieux had already began his intervention with respect to Ms. Finnigan’s septic tank. 29) Mr. Cadieux also received another complaint from Ms. Finnigan against Mr. Kirby in relation to a fence and the storing of wood at the limit of the property. 30) When Mr. Cadieux interacted with Mr. Kirby, he believed that he was exasperated by the situation. 31) Mr. Cadieux made an inspection at 101 Edina Road on September 4, 2013. 32) He took a picture of a light installed on an antenna. 33) He made a pink circle on the picture to show the light at the top of the antenna.

The picture was filed as exhibit D-16. 34) Following this inspection, Mr. Cadieux sent a letter to Ms. Finnigan. He gave her a delay of 15 days to correct the external lighting. 35) After that letter, he made another inspection on October 18, 2013. 36) On that day, he observed the addition of another light on the antenna. 37) He was shown a picture that he took on that day. He testified we can see on the top of the antenna that the light was not removed and that another light was installed a bit lower on the antenna. 38) He made a second circle to indicate the second light on the antenna.

The picture was filed as D-17. 39) Following this inspection, he sent a second statement of offence to Ms. Finnigan. 40) Mr. Cadieux testified that the light situation at Ms. Finnigan’s place was corrected on January 14, 2014. 41) Mr. Kirby made a complaint on June 20, 2014. It was in relation to lights at Ms. Finnigan’s property. 42) Mr. Cadieux testified that the complaint was about a light at the entrance of the property of Ms. Finnigan that was shedding light on Mr. Kirby’s property and about the fact that the light did not respect the required angle. 43) Mr.

Cadieux did a visit of the property on July 3 rd , 2014. 44) He did an inspection at nighttime. 45) Mr. Cadieux noticed that the angle of the light was respected.

46) He testified that the light was projected in front of the property of Ms. Finnigan. He however noticed that the light was not properly attached to the property. 47) Mr. Cadieux did an inspection at Ms. Finnigan’s place on April 25 th , 2017. 48) He noticed two lights installed on the front balcony. 49) One of the lights was very strong and blinding. It was shedding light on the public road. 50) Mr. Cadieux took a picture of the two lights. He circled them with a pink circle. The picture was filed as exhibit D-18. 51) Mr. Cadieux was shown another picture.

He made a pink circle around the powerful blinding light. The picture was filed as exhibit D-19. 52) Mr. Cadieux was asked if the light on picture D-19 could be moved. 53) He said there is no mention in his report that this light could be moved. 54) However, he said that visually it seemed that this light’s angle could be modified. 55) He testified that during his discussions with Ms. Finnigan, he asked her not to use the light that we see with a circle on exhibit D-19. 56) Mr. Cadieux told Ms. Finnigan that he could issue a statement of offence. 57) He said that afterwards, it seems that Ms.

Finnigan no longer used that light. 58) He was asked if he remembered a complaint by Mr. Kirby on August 7, 2014. He said no. 59) He was referred to a document. He said it’s an intervention report for an offence. 60) He testified that Mr. Kirby was the complainant and that the subject of the complaint was the external light. 61) Mr. Cadieux was asked what he did with that complaint. 62) He consulted his report. He said that he did an inspection at Ms. Finnigan’s property. He noticed that Ms. Finnigan was using another source of light that was not attached to the house.

It was a very strong light. 63) He said that if you look at the light, you would be completely blinded. 64) Mr. Cadieux asked Ms. Finnigan to no longer use this light. 65) It was suggested that the complaints from Mr. Kirby with respect to the lights and the septic tank were over a period to 2 to 2½ years. 66) Mr. Cadieux said, according to the report, yes. 67) Ms. Finnigan’s light that shed light on the road was not a source of complaint. It was the light pointing towards Mr.

Kirby’s house that led to complaints. 68) He agreed that except for one light, all the lights were towards the public road. 69) It was suggested to Mr. Cadieux that he never gave a statement of offence to Ms. Finnigan for the lights. 70) He said if he recalls correctly, it is quite possible that there were no statement of offence issued for the lights. 71) Mr. Cadieux agreed that one time, he had to intervene in urgency following a complaint by Mr. Kirby regarding Ms. Finnigan pumping her septic tank into a stream. 72) When he arrived, there was no pumping of the sewage.

He said there was no indication that the owner had emptied her septic tank. 73) He was asked

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