THUNDER BAY -- Emotions ran high outside a Thunder Bay courtroom after a judge found Dustin Moffatt not guilty of charges relating to an attack on two teens that resulted in the death of 16-year-old Kody Furioso.
Family members and supporters of both Furioso and Moffatt had to be separated by several Thunder Bay Police Service officers and special courthouse constables outside the courtroom, following the reading of Justice Bruce Fitzpatrick’s decision on Wednesday afternoon.
The confrontation between Moffatt and others continued outside the courthouse until he was led away from the area as police worked to de-escalate the situation.
The courtroom was full on Wednesday for Fitzpatrick’s decision, which followed a four-day trial in December where Moffatt pleaded not guilty to one count of second-degree murder and one count of aggravated assault.
The charges relate to an incident just after midnight on June 29, 2021 near the James Street Swing Bridge.
Furioso and a 17-year-old youth were confronted by an individual in the area and a fight ensued, resulting in Furioso being stabbed in the stomach and the other youth stabbed in the chest.
After fleeing the area on their bikes, Furioso collapsed under the James Street underpass. He was transported to the Thunder Bay Regional Health Sciences Centre but died from his injuries. The other youth suffered a collapsed lung and was released several days later.
Police searching the area following the attack located Moffatt unconscious near the bridge and he appeared to be suffering an opioid overdose. He was transported to hospital for treatment and was charged later that day.
Fitzpatrick said that based on the totality of the evidence, the Crown failed to prove beyond a reasonable doubt that Moffatt was the one who stabbed the two teens that night.
“This was a true tragedy,” Fitzpatrick said.
“I offer my condolences to Kody’s family for what happened. They have had to relive it through this court process. There is no question they have suffered a horrific loss. Words cannot adequately describe it.”
During the trial, the Crown called 10 witnesses to testify, including the 17-year-old youth who was stabbed. It also presented numerous surveillance videos that showed events leading up to the fight and the stabbing itself.
Fitzpatrick said that while he found all witnesses who testified to be credible, he could not accept all of what they said as reliable.
“This is a case where what happened and when it happened matter to my deliberations concerning the central issue in this case,” he said. “The parties attempted to piece together the chronology of what took place that night through video evidence.”
According to Fitzpatrick, there were quantitative and qualitive issues with the video evidence, but he said it was of great assistance to him in reaching his decision.
The decision came down to whether or not the Crown proved beyond a reasonable doubt that, what Fitzpatrick referred to as ‘the man in black’ seen in the stabbing video, was in fact Moffatt.
Fitzpatrick did not believe it was and he cited what he called a very persuasive submission by defence counsel Alison Craig to focus in the video on the area where Moffatt was later found unconscious by police.
“When I focus my attention on this area during the stabbing, there appears to be two small white dots captured in the video,” he said. “Upon very close observance, the dots appear at the very beginning of the stabbing video. When watching that spot in the video in the entirety, they appear to be there the whole time.”
These white dots, Fitzpatrick determined, were light reflecting off Caucasian skin tones. He also said he could see what appeared to be the faint outline of a body lying on the ground.
“Based on this evidence, I conclude that Mr. Moffatt did not participate in the fight,” Fitzpatrick said. “I find that he was lying on the ground when the fighting was occurring, well away from the area where the man in black stabbed the two youth.”
The video evidence also showed Moffatt arriving to the area with another unknown individual earlier in the evening. That individual is then seen again leaving the area on a bike after the fight took place.
“The Crown submitted this individual was just a person who happened to ride on the scene,” Fitzpatrick said. “I disagree based on my review of the totality of the video evidence.”
There is a 10-minute gap in the video evidence and Fitzpatrick said it is reasonable to conclude that the individual riding the bike returned to the scene in that time and subsequently fought the two teens while Moffatt was already unconscious.
“Quickly leaving the crime scene seems like a more logical reaction after having stabbed two people, rather than what would have been - walking back to the darkness, taking off a long sleeve coat, disposing of a knife, and overdosing on fentanyl in the open where two teens were just stabbed,” Fitzpatrick said.
“For the reasons set out above I find that during this trial, for the two counts on the indictment, the Crown has not proven its case beyond a reasonable doubt.”
Fitzpatrick found Moffatt not guilty of the charges. An additional charge of breaching a probation order was marked withdrawn by the Crown.
