Northern Ont. man acquitted of murder on James Bay coast

Gilbert Tomagatick Sr. died Oct. 2, 2021 at age 58. (Supplied)

A northern Ontario family is devastated after a jury found a Moose Factory man not guilty of a 2021 murder.

Otis Faries, 34, was acquitted April 10 at the Cochrane courthouse following a trial that lasted nearly three weeks and revealed there was much more to the story.

Faries was 31 years old when he was charged with first-degree murder in connection with the death of 58-year-old Gilbert Tomagatick in the small James Bay coast community of Moose Factory.

Nishnawbe-Aski Police found Tomagatick on Oct. 2, 2021, around 4:15 p.m. at a home on Sakabuskum Road with serious injuries after having been assaulted, Ontario Provincial Police said in a news release days after it happened.

Police said he was taken to hospital and later died of his injuries.

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A copy of the indictment obtained by CTVNewsNorthernOntario.ca shows the charge against Faries was lowered to second-degree murder Jan. 17, 2023.

"I feel like I've been punched in the face," the victim's son, Gilbert Tomagatick Jr., told CTV News in a phone interview Friday following the verdict.

"I feel so angry."

Allegations of child luring

The victim's son said his father had been out all that day looking for "a fix" for his fentanyl addiction when an altercation escalated into accusations.

The day the assault took place, a complaint was made to police about the victim involving the alleged luring of a child, the court heard.

"In its closing address, the Crown suggested to the jury that the accused was angry and frustrated when interacting with the police, while they were investigating," defence attorney Sharon Sabourin said in a news release.

Tomagatick Jr. said his dad was "half cut" when he left to do his laundry around 4 p.m., right before the assault.

He said his father's addiction started with drinking after losing his wife in 2002 and then escalated into drugs after his sister died in 2016.

What police didn't say

There were a few key things that happened between the time of the assault and the time of death that were not mentioned in the original police news releases.

First, was when Tomagatick Sr. was taken to the hospital, he displayed signs of intoxication and was unable to sit still for a CT scan, so he was released without having the imaging test.

A little while later, he was arrested by NAPS for public intoxication at the baseball field and taken to jail.

"The officer testified that he had no intention of charging him, he was just doing this to try to get him somewhere he wouldn’t be getting in any more trouble, and for his own safety," Sabourin said.

Evidence from the civilian guard who supervised the victim in his cell for about five hours was read in court from the preliminary inquiry transcript.

A copy of the prisoner's report obtained by CTV News states Tomagatick Sr. was put in Cell 2 just after 7 p.m. and asked for an ambulance around 8 p.m. saying his rib was sore.

Minutes later, he fell off the bed and hit his head, the report said, followed by hitting his head twice on the door around 8:11 p.m.

Tomagatick Sr. then spent about 20 minutes kicking the wall and hitting the floor before appearing to fall asleep by the door.

The prisoner report notes he was lying on the floor and snoring loudly from 10 p.m. to about midnight.

At 12:14 a.m., the report noted blood on the floor of the jail cell, followed by EMS being called.

Tomagatick Jr. said the family was called to his dad's deathbed at the hospital to say their final goodbyes around 1 a.m.

"There was a forensic pathologist, Dr. Kona Williams, who testified at the trial and prepared a post-mortem report. Her findings were that the deceased died from blunt force impact," Sabourin said.

"There is an active complaint with the professional standards bureau of NAPS, which has been referred out for external investigation by Krista Kempster, a retired police officer who works as a senior investigator with Investigative Solutions Network Inc."

CTV News reached out to the Nishnawbe Aski Police Service for comment and was directed to the Ontario Provincial Police. 

OPP has not responded to a request for comment.

"As this matter is within the appeal period, it would be inappropriate to comment," a spokesperson for the Ministry of the Attorney General told CTV News in an email.

Homicide acquittals rare

Sabourin told CTV News in an email that homicide acquittals are rare in Canada.

"Statistics Canada reports only 49 cases of adult homicide -- first-degree murder, second-degree murder, manslaughter and infanticide -- resulted in an acquittal in Canada in a five-year period between 2017/2018 and 2021/2022," she said.

"In Ontario, that number drops to three acquittals in adult homicide cases over the same five-year time period and compared to the 438 decisions rendered in homicide cases."

Hardworking father

Tomagatick Jr. said after his mother died, his dad had to play both parental roles for his three sons – two of whom were little when she passed.

The father worked three jobs to support his kids, including being a security guard, community support worker and fighting forest fires, he said.

Now the eldest son said he is trying to step into his father's shoes and be a father figure to his two younger brothers and bring stability to their lives.