Court File and Parties
Date: August 16, 2018
Court File No.: 16-12621
Ontario Court of Justice
Between:
Her Majesty the Queen
— And
Alexander Wielgosz
Trial held before: Justice Paul F. Monahan
Heard on: October 30, 31, November 3, 7, 8, December 11, 12, 18, 2017, January 22, 2018, June 18, 19, 2018 and July 4, 2018
Reasons for Decision on the Trial Proper Released on: August 16, 2018
Counsel:
- J. Graham, for the Crown
- N. Gregson, for the defendant
MONAHAN J.:
Introduction and Overview
[1] Mr. Alexander Wielgosz is charged with one count of attempted murder, two counts of aggravated assault, two counts of weapons dangerous, breach of probation and breach of recognizance. The allegations relate to events alleged to have occurred on or about October 10, 2016.
[2] This trial has been a lengthy one and has taken place over many months. Much of the trial time related to a voluntariness voir dire and I delivered separate reasons on June 18, 2018 in which I ruled that the Crown had not established the voluntariness of Mr. Wielgosz's videotaped statement beyond a reasonable doubt.
[3] There is no doubt that Mr. Wielgosz came into contact with Ms. Vala and Mr. Kraus on October 10, 2018 and that Mr. Wielgosz was armed with a knife. Mr. Wielgosz says that Ms. Vala accidentally cut herself on the knife he was holding and that, in any event, he did not cause the injuries she suffered to her head and neck/chest.
[4] On my view of the evidence there was nothing accidental about Mr. Wielgosz cutting Ms. Vala with the knife. The only issue with respect to their interaction is whether Mr. Wielgosz is guilty of attempted murder or aggravated assault. In my view, the question of whether Mr. Wielgosz is guilty of attempted murder or aggravated assault as concerns his attack on Ms. Vala is the central issue in this case. For the reasons set out below I have concluded that the Crown has not proved beyond a reasonable doubt that Mr. Wielgosz is guilty of attempted murder as concerns Ms. Vala. My conclusion in this regard rests on my view of the evidence that the specific intent to kill Ms. Vala is not the only reasonable or rational inference to be drawn from the whole of the evidence including the circumstantial evidence. I have concluded that Mr. Wielgosz is guilty of aggravated assault as concerns his attack on Ms. Vala.
[5] As concerns Mr. Kraus, Mr. Wielgosz says that he was acting in self-defence when he slashed/stabbed Mr. Kraus in the neck as he says that Mr. Kraus was holding what appeared to be a handgun in his hand. For the reasons set out below, on my view of the evidence, Mr. Wielgosz was not acting in self-defence with respect to his actions against Mr. Kraus and is guilty of aggravated assault on Mr. Kraus.
[6] For the reasons set out below, I have also concluded that Mr. Wielgosz is guilty of two counts of weapons dangerous as well as one count of breach of recognizance but that he is not guilty of breach of probation.
Overview of the Evidence
[7] I am not going to detail all of the evidence the court heard in the course of this trial. I have considered all of that evidence in arriving at my judgment in this case. Having said that, I will give a brief overview of the evidence of four key witnesses: Peter Kraus, Kathy Vala, Robert Vala and Mr. Wielgosz.
Peter Kraus
[8] Peter Kraus was approximately 49 years old time of the events in question on October 10, 2016. That day was the holiday Monday of the Thanksgiving weekend. He was watching television with his spouse and his father-in-law when the doorbell rang at about 9:20 PM. There was a strange man at the door. The evidence clearly establishes that the man was the defendant Mr. Wielgosz. Mr. Wielgosz asked twice whether "Kathy" was there. Mr. Kraus understood him to be asking about his neighbour, Ms. Katica "Kathy" Vala, who lived a few doors down and whose house looked very similar to Mr. Kraus' house. Both had an enclosed vestibule attached to the front of the house leading to the front door. Mr. Kraus told the man that Kathy lived two doors down.
[9] Mr. Kraus testified that the man looked "scruffy" with facial hair that was not well kept. He said the man was disoriented and appeared to be intoxicated although Mr. Kraus smelled no alcohol coming from the man.
[10] The man left and Mr. Kraus closed the door. Mr. Kraus then went outside to put the garbage out for pick up the next morning. While he was in the process of putting out the garbage he heard Kathy Vala screaming for help. She said she wanted someone to call the police.
[11] Mr. Kraus saw the man who had knocked on his door only minutes before. He was walking away from Ms. Vala's house past Mr. Kraus's house. Mr. Kraus went after him and tried to grab him. At about the same time, Mr. Kraus heard another neighbour (Daniel Deschamps) call out words to the effect "watch out he has a gun". I note that Mr. Deschamps was mistaken and Mr. Wielgosz did not have a gun. He had a knife. In any event, fearing that the man did have a gun, Mr. Kraus knelt down behind a parked car. When he didn't hear anything he stood up to see what was going on. At that time, the man (Mr. Wielgosz) was right there. He came towards Mr. Kraus and he swung at him as if he was attempting to punch Mr. Kraus but Mr. Kraus did not feel the impact so he thought Mr. Wielgosz had missed. He did not see anything in Mr. Wielgosz's hand. Mr. Kraus then felt his neck. He had been cut and was bleeding. He ran towards his house and said to his wife "I think I have been stabbed".
[12] Mr. Kraus took off his own shirt and wrapped it around his neck. Mr. Kraus showed little concern for his own well-being. He was concerned about his neighbour, Ms. Vala. Mr. Kraus' spouse, Julia, knew first aid and she and other neighbours went to help Ms. Vala at the urging of Mr. Kraus. When the police arrived Mr. Kraus sought no help for himself and again directed the police to Ms. Vala.
[13] Paramedics did ultimately attend to Mr. Kraus and he was taken to the hospital. He had a wound to his neck starting at the bottom of his earlobe which continued almost to his Adams Apple. There were injuries to the muscles and nerves in his neck. He needed 14 stitches to close the wound. There was such damage to Mr. Kraus's neck that his neck was numb and, as of the time of his testimony in October 2017, that numbness has continued and was worse than it had been.
Katica Vala
[14] Ms. Vala was 57 years old on October 10, 2017. She was living in a house on Bonnymede in the City of Mississauga. She knows the accused Mr. Wielgosz. He was a friend of both of her sons, Robert and Stephen. Her sons are both in their mid-thirties and I take Mr. Wielgosz to be about the same age. Her sons and Mr. Wielgosz had been friends since they were about thirteen years old.
[15] Ms. Vala used to live in Port Credit on a street called Maple Avenue North and that is where her ex-husband and sons now live. She was asked if the defendant had been to the current house on Bonnymede and she said maybe twice within the last 3 or 4 years. He had been in the house on Maple Avenue many times.
[16] Ms. Vala testified that on October 10, 2017 in the evening the doorbell rang. She answered it and it was Mr. Wielgosz. Her house has a small vestibule enclosure attached to the front of the house and that leads to the door to the house and Mr. Wielgosz was in that vestibule.
[17] Mr. Wielgosz was not clean. He was wearing a black hoodie and had facial hair which was not a beard. Mr. Wielgosz said to Ms. Vala "can I come in Miss?" He always called her "Miss". She said that he could not come in as she was getting ready for bed. She said she did not smell alcohol on him. She said he did not seem normal and was different than how she had seen him in the past.
[18] Ms. Vala heard a click. She saw the blade of a knife which had a handle which was in the hand of Mr. Wielgosz. The blade was shiny. He grabbed the back of her head on her right side with his left hand and he stabbed her with the knife on the left side of her head.
[19] Ms. Vala is not a large woman. She was standing at the door entrance to her house. There is a step up to the house such that where Ms. Vala was standing was about 17 inches higher than the ground which Mr. Wielgosz was standing on. They were physically very close such that she could reach out and touch him. After he stabbed her in the head, he stabbed her again. She said that he went for her neck or chest area. The photographs show a wound in the area of her collar bone or upper chest area. She doesn't know what he was aiming for when he stabbed her in the neck/upper chest area. When he stabbed her in the neck/upper chest area, she grabbed the blade of the knife with her right hand. She said that if she had not done so she thinks that probably the knife would have gone right through her neck. She pushed him out of the way. She said she did not think that he was still holding her head when he stabbed her in the neck/upper chest area.
[20] Ms. Vala was able to push Mr. Wielgosz back and get past him and out of the vestibule enclosure. He followed her out. Ms. Vala had video surveillance on her house. The quality of the video is poor but Ms. Vala identified Mr. Wielgosz going into the screen porch when he first arrived at the house and she identified herself coming out followed by Mr. Wielgosz who appears momentarily confused and goes back in briefly and then comes back out.
[21] Ms. Vala suffered injuries to her hand, her head and her neck/upper chest area. Not surprisingly, the injuries she suffered at the hands of Mr. Wielgosz have had significant physical and emotional repercussions for her. She was ultimately taken to hospital on October 10 and released on October 11. She received stitches for her injuries (her head, neck and hand) but she did not know how many. The injury to her hand caused by her defending herself by grabbing the knife by the blade was the most severe and has required more than one surgery. The injury to her neck/upper chest area became infected. She said that the injury to her head healed the best of her injuries. Ms. Vala identified photos of her injuries which were marked as exhibits at trial. No medical records concerning her injuries were introduced into evidence.
Robert Vala
[22] Robert Vala is the son of Kathy Vala. He was born in 1982. He lives with his father and his brother on Maple Avenue at a house nearby to his mother's house. He testified that he and Mr. Wielgosz had been friends since they were 12 or 13 years old. He testified that Mr. Wielgosz had been over at his father's house a couple of days before October 10, 2016. He said Mr. Wielgosz was screaming and talking nonsense and was "out of it". He said he was talking about a man he met in prison who had killed 50 people and Mr. Wielgosz thought he was cool. He said that Mr. Wielgosz was behaving like a "lunatic" and that he had not seen him act that way before. Robert Vala asked Mr. Wielgosz to leave 20 times before he finally did. Mr. Vala was getting ready to leave the house but he didn't want to leave Mr. Wielgosz with Mr. Vala's father. Eventually, Mr. Wielgosz did leave.
Alexander Wielgosz
[23] Mr. Wielgosz testified in his own defence. His was the only evidence tendered by the defence. He said that he had been friends with Robert "Robbie" Vala since they were children in about grade 8. He said that he had seen Robbie a few days before October 10, 2016 at Robbie's father's house on Maple Avenue. He said they had a lengthy talk about everything: from "beefs" in high school, political views and relationships to the police and more. He said that he had heard that Robbie had previously said that Mr. Wielgosz had "ratted people out" during a recent jail stay by Mr. Wielgosz for matters unrelated to the case at bar. Mr. Wielgosz said he wanted to explain to Robbie that he had not ratted anybody out. He denied telling Robbie that he had known someone in jail who killed 50 people. He said that Robbie had "totally snuffed him away" that day. Robbie had brushed him off, according to Mr. Wielgosz.
[24] Mr. Wielgosz said that he had gone to Robbie's mother's house on October 10. He said he was angry and frustrated that he had awoken in an alley the night before with cuts on his face and he did know how he got there. He suspected that Robbie was the culprit or at least knew something about it.
[25] He gave conflicting evidence as to why he went to Ms. Vala's house on October 10. On the one hand, he agreed that one of the reasons he went to Ms. Vala's house was that he wanted to confront Ms. Vala about how she and Robbie had disrespected him.
[26] On the other hand, Mr. Wielgosz also said he was going to Ms. Vala's house to see Robbie that night and he said he was also looking for Robbie's brother Steve or Robbie's mother or father or the police to see if they were going to help him figure out about him waking up in the alley the night before. He said he had been smoking cigarettes and drinking alcohol at his home beforehand. He also said he went to Ms. Vala's home to "see if Robbie was home". He had no explanation as to why he had asked for Kathy at Mr. Kraus's house when he was actually looking for Robbie.
[27] He agreed that he had first gone to Mr. Kraus' house by accident. When Mr. Kraus answered the door he thought that he was in the "twilight zone".
[28] He said that when he arrived at Ms. Vala's house, he encountered her in the driveway. She was coming from the backyard. He said that she used a voice that he thought was making fun of him. He said she effectively invited him in the house by holding the door open to the vestibule enclosure.
[29] Mr. Wielgosz was played the video surveillance from Ms. Vala's house and he initially acknowledged himself on the video entering the vestibule enclosure. When it was pointed out to him that there was no video of Ms. Vala holding the door open for him and them entering together with him going first, he said it might not be him on the video.
[30] He said that when Ms. Vala was in front of him in the vestibule he took out a knife and put it towards her neck. He did know why he did that. He said that she hurt herself on the knife by accident. He also said she was a heavyset woman who could have overpowered him. He said she hit him and pushed him.
[31] When shown a photograph of Ms. Vala's injuries he said that he had not caused them. When he was pressed in cross-examination about the injuries to Ms. Vala's neck and head and the suggestion that they were accidental he said he could not say if he had caused them. He said "I would say I did not do it".
[32] He said that when he left the house he was confronted by Mr. Kraus who had what looked like a handgun in his hand. He didn't know if it was a real gun but he said it looked like it was. He said that he did not remember the detail of his encounter with Mr. Kraus until after Mr. Kraus testified at trial and that Mr. Kraus' testimony effectively refreshed Mr. Wielgosz's memory. He said that he had stabbed to Mr. Kraus in the neck with a knife in self-defence as Mr. Kraus had what he believed to be a gun.
[33] He said that the knife he had with him was a small paring knife from his parents' house. He said he took it with him for self-protection. He said that he knew the knife that Ms. Vala was talking about in her testimony. He said that it was a "cool" knife but that it wasn't the knife he had with him that night.
[34] He denied trying to kill either Ms. Vala or Mr. Kraus.
Determination of Contested Facts and Related Issues
[35] There is obviously a conflict on the evidence as between Mr. Wielgosz's version of events and the version of events outlined by the other witnesses and in particular Ms. Vala and Mr. Kraus. I must determine the contested facts in accordance with the principles in R v. W. (D.), [1991] 1 S.C.R. 742 at para. 28. The onus of proving all of the elements of each offence beyond a reasonable doubt remains on the Crown throughout and the defence has no onus of proof and no obligation to prove anything. In a WD case involving self-defence the law is set out in R. v. Reid (2003), 65 O.R. (3d) 723 (C.A.).
[36] I fully accept the evidence of Mr. Kraus and Ms. Vala as to what happened on the evening of October 10, 2016. I also accept the evidence of Robert Vala as to the substance of his encounter with Mr. Wielgosz a few days before October 10. I do not accept most of what Mr. Wielgosz said happened in his interactions with Ms. Vala and Mr. Kraus on the evening of October 10 and I do not have a reasonable doubt about it. I do accept that Mr. Wielgosz is correct when he said that he armed himself with a knife and went to Mr. Kraus's house by accident and then on to Ms. Vala's house.
[37] I have concluded that Mr. Wielgosz's evidence as concerns his encounters with Mr. Kraus and Ms. Vala is mostly unreliable. In my view, parts of his testimony are him intentionally lying and other parts may be him being delusional in his recollection of events or in how he experienced the events at the time or he may simply be mistaken in his recollection of some of the events. Where possible, I have set out when I say I consider that Mr. Wielgosz is being untruthful in his evidence.
[38] There is evidence from a number of fact witnesses to suggest that Mr. Wielgosz may have been suffering from a mental impairment during his encounters with Mr. Kraus and Ms. Vala. The evidence is by no means conclusive and there was no medical evidence tendered in the case so I cannot say with sufficient certainty if he was suffering from a mental impairment and, if so, what kind of mental impairment he may have been suffering from. Mr. Robert Vala said that Mr. Wielgosz was screaming and talking nonsense a couple of days before the October 10 events. Mr. Vala said Mr. Wielgosz was "out of it" and was behaving like a "lunatic" and that he was afraid to leave him alone with Mr. Vala's father. Mr. Kraus confirms that Mr. Wielgosz appeared disoriented and intoxicated when he came to his door on October 10. Ms. Vala said Mr. Wielgosz was not clean and did not seem normal when he came to her door on October 10.
[39] There was no submission by the defence or the Crown that Mr. Wielgosz was not criminally responsible for his actions. However, the defence does submit that the evidence is such that there is a reasonable doubt as to whether Mr. Wielgosz could form the specific intent required for the charge of attempted murder vis-à-vis Ms. Vala. Further, Mr. Wielgosz's mental state at the time of the events may have some bearing on whether he is lying or delusional or both in his trial testimony.
[40] Returning to the subject of the reliability of the evidence of Mr. Wielgosz, there are a number of reasons why I say that his testimony is unreliable and in some cases, incredible. First, his evidence conflicts with the evidence of Ms. Vala and Mr. Kraus as concerns his interactions with them. I found both of them to be entirely credible witnesses who were careful and fair with their evidence. The evidence of both of Ms. Vala and Mr. Kraus made logical coherent sense in the context of the evidence as a whole whereas much of the evidence of Mr. Wielgosz made little sense in the context of the whole of the evidence and I have no reasonable doubt about it. Although it is not required, the evidence of Ms. Vala and Mr. Kraus finds significant corroboration with the objective facts. For example, Ms. Vala's injuries accord with her evidence as to what occurred with Mr. Wielgosz and conflict with Mr. Wielgosz's evidence. Further, while I understand and appreciate that the defence does not have to prove a motive to lie by a complainant, I am fully satisfied that neither of Mr. Kraus or Ms. Vala has any motive to lie about the actions of Mr. Wielgosz. The videotape of Mr. Wielgosz entering the vestibule at her house also corroborates Ms. Vala's evidence and conflicts with Mr. Wielgosz's evidence. Mr. Wielgosz's evidence that he took a knife out for some unknown reason and that Ms. Vala accidentally hurt herself on his knife makes no sense. The same is true of Mr. Wielgosz's evidence that he first encountered Ms. Vala outside and that she opened the vestibule door for him. This did not happen. It is contrary to the videotape evidence as well as the evidence of Ms. Vala.
[41] In my view, significant parts of Mr. Wielgosz's evidence of his encounter with Ms. Vala are fabricated. I say that because his evidence concerning his interaction with Ms. Vala was tentative, contradictory and changed as he testified and made no sense in the context of the evidence as a whole. For example, Mr. Wielgosz had no explanation for the injuries suffered by Ms. Vala and said he did not cause them. However, when pressed in cross examination he seemed to acknowledge that he may have caused them but then ultimately said that he did not cause them. Similarly, he acknowledged himself on the video surveillance but when confronted with the fact that the video ran contrary to his evidence that he met Ms. Vala in the driveway, he said that maybe it was not him on the video. His evidence that he took out a knife for some unknown reason and that Ms. Vala somehow accidently cut herself on it made no sense and it was clear to me that even Mr. Wielgosz did not believe it.
[42] Second, a related point is that Mr. Wielgosz is incorrect when he says Mr. Kraus had a handgun or something that looked like a handgun. Mr. Kraus did not have a handgun or anything that looked like a handgun. He was putting out the garbage and was wearing his slippers. There is no way that he had a handgun with him. He said that he does not own a handgun or a replica handgun and I belief him in this regard. I note as well that Mr. Wielgosz said had no memory of the events that led to Mr. Kraus being cut in the neck with the knife held by Mr. Wielgosz until after Mr. Kraus he testified. Mr. Kraus did not have a gun and I don't believe Mr. Wielgosz when he says he now recalls that he did. I have also considered the possibility that Mr. Wielgosz was simple mistaken or was operating under a delusion at the time of his interaction with Mr. Kraus such that Mr. Wielgosz thought Mr. Kraus had a gun when he really did not. I do not believe that to be the case. Mr. Wielgosz did not remember any of his self-defence evidence until Mr. Kraus testified and then he purported to recall it in great detail and in a manner that was contrary to Mr. Kraus' testimony which had allegedly refreshed Mr. Wielgosz's memory in the first place. It is absolutely plain that Mr. Wielgosz went after Mr. Kraus as Mr. Kraus hid behind a car. This is completely contrary to Mr. Wielgosz's testimony at trial that Mr. Kraus came after him with a handgun in his hand. Mr. Wielgosz has fabricated this evidence in my view.
[43] The events transpired as Ms. Vala and Mr. Kraus said they did. Mr. Wielgosz committed an unprovoked attack on Ms. Vala. As concerns Mr. Kraus, Mr. Wielgosz also assaulted him the moment he had a sense that Mr. Kraus was coming after Mr. Wielgosz. Mr. Wielgosz went back to get Mr. Kraus when Mr. Kraus was hiding behind a car as he thought that Mr. Wielgosz had a gun. Mr. Wielgosz slashed him in the neck with the knife. He was not acting in self-defence. There is no air of reality to the self defence argument and even if there was I have concluded that the Crown has established beyond a reasonable doubt that Mr. Wielgosz did not act in self-defence when he intentionally slashed Mr. Kraus in the neck with the knife.
[44] With these findings of fact and related determinations in mind, the following issues arise for consideration in this case:
Issue 1 - Is Mr. Wielgosz guilty of the attempted murder of Ms. Vala? If he is not guilty of attempted murder, is he guilty of the aggravated assault of Ms. Vala?
Issue 2 - Is Mr. Wielgosz guilty of the aggravated assault of Mr. Kraus?
Issue 3 - Is Mr. Wielgosz guilty of two counts of possession of a weapon for a purpose dangerous to the public peace? Is he also guilty of breach of recognizance?
Issue 4 - Is Mr. Wielgosz guilty of breach of probation?
[45] I will consider each issue in turn.
Issue 1 - Is Mr. Wielgosz guilty of the attempted murder of Ms. Vala? If he is not guilty of attempted murder, is he guilty of the aggravated assault of Ms. Vala?
Introduction
[46] While there are a number of issues in this case, as I have indicated above, on my view of the evidence and the submissions of counsel, the central issue in the case is whether Mr. Wielgosz is guilty of the attempted murder of Ms. Vala or, in the alternative, whether he is guilty of the aggravated assault of her.
Law
[47] In order to prove an attempt murder charge, the Crown must establish beyond a reasonable doubt that Mr. Wielgosz had a specific intent to kill Ms. Vala. It is not sufficient for an attempted murder charge for the Crown to prove only that Mr. Wielgosz intended to cause bodily harm to Ms. Vala that he knew was likely to cause death and was reckless as to whether death ensued or not: R. v. Ancio (1984), 10 C.C.C. (3d) 385 (S.C.C.) at pages 402-04.
[48] In this case, there is no direct evidence of a specific intent to kill Ms. Vala. Accordingly, the finding of a specific intent to kill must be drawn, if it can be, from the circumstantial evidence. When dealing with a circumstantial evidence case, the trier of fact must be satisfied that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty. The evidence must be considered as a whole and the existence of any rational non-guilty inference is sufficient to raise a reasonable doubt: R. v. Roks (2011), 2011 ONCA 526, 274 C.C.C.(3d) 1 (C.A.) at para 142 citing R. v. Griffin, 2009 SCC 28, [2009] 2 S.C.R. 42 at para 33; see also R. v. Amare, 2014 ONSC 4119, [2014] O.J. 5225 (Sup. Ct.) (per Hill J.) at para. 108 also citing R. v. Griffin, supra.
[49] It is the position of the Crown that Mr. Wielgosz is guilty of the attempted murder of Ms. Vala. In the alternative, the Crown submits that the charge of aggravated assault is made out beyond a reasonable doubt.
[50] It is the defence's position that Mr. Wielgosz is not guilty of attempted murder essentially for two reasons. First, the defence submits that there are other rational inferences to be drawn from the circumstantial evidence other than that Mr. Wielgosz had a specific intent to kill Ms. Vala. The defence submits that another reasonable inference is that Mr. Wielgosz intended to hurt Ms. Vala but not kill her. Second, the defence further submits that Mr. Wielgosz was of diminished capacity by virtue of a mental impairment and/or intoxication such that he could not form the specific intent to kill Ms. Vala.
[51] As concerns the aggravated assault charge on Ms. Vala, the defence relies on the evidence of Mr. Wielgosz to the effect that any injury caused to Ms. Vala was accidental. In my determination of the contested facts above, I have already concluded that the injuries caused to Ms. Vala by Mr. Wielgosz were not accidental and I have rejected Mr. Wielgosz's evidence in this regard. Accordingly, on my view of the evidence, if Mr. Wielgosz is not guilty of attempted murder, he is guilty of aggravated assault as concerns Ms. Vala.
[52] It is instructive to set out the relevant statutory provisions from the Criminal Code:
Attempts
24 (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
Marginal note: Question of law
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
Murder, Manslaughter and Infanticide
229. Culpable homicide is murder
(a) where the person who causes the death of a human being
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;
(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.
Attempt to commit murder
239 (1) Every person who attempts by any means to commit murder is guilty of an indictable offence and liable
(a) if a restricted firearm or prohibited firearm is used in the commission of the offence or if any firearm is used in the commission of the offence and the offence is committed for the benefit of, at the direction of, or in association with, a criminal organization, to imprisonment for life and to a minimum punishment of imprisonment for a term of
(i) in the case of a first offence, five years, and
(ii) in the case of a second or subsequent offence, seven years;
(a.1) in any other case where a firearm is used in the commission of the offence, to imprisonment for life and to a minimum punishment of imprisonment for a term of four years; and
(b) in any other case, to imprisonment for life.
[53] I have reviewed numerous cases dealing with, among other things, the factors to be considered in determining whether the circumstances of a particular case support an inference that the accused had a specific intent to kill: see for example R. v. Ancio, supra; R. v. Ryan, [2008] O.J. 3111 (O.C.J.); R. v. Odulate, [2001] O.J. No. 4029 (Sup. Ct.); R. v. Rajanayagum, [2001] O.J. No. 393 (Sup. Ct.); R. v. Martin, 2010 ONCA 256; R. v. Payne, [2013] O.J. No 3412 (Sup. Ct.); and R. v. Smith, [2007] O.J. No. 2587(Sup. Ct.).
[54] I agree with the observations of Justice A. Campbell in the case of Odulate, supra that where the court is dealing with circumstantial evidence in a stabbing case and is required to determine whether the defendant had a specific intent to kill the court should consider all of the circumstances including the following non-exhaustive list of factors: "the nature of the wound; the vital nature of the area wounded; the nature of the combat; the evidence or lack of evidence of premeditation or spontaneity or threat or plan; the presence or absence of evidence of defensive motivation [and] the persistence with which the stabbing is repeated or not" (see Odulate, supra at para 99).
[55] I would add to Justice Campbell's non-exhaustive list that the court should also consider as one factor the nature of the knife used in a stabbing case including the size of the knife. In this regard, I note that in R. v. Martin, 2010 ONCA 256, the Ontario Court of Appeal heard an appeal from a conviction for attempted murder. In upholding the conviction the Court noted at paras. 2 and 5, among other factors, that the accused had taken a 12 inch serrated bread knife from the kitchen and slashed the complainant in the neck, narrowly missing a major artery and causing a deep 12 centimeter wound. In R. v. Payne, [2013] O.J. No 3412 (Sup. Ct.) at para 23, the fact that a 10 inch knife was used was a factor in Justice Then's conclusion that the Provincial Court Judge erred by failing to commit the accused to stand trial for attempted murder. In R. v. Smith, [2007] O.J. No. 2587(Sup. Ct.), Justice Trafford dismissed a motion at trial for a directed verdict of not guilty of second-degree murder. In doing so, Justice Trafford noted at para. 31 that a 2 inch knife used in that case was not by design an "instrument of death" but found that it could also be used in a manner likely to cause serious bodily harm that was likely to cause death. Justice Trafford noted that in the case before him, the knife was held in a "rigid" manner and the wound severed the deceased's carotid artery and jugular vein.
Application of the Law to the Case at Bar
[56] In applying the foregoing law to the facts in this case I note as follows. As concerns the nature of the knife used, in this case there is no evidence from the Crown as to the size of the knife used. Ms. Vala heard a "click" just before Mr. Wielgosz stabbed her. She saw the blade of the knife but gave no evidence as to the size of the blade or the knife generally. Mr. Wielgosz said it was a small paring knife. I believe that Ms. Vala did hear a click and this would suggest that some sort of a switch blade was used but I cannot say what size the knife may have been. Mr. Wielgosz may be correct when he says that it was a small knife but given the concerns I have about the reliability of his evidence generally and his credibility, it is difficult to say. However, there is no evidence to contradict Mr. Wielgosz's evidence that it was a small knife. The photos of the injuries to Ms. Vala do not give any clarity as to the size of the knife used and there are no medical records which might shed any light on the depth of the wounds which might in turn give some indication of the size of the knife used. While there can be no doubt that even a small knife can be used to kill (see Smith supra), common sense would suggest that the larger the knife used to wound in a vital area of the body, the greater the risk of death. In this case, beyond the fact that any knife can be used to kill, the absence of any reliable and specific evidence about the size of the knife provides no assistance to the Crown in proving the specific intent to kill and, in my view, somewhat undermines the Crown's position.
[57] As concerns the location of the wounds, Ms. Vala spoke of an injury to her neck although she also referred to her collar bone. The photos show that the injury she was speaking of was in the area of her upper chest and collar bone area. In any event, it seems clear that the stab wound to Ms. Vala's neck/upper chest area was to a vital area of her body. As Justice Trafford observed in Smith, supra it is "common knowledge that the neck is a part of the body that is integral, and essential, to life". As concerns the stab wound to the head, the defence's submission is that one would not normally stab someone in the head in an attempt to kill them as common sense would suggest that the victim's skull will protect the person as it appears to have done in this case. Notwithstanding the heinous nature of the stab wound to Ms. Vala's head, I accept the defence's submission in this regard as being logical namely that one would not expect to kill someone by stabbing them in the side of the head beside the ear. I don't think that one can simply say, without medical evidence, that it is obvious that a stab wound to the head may well kill a person as Justice Trafford says about a stab wound to the neck in Smith, supra. However, the stab wound to Ms. Vala's head cannot be looked at in isolation as right after Mr. Wielgosz stabbed Ms. Vala in the head he immediately stabbed her in the neck/upper chest area which offers little protection from a knife attack. The main thing that appears to have provided protection to Ms. Vala in respect of the stab wound to her neck/upper chest area was that she grabbed the knife with her hand as Mr. Wielgosz stabbed her in the neck/upper chest. It appears from the photograph of this injury that Ms. Vala's collar bone may also have provided some protection to her. The bottom line on this point is that I cannot say that the stab wound to the head was likely to kill Ms. Vala and that this supports an inference that Mr. Wielgosz had a specific intent to kill. However, the stab wound to the area of her neck/upper chest could potentially have killed Ms. Vala.
[58] As concerns the number of wounds and the force used against Ms. Vala, in this case the wounds were to the head, the neck/upper chest and her hand. The stab wound to the hand was a defensive wound. The fact that there were two stab wounds (excluding the wound to the hand) in this case distinguishes it from a case like Odulate where there was only "a single impulsive stab to the abdomen". The stab wounds in this case appear to have been done with some force although I repeat that there are no medical records indicating anything about the wounds including their depth. Mr. Wielgosz held one side of her head as he stabbed her on the other side of her head. He does not appear to have done the same when he stabbed her in the neck/upper chest. However, it is my view that the only stab wound which could have potentially killed Ms. Vala was to her neck/upper chest so in that sense there is some similarity to the Odulate case. However, I don't believe the stabbing of Ms. Vala was spontaneous as the stabbing was in Odulate.
[59] As concerns the question of premeditation or spontaneity, it appears to me that the attack on Ms. Vala was premeditated. Mr. Wielgosz armed himself with the knife when he went to Ms. Vala's house. I reject his evidence that he had armed himself for protection. He was looking for Ms. Vala. When he went to Mr. Kraus's door he asked twice for Ms. Vala. Immediately thereafter he went to Ms. Vala's door and he stabbed her very shortly after speaking to her (when she declined to let him in her house). My view of the evidence is that Mr. Wielgosz was planning to attack Ms. Vala and he did so at the first available opportunity. He appears to have had some sort of animus against Ms. Vala connected to his friend "Robbie", Ms. Vala's son. He agreed that one of the reasons he went to Ms. Vala's house was that he wanted to confront Ms. Vala about how she and Robbie had disrespected him. Further, as concerns Ms. Vala he said at trial that "I don't like her. I don't like her physical appearance. I don't like her politics. I don't like the way she talks. I don't like what she says. I don't like how she says it. I don't like the woman she is. I don't like the way she keeps her house".
[60] I do note, importantly, that Mr. Wielgosz said nothing at the time of the stabbing that would shed any light on his intention with respect to whether or not he intended to kill Ms. Vala.
[61] On the question of persistence and pursuit, the two stabs at Ms. Vala indicate a degree of persistence on the part of Mr. Wielgosz. On the other hand, Ms. Vala ran out of the vestibule in front of him and, according to Ms. Vala she went to the base of the driveway. I estimate that Mr. Wielgosz was approximately in his mid-thirties at the time (about the same age as Robert Vala who was born in 1982), about six feet tall and slim. Ms. Vala is shorter and was about 57 years old at the time. Even though Mr. Wielgosz was younger, bigger and stronger than Ms. Vala and was armed with a knife which he used in his attack on her, Ms. Vala got past Mr. Wielgosz and out of the vestibule without him stopping her. In my view, it seems reasonably possible that Mr. Wielgosz could have prevented her from leaving the vestibule if he had wanted to. In addition, Mr. Wielgosz did not pursue her once they were outside even though he must have known where she was as he heard her yelling for someone to call the police. It may be that he was not prepared to continue to attack her in the presence of other neighbours who were coming out on the street in response to her calls. Having said that, he actively pursued Mr. Kraus once Mr. Kraus presented himself to him. He was quite prepared to stab Mr. Kraus in the neck with others nearby which would suggest to me that if he had wanted to kill Ms. Vala he would not or may not have been put off by the presence of others in close proximity to her.
[62] On the question of the presence or absence of defensive motivation, in this case there is no basis to suggest that Mr. Wielgosz was acting in a defensive manner. He was not. He committed an unprovoked attack on Ms. Vala. There was nothing defensive about it.
[63] I have considered all the evidence in this case including the factors which I have outlined above. In my view, one rational and available inference on the evidence is that Mr. Wielgosz intended to kill Ms. Vala. However, the question is this: is another rational and available inference that Mr. Wielgosz did not specifically intend to kill Ms. Vala but that in the words of s. 229 (a)(i) of the Code, that he meant to "cause her bodily harm that he knew was likely to cause [her] death and [was] reckless whether death [ensued] or not?" In my view, the answer to that question is yes. Still another rational inference is that he intended to cause her harm and did not care whether or not she died regardless of whether he knew his actions were likely to cause her death. I base these conclusions on a consideration of the evidence as a whole including the absence of reliable evidence concerning the size of the knife; the fact there was only one stab wound which could have potentially killed Ms. Vala (the one to her neck/upper chest); the absence of evidence concerning the depth of the wounds; the fact that nothing was said when he attacked her that would shed light on his intention; and the fact that he did not prevent her from leaving the vestibule after he stabbed her and he did not pursue her when she left the house when it seems to me to be reasonably possible that he could have.
[64] I recognize that the attack on Ms. Vala was vicious, unprovoked, premeditated and that Mr. Wielgosz had an animus towards her. I am very sympathetic to the serious injuries and trauma suffered by two entirely innocent people namely Ms. Vala and Mr. Kraus. I recognize and empathize with the fact that they have had their lives turned upside down by the pointless acts of violence inflicted on them by Mr. Wielgosz. However, my sympathy for the victims can't cloud my view of the objective facts. As I have already stated, the only rational and reasonable inference from the circumstantial evidence is not that Mr. Wielgosz had a specific intention to kill Ms. Vala. That is one available inference and perhaps the most probable inference. However, on my view of the evidence, other rational inferences are available namely that he intended to cause her bodily harm that he knew was likely to cause her death or that he simply intended to cause her bodily harm whether or not he knew it was likely to cause her death. The existence of these other potential rational inferences mean that Mr. Wielgosz is not guilty of the attempted murder of Ms. Vala but he is guilty of the aggravated assault of her.
Diminished Capacity, Mental Impairment and Intoxication
[65] As noted earlier, the defence submits that Mr. Wielgosz, by virtue of a mental impairment and/or his intoxication, was of diminished capacity and could not or did not form the specific intent to commit attempted murder. I note that aggravated assault has been held to be a general intent offence (see R. v. L. (S.R.) (1992), 76 C.C.C. (3d) 502 at para. 10) and the defence does not submit that such defences are available for a general intent offence at least in this case. I recognize that there may be cases in which there will be evidence of a mental impairment and/or intoxication that may undermine the Crown's ability to prove the mental element of a specific intent offence such as attempted murder. As concerns mental impairment and intoxication, this appears implicit in the Supreme Court of Canada's decision in R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438. See also Manning, Mewett and Sankoff, Criminal Law (5th edition) at paras. 11.83 to 11.95. As concerns intoxication in particular, see R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523 at paras. 41 to 43.
[66] I have ultimately concluded that the Crown has not established beyond a reasonable doubt that Mr. Wielgosz had the specific intent to kill Ms. Vala. As indicated, he may have had that intent but it is not the only rational inference on the evidence. In arriving at this conclusion I have relied upon my view of the facts as I have found them. My conclusions with respect to the attempted murder charge do not rely or depend upon any evidence or finding to the effect that Mr. Wielgosz was suffering from a possible mental impairment and/or intoxication such that he could not or did not form the requisite intent to kill Ms. Vala. It is my view based on the record before me that Mr. Wielgosz could have formed a specific intent to kill Ms. Vala and may well have but it has not been proved beyond a reasonable doubt.
[67] On the question of mental impairment, there is some evidence in this case that I have been over above that Mr. Wielgosz may have been suffering from some form of mental impairment during his interaction with Ms. Vala. The evidence is not conclusive and there is no medical evidence on the subject. Further, there is no evidence on this record that his possible mental impairment interfered with Mr. Wielgosz's ability to form a specific intent to kill. In my view there is a difference between saying on the one hand that a person has or may have a mental impairment and, on the other hand, saying that a person could not form the specific intent to kill. The Supreme Court reached a similar conclusion in Walle, supra at paras. 47, 48 and 85.
[68] In my view, on this record there is no air of reality to the defence of diminished capacity based on mental impairment. Even if it could be said that there was an air of reality to the diminished capacity based on mental impairment, Mr. Wielgosz's overall actions that night, including arming himself before going out; locating Ms. Vala and attacking her; the attack on Mr. Kraus when Mr. Kraus challenged him, his disposal of the knife and his escape from the scene all suggest to me that he could have formed a specific intent to kill Ms. Vala although I have ultimately concluded that this specific intent has not been proved beyond a reasonable doubt.
[69] On the subject of intoxication, Mr. Wielgosz said that he was "dead drunk", "blatto" and "blacked out" at the time of his interaction with Ms. Vala.
[70] I note that also I dealt with the subject of Mr. Wielgosz's intoxication in my reasons on the voluntariness voir dire but those findings do not apply on the trial proper as they were on a different record and included a consideration of evidence I ultimately ruled inadmissible on the trial proper. Further, those findings dealt with a different point in time namely at the police station after the incidents with Ms. Vala and Mr. Kraus.
[71] I accept that Mr. Wielgosz may have been drinking and may have been somewhat intoxicated during his interaction with Ms. Vala but I reject that he was in a state of "advanced intoxication" at that time (see Daley, supra at paras 41 to 43) which might give me a reasonable doubt about whether he could form the required mental element for attempted murder. The weight of evidence is otherwise. He had no trouble travelling on foot to Ms. Vala's house; speaking to Mr. Kraus and then locating Ms. Vala; stabbing her twice; pursuing Mr. Kraus after Mr. Kraus challenged him and then attacking Mr. Kraus; and then returning home on foot including by crossing a creek and by climbing over a 6 foot fence. The video of Ms. Vala's house is hard to make out. It shows Mr. Wielgosz entering the vestibule and leaving it after he had stabbed Ms. Vala and she had exited it. While it appears that he may be limping or unsteady when he first entered the vestibule, on a consideration of the whole of the evidence I do not have a reasonable doubt suggesting that he was somehow unable to form the specific intent to kill by virtue of intoxication.
[72] To summarize, I have concluded that the inference that Mr. Wielgosz intended to kill Ms. Vala is not the only rational one on this evidence. As explained, in arriving at this conclusion I have rejected the defence argument that Mr. Wielgosz's was suffering from a mental impairment and/or intoxication such that he could not form the specific intent to kill.
Issue 2 - Is Mr. Wielgosz guilty of the aggravated assault of Mr. Kraus?
[73] I am fully satisfied that Mr. Wielgosz is guilty of the aggravated assault of Mr. Kraus contrary section 268 (1) of the Code. His only defence to this charge is his evidence that he saw or thought he saw a gun in Mr. Kraus' hand and that Mr. Wielgosz acted in self-defence. I have applied the law of WD in the self-defence context as set out in R. v. Reid (2003), 65 O.R. (3d) 723. In my review of the contested facts set out above, I have already found that Mr. Wielgosz assaulted Mr. Kraus the moment he had a sense that Mr. Kraus was coming after Mr. Wielgosz. Mr. Wielgosz went back to get Mr. Kraus when Mr. Kraus was hiding behind a car as he thought that Mr. Wielgosz had a gun. Mr. Wielgosz slashed him in the neck with the knife. I have also already found that Mr. Wielgosz did not see a gun in Mr. Kraus's hand nor did mistakenly think he saw a gun in Mr. Kraus' hand and there is no reasonable doubt about it. The law of self-defence provides no defence on the facts as I have found them.
Issue 3 - Is Mr. Wielgosz guilty of two counts of possession of a weapon for a purpose dangerous to the public peace? Is he also guilty of breach of recognizance?
[74] Mr. Wielgosz is charged with two counts of weapons dangerous contrary to section 88(1) of the Code. He is also charged with breach of recognizance as he was bound by a recognizance not to possess any weapons.
[75] Proof of a weapons dangerous charge requires proof beyond a reasonable doubt that the defendant possessed a weapon and that he did so for a purpose that was dangerous to the public peace. The purpose for which the person had possession of the weapon must be determined at the instant of time that precedes its use: see Henein, Martin's Criminal Code 2018 at page 200.
[76] There were no submissions on this charge from counsel during final argument. It would appear that Mr. Wielgosz is charged with the weapons dangerous charge for his possession of the knife for the instant prior to his aggravated assault on Ms. Vala and for his possession of the knife for the instant prior to his assault of Mr. Kraus.
[77] Mr. Wielgosz said that he was only carrying the knife with him for self-protection. I have rejected this evidence and found that he armed himself with the knife when he left his home that night and went to confront Ms. Vala and attack her with the knife. In my view, on the facts as I have found them Mr. Wielgosz is guilty of the weapons dangerous charge as concerns his possession of the knife immediately prior to the aggravated assault on Ms. Vala.
[78] Further, Mr. Wielgosz is guilty of a further weapons dangerous charge for his possession of the knife immediately prior to his aggravated assault on Mr. Kraus.
[79] Mr. Wielgosz is also guilty of breach of recognizance contrary to section 145 (3) of the Code as he was not to possess any weapons and he did so.
Issue 4 - Is Mr. Wielgosz guilty of breach of probation?
[80] Mr. Wielgosz is charged with breach of probation. As of October 10, 2018, Mr. Wielgosz was subject to a probation order that he not consume alcohol except as permitted by his parents.
[81] I accept that Mr. Wielgosz was drinking alcohol that night. However, his evidence was that he drank at his parents' house and that his parents were home and that he was watching television with his father at some point either when he was drinking or immediately before. I have no principled basis to say that this did not happen and it appears that he may have had the permission of one or more of his parents to be drinking that night. In the circumstances, I am not satisfied that the Crown has proved the breach of probation charge beyond a reasonable doubt.
Summary and Conclusion
[82] For the reasons set out above, I have found that Mr. Wielgosz is not guilty of the attempted murder of Ms. Vala but is guilty of the aggravated assault of her contrary to section 268 (1) of the Code. He is also guilty of the aggravated assault of Mr. Kraus contrary to section 268 (1) of the Code. Further, he is guilty of two counts of weapons dangerous contrary to section 88 (1) of the Code. He is also guilty of breach of recognizance contrary section 145 (3). He is not guilty of breach of probation.
[83] I thank both counsel for their work throughout the course of this trial.
Reasons released: August 16, 2018
Justice Paul F. Monahan