Court File and Parties
Court File No.: 34-21 Date: 2022-04-07 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Prosecutor And: Jeremiah Andre Reed, Defendant
Counsel: M. Gardiner, for the Crown G. Snow, for the Defendant (Accused)
Heard: March 28, 29, 30 and 31, 2022 at London
Heeney J.:
Reasons for Judgment
[1] The accused, Jeremiah Andre Reed (“Andre”) is charged with two counts on the indictment. Count #1 alleges that, on or about June 20, 2020, he attempted to murder Grant Douglas (“Grant”) by stabbing him, contrary to s. 239(1) of the Criminal Code.
[2] Count #2 alleges that, on the same date, he breached a probation order which bound him, specifically by breaching the term that prohibited him from possessing any weapons as defined by Code. It is conceded by the defence that if I am satisfied beyond a reasonable doubt that Andre stabbed Grant as alleged in count #1, a conviction on count #2 would also follow.
[3] Section 239 does not define attempted murder. Section 24(1) defines attempts in general terms. It provides that everyone who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out his intention is guilty of an attempt to commit the offence.
[4] Accordingly, the Crown must prove two elements beyond a reasonable doubt: first, that Andre intended to kill Grant; and second, that he did, or omitted to do, something, for the purpose of carrying out that intention.
[5] The Crown’s case stands or falls on the evidence of the complainant, Grant, so I will deal with his evidence at the outset.
[6] He is 48 years of age. At the time of the incident, he had known Andre for about a year or maybe a bit longer, a year and a half at the most. He never knew Andre’s last name. In the early morning hours of June 20, 2020, he left home and went to the house of a friend, Mel Albert. He had had a beer at home before leaving and took a six pack with him to Mel’s. When he got there, Andre came out of a bedroom, and said “hey, Grant”. Andre then apologized to him for an incident that happened a week or two before, where Andre snuck up behind him and sucker punched him as he was sitting on his bike. Grant said he is easy to sneak up on, since he is very hard of hearing, as was evident at this trial. Grant said he doesn’t hold grudges, and accepted the apology and shook Andre’s hand.
[7] Andre asked him what he was doing later in the night, and Grant said he was going to go “scrapping some copper”. The term “scrapping” was never clearly defined in the testimony, but I gather that it amounts to collecting quantities of copper wire, perhaps legally from recycle bins, perhaps illegally, for the purpose of selling the metal. Following their conversation, Andre and Grant decided they would go scrapping together.
[8] They went to Grant’s house to retrieve a wagon that he uses for scrap material, and then went to Andre’s place on Rectory St. to get some bolt cutters. They went inside, and the owner or renter was there, who went by the name of Mamma. She poured them both a drink. During the 45 minutes or so that they were there, Andre asked Grant to come with him. They went to the basement by way of an external set of stairs through the foundation, and Andre asked the man who was down there to leave for a few minutes. Andre then asked Grant if he was a police officer, which Grant thought was a really odd request. Andre then told Grant to remove his shirt, and patted him down to look for bugs or hidden mics. Grant testified that, after the stabbing, he realized that the real reason for the search was to see if he was carrying any weapons to defend himself with.
[9] Andre didn’t have any cutters at his house, so they went to another friend’s house to ask for some, on the way to Adelaide St. and Hamilton Road. That friend didn’t have any either, so they went to another friend of Andre’s, whom he was sure had some cutters. This friend lived on the corner of Adelaide St. and Grey St. When they arrived, there was a car outside. Andre told Grant to wait outside, and jumped in the car for 5 or 10 minutes. He then got out of the car, told Grant to wait again, and went inside the house, for another 10 or 15 minutes. Grant was waiting at the side of the house patiently for Andre to come out. At some point Andre did come out, although Grant did not initially see him. At the last second Grant saw Andre jumping at him from behind, with two hands on a large knife, and strike him in the back of the neck. At first Grant didn’t know what happened, but after a few seconds he could see his shirt getting covered in blood. He asked Andre “did you stab me?” Andre started laughing, and said “Did I stab you? I’m going to fucking kill you”.
[10] Andre didn’t know what to do, so he ran out to Adelaide St., heading in a southerly direction. He believes that Andre went back into the house and came out with another man, a short, chubby, white man, and the two of them started to pursue him. The other man parted company with Andre after 100 m. or so, and Andre continued the pursuit alone.
[11] Grant was running down Adelaide St., screaming for someone to help him. He ran up onto the porches of several houses banging on windows and trying to get help, without success. He was screaming for his life. Andre caught up to him, and continued to try to kill him, stabbing and slashing at him with the knife hundreds of times and laughing at him. Grant had a pair of channel lock pliers in his own hand and was walking backwards as he tried to defend himself.
[12] Grant continued running south on Adelaide St., for 2 to 2 ½ blocks at least, to a point where a business he described as PJ’s Laundry is. At that point he saw a police car down the street at a bridge that crosses Adelaide, and thought he was saved. But the officer pulled a u-turn and went the other way. By this time Grant was running out of energy.
[13] The police officer then apparently turned back around, and was again driving south towards them. Andre then started walking or running away in the opposite direction.
[14] When the officer, Sgt. Valiquette, arrived he put Grant to the ground, apparently thinking he was the perpetrator, and put his knee on the back of Grant’s neck. Grant told the officer that the assailant who had just stabbed him in the neck was getting away.
[15] Grant was taken to the hospital by Const. Pye, where it was determined that he had suffered a penetrating injury to the left posterior neck, with soft tissue damage but no vascular injury. Grant testified that the wound was deep, which he discovered himself when he put his fingers into the wound shortly after being stabbed. It required two tiers of sutures to close the wound. Photographs show the wound to be roughly 2 cm. in length.
[16] The investigation was taken over by Const. Gustavson, who relieved Const. Pye at the hospital. Grant and Const. Gustavson left the hospital together in the cruiser, both for the purpose of giving Grant a ride home and to take a ride so Grant could show him where the stabbing occurred. They drove to the corner of Adelaide St. and Grey St., to the house where he was stabbed, and Grant pointed out his wagon still sitting at the side of the house, where he had left it after being stabbed and running away.
[17] They then drove to Rectory St. where he thought Andre lived. He remembered there was a truck with some body damage to it parked out in front of Andre’s residence, with the foundation stairway that goes to the basement where Andre took him to search him. While they were driving by, Grant spotted Andre actually walking down the street, and told the officer “he’s right there”. The officer stayed back as far as he could to avoid detection, and they watched Andre walking towards Hamilton Road with another individual, on the east side of the street. Andre then crossed on his own at the corner towards a 24-hour corner store at the intersection of Rectory and Hamilton. At that point, Andre got out of their sight. They pulled up and turned right on Hamilton Road, moving slowly to look for him, because he couldn’t have gone too far. Grant then noticed Andre in between two houses, and it looked like he had just opened a window and was about to jump in. Grant then saw Andre jump through the window.
[18] Other officers arrived, and they were able to gain access to the house but did not find Andre. They were baffled. Then Grant saw Andre crossing Hamilton Road further back towards the 24-hour store, to the other side of Hamilton Road. Andre was now wearing a security jacket and a hat. He told the officer that Andre is right over there. The officers apprehended him and arrested him. The person arrested was, in fact, the man Grant knew as Andre, although that is his middle name not his first name. He is the same man that Grant had known for at least a year and, according to Grant, the man who had stabbed him earlier that same day.
[19] That completes my summary of the pertinent evidence of Grant.
[20] The defence argues that Grant’s evidence is neither credible nor reliable. Defence counsel points out that Grant admitted, several times in his evidence, that he has a poor memory, both long term and short term. However, while he said that he has difficulty remembering some of the small details, he also said that he does have a clear recollection of being stabbed, and that it was Andre who stabbed him.
[21] His memory of details was actually quite good when recounting the drive he took with Const. Gustavson on the way home from the hospital. He described in detail where they went, including most of the route that they followed, and what they saw along the way, and that description accorded with the evidence given by Const. Gustavson. His description of spotting Andre on Rectory St., and then following him to Hamilton Road, losing him, then spotting him between two houses climbing into a window, losing him again, and then spotting him yet again crossing the street, following which he was arrested, is again entirely in accord with the evidence of Const. Gustavson, who had no apparent problems with his memory.
[22] I am satisfied that Grant was trying his best to accurately remember and tell the court what happened that night, and he apologized several times when he was unable to do so. Significantly, when the Crown had him read his prior statement to refresh his memory as to some details that he apparently missed in his testimony, he maintained that he was still unable to remember those details despite reading his statement. That is the mark of a credible witness. It would have been very easy for him to have adopted what he said in the statement after reading it, even if doing so didn’t actually trigger a memory of it.
[23] Grant has no apparent motive to lie in order to implicate Andre. He was convincing when he said “I wouldn’t want to get anybody in trouble that didn’t do that to me”.
[24] While he consumed a total of about 5 beers and a mixed drink during the course of the evening, I accept his evidence that, given that he weighs 230 lbs., that amount of alcohol wouldn’t affect him much. I therefore have no concern that his ability to accurately recall evidence was adversely affected by alcohol consumption.
[25] As to the consumption of illicit drugs, Grant testified that he did not believe he had used any that evening, and he maintained this position despite the best efforts of defence counsel on cross-examination. He explained that at the time he was stabbed, his girlfriend was pregnant, and he was doing the best he could not to do any drugs. There is no evidence to support a concern that Grant’s ability to accurately recall what happened that night was adversely affected by drugs.
[26] Grant’s testimony is corroborated to varying degrees by virtually all of the other evidence we heard at this trial.
[27] To begin with, he described having been stabbed in the back of the neck, and the injury he sustained supports this. The penetrating wound he is admitted by the defence to have sustained is consistent with a stab wound, and the 2 cm. size of the wound is consistent with the relatively large knife that he says that he was attacked with. There is no suggestion that this was a self-inflicted wound. The question is whether it has been proven beyond a reasonable doubt that it was Andre who did the stabbing.
[28] The fact that Grant’s scrapping wagon was found outside next to the house where he says he was stabbed is consistent with his testimony that he retrieved the wagon from his own residence earlier in the evening, in furtherance of the plan he and Andre had to go scrapping for copper together. The fact that it was found at the side of the house the next morning is consistent with his testimony that he ran from that house in fear for his life after he was stabbed, leaving his wagon behind.
[29] His account of running down Adelaide St., banging on doors and windows and screaming for help, as he was pursued by Andre, is corroborated by the civilian witnesses who testified.
[30] Carlin Dinkle lives at 132 Adelaide St. N., which is a less than a block south from the intersection of Adelaide and Grey St. where Grant says he was stabbed. She woke up to a bang shortly after 4 a.m. She saw that she had received a notification on her cell phone from her security system, telling her that her doorbell had been rung and motion had been detected. She turned on the live feed from her doorbell camera, and heard someone yelling “don’t; stop, please”. She elaborated to say that she could hear the person begging for someone to stop, and for someone to help. The video recording made by her security system shows Grant on her porch, looking clearly distressed, frantic and exhausted, pushing her doorbell while looking over his shoulder, and bending over the railing of the porch looking back, in a manner consistent with looking out for someone who was following him.
[31] Alicia Szymanczyk lives at 109 Adelaide St. N., which is about one block further south from the residence of Carlin Dinkle. She has insomnia and was awake in the early morning hours of June 20, and heard a fight going on outside, with two people arguing loudly. She specifically remembered one man saying “why are you doing this to me?” This was repeated a few times. She was contemplating calling the police when she saw that the police were arriving.
[32] Surveillance video taken from Rivas Ink, a tattoo parlour across the street from PJ’s Laundry, shows two men, one wearing shorts and a t-shirt consistent with what Grant was wearing, and the other wearing long pants and a shirt. The man in the shorts is seen waving his arms while looking towards the north, which is the direction from which Sgt. Valiquette was approaching the scene, and who was the first officer to arrive on scene. The other man is seen walking purposefully in long strides in the opposite direction. This is entirely in accord with the testimony of Grant.
[33] Sgt. Valiquette testified that he saw two men as he approached the scene. One came towards him after he stopped the car, and was put to the ground and arrested. That turned out to be Grant. The other fled to the east sidewalk and ducked around the southwest corner of a building and out of sight. Once again, this is entirely in accord with Grant’s testimony.
[34] There is one point of conflict between Grant’s testimony and that of Sgt. Valiquette. In the description that Grant gave to Const. Pye in his pure version statement at the hospital, he said that Andre was wearing a lime green dress shirt. In his testimony, Grant said he could not remember what Andre was wearing, although he agreed he must have said that to Const. Pye. In Sgt. Valiquette’s testimony, he described the man who fled across the street and around the corner of a building to be wearing a long-sleeved t-shirt, light blue in colour. I do not find that contradiction to be significant. Sgt. Valiquette only saw the man who was fleeing from the vantage point of his police car, at some distance as he approached the scene. It was about 4 a.m. and dark out, and the surveillance video from the tattoo parlour shows that the artificial lighting conditions were relatively poor. In those conditions, it would be easy for Sgt. Valiquette to mistake the colour and nature of the shirt worn by the fleeing individual.
[35] There is, however, evidence that reflects negatively on Grant’s credibility. He has a long criminal record, beginning in 1994 and leading up to his most recent conviction in March of 2022. Many of the convictions are for crimes of dishonesty and failing to comply with court orders. While his criminal record does not mean that I must reject his evidence, it is a factor that I must and do take into account.
[36] He was cross-examined vigorously and at length by defence counsel. Some apparent, but minor, contradictions were identified on peripheral matters, such as whether he was working at the time of the incident, whether he was using opiates in and around the time of the stabbing, and whether he referred to Andre as “black Andre”. However, his testimony on the central issues of what he did that night, who he was with, that he was stabbed by Andre and then ran for his life as he was pursued by Andre, was entirely unshaken on cross-examination. His evidence on these central issues was rock-solid and convincing.
[37] The defence places great reliance on one admitted contradiction relating to whether he had consumed any beer at home before going out and ultimately meeting up with Andre. At trial, he said he had a beer at home and then left, taking the rest of the six-pack with him. At the preliminary inquiry, though, he said he never had anything to drink at his house, because his partner at the time would never stand for him drinking or using drugs at home.
[38] When this contradiction was pointed out to him in cross-examination, he readily admitted it. He explained that he was testifying at the preliminary from home, on Zoom, and his partner was in the same room as he gave his testimony, so he did not want to admit to drinking at home. He said, “maybe I didn’t get the gravity of questions about drinking”, and apologized.
[39] Defence counsel characterizes this as meaning that Grant is an admitted perjurer, whose testimony should be entirely rejected. I disagree. While he clearly gave testimony at the preliminary that was untrue, it was on an exceedingly peripheral matter. His explanation, while not justifying what he did, is nevertheless a very human, understandable and credible explanation. The fact that he admitted to it, rather than doubling down and digging himself deeper, actually enhances his credibility. It does not cause me to have any doubt as to his credibility on the important aspects of his testimony.
[40] The focus of the defence was the argument that the Crown’s case is dependent on identification evidence, which is inherently unreliable, and calls for considerable caution by the trier of fact. The trier must recognize that it is generally the reliability, not the credibility, of the eyewitness’ identification that must be established, since the danger is an honest but inaccurate identification: see R. v. Alphonso, 2008 ONCA 238.
[41] Great reliance was placed by the defence on R. v. M.B., 2008 ONCA 653. The issue in that case is summarized at para. 3:
The only issue at trial was identity. Was the appellant the shooter captured on the video? The only evidence of identity was the testimony of three witnesses who did not see the incident but later watched the video surveillance footage and claimed to recognize the shooter as the appellant. The shooter’s facial features were not visible on any of the videos. Two of the identifying witnesses were police officers who had interacted with the appellant in the past. The third witness worked at Sheila’s Place and had served the appellant as a customer. There was no other evidence connecting the appellant to the shooting or even showing he was in the vicinity at the time. The appellant did not testify.
[42] That case involved recognition evidence, where the eyewitness’ identification is based on prior acquaintance. It noted that recognition evidence is a subset of eyewitness identification, and the same concerns apply and the same cautions must be taken in assessing its reliability. The case at bar similarly involves recognition evidence.
[43] The court considered and affirmed R. v. Behre, 2012 ONCA 716, where the court rejected, as a matter of threshold admissibility, the proposition that it was necessary for a “recognition evidence witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified.”
[44] At pars. 46-47 the court came to the following conclusions:
The issue in Berhe was the threshold admissibility of the recognition evidence. Berhe also confirmed the continued importance of unique identifiable features in determining the ultimate reliability of the evidence. The importance of unique identifiable features varies with how well the witness knows the person he or she identifies. The court made this clear by endorsing the following comment by Holmes J. in R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729 (B.C. S.C.) at para. 42:
Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.
In my view, the trial judge was wrong to interpret Berhe as minimizing the importance of unique identifiable features in determining the weight of recognition evidence. Here, none of the witnesses had a “long and closely familiar” relationship with the appellant. Constable Howard had seen the appellant in the neighbourhood and had spoken to him once for minutes at the end of August. T.C. had served the appellant an unspecified number of times in the restaurant and had seen him there, had spoken to him only when taking his order and did not know his name. Constable Kay had the greatest acquaintance with the appellant — having observed him 10 to 15 times as an undercover officer and having spoken with him on one occasion for 35-40 minutes. This was a case in which the inability to “articulate the particular features or idiosyncrasies that underlie the recognition” was important and should have been weighted appropriately.
[45] It is important to reiterate that the court in M.B. was dealing with a situation where none of the recognition witnesses was at the scene of the shooting. Instead, they simply watched surveillance videos, in which the facial features of the shooter were not visible, in giving their opinion as to his identity.
[46] In the case at bar, Grant has known Andre for at least a year. While there was not much evidence as to the extent of their relationship, it is clear that they socialized and did drugs together on occasion. Grant considered Andre to be a friend although, in view of Andre’s violent acts towards him, he qualified that by referring to “what I thought was our friendship”. They were on a first name basis, as evidenced by Grant’s testimony that when he saw Andre at Mel’s place, Andre greeted him by saying “hey Grant”. They made plans to go scrapping together for copper that night. They spent several hours together, before the stabbing, which included very close contact while Grant was searched by Andre.
[47] In my view, Grant is a person who is long and closely familiar with the accused, where it is not important to articulate the particular features or idiosyncrasies that underlie his recognition that the man who stabbed him was the man he has known for at least a year to be Andre. Nevertheless, he did provide evidence of such features. He described Andre to have a small Mohawk haircut with the sides grown in, with a darker skin complexion, which he described as mulatto, which accurately describes the accused as seen in the photographs filed in evidence. Defence counsel points out that Grant did not describe the tattoos down the side of Andre’s neck and on his throat. While that is true, he was never asked whether Andre had any tattoos or not.
[48] I agree with the Crown that Grant has a proven track record of being able to identify Andre. He spotted him on Rectory St. when he and Const. Gustavson went to look for his residence, spotted him again between two houses on Hamilton Road, and was able to spot him yet again as he crossed Hamilton Road, despite the fact that Andre was now wearing a jacket and hat that he wasn’t wearing before. That man he pointed out was apprehended and arrested, and turned out to be precisely the man they were looking for, the man Grant has known for a year or more as Andre.
[49] Defence counsel argues that this is a backwards way of looking at things, and the fact that Andre was pointed out by Grant, arrested and is now on trial does not mean that he was the person who did the stabbing. I agree that if this was a case involving the eyewitness identification of a stranger, pointing the perpetrator out as he crossed the street would be no more reliable than the original identification evidence from the scene of the crime. But in this case, Grant knew that it was Andre who stabbed him, and it was Andre whom he spotted on Rectory St. and whom he and Const. Gustavson were following. When he pointed out the man crossing Hamilton Road to be Andre, it turned out that he got it exactly right. That means that either Grant is very good at identifying Andre, or it was both an extraordinary coincidence and an extremely lucky guess. I prefer the former explanation.
[50] Most importantly, this is not a situation where Grant was simply an eyewitness to an event, who is testifying as to who he believes the perpetrator was. He was a highly involved participant in the event, together with Andre. He was with Andre from the time he arrived at Mel’s house. They drank together, and made plans to go scrapping for copper together. They travelled together from one house to another to another in search of cutters. Andre brought him to the basement of his home and asked him if he was a police officer, and made him take off his shirt and searched him.
[51] While he just saw Andre at the last second, coming down on him from behind with two hands on a knife and stabbing him in the neck, they were face to face immediately thereafter, two to three feet apart. Andre was holding the knife that had just been used in the attack. Grant was looking at Andre, a face he had been familiar with for a year or more, and knew it was Andre he was looking at. They were speaking to each other, and he knew it was Andre who was saying “I’m going to fucking kill you”, in a voice he would have become familiar with over the preceding year, and particularly during the preceding evening that they spent together. His ability to recognize and be certain as to the identity of his assailant was further enhanced as the pursuit continued, as he walked backwards, facing Andre to fend him off, while Andre slashed at him and laughed at him during their movements down Adelaide St.
[52] Grant was able to describe the knife that Andre was holding. Although he had to refresh his memory from his statement as to the colour, he was able to describe it as a double-edged knife, with a blade about 3 to 5 inches in length, with either a black or silver handle, with a red line down the centre. Clearly, if he was looking at Andre long enough and closely enough to be able to describe the knife, that would be more than enough time for him to be certain as to who it was that was holding that knife, given that the person doing so was known to him.
[53] In these circumstances, it is inconceivable that Grant could have been mistaken as to the identity of his assailant. I find his evidence to be entirely reliable. I also find it to be credible. When he said, “I would swear on my life that it was Andre”, it was sincere and convincing. I believe him, and I believe his account of the events of that night. As noted above, his evidence is supported by, and consistent with, virtually all of the other evidence heard at trial, and his testimony as to the central events was completely unshaken on cross-examination. For these reasons, and the other reasons articulated above, I have no reasonable doubt as to the credibility and reliability of his evidence concerning the central events of June, 20, 2020, despite the negative strikes against his credibility already discussed.
[54] While demeanor evidence is also fraught with danger, it is, nevertheless, something that a trier of fact is entitled to take into account. Here, I was struck by Grant’s demeanor when he was describing the attack, and his realization that he had to run for his life. He is 48 years of age and, from the evidence at trial, including his lengthy criminal record, has clearly been hardened by a life on, or close to, the streets. However, this apparently tough, middle-aged, street-wise man was crying real tears as he recounted the stabbing, and was reliving the realization that Andre was intent on killing him. Beyond the tears, his throat was choking up as he tried to describe what was happening. This was not a performance. This was, I find, a genuine reaction to reliving a truly terrifying event that was seared into his memory. I would have found his evidence to be credible even without this demeanor evidence, for the reasons already outlined. This evidence does, however, further reinforce my confidence in his credibility.
[55] Before concluding, I should make brief mention of the submission of defence counsel that there was evidence that we did not hear. For example, there was no confirmatory evidence that Andre lived on Rectory St. The only address we have for him is the one on his probation order which says York St. We also don’t have evidence as to the lighting conditions at the house where the stabbing occurred. Furthermore, there was no photo lineup done. With regard to the latter submission, a photo lineup would have been a waste of time, in view of the fact that the perpetrator was known to the victim. As to the other criticisms of the Crown’s case, it might have been helpful to have had that additional evidence, but it was not essential. I simply say that I am not left with any reasonable doubt as to the guilt of the accused arising from the lack of evidence.
[56] I am satisfied beyond a reasonable doubt that the accused intentionally stabbed Grant in the back of the neck with a knife, and then pursued him down Adelaide St. while stabbing and slashing at him. These acts constitute the actus reus of the offence. They clearly go beyond mere preparation, and if the Crown has proven that Andre intended to kill Grant, there is no question that these acts constitute something done for the purpose of carrying out that intention.
[57] In considering the issue of Andre’s intention, it is somewhat rare to see direct evidence of that intention. Instead, intention is frequently inferred from circumstantial evidence, using the “common sense inference” that a person intends the natural and probable consequences of his or her actions. Here, stabbing someone in the back of the neck with a large knife could support the inference that Andre intended to kill Grant. It is common knowledge that the neck contains the spine and spinal cord, as well as major blood vessels that feed the brain. Severing either or both could lead to the natural and probable consequence of the death of the victim.
[58] However, in this case we have direct evidence of Andre’s intention, from his own mouth. I accept the testimony of Grant that, after he was stabbed, Grant asked him “did you stab me?” Andre started laughing, and said “Did I stab you? I’m going to fucking kill you”. That establishes the intent to kill. Andre continued to act on that intention as he pursued Grant down Adelaide St., slashing and stabbing at him with his knife along the way.
[59] I am satisfied beyond a reasonable doubt that the Crown has proven both that Andre intended to kill Grant, and that, in stabbing him and in continuing to slash and stab at him, he did something for the purpose of carrying out that intention. The essential elements of attempted murder have, therefore, been proven. Accordingly, the accused is found guilty on count #1.
[60] As to count #2, I have already noted that the defence concedes that a conviction on this count must inevitably follow a conviction on count #1. On the evidence, the accused was bound by a probation order on the date in question. One of the conditions of that probation order was not to “possess any weapon(s) as defined by the Criminal Code (for example, a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate a person).”
[61] The word “weapon” is defined in s. 2 of the Criminal Code. That definition reads as follows:
"weapon" means any thing used, designed to be used or intended for use
(a) in causing death or injury to any person, or
(b) for the purpose of threatening or intimidating any person
and, without restricting the generality of the foregoing, includes a firearm and, for the purposes of sections 88, 267 and 272, any thing used, designed to be used or intended for use in binding or tying up a person against their will;
[62] In the case of a knife, the definition is met in two ways. First, the knife was actually used in causing injury to Grant. Second, knives have, throughout recorded history, been designed and intended to be used in causing death or injury to people, although they have domestic uses as well.
[63] Accordingly, I am satisfied beyond a reasonable doubt that the essential elements of count #2 have been proven. The accused is found guilty on count #2 as well.
“Justice T.A. Heeney” T. A. Heeney J. Released: April 7, 2022