Ontario Court of Justice

Date: July 24, 2014

Court File No.: Kitchener 13-6095

Between:

HER MAJESTY THE QUEEN

— AND —

YIYAN XIE

Before: Justice G. F. Hearn

Heard on: May 14, May 26, May 27, May 28, June 5, June 17 and June 19, 2014

Reasons for Judgment released on: July 24, 2014

Counsel:

• M. Sopinka, for the Crown
• H. Mattson, for the accused Yiyan Xie

HEARN J.:

INTRODUCTION

[1] Yiyan Xie came before the court on May 14, 2014 and at that time entered pleas of not guilty to two counts. The initial count alleges a charge of attempted murder and particularizes that count to read as follows: on or about September 23, 2013 at the City of Waterloo did attempt to murder Yiyang Hao by stabbing Yiyang Hao with a knife thereby wounding her, contrary to s. 239(1)(b) of the Criminal Code. Mr. Xie has also pled not guilty to a count of criminal harassment. That count has been amended during the course of this trial to reflect the timeframe from July 23, 2013 to September 2, 2013 and that count involves an allegation that Mr. Xie harassed Yiyang Hao knowing that she was harassed or was reckless as to whether she was harassed without lawful authority by repeatedly communicating directly or indirectly with her thereby causing her in all the circumstances to reasonably fear for her safety contrary to s. 264(2)(b) of the Criminal Code.

[2] Prior to the commencement of the calling of evidence on May 14, 2014 the Crown brought an application pursuant to s. 486.2 of the Criminal Code seeking an order that Yiyang Hao be permitted to testify from outside the courtroom. That application was opposed, but for oral reasons provided at that time and written reasons to be provided thereafter, the court found that order was appropriate in order to obtain a full and candid account from Ms. Hao of the acts complained of.

[3] The trial itself commenced on May 26, 2014 and evidence continued over a number of days thereafter. Following the conclusion of the Crown's case on June 5, 2014 and prior to closing its case, the Crown indicated a desire to bring an application to amend the count of criminal harassment, which had originally charged an offence running from May 1, 2013 to July 19, 2013, to reflect different dates to accord with the evidence that had been led during the course of the Crown's case. That application was opposed and on June 17, 2014 full submissions with respect to that issue were heard. After hearing submissions and for reasons given at that time the application to amend was permitted and the count of criminal harassment was amended to reflect an ongoing course of alleged activity between May 1, 2013 and September 2, 2013.

[4] Following the granting of that particular application, counsel for Mr. Xie asked for an opportunity to obtain his client's instructions. Those instructions were obtained and upon court resuming the count on consent was further amended to reflect the repeated communication directly or indirectly taking place between July 23, 2013 and September 2, 2013. Upon that amendment being made, Mr. Xie indicated a desire to plead guilty and on June 17, 2014 a plea of guilty was entered to the count of criminal harassment as amended.

[5] The trial then proceeded with respect to the remaining charge of attempted murder and on June 19, 2014 submissions were made in that regard after the defence indicated it did not intend to call evidence. The matter has then ultimately been adjourned to today's date for judgment.

EVIDENCE OF THE CROWN

1. Agreed Statement of Facts

[6] At the commencement of trial counsel filed an Agreed Statement of Facts. Those facts indicate among other facts the following:

1. The accused and Yiyang Hao had met each other approximately four years prior to September 2013. They dated for approximately two years and Ms. Hao ended the relationship in June of 2013 by e-mail while she was vacationing in China.

2. Between June 14, 2013 and August 27, 2013 the accused sent numerous e-mails to Ms. Hao. The various e-mails and the English translations thereof are attached as Exhibit #1 to the Agreed Statement of Facts. Marked as Exhibit #2 to that statement is a separate e-mail sent by the accused to Ms. Hao on July 22, 2013.

3. The facts indicate that the accused in the past has engaged in self-cutting behaviour which has resulted in him inflicting wounds to his wrists, arms and thighs. Such self-cutting occurred as recently as July 2013 when Mr. Xie had disclosed to a friend that he at that time had cut his arm "out of frustration". It is acknowledged that the wounds had been inflicted from time to time to keep Ms. Hao from leaving Mr. Xie or to encourage her to communicate with him.

4. In mid-June of 2013 Ms. Hao had requested a friend not to disclose her whereabouts to Mr. Xie as she wished to terminate the relationship. Mr. Xie was aware that Ms. Hao had chosen to vacation in China for the summer months in 2013 and he made various efforts to try to locate her. During the course of those attempts Mr. Xie apparently became aware that Ms. Hao intended upon her return from China to enter a program at the University of Waterloo and that Ms. Hao would be subletting a room at 511 Quiet Place in the City of Waterloo.

5. On or about September 1, 2013 Mr. Xie attended in Waterloo and walked with a friend around the outside of Ms. Hao's residence. Unbeknownst to the accused, Ms. Hao and her mother had observed Mr. Xie and thereafter Ms. Hao conducted a telephone conversation with Mr. Xie wherein she agreed to allow Mr. Xie to attend at her home on September 2, 2013 "for a visit". Ms. Hao then contacted a cousin of Mr. Xie to advise that the accused was coming to her home as he wished to talk to her. This individual was concerned that something physical might happen to Ms. Hao and the basis for his concern is set out in the Agreed Statement of Facts. These concerns included the contents of the July 22, 2013 e-mail, which that individual had reviewed, wherein Mr. Xie indicated he might cause physical harm to Ms. Hao, the fact Mr. Xie had indicated to the individual that he was upset at Ms. Hao's alleged dishonesty with respect to her schooling, Mr. Xie's apparent feeling that Ms. Hao had been "lying to him" and the fact that Mr. Xie had apparently indicated in a "playful manner" that if he saw Ms. Hao he would "beat her".

As a result of those concerns, the police were contacted. Constable Dekker of the Waterloo Regional Police then attended on September 2, 2013 at the residence of Ms. Hao to find Ms. Hao, her mother and Mr. Xie in front of the home engaged in a verbal argument.

The officer warned Mr. Xie not to have any further contact with Ms. Hao nor to attend at her residence or employment or school. He further advised Mr. Xie that if he continued to communicate or attend at any of the listed locations that would constitute criminal harassment.

Mr. Xie then returned to a friend's residence in Waterloo and had no further contact with Ms. Hao until September 23, 2013. On September 23 it is acknowledged that Mr. Xie came into possession of a vehicle by misrepresenting to a friend that he needed a rental car to move another friend in Toronto. That vehicle was in fact driven by Mr. Xie to Waterloo and was seen on Quiet Place on the morning of September 23, 2013 on more than one occasion.

6. The Agreed Statement of Facts then acknowledges that at some point an incident took place on Quiet Place. A witness observed Ms. Hao to be blood-covered. She approached him and asked him to call 911 because of a car accident and upon further questioning Ms. Hao told that individual that there had not been a car accident and that "he's going to die". She then pointed to a bush area where that individual and a police officer who had arrived entered to discover Mr. Xie on the ground covered in blood with a wound in his neck area. Mr. Xie was bleeding badly and barely breathing. Medical steps were taken and Mr. Xie was transported to the hospital. Certain items were seized in the bush area by the police including two knives ultimately entered as exhibits.

7. It is of note as well that the Agreed Statement of Facts indicates in para. 19 that Ms. Hao had encountered another witness when she came out of the bush area covered in blood. That individual assisted Ms. Hao apply pressure to a wound on her own neck and at some point that individual asked Ms. Hao, "Did your friend accidentally hurt you?", to which Ms. Hao replied, "Yes, it was an accident". The agreement contained further admissions with respect to other witnesses' observations of Ms. Hao and ultimately Mr. Xie at the scene.

2. Evidence of Yiyang Hao

[7] Ms. Hao is 21 years of age and gave her evidence by way of closed circuit from outside the courtroom pursuant to an order previously made under s. 486.2 of the Criminal Code.

[8] She presented as candid, soft-spoken and forthright in the giving of her evidence which was presented with the assistance of an interpreter.

[9] She testified as to the development of her relationship with the accused from the time she was in Grade 10 after they had both arrived in Canada from China in 2009. She described that relationship as boyfriend and girlfriend beginning in Grade 11 in Scarborough and continuing after they had completed high school when both then attended the University of Toronto.

[10] She had initially wanted to go to the University of Waterloo and had told Mr. Xie that and thought it was best they both go to separate schools. Mr. Xie was not in agreement.

[11] Ms. Hao then described in detail how the accused in response at that time "cut himself" using a "fruit knife" resulting in a "pretty deep cut" on his left arm and a "lot of blood". As a result of his actions Ms. Hao agreed to attend the University of Toronto as she "didn't want to see him cutting himself".

[12] That was not the first time Mr. Xie had reacted in such a fashion during their relationship and Ms. Hao described a previous incident when following or during a quarrel the accused had cut himself on his arm with a tape holder.

[13] The two attended the University of Toronto commencing in September of 2012 and continued as boyfriend/girlfriend although they did not live together. They would, however, see each other every day.

[14] The accused during this period of time would continue to cut himself "almost every time" he and the witness would quarrel. Ms. Hao testified this would take place "once every two weeks". The witness on her evidence wanted to end the relationship but when she indicated that to the accused he would react in the manner noted and "she wouldn't say any more".

[15] Ms. Hao finally made the decision to end the relationship in January of 2013 when she applied to attend the University of Waterloo commencing in September of 2013. She did not tell the accused about that decision at the time, however when she travelled to China for a vacation in May of 2013 she then communicated by messaging and e-mail from China to the accused that she was ending their relationship.

[16] The accused, who had remained in Canada, was not pleased with that decision and embarked on a rather prolific course of sending e-mails almost daily according to Ms. Hao while she remained in China. She had been able to retrieve almost all of the e-mails exchanged, save and except her initial e-mail to Mr. Xie. The various e-mails that were retrieved form part of the Agreed Statement of Facts.

[17] Ms. Hao testified that other than her initial e-mail she did not respond in any way to the numerous e-mails sent by Mr. Xie while she was in China.

[18] During her examination-in-chief Ms. Hao was led through the various e-mails which had been sent commencing in June of 2013 and continuing through to July 2013 while she remained in China. She was also led through the various e-mails that she had received from Mr. Xie upon her return to Canada which included e-mails continuing into the latter part of August 2013.

[19] As noted, the e-mails are part of the agreed facts. It would appear the only time the witness seems to have responded to the many e-mails forwarded by the accused was in the latter part of August 2013 and, as well, on one occasion in July 2013.

[20] The e-mails forwarded by the accused to Ms. Hao clearly indicate his unhappiness with the witness's decision to end their relationship. The contents of the e-mails are often rambling but have a theme of persistence in attempting to have the witness change her mind and remain in the relationship. They also contain themes referencing self-harm if Ms. Hao did not change her mind as well as harm to herself. In addition, the accused makes it quite clear in the various e-mails that he will locate her when she returns to Canada or even if she remains in China.

[21] Ms. Hao indicated throughout her examination by the Crown that the contents of the various e-mails caused her concern, fear and anxiousness.

[22] Among other things she testified:

1. Although she wished to "part ways", she felt because of the comments made by the accused she could not.

2. She was initially worried that she could not end the relationship due to the indications by the accused he would "die".

3. She became scared that if she left him he would either "kill her" or commit suicide. She was concerned about Mr. Xie doing himself harm but also because of his comments in the various e-mails she was afraid that "he might hurt me".

4. No matter what steps she took she was afraid Mr. Xie would find her and she became scared when he stated "no matter what, you will be together with me" and that if he found her he would "cause harm to me". As he noted, "I'll fucking find you". (See e-mail of July 20, 2013).

[23] Ms. Hao testified she returned from China on July 19, 2013. By e-mail dated July 20, 2013 sent at 2:20 a.m. from Mr. Xie it appears the accused was aware of her return and details of her flight, although she stated she had not told him. Mr. Xie also appeared to be aware of her attendance at the University of Waterloo and details of her e-mail address and courses. He indicated in one e-mail "I know more information than you'd like to know". Ms. Hao testified she was scared and felt he knew "a lot of my things".

[24] Ms. Hao was directed to an e-mail dated July 22, 2013 from Mr. Xie (see Tab 2 of the Agreed Statement of Facts). She was taken by the Crown through the contents of the e-mail which indicated among other things that Mr. Xie was effectively pleading with Ms. Hao to continue their relationship and that if she did not he would take some very serious steps. These include the threat that he would "kill you with a knife and then commit suicide". Within that e-mail he set out some details of such a "plan" including the "checking out of the forest in Waterloo as well as the forest beside your family's home. I can strike there." When asked for her reaction to this e-mail, Ms. Hao indicated she was very scared as "he already had a plan to kill me".

[25] After reviewing this particular e-mail Ms. Hao contacted Mr. Xie's cousin Michael and sent him a copy of the e-mail. She also told her mother. She then decided to respond to the e-mail and did so by her own e-mail dated July 22, 2013 at 11:05 p.m. She testified she decided to respond because she had "felt after a time of no contact Mr. Xie would be letting go". When this was not the case, she was "very scared" he would find her and decided to e-mail him to explain why she had broken up the relationship and decided to attend the University of Waterloo. She felt "very scared about what he was planning".

[26] Mr. Xie responded to that e-mail, asking Ms. Hao to call. She in fact did call within "a few hours". During that call Mr. Xie asked if they could be together. Ms. Hao indicated that there were two conditions and, it turned out, an additional condition imposed by Mr. Xie. Those conditions set out by Ms. Hao included that they were to have no contact for a year and that if she returned to Toronto "we'll go out and have fun". Mr. Xie indicated during that conversation he hoped that she would leave a "position for him in my heart" and see what happens after five years. She had indicated to him that "we'll wait and see".

[27] At the end of the phone call Ms. Hao believed Mr. Xie had agreed to the conditions, however that was not the case. Subsequent e-mails were sent by Mr. Xie without response by Ms. Hao. Those e-mails continued to cause her concern and fear for her safety. She did respond to one of the e-mails but such response was innocent in nature and simply supplied Mr. Xie with some contact information for a driving instructor. There were no further e-mails exchanged by either party after August 27, 2013.

[28] Ms. Hao did enroll at the University of Waterloo and took up residence at a townhouse on Quiet Place in Waterloo. On September 2, 2013 while walking with her mother she saw Mr. Xie in close proximity together with another individual (see para. 9 of the Agreed Statement of Facts). This appearance caused her concern and she hid with her mother until Mr. Xie was no longer in the area. She then returned home and eventually phoned Mr. Xie (see paras. 10 and 12 inclusive). She did so as he was "already here" and "would come back in the future". She also felt some security as her mother was with her.

[29] During the course of the phone call Mr. Xie asked if they could still be together. Ms. Hao indicated no and Mr. Xie had responded that she did not care if "I live or die". He told her he had been at her house previously and also indicated to her that "I may really kill you". Ms. Hao then made arrangements to meet with Mr. Xie in her neighbourhood as she "felt he would come sooner or later" and "would cause harm to her".

[30] Following the phone call she called Mr. Xie's cousin Michael (see para. 12 of the Agreed Statement of Facts). She did so to get advice as Mr. Xie was still saying over the phone "he would probably kill me". Michael told her to "run away fast". She did not since, as she put it, "he would find me anyway and there was no use in running away".

[31] The meeting did take place with her present with her mother who asked to see Mr. Xie's arms to confirm that he was in fact self-cutting. Ms. Hao was concerned during the course of the meeting that Mr. Xie seemed to have his hand in his pocket and she felt he may have a knife. Constable Dekker attended on scene at the time, having been alerted to the meeting by the cousin (see para. 13 of the Agreed Statement of Facts).

[32] Upon arrival Ms. Hao and the accused were engaged in an argument and the police, at the request of Ms. Hao, warned Mr. Xie to have no further contact with Ms. Hao, nor attend at her place of schooling or residence, otherwise his conduct would constitute criminal harassment.

[33] There was then no further contact between the two of them until September 23, 2013. Ms. Hao in fact did transfer to the University of Waterloo (see paras. 15 and 16 of the Agreed Statement of Facts).

[34] Ms. Hao testified that on September 23, 2013 she set out to catch a bus to go to school at about 11:00 a.m. The witness was shown various photos and identified the area where she walked along Quiet Place towards the bus stop on Albert Street.

[35] As she walked she heard Mr. Xie call her name from behind. She turned and saw the accused who asked if they could have a talk. The two of them then sat on the curb at a location indicated by the accused.

[36] Ms. Hao could not recall all of the details of the "talk" but did recall that Mr. Xie asked if they could get back together again and why she had called the police. At that point Ms. Hao stated she had not called the police and told Mr. Xie they could not get back together. Mr. Xie then stated, "Don't you believe that I would die?" and he again asked her to resume their relationship. She again said no and at that point the accused stated, "In this case I can only say sorry".

[37] The accused then stood up, put his fingers in Ms. Xie's mouth so she could not scream, according to her, and "dragged" her into the bush area. She recalls struggling with Mr. Xie and then being on her back lying on her schoolbag. She then testified she next recalls being on the ground face down where she saw blood and realized she was bleeding. Mr. Xie was apparently sitting on her or in close proximity kneeling in front of her. Her evidence as to his exact location and how she ended up facing the ground is vague.

[38] Ms. Hao testified as she was being dragged into the bush she felt she was "going to die". As she was face down she felt blood in her throat. She did not realize initially that she had been cut and had not felt that sensation. As she put it, she had no sensation of being cut as it was "too messy". All of this happened within five minutes of her being dragged into the forested area. Up to this point she had not observed a weapon but Mr. Xie stood up or straightened his back up and stated he could not find his knife and was looking for it. He then said he wanted to commit suicide.

[39] When asked if Mr. Xie had said anything during this attack, Ms. Hao testified he had asked her why she had called the police and on the second occasion she had told him it was the cousin that had called, not her. She could not recall if this was before or after Mr. Xie was looking for his knife. While he was looking for his knife, she did not indicate to him that she was bleeding and he clearly stated to her that he was going to get another knife and commit suicide. She also recalled that Mr. Xie had indicated there was a lot of blood from her and he had pressed her neck on the left in the area where she had been cut.

[40] While Mr. Xie was gone, she took a few steps but saw no one and realized there was no sense in running as he would "catch me up". She then observed Mr. Xie to return in his car and re-enter the area in the bush. Ms. Hao was coughing badly and Mr. Xie cut his wrists on two occasions. He handed her his cell phone and stated, "If you think you're not going to make it, you can call the police".

[41] When Mr. Xie cut his wrists Ms. Hao testified she grabbed the knife in her hand (as evidenced by her wounds) as she "didn't want to see him cut himself". She also tried to console the accused by patting him on the back and told him "it's fine". The accused replied, "It's not good, I already made a mistake". He then started looking for the knife, not realizing that Ms. Hao had taken it from him, but when he saw it, he took it back from her and proceeded to cut his neck. She described in detail the self-inflicted cut and the accused's blood spurting out of the wound. She pressed the area where he was bleeding and called the police, advising them "someone is going to commit suicide".

[42] She then went back to the street and had interaction with persons as set out in paras. 17 to 21 inclusive of the Agreed Statement of Facts. She testified she also re-entered the bush area to again try to assist Mr. Xie by pressing the area of his neck. The police then arrived and she went back out to the street where she sat. She stated at that point her head was "blank" and she felt as if what had happened had been a "dream". She eventually was transported to the hospital where she was treated and released later that day.

[43] Ms. Hao was led through a series of photos of the area. She identified various personal property that had been found in the area including her coat which she testified had not been torn or cut as it now was. She also described her injuries and various photos of those injuries are before the court. She stated that for three weeks following the incident she had difficulty swallowing and experienced nightmares for a period of time. She also stated that prior to this occasion she had never seen Mr. Xie during their relationship carry a knife outside of his residence.

[44] Ms. Hao was cross-examined thoroughly by counsel for Mr. Xie and remained consistent with her evidence given in-chief. She was led through the various e-mails, confirmed the repeated requests for contact that went unanswered and testified as to some of the symbols found within the e-mails.

[45] Throughout her cross-examination a number of different scenarios were put to her, particularly with respect to the events of September 2 and 23, 2013. Ms. Hao either denied outright some of the suggestions put to her by counsel or could not remember. Some of the scenarios included Mr. Xie slashing his neck before he went to his car, producing a knife while the two were sitting on the curb, the offer of a cell phone to Ms. Hao and the fact that the threat to kill her was not made during the telephone conversation of September 2, 2013. All of these possibilities put to the witness were either denied, deemed impossible or the witness had no recollection of the events occurring as suggested by counsel. Her evidence generally and specifically with respect to the events of September 23, 2013 remained uncontradicted, basically unshaken and consistent.

3. Evidence of Dr. Osama Hasan

[46] Doctor Hasan is an emergency physician specialist employed at the Grand River and St. Mary's Hospitals in the City of Kitchener. His CV is marked as Exhibit #5 in this proceeding.

[47] He was the treating physician who attended to Ms. Hao upon her arrival at the Grand River Hospital on September 23, 2013 at 12:56 p.m. Although he is a very capable doctor with considerable experience in emergency medicine, he was not qualified as an expert to give opinion evidence as to the amount of force required with respect to the wounds he observed, nor whether or not the wound, particularly the wound to the left side of Ms. Hao's neck, was the result of a "stabbing or a stab".

[48] Doctor Hasan, however, did treat Ms. Hao and gave evidence with respect to her injuries and the treatment provided. He also gave evidence with respect to medical concerns regarding the location and nature of the various injuries, particularly the injury to the neck noted. His report is filed as Exhibit #6 on this trial.

[49] In examination-in-chief Dr. Hasan noted his initial observations of Ms. Hao upon her arrival. He noted the cuts or lacerations which he described as superficial on the front neck of Ms. Hao extending along the front entire width of her neck. As well he noted a wound approximately four centimetres in length which he described as clinically deep on the left side of her neck. He also noted injuries to her right hand.

[50] Doctor Hasan was led through a series of photographs which form part of Exhibit #2 and identified the various wounds that he had noted.

[51] With regard to the superficial wounds, he testified there was dried blood on those, there was no active bleeding and they appeared to be on the surface of the skin only and did not go "deep". He did, however, note that the "deep one", being the injury on the left side of Ms. Hao's neck, required further observation, particularly with regard to the possibility of an expanding hematoma and did ultimately require the administering of four stitches.

[52] Doctor Hasan noted Ms. Hao was complaining of difficulty swallowing and also appeared to be "afraid and scared of what had happened".

[53] The doctor's report sets out the particulars of the treatment provided and the various testing undertaken to rule out any further issues, particularly with respect to the wound on the left side of Ms. Hao's neck. Testing was required as a result of the nature of the wound and the concerns the doctor had with respect to arterial bleeding or injuries to other structures such as the veins in the neck.

[54] Doctor Hasan also noted that particular injury was within four centimetres of a number of vital structures, including arteries, the jugular vein, nerves and muscles. The superficial wounds were also close to various structures including veins, glands and trachea. Doctor Hasan acknowledged that none of those structures had been ultimately injured as confirmed by the testing that was conducted but did note if they had been damaged they could result in a variety of consequences including death.

[55] In cross-examination the doctor confirmed the superficial nature of the lacerations on the front of the neck of Ms. Hao. He also confirmed the wound on the left side of the neck was "clinically deep", meaning that the wound penetrated through the skin into the muscle. He was not, however, in a position to say how deep the wound went.

[56] The doctor also confirmed there was no expanding hematoma and no active bleeding after sutures had been applied and ultimately no vital structures were affected. Ms. Hao, according to the doctor, spent something just less than four hours in the hospital after which she was discharged.

[57] Finally, in cross-examination the doctor confirmed that although he had referred to a "stab" during the course of his evidence, he was not in a position to give any opinion evidence as to how the wound was caused and indicated he had received the information with respect to a "stab" from the investigating officer and Ms. Hao herself. As the doctor stated to counsel during cross-examination, "You can call it whatever you want to call it".

4. Evidence of Catherine Cullen

[58] Ms. Cullen is a registered nurse with considerable experience who works in the Waterloo Regional Domestic Violence Treatment Centre. She attended with Ms. Hao on September 23, 2013 and took various photographs and made an anatomical drawing with respect to her injuries. She noted the injuries during the course of her evidence and filed as Exhibits #7 and #8 are a copy of the drawings as well as the photographs taken showing the injuries.

[59] It should also be noted that marked as Exhibit #18 on consent is a copy of what is described as an operative report dated September 23, 2013 setting out the surgical report with respect to the injuries to Mr. Xie. That report indicates that the injury to the right side of Mr. Xie's neck was self-inflicted and there was major arterial bleeding requiring surgical intervention. The report indicates that there were "multiple incisions" to the right side of Mr. Xie's neck and a lacerated common carotid artery was identified during the surgery and repaired.

5. Evidence of Sara Widmeyer (improperly described as Sara Baier in the Agreed Statement of Facts)

[60] Ms. Widmeyer lives in a residence on Albert Street in Waterloo which intersects or is adjacent to Quiet Place. Some of her evidence is set forth in para. 20 of the Agreed Statement of Facts.

[61] She testified that on September 23, 2013 she was in the front area of her home when she observed a "small young girl" walking on Quiet Place. She described what she stated was a "flash of light" and observed the girl to be pulled into the bush area. She then heard screaming and observed the bushes to be moving "violently".

[62] She went to the area and heard "coughing and sputtering", went back home, took photos with her camera and then alerted her neighbour. At that point a blue car had appeared and a "tall man" got out of the car and ran into the bush. She stated she heard arguing, her neighbour came out and she then observed the young girl walk out of the bush area.

[63] She heard the girl state "I have to stop the bleeding". The girl was covered with blood, appeared very dirty and had what the witness described as a "cut on the left side of her neck". She estimated the time from her first observation until the police arrived to be about 45 minutes.

[64] In cross-examination she indicated at no time had she seen two people sitting and talking on the curb.

6. Constable Eric Boynton

[65] Constable Boynton's evidence is summarized in paragraph 22 of the Agreed Statement of Facts. He is an officer with the Waterloo Regional Police and arrived on scene on September 23, 2013.

[66] He located Ms. Hao within the forest area kneeling over a male who was bleeding badly. He made some seizures within that particular area and assisted with the treatment of Mr. Xie. He also accompanied him to the hospital by ambulance.

[67] He noted Ms. Hao to be covered in blood and "yelling and running around". At the hospital he became aware of the further particulars of the investigation. He described the lacerations he observed on Mr. Xie and also identified a picture of the knife he had seized.

7. Constable Junyan Chen

[68] Constable Chen was one of the officers who first attended at the scene. His evidence is set out in paragraph 23 of the Agreed Statement of Facts. He attended at the scene to assist Cst. Boynton with first aid with respect to Mr. Xie.

[69] He attended the forest area and at that time made various seizures including a phone and a knife which were found in close proximity to the feet of Mr. Xie and both of which were sent for forensic analysis.

[70] Constable Chen also had an opportunity to speak to Ms. Hao who he found sitting on a curb. He described her demeanour including that she was clearly in shock, could not speak properly and had a good deal of blood on her person.

[71] Ms. Hao was taken to hospital by ambulance and following her discharge later on September 23, 2013 she was taken to North Division of the Waterloo Regional Police where the investigation continued.

8. Detective Alison Laing

[72] Detective Laing is a member of the Waterloo Regional Police Service and, more specifically, the Identification Unit. She attended on scene on September 23, 2013 on Quiet Place, made certain observations and ultimately prepared a detailed sketch (Exhibit #15) and a video of the bush and surrounding area where the incident occurred (Exhibit #14).

[73] The sketch shows measurements and locations where various items were seized including two knives, eyeglasses, cell phones and the knapsack initially worn by Ms. Hao. Also seized was the wool jacket worn by Ms. Hao which upon inspection revealed cuts in the neck area and damage to a collar button.

[74] Within the bush area the officer noted what appeared to be two locations where the event occurred. Seizures were made in both areas, one of which locations being where Mr. Xie was located. The knives were produced and marked as exhibits and also are shown in the photographs filed.

[75] The knife seized from the area where the accused was found was a regular food knife with a small curved blade two and a half inches long. The knife found in the other area (see Exhibit #9) was a straight three and a half inch blade and appeared to be similar to a small paring knife. (See paras. 22 and 23 of the Agreed Statement of Facts). Of note as well, the officer had observed blood on the motor vehicle at the scene and on the key fob located in the ignition.

[76] The statement of facts sets out various forensic evidence which has been agreed to, including the finding of Mr. Xie's blood on parts of his vehicle, and the seizure of various clothing, including the jacket made of wool which was worn by Ms. Hao during the incident. That jacket, although not an exhibit itself, is the subject of photographs that have been filed which show what is agreed to be an 11-centimetre long linear cut in the collar area of the jacket which did not penetrate all layers of the fabric and a 3-centimetre cut on the left side of the collar of the jacket which in fact did penetrate the fabric. The knives were seized and blood found on those knives included the blood of both Mr. Xie and Ms. Hao.

9. The E-Mail Evidence

[77] The Agreed Statement of Facts has attached to it numerous e-mails which appear initially to have been written in Mandarin but all of which have been translated into English. The translation is acknowledged to be accurate with a few small exceptions which were noted during the course of the trial by the interpreter assisting Ms. Hao. The content of the e-mails has been the subject of a good deal of reference by both the Crown and the defence. The Crown alleges that the contents of the e-mails clearly indicate Mr. Xie's intention to cause harm to Ms. Hao, and indeed to himself, if she in fact did not resume their relationship and/or communicate with him.

[78] That concluded the evidence for the Crown. The defence elected to call no evidence on the trial.

POSITION OF THE PARTIES

[79] The Crown submits that it has established beyond a reasonable doubt the essential elements of the remaining charge before the court, that Mr. Xie had the specific intent to kill Ms. Hao and stabbed her thereby wounding her. The Crown points to the controlling nature of Mr. Xie during his relationship with Ms. Hao, his despondency upon the breakup, his efforts to have the relationship continue by self-mutilating effectively playing on the sympathy and concern of the victim ironically for the health of the accused, all as a backdrop to the e-mail campaign initiated by Mr. Xie while Ms. Hao was in China.

[80] The Crown submits the e-mails (and in particular the e-mail of July 22, 2013) set out clearly the demands of the accused for the victim to maintain the relationship, failing which he would not only harm himself but would also "kill" the victim. The Crown submits the e-mails specifically address "the plan" of Mr. Xie and it was that plan he put into motion on September 23, 2013. The plan being to "kill" Ms. Hao and then himself, a plan that was thwarted only after the loss of the knife in the possession of Mr. Xie initially. At that point the Crown alleges the accused, given his actions up to the loss of the knife, still had the intent to kill himself and attempted to do so by cutting his neck as testified to by Ms. Hao. The second part of his "plan" as outlined in an e-mail was again a portion of the plan that was unsuccessful largely due again, ironically, to the actions of Ms. Hao.

[81] The Crown submits the history of the relationship, the contents of the e-mails, the investigation and preparation of Mr. Xie and the events leading up to September 23, 2013 clearly indicate Mr. Xie's intention to kill Ms. Hao on that date. The Crown further emphasizes the circumstances of the attack itself, the nature of the weapon and the location of the wounds to Ms. Hao all as supportive of Mr. Xie's intention to kill her.

[82] The defence submits the Crown's evidence falls short of establishing to the degree required the intent to kill. The defence points out the various e-mails acknowledging a strong circumstantial case, however, counsel notes some of the e-mails do contain lighthearted comments, must be read in context and a number of them have symbols which apparently are equivalent to "happy faces". The defence also points out that the alleged "plan" supposedly indicated in the e-mail of July 22, 2013 was sent some two months prior to the alleged "plan" being put into motion.

[83] The defence submits the attack as described by the Crown was not thwarted by the actions of Ms. Hao but the loss of the knife. The accused at that point had no intention to "finish off" what the Crown alleges he started but wanted to get another knife to commit suicide. The defence states there is no evidence of an ambush, the existence of a stabbing, the force necessary to cause the injuries or penetrate the coat fabric or the sharpness of the knife.

[84] Defence submits that the biggest obstacle the Crown faces is that there is no evidence as to how the wounds suffered by Ms. Hao were inflicted. There effectively is a "black hole" as to what occurred once Ms. Hao was dragged into the bush area as far as the mechanics of how she was cut. The defence points out the nature of the weapon (being a small knife), the lack of explanation as to how the injuries occurred, the absence of a life-threatening nature of those injuries, all as items that should cause the court concern.

[85] Those concerns together with the accused's actions and comments after the loss of the first knife should all result in there being a reasonable doubt as to the intention to kill.

[86] The defence does acknowledge that although there should be a reasonable doubt with respect to the charge of attempted murder, the way the charge has been particularized would leave it open to the court to find the accused guilty on the facts before it of a count of aggravated assault or assault with a weapon or assault cause bodily harm.

[87] Both counsel provided books of authorities and various case law to the court and during the course of their submissions made reference to that case law to assist the court.

ANALYSIS OF THE LAW AND FACTS

[88] The charge before the court is of course a criminal charge and as with all criminal offences the accused, in this case Mr. Xie, is presumed to be innocent until the Crown proves his guilt beyond a reasonable doubt. The burden or onus of proving the guilt of Mr. Xie to that degree rests with the Crown and it never shifts. Mr. Xie does not have to prove his innocence and I am to presume that he is innocent throughout my deliberations. I can only find him guilty if, after I consider all of the evidence, I am satisfied the Crown has proven the case to the degree required.

[89] I remind myself that it is my duty as a judge to consider the evidence carefully and dispassionately without any trace of sympathy or prejudice for or against anyone involved in this proceeding. Then, after reflecting upon all of the evidence of each individual witness, I must weigh it to make a decision as to whether I accept the entire evidence given by that witness, a portion of that evidence or none of the evidence given by that witness. After considering the whole of the evidence presented in the case I must reach a conclusion as to the guilt of Mr. Xie beyond a reasonable doubt or otherwise acquit him.

Mens Rea Required for Attempted Murder

[90] The mens rea for attempted murder is the specific intent to kill and a mental state falling short of that level, while it might lead to conviction for other offences cannot lead to a conviction for an attempt. The completed offence of murder involves killing and any intention to complete that offence must include the intention to kill. An attempt to murder should have no lesser intent.

[91] The crime of attempt developed as, and remains, an offence separate and distinct from murder. While the Crown must still prove mens rea and actus rea, the mens rea is the more important element. The intent to commit the desired offence is a basic element of the offence of attempt and indeed may be the sole criminal element in the offence given that an attempt may be complete without completion of the offence intended. (See Regina v. Ancio, 1 S.C.R. 225)

[92] The Crown then must prove beyond a reasonable doubt that Mr. Xie acted with the specific intent to kill Ms. Hao. The actus reus is complete upon the first step taken after preparation and formation of intent. Having formed the intent to kill, upon an accused doing any act required for the purpose of carrying out that intent, the offence is completed. (See Regina v. Gordon, 2009 ONCA 170, [2009] O.J. No. 724 at para. 56 (ONCA))

[93] In determining whether or not the Crown has proven beyond a reasonable doubt that the accused had the specific intent to kill, the court must use common sense, drawing inferences from all of the circumstances. In the absence of a direct expression of intent, the accused's specific intent to kill may be inferred from the totality of the facts, including the nature of the attack, the use of a weapon, the area of the victim's body that is attacked, the results of the attack, the evidence of premeditation or spontaneity, the presence or absence of defensive motivation, and any other surrounding circumstances that may form strands in the process of inference leading to a conclusion on the question of intention. (See Regina v. Payne, [2013] O.J. No. 3412 at para. 20 and Regina v. Ryan, [2008] O.J. No. 3111)

[94] The court is entitled to rely on the common sense inference that a "person usually knows what the predictable consequences of his or her actions are and means to bring them about." (See Regina v. Whalle, 2012 SCC 41 at para. 64) That common sense inference can, however be displaced if, after considering all the facts and circumstances the trier of fact believes or had a reasonable doubt that the inference should not be drawn. (See Regina v. Duguay, [1998] O.J. No. 277 at paras. 8 to 10 (ONCA) and Regina v. Szani, 2010 ONCA 316, [2010] O.J. No. 1757 at para. 22 (ONCA))

[95] As noted in Regina v. Malatesta, [2005] O.J. No. 820 (S.C.J.) at para. 52 in a case where the accused had not testified and there was no direct evidence as to state of mind, the court indicated:

"I must determine the accused's state of mind by drawing inferences from his acts, omissions and utterances before, during and after the assault."

[96] Further, in Regina v. Martin, [2007] O.J. No. 5837 confirmed on appeal 2010 ONCA 256, [2010] O.J. No. 1393 in order to determine the accused's state of mind, that is what he meant to do, the court indicated it must consider what in fact he did or did not do, how he did or did not do it, and what he did or did not say. The court instructed itself to look at his words and conduct before, at the time and after the incident in question. All of those things and the circumstances in which they happened shed light on the accused's state of mind.

The Definition of "Stabbing"

[97] The charge as laid sets out and particularizes the attempt to commit murder by alleging the "stabbing" of Ms. Hao with a knife, thereby wounding her, contrary to the provisions of the Code. The Crown acknowledges that it must therefore prove Mr. Xie stabbed Ms. Hao and thereby wounded her. The evidence would clearly indicate there was a wounding in place but the defence argues that the Crown has failed to prove beyond a reasonable doubt that Mr. Xie "stabbed" Ms. Hao with a knife.

[98] Both counsel have provided definitions of the terms "stab" or "stabbing" from various dictionaries. Those definitions include the following:

a) from the Shorter Oxford English Dictionary the word "stab" is defined as to wound with a thrust of a pointed weapon;

b) from the Dictionary of Canadian Law (4th Ed.) "stab" is described as a penetrating wound with greater depth than width;

c) from the Cambridge Dictionary "stab" is defined as to injure someone with a sharp pointed object such as a knife or to make a short forceful pushing movement with a finger or a long thin object;

d) from dictionary.com "stab" is defined as piercing or wounding with or as if with a pointed weapon, to thrust, plunge or jab into something, to penetrate sharply or painful and to make a piercing, thrusting or pointing motion at or in. As well, "stabbing" is defined as to deliver a wound as with a pointed weapon or to thrust with or as if with a knife or other pointed weapon;

e) in Regina v. Florence, 2012 BCSC 799 (British Columbia Supreme Court) at paragraph 136 it was noted: "The difference between a stab wound and a cut is determined by the dimension, rather than the mechanism or motion of inflicting the wound. A stab wound is a sharp force injury where the depth of penetration is greater than the dimensions of the wound on the skin surface. A cut is the opposite where the dimension on the skin surface is greater than the depth. In other words if the wound is deeper it is referred to as a stab and if it is longer it is defined as a cut."

[99] Much of the evidence in this matter has been agreed to or not seriously disputed. I have gone through the evidence in some detail in this judgment and have considered all of the evidence presented as well as reviewing the appropriate case law and submissions of counsel. The defence position seems to be primarily focussed on the absence of evidence, particularly as to the exact nature of what took place in the bush area at the time the injuries were inflicted. I have considered that matter and other submissions made but ultimately I find I am satisfied beyond a reasonable doubt that the Crown has proven the charge of attempted murder and all of the essential elements of that particular offence. I say that for a number of reasons.

1. Dealing initially with the evidence of Ms. Hao. She presented as a soft-spoken, mild-mannered individual who from her evidence and conduct it is clear cared very much for Mr. Xie's well-being. She remained in a relationship that was problematic for her for a considerable period of time because of Mr. Xie's tendency to self-cut. This was so notwithstanding her desire it would appear following the completion of high school to, if not end, at the very least monitor the relationship she had with the accused.

Mr. Xie was aware of that and I find he took steps to manipulate Ms. Hao into continuing the relationship through his exercise of self-cutting. This appeared to be a regular occurrence in the year preceding the events in question. When that practice no longer had the impact that he wished, Mr. Xie became depressed and frustrated as evidenced by the contents of his e-mails.

Ms. Hao presented as a witness who was honest, candid, and forthright. She was not a witness who exhibited any degree of animosity towards the accused and she was fair in her responses, not only with respect to the e-mails, but also with respect to the events of September 2 and 23, 2013. The court finds she truly cared for Mr. Xie but did not want to continue the relationship with him. Her desire was to end the relationship in a mature and responsible fashion. She took steps upon her return from China both by e-mail and a phone call to address issues. She took steps on September 2, 2013 to meet with him in person, notwithstanding her obvious concerns expressed about the various e-mails that she had received from Mr. Xie up to that date. Even on September 23, 2013 after being attacked by Mr. Xie, she took steps to attempt to assist him after he had cut his own throat. She applied pressure to the wound, she called 911, she attempted to cover for him somewhat by advising a passer-by that there had been an "accident", she patted him on the back trying to console him and was distressed enough at the scene to worry about his well-being over her own.

Ms. Hao presented as a witness who wished to end a relationship which she was very much entitled to do. Mr. Xie presents as an individual, as evidenced by his own e-mails and actions, who would not accept that. Ms. Hao's evidence was consistent in-chief and in cross-examination. There was not a hint of exaggeration or embellishment and the court accepts her evidence without any concern.

2. The history of the relationship as described by Ms. Hao indicates Mr. Xie was an individual who could not bring himself to allow her to end their relationship. His self-cutting practice continued prior to Ms. Hao travelling to China and while the parties were attending the University of Toronto. Mr. Xie's e-mails must be read in their entirety and in the context of the breakdown of their relationship at the time which would clearly and reasonably cause Ms. Hao to be concerned. The court has reviewed the e-mails and they have been referred to extensively by both counsel. The court disagrees with the defence classification of the e-mails as light-hearted on occasion to any extent. In fact, the e-mails in their entirety show a persistent theme of conduct and the goal of Mr. Xie to have Ms. Hao remain in a relationship that she did not wish to continue.

When Ms. Hao travelled to China in May of 2013 for a vacation she spoke with Mr. Xie and indicated her desire to end the relationship. She confirmed that position by e-mail. It is in the context of that e-mail and the conduct of Mr. Xie prior to May 2013 that the e-mails must be viewed.

3. I find Mr. Xie embarked on a course of conduct of sending e-mails to Ms. Hao in China, all obviously designed to have her effectively change her mind about ending the relationship. The e-mails she received while in China were not responded to. The comments showing the goal of Mr. Xie in the various e-mails include the following:

i. Mr. Xie was continuously pleading or "begging" with Ms. Hao not to "leave me", to contact him and for Ms. Hao not to "abandon" him and to "please come back". As he indicated, he was "begging you in tears".

ii. That she will "not be rid of him", he will find her, will transfer and locate her and is getting information on her whereabouts "like a detective". In some of the e-mails the accused drops pieces of information as to her address, e-mail contact, courses, bus route and even details of her return to Canada in July of 2013 which clearly indicate he was doing just what he stated. He indicated "I will find you in the end", "you really can't break up" and "I now know Waterloo more than you". He acknowledged he was "collecting your information".

iii. Mr. Xie implies and on occasion specifies that he will harm himself and continue to "cut" himself if Ms. Hao does not contact him or reconsider her decision. Some of the references in his e-mails include "to cut or not to cut". At one point he states, "Do not abandon me, OK, I'm begging you. Why…do you not believe I will die?". On another occasion he states, "But after we get back together, let's put it this way, I won't hurt myself in exchange for you not leaving, how's that?". He speaks of his "arms and legs will never recover" and he speaks on occasion of the "condition of his body".

On another occasion he states, "Nevertheless I'm really fragile right now and for my limbs to exist each day nothing can be changed".

There are other references to self-harm in the e-mails which are confirmed as well in the Agreed Statement of Facts. (See paras. 4, 5 and 22(i)).

iv. Mr. Xie also makes a reference to "harming or killing" Ms. Hao in various e-mails. He indicates on more than one occasion if Ms. Hao does not contact him the consequences will be severe. For example, "Either agree or die" and that she must reply "or else will really kill us both". He speaks of a dream where Ms. Hao was with another male and if that was true, he indicated "I will definitely hack you both with a blunt knife". Even the e-mails in August after her return from Canada contain references to killing Ms. Hao and then committing suicide. (See e-mails of August 3 and August 25, 2013).

4. The e-mail of July 22, 2013 deserves particular attention in understanding the intention of Mr. Xie as the court has found it. It is to be remembered this e-mail is sent after Ms. Hao returns to Canada with the obvious knowledge of Mr. Xie of the particulars of her return although she had not told him. It is sent in the context of Mr. Xie having failed, notwithstanding the e-mail campaign while Ms. Hao was in China, to have her reconsider her position.

I accept Ms. Hao's evidence that when she received that e-mail she was "very scared". Indeed, in order to bring matters to a head she finally responded by e-mail in what appears to be a last-ditch effort to help Mr. Xie understand her position and the reasons for her decision. She also had a telephone conversation with Mr. Xie to try to explain, all of which were unsuccessful.

The e-mail of July 22, 2013 specifically sets out what appears to be a plan to kill Ms. Hao and rightfully cause Ms. Hao to fear for her safety. (See Tab 2 Agreed Statement of Facts). That e-mail indicates as follows:

"You only have one option. If you do not make a choice, if I throw the first punch to hit you then we are really finished, perhaps you and my family." "If you do not make a choice I will definitely strike you but after I struck you I will not let you go away."

Mr. Xie in that e-mail speaks of having "five knives at home". Mr. Xie also speaks of others being concerned about his actions and ultimately states, "Therefore do not let me throw the first punch at you because after I will not let you go, I will kill you with a knife and then commit suicide. I have made some research, I am an adult, if I kill you and then commit suicide there will be no bearing whatsoever on my parents or family, your family will only get compensation from me, and perhaps the maximum will be $30,000 for my tuition fee". In the e-mail he indicates he will pay cash when he buys the knife so there will be no "trace left behind", that he has "checked out the forest in Waterloo as well as the forest beside your family's home, I can strike there; but there's no need because if you change to another university, I can kill you straightaway on the road." I accept Ms. Hao's evidence that the contents of this particular e-mail caused her concern and any contact thereafter by phone and the e-mail sent at 11:05 p.m. were, I find, an effort by Ms. Hao to attempt to have Mr Xie understand her position.

5. The meeting of September 2, 2013 came about as a result of Ms. Hao's feeling she must meet the matter head on as she had seen Mr. Xie in her neighbourhood while with her mother. She contacted Mr. Xie as she was satisfied he knew where she was and would eventually come into contact with her. The meeting was arranged and Ms. Hao contacted Mr. Xie's cousin to advise of the meeting. The cousin advised Ms. Hao accordingly and was concerned enough to phone the police and alert them as to their meeting.

During the phone call with Mr. Xie leading up to the arranging of the meeting, Mr. Xie indicated to Ms. Hao that she did not care if he "lived or died" and indicated that, among other things, "I may really kill you". The meeting took place, Ms. Hao was concerned Mr. Xie had a knife in his pocket as he had his hands in his pocket. The police arrived and warned Mr. Xie that he was to have no contact with Ms. Hao. There was in fact no contact thereafter until September 23, 2013, the day of the attack.

It is self-evident Mr. Xie would not have been pleased the way the meeting went with the presence of the police. That was certainly a concern as evidenced by when Mr. Xie finally did isolate Ms. Hao on September 23, 2013 one of his first questions was why she had called the police.

6. On September 23, 2013 I find that Mr. Xie presented as depressed, desperate and that he intentionally set out to carry out the various threats he had made in the manner described in his e-mail of July 22, 2013 to kill Ms. Hao. The Agreed Statement of Facts speaks to the background of the rental of a vehicle by a friend under the false pretence indicated by Mr. Xie that he needed to assist someone moving in Toronto. The vehicle was seen on Quiet Place on more than one occasion prior to the actual meeting of Ms. Hao and Mr. Xie, indicating Mr. Xie had gone to some effort to locate Ms. Hao and wait for her. (See paras. 15 and 16 of the Agreed Statement of Facts).

Although there was no ambush in a traditional sense on that date, Mr. Xie finally was able to isolate Ms. Hao, called her name from behind and she turned around. He then directed her to sit on the curb and expressed displeasure with respect to the police having been called and again tried to have her recommit to the relationship. When she refused he then put his fingers in her mouth and dragged her into the bush area. All of this is uncontested. Ms. Hao's evidence is extremely compelling as to the circumstances surrounding the event and as to how she got in the bush.

It is true that once she is in the bush, and for probably quite understandable reasons, she was unable to recall the exact mechanics of how her neck was cut or how she ended up on her front facing the ground and then for the first time appreciating she was bleeding. What is clear, however, is that there was force used to remove her into the bush area, Mr. Xie had a knife with him, there are superficial cuts to the front of Ms. Hao's neck as well as a four to five centimetre wound on the side of her neck that was clinically deep. There was also damage to a wool coat in the neck area, and not only the fabric but the button of that coat, which would clearly indicate some degree of force being used around the frontal area of the neck and either initiating or perhaps ending at the wound on the left side of the neck. It is clear, and the court finds, that the weight of the fabric together with the button deflected the force of the use of the knife somewhat as evidenced by the cuts in the fabric, one of which was right through, resulting in superficial wounds by good luck and not good planning to the front of Ms. Hao's neck.

Dr. Hasan provided evidence with respect to his treatment of the wound of Ms. Hao. He confirmed the superficial lacerations on her neck but also the clinically deep wound on the side of her neck which required four stitches. He also gave evidence with respect to the vital structures that are found within the neck in the areas of both the superficial cuts and the deeper wound and the life threatening nature of damage to those particular areas.

7. I find on the evidence that Mr. Xie's attempt to kill Ms. Hao was compromised by the loss of the knife. There had been some scuffle previously between the two of them in an effort by Ms. Hao to ward off Mr. Xie by grabbing his shirt. Somewhere in the melee that followed and when she finally ended up face down on the ground the knife was misplaced. It would be highly unusual, and I find not the case, that Mr. Xie lost the knife while self-inflicting injuries to himself. There was some blood on his vehicle and indicative of some form of injury when he returned to his vehicle to get the second knife. The presence of that blood is unexplained, but it may have been caused by a self-inflicted injury prior to returning to the car (but that is mere conjecture).

Mr. Xie leaves the scene, tells Ms. Hao to remain and she does so out of fear and lack of present support. Mr. Xie returns, takes the second knife and then in another area of the bush slashes his wrists, as Ms. Hao stated in her uncontradicted evidence, and then his neck. She makes efforts to console him, stop his bleeding and although at that point it would appear Mr. Xie had abandoned his efforts to kill Ms. Hao, he seemed intent to carry out the second part of his plan, that is to commit suicide.

He made no efforts to contact 911 to assist Ms. Hao when he returned to the vehicle and the serious nature of the wound that she suffered was recognized by Mr. Xie as he presented her with a cell phone upon his return and told her to call 911 if she did not think she was "going to make it".

[100] With respect to the issue of whether or not the wound was caused by a "stabbing", I am satisfied that the evidence clearly establishes a piercing or wounding with the knife. Although there is no evidence as to the sharpness of the knife, the knife used was certainly capable of cutting Ms. Hao in a significant fashion. There also is no evidence with respect to the use of force but a reasonable inference on the evidence is that the force was significant given the fact that the fabric on the coat was cut and there still was sufficient force to cause the wound on the left side of the neck which was clinically deep. There is no exact evidence as to the depth of that particular wound but I find it was a penetrating wound and, together with the doctor's evidence otherwise, would indicate that it was of some depth, although fortunately not sufficient to attract injury to any major arteries or veins in the area.

SUMMARY

[101] In conclusion then, I am satisfied that the history of the relationship as explained by Ms. Hao, the contents of the various e-mails which clearly show premeditation and intention to kill, the capability of Mr. Xie to carry out his plan and the steps that he took with regard to locating Ms. Hao and, specifically, the references in his e-mail of July 22, 2013 as to how he would implement the plan are all factors that lead the court to be satisfied beyond a reasonable doubt as to the guilt of Mr. Xie.

[102] Further, in addition to the e-mails, the meeting on September 2, 2013 and the steps that Mr. Xie took after that meeting and before September 23, 2013 together with the comments made to others clearly indicate Mr. Xie was intending to confront Ms. Hao and if her position remained the same then he was intent on killing her.

[103] The attack took place in a relatively secluded area with some besetting in place prior to the actual meeting as evidenced by the presence of the vehicle during that morning. When Ms. Hao refused to comply with the demands of Mr. Xie she was dragged forcibly into the bush area with Mr. Xie's fingers in her mouth to impede her screams. He then violently attacked her and attempted to cut her throat, which attempt was unsuccessful not because of the lack of force or change of mind on the part of Mr. Xie but simply because of the fabric on the coat and the loss of the knife. The nature of the weapon and the wound itself together with the premeditation and the history of the matter leave the court with no doubt, reasonable or otherwise, that all essential elements of the charge have been proven.

[104] There will be a finding of guilt and a conviction registered on this count.

Released: July 24, 2014

Signed: "Justice G. F. Hearn"