WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER

Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: September 13, 2017

Court File No.: London 16 8442

Between:

Her Majesty the Queen

— and —

Jeremy Reddick

Before: Justice Harris Bentley

Heard on: July 27 and 28, August 2 and 3, 2017

Reasons for Judgment released on: September 13, 2017

Counsel

For the Crown: Roger Dietrich, Jeremy Carnegie

For the Defendant Jeremy Reddick: Aaron Prevost

Judgment

Harris Bentley J.:

Charges and Concessions

[1] The accused, Jeremy Reddick, is charged with second degree murder of Dakoda Martin contrary to section 235(1) of the Criminal Code of Canada (Criminal Code) and aggravated assault of Andre Williams contrary to section 268(2) of the Criminal Code.

[2] A four day preliminary hearing was held July 27 and 28 and August 2 and 3, 2017.

[3] Counsel for the defence concedes that there is sufficient evidence to commit the accused on the charge of aggravated assault against Andre Williams.

[4] The defence also concedes that there is sufficient evidence to commit the accused on the lesser offence of manslaughter of Dakoda Martin in that there is evidence before the court from which reasonable inferences can be drawn that the accused stabbed Mr. Martin with a knife and caused his death. The defence argues, however, that there is no evidence from which it can be reasonably inferred that the accused had the subjective foresight of death.

[5] For the reasons that follow, I find that there is some evidence upon which a jury, properly instructed, could reasonably infer that the accused knew that stabbing Mr. Martin in the upper chest four centimetres from his heart would likely cause his death and that he was reckless whether death ensued or not. I therefore commit him to stand trial on second-degree murder.

Evidence

Civilian Witnesses

[6] Evidence from many witnesses established that the accused, Dakoda Martin, Andre Williams, a man called Chase, Aliesja Alverado-Bayes and Chantelle Daw gathered at a picnic table in Victoria Park near the corner of Dufferin Avenue and Clarence Street in London, Ontario. Some of the group were drinking alcohol and all had consumed alcohol before arriving at the park. By all accounts, the members of the group were enjoying themselves from approximately 12:30 a.m. until 3 a.m.

[7] At approximately 3 a.m., an argument ensued over an issue between the accused and either one or both of Ms. Alverado-Bayes and Ms. Daw. The argument was between the accused and Mr. Martin and Andre Williams. It was verbal at first and then became physical.

Andre Williams

[8] Andre Williams testified that he had had about 10 drinks before attending at the park and once there, he consumed marijuana. He said that at some point, Ms. Alverado-Bayes asked him to tell the accused to leave her alone as she wanted him to stop "hitting on her". Mr. Williams told the accused to leave her alone.

[9] Mr. Martin then told the accused to leave Ms. Alverado-Bayes alone and a fight broke out between Mr. Martin and the accused. They were pushing and shoving each other. Mr. Williams saw the accused hit Mr. Martin with one shot with his hand and Mr. Martin was then on the ground. Mr. Williams thought that Mr. Martin was knocked out.

[10] Mr. Williams also testified that he did not know how both the accused and Mr. Martin came to be on the ground afterwards. Mr. Williams pushed the accused off Mr. Martin, saying, "What the fuck are you doing?" Mr. Williams was punched by the accused on the back near his lungs. He later found out that he had been stabbed where he thought that he had been punched. Mr. Williams never saw a knife or any other weapon.

[11] Medical evidence was available but not adduced at court and the defence conceded that it would show that the injury to Mr. Williams was sufficiently serious to make out the element of the aggravated assault charge requiring the accused to wound, maim, disfigure or endanger the life of Mr. Williams.

[12] Mr. Williams testified that the accused left the scene looking stunned and shocked.

Aliesja Alverado-Bayes

[13] Aliesja Alverado-Bayes testified that she had met some of the men in the group at the Grinning Gator well before going to Victoria Park. At that time, she had observed the accused to have a small folding knife on his keychain.

[14] Once at the park, she testified that she walked around the park speaking with her boyfriend on the phone for about one and a half hours. When she came back to the group, she told Mr. Williams that he needed to tell his cousin, the accused, to stop bothering her. She had been complaining about his behaviour all day and the accused had approached her again while she walked around the park. She then left the group to charge her cell phone with Ms. Daw.

[15] After at least five minutes, when she turned around towards the group at the picnic table, she saw Mr. Williams, Mr. Martin and the accused arguing. She grabbed her charger and returned. Ms. Daw was saying that she had been hit and Mr. Martin was asking why the accused was hitting a female. She observed the accused and Mr. Martin hitting each other. Mr. Williams was not involved with the fighting at this time. It was never a two on one situation. Mr. Martin fell over and to Ms. Alverado-Bayes, it looked as though Mr. Martin was knocked out. Then Mr. Williams went over and "got into it" with the accused. Ms. Alverado-Bayes never saw the accused on the ground with Mr. Martin.

[16] Ms. Alverado-Bayes went to Mr. Martin and held him in her lap. She noticed nothing at first and then saw blood appear on his right upper chest. She was not observing what was happening with the accused and Mr. Williams as she was worried about Martin dying on her lap.

Chantelle Daw

[17] Chantelle Daw testified that she and Ms. Alverado-Bayes met the males in the group at Dundas and Richmond and headed to Victoria Park. Later in the evening, when Ms. Alverado-Bayes returned to the picnic table after speaking to her boyfriend on the phone, the two went to the bathroom. As they came out of the bathroom, she could see that there was an argument between Mr. Williams and the accused. Ms. Daw could hear yelling but not what was being said. Ms. Daw went to the picnic table and tried to tell Mr. Williams to relax and let it go. The argument was about a comment which the accused had made to the two women.

[18] Ms. Daw was then hit in the back of the head. She thought it was by the accused but did not see who had hit her. Immediately afterwards, Mr. Martin ran towards the accused and started fighting with him. Very quickly, Mr. Martin dropped to the ground. Ms. Daw did not see the accused do anything which caused this to happen nor did she see a weapon. Mr. Martin lay there not moving and she ran to him. After seeing blood on the collar of his shirt, she and Ms. Alverado-Bayes lifted his shirt and saw that he had a wound which was bleeding. Ms. Daw hugged Mr. Martin and told him it was going to be okay. He was not able to communicate with her.

[19] The whole thing happened very quickly and Ms. Daw did not remember seeing the accused and Mr. Martin fighting on the ground. She said that Mr. Williams did not get involved in the physical fight between Mr. Martin and the accused.

Jonathan Jones

[20] Jonathan Jones worked as a security guard at a downtown London club. At approximately 3 a.m. on May 28, 2017, he had finished work and was walking to his girlfriend's house. He had not consumed any drugs or alcohol. As he walked north on Clarence Street and was approaching Dufferin Avenue he heard a commotion.

[21] He looked over and saw a group of roughly six individuals in the park. The yelling got louder and he noticed a large male with a buzz cut and a yellow t-shirt yelling at one of the females in the group. She was slender, had dark hair and was wearing a black dress.

[22] Mr. Jones saw one of two smaller males become involved, yelling at the large male. He was lighter skinned. Mr. Jones crossed the street and while walking across, the large male started swinging at the smaller black male. The lighter skinned male yelled at the large male. The large male swung wildly at both of them with both hands. Mr. Jones called the police at this point.

[23] Mr. Jones then went by some bushes which obstructed his view. When he got to the other side, the pale male was lying on the ground not moving. The darker male was creating distance between himself and the large male. The large male then took two to three steps towards the lighter male and hit his chest with his fist as he lay flat on the ground.

[24] Mr. Jones heard shouting of, "You cut me with a knife." The large male walked off at a quick pace between walking and jogging to Dufferin and Clarence going southbound. While on the phone with police, Jones heard someone say something about a knife and, "You stabbed him". Jones observed cruisers and police stop an individual at Queen Street and Clarence Street. This was the same individual whom he had described as the large male with the yellow t-shirt.

Police Evidence

[25] Officer Evan Harrison was dispatched to the scene at 3:30 a.m. on May 28, 2016, where he was instructed to look for a knife. With the assistance of Berryl Gelderland, an employee from City Works, he located a folding knife beneath a grate on the south side of Dufferin Avenue approximately 25 – 30 meters from the picnic table. This grate would have been on or close to the path the accused took when he left the scene.

[26] Officer Nick Doering was dispatched at 3:01 a.m. to a "weapons in progress" call. He arrived 20 seconds later to the corner of Clarence and Dufferin. There, he met with witness Jonathan Jones. He asked the witness where the male went who stabbed the victim. Mr. Jones pointed out a male in a yellow t-shirt who was walking southbound on Clarence about 50 meters away.

[27] Officer Doering ran after him and notified police that he was in pursuit of the suspect. As he got to Queens Avenue, the suspect, who was later identified as the accused, turned around with a phone to his ear. Two other officers directed him to the ground. The accused was compliant with their commands and he was arrested for aggravated assault.

[28] Within 10 seconds a second male, being Mr. Williams, arrived walking towards the police. He also was arrested for aggravated assault. During a search of Mr. Williams, the officer noted a 2 inch slice to the back of his shirt. He lifted the shirt and observed a cut about 2 inches left of the spine.

[29] Officer Tom Policelli arrested the accused and noted that he had injuries, being a swollen top lip, soreness to the right side of his face and to the back of his head. He was wearing a yellow t-shirt which was ripped below the armpit. He had blood on his right shoulder. The accused was also wearing blue jeans which were ripped in the crotch.

[30] Officer Policelli had work experience observing people under the influence of drugs and alcohol. He was with the accused for about 45 minutes and did not observe any signs of impairment either by drugs or alcohol.

Evidence of Dr. Elena Tugaleva

[31] Dr. Elena Tugaleva was qualified as a forensic pathologist able to give opinion evidence in the cause and mechanism of death. She conducted an autopsy on Mr. Martin and determined that the cause of death was a stab wound to the right chest.

[32] The stab wound was located 2.5 cm from the midline plane just under the clavicle as shown in Exhibit #6. It was 2.5 cm in length on the surface of the skin and 8 cm deep. The path of the wound was from front to back, from right to left and downward.

[33] The wound track perforated through the skin, subcutaneous fat and pectoral major muscle, then through the first intercostal space and cartilage of the right second rib. The track perforated through the right upper lung lobe and entered the superior mediastinum causing a marginal wound to the superior vena cava – the largest vein in the body. The wound track further penetrated into the pericardial cavity causing a 1 cm wound of the ascending aorta where the wound track terminated. The aortic wound was approximately 4 cm above the aortic valve.

[34] Clotted blood and fluid was found in the right and left pleural cavities. The mechanism of death was cardiac tamponade (blood in the pericardium putting pressure on the heart) and hemothorax (blood in the chest cavity). It would have taken a very short time to die.

[35] Dr. Tugaleva also located a perforating stab wound to the right upper arm. The wound began on the front of the right upper arm and exited on the underside of the arm as shown in Exhibit #7. The wounds were 4.5 cm apart. The wound track was similar in direction to the chest wound. The wound occurred before death and probably at the same time as the chest wound.

[36] Dr. Tugaleva also located a hemorrhagic stab-incised wound to the right thigh shown in Exhibit #8. The wound was 9.6 cm long on the surface of the skin. The wound track was 6.5 cm deep and had a right to left, upward and front to back course. The wound occurred before death and probably at the same time as the chest wound.

[37] Dr. Tugaleva located superficial wounds to the right and left hands as shown in Exhibits #9 and #10. These wounds were consistent with a person taking defensive measures, covering their organs with their hands or trying to take a sharp object from the assailant. She agreed that the wounds could have been caused by more than one sharp object.

[38] Dr. Tugaleva testified that the weapon would have had to have a sharp tip and a blade like a knife. It could be a knife. The doctor never saw the recovered knife and did not make any analysis of whether that might have been the weapon. She did not see any pictures of its blade.

[39] Although Dr. Tugaleva was unable to say how much force was used in creating the chest wound, she indicated that it would have taken some force to penetrate the skin, depending on the sharpness of the tip of the knife, and more force going through the cartilage than if the weapon were going through soft tissue.

[40] When asked a hypothetical about whether there would be sufficient force to make the wound if the assailant had a knife with the tip down and was rolling on the ground with the deceased, Dr. Tugaleva indicated that it would be difficult to create the wound from that position because of the direction of the wound inside the body. It would be even more difficult if the tip of the knife was facing up as the direction of the wound was downwards.

Position of the Parties

[41] The parties agree that all the essential elements of the offence of second degree murder have been met other than the subjective foresight of death.

[42] There is direct evidence of a physical altercation between the accused and Mr. Martin during which Mr. Martin suffered injuries which led to his death.

[43] There is no direct evidence of a knife being used but there is evidence that Ms. Alverado-Bayes saw the accused in possession of a knife, that there were wounds consistent with being created by a knife, and that a knife was found on the path that the accused took from the picnic table area to the place where he was arrested. Along with the evidence of what occurred during the altercation, there is circumstantial evidence from which it could be reasonably inferred that the accused stabbed Mr. Martin.

[44] A further reasonable inference from this evidence, as well as the evidence of numerous stab wounds, is that the accused meant to cause Mr. Martin bodily harm as common sense dictates that people usually are able to foresee the consequences of their actions. One could foresee that the act of stabbing an individual numerous times would result in bodily harm.

[45] The issue in contention is whether it can be reasonably inferred that the accused knew that the bodily harm was likely to cause death and was reckless whether death ensued or not.

Crown's Position

[46] The Crown takes the position that there is some evidence from which a reasonable inference may be drawn that the accused meant to cause Mr. Martin bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not.

[47] The Crown points to various pieces of evidence from which it could be inferred that the accused had the requisite knowledge. He points in particular to the wound which caused Dakota Martin's death. The location of the wound in his upper chest would lead to the common-sense inference that the accused knew his action would likely cause Mr. Martin's death.

[48] The Crown also points to Mr. Jones' evidence that the lighter person, a person who could be inferred to be Mr. Martin, was lying on the ground, apparently unconscious, when the bigger person with the yellow t-shirt, a person who could be inferred to be the accused, took two to three steps towards him and struck him directly in the chest. The Crown contends that that deliberate act by the accused towards Mr. Martin on the ground can support the common-sense inference that the accused intended to stab Mr. Martin and cause his death.

Defence Position

[49] The defence takes the position that there is no evidence from which a reasonable inference may be drawn that the accused meant to cause Mr. Martin bodily harm that he knew was likely to cause his death and was reckless whether death ensued or not. Such an inference would only be based on impermissible speculation. The accused should therefore be committed only on manslaughter.

[50] The defence argues that the court should exercise its gatekeeping function in the course of the limited weighing of evidence with respect to the evidence of Mr. Jones. Mr. Jones' evidence of the 2-3 steps taken by the accused and the striking of Mr. Martin in the chest was not mentioned in any previous statement given by Mr. Jones to police. The defence suggested that this evidence is almost valueless, being first mentioned at the preliminary hearing. He likened it to the value of in-dock identification.

[51] The defence also points to the nature of the fatal wound. He argues that Mr. Martin was stabbed close to the neck in the chest and not directly in the heart. He was not slashed in the neck. The defence pointed to R. v. Oag, an unreported decision of Madam Justice J. LeRoy of the Ontario Court of Justice of April 20, 2016. In that case, the accused struck the deceased with a sharp object in the thigh, cutting the femoral artery and causing his death. Justice LeRoy found that there was no evidence that Mr. Oag knew stabbing the deceased in the leg in the manner he did would likely cause Mr. Sturgeon's death. As a result, Mr. Oag was discharged of second-degree murder but committed on manslaughter.

[52] The defence argued that as a result of the quick unfolding of events, the accused leaving immediately following the altercation, that he was co-operative with police, and that he had sustained injuries, the only reasonable inference with respect to intent, at its highest for the Crown, is recklessness on the accused's part. He points to R. v. Murray, [1994] O.J. 2099 where the Ontario Court of Appeal sets out that recklessness is not sufficient to satisfy the intent requirements for murder.

The Test for Committal at a Preliminary Inquiry

[53] Part XVIII of the Criminal Code states:

548(1) When all the evidence has been taken by the justice, he shall

(a) if in his opinion there is sufficient evidence to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction, order the accused to stand trial; or

(b) discharge the accused, if in his opinion on the whole of the evidence no sufficient case is made out to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[54] The test for committal on a preliminary inquiry as articulated in United States of America v. Shephard, [1977] 2 S.C.R. 1067 at page 1080, requires the justice to determine,

...whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "justice", in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[55] In R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the Supreme Court set out at paras. 29 to 30 that the test is the same whether the evidence is direct or circumstantial.

29 …Where the Crown adduces direct evidence on all the elements of the offence, the case must proceed to trial, regardless of the existence of defence evidence, as by definition the only conclusion that needs to be reached is whether the evidence is true. However, where the Crown's evidence consists of, or includes, circumstantial evidence, the judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty.

30 In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of "limited weighing" never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.

[56] In the case at bar, there is no direct evidence of some elements of the offence. I must therefore engage in a limited weighing of the circumstantial evidence to determine if it is capable of supporting the inferences advocated by the Crown. I ought not to consider the credibility nor the reliability of the evidence.

[57] The Ontario Court of Appeal in R. v. Dwyer, 2013 ONCA 358 at para. 4, held that,

Reasonable inferences are not necessarily likely or probable inferences. Difficult inferences to draw may nonetheless be reasonable.

[58] The Supreme Court of Canada in R. v. Sazant, 2004 SCC 77, [2004] 3 SCR 635 at para. 18 articulated the treatment of competing inferences,

… a preliminary inquiry judge is not permitted to assess credibility or reliability, and that where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. A preliminary inquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction.

and similarly, in R. v. Jackson, 2016 ONCA 736 at para. 8, the Ontario Court of Appeal states,

[7] In conducting this limited weighing, the preliminary inquiry judge takes the case for the Crown at its highest, meaning she accepts the credibility of the evidence relied on by the Crown and assumes the reasonable inferences from the primary facts that are most favourable to the Crown: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18; R. v. Foster (2008), 76 W.C.B. (2d) 769, at para. 31 (Ont. S.C.); and R. v. Howells, 2009 BCCA 460, 85 W.C.B. (2d) 370, at paras. 13-14.

[8] If the preliminary inquiry judge decides that on a view of the evidence most favourable to the Crown, the circumstantial evidence could reasonably support the inferences necessary to establish guilt, she must commit the accused for trial. It is irrelevant that the evidence also supports inferences inconsistent with guilt.

Analysis

[59] Revealing information for the first time at court does not carry the same import with respect to reliability as an in-dock identification. It is not so notorious a matter that the judge must reject the evidence as inherently unreliable. The court must accept the credibility of the evidence of Jonathan Jones. Rejecting it simply because it was not reported in any prior statement to police would be, in effect, weighing the evidence, something the court cannot do. To do so would have the court act in excess of its jurisdiction.

[60] The evidence of the accused taking two to three steps towards Mr. Martin and stabbing him in the chest while he lay unmoving on the ground and when he was not a threat to the accused, is a strong factor showing the accused's intent. This was not a melee where he was defending himself from the attack of others. It was a deliberate action to a vulnerable area of the body from which it could be inferred that the accused had the subjective foresight of death.

[61] The defence referred to R. v. Oag, an unreported decision of Madam Justice J. LeRoy of the Ontario Court of Justice of April 20, 2016. In that case, a fast-moving altercation took place where the accused struck the deceased with a sharp object in the thigh, cutting the femoral artery and causing his death. The accused had sustained injuries to himself and he called for emergency services at the end of the incident to assist the diseased. Justice LeRoy found that, given all the circumstances surrounding the altercation and because a reasonable person would not necessarily believe that a stab wound to a leg would kill someone, there was no evidence that Mr. Oag knew stabbing the deceased in the leg in the manner he did would likely cause Mr. Sturgeon's death. As a result, Mr. Oag was discharged of second-degree murder but committed on manslaughter.

[62] The Oag case is distinguishable from the case at bar as the stab wound in this case is to the chest. In setting out the defence position, LeRoy J, at page 9, indicated that one of the factors was

…where the wounds were not found on Mr. Sturgess, specifically the face, neck, chest or back, (those places where the likelihood of death resulting from injuries would be more apparent) …

(Emphasis added)

[63] In the case at bar, the fatal injury was to the chest. The wound was 8 cm. deep. It perforated the lung, wounded the largest vein in the body and the aorta approximately 4 cm. above the heart. The likelihood of death was all too apparent as the result of the many important organs, veins and arteries in the chest area.

[64] I therefore find that it would be reasonable to infer that the accused knew that the bodily harm caused by the stabbing of the chest was of such a nature that it would be likely to cause death.

[65] If I am wrong in not rejecting Mr. Jones' evidence, I find that the repeated stabbing of Mr. Martin with such force that it resulted in serious wounds, including the chest wound near the heart, the stab completely through the arm and the deep thigh wound could lead to the reasonable inference that the accused knew that he would cause bodily harm which would likely cause death.

[66] Mr. Reddick, I am committing you to stand trial on second-degree murder with respect to Mr. Martin and on aggravated assault on Mr. Williams.

Released: September 13, 2017

Signed: Justice Wendy Harris Bentley