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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: 2018-03-07

Court File No.: Niagara Region 998 17 SR0980

Between:

Her Majesty the Queen

— AND —

Justin Kuijer

Before: Justice J. De Filippis

Heard on: February 8, 9, 13, & 26, 2018

Reasons for Judgment released on: March 7, 2018

Counsel:

• Mr. T. Jacob & Ms. A. Woolf — counsel for the Crown
• Mr. S. Reid & Mr. J. Mencel — counsel for the accused

Decision

De Filippis, J.:

Introduction

[1] The defendant was charged with the first degree murder of Nathan Dumas, his seven year old step-son, and the attempted murder of Melanie Dixon, a loans officer at a bank. I heard from 20 witnesses. For purpose of this preliminary hearing, the Defence does not challenge much of the evidence, including that which establishes that the defendant caused the death of Nathan Dumas and attacked Melanie Dixon.

Evidence

[2] Whitney Dumas and the defendant had been in a common law relationship for the past five years and had two children together, Austin and Brooklyn Dumas. Nathan Cave (referred to as Nathan Dumas in the Information) is the child of a previous relationship between Whitney Dumas and Robert Cave. Recently Whitney and the defendant have had difficulties in their relationship due to finances. Prior to moving to their present address they owned a home in another part of St. Catharine's. This home was forfeited to the bank.

[3] On March 17, 2017 at 10:25 AM police attended 173 Queenston Street in the city of St. Catharine's regarding an assist ambulance call for service. This is a building with a residential apartment on the upper floor and a fast food business on the lower floor. The emergency call was to attend the upper apartment which is located off the first door to the right of the building. The interior of the residence is accessed from a series of stairs which lead from the steel man door to the dwelling area. The apartment is approximately 700 ft.² and contains two bedrooms, a bathroom, living room and a kitchenette.

[4] This apartment is owned by the grandparents of Nathan Dumas. They operate the business on the ground floor. They had allowed their daughter's family to live in the upstairs apartment after they lost their home. Upon police arrival there were numerous emergency service personnel already in attendance. They were attending to Nathan Dumas in a bedroom of the residence.

[5] Nathan Dumas had spent the previous night at the home of his grandparents. His grandmother brought him to the Queenston Street apartment. She did not see the defendant but heard the young boy say "hi dad" as he entered the door. She went to her place of business.

[6] Before the return of Nathan Dumas, the defendant and his spouse had had an argument. According to Whitney Dumas, this happened because Austin Dumas told her that the defendant had said she was an awful person. She told the defendant he was immature to involve the child in their acrimonious relationship. Ms. Dumas told the defendant she wanted him to leave that day, after she returned from a morning appointment. She departed at 8:30 AM, leaving the defendant with the care of the children.

[7] When Ms. Dumas returned, about one hour later, she saw the defendant leave the residence. As he did so, he asked for, and obtained the keys to her motor vehicle. Ms. Dumas entered the apartment and saw Austin and Brooklyn in the living room. She called out to Nathan and received no answer. She saw that his bedroom door was closed and found that it was locked. Believing that her son was in distress, Ms. Dumas used a wire coat hanger to unlock the door. Upon entry, she saw her son laying in his bed covered with bed sheets. On removing the sheets, she observed him to be unconscious and that her print bathrobe belt was wrapped around his neck. She began CPR and called for help. Emergency medical personnel attended and continued working on the boy. He was taken to the hospital where he eventually died from his injuries.

[8] As Ms. Dumas frantically tried to revive her son, other events unfolded at a local bank. At approximately 10:27 AM police received information that someone had been stabbed inside the Royal Bank located at 211 Martindale Road in the city of St. Catharine's.

[9] Police arrived on scene at 10:35 AM and immediately contained the area around the bank. Bank employees had initiated an emergency protocol and put the bank in lockdown. Police found Melanie Dixon being attended to by paramedics just inside of the 3rd office from the front of the bank. She had sustained two stab wounds to her right shoulder area.

[10] A client of the bank introduced himself to police and reported that, after hearing a person scream, he saw a man run from the scene and enter into a grey van with a particular plate number. He reported that plate number to the police. This is Ms. Dumas' motor vehicle. The witness provided a description of the man. Police viewed surveillance images at the bank and identified him as the defendant.

[11] Melanie Dixon was transported to the Niagara Hospital. According to her and other witnesses, the defendant entered the bank, walked directly to an office in which she was seated, and stabbed her twice in the shoulder area. She screamed as he raised his arm a third time to strike and he fled. Ms. Dixon has had an operation to deal with injuries to her shoulder and lung. She has difficulty in movement and breathing and more surgery is scheduled.

[12] According to Ms. Dixon the defendant had previously been at the bank on several occasions in an unsuccessful attempt to obtain financing for his home. On one such occasion, the defendant was upset that his house was being re-possessed and said to her, "are you just going to let this happen".

[13] Four days later, on March 21, 2017 at 3:57 PM Kenora OPP received a report that a woman had observed a motor vehicle matching the description of a motor vehicle in a Canada Wide Warrant issued for the defendant. Police quickly located the van in a retail parking lot. The defendant was the driver and lone occupant. He was arrested at gunpoint, without incident.

[14] Among the several exhibits tendered is a journal seized from the defendant's motor vehicle upon his arrest. It is obvious that this lengthy document was composed shortly after the death of Nathan Dumas and the stabbing of Melanie Dixon. It is not disputed that it was written by the defendant. It describes the events in question and also includes the defendant's thoughts about the two victims, his wife, her parents and other individuals. The defendant begins the 68 page journal with a direct communication to his son, but for the most part, it assumes the format of a diary, in which people are referred to in the third person.

[15] The strangling of Nathan Dixon is the described first (pp 1 – 5):

Austin, first off, you are the best thing that has ever happened to me. I never knew I could love someone so much….

I know it's my fault that I will never see you again. And I can't believe what I have done. Your mom gave me 30 days to get out. Not even 2 days go by and she's telling all her friends that she left me and she made arrangements with her cousin to move her piece of shit trailer from my shop. So I knew she was really serious this time. I just kept thinking how am I going to protect Austin getting hurt from Nathan. I wasn't leaving Austin to be tormented, bullied or just all the stupid things that Nathan would say to Austin. For the last year and a half I tried to keep them separated as much as possible. Austin is too smart and nice to have to be subjected to Nathan's retardedness and bullshit behaviour. So, I figured I had a couple of weeks to figure out my life. I have no job and nowhere to go. I was planning on becoming a roofing salesman….Thursday night when Austin and I were talking about marriage, he asked why I wasn't married to mommy. I told him Mommy is too mean to Daddy. So Friday morning comes around and I wake up first and I feed (illegible) the baby. Then Whitney wakes up and gets ready to go out for breakfast with "friends". Before she leaves she goes into Austin's room and plays with him for a minute. Then they both out and Austin says to Mommy, "Daddy not marry you cause you're mean to him". So of course she gets mad and yells at me and tells me that I have to leave as soon as she gets back from breakfast. She leaves and I start panicking inside my head. So I sit on the couch with Austin and I tell him that Daddy's gotta go cause Mommy doesn't want me to live here anymore….I tell him to give me a hug and I say to him there is no need to cry. Everything is going to be OK, he was going to grow up to be gig and strong….

Then there was a knock at the door. It was Nathan, he came home from staying the night at Whitney's parents house. So I go downstairs, open the door and say good morning to him. Nathan says hi Dad as he walks in the door….So, I walk upstairs and sit on the couch with Austin. I tell Nathan to go in his room and play on his ipad. So I (illegible) Austin for another 5 minutes and then tell him I have to get ready. I quickly trim my beard and shower. I already had my clothes packed from the last time she told me to get out. The whole time I'm getting ready there is this voice in my head saying you gotta kill him. It's the only way to protect your kids. It wasn't my voice and it wasn't my thoughts. It was like I was having a conversation with someone inside my head. I was saying no and asking questions trying to be reasonable. Every time I thought of something, it had a stern reply and then a command. This voice told me that my life was over when I had my kids. You will live through your kids. Now go and protect them. I walked into my room and picked up a soft belt from a robe, walked into Nathan's room and choked him. And when I did it, it was like I was standing beside myself watching in disbelief. Then I put his blanket over him and walked out of the room and closed the door. I went and comforted Austin. Then I started pacing around and kept looking out the window for Whitney. I didn't know what I was going to do when I left the house or how. All I know is that I didn't want to leave Austin and Brooklyn. Then I saw Whitney's van….

I give Austin one last hug….I went to my room and grabbed my bag…I heard the downstairs door unlock and open, so I walked downstairs and I see Whitney. She says where are you going? I say, I don't know….can I have your keys so I can go get us a coffee….

[16] Immediately after recording the above, the journal continues as follows, with respect to the stabbing of Ms. Dixon (p. 5):

And she tosses me her keys. She walked up the stairs and I closed the door and walked to her van. Once I go in I heard this voice say get to your bank. I remember seating and wanting to throw up. I just kept thinking about Whitney. I get to my bank, park, get out….I walk into the bank about 1—15 steps and turned back around…saying to myself, I can't do this. Then I hear this voice saying yes you can, now go do it. So I turn back around, take a few steps and there is 1 of the bitches that I fucking hat. She walked into an office with a lady sitting down. So I started walking towards them, took my knife out and opened it up. Put it in my hands and walked into the office. They both looked at me and then the bitch turns back facing the lady and started talking like she didn't even see me walk in. Then my eyes focuses on her neck and I heard a voice say "right there" and I jabbed it into her neck and pulled it out. Then I heard the voice say "again", so I did it again. The voice said "go". I jogged out of there and got to the van and drove off.

[17] The journal records the defendant's complaints about Nathan and his mother. The latter is said to be unfaithful as a partner and unfit as a mother. The defendant repeatedly expresses concern that the mental and physical well-being of his natural son, Austin, is at risk in this family – especially because of Nathan. He recounts many episodes of allegedly bad behaviour by Nathan toward Austin and concludes with the observation that Nathan's misconduct not appreciated by his mother and her parents:

Everybody in her family would say oh, he's just a typical boy. No, he's not a typical boy. He's a fucking retard who just kept getting worse every day. (p. W- 44)

[18] The journal contains other troubling comments. After describing his flight from the scene of the crimes, the defendant wrote this (p. 7):

Here's my 2 options, jail or death….I decided I was going to go to BC and go kill Dereck, Ashley Simpsons boyfriend who beat her and more than likely has somethink (sic) to do with her disappearance.

[19] Later, after recounting an alleged act of infidelity on the part of his spouse, the defendant stated the following, with respect to the man involved (p. W – 12):

Don't worry Jeff Coat, I've never stopped thinking about you. Since I'm a fucked up killer now, I'll be coming for you.

Analysis

[20] A preliminary hearing is not a trial and, in this proceeding, I do not determine if the defendant is guilty. My important and limited role was recently re-affirmed by the Ontario Court of Appeal in R. v. Wilson, 2016 ONCA 235:

[21] The test for committal is well settled: is there any evidence on which a reasonable jury properly instructed could return a guilty verdict? A preliminary inquiry judge must commit the accused to stand trial "in any case in which there is admissible evidence which could, if it were believed, result in a conviction": United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080.

[22] The test is the same whether the evidence is direct or circumstantial. However, with circumstantial evidence, there is an inferential gap between the evidence and the matter to be established. The question becomes whether the elements of the offence to which the Crown has not advanced direct evidence may reasonably be inferred from the circumstantial evidence.

[23] The preliminary inquiry judge must therefore engage in a limited weighing of the evidence to assess whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This does not entail considering whether he or she would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. Rather, the preliminary inquiry judge asks whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at paras. 1 and 23.

[24] Any reasonable interpretation or permissible inference from the evidence, beyond conjecture or speculation, is to be resolved in the prosecution's favour. At the preliminary inquiry stage, if more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77, [2004] 3 S.C.R. 635, at para. 18. To weigh competing inferences is to usurp the function of the trier of fact: R. v. Clarke (2002), 159 O.A.C. 221, at para. 4.

[21] The defence resists a committal to stand trial on the charges before me, but concedes such an order is warranted for second degree murder and aggravated assault.

[22] To be guilty of first degree murder, it must be shown that the defendant unlawfully caused the death of Nathan Dumas, had the state of mind required for murder, and that the murder was both planned and deliberate. For the purposes of this preliminary hearing, the only issue to be determined is whether there is evidence of planning and deliberation.

[23] "Planned" has been defined as "[A] calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate." See: R. v. Reynolds (1978), 44 C.C.C. (2d) 129. "Deliberate" means "considered, not impulsive", "carefully thought out, not hasty or rash", "slow in deciding", "cautious". See R. v. Aalders, [1993] 3 S.C.R. 482, at pp. 502-504;

[24] Watts Manual of Criminal Jury Instructions provides as follows:

The words "planned" and "deliberate" mean different things.

"Planned" is a word that we often use when talking to other people. It means the same thing here that it does when we say it to others. "Planned" means a calculated scheme or design that has been carefully thought out. The consequences of it have been thought over (weighed) (considered) and sized up.

The plan does not have to be complicated, nor sensible. It may be a very simple plan, one that is quite easy to set up. An important factor is the time it took to develop the plan, not how much or little time it took between developing it and carrying it out. One person may prepare a plan and carry it out immediately. Another person may prepare a plan and wait a while, even quite a while, to carry it out.

A planned murder is one that it is committed as a result of a scheme or plan that has been previously formulated or designed. It is the implementation of that scheme or design. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill is not a planned murder.

"Deliberate" is not a word that we often use when speaking to other people. It means "considered, not impulsive", "carefully thought out, not hasty or rash", "slow in deciding", "cautious".

A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder (briefly describe) starts. A murder committed on a sudden impulse and without prior consideration, even with an intention to kill is not a deliberate murder.

[25] To be guilty of attempted murder, it must be shown that the defendant intended to kill Melanie Dixon. Nothing less will do. Thus, for example, in a case where the accused shot the victim in the legs three times, the preliminary hearing judge committed jurisdictional error in ordering a trial on a charge of attempt murder. This decision was based on the fact that the wounds did not speak for themselves as they were not in or near a vital part of the anatomy and there was no other evidence of an intent to kill: R v Rajanayagam, [2001] O.J. No. 393 (Ont. SCJ)

[26] With respect to the charge of first degree murder, Defence counsel submits that even if there is some evidence of a plan, there is none to prove deliberation. In this regard, it is pointed out that that the child was killed within a short time – less than one hour – after the defendant was told he had to leave the matrimonial residence. Assuming the plan to kill unfolded quickly, there was insufficient time to deliberate. Counsel provided me with helpful case law to illustrate his argument.

[27] The Crown response is that the journal entries show that the defendant believed that to protect his biological son, it was necessary to kill his half-brother. The repeated expressions of animosity against Nathan Dumas and his mother, the Crown submits, is relevant to the issue of planning and deliberation.

[28] With respect to the attack on Ms. Dixon, Defence counsel concedes the evidence supports an order to stand trial for aggravated assault, but pleads that there is no evidence of an intent to kill. In this regard, it is noted that there is no medical evidence about the nature of the injuries and the location of the wounds do not permit me to conclude they were life threatening.

[29] The Crown argues that the defendant's actions show the intent to kill; he stabbed the victim twice in a vital area of the body and was about to do so a third time when she screamed and he fled. Counsel also points the journal entries in which the defendant threatens to kill two other individuals. It is submitted that these declarations are relevant to his intent in attacking Ms. Dixon. Defence counsel takes issue with this.

[30] The defendant caused the death of Nathan Dumas by strangling the young boy with the cord from his mother's bathrobe. Compelling evidence of his intention to do so is also demonstrated by the journal entries. At issue is whether this intent was a sudden impulse or the result of planning and deliberation. The journal entries referred to above support the latter conclusion. The defendant had been previously told by his spouse that the relationship was over and he expected to leave in due course. One reasonable inference is that, for some time, the defendant had been brooding about the perceived threat posed by Nathan to Austin and of the need to protect the one by killing the other and that he acted on this when told his departure was imminent. It could also be that the journal entries are an after the fact explanation for why he abruptly decided to kill the young boy. These competing inferences with respect to planning and deliberation must be resolved in favour of the Crown. The forceful submissions about this issue presented to me by Defence counsel are for the jury to consider, assisted as they might be, by other evidence, including that pertaining to the defendant's mental condition at the time.

[31] There is ample evidence to warrant a trial on the charge of attempting to murder Melanie Dixon. The defendant had lost his home for financial reasons. His attempt to prevent this from happening was frustrated when Ms. Dixon decided she could not authorize a loan to him. This contributed to the breakdown in his relationship with Whitney Dumas. The journal entries confirm his anger toward Ms. Dixon. I do not require medical evidence that the wounds were life threatening. This is reasonably inferred from the photographs of punctures in the area of the lung, the victim's testimony about her injuries, and the journal entries which show the defendant aimed at her neck. It is also relevant that he had just strangled his step-son and recorded threats to kill two others. This murderous rampage might inform his specific intent with respect to Ms. Dixon.

[32] The defendant is ordered to stand trial for the charges of first degree murder of Nathan Dumas and the attempted murder of Melanie Dixon.

Released: March 7, 2018

Signed: Justice J. De Filippis