Court File and Parties

COURT FILE NO.: CR30-15 DATE: 2016/06/07 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Marney Mazurski, for the Crown Plaintiff

- and -

GARY JACK THOMPSON John Raftery, for the Accused Accused

HEARD: April 26 and 27, 2016 BEFORE: Ellies J.

Reasons for Decision

Overview

[1] Gary Thompson faces two counts of attempted murder as a result of an incident in which the Crown alleges that he tried to kill two people using his motor vehicle.

[2] The sole issue with respect to these two charges is whether the Crown has proven beyond a reasonable doubt that Mr. Thompson intended to kill the alleged victims, Justin O’Neil and Michel Raymond.

Facts

[3] In the early morning hours of November 13, 2013, Mr. Thompson drove his Jeep Cherokee to a townhouse complex on Lake Heights Drive in the City of North Bay. Just a few days before, Mr. Thompson had broken-up with his girlfriend, Jestine Garneau. Ms. Garneau was pregnant with Mr. Thompson’s child. According to both Mr. Thompson and Ms. Garneau, the break-up was amicable.

[4] Mr. Thompson agreed to let Ms. Garneau stay at his Robarts Avenue residence following the break-up. On the evening of November 12, 2013, they watched a movie, following which Ms. Garneau went to bed. She had left the “Facebook” page open on her laptop, as a result of which Mr. Thompson discovered that Ms. Garneau had been communicating with Mr. O’Neil, Ms. Garneau’s ex-boyfriend.

[5] Mr. Thompson became angry. He packed up Ms. Garneau’s things and took them to his Jeep. He told Ms. Garneau to leave and he then drove her things to Ms. Garneau’s father’s home. Ms. Garneau took a bicycle to go to the same place, but did not get there until after Mr. Thompson had dropped her things off and left. While Mr. Thompson was at Ms. Garneau’s father’s residence, he accidentally locked his keys inside the Jeep. To get in, he broke a small window next to the passenger window located behind the driver’s seat, which Mr. Thompson calls the “five” window. Photos show that there was still broken glass around the outer edge of that window a number of days later.

[6] Mr. Thompson returned to his residence after dropping Ms. Garneau’s things off at her father’s.

[7] At about the same time that these events were taking place, Mr. O’Neil and Mr. Raymond were out at a local bar. According to Mr. O’Neil, he had about eight beers and, perhaps, a shot of Jagermeister while there. He described himself as “feeling good” when he left the bar after it closed at 2:00 a.m. According to Mr. Raymond, he was feeling about the same way when he left the bar with Mr. O’Neil, after having consumed as many as 11 beers from the time he finished work until the time that he and Mr. O’Neil returned to his residence, located in the townhouses on Lake Heights Drive. Once Mr. O’Neil and Mr. Raymond were back at Mr. Raymond’s residence, Mr. Raymond consumed another beer. In addition to the alcohol that each of these individuals consumed, Mr. O’Neil testified that they both smoked part of a marijuana joint when they got home from the bar and Mr. Raymond testified that he had done about half a tablet of speed before they went out.

[8] According to Mr. O’Neil, after he and Mr. Raymond got back to Mr. Raymond’s place, he received a text from an unfamiliar source, which the evidence indicates would have been sent by Mr. Thompson using a texting program on his computer, as Mr. Thompson did not have a cell phone with texting capabilities. Mr. O’Neil testified that the texts indicated that Mr. Thompson had kicked Ms. Garneau out and, according to Mr. O’Neil, said cruel things about her. Mr. Thompson testified that he wanted to “kick (Mr. O’Neil’s) ass”. Mr. O’Neil agreed to fight and, according to Mr. O’Neil, Mr. Thompson texted him, telling Mr. O’Neil to meet him at a Lucky 13 convenience store that the evidence indicates is located on Sage Road, not far from Mr. Raymond’s Lake Heights townhouse.

[9] Mr. O’Neil testified that he and Mr. Raymond then went to the Lucky 13 and waited for Mr. Thompson, but Mr. Thompson did not show. They then returned to Mr. Raymond’s residence. Within ten minutes or so, Mr. O’Neil received another text message from Mr. Thompson, indicating that he was on his way and asking if Mr. O’Neil was ready, presumably to fight. Mr. O’Neil texted that they had already gone to the store and come back. According to Mr. O’Neil, Mr. Thompson then texted that he was on his way to John XXIII School, which is located across and down the street to the right of Mr. Raymond’s residence as one faces Lake Heights from Mr. Raymond’s front door.

[10] Mr. O’Neil testified that he did not believe that Mr. Thompson was coming. Nonetheless, he and Mr. Raymond went outside and had a smoke.

[11] Mr. Raymond’s evidence is similar. He says that he fell asleep on his couch after drinking the beer that he had when he and Mr. O’Neil got home. Mr. O’Neil woke Mr. Raymond up and said that someone named “Gary” wanted to fight him. Mr. Raymond had no idea who Gary was at the time, but he accompanied Mr. O’Neil to the Lucky 13 store to make sure that Mr. O’Neil did not get too badly hurt. They got to the store at about 3:30 a.m. They waited about ten minutes, but no one showed, so they went back to his place, where he fell back asleep on the couch. A while later, Mr. O’Neil woke him up again and told him that Gary was on his way over.

[12] According to both Mr. O’Neil and Mr. Raymond, they were standing on the front lawn in front of Mr. Raymond’s residence when they saw the Jeep come around the corner onto Lake Heights from Sage Road. The Jeep drove past them before stopping. According to Mr. O’Neil, it was travelling at a high rate of speed and the Jeep squealed as it came to a stop. According to Mr. Raymond, the Jeep was not travelling at an excessive rate of speed and he did not hear the squealing of tires.

[13] Both witnesses testified that after the Jeep backed up, it then drove directly at Mr. Raymond. Not thinking that Mr. Thompson would actually hit him, Mr. Raymond stood his ground. The Jeep did hit him, however, and Mr. Raymond was thrown into the air. Mr. O’Neil testified that Mr. Raymond hit the hood of the Jeep before hitting the ground.

[14] The fall knocked the wind out of Mr. Raymond. According to Mr. O’Neil, the Jeep backed up, stopping with the front half of the vehicle on the lawn and the rear half on the road. It then sped towards them again. According to Mr. Raymond, the Jeep was coming at him from the opposite direction. Mr. O’Neil testified that he tried to help Mr. Raymond up to his feet. He said that he began yelling profanities at the driver of the Jeep and giving him the finger to try to keep him from hitting Mr. Raymond again. He succeeded, and the Jeep began to chase him. Mr. O’Neil said that he ran around in circles a half-dozen or more times while being pursued by the Jeep before finally being struck on the right knee by the left front headlight of the vehicle. The force of the collision knocked Mr. O’Neil to the ground, where he did a bit of a roll. Mr. O’Neil testified that one of the Jeep’s tires then ran over his feet.

[15] Both Mr. O’Neil and Mr. Raymond were able to get up after being struck. Mr. O’Neil testified that, after he got up, the Jeep then backed up towards the road and drove at them once again.

[16] Both witnesses testified that they ran towards what they thought was the front door of Mr. Raymond’s house, but the door was locked. Mr. Raymond testified that they actually tried the door of his next door neighbour, Jason Baljer. Unable to get in, and with the Jeep in pursuit, they ran along the building towards Mr. Raymond’s residence and a fence that was beside it, which fence separated the row of townhouses from an adjacent parking lot. They both jumped the three- to four-foot high fence and managed to get into Mr. Raymond’s residence through the back door. Mr. O’Neil testified that the Jeep then crashed through the fence before smashing into another vehicle that was parked in the lot, some distance away. Once safely inside Mr. Raymond’s residence, the witnesses called 911.

[17] The Crown called several witnesses who lived in the area, including Mr. Baljer. Mr. Baljer was in bed, but not sleeping, when he heard loud voices outside speaking with a sense of urgency. These were followed by the sound of a loud vehicle. The sounds were coming from the front of the townhouse, so he left his room at the back and went to the window in his son’s room at the front, which window was located just above the awning that covers the entrance to their house. Mr. Baljer testified that the first thing he saw was a vehicle performing what he described as a “drifting maneuver”. According to Mr. Baljer, the vehicle took out a fence on the opposite end of the row of townhouses from the fence I described earlier that separates the townhouses from the parking lot beside Mr. Raymond’s townhouse. The vehicle then went back out to the road, turned towards the townhouses and drove directly towards Mr. Baljer’s front door. Mr. Baljer thought the vehicle would hit the house but it managed to stop in time, with the front of the vehicle hidden from Mr. Baljer’s view by the awning underneath him.

[18] The vehicle then backed up, not quite to the road, before “re-directing”. It came straight at the townhouses a second time, again stopping before hitting them. At that point, Mr. Baljer saw one or two people moving along the front of the building towards the parking lot below him to his left. He testified that they may have been trying to jump the fence, but he wasn’t sure.

[19] The vehicle then backed up again toward the road. It turned in the direction of the parking lot and drove parallel to the building. The vehicle crashed through the fence at the end of the building and then circled back onto the lawn.

[20] Mr. Baljer testified that, after the vehicle circled back onto the lawn, he saw a person he later identified as Mr. O’Neil go back out onto the lawn towards the Jeep. He said that Mr. O’Neil was waiving his hands in the air and approached the vehicle from the passenger side. The vehicle then began to do donuts around Mr. O’Neil. To Mr. Baljer, it appeared as though the driver of the Jeep was trying to hit Mr. O’Neil, but could not get the turning radius of the vehicle tight enough to do so. Eventually, Mr. O’Neil fell down. Mr. Baljer testified that he may have been hit by the vehicle, but he could not see it from where he was, because Mr. O’Neil was on the other side of the vehicle. Mr. O’Neil fell onto his hands and knees, Mr. Baljer said. Later, I’m assuming after the Jeep left, Mr. Baljer observed tire marks going over at least one of Mr. O’Neil’s legs, although Mr. Baljer said that he did not see the vehicle run over Mr. O’Neil.

[21] According to Mr. Baljer, Mr. O’Neil managed to get back up to his feet and walk with difficulty towards Mr. Raymond’s residence. The Jeep did one last donut and drove towards the parking lot at a speed that Mr. Baljer describes as “to the floor”. In the parking lot, it collided with the rear quarter panel of a parked vehicle. Mr. Baljer couldn’t say whether the Jeep had to back up before doing so, but it then left the area.

[22] The other neighbour called to give evidence was Catherine Perreault, the owner of the vehicle that was hit by the Jeep. She lived in the townhouse in the middle of the row of townhouses. She parked her vehicle, a red Pontiac SUV, in her usual spot when she returned home after work that day. Her parking spot was the second one away from the fence. She testified that she parked her vehicle squarely within her spot.

[23] That night, Ms. Perreault, too, heard loud voices and the sound of a vehicle that she thought had no muffler. She heard what sounded like a plastic bottle being run over and the sound of something hitting wood. She looked outside and saw a vehicle come off of Melina Close, a street leading into the parking lot, and then speed off.

[24] On consent, the Crown also filed the written statement of another resident of Lake Heights, Cheryl Hoffant. Ms. Hoffant described being woken up at about 4:30 a.m. by noise and going to her bedroom window. She saw a truck on the lawn. The truck spun around and went back out onto the road. The truck then came towards the building and she heard a big bang. She says she saw someone standing there at that point. She then saw the truck back up and drive out to the road again and then back onto the grass, at which point she left the window to call the police. Although she did not see it, she heard the fence and the car being hit and, as I understand her statement, returned to the window in time to see the truck drive back onto Lake Heights and drive off towards Sage Road.

[25] A number of photographs were introduced into evidence. I will refer to those photographs and the evidence of the forensic identification officer in some detail, later.

[26] Mr. Thompson testified as the sole witness for the defence. Although he admitted he has a lengthy criminal record, to the credit of the Assistant Crown Attorney, the record was not introduced as evidence, nor was Mr. Thompson cross-examined on it. Mr. Thompson’s evidence, therefore, is left to be measured solely on its own merits.

[27] Mr. Thompson admitted that he was angry on the night of November 12, after discovering Ms. Garneau had been communicating with her old boyfriend. He admitted that he wanted the fight. However, Mr. Thompson testified that it was Mr. O’Neil who first texted him using information that Mr. O’Neil must have received from Ms. Garneau. According to Mr. Thompson, it was Mr. O’Neil who told him that he had slept with Ms. Garneau. Mr. O’Neil told Mr. Thompson to meet him at a store on Wickstead. Mr. Thompson says he performed a computer search to locate the store. When Mr. Thompson arrived, there was no one at the store. Mr. Thompson testified that, because Mr. O’Neil had told him to meet him behind the store, Mr. Thompson proceeded in that direction once he realized no one was at the store to meet him.

[28] When Mr. Thompson got to the townhouse complex, he saw a man in a white jacket with a hoody on. Mr. Thompson drove up to the man, stopping with one set of tires on the grass and one set on Lake Heights Road. The lone male approached the driver’s side of the vehicle by crossing in front of it. He had his hands in his pockets. According to Mr. Thompson, as the male approached the driver’s window, which Mr. Thompson says was rolled down, another male, which Mr. Thompson indicates was Mr. O’Neil, came around from behind the vehicle, reached through the driver’s window and tried to punch him. Mr. Thompson testified that he leaned as far away from Mr. O’Neil as he could and managed to punch Mr. O’Neil twice in the face. Mr. O’Neil then told the other male, which could only be Mr. Raymond on the evidence, to “get the door”. Mr. Thompson saw Mr. Raymond pass the driver’s window towards the passenger window on the driver’s side, where Mr. Thompson had earlier broken the five window.

[29] At that point, Mr. Thompson says, he put the Jeep in drive and floored it. As he did, Mr. O’Neil, who was leaning into the vehicle, grabbed on to the steering wheel. The Jeep spun around twice, according to Mr. Thompson, before he brought it parallel to the row of townhouses. Mr. O’Neil was still hanging on. Mr. Thompson testified that he was going to pin Mr. O’Neil against the building as he drove along beside it, but he decided not to do so, because, as he put it, “that would have killed him”.

[30] Mr. Thompson remembers nothing from that point until he hit his head on the steering wheel of the Jeep, after it collided with the Pontiac SUV. According to Mr. Thompson, he suffers from blackouts as a result of a panic disorder that arose following his involvement in race riots while in a penitentiary. He testified that he suffered such a blackout during the events that led to these charges. When Mr. Thompson “came to” (my words) after the Jeep hit the Torrent, he backed the Jeep up and left the area, returning to his residence on Robarts Avenue.

[31] Mr. Thompson testified that he never intended to kill anyone that night.

Issue

[32] The law with respect to the mens rea, or mental element, necessary to sustain a conviction for attempted murder has been clear since the Supreme Court of Canada decision in R. v. Ancio, [1984] 1 S.C.R. 225. The Crown must prove beyond a reasonable doubt that the accused intended to kill the alleged victim or victims. Unlike certain ways in which a completed murder may be committed, no lesser or different mens rea will suffice.

[33] The sole issue in this case is whether the Crown has met this burden.

Analysis

[34] Mr. Thompson has testified under oath that he did not intend to kill either Mr. O’Neil or Mr. Raymond. As with all witnesses, I am free to accept all, some, or none of Mr. Thompson’s evidence. The law is clear that, if I accept his evidence that he did not intend to kill either Mr. O’Neil or Mr. Raymond, Mr. Thompson must be acquitted. If I do not accept his evidence, but if I am left with a reasonable doubt by it, Mr. Thompson must also be acquitted. Even if neither of these things are true, if I do not believe Mr. Thompson’s evidence or I am not left with a reasonable doubt by it, Mr. Thompson must still be acquitted if I am left with a reasonable doubt by the rest of the evidence: R. v. W. D., [1991] 1 S.C.R. 742.

[35] I am not left with a reasonable doubt in this case.

[36] I do believe that something happened similar to what Mr. Thompson tells us happened when he first arrived at the Lake Heights townhouses. While Ms. Garneau testified that she had never seen Mr. Thompson as angry as he was that night, it does not appear from the evidence that she believed he was angry to the point of being out-of-control. There is no evidence that she warned Mr. O’Neil, even though she was in obvious contact with him, nor that she felt as though she should call the police. Given that Ms. Garneau had lived with Mr. Thompson for four months by November 13, 2013, I take this as circumstantial evidence that Mr. Thompson was not “enraged”, as the Crown Attorney suggested to him in cross-examination, before he got to the Lake Heights townhouses.

[37] The fact that Mr. O’Neil deleted his texts after what he called the “second round” of texting with Mr. Thompson also causes me to believe that the events leading up to the driving we have heard about did not begin exactly as Mr. O’Neil and Mr. Raymond have said. By “second round” I understand Mr. O’Neil to mean the group of texts relating to Mr. Thompson’s attendance at John XXIII School. It makes no sense that Mr. O’Neil would delete those texts before going outside to wait for Mr. Thompson to show up and even less sense that he would do so afterwards, unless Mr. O’Neil was, in fact, more aggressive before the events began than he says he was.

[38] I am also troubled by the photos of Mr. Raymond’s hand, taken shortly after the events in question, which look much more like he was cut by the glass around the five window than by landing on the paved walkway or the lawn in front of the townhouses. There are no abrasions whatsoever, only small, deep cuts.

[39] I believe that Mr. Thompson did find himself confronted with not one, but two men when he arrived at the townhouses. I also believe that their efforts to get at Mr. Thompson were what started his erratic driving that night. However, that is where I part company with Mr. Thompson’s evidence.

[40] I believe that Mr. Thompson did become enraged by the presence of both Mr. O’Neil and Mr. Raymond and their efforts to get the upper hand early in the confrontation. I do not accept that Mr. O’Neil was hanging on to the steering wheel for any length of time or that Mr. Thompson brought the vehicle alongside the row of townhouses in order to pin Mr. O’Neil against them. Nor do I accept Mr. Thompson’s evidence that he changed his mind at the last minute. Instead, I believe that Mr. Thompson brought the Jeep alongside the townhouses because he wanted to drive it towards Mr. O’Neil and Mr. Raymond, who were trying to get into Mr. Baljer’s residence at the time. I accept the evidence of the witnesses, Mr. Baljer and Ms. Hoffant, that the Jeep was being operated as fast as it could be, given the condition of the front lawn on that November morning. The photos bear this out, showing mud splattering nearly to the top of the two-story townhouses and deep grooves in the lawn. Those photos illustrate in a way that removes all doubt that Mr. Thompson was driving his Jeep without regard to the condition of the Jeep, that of the townhouses, or even his own safety. They show that four-by-four inch posts that held up the awning above the door to Mr. Raymond’s residence were broken like matchsticks as Mr. Thompson pursued Mr. O’Neil and Mr. Raymond, who ran around the corner of the building.

[41] The evidence of the Identification Officer, Sandy Allary, belies Mr. Thompson’s evidence that Mr. O’Neil was hanging on to the side of the Jeep and that he decided not to kill him by squeezing him into the townhouses. She testified that she measured tire tracks as close as six centimeters from the building, running parallel to it.

[42] The photos also show in a frightening way the force of the impact between the Jeep and the Pontiac SUV. The Pontiac is moved nearly an entire vehicle width from where it was parked. The tires on the rear passenger side are imbedded deep into the earth as a result of the vehicle being pushed and the rear quarter panel is badly damaged from the force of the collision. The force with which the Jeep hit the Pontiac is circumstantial evidence which contradicts Mr. Thompson’s evidence that he changed his mind about killing Mr. O’Neil. Because the collision with the Pontiac took place just after the Jeep drove the length of the townhouse complex in pursuit of Mr. Raymond and Mr. O’Neil, I infer from the force of the impact that Mr. Thompson did intend to hit both men with sufficient force to kill them.

[43] I do not accept Mr. Thompson’s evidence that he blacked out. This evidence is inconsistent with the contents of the text messages that Mr. Thompson exchanged with Ms. Garneau immediately after the incident. In the first message he sent when he got home, at 4:32 a.m., Mr. Thompson wrote, “going to jail”. After Ms. Garneau berated him, and before she advised him that he almost killed Mr. Raymond, Mr. Thompson wrote, “he should of (sic) come alone. your falt (sic)”. These are not the writings of someone who has just recovered from a blackout and discovered that he has snapped the pillars of an awning, driven through a fence, and smashed into a parked vehicle so hard that he moved it several feet through soft earth.

Conclusion

[44] For these reasons, I am satisfied beyond a reasonable doubt that Mr. Thompson intended to kill Mr. O’Neil and Mr. Raymond on the date in question. Therefore, convictions will be entered on both counts of attempted murder.

Ellies J. Released: June 7, 2016