R. v Kreindl, 2016 ONSC 4575

Court File and Parties

COURT FILE NO.: CR-14-30000680-0000 DATE: 20160503 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – DAVID KREINDL

Counsel: Maureen Pecknold, for the Crown Richard Elbirt, for David Kreindl

HEARD: April 11 and 12, 2016

Reasons for Judgment

Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way.

Corrick J. (orally)

Introduction

1On March 31, 2014, J.R. was shot in the face with a flare gun, while she lay in bed. On April 1, 2014, David Kreindl, Ms. R.’s boyfriend of a few months, was arrested and charged with, among other things, attempted murder and aggravated assault.

2Mr. Kreindl is charged in a twelve-count indictment. At the outset of the trial, Ms. Pecknold, Crown counsel, indicated that she would not be proceeding on counts #8 and 10. As a result, Mr. Kreindl was arraigned on seven counts related to the shooting of Ms. R., and three counts related to his failure to comply with an undertaking and failure to appear in court. He was tried by me without a jury.

Evidence

3The Crown’s evidence consisted of the testimony of Ms. R., an Agreed Statement of Facts, and the following exhibits, which were filed on consent:

• photographs, including those of Ms. R. and the scene of the shooting;
• some of Ms. R.’s medical records;
• a report from the Firearms Section of the Centre of Forensic Sciences dated August 20, 2014;
• a report from the Biology Department of the Centre of Forensic Sciences dated June 18, 2014;
• the firearm alleged to have been used in the shooting seized from Mr. Kreindl’s residence and a spent shell casing from that firearm seized from the scene of the shooting; and
• a grey backpack, cell phone, and Canadian Tire shopping bag seized from Mr. Kreindl’s residence.

4Mr. Kreindl called no evidence.

5I am going to deal first with the evidence regarding the offences related to Ms. R.

6Mr. Kreindl admitted that Ms. R.’s injuries were caused by a flare gun fired by him on March 31, 2014. The sole issue before me for determination is what Mr. Kreindl’s intention was at the time of the shooting. That determination depends on my assessment of the reliability and credibility of Ms. R.’s evidence, to which I now turn.

7Ms. R. testified that she and Mr. Kreindl spent the evening of March 31, 2014 together at a karaoke bar. Ms. R. was drinking beer and shots throughout the evening. She described herself as pretty drunk. They left the bar at 10:00 p.m., ate something at another bar, and went to a hotel where they had planned to spend the night.

8They had an argument when they got to their room. Mr. Kreindl was angry because he thought Ms. R. had been disrespectful to him and was using him. According to Ms. R., the argument did not last too long and the two of them went to sleep.

9The next morning, Mr. Kreindl left the hotel. He told Ms. R. that he was going home, which was not too far away. Ms. R. stayed in bed because she was nauseous from having consumed too much alcohol the night before.

10Mr. Kreindl returned to the hotel room in the evening. He was angry and pacing back and forth. Ms. R. was still in bed, but was feeling much better. Ms. R. asked Mr. Kreindl to pour her a glass of juice. Mr. Kreindl poured the juice and threw it at Ms. R. When Ms. R. got up to wash off the juice, Mr. Kreindl grabbed her by the hair and said “don’t fuck with me”.

11Ms. R. went back to bed, with her head at the foot of the bed, and started to doze off. Mr. Kreindl went in the bathroom with his grey knapsack. Ms. R. heard clicking sounds from inside the bathroom. Ms. R. saw Mr. Kreindl come out of the bathroom and walk towards her, without his shirt on, with one hand behind his back. She next recalls waking up with Mr. Kreindl sitting beside her on the bed. The skin of her arm and legs was on fire, her right eye was completely closed, and there was blood everywhere. She tried to get out of bed but was unable to. Mr. Kreindl did not assist her. She eventually got up, and took a shower to wash off the blood.

12When she returned to bed after her shower, Mr. Kreindl was getting ready to leave. He said to her, “I’m sorry Jo. I didn’t mean to do it.” When she asked him what he had done to her, he replied, “it went off by accident”. He would not tell her what had caused her injury.

13Mr. Kreindl left the room, taking his grey knapsack. Before he left, he told Ms. R. that if she called the police it would be the last thing she ever did. A short time later, he returned and banged on the door telling Ms. R. that he had left his phone in the room. She knew he had not, and she did not let him in.

14Once Mr. Kreindl left the hotel room, Ms. R. called her father and then 911. She was taken by ambulance to Scarborough General Hospital and then transferred to Sunnybrook Hospital where she was admitted.

15Ms. R. testified about the severe injuries she suffered. They are outlined in detail in Exhibit 3, her medical records, and some of them are summarized in the Agreed Statement of Facts. They are as follows:

• She required surgery to repair multiple fractures to her face and skull and leakage of her cerebral spinal fluid. This surgery required the removal of part of her skull and the exposure of her brain.
• She required facial reconstructive surgery to correct the fractures to her orbital bone.
• She required a bone graft from her leg, a titanium mesh plate and a screw for reconstruction to her skull.
• “Full thickness” burns over 3% of her body, including her shoulder, back, chest and upper arm, which required surgery and skin grafts from her thigh.
• Some of her blood vessels beneath her skin were burnt and are no longer viable.
• She continues to suffer loss of vision in her right eye, where her orbital bone was fractured and her eyelid was lacerated. She is now required to wear glasses.
• She has no sense of smell in her right nostril.
• She has scars from the burns to the right side of her arm, which extend to her lower back, the left side of her leg and around her right eye.
• She continues to require follow-up care from plastic surgery, neurosurgery and ophthalmology.

16Mr. Kreindl was arrested near his residence on April 1, 2014. During a search of his residence pursuant to a search warrant, police seized an Orion model flare gun, a Canadian Tire shopping bag, a grey knapsack, a cell phone and a wristwatch with blood on it. The blood on the watch was determined by forensic analysis to be Ms. R.’s blood.

17A spent shell casing from the flare gun was located in the hotel room.

18Ms. R. testified that the week before the shooting, she had seen a flare gun in its package in a Canadian Tire shopping bag at Mr. Kreindl’s residence. She did not know why he had it or why he needed it.

19It is agreed that the flare gun seized from Mr. Kreindl’s residence is a firearm as defined in s. 2 of the Criminal Code.

20I turn now to the evidence related to the other charges against Mr. Kreindl – two counts of failing to appear in court and one count of failing to comply with the condition of an undertaking. The essential elements of each of these offences are admitted by Mr. Kreindl.

21First, count #7 charges Mr. Kreindl with failing to comply with an undertaking given to an officer in charge. On October 15, 2012, Mr. Kreindl was arrested for possession of heroin and carrying a concealed weapon. He was released on an undertaking with a condition that he not possess any weapons as described in the Criminal Code. This undertaking was in effect on April 1, 2014 when Mr. Kreindl admittedly possessed the flare gun.

22Secondly, count #9 charges Mr. Kreindl with failing to appear in court on April 10, 2013 on a theft under charge. A bench warrant was issued, which came to light when Mr. Kreindl was arrested on April 1, 2014.

23Lastly, count #11 charges Mr. Kreindl with failing to appear in court on April 5, 2013. On January 7, 2013, he was released on charges of break and enter, possession of property obtained by crime, failing to comply with an undertaking, and failing to appear for fingerprints. He did not attend court on April 5, 2013 and a bench warrant was issued for his arrest. The bench warrant was executed when Mr. Kreindl was arrested on April 1, 2014.

24Given Mr. Kreindl’s admission of the essential elements of each of these offences, I find him guilty of counts #7, 9 and 11.

Fundamental Principles

25Turning back to the offences involving Ms. R. My analysis of the evidence is governed by some fundamental principles of criminal law that apply to all criminal trials.

26The first is that the Crown must prove beyond a reasonable doubt that Mr. Kreindl is guilty of the offences charged. This standard is a high one. It is not enough for me to believe that Mr. Kreindl is probably guilty. Proof of probable guilt is not proof of guilt beyond a reasonable doubt.

27The second is the presumption of innocence. This presumption stays with Mr. Kreindl throughout the case. It is only defeated if and when Crown counsel satisfies the court beyond a reasonable doubt that he is guilty of the crimes charged. The presumption of innocence also means that he does not have to testify, present evidence, or prove anything in this case. Mr. Kreindl does not have to prove that he is innocent of these crimes.

28I am required to make my decision based on the whole of the evidence. I can accept some, none or all of the evidence of any witness.

Positions of the Parties

29The main issue in this case is Mr. Kreindl’s intention at the time he fired the flare gun, striking Ms. R. Did he shoot her deliberately or was it an accident? Did he intend to kill her?

30Mr. Elbirt argues that Mr. Kreindl’s firing of the flare gun was an accident. This is supported by Mr. Kreindl’s utterance to Ms. R. after she is shot that “he didn’t mean to do it, it went off by accident.” In addition, Mr. Elbirt submits that Ms. R.’s evidence is not reliable for the following reasons. It was dark in the room when she says Mr. Kreindl approached her, and the two of them had been drinking the night before. In short, Mr. Elbirt submits that the evidence falls short of proving that Mr. Kreindl intentionally shot Ms. R.

31Ms. Pecknold submits that when the evidence is viewed as a whole, it proves beyond a reasonable doubt that Mr. Kreindl intended to fire the gun at Ms. R. She further submits that the evidence supports the finding that Mr. Kreindl fired the gun at Ms. R. intending to kill her.

Analysis

32I say at the outset that I found Ms. R. to be a credible and reliable witness. She gave her evidence in a forthright manner without embellishment. She recounted the events of that evening without acrimony or vengeance towards Mr. Kreindl. She testified that right after the shooting Mr. Kreindl apologized to her and told her that he didn’t mean it.

33The reliability of her evidence was not affected by alcohol. At the time of the shooting, more than 24 hours had elapsed from when she had been drinking. Although she was physically ill in the morning as a result of consuming too much alcohol the night before, she testified that she was feeling much better by the time Mr. Kreindl returned to the hotel room. There is no evidence that she consumed alcohol during the day or evening prior to the shooting.

34I am also not persuaded that the amount of light in the hotel room affected Ms. R.’s ability to see what she said she saw. The photograph of the hotel room marked as Exhibit 2A shows that the distance between the bathroom and the foot of the bed where Ms. R.’s head was positioned is short. Ms. R. testified that the light in the bathroom was on when Mr. Kreindl approached her, allowing her to see that he had his hand behind his back.

35There is one issue with Ms. R.’s evidence that I want to address. She testified that she and Mr. Kreindl went out to a bar on March 31 and then stayed the night in a hotel room. She further testified that Mr. Kreindl left the hotel room the next morning, which would have been April 1, and returned that evening. According to Ms. R., the shooting occurred in the early morning hours of that day, which would have been April 2. However the medical records marked as Exhibit 3 show that Ms. R. was admitted to hospital on April 1. Given that her evidence about Mr. Kreindl leaving and returning to the hotel room is uncontradicted, I assume that she was mistaken when she testified that they had been at the bar on March 31. It must have been March 30, and the shooting occurred in the early morning hours of April 1, 2014.

36I am satisfied beyond a reasonable doubt on the basis of all of the evidence that Mr. Kreindl fired the flare gun at Ms. R. intentionally. I do not accept that it was an accident. I base this finding on the following facts:

• The night before the shooting, Mr. Kreindl and Ms. R. argued. Mr. Kreindl accused Ms. R. of being disrespectful to him and of using him.
• Mr. Kreindl was angry when he returned to the hotel room in the evening of the shooting. He was aggressive with Ms. R. He threw juice on her, pulled her hair, and told her not to fuck with him.
• After Ms. R. cleaned herself up and returned to the bed, Mr. Kreindl went into the washroom with his knapsack. Ms. R. could hear clicking sounds from the washroom.
• Mr. Kreindl approached Ms. R., while she was lying in bed, with his shirt off and one hand behind his back.
• Ms. R. was aroused from her dozing sleep to find her skin on fire and blood everywhere. Mr. Kreindl was sitting beside her on the bed.
• Mr. Kreindl would not tell Ms. R. what he had used to cause her injuries when she asked.
• Ms. R. had difficulty getting out of bed to go into the washroom. Her eye was completely shut, and blood was dripping from her wounds. Mr. Kreindl did nothing to assist her despite the fact that he had told her that he did not mean to do it. He simply stood there.
• As he left the hotel room, Mr. Kreindl told Ms. R. that if she called the police, it would be the last thing she ever did. This utterance does not assist me in determining Mr. Kreindl’s specific intent at the time of the shooting. However, when viewed together with the fact that he left Ms. R. in a state of obvious trauma, this utterance is inconsistent with his declaration that he did not mean to do it.

37Having determined that Mr. Kreindl intentionally shot Ms. R. with a flare gun, I turn to the specific counts in the indictment.

38Count #1 charges Mr. Kreindl with aggravated assault. It is admitted that the injuries suffered by Ms. R. as a result of the shooting were sufficiently grave to constitute aggravated assault.

39Crown counsel does not have to prove that Mr. Kreindl intended to wound Ms. R. when he shot her. I am satisfied that she has proven beyond a reasonable doubt that a reasonable person, in the circumstances, would realize that shooting Ms. R. with a flare gun would put Ms. R. at risk of suffering serious bodily harm. I therefore find Mr. Kreindl guilty of Count #1.

40Count #2 charges Mr. Kreindl with assault with a weapon. I find Mr. Kreindl guilty of that count.

41Count #3 charges Mr. Kreindl with threatening to cause death to Ms. R. I accept Ms. R.’s evidence that Mr. Kreindl told her that if she called the police it would be the last thing she ever did. I therefore find Mr. Kreindl guilty of count #3.

42Counts #4 and 5 charge Mr. Kreindl with discharging an air or compressed gas pistol at Ms. R. with intent to endanger her life (count #4) and with intent to wound, maim or disfigure her (count #5). It is a matter of common sense that Mr. Kreindl, who was sane and sober, could have predicted that shooting Ms. R. with a flare gun would endanger her life or cause her serious bodily harm. I therefore infer that he intended these natural and probable consequences of shooting Ms. R.

43Similarly, count #6 charges Mr. Kreindl with discharging a firearm at Ms. R. with intent to wound, maim or disfigure her. I apply the same common sense inference to that count.

44I therefore find Mr. Kreindl guilty of counts #4, 5, and 6.

45That leaves count #12, which charges Mr. Kreindl with attempted murder. To find Mr. Kreindl guilty of attempted murder, I must be satisfied beyond a reasonable doubt that he had the specific intention to kill Ms. R.

46Ms. Pecknold submits that the following circumstances support the finding that Mr. Kreindl had intended to kill Ms. R.:

• He and Ms. R. had had an argument the night before the shooting and he was still angry just prior to the shooting.
• His actions showed some evidence of planning and deliberation in that he took his backpack into the washroom, presumably to arm himself with the flare gun before approaching Ms. R. with his hand behind his back.
• He aimed the gun at Ms. R.’s face at point-blank range while she was lying in bed.
• After the shooting, he attempted to re-enter the hotel room under the ruse of having forgotten his cell phone.
• Ms. R. suffered very serious injuries.

47Ms. Pecknold relies on two decisions in which the Ontario Court of Appeal upheld trial findings of an intention to kill in similar circumstances. However, there is a difference between those cases and this case. In those cases, the trial judge considered the manner in which the accused approached and assaulted the victim. For example, in R. v. Guedez-Infante, 2009 ONCA 739, the trial judge considered, among other things, the fact that the accused aimed the gun at the middle of the victim’s body at close range to determine that the accused had intended to kill the victim.

48In R. v. Martin, 2010 ONCA 256, the trial judge determined that the accused had the specific intent to kill based on the fact that the accused armed himself before meeting the victim, the nature of the weapon with which he armed himself, and the wound the victim suffered, in addition to the way the victim had moved before being slashed across the neck. Although it is not clear from the Court of Appeal’s judgment, I assume that the evidence about the way the victim moved related to the manner in which the accused assaulted the victim with the knife.

49I am unable to determine on the basis of the evidence before me how Mr. Kreindl approached Ms. R., at what part of her body Mr. Kreindl aimed the flare gun, or from what distance precisely. I cannot say that he aimed at Ms. R.’s face from point blank range.

50As brutal as Mr. Kreindl’s assault on Ms. R. was, I am not satisfied beyond a reasonable doubt that he intended to kill her. I therefore find him not guilty of count #12.

51In summary, I find Mr. Kreindl guilty of counts #1, 2, 3, 4, 5, 6, 7, 9, and 11. I find Mr. Kreindl not guilty of count #12. The Crown did not proceed on counts #8 and 10.

Corrick J.