COURT FILE NO.: 150/18
DATE: 2019/11/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DENNIS PAUL GEORGE
Defendant
Fraser Ball, for the Crown
Frances Brennan, for the Defendant[^1]
HEARD: April 2, 3, 5 and 23, 2019
Leach J. (ORALLY)
Overview
[1] Before me for judgment is Dennis Paul George, who is charged with one count of attempted murder, contrary to s.239(1) of the Criminal Code of Canada, (“the Code”).
[2] The charge stems from events, largely undisputed, which took place here in the city of London on July 31, 2017, when Mr George attacked Courtney Melhuish; an attack that included Mr George repeatedly striking Ms Melhuish in the head and face with a hammer.
[3] When arraigned at the outset of trial, Mr George entered a plea of “not guilty” to the charged offence of attempted murder. However, in the course of defence counsel’s submissions, it was acknowledged that the circumstances at least warranted a conviction for the lesser and included offence of aggravated assault, contrary to s.268(1) of the Code.
[4] The central issue raised in the proceedings before me was whether, at the time of his relevant actions, Mr George had the requisite mens rea to be convicted of attempted murder.
Evidence
[5] Formal admissions were made by the defence in relation to matters of jurisdiction, identification, date, time and continuity of exhibits.
[6] Testimony, largely undisputed, was presented from the following witnesses:
a. Shane Smith, the cohabiting boyfriend of Ms Melhuish at the time of the attack;
b. Jeremy Beyea, a resident of London who encountered Mr George, outside Mr Beyea’s residence, shortly after the attack and prior to Mr George being arrested by the police;
c. Derek Battin, a constable with the London Police Service, who was the first officer to approach and arrest Mr George after the attack;
d. Craig Brown, another officer employed by the London Police Service, who was one of the officers who attended the scene of the attack shortly after it happened; and
e. Frederick Burwell, who also was residing in the same home as Mr Smith and Ms Melhuish at the time of the attack.
[7] All witnesses other than Mr Burwell were called by the Crown, and cross-examined by defence counsel.
[8] Defence counsel called and questioned Mr Burwell, whom Crown counsel chose not to cross-examine.
[9] Exhibits tendered through the above witnesses, and/or filed on consent, included the following:
a. a biology report from the Centre of Forensic Sciences, (the “CFS”), outlining the results of DNA analysis and confirming, inter alia, that the blood of Ms Melhuish was found on the hammer apparently used in the attack, and on the hand of Mr George following his arrest;
b. a three-page report, prepared by Dr William J. Beck, (a physician who has been overseeing the medical treatment and care of Ms Melhuish), summarizing her initial resuscitation and care, the medical follow up and rehabilitation care Ms Melhuish received, and her present condition;
c. a series of photographs taken by a police photographer, shortly after the attack, depicting the interior of the residence at 1070 Frances Street here in London, where the attack occurred;
d. a Google street map, depicting an area of London including, inter alia, the location of the residence at 1070 Frances Street and the location where Mr George was arrested on Woodman Avenue after the attack;
e. a further series of police photographs, showing the exterior area in front of the residence at 1070 Frances Street and neighbouring houses, the place in which the aforesaid hammer was found beneath a vehicle in the shared driveway of the houses at 1068 and 1070 Frances Street, and a number of photos depicting the hammer itself;
f. an agreed statement of facts outlining further formal admissions made pursuant to s.655 of the Code, concerning the taking of the aforesaid photographs, seizure of the aforesaid hammer, and the taking of swabs from that hammer by a member of the London Police Forensic Identification Section; and
g. an “Application by Physician for Psychiatric Assessment” report, prepared in relation to Mr George, dated August 1, 2017.
[10] With all of the above admissions and evidence in mind, I turn next to my findings of fact in relation to this matter.
Facts
[11] While I will have more to say about specific factual considerations during the course of my analysis, basic factual findings underlying that analysis include the following:
Located at 1070 Frances Street, in the city of London, is a relatively compact but fully detached house, the living area of which is confined to a single story. As one enters the front door of the house, through a small foyer, there is a bedroom immediately to the right, (“the foyer bedroom”), and a living room straight ahead. Proceeding from the foyer into that living room, there is a door on the right which opens into a second bedroom, (“the main bedroom”), and a further opening, straight ahead, leading directly from the living room into a kitchen area. Doors in that kitchen lead to the final two rooms of the house; i.e., a bathroom, and another space known as a “mud room” or “back room” at the rear of the house.
In late July of 2017, Shane Smith and Courtney Melhuish were living together as boyfriend and girlfriend in the main bedroom of that residence at 1070 Frances Street. At the time, they had known each other for approximately one year, had been in a relationship for about six months, and been cohabiting at 1070 Frances Street for about five months, along with their two dogs. For the last two or three months of that period, they also had been joined in the residence by Frederick or “Freddy” Burwell, a friend of Mr Smith who had needed a place to stay, and who therefore came to occupy the foyer bedroom of the house at Mr Smith’s invitation.
The front door of 1070 Frances Street was secured by a “deadbolt” lock, capable of being opened from the outside by a key or combination code, and from the inside by the twisting of a knob. The door also was programmed to lock itself automatically, whenever the door remained closed for a few seconds. As Mr Smith acknowledged during cross-examination, he, Ms Melhuish and Mr Burwell tried to be “pretty careful” about who was let into the residence.
Although the accused Mr George never had a key to the residence at 1070 Frances Street, or knowledge of the combination code on its front door, he was a frequent visitor to the home, frequently spending “a lot” or “quite a bit” of time at the house. In that regard:
o Mr George and Mr Burwell had known each other and been friends for many years, having spent a great deal of time together in the community and also during periods when both were incarcerated. During the course of that friendship, the two men had come to share a good deal of information about each other. That included Mr Burwell’s awareness that Mr George struggled with mental health issues and, in particular, a delusional disorder, (identified in the psychiatric assessment application I received as “paranoid schizophrenia”), in respect of which Mr George was to be taking daily prescribed doses of Olanzapine. Mr Burwell was not only familiar with that medication, but also with the prescribed dosage Mr Burwell was to take on a daily basis, as he had seen Mr George taking it daily while the two men were incarcerated together. Mr Burwell also knew that, when Mr George was taking that medication consistently, he did not suffer from delusions or hallucinations, or difficulties exhibiting self-control.
o Over the course of the year or so prior to July of 2017, Mr George nevertheless not only maintained his close friendship with Mr Burwell, but also had come to develop what Mr Burwell and Mr Smith both described as a “pretty good” and “close” friendship with Mr Smith and Ms Melhuish as well, seeing them “almost every day”. Mr George and Ms Melhuish in particular “got along very well”, such that Mr George often referred to Ms Melhuish as his “sister” or “little sister”.
o In the result, Mr George was a somewhat constant visitor at 1070 Frances Street. Although Mr Smith acknowledged that such visits took place at least four days a week, I prefer and accept Mr Burwell’s evidence that Mr George actually had come to visit almost daily by the time of the events leading to this proceeding, occasionally spending time at 1070 Frances Street with Mr Burwell during periods when Mr Smith was absent from the home.
o Shortly before the events leading to this proceeding, Mr George also had been permitted to stay in the house at 1070 Frances Street for approximately two weeks, (sleeping on a couch in the living room), while waiting to take up occupation of a nearby apartment approximately 10 blocks away on Dufferin Street; i.e., a relatively short ten-minute walk from the Frances Street home.
o However, I accept the unchallenged testimony of Mr Burwell that, even after Mr George obtained his own apartment, he did not spend a lot of time there as he was not comfortable being there on his own, and frequently would make his way back to 1070 Frances Street for company. In particular, it was not uncommon for Mr George to leave the Frances Street residence to go home for the night but then return to 1070 Frances Street, because he was hearing things at his apartment and/or thought people were there, and “felt more comfortable” being amongst his friends at the Frances Street residence.
During visits by Mr George to the Frances Street residence, most of the time was spent “just talking”, with Mr George and Ms Melhuish in particular speaking with each other – as Mr Smith put it - “all the time about stuff”. However, Mr Smith, Ms Melhuish, Mr Burwell and Mr George also were all users of crystal methamphetamine, and from time to time would use that drug when two or more of them were together. In that regard:
o Mr Smith would smoke, but not inject methamphetamine.
o Ms Melhuish, Mr Burwell and Mr George would inject themselves with methamphetamine.
o Mr George in particular was a very serious methamphetamine addict who, by July of 2017, was using the drug, by injecting it, “pretty much every day”. In that regard:
▪ Mr Burwell in particular spent a great deal of time with Mr George during the month of July, 2017, and confirmed that Mr George’s longstanding addiction to methamphetamine, during that month, had reached the point where Mr George was an “excessive” user.
▪ For example, Mr Burwell routinely used methamphetamine at the same time as Mr George. While Mr Burwell would feed his addiction by using one or two tenths of a gram of methamphetamine at any one time, he routinely would see Mr George inject half a gram to a full gram of methamphetamine at a time, and do so more than once a day.
▪ Moreover, while users of methamphetamine commonly experience sleep-deprivation, (which leads over time to development of paranoia and hallucinations, otherwise known in the drug subculture as “tweeking”), Mr Burwell confirmed, in his unchallenged testimony, that Mr George experienced more profound effects in that regard. In particular, throughout the month of July, 2017, Mr George frequently was not sleeping for periods lasting many days, and perhaps weeks, which prompted Mr George to experience more frequent “tweeking”. In the case of Mr George, such difficulties were compounded if Mr George failed to take the prescribed medication for his mental health issues.
o Over time, Mr Burwell, Mr Smith and Ms Melhuish had become familiar with the impact frequent use of crystal methamphetamine was having on Mr George. In particular, they frequently had witnessed Mr George experiencing hallucinations; for example, with Mr George frequently indicating, through his words and actions, that he was seeing people who, in fact, were not there.
o For example, Mr George frequently experienced hallucinations relating to a girlfriend named “Amber”, who may or may not have existed in fact at some point. (Over the time Mr Smith knew Mr George, he had never met or been introduced to anyone named “Amber”. Mr Burwell similarly had never met Amber, during the many years he had known Mr George, but had come to understand that Amber did exist somewhere.) In any event, Mr George often appeared to be speaking directly with “Amber” when there actually was no such person in the room with him. Mr George also was frequently paranoid about “Amber” and where she was, thinking that other people were “hiding” Amber from him.
o However, when “high” from the effects of methamphetamine, Mr George commonly would exhibit, in addition to his hallucinations, other disruptive and frequently loud behaviour, to the point where Mr Smith had spoken to Mr George about it, asking Mr George not to come to the house at 1070 Frances Street when he was high.
An example of such behaviour occurred the evening of Sunday, July 30, 2017; i.e., the day before the incident giving rise to this proceeding. In particular:
o Mr George had been allowed to stay overnight at the Frances Street residence that evening.
o However, a number of times through the early morning hours of the night, while everyone else in the house was trying to sleep, Mr George made extremely loud and disruptive noises, (which Mr Smith characterized as a “racket”), waking others in the process.
o In particular, Mr George was shouting and repeatedly expressing concern about a man named “Tommy” having a “sword”, while moving about and causing himself and various other items to fall loudly to the floor, in his apparent attempts to evade “Tommy” and his perceived weapon. At the time, however, there was no one in the house named “Tommy”, and no one with a sword. It was clear to Mr Smith that Mr George was once again apparently under the influence of methamphetamine, and hallucinating.
o After that had happened at least twice during the night, Mr Smith asked Mr George to leave the Frances Street residence. However, Mr George eventually calmed down, laid himself out on the floor, and was permitted to stay.
Mr George was still at 1070 Frances Street throughout the following day, (i.e., on Monday, July 31, 2017), and once again using methamphetamine. In that regard:
o According to the unchallenged testimony of Mr Burwell, (who says he spent almost the entire day at 1070 Frances Street with Mr George, in the foyer bedroom), Mr George injected himself with methamphetamine throughout the day, on at least two or three separate occasions, occurring “every couple of hours or so”.
o Mr George’s first use of methamphetamine that day occurred in the morning, when he, Mr Burwell and Mr Smith used methamphetamine together. In that regard:
▪ Mr Smith recalled that he smoked approximately .2 grams of the drug, while Mr George injected a significantly larger but unknown quantity of the substance.
▪ Mr Smith did not notice anything, during that morning use of methamphetamine by Mr George, to indicate that Mr George was experiencing further hallucinations at the time.
▪ However, Mr Smith also admittedly did not spend much time with Mr George that morning, or stay with Mr George for very long after they used methamphetamine together, as Mr Smith left the Frances Street residences shortly thereafter, (and sometime before noon, approximately), to spend the day with another friend, Mr Simmons. In the circumstances, Mr Smith acknowledged, in cross-examination, that he frankly had no knowledge of whether Mr George experienced further side effects from his additional use of methamphetamine that day.
▪ Mr Smith recalled Mr George indicating, when Mr Smith was leaving the house, that Mr George felt very tired, and that he contemplated going home to sleep.
o However, Mr George did not leave the house at 1070 Frances Street shortly after Mr Smith’s departure, and instead continued to linger at the residence with Mr Burwell.
o At some point, Ms Melhuish joined Mr George and Mr Burwell in their further consumption of methamphetamine, with all three injecting the narcotic. (In my view, it was clear on the evidence that this was a second and separate use of methamphetamine from the occasion on which Mr George and Mr Burwell used the drug that day with Mr Smith, as Mr Smith was firm that he had not seen Ms Melhuish using the drug that day, and accordingly could not say whether or not she had done so.) Although Mr Burwell saw Ms Melhuish inject the drug, he could not recall how much she consumed.
o Mr Burwell and Mr George thereafter remained together in the foyer bedroom, well into the evening, apparently using additional amounts of methamphetamine, according to Mr Burwell’s estimate of their injecting the drug “every couple of hours or so”. As usual, Mr George’s consumption of the drug significantly outpaced that of Mr Burwell. In Mr Burwell’s estimation, Mr George injected well over a full gram of methamphetamine during the course of the day.
o Mr Burwell confirmed that, by the late evening, (after darkness had set in), Mr George was definitely “high”, “tweeking out”, and starting to experience further hallucinations. In particular, Mr George once again had started speaking with “Amber”, who was not present, and Mr Burwell decided it was time to walk Mr George back to his apartment so that Mr George could go to sleep there for the night.
Mr Burwell could not recall the precise time at which he and Mr George left 1070 Frances Street together on the night of July 31, 2017, to walk to Mr George’s apartment. However, Mr Burwell was sure, and I accept, that it was already dark outside as the two men made their way on foot to Mr George’s apartment. In that regard, I think I am entitled to take judicial notice of the reality that, here in London, in late July, days are longer than at most times of the year, and sunset does not occur until the late evening; e.g., sometime after 8:30pm.
Mr Burwell testified, and I accept, that Mr George was “high” and “really tweeking out” during that walk back to his apartment from Frances Street, owing to his prolonged and heavy consumption of methamphetamine, and the fact he had been awake far too long. In particular:
o When the two men made an initial stop at a convenience store, to purchase cereal and milk, Mr Burwell alone went inside while Mr George waited outside the store. When Mr Burwell exited the store, he found Mr George once again talking to Amber, who was not actually there.
o When the two men then made a further stop at a Tim Horton’s restaurant, Mr George was convinced that he could see Amber standing on top of its roof – although she once again was not really there.
o At that point, Mr Burwell also realized that Mr George had not taken any of his prescribed Olanzapine for at least the past day or more, while he and Mr George had been together. To Mr Burwell’s knowledge, Mr George failing to take his prescribed medication had been happening more and more regularly during the month of July. In particular, Mr Burwell had been asking Mr George about the taking of his medication, and Mr George had been admitting that he simply was not taking his medication regularly, as he should have been doing.
When the two men arrived at Mr George’s apartment, Mr George was still very “high”. The two men ate some of the cereal Mr Burwell had purchased. Mr Burwell also found and made Mr George take a couple of his Olanzapine pills, from a bottle that appeared to be more than half full. However, during the 30 minutes or so that Mr Burwell remained at the apartment with Mr George, the pills seemed to have little effect on Mr George’s behaviour.
When Mr Burwell then left Mr George’s apartment to walk back to 1070 Frances Street, it was Mr Burwell’s understanding that Mr George would be going to sleep.
Mr Burwell also confirmed that, when he parted company with Mr George on the night of July 31, 2017, (having spent the entire day with him), nothing had occurred, as far as he knew, to change the apparently close relationship between Mr George, Ms Melhuish and Mr Smith.
When Mr Burwell got back to 1070 Frances Street on the night of July 31, 2017, (after walking Mr George home), he neither saw nor heard anyone else in the residence. To the best of his recollection, he proceeded directly into the foyer bedroom at the front of the house and fell asleep almost immediately, having been awake for several days at that point. Mr Burwell heard no one enter the house before he fell asleep, and would not wake up again until he was roused by police banging on the front door of the house, seeking admission, later that night.
Mr Smith returned to the house at 1070 Frances Street at approximately 9:30pm to 10:00pm that evening; i.e., on the night of Monday, July 31, 2017. At the time, it was dark outside, and electricity service to the house had been cut off, owing to the non-payment of a utility bill. However, there were still operable lights in the residence, powered by extension cords that had been connected to the house next door with the neighbour’s consent. Those lights included a halogen lamp, in the living room, that was illuminating the interior of the home when Mr Smith arrived.
At the time, seating in that living room included, (in addition to a cushioned “love seat” and sofa), a large padded “recliner” chair, which was positioned facing into the interior of the living room, with its back to the wall opposite the wall containing the door leading from the living room into the main bedroom. In particular, as one looked directly out that main bedroom door into the living room, the recliner chair was on the opposite side of the room slightly off to the right, and the halogen lamp, noted above, was positioned immediately to the left of the recliner on a higher “bar stool” type of chair.
On re-entering the home that Monday evening, Mr Smith happened to look through the open door of the foyer bedroom, and saw Mr Burwell alone in that room, sleeping on a couch. Making his way progressively through the other areas of the house, over the course of the next 30 or 40 minutes, Mr Smith effectively was able to confirm that he and Mr Burwell were the only two people there. Ms Melhuish apparently also had gone somewhere, sometime after Mr Smith’s departure from the residence earlier that day.
Approximately 30 to 40 minutes after Mr Smith had come home, Ms Melhuish returned to the house as well, such that she, Mr Smith and Mr Burwell were known to be the only three people in the residence.
When Ms Melhuish came home, she and Mr Smith had an argument about where Mr Smith had gone and where he had been. However, the argument was short-lived, and was resolved and settled amicably after a short conversation. At that point, Mr Smith proceeded from the living room into the main bedroom and got into bed. Ms Melhuish nevertheless remained in the living room for a time, indicating to Mr Smith that she needed to gather some things from the living room, and bring them into the main bedroom, before going to bed as well.
After Mr Smith had been home for approximately one hour, (and Ms Melhuish had been home for about 20 to 30 minutes), Mr Smith and Ms Melhuish heard a knock at the front door of the house. Although Mr Smith testified that the knock occurred as late as 10:45pm or 11:00pm, I find that it must have occurred somewhat earlier than that. In particular, as described in more detail below, police were dispatched to 1070 Frances Street at 10:22pm, in urgent response to Mr Smith’s “911” call for assistance; a call which Mr Smith made shortly after the initial attack on Ms Melhuish began, approximately 5 minutes after Mr George’s arrival at the property. Based on that timeline, the relevant knock on the front door of 1070 Frances Street occurred at approximately 10:15pm.
In any event, Ms Melhuish went to see who had knocked on the front door; i.e., by looking through a window at the top of the front door to the house. She then returned to inform Mr Smith, (still lying in bed), that it was “Dennis”, (i.e., Mr George), at the front door. Mr George’s return to the house had not been expected, and Mr Smith did not know why he was there. However, Mr Smith had no concerns at that point about letting Mr George into the residence, and told Ms Melhuish to let Mr George come inside.
Mr Smith remained in bed but, through the doorway separating the living room and the main bedroom, (the door to which was missing its doorknob and latching mechanism, and was opened approximately 14 inches), Mr Smith heard, (but did not see), Ms Melhuish unlock the front door and let Mr George inside. Mr Smith then also heard, (but did not see), Ms Melhuish and Mr George speaking with each other, initially in the foyer and then in the living room.
Although Mr Smith initially was not able to see Ms Melhuish and Mr George interacting with each other, (e.g., to observe their body movements or facial expressions), everything seemed cordial and “pretty calm” between the two of them during the first five minutes or so of Mr George’s visit, based on the conversation Mr Smith was overhearing in its entirety. In particular:
o Mr Smith heard no aggression whatsoever in the verbal tones being used by Ms Melhuish or by Mr George.
o Nor did Mr Smith hear anything whatsoever said about any hammer.
o Mr Smith instead heard Ms Melhuish begin by asking Mr George how he was doing, to which Mr George responded that he was “fine”.
o Ms Melhuish then asked Mr George if he was “sure” about that, and Mr George responded by saying “yeah”.
o Mr George then asked Mr Melhuish how she was doing, which was followed by the two of them inquiring how the other’s day had gone.
o During the course of that discussion about how their respective days had gone, Ms Melhuish then returned to the subject of Mr George’s welfare, asking Mr George if he was sure that he was okay, as it seemed to her that he had been “kinda tense over the past couple of days”.
Just after Ms Melhuish posed that further question to Mr George, Mr Smith began to hear, without any further speaking, unusual “rustling around” sounds coming from the living room that began to cause him concern, as he had never heard such sounds in the house before. The sounds included what Mr Smith thought was the sound of someone’s foot “hitting off” the glass coffee table in the living room.
At that point, still in the main bedroom and not knowing whether to “think too much” about the strange sounds he was hearing, Mr Smith decided to see what was going on. At the time, Mr Smith had no expectation whatsoever of witnessing any physical confrontation. He thought it might simply be his two dogs, jumping up onto Mr George, which needed to be brought under control.
Mr Smith therefore “rolled out of bed”, (as he put it), and fully opened his bedroom door to look out into the living room, which was still illuminated by the halogen light. Although that was the only light in the room, and Mr Smith was “pretty sure” the light was on the lower of its two settings, he testified and I accept that it was still sufficient for him to see distinctly what was going on in that room.
When Mr Smith opened his bedroom door fully and looked into the living room, he had a clear and unobstructed view of Ms Melhuish seated in the recliner chair, (which was not reclined at the time), approximately eight feet away from the main bedroom door. To his shock and horror, Mr Smith also had a clear and unobstructed view of Mr George standing in front of and over Ms Melhuish, striking her repeatedly in the head and face with a hammer.
In particular, while Mr Smith was unable to see and note distinct details about the hammer being used, (although he could tell it was a hammer), and also was not entirely sure of the precise number of hammer blows he witnessed in that regard, (i.e., while he was standing in the doorway of the main bedroom looking into the living room, taking a few seconds to register and react to what was happening), Mr Smith saw Mr George hit Ms Melhuish in the head and face with the hammer several times, (at least), using “overhead” blows, administered with “a pretty good amount of force”, while Mr George was holding the hammer in his right hand and not saying anything. (Although Mr Smith initially testified that he had seen Mr George hit Ms Melhuish in the head at least 10 times, I think it became clear during the course of cross-examination that Mr Smith had extrapolated that figure from later observations of the number of holes observed in the head of Ms Melhuish after she had been taken to the hospital Emergency Department. In particular, Mr Smith eventually acknowledged that, at the time of his initial observations, after opening his bedroom door and looking out into the living room, he admittedly was not counting the precise number of blows he was seeing, and could only be certain that he had seen Mr George strike Ms Melhuish in the head and face, with the hammer, several times at the least.) Ms Melhuish, on the receiving end of those hammer blows, was “slumped” in the recliner chair, unconscious and not doing or saying anything.
When Mr Smith then attempted to intervene by calling out the accused’s first name, (i.e., “Dennis!”), Mr George broke off his attack on Ms Melhuish to turn and “come at” Mr Smith, saying something that sounded like a “couple of words”, although Mr Smith did not know what they were or if they made sense. Not wanting to be hit with the hammer, Mr Smith quickly retreated back into the main bedroom, shutting its door behind him, and leaning his weight against the inside of the door to keep it closed.
For approximately 30 seconds thereafter, Mr George hit and/or kicked the door from the opposite side, unsuccessfully trying to force his way into the main bedroom. (Whether or not the forces involved were sufficient to damage the door in any way is uncertain, as photos after the event indicate the presence of cracks and breaks, but Mr Smith candidly acknowledged all of that damage already may have been present before the incident.) In any event, while Mr George was still trying to make his way through that bedroom door, Mr Smith used his foot to retrieve his nearby cellphone, and placed a “911” call to summon police assistance.
When the blows on the other side of the bedroom door came to an end, and as Mr Smith was continuing to answer the many questions being asked by the 911 operator, Mr Smith realized that Mr George had moved away from the bedroom door. In that regard, Mr Smith thought Mr George may have been heading towards the front door, to make his away out of the house. However, when Mr Smith looked out through the hole in the main bedroom door where the doorknob mechanism normally would have been, to ensure that was the case, he saw Mr George return to the area of the recliner, where Mr George proceeded to strike Ms Melhuish in the head an additional three to four times, once again using the hammer in his right hand. In that regard:
o It was suggested in cross-examination that Mr Smith, for several reasons, had not really seen Mr George walk back to the recliner to strike Ms Melhuish again.
o For example, it was suggested that Mr Smith’s attention at the time actually was focused on other matters, (such as holding the door closed and the ongoing 911 call), and that Mr Smith had a poor and restricted vantage point looking through the hole where the door handle normally would have been. It also was suggested that, because Mr Smith was angry and upset by what Mr George had done to Mr Smith’s romantic partner, Mr Smith had embellished his account after the fact, and over time, to portray Mr George in a more negative light at trial.
o I nevertheless am satisfied that Mr Smith did in fact see Mr George return to the recliner to strike Ms Melhuish again. Mr Smith was absolutely firm on that point, during his examination in chief and during cross-examination. Moreover, fearing for his own safety at the time, (in addition to that of Ms Melhuish), and having just thwarted an attack on himself, I think Mr Smith had every reason to be intensely focused on the continued location and movements of Mr George at the time, and to remember such matters accordingly. I also think Mr Smith’s vantage point through the hole in the door, approximately 4 inches in diameter, would have been sufficient to observe such movements in the area around the recliner – as demonstrated by the police photograph marked as Exhibit 3(d), which was taken through the hole in the closed main bedroom door, looking into the living room. Finally, the suggestion of recent fabrication is rebutted by the statement Mr Smith provided to the police shortly after the incident, on August 1, 2017, when he already was firmly indicating that Mr George had gone back to strike Melhuish another three to four times after moving away from the bedroom door.
o It was emphasized by defence counsel, in cross-examination and in closing submissions, that Mr Smith actually was not certain whether or not Mr George had used the hammer or his hand to strike Ms Melhuish the additional three or four times. In my view, there is truth in that; i.e., that Mr Smith was not really certain on that point. In particular, as highlighted in cross-examination, although Mr Smith was adamant at trial that he definitely had seen Mr George use the hammer to inflict the further three or four blows on Ms Melhuish, Mr Smith indicated in his statement given to police, on August 1, 2017, that he was “not sure if he [Mr George] punched her or hit her [Ms Melhuish] with the hammer again”. As Mr Smith was uncertain in that regard shortly after the incident, when the memory of the event was fresh in his mind, I think he artificially – albeit subconsciously – has transformed his uncertain memory into a certainty over time.
o Having said that, I nevertheless find that Mr George did in fact use the hammer to inflict the additional blows on Ms Melhuish, based on what I consider to be reasonable inferences drawn from the evidence as a whole. In particular:
▪ In my view, it is absolutely clear that Mr George used a hammer to deliver the initial blows inflicted on Ms Melhuish. Not only is that consistent with the firm, unchanging and essentially unchallenged testimony of Mr Smith on that point, but it is also consistent with the severity of head injuries Ms Melhuish received, (i.e., with complex fractures of virtually every bone in her skull and face, unlikely to have been inflicted with blows administered merely by hand), with the blood and hair found on the hammer discarded in an outside location near to the front door of 1070 Frances Street, with the blood of Ms Melhuish found on Mr George, and with the observations made by Mr Smith after the attack, when Ms Melhuish was receiving emergency treatment at the hospital immediately after her attack, that the wounds she had received included approximately 10 visible “holes” in her head.
▪ I similarly think it clear that the hammer was a weapon of opportunity, rather than premeditation. In that regard:
- Mr Smith confirmed that there were a number of tools, including hammers, inside the 1070 Frances Street residence at the time. In particular, not only did Mr Smith himself have a number of his own hammers in the house, but Mr Burwell also was using tools, at the time, to complete certain ongoing renovation work at the front of the residence. - I think it reasonable to infer that Mr George did not bring the relevant hammer into the residence with him when Ms Melhuish unlocked the door and allowed him inside on the night of July 31, 2017. In particular: o Photographs tendered as exhibits make it clear that the hammer in question had a very extended handle, giving it an unusual size and length; i.e., such that it was approximately 16 inches long. o In my view, it accordingly would have been difficult for Mr George to conceal such a hammer on his person, especially at a time of year, in the dead of summer, when bulky coats or similar clothing would not have been worn. o Moreover, had Mr George been carrying such a hammer in plain sight, as he was standing outside the front door of the home requesting entry, and/or as he was walking into the foyer and living room with Ms Melhuish, and conversing with her there for a few minutes after Ms Melhuish had taken a seat in the recliner, I think she naturally would have noticed and commented, with curiosity, on the unusual presence of any hammer being held by Mr George. There nevertheless was no mention whatsoever of a hammer, when Ms Melhuish briefly returned to speak with Mr Smith after checking through the window to see who was at the door. Nor was there any mention of a hammer during the entire conversation between Ms Melhuish and Mr George, all of which was overheard by Mr Smith. o In my view, the natural and reasonable inference is that Mr George therefore grabbed one of the hammers already in the residence – suddenly and without warning, immediately before the attack, and before Ms Melhuish had any opportunity to articulate any comment about it or react defensively or instinctively, apart from the medical evidence of an injury to her finger, (noted again in more detail below), suggesting that she may have raised that hand in an effort to shield herself before she was rendered unconscious and incapacitated – which in my view, (given the absence of any other possible defensive injuries and the absence of any cries or shouts from Ms Melhuish that clearly would have been heard by Mr Smith), almost certainly happened with Mr George’s infliction of the first hammer blow. o Moreover, I think it reasonable to infer that Mr George naturally would have reached for and used the hammer with his dominant hand, in order to use it effectively.▪ The fact that the hammer obviously was carried out of the house and discarded outside supports, in my view, an additional inference that Mr George did not put the hammer down between the time of the initial attack and the time he exited 1070 Frances Street. In particular:
- In my view, there would be no natural reason or inclination for Mr George to use the hammer in the initial attack on Ms Melhuish, but put it down temporarily while launching into any similar intended attack on Mr Smith, or while trying to then force his way through the main bedroom, when such a tool would have assisted him in achieving that objective. - Similarly, if the hammer remained in Mr George’s hand during his attempts to attack Mr Smith and/or force his way through the main bedroom door, it seems to me that there would have been no natural reason or impulse for Mr George to then set the hammer down temporarily when resuming his effectively interrupted attack on Ms Melhuish; i.e., using the same manner and weapon he previously had been using. - Nor, if Mr George had temporarily set the hammer down, would there have been any natural reason for him to then stop and pick it up again for the sole purpose of carrying it only a short distance, out the front door, before discarding it there in plain sight. - Having regard to all such considerations, in my view the sensible inference and conclusion is that Mr George grabbed and made use of the available hammer during his initial attack on Ms Melhuish, (as a weapon of opportunity), retained and used the hammer when trying to attack Mr Smith and force his way through the door of the main bedroom, and also when he then resumed his interrupted attack on Ms Melhuish, (using the same weapon he previously had been using, in the same manner), before exiting the house with the weapon still in hand, and then dropping the weapon once he was outside and leaving the scene of the attack behind him.▪ If Mr George naturally would have grabbed for and used the hammer with his dominant hand, I think it reasonable to make a further inference that he naturally would have retained the hammer in that dominant hand while trying to attack Mr Smith, force his way through the main bedroom door, and resume his interrupted attack on Ms Melhuish in the same manner. In my view, there would have been no natural impulse on the part of Mr George to use his non-dominant hand to strike Ms Melhuish with less serious blows while his dominant hand was still holding the hammer, or to switch the hammer from his dominant hand into his non-dominant hand, so that he could inflict less serious blows with his now emptied dominant hand while holding onto the hammer - already used to inflict blows on Ms Melhuish - unused in his other hand. In my view, nothing in the conduct of Mr George that night suggests any basis for his having exercised such deliberate restraint.
▪ Finally, in relation to the further blows inflicted by Mr George, it was emphasized by defence counsel in closing submissions, (accurately in my view), that the testimony of Mr Smith did not make it clear whether or not those additional blows were directed to the head and face of Ms Melhuish. In particular, Mr George referred to the additional blows without specifying the part of Ms Melhuish’s anatomy that may have been on the receiving end of those blows. That having been said, in my view the evidence of Mr George striking those additional blows, and his continued use of the hammer in that regard, (for the reasons I have outlined), combined with the medical evidence of the injuries sustained by Ms Melhuish, (described in more detail below), collectively justify a reasonable inference that the additional blows also were applied to the head and face of Ms Melhuish. In particular, the medical evidence suggests no injury to any other part of her body, apart from the already mentioned injury to one of her fingers, which I think attributable to an initial defensive gesture on the part of Ms Melhuish before she was rendered unconscious. In my view, had the further hammer blows been inflicted upon any part of Ms Melhuish’s body other than her face or head, that would have resulted in additional notable injuries. The absence of such documented injuries makes it clear, I think, that the further blows inflicted by Mr George also were directed at the face and head of Ms Melhuish.
In any event, it was only after Mr George inflicted the additional three to four blows to Mr Melhuish that he left the house through its front door. Through the hole in the door of the main bedroom, Mr Smith observed Mr George move towards the front door of the house at a fast walking pace, but without running. Fearing for his safety, Mr Smith nevertheless chose to remain in the main bedroom, behind its still closed door, waiting for the arrival of police officers.
Almost immediately after Mr George exited 1070 Frances Street through its front door, following the final stage of his attack on Ms Melhuish, he discarded the hammer – such that it came to rest in a location on the shared driveway between the houses at 1068 Frances Street and 1070 Frances Street, just below the front of a vehicle parked closer to the house at 1068 Frances Street. In that regard:
o It was not disputed, and I independently find in any event, that the hammer found in that driveway was the one used in the attack on Ms Melhuish. The police photographs depict the presence of blood and strands of hair on that hammer and, as noted above, the CFS report confirmed that the blood on the hammer was that of Ms Melhuish.
o In my view, the location of the discarded hammer does not suggest any deliberate attempt to hide the weapon.
o Certainly, if there had been any intention on the part of Mr George to hide the weapon, it obviously could have been removed to a more distant location; e.g., to a point anywhere between 1070 Frances Street and the location on Woodman Avenue where Mr George eventually was arrested, in the circumstances noted below.
o Similarly, had there been any intention on the part of Mr George to hide the weapon, it obviously could have been secreted in a spot where it would not have been readily visible to others.
o The hammer was instead left on the ground just a short distance outside the front door of 1070 Frances Street, in a spot barely under the front of a vehicle parked in front of 1068 Frances Street. In the circumstances, it was readily visible to anyone looking towards or walking up the joint driveway between the two houses, and there was no evidence whatsoever to suggest that the police had any trouble seeing or locating the hammer during their investigation.
o Moreover, the hammer obviously would have been rendered even more visible whenever the vehicle parked nearer to 1070 Frances Street inevitably would have been driven away from its temporary location.
o The hammer also came to rest in a spot no more than a few feet away from the path of travel someone naturally would have taken after walking out the front door of 1070 Frances Street, heading down the steps of its front porch to the right, (and thereby leading down towards the centre of the shared driveway), proceeding between the two vehicles in that shared driveway to reach the sidewalk, before then turning right to walk in front of the vehicle parked at 1068 Frances Street towards Egerton Street; i.e., the next north-south street leading in turn to Woodman Avenue.
o For all these reasons, I think it reasonable to infer that the hammer was not the subject of any deliberate attempt at concealment, on the part of Mr George, but was instead simply dropped or tossed lightly aside by Mr George just after he left 1070 Frances Street, in such a way that it happened to come to a rest where it did.
Meanwhile, in response to Mr Smith’s 911 call for assistance, numerous officers from the London Police Service were dispatched to the scene, (i.e., 1070 Frances Street), including Constables Brown, Policelli, Begin, Battin and MacIntosh. In that regard:
o Constable Craig Brown and Constable Darren Battin both noted and testified that the relevant call from Dispatch went out at approximately 10:22pm.
o Constable Brown, who was working alone in a marked police van when the call from Dispatch was sent, recalled that it included indications that a male caller had contacted 911 to indicate that his girlfriend was being assaulted by someone with a hammer.
o Constable Batten noted and recalled that there also were indications from Dispatch that the male caller was hiding in a bedroom and not being entirely cooperative, and that it was unknown whether the suspect responsible for the assault was still at the scene. Constable Batten also noted and remembered that the call from Dispatch went out as a “Code 1”, indicating that those responding were to treat the matter as their “highest priority”; e.g., with officers getting there as quickly as possible through the use of lights and sirens.
o In the result, Constables Brown, Policelli and Begin were able to arrive at 1070 Frances Street within approximately two minutes of the dispatch call going out; i.e., by 10:24pm.
o However, Constables Battin and MacIntosh, travelling to the scene in separate vehicles from the south of London, found themselves stopped together, in their separate vehicles, at the same railway crossing on Egerton Street, where a passing east-west train was delaying their further progress north.
When Constables Brown, Policelli and Begin arrived at 1070 Frances Street, at approximately the same time:
o The three officers proceeded up the driveway towards the house, with Constable Brown pausing briefly to speak with a neighbor on the front porch of the neighbouring house at 1068 Frances Street, who indicated he had not seen anything.
o The three officers walked up to the front door of the residence, with Constable Policelli taking the lead, followed by Constable Begin, followed by Constable Brown. The front door was closed and locked, and either Constable Policelli or Constable Begin knocked loudly on the door.
o That loud police knocking or “beating on the door”, (as Mr Burwell described it), woke Mr Burwell, who roused himself, went to the door, and unlocked it to let the three officers inside before stepping back into his foyer bedroom. (Mr Burwell had not seen Mr George re-enter the house that night, nor any of the events thereafter, and frankly did not know why the police were there.)
o By the time Constable Brown entered the house, (as the last of the three initially responding officers to step inside), Mr Burwell had returned to sit on the couch of the small foyer bedroom, (where he identified himself to Constable Brown), and Mr Smith had opened the main bedroom door to step inside the living room, visibly and obviously extremely distraught and upset, as he spoke with the other officers.
o The living room was still lit by the artificial lighting of the halogen lamp which, in the words of Constable Brown, was not “overly bright”, but certainly sufficient to see around the interior of the living room without difficulty. In particular, the three officers could plainly see the only other occupant of the house, Ms Melhuish, in the recliner chair, unconscious, with her legs sticking out very straight, and suffering from massive wounds to the head. There was a great deal of blood around her, on her head and face, soaked into her T-shirt, and forming a large puddle of blood on the floor in front of the recliner.
o The officers continued to speak with Mr Smith, and obtain further information, as they waited at 1070 Frances Street for ambulance and fire responders to arrive on scene.
o Constables Battin and MacIntosh, still stopped at the Egerton Street railway crossing en route to 1070 Frances Street, and waiting for the passing train to go by completely, then began to receive further updates. In particular, they received information that included the following indications:
▪ that the victim involved in the incident at 1070 Frances Street had serious head injuries;
▪ that the suspect wanted in relation to the incident was Dennis George, who had left the scene;
▪ that Mr George’s “mug shot” (or photo from prior police involvement) was on file;
▪ that, in addition to crystal methamphetamine possibly having something to do with the incident, Mr George had mental health issues;
▪ that Mr George was to be considered “armed and dangerous”, and therefore capable of violence; and
▪ that Mr George accordingly was subject to a “Code Four” protocol, whereby officers were to “use caution” in approaching and dealing with him.
o While still waiting for the train to pass, Constable Battin used the opportunity, and the “Versadex” information unit in his police vehicle, to view the “mug shot” photograph of Mr George that was available on the records database of the London Police Service.
In the meantime, Mr George had proceeded, apparently on foot, west and then north, from 1070 Frances Street, to arrive at a location approximately 800 metres away, near the home of Jeremy Beyea, at 442 Woodman Avenue. In that regard:
o At approximately 10:30pm on July 31, 2017, Mr Beyea was outside his house and doing tasks in his driveway, (e.g., moving his motorcycle up the drive, parking cars, and locking up his vehicles for the evening), when a man, (a stranger whom Mr Beyea had never met before, and who turned out to be Mr George), walked up the driveway behind him.
o In particular, Mr Beyea heard someone trying to speak behind him, and turned to see Mr George, holding on to some form of “walking staff”, (approximately four feet high and two inches in diameter), making his way up Mr Beyea’s drive.
o Even with that walking staff, Mr George was “not walking correctly”, insofar as he was staggering and apparently having difficulty maintaining his balance. He was also sweating profusely, and demonstrating heavy and irregular breathing.
o Moreover, although Mr George was trying to speak to Mr Beyea, Mr George was incoherent. In particular, even after Mr Beyea turned around to face Mr George, he still could not understand what Mr George was trying to say – although Mr Beyea, having regard to all the circumstances, thought Mr George was trying to ask him for help.
o In any event, it was clear to Mr Beyea, from a very early point in his interactions with Mr George, that Mr George was in some form of significant medical distress. In particular, Mr Beyea formed the view that Mr George was experiencing either a drug overdose or a heart attack. Thinking that Mr George was in need of an ambulance, Mr Beyea also decided to use his cellphone to place an immediate call to “911” for assistance, and did so.
o As Mr Beyea found himself between Mr George and a wall, and was not comfortable with the situation, he instructed Mr George to go sit on a porch on the opposite side of Woodman Avenue until the requested help arrived. To assist Mr George’s understanding of what he was being asked to do in that regard, Mr Beyea pointed to the relevant porch, on the opposite side of the street. Mr George initially hesitated, (e.g., looking over to where Mr Beyea had pointed, and then back again at Mr Beyea), but then complied with the instruction by walking across the street to the indicated porch.
o Mr Beyea remained outside and continued to watch Mr George continuously, from a distance, while waiting for the requested assistance to arrive.
At 10:31pm on July 31, 2017, Constables Battin and MacIntosh then received information from Dispatch about another situation that had been reported. In particular, Dispatch was indicating that it had received a report about a “man with a stick” on the porch of 441 Woodman Avenue, apparently in need of urgent assistance. As both officers had been informed that there already were numerous officers on scene at 1070 Frances Street, (in response to the earlier call from Dispatch), Constables Battin and MacIntosh indicated to Dispatch that they would proceed to address the situation at 441 Woodman Avenue, which was thought to be unrelated.
Constables Battin and MacIntosh arrived at 441 Woodman Avenue, in their separate vehicles, (with Constable Battin in the lead), at approximately 10:32pm on July 31, 2017. What transpired thereafter on Woodman Avenue was not disputed, and included the following:
o Mr Beyea, still at the scene outside of his residence, immediately began telling the officers that the man on the porch across the street needed an ambulance.
o Although the relevant area of Woodman Avenue had streetlights, it was dimly lit.
o Looking over at the porch of 441 Woodman Avenue from inside his police vehicle, Constable Battin saw what he initially thought was an elderly man, sitting on the front steps and porch of that residence, while “slumped” or “slouched” over. Indeed, based on his initial observations, Constable Battin thought the relevant individual might be an 80-to-90-year-old male.
o However, as the two officers exited their vehicles and began moving towards the individual, Constable Battin observed that the male sitting on the porch was much younger than the officer originally had thought. Moreover, as Constable Battin drew closer, and reached a distance approximately 10 to 15 feet away from the individual on the porch, the officer realized that he probably was dealing with Dennis George. In particular, Constable Battin saw that the male sitting slouched over on the porch of 441 Woodman Avenue had distinctive neck tattoos matching those depicted in Mr George’s “mug shot”, which Constable Battin had reviewed just a few minutes before.
o In the circumstances, (including the updated indications recently received from Dispatch in relation to Mr George and the incident at 1070 Frances Street), Constable Battin immediately drew his firearm and pointed it at Mr George while issuing the standard police challenge; i.e., loudly yelling “Police! Don’t move!” At the same time, Constable MacIntosh, (now also approximately 10-15 feet away from Mr George), responded to the evolving situation by drawing his “Taser” weapon, so that a “less lethal” control option would be available.
o Constable Battin then ordered Mr George to “Get down on the ground”, and Mr George was compliant. In particular, Mr George stood up from the porch and steps where he had been sitting, dropped the walking stick he had been holding, descended to the ground in front of the residence, and laid down on his front, placing his hands behind his back.
o Constable Battin then holstered his firearm and, (with Constable MacIntosh also approaching and providing continued support), moved forward to secure and handcuff the hands of Mr George behind his back, verbally indicating to Mr George, at approximately 10:33pm, that he was being placed under arrest for aggravated assault.
o As Mr George was being placed under arrest, Constable Battin noticed that Mr George had blood on his hands and on his trousers. (As noted above, the CFS later confirmed that blood found on Mr George’s hand was that of Ms Melhuish.) Mr George also was sweating profusely, while articulating little more than constant grunts and groans, all of which was consistent with Constable Battin’s prior experience of dealing with those under the influence of crystal methamphetamine. In addition to such constant grunts and groans, Mr George nevertheless also was heard to say something about having an injured left rotator cuff.
o Once Mr George had been secured, he was led back to Constable Battin’s police cruiser, and placed in the rear seat of that vehicle.
o Constable Battin then left the scene, (with Mr George in the back of his police cruiser), to transport Mr George to the holding cell facilities at London Police Headquarters. Constable MacIntosh remained at the scene to take a statement from Mr Beyea.
During the ten-minute drive from the site of Mr George’s arrest on Woodman Avenue to the London Police Headquarters at 601 Dundas Street, Constable Battin became increasingly concerned about the medical condition of Mr George. In particular, because Mr George was sweating so profusely, continuing to grunt and groan, and displaying other unusual behaviours, Constable Battin became increasingly worried that Mr George might be experiencing an overdose. After discussing the situation with the presiding Staff Sergeant, it was decided that Mr George, (after having been at London Police Headquarters for only 11 minutes or so), would be taken immediately to hospital to address such concerns. While it was contemplated that the medical staff might also then address Mr George’s suggestion of a rotator cuff injury, that was not the primary reason for taking Mr George to the hospital for an urgent medical assessment and/or treatment.
During the ensuing seven-minute drive from London Police Headquarters to the nearest hospital, Constable Battin continued to have concerns that Mr George was experiencing a drug overdose. In an effort to address the situation, (including Mr George’s profuse sweating), the officer turned the vehicle’s air conditioning system on “full blast” with all the windows closed, while en route to the hospital, only to notice that the window closest to Mr George, (and only that window), became completely “fogged up”.
As for the time Mr George then spent at the hospital:
o The information set forth in the “Application by Physician for Psychiatric Report” prepared by Dr Skoretz includes indications that Mr George arrived at the hospital admissions desk at 11:31pm, (approximately 70 minutes after the attack on Ms Melhuish), and that all assessments, orders and forms had been discontinued and/or completed by approximately 12:29am on August 1, 2017. While no discharge/departure time appears to be noted in the documentation, I think it reasonable to infer that Constable Battin would not have lingered with Mr George unnecessarily at the hospital, and that he and Mr George would have left the hospital for the police station shortly after 12:29am.
o During that entire time, (including the time during which Mr George was being medically assessed), Mr George remained under the constant observation of Constable Battin - albeit sometimes from a distance. As a result, Constable Battin could hear and see that Mr George continued to communicate primarily with repeated grunts and groans, and continued to sweat profusely, while frequently exhibiting agitated behaviour.
o Mr George was seen and assessed, both physically and in relation to mental health issues, by Dr Terry Skoretz, who recorded observations and assessments that were incorporated into his “Application by Physician for Psychiatric Assessment” report that was filed at trial, on consent, as substantive evidence.
o In his completed forms, Dr Skoretz made reference to Mr George’s mental history of paranoid schizophrenia, requiring the taking of prescribed Olanzapine, and to Mr George apparently having taken methamphetamine for “days” prior to the reported attack earlier that night.
o In the course of his assessment, Dr Skoretz recorded some observations suggesting that Mr George had a degree of cognitive awareness that allowed for certain appropriate responses. In particular, Mr George was noted to be alert as to “person”, “place” and “time”. For example, Mr George apparently was able to indicate, to Dr Skoretz, that he knew where he was, that he knew the date, and that he was able to recall the date of his birth.
o Having said that, Dr Skoretz recorded other observations clearly suggesting that Mr George was not well, and suffering from at least some degree of disorientation and/or confusion. For example, Mr George was observed to be “abusive”, “agitated”, “restless” and demonstrating what Dr Skoretz characterized as “bizarre behaviour” – although the nature of that behaviour was not specified and documented in the report. While Mr George knew he was in a hospital, he was not aware of why he was there. Nor was he able to answer even “simple questions”, such as “what happened?” In that regard, I note in particular that the repeated emphasis of Dr Skoretz was on Mr George’s apparent inability to answer such questions, as opposed to any apparent reticence or disinclination to do so; e.g., to avoid the provision of possibly self-incriminating answers.
After Mr George had been cleared for release by Dr Skoretz and hospital staff, he was returned to the rear of Constable Battin’s police cruiser for transport back to the London Police Headquarters. During that further seven-minute drive, Constable Battin observed that Mr George continued to sweat, grunt and groan, while exhibiting additional bizarre behaviour. Such behaviour included Mr George repeatedly rolling onto his back to raise his feet in the air, in order to kick again and again at something he apparently was seeing moving about on the police cruiser’s ceiling, although there was nothing there.
After Constable Battin and Mr George had returned to London Police Headquarters, and Mr George had been removed from the rear of Constable Battin’s police cruiser, Mr George’s communication continued to be largely non-verbal, (in the forms of ongoing grunts and groans), and his bizarre behaviour continued. In particular, Constable Battin saw Mr George repeatedly step aggressively on the pavement around him, “as if trying to stomp on bugs” or something else he was seeing, although there was nothing there.
After Mr George had been presented to the Staff Sergeant in charge of cells and processed, Constable Battin remained with Mr George until the officer was relieved at approximately 2:05am on August 1, 2017. Throughout that entire time, Mr George consistently continued to grunt, groan and sweat profusely, while pacing back and forth in an obviously agitated state.
Shortly thereafter, (i.e., at approximately 2:10am on August 1, 2017), Detective Constable (or “DC”) Paul Horenberg, from the Forensic Identification Section of the London Police Service, arrived at 1070 Frances Street. He began to process the scene; e.g., taking photographs of the interior and exterior of the home, and of the hammer that was located and seized from where it apparently had been discarded by Mr George – just under the front of a vehicle parked in the shared driveway of 1068 Frances Street and 1070 Frances Street. (DC Horenberg apparently was on scene for quite some time, as it was light outside when he was taking his exterior photographs.) DC Horenberg also took swabs of the hammer that were then forwarded to the CFS for analysis.
As for Ms Melhuish, she had been transported to hospital, where she was confirmed to have sustained catastrophic injuries requiring several surgical procedures and, over time, extended rehabilitation that brought substantial rehabilitation while nevertheless leaving her with significant and permanent disabilities. In particular:
o As noted above, there were complex fractures of virtually every bone in her skull and face. She also sustained an incidental displaced open fracture of her left fourth finger; apparently an initial defensive wound sustained before she was rendered unconscious.
o Her head injuries required multiple sites of open fixation with wires and other hardware, and a large section of her skull was beyond repair, leaving her with a defect approximately 10 centimeters in diameter.
o While her facial bones and jaw were all stabilized, and her orbital sockets were reconstructed, her left eye was ruptured and had to be removed.
o Ms Melhuish also suffered severe damage to several areas of her brain, and required at least two return visits to the operating room to stabilize her resulting brain swelling.
o She remained on life support for several days, and initially was dependent on a tracheotomy for continued breathing, while also experiencing several seizures.
o During follow up treatment, she repeatedly experienced abscess development on her brain and left eye socket, requiring repeated treatment.
o As her initial wounds healed, the severity of those wounds nevertheless left her with severe disfigurement; e.g., to her scalp, eye and facial features. She also now has a prosthetic left eye. While hoping to undergo a future procedure to place a prosthesis over her skull defect, she is required to wear a protective helmet.
o The neurological damage Ms Melhuish sustained also was severe enough to leave her with significant emotional and physical impairment, including a “pseudobulbar effect”, (i.e., inappropriate emotional expressions, such as inappropriate smiling, laughing, anger and crying), as well as spasticity in her legs and feet, and multiple abnormal reflexes, all of which have left her with an abnormal gait, and have affected her ability to walk. She accordingly now uses a wheelchair for much of her mobility, apart from occasional use of a wheeled walker to navigate short distances. She must still take a number of medications; e.g., to control her susceptibility to seizures. Her brain injuries also have left her with impaired judgment, impulsivity, (including an overeating disorder), and cognitive difficulties, along with a low maturity level.
o While Ms Melhuish hopes to live independently some day, her treating physicians doubt that she will ever progress beyond a supervised group home setting.
[12] With the above facts in mind, I turn to an analysis of the issues raised by this case.
Analysis
[13] The single count of the amended indictment, pursuant to which Mr George was tried, reads as follows:
DENNIS PAUL GEORGE STANDS CHARGED THAT he, on or about the 31st day of July in the year 2017 at the City of London in the said Southwest Region did attempt to murder Courtney MELHUISH by assaulting her with a hammer, thereby wounding her, contrary to Section 239, subsection (1) of the Criminal Code of Canada.
[14] In their respective submissions, defence counsel and Crown counsel each submitted that the evidence and circumstances justified, at the least, a conviction of Mr George for the lesser and included offence of aggravated assault, contrary to s,268(1) of the Code.
[15] I independently agree with those submissions.
[16] My reasons in that regard include the following:
a. As indicated in authorities such as R. v. Luckett, 1980 CanLII 185 (SCC), [1980] 1 S.C.R. 1140, at p.1141, R. v. Simpson (No.2), (1981), 1981 CanLII 3284 (ON CA), 58 C.C.C. (2d) 122 (Ont.C.A.), at p.133; and R. v. Pelletier, 2012 ONCA 566, [2012] O.J. No. 4061 (C.A.), at paragraph 105, one offence may be included within another in any of three ways:
i. by description in the enactment creating the offence;
ii. by description in the indictment or count in which the accused is charged; or
iii. by specific statutory provision.
b. In relation to the first two of those three ways, for an offence to be an “included offence” within the charged offence, (i.e., part of the “main” or “principal” offence), the description in the enactment that creates the charged offence, or the description in the indictment or count of the charged offence, must contain the essential elements of the suggested included offence. See R. v. Fergusson, 1961 CanLII 97 (SCC), [1962] S.C.R. 229, at p.233; R. v. Simpson (No.2), supra, at p.133; and R. v. Pelletier, supra, at paragraph 106.
c. As emphasized in R. v. Chambers, 2016 ONCA 684, at paragraph 59, the essential elements of aggravated assault are well established. To secure such a conviction, the Crown is required to prove the following beyond a reasonable doubt:
i. that the accused intentionally applied force to the complainant;
ii. that the complainant did not consent to the force applied by the accused;
iii. that the accused knew that the complainant did not consent to the force being applied; and
iv. that the force applied wounded, maimed, disfigured or endangered the life of the complainant.
d. The mens rea required for aggravated assault is objective rather than subjective foresight of the risk of bodily harm. The Crown accordingly is not required to prove that an accused intended to wound, or maim, or disfigure, or endanger the life of the victim. It is sufficient if a reasonable person would have realized that the accused’s conduct would subject the victim to the risk of bodily harm. See R. v. Godin, 1994 CanLII 97 (SCC), [1994] 2 S.C.R. 484, at p.485; R. v. Williams, 2003 SCC 41, [2003] 2 S.C.R. 134, at paragraph 22; R. v. Fontaine, [2011] B.C.J. No. 470 (C.A.), at paragraph 25, and R. v. Pelletier, supra, at paragraph 121.
e. Neither s.239(1) of the Code, (which creates the offence of attempted murder), nor any specific statutory provision, makes aggravated assault an included offence within an unparticularized count of an indictment charging an accused with attempted murder. See R. v. Pelletier, supra, at paragraph 116.
f. However, in this case, the particularized count set forth in the amended indictment does contain a description of the charged offence sufficient to include the lesser offence of aggravated assault. Specifically:
i. the allegation that Mr George attempted to murder Ms Melhuish by “assaulting” Ms Melhuish with a hammer incorporates, by reference, an allegation that the circumstances of the charged offence involve the three essential elements of “assault”, which overlap with the first three essential elements of “aggravated assault”; and
ii. the allegation that Mr George’s assault with the hammer “wounded” Ms Melhuish expressly addresses one means by which the fourth essential element of “aggravated assault” may be involved in alleged misconduct.
g. There was no dispute, and I independently find, that the essential elements of aggravated assault have been proven beyond a reasonable doubt in this case, based on the evidence presented at trial. Without limiting the generality of the foregoing, in my view:
i. The eyewitness testimony of Mr Smith, the blood of Ms Melhuish on the hammer, and the blood of Ms Melhuish on the hand of Mr George, collectively establish beyond a reasonable doubt that Mr George intentionally applied force to Ms Melhuish by picking up the hammer and using it to inflict blows to the head and face of Ms Melhuish. Mr George’s use of the hammer in its intended manner to inflict force, and his direction of repeated blows to the same area of Ms Melhuish’s body, (i.e., her head and face), makes it clear that the relevant application of force was not accidental.
ii. Ms Melhuish clearly did not consent to the force that Mr George intentionally applied; i.e., to being struck repeatedly in the face and head with a hammer by Mr George. Mr George’s use of the hammer as a weapon of opportunity, and the absence of any reference to the hammer or any exclamation of surprise or pain in the complete conversation overheard by Mr Smith prior to the attack, make it clear that the first blow struck by Mr George took Ms Melhuish completely by surprise, before she had any opportunity to say anything whatsoever in response to what Mr George was about to do, and I think Ms Melhuish realistically would have been rendered unconscious by the first hammer blow administered to her head. She then remained unconscious while Mr George continued to apply force through his repeated hammer blows. In the circumstances, I think it absolutely clear that Ms Melhuish did not know in advance what Mr George was going to do, and certainly did not voluntarily decide to let him do it.
iii. I also think it clear that Mr George knew, (in one or more of the ways such knowledge is capable of being established in law), that Ms Melhuish did not consent to the force he intentionally was applying. In particular:
1. The evidence of the defensive wound to the finger of Ms Melhuish indicates that she tried to react and shield herself from Mr George’s first blow with the hammer; a reaction that would have made her lack of consent clear to Mr George.
2. Alternatively, I think the speed and surprise nature of Mr George’s initiation of the attack on Ms Melhuish, using a weapon of opportunity, and without any prior mention of the hammer or what he was about to do, as well as the nature of the blows he intended to strike with the hammer, makes it clear that Mr George would have been aware that there was a very real risk that Ms Melhuish did not consent to the force Mr George intentionally applied, but he went ahead anyway, not caring whether Ms Melhuish consented or not.
3. In the further alternative, I think it inherent in the surprise nature of the initial attack that Mr George knew he should have inquired whether Ms Melhuish would consent to his intended application of force, but deliberately refrained from doing so because he did not want to know the truth about her consent.
iv. Finally, there clearly is no doubt, based on the medical evidence I have outlined in detail above, that the force intentionally applied to Ms Melhuish by Mr George, through his use of the hammer, wounded Ms Melhuish in horrific ways, leaving her with permanent significant disabilities. Moreover, I think it absolutely clear that a reasonable person would have realized that inflicting repeated hammer blows to the unguarded head and face of Ms Melhuish would subject her not only to the risk of such bodily harm, but the certainty of such harm.
[17] For all these reasons, Mr George is at least guilty of aggravated assault.
[18] The broader question is whether the Crown has proved, beyond a reasonable doubt, the essential elements of the more serious and expressly charged offence of attempted murder, contrary to s.239(1) of the Code.
[19] In that regard, it was not disputed that, if Mr George had the mens rea required for attempted murder, the actus reus of the offence has been proven beyond a reasonable doubt.
[20] Certainly, in my independent view, by seizing the hammer and using it to strike Ms Melhuish in the head and face repeatedly, while she lay unconscious and defenceless, the conduct of Mr George went “beyond mere preparation to commit the crime” of murder, and “progressed a sufficient distance down the intended path” towards completion of the intended crime so as to constitute an “attempt” in that regard. See R. v. Cline, 1956 CanLII 150 (ON CA), [1956] O.J. No. 454 (C.A.), at paragraph 36; R. v. Root, 2008 ONCA 869, [2008] O.J. No. 5214 (C.A.), and R. v. Ellis, [2016] O.J. No. 2457 (C.A.), at paragraph 32.
[21] The narrow issue to be decided in this case is really whether the Crown has proven, beyond a reasonable doubt, that Mr George had the mens rea required for attempted murder.
[22] General principles in that regard include the following:
a. An attempted murderer is, if caught and convicted, simply a “lucky murderer”. All that differs is the “consequences” component of the actus reus. The elements of mens rea for attempted murder accordingly are identical to those for the most severe form of murder. In particular, for each, (as there cannot be a murder without a killing), the Crown must prove beyond a reasonable doubt that the accused had “the specific intent to kill”; i.e., subjective foresight of the consequences. A mental state falling short of that level may well lead to conviction for other offences, (such as aggravated assault), but not to a conviction for attempted murder. See R. v. Ancio, 1984 CanLII 69 (SCC), [1984] 1 S.C.R. 225 at paragraph 32; R. v. Logan, 1990 CanLII 84 (SCC), [1990] 2 S.C.R. 731, at paragraphs 19 and 23; R. v. Latowski (2005), 2005 CanLII 30697 (ON CA), 77 O.R. (3d) 505 (C.A.), at paragraphs 11-13; and R. v. Warner, 2008 ONCA 443, at paragraph 4.
b. Because triers cannot look into the mind of an accused, and there often is little direct evidence of an accused’s mental state, intent generally must be proven based on inferences to be drawn from established facts. In such situations, use may be made of the “common sense inference” that a sober and sane person intends the natural and probable consequences of his or her actions. In particular, common sense dictates that people are usually able to foresee the consequences of their actions. Therefore, if a person acts in a manner which is likely to produce a certain result, it generally will be reasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to produce certain predictable consequences, it may be inferred that the person intended those consequences. See R. v. Gianotti, [1956] O.J. No. 539 (C.A.), at paragraph 39; R. v. Seymour, 1996 CanLII 201 (SCC), [1996] 2 S.C.R. 252, at paragraph 19; and R. v. Spence, [2017] O.J. No. 3870 (C.A.), at paragraph 45.
c. However, the “common sense inference” is not a legal presumption. It is simply a method used to determine the actual intent of an accused, and a permissible but not required inference, which may or may not be drawn in appropriate circumstances. When evidence points in a different direction, (for example, evidence of intoxication or mental illness, suggesting that the accused may not have been sober and/or sane), a trier must consider such evidence, along with all other evidence, in deciding whether to draw the “common sense inference”. See R. v. Gianotti, supra, at paragraphs 39-40; R. v. Seymour, supra, at paragraph 21; R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at paragraphs 55-67; R. v. Chretien, 2014 ONCA 403, at paragraph 91; and R. v. Spence, supra, at paragraph 45.
d. It is common knowledge that a significant degree of intoxication may affect a person’s state of mind, and thus the ability to foresee the consequences of actions. It therefore is essential that triers bear in mind that evidence of intoxication may rebut the “common sense inference”. See R. v. Robinson, 1996 CanLII 233 (SCC), [1996] 1 S.C.R. 683, at paragraph 65; and R. v. Seymour, supra, at paragraph 23.
e. In that regard, it nevertheless also needs to be remembered that, as outlined in R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at paragraphs 41-43 and 45, there are three legally relevant degrees of intoxication. In particular:
i. “Mild intoxication” is used to describe situations where there is alcohol-induced relaxation of both inhibitions and socially acceptable behaviour. Such “mild intoxication” has never been accepted as a factor or excuse in determining whether an accused possessed the requisite mens rea at the time of his or her conduct giving rise to a charged offence.
ii. “Advanced intoxication” is used to describe situations where there is intoxication to the point where the accused may lack specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her actions sufficient to raise a reasonable doubt about the requisite mens rea. A defence based on “advanced intoxication” applies only to specific intent offences. The extent of intoxication required to advance a successful intoxication defence of this type will vary, depending on the type of offence involved. However, there must be an “air of reality” to the defence. Moreover, for certain types of homicide, where death is the obvious consequence of an accused’s actions, the accused might have to establish a particularly advanced degree of intoxication to successfully avail himself or herself of an intoxication offence of this type.
iii. “Extreme intoxication” is used to describe situations akin to automatism, which negates voluntariness and therefore is a complete defence to criminal responsibility. Such a defence would be extremely rare, and by operation of [s.33.1](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html) of the [Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html), limited to non-violent types of offences. Moreover, such a defence imposes an evidentiary burden on the accused to satisfy a trial judge that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily, on a balance of probabilities. In all cases, that in turn requires the defence to make an assertion of involuntariness, and call confirming psychiatric evidence.
f. As noted above, evidence of mental illness or mental health issues also may rebut the “common sense inference”. Such evidence does not require testimony from the accused, nor any expert evidence. The testimony of a lay witness, (even that which makes reference to a history involving a specific type of mental illness, or to an accused apparently being ill, without elaborating on the nature of the malady, or without specification as to whether the apparent illness was physical or otherwise), should be considered. On the other hand, lack of detail, (e.g., in relation to the nature of the problem, and/or the impact it may have had on the mental state of the accused at the time of the conduct on which a charge is based), may limit the helpfulness of such evidence. Similarly, evidence of mental illness or mental health issues may be outweighed by other evidence, (e.g., from the accused himself or herself), indicating that the accused was aware of what he or she was doing, and alive to the potential consequences of his or her actions. In short, the weight to be given to evidence of mental illness or mental health issues, and its implications in relation to the “common sense inference”, will vary with the circumstances. See R. v. Walle, supra, at paragraphs 47-49; and R. v. Spence, supra, at paragraphs 17-18.
g. Generally, as far as the “common sense inference” is concerned, it is essential, (as emphasized in R. v. Seymour, supra, at paragraph 23), that triers understand two important conditions:
i. the reasonable “common sense inference” may be drawn only after an assessment of all the evidence, including evidence of intoxication and/or mental illness; and
ii. the “common sense inference” cannot be applied if the trier is left with a reasonable doubt about the accused’s intention.
h. In drawing inferences as to the intent of an accused from other established facts, (in circumstances where there is little or no direct evidence of the accused’s state of mind), a trier nevertheless is not confined to the “common sense inference” alone, as a method of determining the actual intent of the accused. In determining whether an accused had the requisite specific intent to commit an offence, triers must take into account all surrounding circumstances. See R. v. Nealy (1986), 1986 CanLII 4694 (ON CA), 30 C.C.C. (3d) 460, at pp.466 and 468; and R. v. Desvaux [1986] O.J. No. 64 (C.A.), at paragraph 22.
i. Such surrounding circumstances, potentially relevant to determining the intent of the accused, include the nature and state of the relationship between the accused and the victim at the time of the alleged offence. See R. v. Desvaux, supra, at paragraph 22; and R. v. Boukhalfa, 2017 ONCA 660, [2017] O.J. No. 4349 (C.A.), at paragraph 174.
j. While motive is no part of the definition of a crime, (such that a person may be lawfully convicted of a crime whatever his or her motive may have been, or even if he or she had no motive), evidence concerning motive also may be relevant to determining the state of mind with which an offence was committed. See R. v. Boukhalfa, supra, at paragraph 174; and R. v. Skeete, 2017 ONCA 926, [2017] O.J. No. 6261 (C.A.), at paragraphs 77-78.
k. Triers also may have regard to the extent of a victim’s injuries, and the degree of force used or required to inflict them, as circumstantial evidence of intent. In particular, the more severe the injuries caused by the accused, and the more force required to inflict them, the stronger the inference that he or she intended to kill or cause serious injury. See R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760, at paragraph 19; and R. v. O.V., [2015] B.C.J. No. 2341 (C.A.), at paragraph 59.
l. More generally, it should be remembered that evidence relating to intent must not be compartmentalized, such that it effectively is considered and rejected in isolation. The cumulative effect of numerous considerations, (including but not limited to intoxication and/or mental illness), when all the trial evidence necessarily is considered as a whole, may suffice to raise a reasonable doubt in relation to the issue of intent, even where one or more considerations may be “rather thin” when considered in insolation. Sometimes, the whole exceeds the sum of its parts. See R. v. Cudjoe, 2009 ONCA 543, [2009] O.J. No. 2761 (C.A.), at paragraphs 104 and 109; R. v. Flores, 2011 ONCA 155, [2011] O.J. No. 870 (C.A.), at paragraphs 73-75; R. v. Dahr, 2012 ONCA 433, [2012] O.J. No. 2815 (C.A.), at paragraph 11; and R. v. Spence, supra, at paragraph 28.
[23] As defence counsel and Crown counsel emphasized during the course of their submissions, there was little or no disagreement on the principles to be applied.
[24] In response to questions I raised during the course of those submissions, counsel also agreed that, although appellate authorities frequently defined the requisite mens rea for attempted murder by making reference only to a “specific intent to kill”, (i.e., without any express additional reference to the object of that intent), there was no dispute that the Crown must prove beyond a reasonable doubt that there was a specific intent to kill the intended victim.
[25] In particular, during submissions, Crown counsel expressly confirmed agreement that, in this case, it was essential for the Crown to prove, beyond a reasonable doubt, that Mr George was intending to kill Ms Melhuish.
[26] I independently agree with that assessment and approach. In particular:
a. In my view, to secure a conviction for attempted murder, it would not suffice for the Crown simply to prove that Mr George had an intention to kill something, (e.g., an insect, animal or some other form of imagined creature), without the Crown also establishing beyond a reasonable doubt that Mr George also had the specific intent to kill a person. I think that additional aspect of the specific intent required for “attempted murder” is implicit in the Code’s definition of “murder”, which repeatedly makes it clear that the concept of “murder” is focused on “the death of a human being”.
b. As Crown counsel also expressly acknowledged in the course of submissions, this is not a case presenting a scenario of “transferred intent”, such as that contemplated by s.229(b) of the Code. In particular, there is no evidence to suggest that Mr George intended to cause the death of some person other than Ms Melhuish but directed his intention and actions in that regard towards her by accident or mistake.
c. Moreover, as the Supreme Court of Canada made clear in R. v. Logan, supra, the mens rea required for the offence of “attempted murder” requires “subjective foresight of the consequences”. In my view, any suggestion that the offence can be made out by proof that the accused had a subjective intent to kill something or someone other than the victim of his or her actions deviates from that requirement.
d. For such reasons, I think it unsurprising that, when describing the relevant intent that must be proven beyond a reasonable doubt, cases dealing with attempted murder routinely refer not only to a “specific intent to kill”, but also to a specific intent to kill the victim/complainant. See, for example, R. v. Clarke, 2014 ONSC 1062, at paragraphs 117 and 118; and R. v. Pangan, 2014 ONCJ 229, at paragraphs 47 and 54. Similarly, criminal juries routinely are instructed, in relation to charges of attempted murder, that the Crown must prove, beyond a reasonable doubt, that the accused meant to kill the complainant, and that nothing less will do. See Watt’s Manual of Criminal Jury Instructions, 2d ed. (Toronto: Thomson Carswell, 2015).
[27] With the above facts, principles and additional considerations in mind, I turn, finally, to my assessment of whether or not Crown counsel has proven, beyond a reasonable doubt, that Mr George had the specific intent to kill Ms Melhuish when he was assaulting her with the hammer.
[28] In that regard, Crown counsel argues forcefully that, although Mr George may have been intoxicated through his use of methamphetamine, and a person with mental health issues, the “common sense inference” should still be applied, permitting an inference that Mr George intended the natural and probable consequences of his actions – which in this case would have caused death but for significant and ongoing medical intervention.
[29] Without limiting the generality of the foregoing, the Crown emphasizes:
a. that this was an extraordinarily violent and brutal attack, repeatedly directed towards a vulnerable and vital area of the victim’s anatomy;
b. that the weapon used in the attack, (i.e., a hammer designed to direct the application of significant force in a targeted and concentrated manner), and the fact that the attack involved repeated overhead blows from that hammer onto the head and face of an unconscious and completely defenceless victim, would have made it clear to any sober and sane person that the natural and probable consequences of such an attack would be the horrific and life-threatening injuries sustained by Ms Melhuish;
c. that there is no evidence to indicate that Mr George’s acknowledged intoxication from use of methamphetamine, or his acknowledged mental health issues, prevented Mr George from having subjective foresight of such consequences during the moments of the actual attack;
d. that there is, in particular, no evidence or no sufficient evidence to indicate that Mr George was experiencing, at the time of the attack, any relevant hallucinations or delusions, (as a result of his intoxication, mental health issues or failure to take his prescribed medication), preventing him from having the required state of awareness and subjective intent, and that any suggestion to the contrary would constitute speculation rather than legitimate inference;
e. that the “common sense inference” accordingly should apply;
f. that the absence of proven motive does not equate to a proved absence of motive, and, in any event, that the conversation that took place between Ms Melhuish and Mr George immediately before the attack included indications that there may very well have been something wrong in their relationship that had been noticed by Ms Melhuish; and
g. that the extent of the horrific injuries sustained by Ms Melhuish, together with the force used to inflict them, provides further strong circumstantial evidence that Mr George had the specific intent of killing Ms Melhuish.
[30] However, having carefully considered the evidence as a whole, in my view the cumulative effect of a constellation of factors raises what I consider to be a reasonable doubt as to whether, at the time of the attack, Mr George had the specific intention of killing Ms Melhuish.
[31] My considerations in that regard include but are not limited to the following:
a. This is not a case where I was presented with any direct evidence as to Mr George’s mental state at the time of the attack on Ms Melhuish. In particular, there was no evidence whatsoever of Mr George having expressly indicated, before, during or after the attack, that he intended to kill Ms Melhuish. Without limiting the generality of the foregoing, Mr Smith testified that Mr George said absolutely nothing while assaulting Ms Melhuish, and that whatever Mr George may have been saying or trying to say when he “came at” Mr Smith, (during Mr Smith’s temporary interruption of the attack), was unintelligible.
b. In the result, the Crown is obliged to rely upon nothing but circumstantial evidence in support of its contention that the requisite mens rea for attempted murder has been proven beyond a reasonable doubt.
c. Although the Crown seeks to rely on the “common sense inference” in that regard, the authorities make it clear that inference may be drawn only after an assessment of all the evidence, including evidence of intoxication and/or mental illness.
d. In this case, I think there is very clear evidence of significant intoxication at the time of the attack; intoxication resulting from Mr George’s prolonged and substantial use of methamphetamine. In that regard, and as noted in greater detail above:
i. Mr George had a longstanding addiction to methamphetamine which, at the time of the attack, had become “very serious” and “excessive”, to the point where he was injecting himself with substantial quantifies of the narcotic, (i.e., a half gram or full gram with each injection), more than once a day, almost every day.
ii. Consistent with those addiction practices, Mr George had been using methamphetamine repeatedly, and in such excessive dosages, over the weeks and days leading up to the attack. One consequence of that was Mr George being sleep-deprived for days, if not weeks, in the period leading up to the attack; continued sleep deprivation that was evident in his very active behaviour during the night before the attack, repeatedly disrupting the sleep of others.
iii. Consistent with his serious addiction practices, Mr George also had used significant quantities of methamphetamine in the hours leading up to the attack; e.g., injecting himself with the narcotic at least two or three times, or “every two or three hours”, consuming notably more than a gram of additional methamphetamine in total.
iv. According to Mr Burwell’s unchallenged testimony, Mr George was clearly still “very high” from injecting that significant quantity of methamphetamine as Mr George returned to his apartment that evening with Mr Burwell, and while Mr Burwell remained there for a time before returning home. As noted above, the two men started on their walk to Mr George’s residence after it was dark outside, and therefore sometime after 8:30pm at that time of the year. They also did not walk directly to Mr George’s apartment, but made a number of stops on the way. Moreover, when they arrived at Mr George’s apartment, Mr Burwell remained there, with Mr George, for approximately 30 minutes before leaving for home. And yet, Mr George had completed the walk back to 1070 Frances Street, and was knocking at its front door, by approximately 10:15pm; a time indicated by the combined testimony of Mr Smith, (describing the timing and duration of events immediately before his call to 911), and the testimony of Constables Brown and Battin, confirming the timing of the initial call from Dispatch directing an urgent response to the event. Collectively, in my view, all those considerations effectively confirm that Mr Burwell remained with Mr George until a relatively short time before the attack, (i.e., up until a point less than an hour before the attack), and that Mr George accordingly was “still very high” from his consumption of methamphetamine less than an hour before the attack on Ms Melhuish.
v. I also think it clear that, when Mr Beyea encountered Mr George at 10:30pm, approximately 10 minutes after the attack on Ms Melhuish, Mr George was still very much under the influence of methamphetamine. In that regard, Mr George was in obvious physical distress and exhibiting what Mr Beyea immediately thought was a drug overdose, if not a heart attack; e.g., profuse sweating, heavy and irregular breathing, staggered walking, balance issues, and an inability to speak coherently. Mr George also was having apparent difficulty understanding Mr Beyea’s directions without relying on directional gestures. In my view, there is no evidence to suggest, or reason to believe, that Mr George chose to stop and feign such symptoms and difficulties for a civilian, and to continue doing so while waiting for the attendance of emergency responders. Nor do I think that it would have been easy or possible for Mr George to feign symptoms such as profuse sweating. In my view, Mr George was in genuine and significant physical distress, (which had caused him to seek emergency assistance), and there is nothing in the evidence, apart from his substantial methamphetamine use that day, and in the days and weeks leading up to that evening, to suggest any other reason for such difficulties.
vi. Signs of Mr George’s physical distress, which Constable Battin thought consistent with his experience of those under the influence of methamphetamine, obviously then continued into the period, (from 10:32pm to 2:05am), that Constable Battin was with Mr George following his arrest. Once again, I find that many of those significant symptoms of methamphetamine use, (e.g., profuse sweating, temperatures and breathing sufficient to completely fog up the nearest window of Constable Battin’s air-conditioned cruiser), were not something Mr George easily could have feigned, and in my view the evidence does not suggest that he was doing so. Clearly, two senior police officers, (Constable Battin and his Staff Sergeant), noting those and other symptoms, were sufficiently convinced of Mr George being in genuine physical distress, and probably experiencing a drug overdose, that they decided an urgent professional medical assessment was warranted.
vii. As Mr George clearly was intoxicated from methamphetamine use shortly before and shortly after the attack on Ms Melhuish, and remained so for a significant period thereafter, I think it reasonable to infer that he was similarly intoxicated at the time of the attack.
e. Having regard to such considerations, I also think it reasonable to infer and conclude that, at the time of his attack on Ms Melhuish, Mr George was in a state of “advanced intoxication”, resulting from his prolonged, substantial and excessive use of methamphetamine. Defence and Crown counsel both submitted that was the case, and I independently agree.
f. In addition to that state of advanced intoxication, I also am satisfied that Mr George had significant and relevant mental health issues at the time of the attack on Ms Melhuish. In that regard:
i. Crown counsel accurately points out that the evidence relating to such issues in this case obviously stopped short of expert opinion testimony. Such testimony obviously might have shed additional light on various relevant matters, such as:
1. the precise nature of Mr George’s diagnosed mental health condition;
2. details of all the behaviours associated with such a condition;
3. specifics concerning the medication used to treat such a condition and its associated behaviours, including recommended dosage and frequency;
4. the degree to which such behaviours might be affected by failing to take such prescribed medication regularly;
5. the time it might take for such medication to be effective if taken belatedly; and
6. the possible impact of methamphetamine on Mr George’s condition and associated behaviours, with and without the taking of such prescription medication.
ii. Having said all that, I nevertheless think that evidence of the accused having mental health issues in this case was stronger than that described in a number of the authorities noted above. For example:
1. The evidence of such mental health issues presented in this case came not only from a lay witness, (Mr Burwell), but also through medical records and observations summarized in documentation prepared by a medical professional, (Dr Skoretz), in his formal application for a psychiatric assessment in relation to Mr George.
2. The nature of Mr George’s condition or illness was not left vague or unspecified. In Mr Burwell’s testimony, and the report prepared by Dr Skoretz, the condition clearly was characterized as a mental health or psychiatric issue, rather than a physical condition. Moreover, Mr Burwell described it in lay terms as a “delusional disorder”, with the report by Dr Skoretz making it clear that Mr George’s condition had been formally and professionally diagnosed as “paranoid schizophrenia”. Even without expert opinion, I think the lay and professional description of Mr George’s mental health condition make clear a significant consequence of that condition; i.e., that Mr George had a mental condition making him susceptible to delusions and paranoia.
3. The testimony of Mr Burwell and the report prepared by Dr Skoretz also confirm that numerous medical professionals treating Mr George had thought it necessary and advisable to manage his mental health condition by the regular taking of prescription medication; i.e., Olanzapine.
4. In my view, it is a reasonable inference that the medical professionals prescribing that medication were of the view that Mr George’s condition, and his corresponding susceptibility to delusions and paranoia, would be worse if he failed to take that prescribed medication regularly. Moreover, that outcome was confirmed by the lay observations of Mr Burwell, who had experienced and compared Mr George’s behaviour when he was taking and not taking that medication. As noted above, in Mr Burwell’s experience, Mr George did not suffer from delusions or hallucinations, or difficulties exhibiting self-control, when he was taking that medication consistently.
5. Mr Burwell confirmed, in his unchallenged testimony, that Mr George had failed to take his prescribed medication for an extended period, (including the day Mr Burwell spent with Mr George, immediately prior to the attack), until a very short time, (approximately an hour or less), before the attack on Ms Melhuish.
6. Moreover, having regard to the unchallenged testimony of Mr Burwell that Mr George did not experience hallucinations or difficulty with self-control while taking his prescription medication consistently, the documented observations of Dr Skoretz that Mr George was demonstrating “bizarre behaviour” and difficulties with self-control at the hospital shortly after the attack, (insofar as Mr George was clearly agitated and restless), and the testimony of Constable Battin making it clear that Mr George was experiencing hallucinations after the attack, (i.e., while in the police cruiser during the drive from the hospital to London Police headquarters, and immediately thereafter while traversing the pavement from the cruiser to the holding cells), I think it reasonable to infer that the dose of prescribed medication taken by Mr George shortly before the attack, at Mr Burwell’s urging, was insufficient to control Mr George’s mental health condition by the time of the attack on Ms Melhuish.
7. In my view, the combined effect of these considerations permits a reasonable inference that Mr George was, at the time of the attack on Ms Melhuish, suffering from a mental condition, making him prone to delusions and paranoia, that was not being treated effectively.
g. The testimony of Mr Smith, Mr Burwell and Constable Battin confirmed that Mr George did repeatedly experience significant and vivid hallucinations. In that regard:
i. The testimony of Mr Smith and Mr Burwell indicated and confirmed that the hallucinations experienced by Mr George were more regular, and apparently much more vivid, than the potential “tweeking” experienced by other methamphetamine users such as themselves.
ii. Mr Burwell’s unchallenged testimony also confirmed that, based on his extended friendship and experience interacting with Mr George, Mr George’s susceptibility to such hallucinations was greater than normal because of the excessive quantities of methamphetamine regularly injected by Mr George, and that Mr George’s susceptibility to such hallucinations was that much greater when he failed to take his prescription medication.
iii. The hallucinations of Mr George, recounted at trial by Mr Smith, Mr Burwell, and Constable Battin, revealed further additional information about the nature of what was being imagined by Mr George when he experienced such delusions, and his reactions to them. In particular:
1. In his mind, Mr George apparently would see people who were not actually present; for example, a girlfriend named “Amber” and a man named “Tommy”.
2. However, the range of visions seen by Mr George, without anything actually being there, also extended to objects, (such as the sword being held by the man named Tommy), and animated creatures which were not human; for example, insofar as Mr George apparently perceived that the creatures had the ability to crawl on the ceiling of Constable Battin’s police cruiser, and/or were capable of being crushed underfoot while crawling on the pavement at the police station.
3. Consistent with the paranoia characterizing his delusional disorder, many of the hallucinations experienced by Mr George also were threatening, at least in his perception. For example, people were hiding his girlfriend Amber, and keeping her from him. Tommy was attacking him with a sword. His girlfriend Amber was seen on the roof of a Tim Horton’s restaurant, placing her in an inherently more dangerous situation than on the ground. The non-human animated creatures Mr George was seeing, in Constable Battin’s police cruiser and at the police station, were coming towards him from overhead and underfoot.
4. Mr George repeatedly demonstrated that he not only saw people and things that actually were not present, but also was inclined to react to such imagined people and things by engaging in “real world” conduct of his own; conduct that was sometimes neutral, sometimes defensive, and sometimes offensive. For example, Mr George spoke routinely with Amber, in an apparently calm and benign way. However, he repeatedly knocked objects and himself to the ground, in apparent efforts to evade and ward off the threats posed by Tommy and his sword. And, while his hands were restrained in handcuffs, Mr George repeatedly used his feet in apparent efforts to proactively crush and kill the non-human animated creatures that were coming at him from above and below.
h. The evidence at trial also makes it abundantly clear, I think, that Mr George was experiencing such vivid hallucinations in the periods immediately before and after the attack on Ms Melhuish. In particular, as noted above:
i. While walking with Mr Burwell back to his apartment from 1070 Frances Street, during the one-or-two-hour period before the attack, Mr George had repeated hallucinations involving Amber; hallucinations that progressively placed Amber in an increasingly hazardous position.
ii. After Mr George arrived at the hospital at 11:31pm on July 31, 2017, (approximately 70 minutes after the attack), he continued to demonstrate what Dr Skoretz described as “bizarre behaviour”. Although Dr Skoretz did not document details in that regard, it clearly was behaviour beyond the “abusive”, “agitated” and “restless” conduct noted by Dr Skoretz, and in my view, the adjective “bizarre” obviously suggests that the behaviour was strange, unexpected and not rationally explained. I also note that, to supplement the security presence of Constable Battin, hospital staff apparently thought it advisable to have a hospital security guard attend as well, suggesting that Mr George’s behaviour was thought to be not only “bizarre” but potentially aggressive and dangerous.
iii. During his ride in the police cruiser from the hospital to London Police headquarters, (from approximately 12:30am to 12:37am, slightly more than two hours after the attack), Mr Burwell was hallucinating and responding actively and aggressively to the perceived presence of some form of threatening creature or creatures crawling above him, on the ceiling of the vehicle.
iv. On arriving at London Police headquarters and exiting Constable Battin’s police cruiser, (shortly after 12:37am), Mr Battin continued to hallucinate and respond aggressively to the perceived presence of some form of threatening creature or creatures crawling on the ground below him.
i. In my view, having regard to all the circumstances, it is reasonable to infer the existence of a very real possibility and indeed probability that Mr George also was experiencing vivid hallucinations, to which he reacted suddenly, actively and aggressively, at the time of his attack on Ms Melhuish. In my view, that is not groundless speculation, as suggested by Crown counsel, but a reasonable inference drawn from and buttressed by other surrounding facts and circumstances, which include the following considerations:
i. For the reasons just outlined, Mr George was experiencing vivid hallucinations shortly before and after the attack, suggesting that they were taking place on a continuum, rather than being completely isolated episodes.
ii. In my view, the factors which caused Mr George to experience hallucinations, (i.e., prolonged and substantial methamphetamine use and sleep deprivation, and a mental health condition promoting delusions and paranoia when not properly treated by the regular taking of prescription medication), were present before, during and after the attack.
iii. Mr George’s reattendance at 1070 Frances Street on the night of July 31, 2017, after having been walked home to his apartment only a short time before, with a view to his going to sleep there, was consistent with earlier episodes, described in the unchallenged testimony of Mr Burwell, wherein Mr George initially would go home to his apartment in the evenings, but return to the Frances Street residence to spend the night because he was hearing things at his apartment and/or thought people were there; in other words, because Mr George was experiencing hallucinations on such occasions.
iv. In my view, there was nothing whatsoever in the evidence to suggest that Mr George had any animus towards Ms Melhuish, or other motive to harm her, at the time of the attack. To the contrary, as confirmed by the testimony of Mr Smith and Mr Burwell, the history of the relationship between Mr George and Ms Melhuish, up to and including that day, (when Mr George, Ms Melhuish and Mr Burwell used methamphetamine together), indicates that Mr George actually was quite close to and fond of Ms Melhuish, and cast himself in a somewhat protective role as far as she was concerned; i.e., regularly referring to her as his “little sister”.
v. In my view, nothing said between Ms Melhuish and Mr George in the minutes before the attack, (i.e., between the time Mr George was admitted to the house that evening by Ms Melhuish in response to his knocking at the front door, and commencement of the hammer attack witnessed by Mr Smith), suggests any reason whatsoever for Mr George disliking or attacking Ms Melhuish. In particular, contrary to the submissions of Crown counsel, I do not view Ms Melhuish’s reference to Mr George appearing “tense” as any indication that there was trouble in the relationship between them, as there was no suggestion in the comments that Mr George appeared tense because of, or in relation to, Ms Melhuish. Nor do I think that the inquiry made by Ms Melhuish in that regard suggested anything but solicitous concern for Mr George’s welfare. In short, nothing actually said in that living room in the minutes immediately before the attack suggests any rational reason for the attack.
vi. Similarly, in my view, nothing actually done in that living room by Ms Melhuish, in the minutes immediately before the attack, suggests any rational reason for the attack. While Mr Smith did not see what was happening in that regard, other evidence makes it clear, I think, that Ms Melhuish was acting in an entirely non-threatening manner. She welcomed Mr George into the home by voluntarily unlocking the front door for him, was seated in a recliner when the attack began, and the apparently defensive injury to her hand suggests she was not holding anything that could have been used defensively - or offensively - as a weapon when the attack suddenly began.
vii. The lack of any prior negative relationship or ill-will between Mr George and Ms Melhuish, and the fact that the hammer used by Mr George was a weapon of opportunity, (not brought to the scene, and not mentioned at all in the minutes before the attack), strongly suggests, to me, that the attack on Ms Melhuish was not premeditated, and was instead prompted by something Mr George saw or heard – or, at least, thought he saw or heard – in the moments before the attack.
viii. In my view, the reality of there being nothing actually there in the living room to be heard or seen, to prompt or explain Mr George’s sudden grabbing of a nearby hammer, and his repeated infliction of hammer blows to the head and face of Ms Melhuish despite his close and protective relationship with her, supports an inference that Mr George was seeing and/or hearing threatening things that were not there, (i.e., that he was hallucinating), and once again reacting with real world conduct to his hallucinations, as he was doing shortly before and after the attack
j. Crown counsel suggested that the existence of hallucinations by Mr George at the time of the attack effectively could be ruled out, insofar as Mr George was said to have a consistent pattern of articulating the existence of hallucinations when they were being experienced, and Mr Smith heard him say nothing about any hallucination immediately before or during the attack on Ms Melhuish. In my view, however, such a contention is belied by the evidence. In particular, it seems quite clear, (from Constable Battin’s testimony), that Mr George was experiencing vivid hallucinations of a creature or creatures crawling on the ceiling of Constable Battin’s police cruiser, and on the pavement at London Police Headquarters, without simultaneously saying anything whatsoever about what he thought he was seeing.
k. In my view, the totality of the evidence, considered as a whole, therefore makes it unsafe to rely on the “common sense inference” that Mr George was aware of what he was doing during the attack, and alive to the potential consequences of his actions. As noted above, that “common sense inference” is premised on the idea that sober and sane people intend the natural and probable consequences of their actions. But the evidence before me provides strong indications that Mr George was neither sober nor completely sane at the time of the attack on Ms Melhuish. To the contrary, he was in an advanced state of intoxication as a result of methamphetamine, and suffering from a significant mental health condition that made him prone to delusions and paranoia when not properly treated by the regular taking of his prescription medication; something which he had been failing to do for a significant period of time leading up to the attack, apart from the apparently ineffective dose he took, at Mr Burwell’s urging, a relatively short time before the attack occurred.
l. Nor does the evidence presented at trial, considered as a whole, without application of the “common sense inference”, persuade me beyond a reasonable doubt that Mr George had the required mens rea for attempted murder. To the contrary, I am left with what I consider to be a reasonable doubt as to whether Mr George had the specific intent to kill Ms Melhuish at the time of the attack. In particular:
i. While his actions in suddenly grabbing a nearby hammer and using it to inflict repeated overhead blows may suggest an intent to kill something, (similar to the intent Mr George exhibited later in Constable Battin’s police cruiser and while traversing the pavement at London Police Headquarters), I am not at all confident that Mr George was aware that the “something” in question actually was a human being, and Ms Melhuish in particular, at the time of the relevant attack.
ii. In my view, the cumulative impact of the circumstantial evidence, considered as a whole, collectively provides significant support for an alternative inference that Mr George was hallucinating at the time of the attack, and that his behaviour was a spontaneous reaction to, and effort to address, some form of perceived but imagined threat that actually was not present at the time; i.e., something other rather than the benevolent and completely non-threatening Ms Lewis, for whom he had considerable affection and protective inclinations. That alternative explanation for what happened, grounded in the evidence, makes sense to me.
iii. In this criminal law context, it is not necessary for me to be absolutely sure that actually is what happened here. It is sufficient that the strong circumstantial evidence, supporting such an alternative explanation, makes me have a reasonable doubt that Mr George had the specific intent to kill Ms Melhuish at the time of the attack.
iv. Without limiting the generality of the foregoing, I certainly am not of the view that the only rational inference, to be drawn from the circumstantial evidence, is that Mr George had a specific intent to kill Ms Melhuish at the time of the attack.
[32] For all these reasons, I frankly and simply am not sure that Mr George, at the time of the attack, had the requisite mens rea for attempted murder.
[33] To the contrary, I have what I consider to be a reasonable doubt in that regard, and think it would be unsafe to convict Mr George of attempted murder in the particular circumstances of this case.
Formal verdict
[34] Mr George, at this point, I will ask you to please stand up.
[35] For the reasons I have outlined:
a. I find you not guilty of the charged offence of attempted murder, contrary to s.239(1) of the Criminal Code of Canada; and
b. I nevertheless find you guilty of the lesser offence of “aggravated assault”, contrary to s.268(1) of the Criminal Code of Canada, which was included within the description of alleged misconduct set forth in the amended indictment.
[36] Please be seated while I endorse the indictment accordingly.
“Justice I.F. Leach”
Justice I.F. Leach
Released: November 18, 2019 (Orally)
COURT FILE NO.: 150/18
DATE: 2019/11/18
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DENNIS PAUL GEORGE
Defendant
REASONS FOR JUDGMENT
Justice I.F. Leach
Released: November 18, 2019 (Orally)
[^1]: Ms Brennan represented Mr George at trial. When she developed a supervening conflict of interest following trial, (owing to her change of employment), return of the matter for delivery of this judgment was adjourned a number of times at the request of Mr George, to facilitate his retention of new defence counsel. When this judgment was rendered, Mr George was represented by Mr Peter Behr.