COURT FILE NO.: CR-19-88 DATE: 2021/03/15
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – Linda Ceasor
Counsel: Elaine Evans, for the Crown Joseph Addelman, Counsel for the Accused
HEARD: February 1, 2, 3, 4, 5, 2021
REASONS FOR JUDGMENT
leroy, j:
Charge
[1] The charge against Linda Ceasor is that she attempted to murder Imram Ahmed on or about October 28, 2018, contrary to section 239(1)(b) of the Criminal Code of Canada. Other charges are she used a knife for a purpose dangerous to the public peace, contrary to s. 88 and she threatened bodily harm to Mr. Ahmed, contrary to s. 264.1(1)(a). The defence agrees that the offence of assault with a weapon is made out, contrary to s. 267(a) as a lesser included offence to attempted murder and submits the s. 88 offence is subsumed in the index offence.
Issue
[2] The issue is whether the Crown proved that Ms. Ceasor formed or possessed the specific intent to kill Mr. Ahmed beyond reasonable doubt.
Defence Position
[3] The defence position is that the rolled-up instruction (Watt Final 69B) is apropos in the circumstances evident in trial. The trier is to consider the cumulative effect of all relevant evidence in considering the adequacy of the Crown’s proof of the mental or fault element in murder, even if the same evidence does not raise a reasonable doubt about guilt when offered in support of a specific defence.
[4] Defence argues that the cumulative effect of alcohol consumption, remorse, mental distress, her selection of the least lethal weapon available, the short duration of the assault – 4 seconds, lack of resistance, the minor nature of wound contra-indicate foreseeability of death as virtual certainty and raise a reasonable doubt on the issue of whether the Crown proved the mental or fault element of the offence.
The Evidence
[5] In October 2018, the civilian witnesses were close friends. They were heavy beer consumers. The incident before the Court occurred at 1:00 a.m. The events of the fourteen hours prelude to the offence are not controversial. The four friends consumed upwards of ninety beers.
[6] The final eight hours involved the accused, Betty Lafave and Edgar Rivette. There were no interruptions in consumption. The Lafave and Rivette evidence derived from their testimony given on discovery, one year after the event. In October 2018, they were in a spousal relationship. By November 2019, they were separated. Neither cooperated with the investigation.
[7] Although Rivette and Lafave have somewhat different memories of the last three hours of the night, they were in sync on the large quantity of beer consumed, the fact of a telephone call to the accused from her imprisoned son at around 10:00 p.m. and the resulting emotional distress Ms. Ceasor experienced. Ms. Ceasor denies recall of that conversation.
[8] Crown evidence from Rivette, Lafave and Ms. Ceasor’s friend, Mr. Willard was that Ms. Ceasor’s reaction to calls from the son when she was drinking included intense emotional distress, remorse and risk of self-harm. This night was no different in terms of emotional reaction. Ms. Lafave said she stayed with Ms. Ceasor continuously until she went home in the taxi. They talked about the situation with the son. Ms. Ceasor was inconsolable until Ms. Lafave undertook to drive Ms. Ceasor to the penitentiary to visit once Ms. Lafave’s car was roadworthy. She thought that Ms. Ceasor composed after that gesture. The evening ended when Ms. Ceasor left in a cab. Ms. Lafave provided the fare. By that time, it was close to 1:00 a.m. and things were a little foggy. In terms of Ms. Ceasor’s impairment when she left, Ms. Lafave thought Ms. Ceasor was not “like drunk or staggering.” She was not worried about Ms. Ceasor’s safety once she entered the cab.
[9] Mr. Rivette confirmed a change in Ms. Ceasor’s mood after the call. He said he thought she mentioned that she wanted to go to jail. He went on to say that as Ms. Ceasor was leaving, if he remembered it right, she said, “I’ll just stab the cab driver or something”.
[10] Mr. Rivette recounted how Ms. Ceasor had taken a knife from “what do you call it, the stove” and Ms. Lafave confiscated it. Ms. Lafave then told him that Ms. Ceasor had taken another knife. Mr. Rivette said, “So she was on the dresser uh on the dresser, on the couch and I took it from her.” He described the knife as a sharp one, suitable for cutting tomatoes.
[11] As Mr. Rivette was recovering the knife, he recounted a conversation:
[12] Answer: Yeah I says, “Give me that, you’re gonna, your gonna hurt yourself and get in shit for that.” You know?
[13] Question: And did Linda say anything to you, did she answer you?
[14] Answer: No she just – she was drinking pretty heavy, so I don’t – oh “Uh do you want to come with me?” Or something like that, to visit or whatever, so I – I says “No no, I ain’t going nowhere.” …
[15] Question: Did Linda say anything to you about the taxi driver or what she wanted to do to the taxi driver when she left?
[16] Answer: Yeah, she wanted to stab him or something, she didn’t like him or something, I don’t know.
[17] Question: What state was Linda in when she left your house, how would you describe her?
[18] Answer: She was drinking pretty heavy. But I mean she could walk but I mean a little staggering… She was drunk.
[19] There are facets of Mr. Rivette’s experiences that have to be considered relative to the credibility and reliability of his narrative:
- Mr. Rivette suffered an acquired brain injury after a beating in 2002 – he was hospitalized for three months. Although his memory was affected at the time, he denied memory deficits in October 2018;
- Mr. Rivette has been incarcerated many times, the first when he was twenty. He has nine impaired driving convictions;
- Mr. Rivette set the baseline for the number of beers he usually drank in a sitting at six or seven but on this night, he consumed about 12 or 14. Later, he said that 12 – 14 beers was a regular session for him;
- Mr. Rivette did not recall whether they drank at Ms. Ceasor’s or Mr. Willard’s apartment before returning to his home with Ms. Lafave – he attributed this memory lapse to time passage;
- When asked about the extent of his memory that night, Mr. Rivette said he knew about the knife, that he took it from her, he gave her money for cab fare, he walked Ms. Ceasor to the front door and she walked alone to the cab, all that she said was she wanted to go to jail and something about stabbing someone but it did not strike him as a serious comment. He recalled they sat at the kitchen table listening to music and drinking beer for eight hours;
- Mr. Rivette does not recall who called the taxi nor the business name;
- Mr. Rivette reported that while Ms. Ceasor was in the house, she made reference to the particular cab driver as a prick/asshole or something. He acknowledged they could not see into the taxi to identify the operator from the house.
[20] Mr. Ahmed confirmed that the client could not know the identity of the particular driver until the door was opened as he is on a next-up rotation for service requests. He also said Mr. Rivette was a regular customer and, on this night, Mr. Rivette walked Ms. Ceasor to the car.
[21] Mr. Ahmed recognized Ms. Ceasor from prior dealings, none of which were basis for animus. She instructed him as to destination and they travelled the seven or eight minute-drive in silence. On arrival, Ms. Ceasor asked him to wait in the parking area so she could get the fare - $6 or $7. He waited six minutes and Ms. Ceasor returned to the driver side of the car – he lowered the window.
[22] Mr. Ahmed was not attentive to Ms. Ceasor’s gait or whether she was carrying a weapon.
[23] To his surprise, Ms. Ceasor placed her right hand behind his neck and started to rub the front of his coat near his throat with her left. His heavy winter coat covered his throat. Her head did not cross the window plane. Initially, he thought this was a Halloween prank but then felt pain and asked what she was doing.
[24] In response Ms. Ceasor said, “I am going to cut your head off”. He said she rubbed in the area of his lower neck which was protected by his coat two or three times and then lifted up under his chin. Fortunately, the laceration to Mr. Ahmed’s chin was minor. It was no more than 2 inches in length, shallow, aligned top to bottom and not left to right. Stitches were not required.
[25] Once Mr. Ahmed realized Ms. Ceasor had a knife, he grabbed her hand with his right hand and raised the power window with his left. He grabbed the blade and his fingers were marked but not through the skin. Ms. Ceasor withdrew. To that point, no other words had been spoken.
[26] The time lapse from the time Mr. Ahmed realized Ms. Ceasor had a knife and he was under attack until she withdrew was four seconds.
[27] Ms. Ceasor withdrew to the front of the car four to five feet distant. Mr. Ahmed exited the car, left the driver door open and went to the rear. He said he was calling police. He recalls that Ms. Ceasor brandished the knife in a stabbing motion one time as he said that, then she returned to the building.
[28] Ms. Ceasor did not reside at the destination address, rather she resided around the corner and this was the address of her good friend Mr. Willard who had an apartment on the tenth floor. Mr. Willard had been party to the beer consumption at Ms. Ceasor’s apartment earlier in the day between 9:00 a.m. and around 5:00 p.m. when he went home. As Ms. Ceasor assisted Mr. Willard with some activities of daily living and they were good friends Ms. Ceasor had keyed access to his apartment building and the apartment. Mr. Willard was asleep when Ms. Ceasor arrived at his apartment.
[29] To navigate the path from the parking area out front of the “Willard” building to the “Willard” apartment involved use of a key to gain entry to the building, coding the elevator, traversing the hallway from the elevator to the apartment, use of another key to unlock the apartment door and then likely finding the light switch.
[30] Mr. Willard described his life and times. He drank in the range of 18-20 beers daily and his experience was that Ms. Ceasor did the same. Mr. Willard had experienced Ms. Ceasor’s emotional distress over the long-term incarceration of her son for a homicide. He observed that her distress was more acutely symptomatic when Ms. Ceasor and her son talked when Ms. Ceasor was drinking. He said she became periodically suicidal. When she responded that way, he called the police to take her to the psychiatric ward of the local hospital. In five years, he had called this in ten times.
[31] Mr. Willard emphasized that when he called for mental health assistance it was always out of concern for her safety; never out of concern for harming anyone else. She never talked about anger or wanting to injure someone else.
[32] Otherwise, he considered Ms. Ceasor to be a happy drunk. He confirmed that in the normal course, he and Ms. Ceasor would drink through the day; he would adjourn at around 5:00 p.m. for a meal. Ms. Ceasor would continue drinking until she went to his apartment for the night cap.
[33] Mr. Willard confirmed that Ms. Ceasor woke him at around 1:00 a.m. She wanted Mr. Willard to drink with her. She seemed to be of a good mood. Mr. Willard found Ms. Ceasor sitting at his kitchen table with a beer. She told him the police were outside. She was too quiet. In this situation, her practice was to fuss about and turn music on. She made a sandwich. She did not mention her son. She was not crying.
[34] The police were at the door within ten minutes of her arrival. Ms. Ceasor began crying when the police announced themselves at his door.
[35] Mr. Willard confirmed that Ms. Ceasor knew of the contents of his work closet – hammer, pinch bar, saws, bat. He confirmed that the cleaver and the cutting knives hanging on his kitchen wall were accessible to Ms. Ceasor that night.
Police observations
[36] The evidence of the investigating officers and the video recordings of the accused in the station before and during the booking session adduced during the voluntariness voir dire were admitted in evidence in the trial proper.
[37] Sgt. Derek Duchesne, Constables David Langlois and K. Zeran provided evidence about the arrest in the doorway/hallway. Ms. Ceasor made spontaneous statements to them on the initial encounter.
[38] Sgt. Duchesne said:
- He was the person closest to the doorway; he was in front of the other two officers;
- He noted that the accused had an odour of alcohol with red and glassy eyes; he was not concerned about the need for medical attention – he assessed the level of intoxication exhibited by the accused at 4 on a scale of ten;
- That the accused began crying when she reached the doorway;
- That without prompting, the accused began the dialogue with police in the doorway by saying “Sorry, I didn’t mean to hurt him (anyone)”. The accused was emotional and rambling;
- That the accused seemed to understand the arrest process as it happened;
- That the accused said the following to him: that her son is in jail; the steak knife she used was in the kitchen of the apartment; her son is in jail for murder and it was difficult for her; that she didn’t mean to stab the cab driver.
- He agreed that his notes paraphrased all that the accused may have said and they are not 100% accurate or complete.
[39] Constable David Langlois said:
- He observed the accused to be emotional and sobbing;
- He noted the accused had an odour of alcohol but was not concerned about need for medical attention – – he assessed the level of intoxication exhibited by the accused at 5/6 on a scale of ten – he did not have notes to suggest the accused was slurring her words;
- He heard the accused say, “I made a mistake” and request opportunity to speak with duty counsel;
[40] Constable K. Zeran said:
- She was standing behind the other two officers;
- She smelled alcohol;
[41] Sgt. Emidio Piunno, Constable Langlois and Zeran provided evidence as to utterances attributed to the accused during the booking session.
[42] Sgt. Piunno said:
- Although his notes suggest that the booking utterances in issue were made after the accused had spoken to counsel, his memory and evidence is that the accused spoke to counsel following the utterances;
- He recalled that the accused told him about having consumed twelve beers;
- He completed the medical form and did not consider her condition such as to require medical attention;
- He recalled that the accused said she grabbed the knife from friend and returned to the cab to cut his throat because her son is in jail and she has not dealt with it.
[43] Constable Langlois said:
- That the accused filled the booking room with the smell of alcohol;
- That he did not notice the accused slurring words;
- As he was processing the property, he heard the accused say: I know I made a mistake; I know I screwed up; Went to my friend. I got a knife, went down and wanted to cut his throat; My son is in jail for murder and I’ve never dealt with it;
- He knew these utterances were made before the accused consulted with counsel;
- He observed that the accused was responsive to direction and the review of her rights;
- He heard Sgt. Piunno instruct the accused to stop talking until after she spoke with duty counsel.
[44] Constable Zeran said:
- She has no recall or notes about the accused’s emotional state or issues;
- She remembers the smell of alcohol, glassy eyes and that the accused was a little unbalanced on the walk to the cruiser;
- When asked to rate the level of intoxication between one and ten, the officer declined and said that the accused followed directions “quite well”;
- In her notes, she wrote that the accused was very intoxicated, unsteady on her feet with red eyes repeating many times the words “I’m sorry”;
- Her notes paraphrased the following: I don’t know what got into me; went up to Mr. Willard’s got knife and would be right back, then went down; wanted to slice his throat;
- She confirmed discussion between the accused and counsel beginning at 02:42 a.m.
Video recording between 01:58 and 02:42
[45] The body language exhibited by Ms. Ceasor through that experience was congruent with a person who had consumed multiple beers trying to keep it together at two in the morning.
[46] Detective Constable Patrick Huygen obtained a video recorded statement from Ms. Ceasor beginning at 06:25 a.m. on October 28, 2018. The interview ended at 7:25. Defence conceded voluntariness of this statement. The contents are not part of the trial record.
Linda Ceasor testified
[47] She is fifty years of age. She is an alcoholic. The last time she consumed alcohol was the night she was arrested. She acknowledged alcohol induced blackouts/amnesia. She confirmed that her son has been in prison for eleven years and she has not seen him for twelve.
[48] She is better with her son’s calls now she is sober. In October 2018, the telephone calls made her sad. She confirmed Mr. Willard’s recounting of her detentions in the Psychiatric Ward of the CCH when the calls and her drinking coincided. She confirmed Mr. Willard’s observations as to her feelings during these episodes – mostly suicidal. At the time, she refused counselling because of her addiction to alcohol.
[49] On cross-examination, Ms. Ceasor said that when her son called, she wanted to end her life and she did not know how to handle those feelings.
[50] As to the events of October 27, 2018, she remembered that she began to drink beer between 12:00 noon and 1:00 p.m. in her apartment. She remembered Mr. Willard, Ms. Lafave, Mr. Rivette. She does not remember that a fellow named Larry and his girlfriend visited for a time during the afternoon. She does not recall the number of beers she would have consumed during the afternoon. She confirmed her practice was such that once she started, she drank until bed. Twenty beers were in her range and she would be pretty drunk in such case.
[51] She thought they left her apartment around two – three p.m., going to Ms. Lafave’s apartment and drinking more. She does not recall the mode of transportation they used to get there. She was not confident on details. Her memory ends at Ms. Lafave’s apartment. Her last memory is that of sitting with Ms. Lafave. She does not recall the substance of discussion. She denied recall of talking with her son that evening, of Mr. Ahmed, of ever having an issue with him, of going to Mr. Willard’s apartment, of the arrest, of talking with the Legal Aid lawyer, changing her clothes at 2:00 a.m., of the interview with Detective Constable Huygen at 6:30 a.m. or its content.
[52] Crown counsel challenged Ms. Ceasor over her choice of words during the Huygen interview when she told him that “she doesn’t remember “that much” about going to Mr. Willard’s apartment.
[53] Crown challenged Ms. Ceasor on discrepancies in her declared recollections – having recall of the arrest when she talked with Det. Cst. Huygen and none now, the apology to the arresting officers consistent with confession in the context that these discrepancies represent selective convenience.
[54] Ms. Evans challenged Ms. Ceasor with the evidence of a level of executive function inherent in navigating the ingress and egress from the Willard Apartment and building, the mechanics of the incident, the words attributed to her, the task of making a sandwich and of watching for the police to arrive.
[55] Ms. Ceasor said her present memory began the next morning in the cell. She expressed remorse and regret for the harm caused to Mr. Ahmed.
[56] In re-direct, counsel referenced Det. Cst. Huygen’s assertion of selective recall during the interview and Ms. Ceasor’s consistent responses to the same questions.
Crown Position
[57] The issue is whether Ms. Ceasor meant to kill Mr. Ahmed and whether she did something to carry it out.
[58] There is no expert evidence to suggest that mental distress deprived her of the ability to function rationally. Intoxication is not a defence here.
[59] This is a fact driven case.
[60] Ms. Ceasor is a seasoned drinker. She struggled with alcoholism. She became distressed after the call. Her way of venting pain was to go to jail herself. She was going to kill someone. Motive does not have to be logical. He could have been anyone. The means to her end meant she was going to kill someone. This was about assuaging her conscience.
[61] Ms. Ceasor announced to Mr. Rivette she would, she did and told police she did. She exited the cab, told him she had to get cab fare, went upstairs and got a good choice of weapon, namely a sharp knife with a five- or six-inch blade, one she could secret as she approached. She injured the most vulnerable area of his body and returned upstairs. Next morning, she began to backtrack.
[62] As between Mr. Rivette and Ms. Lafave, Mr. Rivette’s recounting of the events just before Ms. Ceasor left their home that night should be preferred. Ms. Lafave is the closer friend to Ms. Ceasor. Her purpose was to protect Ms. Ceasor. Aspects of his memory deficits from the day of drinking such as whether he was a part of the experience during the afternoon can be explained by the 12-14 beers he drank per day.
[63] Mr. Rivette was intoxicated, he has a significant criminal record with several conviction for impaired driving. He did not want to participate in the process. He said this because he did not want the cold shoulder from Ms. Lafave. Ms. Lafave became hostile toward Det. Constable Huygen. She complained to his supervisor. She was a close friend to Ms. Ceasor and her evidence is tainted. She prevented Mr. Rivette from participating.
[64] Ms. Lafave and Ms. Ceasor said they never experienced violence in Ms. Ceasor’s response to a call from her son when drinking. That has to be contrasted to Mr. Willard who observed suicidal ideation ten times over five years.
[65] Ms. Lafave recalled the telephone call and how Ms. Ceasor reacted. She observed that Ms. Ceasor missed her son. She denied the threats and occurrences with knives. She agreed that Ms. Ceasor was not staggering. Her memory of the night was not that good. Her evidence was internally inconsistent as she asserted good and bad memory simultaneously.
[66] Mr. Rivette is not clairvoyant. He could not know what Ms. Ceasor did and what she told the police she did.
[67] Ms. Ceasor wanted to end pain. It doesn’t have to be smart plan. Her plan was what she did. She wanted to be in jail. That was her motive.
[68] Ms. Ceasor asked Mr. Ahmed to wait for the money. She implemented her plan.
[69] She returned, reached in and grabbed his head with right arm and began rubbing the knife across his chest. When he asked what she was doing she said trying to cut his head off.
[70] Although Mr. Willard had seen her self-harm when receiving calls from the son, Mr. Willard did not see the need to call that night. She was calm during his time with her. He said she seemed fine to him. She was too quiet. This was inconsistent with what he had experienced before. They spoke back and forth. She was looking out the window. Mr. Willard did not know about the police.
[71] The police observations are probative.
[72] Zeran at the door: smelled alcohol, her eyes were glassy, and she was intoxicated.
[73] Duschane at the door– Ms. Ceasor began to cry. She said she was sorry, that she did not mean to hurt him. She was rambling. She said the steak knife was in kitchen. He rated her at 4 of 10 in terms of intoxication. He did not see the need to take her to the Hospital for concern for alcohol consumption. She made sense.
[74] Langlois at the door - He said Mr. Willard answered and appeared highly intoxicated. He then said that speech impediment may have accounted for his perception. He reported that Ms. Ceasor said, “I made a mistake”.
[75] Zeran in booking room. She heard Ms. Ceasor say: “I am sorry I don’t know what got into me – I got the knife and wanted to slit his throat.” Officer Zeran could still smell alcohol. Ms. Ceasor followed direction.
[76] Langlois – in booking room. He was securing the property – he could smell alcohol. He heard Ms. Ceasor say, “I know I made a mistake I screwed up – got the knife and went down to slit his throat.”
[77] Piunno in booking room. He said she was responsive. He put her at 5 of ten for intoxication.
[78] This was a cooperative intoxicated coherent offender.
[79] This is powerful evidence on several fronts. She declared her stated intent. It disproves intoxication. She was appropriate, expressing contrition and regret. She was capable of and did form intent to kill. She was a functional alcoholic. She functioned day in, day out.
[80] The issue is whether the Court believes her denial of memory is true. She remembered being distraught on other occasions – the 10 times when she went to the hospital – she could recount other occasions.
[81] This is memory of convenience. She wanted to kill someone. The cabbie was opportunity.
Nature of injuries
[82] When there is serious injury, that is good evidence of intent, but it doesn’t work the other way. It is not because Ms. Ceasor withdrew that the attack ended, rather it was that the window rose. Mr. Ahmed stopped her. She brandished the knife after Mr. Ahmed exited the car.
[83] Brevity doesn’t detract from the seriousness of the matter.
[84] Her dexterity is evidence of intent.
[85] Her expressions of remorse confirm she knows what she did. It is consistent with a good person with a lot of struggles.
[86] Drunken intent is still intent.
Crown Proved intent and disproved intoxication
[87] Ms. Ceasor chose to talk with Mr. Rivette, she chose to take the knife, she did not forget during the 10 minutes, she retained the intent which did not dissipate. She chose to trick the driver. Mr. Rivette and Ms. Lafave said they gave her fare. That was subterfuge. She needed to get the knife. Ms. Ceasor kept her keys on a key ring, she found the right key, went to the apartment, found the light and did not wake Mr. Willard, chose the knife – a knife she could secret on her person, then approached. She did not flail. She clearly and precisely reaches in. Then she returned to Mr. Willard’s apartment and talked with him. He thought she was calm and quiet. She made a sandwich and had the wherewithal to watch for the police. She cried and apologized for what she did. All those are choices displaying dexterity and presence of mind.
[88] The CCTV recording of her arrival at the station show a person standing on her own, following instruction, not showing signs of extreme intoxication.
[89] Ms. Ceasor asserts no memory of events between a time when she was sitting with Ms. Lafave at the table and the next day. She asserts no recall of anything inculpatory. At one point that night, she remembered the taxi ride. Now she does not. At the time, she remembered the arrest, now she does not. At first, she said she awoke in her own clothes which was incorrect so she resorted to she did not remember. This is convenient memory lapse. That she says she does not even recall the interview with Det. Huygen is preposterous. She admitted it was voluntarily given so that does not make sense.
Defence Position on the evidence
[90] Counsel agreed this is a finding of fact ruling. The issue is, has Crown proven specific intent to kill? Defence has to raise reasonable doubt on the intention. The Court should consider all the evidence, including alcohol consumption, any emotional or psychiatric distress she might have been in and all the circumstances of the incident.
[91] The fact is there were no fatal or near fatal wounds. In terms of the reasonable foreseeability of actions, her actions did not amount to near fatal. Foreseeability here is not as linear as a shooting.
[92] Crown relies on Ms. Ceasor’s statements. She said she wanted to slit his throat. To conclude intent to kill, I would have to conclude she had the intent to kill but lacked the strength or had intent to kill while knife in car but at last moment had clarity of thought to stop. Neither is borne out in evidence.
[93] This is not a defence of intoxication, rather it is that alcohol consumption together with the other circumstances refute specific intent. It is the cumulative effect of all the circumstance even though all the individual circumstances would individually fail as defence. I am directed to consider all the evidence taken together. It is in error to compartmentalize or consider the evidence in silos. The point is cumulative effect.
[94] In terms of the Robinson -states of intoxication, the evidence at bar indicates an advanced state. There is no dispute that Ms. Ceasor engaged in a twelve-hour drinking exercise beginning around noon, carrying on continuously until the offence. Mr. Willard quantified their consumption during the afternoon in the range of ninety beers. There were six who partook for part of the afternoon. Ms. Ceasor has no memory of Larry and his girlfriend. She had between eight and ten beers between noon and five.
[95] Ms. Lafave and Mr. Rivette are a wash in terms of persuasive value. There are stark differences in the evidence offered by Ms. Lafave and Mr. Rivette. The Crown argued that Ms. Lafave was motivated to provide cover as opposed to Mr. Rivette who was not a dear friend. Defence disagrees with that submission. Mr. Rivette’s memory was inconsistent. He underwent long term care in hospital with an acquired brain injury. He was severely alcohol dependent. Ms. Ceasor said he had a romantic interest in her which she spurned. It may be he had reason to amplify as rejected suitor.
[96] Ms. Lafave was a friend but there is no evidence of real investment. It is insufficient to say she can’t be believed on that basis. Also Mr. Rivette and Ms. Lafave separated so no one knows the emotional baggage they have and how that manifests.
[97] We can take as fact the excessive drinking carried on without interruption and there was the phone call from Richard. Ms. Ceasor doesn’t remember the call – but Ms. Lafave and Mr. Rivette do.
[98] Plus Mr. Willard had his own experience with Ms. Ceasor and the phone calls. This is a major element of the defence in this case. These phone calls sent her into a severe emotional state. She becomes suicidal. She was taken involuntarily to the psychiatric ward of the CCH ten times over five years in these same circumstances over concern for self-harm.
[99] Intoxication is not just happy-go-lucky at one end and unconscious at the other. There is a huge range. The intoxication defence is not reserved for extreme intoxication. It exists for people in Ms. Ceasor’s situation. The overlap of intoxication and emotional distress deprived Ms. Ceasor of the mental intent necessary for conviction of specific offence.
[100] Police notes depicted that the outside signs of intoxication were evident. That said, each officer in evidence backtracked on the issue.
Ms. Ceasor’s testimony
[101] She confirmed problems with alcohol. The situation with Richard exacerbated her fraught mental health. She hadn’t seen her son in 10 years.
[102] Ms. Ceasor has no memory of these events. Her memory ended when she was sitting at the table. That is not uncommon. The acts are not in dispute. There was no reason for her to hold back.
[103] There are no grave inconsistencies. She told police she did not remember. She said that she wished she could. She told Det. Huygen about her memory problems in general. Her memory is only a small piece of puzzle. She has been consistent since day one. It is entirely possible that vestiges of memory from that morning at 6:00 a.m. are gone.
[104] The defence submission is there is indisputable mitigation of liability. Defence only needs to raise doubt about intent. She selected the least lethal weapon in the apartment. Note the cleaver, bat, saws, hammer in the closet. That is lack of intent to end a life.
[105] The injury to Mr. Ahmed was minor. It is not aggravated assault. The exchange in the cab window lasted four seconds. As soon as the window began to rise, she withdrew. There was no motive to harm Mr. Ahmed. It is circumstance to consider to support presumption of innocence. This was not something akin to a domestic, or gang violence over money and drugs – this motive is subtler.
[106] In summary, the cauldron of drunkenness, emotional distress, tendency toward suicide, her selection of the least lethal weapon available, the short duration of the assault – 4 seconds, lack of resistance, minor nature of wound deprive the Crown case of foreseeability of death as virtual certainty.
[107] She should be convicted of assault with a weapon and threatening.
Applicable Principles
[108] An accused person is presumed innocent of the offence charged. The Crown bears the onus of proving the charges against the accused person beyond reasonable doubt. This is a high onus and one that does not shift. The Crown bears the burden of proving the specific intent to kill.
[109] In this case, the actus reus of the offence is made out. The conduct must amount to “some act more than merely preparatory”: s. 24 Criminal Code. Here, Ms. Ceasor assaulted Mr. Ahmed with a weapon, to wit a knife.
[110] The issue is whether the evidence leaves a reasonable doubt on the mens rea element.
[111] A criminal trial is not a credibility contest; rather the issue is whether the Crown has proven the specific intent to kill beyond reasonable doubt. It would not be enough to believe that Ms. Ceasor probably or likely had the specific intent to kill Mr. Ahmed. That said, proof beyond reasonable doubt is not proof to absolute certainty. A reasonable doubt is one that is not imaginary, far-fetched or frivolous. It cannot be based on emotion or prejudice; rather it must be one that logically arises from the evidence or absence of evidence.
[112] Where there is evidence inconsistent with guilt, my instructions are that:
i. Criminal trials cannot properly be resolved by deciding which conflicting version of events is preferred; ii. A criminal fact-finder who believes evidence inconsistent with guilt of the accused cannot convict the accused; iii. Even if a criminal fact-finder does not entirely believe evidence inconsistent with guilt, if the fact-finder is left unsure (undecided) whether that evidence is true, there is a reasonable doubt and an acquittal must follow; iv. Where the fact-finder entirely disbelieves evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and v. Where the fact-finder entirely disbelieves evidence inconsistent with guilt, the accused should not be convicted unless the evidence that is given credit proves the accused guilty beyond reasonable doubt. Is the Crown’s evidence compelling enough to remove all reasonable doubt?
[113] The point is to ensure reasonable doubt principals are applied properly. It does not apply to any single fact or item of evidence; rather in this case to the mens rea element of the offence before the Court.
Considerations relating to Credibility Assessment
[114] Testimony has credibility problems if the witness is intentionally offering, in whole or part, false, exaggerated or minimized information. In contrast, reliability is about honest mistakes.
[115] Credibility problems can be endemic to the witness. Who is the Court being asked to believe? Motivation to mislead is to be treated as a bellwether of caution, not as a peremptory reason for rejecting testimony. It is important to recognize that an innocent accused person who testifies truthfully is motivated to secure an acquittal. It is a fatal error to reason that an accused person would be motivated to lie to secure an acquittal.
[116] It follows that the testimony of the civilian witnesses, Ms. Lafave and Mr. Rivette, in particular as to what happened near the end of the night, should be treated with caution.
Evidentiary Content and Credibility
[117] The real test of the truth of the story of a witness must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
[118] In general, this will involve consideration of:
- The plausibility of the evidence;
- Supporting or Contradictory Evidence;
- External consistency; and
- Internal consistency
[119] A person whose purpose is to kill another, either as end in itself or as a means of achieving some further end has the intention to kill. This extends to the situation to include the decision to carry out some purpose knowing that killing is virtually certain to result. That is to be distinguished from a person who carries out some purpose appreciating such act may or probably will kill the victim. The mens rea for attempted murder is not satisfied by recklessness as to consequence.
[120] What Ms. Ceasor said and did before, at the time and after the attack as well as the circumstances in which they occurred are relevant to her state of mind at the time. I may conclude as a matter of common sense that a person usually knows or foresees what the predictable consequences of her conduct are and the means to bring them about. That is one way to determine a person’s state of mind, what she actually meant to achieve.
[121] Absent a direct expression of intention, it is assessed on the totality of the facts, including the nature of the weapon, the extent of its use, the manner in which it is used on the victim, the area of the victim’s body that is attacked, the results of the attack together with any surrounding circumstances that may constitute strands of inferences leading to a conclusion on the question of intention.
[122] I do not have to reach that conclusion. I must not if on the evidence as a whole, including alcohol consumption, emotional distress, the ambiguity of her purpose and the perfunctory execution of the assault, I have reasonable doubt about whether Ms. Ceasor intended to kill Mr. Ahmed. I am required to consider the cumulative effect of the relevant evidence (as opposed to a siloed or compartmentalized approach) in determining the adequacy of the Crown’s proof of the mental element in attempted murder even if the same evidence does not raise a reasonable doubt about guilt in support of a specific defence.
[123] When intoxication and emotional distress are part of the fact structure the issue is whether the accused had the capacity to form or actually formed the specific intent to kill. Has the Crown proven that Ms. Ceasor was capable of foreseeability or did Ms. Ceasor actually foresee that death was a virtual certainty as consequence of this attack?
[124] Intoxication in these circumstances will factor differently into different fact scenarios and forms of specific intent. The extent of intoxication required to successfully advance intoxication as defence varies depending on the nature of offence involved. By way of example where an accused places a gun inches from the victim’s head and pulls the trigger it would be difficult to conceive that the accused did not foresee the likely consequences of the act even while intoxicated to a point short of automatism. Foreseeability in such circumstance is linear.
[125] In the end, after considering the whole of the evidence, if I have a reasonable doubt that Ms. Ceasor did not have one or either of capacity to form the intent or did not form the intent to kill, she is to be acquitted of the specific intent crime of attempted murder and convicted of the lesser included general intent offence of assault with a weapon.
[126] If the evidence including intoxication and emotional distress does not leave me with a reasonable doubt as to her intent, I can properly resort to the common sense inference in deciding whether intent has been proved.
Discussion and Ruling
[127] Ms. Lafave and Mr. Rivette were as intoxicated as Ms. Ceasor that night. That is relevant to the reliability of their recounting. That said, their testimony offers context from different perspectives. Ms. Lafave provided a more compassionate perspective, one consistent with how a friend would remember events. She said that Ms. Ceasor wanted to visit the penitentiary and was comforted after Ms. Lafave offered to take her. Ms. Lafave may have been motivated to cover for Ms. Ceasor. Motivation to mislead is to be treated as a bellwether of caution, not as a peremptory reason for rejecting testimony. To conclude that a mere friend would fabricate a narrative borders on peremptory rejection.
[128] Mr. Rivette’s recounting is likely the bridge between Ms. Ceasor’s references to “My son is in jail for murder and I’ve never dealt with it” and the assault against Mr. Ahmed. What he said about Ms. Ceasor’s strategy in the moment could be accurate. It is the only explanation we have.
[129] That said, the credibility and reliability of Mr. Rivette’s narrative is largely deficient. He testified to memories and perceptions unsupported by independent evidence. He ascribed misleading animus in Ms. Ceasor toward Mr. Ahmed that raises concerns for partiality. He suggested that Ms. Ceasor targeted Mr. Ahmed. Mr. Rivette reported that while Ms. Ceasor remained in the house, she made reference to the particular cab driver as a “prick/asshole or something.” Mr. Ahmed confirmed that he was one of a team of drivers who were assigned to pick-ups on a sequential basis. None of Rivette, Lafave or Ceasor could know which driver was assigned this pickup. Further, the occupants of the home could not identify the driver from within the house. Mr. Ahmed denied any history with Ms. Ceasor of a nature that could be seen as basis for animus.
[130] Mr. Rivette said he remembered that did not cross the exterior threshold when Ms. Ceasor went to the taxi. He said it was raining and he was in slippers, so he did not walk Ms. Ceasor to the taxi. Mr. Ahmed who was not drinking said Mr. Rivette was known to him as a regular customer. He said Mr. Rivette helped Ms. Ceasor into the car.
[131] Further, it is concerning that Mr. Rivette didn’t offer his narrative until a year after the incident. Given the relationship breakdown with Ms. Lafave and the end of any interaction with Ms. Ceasor, it is not out of the realm of possibility he dove-tailed his narrative, in particular an animus toward Mr. Ahmed to suit what he would have heard about events at the Willard building in the interim.
[132] The Crown clairvoyance submission loses much of its force in that context. Given Mr. Rivette’s experience with the criminal justice system, the state of his intoxication that night and the interval before he testified, I conclude it would be dangerous to rely on those portions of his version unsupported by independent confirmatory evidence.
[133] At its highest, Mr. Rivette’s recounting suggests a strategy for incarceration related to a stabbing. This interpretation is more compatible with an assault with a weapon than it is with intent to kill. He recalled she said, “I’ll just stab the cab driver or something.” An assault with a weapon is an offence where penitentiary time is within the principles and purposes of sentencing. Death is not a virtual certainty. Foreseeability is not necessarily linear. A kitchen knife is not a gun.
[134] Ms. Ceasor’s post offence conduct and utterances do not help with the issue of identifying specific intent to kill.
[135] What she uttered during the arrest and processing interval offered by the police officers does not move the needle.
- At the doorway to Mr. Willard’s apartment, Constable Langlois said he heard the accused say, “I made a mistake.” During the booking session, he said he heard Ms. Ceasor say: I got a knife, went down and wanted to cut his throat; My son is in jail for murder and I’ve never dealt with it;
- Sgt. Duchesne said he heard Ms. Ceasor say “Sorry, I didn’t mean to hurt him (anyone)” and that her son is in jail; the steak knife she used was in the kitchen of the apartment; her son is in jail for murder and it was difficult for her; that she didn’t mean to stab the cab driver. Sgt. Duchesne confirmed that his notes paraphrase his recall and they were not one hundred percent accurate or reliable.
- Sgt. Piunno in booking recalled that the accused said she grabbed the knife from friend and returned to the cab to cut his throat because her son is in jail and she has not dealt with it. Sgt. Piunno recognized that his notes and memory were different in relation to when the utterances were made.
- Constable Zeran’s notes were that the accused was very intoxicated, she was unsteady on her feet, her eyes were red and she repeated many times “I’m sorry”. At the station, she heard Ms. Ceasor say (paraphrased) I don’t know what got into me; went up to Mr. Willard’s got knife and would be right back, then went down; wanted to slice his throat.
[136] Ms. Ceasor’s utterances exuded ambivalence.
[137] Police are no less prone to projecting their experiences onto their recall than civilian population. Suspicious minds lead to treacherous ears is an apropos aphorism. There are always issues with paraphrased notes for that reason. Constable Langlois and Sgt. Piunno heard the word “cut”. Constable Zeran hear the word “slice.” Sgt. Duschesne heard the word “stab”. There are nuanced differences in what they heard in terms of the extent of her intended use of the knife and the foreseeability of certain outcome.
[138] I cannot accept their assessments of Ms. Ceasor’s level of intoxication at somewhere between 4 and 6 of 10. The unrefuted evidence is that Ms. Ceasor consumed in the range of twenty beers. Police interaction with Ms. Ceasor was at the very end of her day when she would have been most affected. Constable Zeran was unable to assign a number to Ms. Ceasor’s level of intoxication but noted she was very intoxicated and unsteady on her feet.
[139] Ms. Ceasor’s testimony is that she experienced alcohol induced amnesia beginning before 10:00 p.m. when her son called ending the next morning. At trial, she denied memory of the interview with Det. Huygen. That said, the rendition depicted at trial and to Det. Huygen were consistent. In both, she apologized for the hole in her memory. She said she wished she could remember but did not.
[140] She was cross-examined about what she remembered about her visit to Mr. Willard’s apartment. She denied memory. Then depicted it as “not much”. I recognize that the words “not much” in that context are euphemism for nothing.
[141] That said, it is fact that Ms. Ceasor perpetuated a subterfuge to get the knife and was able to negotiate her way to, into Mr. Willard’s apartment and back to the taxi.
[142] Further, it is fact that Ms. Ceasor reached into the driver window, placed her right hand around the back of Mr. Ahmed’s neck and inserted her left hand with the knife to Mr. Ahmed’s front. She ran the knife back and forth a couple of times in an area where Mr. Ahmed’s coat covered his chest and neck and then moved the hand and knife upward and into Mr. Ahmed’s chin area causing a minor laceration.
[143] This was a brief exchange. Mr. Ahmed thought this was a practical joke until he felt the knife stab under his chin. When Mr. Ahmed asked Ms. Ceasor what she was doing, she said, “I am going to cut your head off”. With that, Mr. Ahmed defended himself by grabbing Ms. Ceasor’s left hand and raising the window.
[144] Those words were belied by her actions.
[145] After the assault, Ms. Ceasor withdrew and left after brandishing the knife in the air. Brandishing the knife from a distance doesn’t help with the intent issue.
[146] She returned to the Willard apartment, wakened Mr. Willard, opened a beer, made a sandwich and waited for the police. Mr. Willard observed that Ms. Ceasor appeared calm, too calm. As Ms. Ceasor denied recall of that interaction, she was unable to explain. She did not disclose her state of mind to Mr. Willard. The best we have are the utterances to the police and those were ambiguous.
[147] One inference is that at the time, Ms. Ceasor was finally at peace with herself. She had, in her mind, initiated a process she, in her intoxicated and distressed mind, believed could bring about reunification with her son. That was the underlying theme.
[148] This was an emotional, intoxicated, distraught mother desperate for reconciliation. Suicidal ideation over the last five years in response to the phone call trigger was ineffectual. The plan was consistent with Mr. Willard’s observations over the last five years. Ms. Ceasor had never shown anger or animus to anyone but herself. This was the same self-flagellation; however, one involving collateral damage.
[149] It was, in her mind, a valid plan until the police arrived and reality confronted her fantasy. She had a “what did I just do” moment when the police were at the door that resulted in the emotions witnessed by the officers.
[150] Crown and defence were not ad idem on the facts that should be factored as the strands in the process of inferencing leading to a conclusion as to the question of Ms. Ceasor’s intention.
[151] Defence argued that her selection of the least lethal weapon available, the feeble effort at effecting injury, the short duration of the attack, Ms. Ceasor’s lack of resistance and the inconsequential nature of the wound factor into the intention analysis. The Crown argues that duration, degree of force, and extent of injury as they increase are evidence of specific intention to kill but that inconsequential injury, minor force and brief duration do not detract from specific intent to kill in these circumstances. The neck is quintessentially vulnerable as are the eyes and heart.
Conclusion
[152] I am not persuaded that Ms. Ceasor formed the intention to kill Mr. Ahmed. If Mr. Rivette accurately reported on this aspect, Ms. Ceasor formed the intention to stab the cabbie and implemented it. If she had pulled a gun and shot Mr. Ahmed as part of her plan that would be strong evidence of intent to kill. On the facts, an application of the common sense instruction would not achieve a conviction for attempted murder. Her method was assuredly inconsistent from one where death was a virtual certainty. She chose the least lethal weapon available and her effort at effecting injury was feeble. The short duration of the attack, Ms. Ceasor’s lack of resistance and the inconsequential nature of the wound, suggests that, in all the circumstances, what she did achieved the full extent of her purpose, namely the required criminal charges to fulfil her plan.
[153] It was a combination of intoxication and emotional distress that over-rode Ms. Ceasor’s capacity for critical thought permitting her to embrace a misconceived purpose and the means to its end. Even Mr. Rivette, a hardened alcoholic with incarceration experience recognized the flaws in the plan and said he told her. In my view, based on the whole of the evidence, Ms. Ceasor never got so far into the plan to form the intention to kill anyone.
[154] Further, the combination of intoxication and emotional distress factors differently in different fact situations. Here, had the evidence pointed to specific intent to kill, based on the premise that a person usually knows what the predictable consequences of her actions are and the means to bring them about, having regard to the same facts, the overlap of intoxication and emotional distress she was experiencing in the moment, together with the actions she deployed deprived her of the intention necessary for conviction for this specific intent offence.
[155] Accordingly Ms. Ceasor is acquitted of the attempted murder count and found guilty of the lessor included offence of assault with a weapon - S. 267(a), threatening bodily harm to Mr. Ahmed, contrary to s. 264.1(1)(a) and the dangerous user of a knife – s. 88.
[156] There will be convictions registered on the assault and threatening counts. There will be a judicial stay on the s. 88 count.
[157] Pre-sentence report requisitioned. Sentence hearing set for June 18, 2021 at 9:00 a.m. – three hours.