COURT FILE NO.: CR-20-052-00
DATE: 2021-01-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
G. Filmore, for the Crown
- and -
SHELDON FINLAYSON
K. Matthews, for the Accused
Accused
HEARD: December 18, 2020, at Thunder Bay, Ontario
Mr. Justice W. D. Newton
Gardiner Hearing Reasons
Overview
[1] On December 18, 2020, Mr. Finlayson pleaded guilty to committing manslaughter in the death of Wade Hendry-Lee Otiquam-Joy contrary to section 236 of the Criminal Code, R.S.C. 1985, c. C-46.
[2] After conducting a plea inquiry, I accepted Mr. Finlayson’s guilty plea.
[3] As there were conflicting positions with respect to the facts underlying the gravity of the offence, a Gardiner hearing (R. v. Gardiner, 1982 CanLII 30 (SCC), [1982] 2 S.C.R. 368) was conducted pursuant to section 724 of the Criminal Code.
[4] I heard testimony from one witness, Dean McColeman. Counsel for the Crown and Mr. Finlayson agreed that I was also to consider the evidence from the preliminary inquiry held on November 12, 13, and 14, 2019, and March 3, 2020, in determining the facts leading to Mr. Otiquam-Joy’s death. Also, an interview report of Jessica Martin was filed by counsel for Mr. Finlayson with the consent of the Crown.
The Evidence
[5] Mr. Otiquam-Joy died after he was struck once by Mr. Finlayson on the side of his neck.
[6] According to the forensic pathologist from the Ontario Forensic Pathology Service, the cause of death was a subarachnoid hemorrhage – accumulation of blood within the brain. This was due to a rupture of the vertebral artery caused by blunt force injury to the left side of the neck, specifically the sternomastoid region – the neck just below the ear. The force of the blow was also sufficient to fracture the left transverse process of the first cervical vertebra. The force required was described as “heavy”. The tear of the vertebral artery and subsequent brain hemorrhage would result in unconsciousness and then death.
[7] Mr. Otiquam-Joy was 20 years old. He was 6’2” and weighed about 175 pounds. Mr. Finlayson is shorter but appears to be powerfully built.
[8] Dean McColeman was a roommate of Mr. Otiquam-Joy. He had just returned home from work in the early afternoon. Mr. McColeman testified that he was in the living room area of his home with Mr. Otiquam-Joy when he saw Mr. Finlayson. He said that Mr. Finlayson appeared “drunk” because he was “always drunk”.
[9] He testified that Mr. Finlayson was trying to instigate a fight with Mr. Otiquam-Joy and that Mr. Finlayson told Mr. Otiquam-Joy to hit him. When Mr. Otiquam-Joy replied that he did not want to fight and that he was not going to hit him, Mr. Finlayson “suckered” Mr. Otiquam-Joy as he started to sit down. Mr. McColeman described the punch as a “haymaker”; “he really cocked back – he put everything into it.” Mr. McColeman said that the blow was to the side of the jaw or neck. He testified that Mr. Otiquam-Joy collapsed immediately and that he was having difficulty breathing. 911 was called and Mr. McColeman started CPR. Mr. Finlayson left. Mr. McColeman described Mr. Finlayson as a “bully” and said that no one wanted to fight Mr. Finlayson because “everyone knows what he is like”.
[10] Charity Bittern did not witness the assault but was present at the house that afternoon and interacted with Mr. Finlayson. She described him as “rowdy”, “intoxicated, feeling his booze, acting the way he acts, all tough.” She said that he was asking for money, collecting, from some of the people in the house but that these other people were trying to get Mr. Finlayson to leave. She said that Mr. Otiquam-Joy was sleeping upstairs because he was on night shifts but that he came down and was also trying to get Mr. Finlayson to leave so he could go back to sleep. She described Mr. Otiquam-Joy as angry because he was trying to sleep.
[11] Ms. Bittern said that Mr. Finlayson “fights a lot of people – he tries to intimidate a lot of guys”. She testified that Mr. Finlayson told her to hit someone on the side of the neck just underneath the ear to protect herself. He told her that if you hit someone at that spot, “their body would shut down and they would die.”
[12] Christopher Constantin was another roommate. He was in the backyard when Mr. Finlayson arrived. He described Mr. Finlayson’s condition as “normal”, but said that Mr. Finlayson was an alcoholic and that he was probably drunk. He testified that Mr. Finlayson was “always drunk”. He denied any argument between himself and Mr. Finlayson. He described Mr. Finlayson as a “tough guy” who tries to intimidate people.
[13] Jessica Martin was also present at the home that day. She died prior to the preliminary inquiry. She gave a statement to the OPP about three hours after the incident. She said that Mr. Otiquam-Joy had come downstairs and sat in an armchair. Mr. Finlayson was present and Ms. Martin said that he had been drinking. She stated that Mr. Finlayson said something which prompted Mr. Otiquam-Joy to say, “look what I got to wake up to”. Mr. Finlayson responded, “sit the fuck down”. She said that Mr. Otiquam-Joy stood up and told Mr. Finlayson to calm down, and that Mr. Finlayson was getting “riled up”. She stated that Mr. Otiquam-Joy told Mr. Finlayson to “smarten up” and said to Mr. Finlayson that he was not going to hit him. As Mr. Otiquam-Joy started to sit down, he was struck by Mr. Finlayson.
[14] Detective Constable Perala of the OPP interviewed Mr. Finlayson. During the interview, Mr. Finlayson prepared a letter to Mr. Otiquam-Joy, who had not yet died at that time, in which he stated:
So sorry for what has happened. I never wanted anything like this to happen to you or to the both of us. We were both doing so well with each other. You are someone that I could call a friend. Me doing something like this makes me want to never drink ever again. This is a real shitty feeling knowing that I’m the one that’s making you fight for your life and I pray to God that you make it out of this, not for me, but for you and your family. Take care.
[15] Constable Bennett had an interaction with Mr. Finlayson about 90 minutes prior to the assault as a result of a traffic stop. No issue was noted with sobriety at that time.
Conclusion as to Facts
[16] I am satisfied beyond a reasonable doubt that Mr. Finlayson meant to cause serious bodily harm to Mr. Otiquam-Joy based on the force he used in this unforeseen attack. As Mr. Otiquam-Joy was moving – attempting to sit down – when he was struck by Mr. Finlayson, I am unable to conclude, beyond a reasonable doubt, that Mr. Finlayson knew that the blow was likely to cause Mr. Otiquam-Joy death, notwithstanding Mr. Finlayson’s apparent statement to Ms. Bittern about such a similar blow. As such, the intent for culpable homicide, or murder, is not made out. Accordingly, I find that the facts support a conviction for manslaughter.
[17] There is insufficient evidence to establish provocation. Mr. Otiquam-Joy may have been angry and may have asked Mr. Finlayson to leave, but he did not wish to fight with Mr. Finlayson and said so. As he was sitting down, and therefore moving away from Mr. Finlayson, he was struck.
[18] As to Mr. Finlayson’s intoxication, the evidence consists of vague descriptors such as “drunk”, “always drunk”, “rowdy”, and “feeling his booze”. Constable Bennett did not notice any issue with sobriety 90 minutes before this incident. Mr. Finlayson consumed alcohol after his arrest. There are no other descriptors of Mr. Finlayson’s condition suggestive of impairment, such as incoordination, or difficulties with balance or speech. As such, I am unable to assess whether intoxication played any role in this crime, other than contributing to Mr. Finlayson’s belligerence. In reaching this conclusion, I have considered Mr. Finlayson’s apology letter.
[19] Mr. Finlayson had no reason to strike Mr. Otiquam-Joy. His belligerence unnecessarily took the life of the deceased in very aggravating circumstances.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: January 21, 2021
COURT FILE NO.: CR-20-052-00
DATE: 2021-01-21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and –
SHELDON FINLAYSON
Accused
GARDINER HEARING REASONS
Newton J.
Released: January 21, 2021
/cjj