R v Gagnon, 2021 ABQB 766

Court of Queen’s Bench of Alberta Citation: R v Gagnon, 2021 ABQB 766 Date: 20210923 Docket: 170614812Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Keeton Michel Gagnon Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice M.H. Hollins _______________________________________________________ [ 1 ] On the evening of June 2, 2017, Mr. Nicholas Nwonye, the deceased, was waiting for a train on the City Hall C-train platform in downtown Calgary. As the train approached and he moved to board the train, the accused, Mr.

Gagnon, tapped him on the shoulder from behind. When the deceased turned around, the accused stabbed him several times with a knife. Two of these wounds penetrated vital organs and the deceased did not survive. The accused was charged with second degree murder. [ 2 ] The accused has admitted some of the elements of this charge, namely that it was he who physically caused the death of the deceased.

The only question for determination at this trial was whether the accused is guilty of second degree murder as opposed to manslaughter, which depends on whether he had the requisite intention to cause the deceased’s death.

Second Degree Murder [3] Murder, whether first or second degree, requires the Crown to prove beyond a reasonable doubt that the accused intended tokill the victim or that he intended to cause bodily harm likely to result in the victim’s death and was reckless as to whether death ensued;s.229 (a)(ii) of the Criminal Code. [4] The Crown can establish second degree murder by either route – intention to kill or intention to cause bodily harm likely tocause death.

Because I have no direct evidence of what the accused was thinking in attacking the deceased, I can only find subjectiveintent through reasonable inferences drawn from the facts of this case. Presumably, because this arguably makes it more difficult toestablish actual intent to kill, the Crown focussed on proving a subjective intention to cause bodily harm likely to result in death with arecklessness as to whether death resulted. [5] To do this, the Crown must prove beyond a reasonable doubt: (

a) subjective intent to cause bodily harm; and (

b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death; R v Cooper, (SCC),[1993] SCJ No. 8 at paras.13-15 (note that knowledge that death is possible is not sufficient, it must be knowledge that death is likely; Rv Patterson, 2000 CarswellOnt 500 at paras.34-48). [6] How is this proven? We begin with the legal principle that people are assumed to intend the natural consequences of theirown actions.

As the Supreme Court of Canada explained in R v Seymour, (SCC), [1996] SCJ No.64: When charging [a jury] with respect to an offence which requires proof of a specific intent it will always be necessary to explain that, indetermining the accused’s state of mind at the time the offence was committed, jurors may draw the inference that sane and soberpersons intend the natural and probable consequences of their actions. Common sense dictates that people are usually able to foresee theconsequences of their actions.

Therefore, if a person acts in a manner which is likely to produce a certain result it generally will bereasonable to infer that the person foresaw the probable consequences of the act. In other words, if a person acted so as to producecertain predictable consequences, it may be inferred that the person intended those consequences; para 19 [7] Therefore, the question that follows is whether the deceased’s death was a natural, probable and predictable consequence ofthe accused’s actions.

In urging me to so find, the Crown draws my attention to the conduct of both the accused and the victim prior toand during the attack, to the weapon used and to the location and severity of the wounds inflicted in the attack.

The Crown also relies onthe conduct of the accused following the attack, namely his attempts to conceal the weapon and to change his appearance. [8] Although I have concluded that I cannot properly draw any inferences from the accused’s conduct after the attack, thecircumstances of the attack itself, including the weapon used, the manner in which it was used and the location and severity of theinjuries to the victim have, in my opinion, established the requisite intent for second degree murder beyond a reasonable doubt.

Evidence of Intent [9] The Crown relied on the CCTV footage available from the C-train system as well as from Bow Valley College cameras toshow the movements of the accused before, during and immediately after the attack. In addition, the Crown led evidence of the transitofficers and police officers who responded and the evidence of two civilian eyewitnesses. The Accused, as he is entitled to do, led noevidence of his own. The Attack [10] The CCTV footage shows the accused boarding a north-bound transit train, or C-Train, at the Chinook C-Train station in southwest Calgary.

Approximately 15 minutes later, he is seen on the C-Train platform in front of City Hall, on the north side of 7th Avenue SW downtown. He is seen going into the Bow Valley College building, coming back out again and sitting on a bench byhimself. The deceased also comes out of the Bow Valley College building and sits on a different bench, next to the one on which theaccused is seated. [11] There is no interaction between these men at any time, at least none on the CCTV footage provided.

As the northbound C-Train approaches and comes to a stop, the deceased gets up and starts moving towards the train doors, along with other passengers. TheCCTV footage shows the accused behind the deceased with a long-bladed knife in his right hand. The video of the actual attack is notclear, although the two men are seen scuffling. [12] Mr. Daniel Anosh was standing near the safety line on the C-train platform a few metres away from the accused and thevictim. Mr.

Anosh testified that: ● the accused was standing behind and slightly to the left of the deceased, ● the accused tapped the deceased on the left shoulder, ● when the deceased turned to his left towards the accused, the accused pulled a knife out from his side, raised the knife up in hisright hand with the blade down and stabbed the deceased in the chest with “quite a lot of power”, ● The accused repeated this motion, stabbing the deceased a second time, and

● The accused began a third such motion, at which point, Mr. Anosh turned and ran the other direction, to exit the platform and cross the street. [ 13 ] Another eyewitness, Mr. Jordan Cleveland, testified that he was on the north platform and heard some sort of noise that drew his attention to the two men who he saw “grappling” with each other. He was about 5 to 10 feet away; close enough to identify the accused and describe his clothing and backpack.

He saw the accused kicking at the deceased. [ 14 ] Counsel for the accused makes the point that, although no interaction between the accused and the deceased was seen on the video or observed by any witnesses, it is still possible that these men did have some interaction prior to the attack. That, in my respectful view, is both speculative and irrelevant. No provocation was pleaded in defence of this charge, nor is motive an element of the offence to be proven. [ 15 ] This attack was swift, brutal and purposeful. It was not, as Crown pointed out in argument, an accident.

While we may never know exactly why the accused did what he did, there is no doubt that the accused intended to cause the deceased severe bodily harm. Was the harm severe enough that the accused knew it was likely to kill the deceased? I say, yes, for the following reasons. The Injuries [ 16 ] The attack did not last long, but the injuries inflicted were severe. The first police officer to attend to the deceased was Constable Brent Halyk. Prior to becoming a police officer, he had worked as an advanced care paramedic for 15 years.

He testified that the deceased was pale, non-responsive and was having trouble breathing. Constable Halyk said that he and his partner located the wounds to the deceased’s chest and abdomen, which he recognized as life-threatening. [ 17 ] Dr. Bol, the Assistant Chief Medical Examiner, who had reviewed and adopted the autopsy report, described the wounds in more detail. There was a cut about 8 cm long, like a slashing wound, to the top of his scalp. This cut had permeated the skin and outer layer, but had not damaged the skull.

While no footage or eyewitness testimony was available to explain whether this wound preceded or followed the two stab wounds to the torso, it was uncontroverted that it was sustained in the knife attack by the accused, but was not a life-threatening wound. [ 18 ] The other two stab wounds were the more serious, each described as life-threatening on its own. The first was through the sternum and penetrated approximately 12 cm into the victim’s chest, perforating his heart and causing the chest cavity to fill with blood. Dr.

Bol said that a great deal of force would have been required to stab someone with that result because the knife had to penetrate through bone. [ 19 ] The other wound of significance was to the deceased’s abdomen. With less resistance to the blade, the knife penetrated its full length of 21 cm and punctured his bowel and major blood vessels. Again, the abdomen was filled with approximately 1.9 litres of blood. [ 20 ] Dr. Bol testified that the second wound to the abdomen would have caused death within 20-30 minutes but the first wound to the chest would have caused death in less time than that.

Taken together, the victim had little time to live after the wounds were inflicted and indeed bled out, notwithstanding the medical attempts to save him. [ 21 ] The nature and extent of a victim’s injuries can be evidence supporting an inference of an intent to injure. In R v Rodgerson , 2015 SCC 38 [ Rodgerson ] Moldaver, J explained this as follows: The more severe the injuries caused by Mr. Rodgerson, and the more force required to inflict them, the stronger the inference that he intended to kill Ms.

Young or cause her serious injury; para 19. [ 22 ] In a case with somewhat similar facts as this, an accused fatally stabbed his wife 15 times, causing her death. He argued that he did not have the mental capacity for a guilty verdict on murder as opposed to manslaughter. However, on appeal from his conviction for murder, the British Columbia Court of Appeal said: Furthermore, the trial judge did not err, as the appellant maintains, in her use of the autopsy evidence as circumstantial evidence of intent.

The extent of the injuries and the degree of force used to inflict them, resulting in piercing vital internal organs and penetrating bone, was clearly evidence relevant to the appellant’s intention.

That evidence was part of the body of circumstantial evidence from which the judge inferred the appellant had the intention required for murder; R v V (O) , 2015 BCCA 449 at para 59 [ 23 ] There is no doubt that the accused, who stabbed the victim purposefully and repeatedly, in the central torso, which houses our vital organs, with sufficient force to penetrate bone and to damage the heart and other organs, must be taken to intend to cause sufficient bodily harm to know it will likely result in death. The Knife [ 24 ] In addition to the violence of the accused’s actions, the weapon used was notable.

It was described by Mr. Cleveland as a “chef’s knife” and by Constable McLellan as a “butcher knife”. While nothing turns on that distinction, it is certainly recognizable as a large kitchen knife, approximately 21 cm long with a blunt top edge and a sharp bottom edge. If someone were handling this knife in his

or her own kitchen, it is reasonable to think that significant care would be taken as it is a dangerous implement. [ 25 ] It is not an item reasonably expected to be carried around in a backpack and indeed the accused’s backpack contained packaging consistent with the description and size of this knife, the inference being that it had been put into the backpack while still in this packaging and taken out of the packaging sometime before the attack.

While I am not inferring, nor was I asked to infer, that the accused planned an attack with this knife, the point is that there is no obviously innocent explanation for the accused to have it with him at that time and so cannot be considered a weapon of convenience. [ 26 ] Further, the accused can be assumed to know the type and size of the knife that he had in his possession and which he used to stab the deceased. There is no possibility that any sane person could repeatedly and forcefully stab another person with this particular knife and not foresee causing bodily harm likely to result in death.

Post-Offence Conduct of the accused [ 27 ] Following the attack, the deceased is seen on video stumbling back towards the wall of the library building behind the C- Train platform and collapsing there while the accused simply walks off in the other direction along with disembarking passengers, towards the east end of the platform. [ 28 ] Mr.

Cleveland was also walking to the east end of the platform to exit and testified that as he walked, he could see in the reflection of the windows beside him that the accused was walking behind him and was holding a knife, identified as the one later seized from him during arrest. Mr. Cleveland said that the accused entered the crosswalk and for about 30 seconds, walked back and forth in the crosswalk, shouting “That’s what you get”, although he admitted that he could not be completely certain that is what was said. [ 29 ] Counsel for the accused made the point that Mr.

Cleveland was only glancing at the accused in the reflective windows and not staring at him. In my view, Mr. Cleveland was clear with counsel and with the Court about the limits of his observations and his memory and his testimony largely accords with the other evidence we have of the movements of the accused after the attack. I accept his testimony. [ 30 ] When the accused crossed the street to the south C-train platform and boarded a south-bound train, Mr. Cleveland joined others in reporting this to transit officers who held the train while awaiting the arrival of Calgary Police (CPS) officers.

Once seated on the C-train on the other side of 7 th Avenue, while waiting to depart, the CCTV footage shows the accused opening his backpack and pulling out a plaid, short sleeved collared shirt which he puts over top of his t-shirt. He also put on a blue baseball cap and a pair of sunglasses. [ 31 ] When the CPS officers entered the south-bound C-train, the accused exited the car. He was detained and eventually identified by Mr. Cleveland, at which point he was arrested.

As a result of the search incident to arrest, Constable McLellan found a knife with a red substance, suspected to be blood, on the blade tucked under the accused’s pant leg, resting against his ankle. In the accused’s backpack, they found, among other things, packaging for a knife of this size. [ 32 ] While defence counsel is correct that the accused did not resist arrest, that is not the same thing as saying he made no attempt to flee.

This may not have been a high-speed chase, but in my opinion, the accused was clearly looking to evade detection, capture and arrest based on his switching trains and his attempts to change his appearance. [ 33 ] However, I have not allocated any weight to this evidence in reaching a guilty verdict on this charge. That is because the evidence of the accused’s post-offence conduct is, in my view, simply not relevant to the issue before this Court. [ 34 ] The Crown relied on two cases from the Supreme Court of Canada dealing with post-offence conduct, Rodgerson and R v Calnen , 2019 SCC 6 [ Calnen ].

Both these cases involved men who killed their domestic partners and then hid or destroyed the bodies of their victims. [ 35 ] In Rodgerson , this evidence was admitted because the destruction of the victim’s body was characterized as relevant, not just to the fact that a crime had been committed, but relevant to the extent of the injuries inflicted; Rodgerson , para 20 .

As discussed above, that can be a relevant factor in determining an accused’s intent. [ 36 ] In Calnen , Moldaver, J found no error in the trial judge’s instructions to the jury, which included cautions to consider other possible explanations for the accused’s post-offence conduct. However, he did not address the specific relevance of the evidence. Martin, J dissented from the majority only on the issue of whether a trial judge was required, as opposed to allowed or even encouraged, to caution a jury on its use of post-offence conduct.

She briefly addressed the issue of relevance as follows: As with other types of evidence, evidence of after-the-fact conduct is admissible if it is relevant to a live, material issue in the case, its admission does not offend any other exclusionary rule of evidence, and its probative value exceeds its prejudicial effects. Relevance involves an inquiry into the logical relationship between the proposed evidence and the fact that it is tendered to establish; Calnen , para 107 .

[37] This case is different from both Rodgerson and Calnen in that the post-offence conduct is the accused’s attempt to flee andavoid detection, not the destruction of evidence that might serve to illuminate his intentions in causing bodily harm to another.

Further,like the example of irrelevant post-offence conduct evidence given by Rothstein, J in R v White, 2011 SCC 13 at paragraph 39, anattempt to disguise or flee might be very relevant to the issue of identity, but identity was not an issue in this case. [38] The only live issue in this case is whether or not the accused intended, during the attack on the deceased, to cause bodily harmthat the accused knew would likely result in death.

His post-offence conduct simply cannot assist in determining that issue as his actionsafter the attack could be equally consistent with an accidental as opposed to an intentional death. [39] For these reasons, the evidence of the accused’s actions following the attack on the deceased cannot factor and have notfactored into my decision on the accused’s guilt.

Notwithstanding this, based on the evidence of how the attack was perpetrated, theweapon used and the injuries caused, I find that the Crown has proven beyond a reasonable doubt that the accused intended to causebodily harm to the deceased that he knew was likely to cause the victim’s death. Recklessness [40] The only remaining item is whether or not the accused was also reckless as to whether the deceased’s death ensued.Recklessness has been defined as the attitude of one who is aware of the danger of prohibited conduct and persists nonetheless; R vSansregret, (SCC), [1985] 1 SCR 570 at para 16.

However, once the Crown has established an intent to inflict injurieslikely to be fatal, it is difficult to see how the requirement that the accused has also ignored the likely consequence could be considered aseparate inquiry. [41] As the Supreme Court of Canada said in R v Nygaard, (SCC), [1989] 2 SCR 1074: The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused knew that it was likelyto result in the death of the victim.

The aspect of recklessness is almost an afterthought insofar as the basic intent is concerned.[1] Conclusion [42] Having found, beyond a reasonable doubt, that the accused caused bodily harm to the deceased that he knew was likely tocause the deceased’s death and being reckless as to whether death ensued, I find the accused guilty of second degree murder. Heard on the 13th day of September, 2021. Dated at the City of Calgary, Alberta this 23rd day of September, 2021. M.H. Hollins J.C.Q.B.A. Appearances: Mr. Ken McCaffrey, QC and Mr. William Tran for the Crown Ms. Susan Karpa and Ms. Shelley Moore for the Accused