R. v. Hamlyn, 2017 ONCJ 613

NOTE The original ban on publication of evidence heard upon this preliminary inquiry issued pursuant to s. 539 of the Criminal Code has expired. The defendant’s trial has been completed. ONTARIO COURT OF JUSTICE CITATION: R. v. Hamlyn , 2017 ONCJ 613 DATE: 2017 04 21 COURT FILE No.: 2015-12721 Brampton, Ontario BETWEEN: HER MAJESTY THE QUEEN — AND — JASON SCOTT HAMLYN Before Justice G.P. Renwick Heard 10, 11, 12, 13, 18, and 19 April 2017 Reasons for Committal Released 21 April 2017 A. Falls........................................................................................... Counsel for the Crown A.

Hope ……..…......……………………………………….Counsel for the Defendant REASONS FOR COMMITTAL TO STAND TRIAL Renwick J.: INTRODUCTION [ 1 ] Mr. Hamlyn is accused of the second degree murder of Ronald Escott on 07 October 2015. During this preliminary hearing, the prosecutor lead evidence from twelve witnesses and introduced many photographs of the crime scene and the deceased’s injuries, and adduced the results of deoxyribonucleic acid (DNA) testing of blood found on the Defendant’s shoe. The Defendant did not call any witnesses to testify. [ 2 ] At the time of his death, Mr.

Escott was an inveterate alcoholic who was squatting with others in an abandoned house. He died from a head injury that resulted in subdural hemorrhaging, increased intracranial pressure, and herniation of the brain. Among various marks and bruises found on his body at the time of his death, Mr. Escott had also suffered six rib fractures and a perforated lung. The pathologist who conducted the autopsy determined that alcohol intoxication and ketoacidosis [1] were secondary factors that contributed along with the head injury to Mr. Escott’s demise. According to the pathologist, Mr.

Escott’s injuries were consistent with the intentional application of force and the pathologist could not discount the possibility that all of the deceased’s injuries were caused during a fist

fight, without the use of a weapon. [ 3 ] The Defendant concedes that he was involved in a fight with the deceased that began consensually. The Defendant also concedes that he unlawfully caused the injuries that lead to Mr. Escott’s death. Counsel for the Defendant submits that there is a sufficiency of evidence to commit his client to stand trial on the charge of manslaughter, but there is no evidence that the Defendant intended either to cause Mr.

Escott’s death or to cause him bodily harm that the Defendant knew was likely to result in death and that he was reckless whether death ensued or not. [ 4 ] Despite the Defendant’s concession (committal to trial on manslaughter), the prosecutor seeks committal on second degree murder. The Crown submits that there is some evidence tending to prove the necessary mental element of this offence. [2] [ 5 ] I have carefully reviewed and considered the totality of the viva voce and documentary evidence as well as the arguments presented by defence and Crown counsel.

These reasons will discuss the evidence received, the applicable law, and submissions of the parties before concluding whether the Defendant will stand trial for manslaughter or second degree murder. THE EVIDENCE [ 6 ] During the five days over which evidence was presented [3] I took detailed notes, which I have reviewed. I have also reviewed the exhibits. It is not my intention in these reasons to discuss all of the evidence heard.

Instead, I will pr é cis only the salient parts of the evidence which have a bearing on the sole issue under consideration (specific intent to cause bodily harm known to likely cause death and proceeding anyway). [ 7 ] Dr. Noel McAuliffe performed the post-mortem examination of the deceased on 08 October 2015. On consent, Dr. McAuliffe was qualified to offer opinion evidence as a forensic pathologist. [4] The pathologist noted that the deceased was a 59 year old in poor health. He concluded that Mr.

Escott died primarily from a head injury and brain bleeding, with intoxication and ketoacidosis as secondary contributing causes. The doctor noted that a toxicology screen on the deceased’s blood revealed an extremely high blood alcohol concentration: 318 mgs of alcohol in 100 ml of blood. [5] [ 8 ] Photographs taken during the autopsy confirmed the pathologist’s findings that among other injuries observed, Mr. Escott suffered brain bleeding, multiple contusions (bruises), and 5 fractured ribs, all on his left side. Dr.

McAuliffe testified that most of the bruises found on the deceased were “non-specific,” but there were two areas of “pattern” injuries that may have been caused by a cylindrical object with a recessed centre, used as a weapon. Despite the superficial similarities of the profile of its construction, a gin bottle recovered from the bedroom across from the bedroom where Mr. Escott died could not be determined as the cause of the patterned bruises because it was not made available for the pathologist for a comparison with the bruise marks he found on the body. Dr.

McAuliffe also indicated that he did not expect that the pattern bruising was caused by a person’s fist, but he could not rule out that possibility either. Lastly, in terms of timing, the pathologist estimated that the injuries sustained and all but a couple of the many bruises he observed were inflicted during the 24 hour period before Mr. Escott’s death. [ 9 ] Eight civilian witnesses told the court about the night before and the morning of Mr. Escott’s death. That night, an excess of alcohol was consumed by all who were present in the abandoned house where Mr. Escott lived and later died.

Three witnesses who were present during the altercation between the Defendant and the deceased testified. [6] Unfortunately, it became abundantly clear that these witnesses, like the deceased, were heavily intoxicated at the time. [7] The accounts of who was actually present varied considerably. The Defendant’s several statements admitting his role in the beating of the deceased were the one consistency found in the entirety of the evidence heard. [ 10 ] Alex Rugimba testified that he is and was an alcoholic in 2015. He was present during the evening of the fight between the deceased and Mr.

Hamlyn but he claims to have gone to bed after consuming 22 beers, and before any fighting began. He says the Defendant was bragging the next morning about a fight and punching out Ron. [ 11 ] Michelle Parr testified that she drank gin and remembered something happening between Ron and Jason (Hamlyn). However, due to her on-going difficulties with alcohol, Ms. Parr was not a completely reliable historian. [8] With some credibility, Ms. Parr testified that she believed that the fight began because the Defendant pushed Mr. Escott’s girlfriend, Desiree, onto the bed.

At that point she heard the deceased say “don’t touch my woman.” For Ms. Parr, this was the start of what she thought at the time was a play fight, which she did not watch, but saw some of the movements out of the corner of her eye, as she sat on the mattress beside Mr. Escott. She estimated that there about 4 punches exchanged during a fight and that Ron was joking that one of the punches was a pretty good one. Her estimate of the length of the altercation varied from 10 minutes (as she initially told the police) to 45 seconds. [ 12 ] The next morning, Ms. Parr tried to wake Mr.

Escott, who was still alive, but largely unresponsive. After attending the liquor store with the Defendant, she eventually phoned Desiree to check on Ron, because she was increasingly concerned that something was wrong. [ 13 ] Tan Vu gave evidence of almost no value. Mr. Vu did not recall being at the abandoned house the night before Mr. Escott died, contrary to Ms. Parr and Mr. Rugimba’s evidence that he was present. He also denied being in bed alongside the deceased mere hours before Mr. Escott was found dead, despite evidence from a more reliable witness, Tawanda Kadye, who saw Mr.

Vu there when he arrived that morning. [ 14 ] Mr. Kadye (also known as “TK”) is a social worker who knew the deceased and the others who were present for the events leading up to and following the death. He arrived at the house that morning to take Ms. Noseworthy to her probation appointment. He observed the marks on the shoulder of Mr. Escott and tried to wake him. Mr. Kadye asked what caused the marks he saw and the Defendant answered that they had been fighting, Ron had hit him first and he had hit him back.

This witness was not completely independent, [9] but a jury would likely believe his evidence up to this point. [ 15 ] The remaining four civilian witnesses and two police officers gave evidence of admissions made by Mr. Hamlyn and their observations of his physical condition on the morning Mr. Escott died and the following day.

[16] Terri Lynn Gale and Adrien Reid were awaiting a bus on 07 October 2015 when they met up with the Defendant. Each witnessnoticed that Mr. Hamlyn’s hands showed signs of injury. Ms. Gale described the Defendant’s right hand as “busted up” and swollenbetween the ring and index finger. She said the injuries looked “fresh.” Ms. Gale described the Defendant as ashamed when he told herhe had been in a fight with “Ron” and he had beat him up with his hands. She also saw the blood on his shoe.[10] [17] Mr. Reid noticed cuts and bruises on Mr. Hamlyn’s hands and blood on his shoes. Mr.

Reid asked what had happened to causehis injuries and Mr. Hamlyn “reluctantly” said he got into a fight. When Mr. Reid asked if the other person was alright, the Defendantanswered “I don’t think so.” [18] Amanda Nealey and her boyfriend, Wesley Taylor, also saw Mr. Hamlyn that day.[11] She testified that she had asked why thepolice were coming around and the Defendant said he had “beaten the crap out of Ron.” Mr. Taylor testified that the Defendant said hehad “punched out Ronald.” [19] Around 1:00 p.m. that day, Mr. Kadye went to check on Mr. Escott and found him dead.

The police were called and began toinvestigate the matter as a sudden death. [20] Forensic Identification officers attended and photographed the crime scene. The area was taped off, and later that evening, Mr.Hamlyn crossed the police tape to enter the condemned house. He was confronted by Constable Matt Pitula who arrested the Defendantfor being intoxicated in public. The officer testified that Mr. Hamlyn “asked if Ronny was ok,” and back at the station in response towhether or not he was injured the Defendant said, “ya, I had an injury, I had to box someone yesterday.” [21] The next morning (the day after Mr.

Escott was found dead), the Defendant was interviewed by the police while still in theircustody, and he was eventually arrested for second degree murder. Ultimately, the jury may use police photographs taken of theDefendant that day to substantiate the injuries observed by Amanda Nealey, Adrian Reid, and Constable Pitula. THE LAW [22] In this part, I will discuss my role as a preliminary hearing justice and the test for committal as well as the fault element ofsecond degree murder. [23] In R. v. Foster, [2008] O.J. No. 827 (S.C.J.), Mr.

Justice Hill reviewed the jurisprudence of the role of the preliminary hearingjustice, in the context of an application for certiorari following the discharge of the respondent on robbery charges. With respect tocircumstantial evidence and the limited weighing function of the preliminary hearing justice, His Honour enumerated many of thegoverning principles, including the following: In circumstantial evidence cases, there may exist not one, but a range or field of reasonable inferences which may be drawn.

The ultimatedetermination as to whether an available reasonable inference ought to be drawn is for the trier of fact - a judge is not to ask whetherfacts ought to be inferred and is not to make "determinate factual inferences": R. v. Cinous, at 157, 171, 173; R. v. Arp, at 353. In otherwords, a preliminary inquiry justice acts in excess of jurisdiction where he or she chooses from amongst competing or alternativereasonable inferences: R. v. Figueroa et al., 2008 ONCA 106 , [2008] O.J. No. 517 (C.A.) at para. 34; R. v. D.M., [2008] O.J.No. 326 (C.A.) at para. 5.

A preliminary hearing court is not to apply the rule in Hodge's Case to determine whether a reasonableinference is consistent with guilt and inconsistent with any other rational explanation: R. v. Charemski (1998), (SCC),123 C.C.C. (3d) 225 (S.C.C.) at 230; R. v. Monteleone, at 198; R. v. Mezzo (1986), (SCC), 27 C.C.C. (3d) 97 (S.C.C.)at 107. … Circumstantial inferences are ones which "can be reasonably and logically drawn from a fact or group of facts established by theevidence": R. v. Morrissey (1995), (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 209.

A trier of fact "cannot be invitedto draw speculative or unreasonable inferences": R. v. Figueroa et al., at paras. 35, 42. Most cases "will involve hiatuses in the evidencewhich can be filled only by inference": Lameman v. Canada (Attorney General), 2006 ABCA 392 , [2006] A.J. No. 1603 (C.A.)at para. 87. "The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstancespermit an educated guess": U.S.A. v. Huynh, at 307. Some inferences are strong and capable of creating practical certainty while others are weaker: Lameman v.

Canada (Attorney General),at para. 94. A reasonable and logical inference to be drawn from circumstantial evidence need not be an easy one to draw (R. v. Katwaru(2001), (ON CA), 153 C.C.C. (3d) 433 (Ont. C.A.) at 444) or indeed the most obvious or compelling inference: R. v.Munoz, (ON SC), [2006] O.J. No. 446 (S.C.J.) at paras. 21-31. The justice is obliged to consider the cumulative effectof the evidence said to point toward guilt on the part of the accused.

Especially in a case premised wholly or in large measure uponcircumstantial evidence, it is improper to isolate a particular piece of evidence and to then discuss any probative force flowing therefromwithout regard to the context of the totality of the evidence: R. v. Coke, at para. 9[12] [underlining is mine]. [24] Moreover, I need not actually draw factual inferences nor determine credibility or the inherent reliability of evidence in mylimited role as a preliminary hearing justice: R. v. Arcuri, 2001 SCC 54 , [2001] S.C.J. No. 52 at paras. 23, 30, and 33, and R. v.

Kamermans, 2016 ONCA 117 , [2016] O.J. No. 685 (C.A.) at para. 15. [25] In order to commit Mr. Hamlyn to trial for the offence of second degree murder, I have to be satisfied that there is someevidence of each element of this offence which, if believed, would satisfy a properly instructed jury, acting reasonably, of theDefendant’s guilt beyond a reasonable doubt. Given the defence concession that there is some evidence capable of satisfying a jurybeyond a reasonable doubt that the Defendant committed an unlawful assault upon Mr.

Escott which caused death, I need only considerthe evidence in terms of the specific intent as alleged by the Crown: Is there some evidence which if believed could satisfy a jury beyonda reasonable doubt that Mr. Hamlyn intended to cause Mr. Escott bodily harm that he knew was likely to cause his death and despite thisknowledge he proceeded with the assault reckless as to whether death resulted. ANALYSIS [26] There is no direct evidence respecting Mr. Hamlyn’s intentions on the night he fought with Mr. Escott.

The prosecutor reliesupon the reasonable inferences which may be drawn from the circumstantial evidence to establish the Defendant’s knowledge andintentions. [27] The prosecutor urges me to conclude that a jury could infer Mr.

Hamlyn’s intention to cause bodily harm he knew was likely tocause death and pursued that course regardless, from the nature of the assault (punches to the head and ribs of a drunk man), the obvioushealth and age of the deceased in comparison to the Defendant, and the force of the beating itself (the evidence of fractured ribs and thebrain bleeding, as well as the injured hands of the Defendant). [28] Counsel for the Defendant submits that the only inference that can be drawn about the nature of the fight comes from Ms. Parr’slimited observations, including the deceased’s subsequent comment and behaviour.[13] Mr.

Hope suggested that there must have been asecond or subsequent attack upon Mr. Escott by virtue of the pattern injuries that no jury could accept were the result of Mr. Hamlyn’sthree-punch (weaponless) play-fight.[14] [29] In this case, a jury could disregard Ms. Parr’s evidence that there were only three or four punches thrown between Mr. Escottand the Defendant, based on the injuries each man suffered.

Moreover, the defence theory is based upon a set of competing inferences (asubsequent attack by a different individual, wielding a weapon), which I need not consider.[15] [30] In my role as the trier of inference, I am entitled to perform a limited weighing of the circumstantial evidence to determine if theinferences sought by the prosecution are indeed capable of being drawn: Arcuri, at paras. 23-30. [31] A jury is entitled to infer from the force used to cause an injury an intention on the part of the person committing the assault tocause bodily harm that is likely to cause death, and armed with such knowledge the assaulter proceeded without concern for the life ordeath of the injured person: see R. v.

Moffit, [2015] O.J. No. 3024 (C.A.) at para. 29. [32] I conclude that a jury would be entitled to infer that Mr. Hamlyn and Mr. Escott were involved in a very violent physicalaltercation and the Defendant intended to cause bodily harm he knew was likely to kill Mr. Escott and proceeded anyway, based uponthe following evidence: i. Mr. Escott was obviously older and weaker than Mr. Hamlyn. Mr. Taylor described the deceased as “frail” and “losingweight.” Dr. McAuliffe described Mr. Escott as having “spindly” legs and arms. Mr. Escott was becoming incontinent and haddifficulties walking. On that night Mr.

Escott was severely intoxicated and it was obvious to everyone present. In contrast, thephotographs of Mr. Hamlyn the next day reveal that he appeared healthy, muscular, and strong; ii. Mr. Escott was beaten about his head so badly that his brain began to bleed and bruising was observed on his left ear, behindhis left ear, his left jaw and the right side of his head and right ear; iii. Five left ribs of the deceased (one of which punctured his left lung) and one right rib were fractured; iv. There were many fresh bruises, mostly on the left side of Mr. Escott, only some of which appeared to be patterned; v.

The Defendant’s hands were observed to be swollen in the hours following the assault; vi. The Defendant’s hands were observed to have “fresh” injuries in the hours following the assault; vii. The Defendant’s right hand appeared to be cut and bruised in the hours following the assault; viii. The Defendant’s right shoe had small stains of his own blood on the outside of the shoe; ix. The Defendant’s hands appeared to be swollen and it appeared that he was healing from injuries on his right hand when he wasphotographed on 08 October 2015; x.

The Defendant’s right ear appeared to be red and there were red marks on his left shoulder area when he was photographed on08 October 2015; and xi. The Defendant admitted that he had beaten the crap out of Mr. Escott. [33] Furthermore, the evidence revealed that there may have been a motive for the Defendant to intend to cause serious bodily harmhe knew would likely cause Mr. Escott’s death. Ms. Gale testified that Mr. Hamlyn told her that Mr. Escott caught him engaging Ms.Noseworthy in intercourse, and then he became angry and pushed Mr. Hamlyn. This evidence is somewhat corroborated by Mr.

Kadye’sevidence that the Defendant told him that he had been hit by Mr. Escott and he hit him back. Ms. Parr’s evidence that Mr. Escott toldMr. Hamlyn not to touch his woman may also be seen by a jury to corroborate the genesis of the confrontation.

[ 34 ] In submissions, both Crown and defence counsel submitted that a jury may find that the pattern bruising was caused by a second or other assault upon Mr. Escott by another person who may have used a weapon. On the evidence lead on this preliminary hearing it would be speculation to suggest that there was another attack upon the Deceased that night. Neither Ms. Parr, Mr. Rugimba, nor Mr. Vu said anything that would remotely support such a theory. In all of his utterances and admissions after the assault the Defendant, who may even have slept in the same room as Mr.

Escott after their fight, never suggested that anyone else hurt the deceased in any way, whatsoever. [ 35 ] So, notwithstanding that the forensic pathologist indicated that the apparent pattern bruising could have been caused by an object used as a weapon, it does not make it more likely than not that a jury would reasonably infer that such was the case. And even if I am wrong in this assessment, this is merely a competing inference based upon a piece of evidence which may be rejected by the jury.

CONCLUSION [ 36 ] The Crown has satisfied me that there is more than a scintilla of evidence to support a reasonable inference beyond a reasonable doubt that the Defendant intended to cause the deceased bodily harm and armed with that knowledge he unlawfully assaulted Mr. Escott without regard for whether or not the bodily harm he inflicted lead to death. [ 37 ] Jason Hamlyn is committed to stand trial upon the offence of the murder of Ronald Escott in the second degree. Released: 21 April 2017 Justice G. Paul Renwick