R. v. Delyea, 2015 ONCJ 794

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code . This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows: 539. Order restricting publication of evidence taken at preliminary inquiry.—

(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry (

a) may, if application therefor is made by the prosecutor, and (

b) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, (

c) he or she is discharged, or (

d) if he or she is ordered to stand trial, the trial is ended. . . .

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE DATE: 2015·03·27 COURT: Sudbury CITATION: R. v. Delyea , 2015 ONCJ 794 BETWEEN: HER MAJESTY THE QUEEN — AND — LONNIE DELYEA Before Justice R. W. Lalande Heard on January 20, 21, March 11, 23, and 27, 2015 Reasons on Committal released on March 27, 2015

Kenrick Abbott ....................................................................................... counsel for the Crown Lindsay Senterre ..................................................... counsel for the defendant Lonnie Delyea LALANDE J.: Introduction [1] Mr. Delyea was arraigned on a single count information, alleging that on the 18th day of August, 2014 he attempted to murderJoseph Wawia, contrary to s. 239 (1)(2) of the Criminal Code.

He elected to be tried by a court composed of a judge and jury. [2] The preliminary hearing was conducted over five days, namely January 20, 21 and March 11 and 23, 2015. Counsel providedtheir submissions on the issue of committal on March 27, 2015. The matter was adjourned to today for a decision. [3] The Crown called eight witnesses including the complainant Joseph Wawia. Mr. Delyea did not testify but he did call onewitness, namely Mr.

Roy Smith. [4] Committal for trial has been completed on aggravated assault and the only issue is whether there is any evidence upon which areasonable jury, properly instructed, could find that Mr. Delyea had a specific intent to kill Mr. Wawia. In other words, should there be acommittal on the charge of attempt murder or on the offence of aggravated assault contrary to s. 268 of the Criminal Code. [5] The court is mandated in accordance with the principles set forth in the Supreme Court of Canada decision of R. v.Deschamplain to provide some reasons for its decision.

Reasons given need not be extensive but must be sufficient to show that thecourt has reviewed and considered the evidence for the purpose of determining whether the threshold test has been met. I shall not makereference to all of the evidence, however, I have considered the totality of the evidence for purposes of my decision. Threshold Test [6] Counsel have referred to the “legal test” delineating the role of the preliminary inquiry judge.

The question to be asked by thepreliminary inquiry judge under s. 548 of the Criminal Code is whether there is any evidence upon which a reasonable jury properlyinstructed could return a verdict of guilty. The test is at times referred as “the sufficiency test” or the “threshold test” and has beenreferred to in many decisions, including and mostly the seminal decision of United States of America v. Sheppard [1977] 30 C.C.C.(2d)34.

The court framed the threshold test as follows: “The court must determine whether there is evidence upon which a reasonable jury, properly instructed could, if the evidence werebelieved, return a verdict of guilty.” [7] As held by the Supreme Court of Canada in Messo v. the Queen (SCC), [1986] 1 S.C.R. 802, the test forcommittal is the same whether the evidence is direct or circumstantial. The challenge, however, facing the court may vary dependingupon the type of evidence adduced by the Crown. Where there is direct evidence as to each element of an offence, an accused, of course,must be committed to stand trial.

If the evidence is circumstantial, the preliminary hearing judge must, as indicated in R. v. Arcuri 2001SCC 54 , [2001] 2 S.C.R. 828, engage in a limited weighing of the evidence in order to deal with inferential gaps between theevidence and points sought to be established. In other words, the court must decide whether the evidence is reasonably capable ofsupporting inferences that the Crown would ask a jury to draw. [8] The preliminary hearing judge must not go beyond the task of weighing circumstantial evidence in a limited way for the solepurpose of deciding whether the test for committal has been met.

The preliminary hearing judge’s task must not be seen as measuringthe strengths and weaknesses of the Crown’s case. It is not up to the preliminary hearing judge to consider the inherent reliability of theevidence itself or, for that matter, credibility of the witnesses who testified. Based on a limited weighing of the whole of the evidence(including defence evidence if any) the preliminary hearing judge must then assess whether a reasonable jury properly instructed couldreturn a verdict of guilty.

Background [9] At the commencement of the hearing and on consent, the Crown filed the following items as evidence: • Three photographs including an close-up photograph of a boot showing a blood stain. The boot was worn by Mr.Delyea. DNA analysis confirmed the blood stain to be that of the victim Joseph Wawia; • A forensic report prepared by Tara Brutzki dated November 3rd, 2014 as Exhibit Number 2. [10] The first two witnesses called by the Crown were Julian Jurczwynski and Ren Dupuis. They are both EMS ambulancepersonnel. They were on duty and dispatched to an area in close proximity to where Mr.

Wawia indicated he was beaten. They bothgave evidence as to their observations upon attending the area where Mr. Wawia was found including their dealings with him. Theyconfirmed that Mr. Wawia was transported to hospital.

[ 11 ] According to Mr. Jurczwynski, upon arrival at the scene Mr. Wawia was lying on his side, semi-prone. He looked beat up. There was a haematoma to the area of his right eye. There was a small cut under his chin. His right forearm was swollen. He was holding or self-splinting his right forearm. He was in pain. [ 12 ] Mr. Jurczwynski indicated that Mr. Wawia did mention that he had had an alcohol withdrawal seizure. He did not give much detail. Mr. Jurczwynski stated that it would be difficult to say how Mr. Wawia sustained the injuries. He confirmed that Mr.

Wawia was breathing on his own, alert and orientated. No odour of alcohol was detected. He did not characterize Mr. Wawia’s condition as critical. [ 13 ] Mr. Ren Dupuis’ evidence was not dissimilar. He also stated that Mr. Wawia had told him that he had had a seizure. He also indicated that he had been assaulted on the night prior. Mr. Dupuis offered to call police but Mr. Wawia said there was no need for police to become involved. [ 14 ] Mr. Dupuis said that he conducted a primary assessment in order to obtain a broad overview. In his view Mr.

Wawia’s primary complaint focussed on his right forearm which was swollen. [ 15 ] Mr. Dupuis did not detect alcohol. He was also able to say that Mr. Wawia was coherent and talking. He was not given medication before arriving at hospital. [ 16 ] Mr. Wawia testified. He is 33 years old. He is of native descent. He is an admitted alcoholic who has attended for detoxification in the past. He advised that since this incident he has not been consuming. His right arm was bandaged (or in some form of cast). [ 17 ] A connecting rod could be seen protruding from the bandaged area of his arm.

He explained that he had undergone surgery to his right arm and that the visible rod was used to secure other metal components inserted in the arm to stabilize the break. His left arm did not appear to have full mobility. His fingers were closed in a “claw shape”. He said he was unable to straighten his fingers. [ 18 ] He was at hospital until the end of August 2014. In speaking about his injuries he stated the following; • He sustained a lacerated liver, broken ribs, a broken arm and a broken wrist; • He suffered from kidney shutdown and a bad head injury.

He was in a coma for 3.5 weeks; • A metal rod was inserted into the right arm. He cannot now straighten his left hand. [ 19 ] Mr. Wawia said he was arguing with Mr. Delyea. Mr. Delyea accused him of spreading rumours about him. He said Mr. Delyea hit him in the stomach with a board. He attributes this blow to be the one which caused liver damage and a broken rib. He was then struck repeatedly with more blows. [ 20 ] Mr. Wawia indicated that no one was around at the time. He was in an area which is a usual stop for him. He said on that day he was simply looking for someone to hang around with, sit and drink.

He had bought a couple of cans of apple cider. He described the board used by Mr. Delyea as being the size of a walking stick. It was a brown 2 x 4, about shoulder height, which he estimated to be 5 ½ feet. [ 21 ] In further describing the assault, he indicated that he had been in the process of turning away from Mr. Delyea. He stated, “I said what I had to say. I was walking away. He hit my stomach in the area of the left ribs. I was turning left to walk away”. [ 22 ] He testified that Mr. Delyea kept striking him. He tried to protect his head with his arms. He tried to get up and get away but was not able to.

He did not count, but said he was struck quite a few times. [ 23 ] Mr. Wawia stated that he was hoping that Mr. Delyea would stop. One of the blows knocked him out. When he woke up he could not sit up. It was still light outside. He tried to yell but his ribs hurt and he could not yell loudly. He was covered in a tarp. He was found the next day. He does not recall being conscious through the night. [ 24 ] When he came to, his left wrist and hand hurt. He had trouble moving his right arm. He could not roll over to remove the tarp.

He saw Roy Smith and yelled for help repeatedly. [ 25 ] Roy Smith helped him to his feet. He was dizzy. He was unsteady. He does not recall going to hospital. [ 26 ] In cross-examination Mr. Wawia did state that he was involved in a serious car accident several years ago as a pedestrian and sustained a brain injury. His memory has not been quite as good since that time, especially regarding time, dates and names of people. [ 27 ] Mr. Wawia said he was able to recount his activities that day.

He also recalled a statement to police 21 days later on September 9th, 2014 but does not recall being with or seeing either Kathleen Flamand or Charles Hill that day. [ 28 ] Mr. Wawia gave a further statement to police on January 13th, 2015. This was his final statement. By that time he indicated that his memory had improved. [ 29 ] In further describing the assault in cross-examination, he indicated that Mr. Delyea appeared agitated. He stated, “Come over here, I’ve got something to talk to you about”. He said that as he was getting ready to leave, Mr. Delyea swung and hit him with the board.

Kathleen Flamand [ 30 ] She testified that Charles Hill is her boyfriend. On the day in question they walked by the site where Mr. Wawia was located.

She stated that Mr. Delyea was standing and that Mr. Wawia was blocking his chest and body. Mr. Delyea was holding a pole in hishand which measured three to four feet. Mr. Wawia saw her and stated “help me”. She said that she told Mr. Wawia to get up but thatMr. Delyea told her and Mr. Hill to mind their own business. They walked away. She said that any injuries to Mr. Wawia were notvisible to her but that she was focussed on Mr. Delyea at the time and that she was afraid. [31] Ms. Flamand also testified that before having approached the site she had looked in the direction of the site from a distance.

Shesaw a log being swung above the tree line. At that time she heard yelling. She indicated that she was sure it was them (namely Mr.Wawia and Mr. Delyea) because they were the only ones there. She also said she heard Mr. Wawia say “stop”. After leaving the siteMs. Flamand testified that Mr. Delyea walked by the area where she and Mr. Hill had stopped to rest. It was located about 20 feet or soaway. Upon seeing the two of them, Mr. Delyea stated “don’t worry I didn’t kill him.” Charles Hill [32] Mr. Hill gave similar evidence. He also said prior to attending at the location where Mr.

Wawia was found he saw a stickswinging in the air over the tree line. He said it looked like a club or a bat. He estimated the distance to be about 40 feet away. Uponattending at the site he saw Mr. Wawia lying on a skid and Mr. Delyea standing above him. He said he heard Mr. Delyea state “you f...gpiece of shit”. He said the comment was directed at Mr. Wawia. Mr. Delyea then told him and Ms. Flamand to take a walk. From hisviewpoint Mr. Wawia was laying on the ground not defending himself. He said that Mr. Wawia’s face was a bit bloody and swollen. Incross-examination he described Mr.

Delyea as holding a stick like a baseball bat. He estimated it to be two to three feet long and three tofour inches wide. He was holding the item in his hand down to his side. He said he felt nervous when walking away because he was notsure whether he was going to get attacked. [33] Dr. Steven Socransky was the emergency physician who treated Mr. Wawia when he was brought to hospital the next day. Inhis hospital report (dated August 20th, 2014) Dr.

Socransky provided the following diagnosis: • Intra-abdominal hemorrhage NOS; • Right midshaft ulnar fracture; • Multiple contusions to the patient’s face, torso and arms NOS; • Chin laceration with delayed presentation; • Multiple comorbidities The Law as it applies to Attempted Murder [34] The intent required for attempted murder is a very high level of intent, higher than the degree of intent required for actualmurder. It is not enough, for attempted murder, that a person intends to cause serious bodily harm that he knows is likely to cause deathand is reckless whether death ensues or not.

Attempted murder requires a specific intent to kill. (see R. v. Ancio, (SCC),[1984] 1 S.C.R. 225, 10 C.C.C. (3d) 385 (S.C.C.). [35] Defence counsel argues that there is no direct evidence of an intent to kill and that moreover there is no circumstantial evidenceto support an inference that Mr. Delyea meant or intended to cause Mr. Wawia’s death. Inherent in her submission is that the evidencemay be sufficient to show that Mr. Delyea intended to assault Mr.

Wawia, however even if that were with foresight of a risk of seriousbodily harm it would not constitute evidence from which it would be reasonable to infer that Mr. Delyea actually had the intention to kill. [36] The Crown underscores the very forceful and deliberate beating administered to Mr. Wawia over a possible timespan of twominutes or more and says that that, taken into conjunction with totality of the evidence, is sufficient to reasonably infer that Mr.

Delyeahad a specific intention to kill. [37] Without being exhaustive, I find the following facts to be relevant to the issue, namely: • There is evidence of a dispute of a temporal nature instigated by Mr. Delyea; • The blows themselves, while brutal in nature, were administered within a fairly tight time frame; • Mr. Delyea did not flee, in fact he spoke in the presence of Ms. Flamand and Mr. Hill. According to Ms. Flamand, in speaking tohim after the event he stated, “Don’t worry, I didn’t kill him.” • There is no direct evidence that Mr. Delyea intended a different result than to hurt or injure Mr.

Wawia; • There is evidence that Mr. Wawia did not want police involved. He stated this to Mr. Dupuis. He also indicated he may have beenconfused at the outset; • The injuries although serious do not on their own constitute evidence sufficient to infer that Mr. Delyea actually intended to killMr. Wawia; • Mr. Delyea obviously left the scene. There is no evidence of him having returned to ascertain Mr. Wawia’s condition. • If Ms. Flamand and Mr. Hill heard Mr. Wawia speak as they passed through the area of the scene, it is logical that Mr. Delyea,also present according to them, also heard him speak.

It strongly appears that Mr. Delyea left the area and went to speak to Ms. Flamandand Mr. Hill knowing fair well that Mr. Wawia, although injured, was still alive. This strongly militates against a finding of intent to

kill. [ 38 ] The evidence must be taken for what it is. It is possible to speculate that Mr. Delyea wanted to kill Mr. Wawia, but the fact that he stopped the beating, and soon after when speaking to Ms. Flamand and Mr. Hill uttered the words, “Don’t worry, I didn’t kill him”, militates against such a finding for purposes of the threshold test. [ 39 ] The evidence overwhelmingly supports the conclusion that Mr. Delyea may have been upset at Mr. Wawia, was grossly misguided in his reaction and wanted to hurt or punish him.

But there is no evidence, direct or circumstantial, to support the conclusion that he intended to kill him. [ 40 ] I am satisfied that there is sufficient threshold evidence to establish that Mr. Delyea intended to harm or hurt Mr. Wawia. The circumstances however in their totality do not reveal any evidence of that very high level of intent required for attempted murder. In that context, I find that there is no evidence upon which a reasonable jury, properly instructed, could find the specific intent by Mr. Delyea to kill Mr.

Wawia. [ 41 ] I do find that there is evidence upon which a reasonable jury properly instructed could, if the evidence were believed, return a guilty verdict to aggravated assault. There will be a committal for trial on the offence of aggravated assault, contrary to s. 268 (1) of the Criminal Code . Released: March 27, 2015 Signed: “Justice R. W. Lalande”