R v Cooke, 2024 MBPC 13

CITATION: R v Cooke , 2024 MBPC 13 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN His Majesty the King ) ) M. Hazelton for the Crown - and - ) ) Asham Joseph Cooke Accused ) ) Z. Jones for the Accused ) ) ) ) Judgment delivered: January 31, 2024 C.A. DEVINE, P.J. [ 1 ] The accused stabbed his 18-year-old friend multiple times because he thought his friend had taken his wallet. This occurred on August 15, 2022, in an apartment building in downtown Winnipeg where the two men lived. The wallet contained the accused’s rent money, and he was very upset about it being missing.

The victim survived the stabbings, but suffered from a collapsed right lung, a fractured rib, a fractured skull, approximately 10 stab wounds to the back of his neck and right shoulder, and multiple other lacerations from the stabbing to his hands and skull. The tip of the knife blade lodged in the left parietal bone in his skull and had to be surgically removed. [ 2 ] The accused stabbed the victim in his apartment and then chased him into the building’s hallway and down to the second floor, around the corner and down the stairs to the main floor where he fled to the apartment manager’s suite to get help.

The victim literally fell into the manager’s suite when she opened the door to the banging and saw him bleeding profusely, with the accused standing behind him stabbing him. The victim was kept in the apartment and 911 was called. The accused fled. The victim was taken to the hospital. [ 3 ] The police arrived shortly after, following the trail of blood from the accused’s third-floor apartment to the manager’s suite. The accused eventually ended up at the St. Boniface Hospital, where police arrested him.

His clothing was covered in the victim’s blood, and he still had the knife he used to stab the victim – with the broken tip and covered in the victim’s blood. [ 4 ] His wallet was in his pocket. [ 5 ] Police obtained a warrant to search the accused’s apartment as well. They found a .30-30 lever-action rifle on his bed, a non- restricted firearm, and $1,550 in $20 bills (and one $10 bill) on a shelf in the bedroom closet. The accused did not have a valid licence to possess a firearm. [ 6 ] The accused provided a statement to the police in the ensuing hours.

I was satisfied beyond a reasonable doubt that his statement to the police was voluntary. In his statement, he confessed to the stabbing – volunteering the information and providing significant detail. [ 7 ] The accused was charged with attempt murder and aggravated assault, as well as unauthorized possession of the firearm, possessing a weapon for a dangerous purpose and unsafe storage of the firearm. [ 8 ] None of the facts are at issue in this case.

An agreed statement of facts was filed; the accused provided a statement in which he admitted the actus reus of the stabbing; there is video surveillance from the apartment building’s common areas showing some of the stabbing and blood trail; and there were scene photos of the blood, the knife, the firearm, and the tip of the knife blade extracted from the victim’s skull. [ 9 ] The only issue in this case is whether the accused possessed the mens rea at the time of the stabbing for it to constitute attempt murder.

All the elements of the other offences are proven beyond a reasonable doubt by the evidence in the case and are not challenged. ISSUE: MENS REA FOR ATTEMPT MURDER

[10] An “attempt” is defined in s. 24(1) of the Criminal Code as follows: Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guiltyof an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence. [11] In this case, the attempted offence is murder which is defined as follows in s. 229 of the Criminal Code: Culpable homicide is murder (

a) where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not. [12] The Supreme Court settled the legal controversy about the mens rea for attempt murder in the 1984 decision of R v Ancio, (SCC), [1984] 1 SCR 225. The mens rea for attempt murder is an intent to kill.

That intent includes a belief by the accusedthat the victim’s death was a virtually certain consequence of his actions (see R v Boone, 2019 ONCA 652 at paras 59 - 62). [13] Absent an admission from the accused that they intended to kill the victim, the accused’s intent can be inferred from thecircumstances. In the case of a stabbing resulting in the charge of attempt murder, “the type of knife used, the nature and location of theinjuries, the nature and persistence of the attack and the presence or absence of premeditation” are all relevant considerations (R vBoodram, 2021 ONSC 2800 at para 34).

FACTS [14] The victim and the accused had been friends for a couple of months before this and lived in the same apartment building. Theyhung out daily. The accused told police that the victim was always fooling around and taking his things or pretending to, or asking if hecould have things and it was bothering the accused. He felt like he always had to watch the victim and tell him not to do this or that. Thevictim had in the past taken a tablet of the accused’s and had never returned it.

The accused described the victim as untrustworthy and askind of a “shady character”. [15] That night, the two were drinking in an apartment on the main floor of the building with a couple of other people and then wentup to the accused’s apartment on the third floor to get some money for beer. [16] Parenthetically, the accused was not so intoxicated that the intent to commit this offence, whether it was an attempt murder oraggravated assault, was precluded. He did not describe himself to the police as intoxicated; he told police he was feeling “pretty calm”and “mellow”.

He denied that he was stumbling around; he said he was able to move around properly. He initially told police he hadbetween one and four drinks of Hector’s Hard Iced Tea and later said he had maybe four or five. Video surveillance of him and thevictim walking to his apartment before the stabbing shows him to be walking in a normal, non-intoxicated manner. [17] The accused thought he had left his wallet in a particular drawer in his chest of drawers, and it was not there. He immediatelybelieved that the victim had taken it, and he asked the victim if he had it. The victim denied that he had it.

The accused did not believehim. After he asked a few times and the victim continued to deny it, he pulled a knife out of his pocket and started stabbing the victim inthe upper back and neck. He continued to stab the victim, all the time demanding the wallet. [18] The victim testified that he had given the knife to the accused for protection about one month earlier. The accused told policehe carries the knife for protection because he has been shot in the past.

Indeed, there were crutches in his apartment consistent with hisnarrative that he had surgery to both his tibia and fibula after the shooting. [19] The stabbing attack on the victim was repeated and protracted. [20] Video surveillance from the third-floor hallway, the second-floor hallway and then the main-floor hallway shows the victimtrying to get away from the accused. The accused is holding onto his shirt and arm with one hand and stabbing him – all overhandstrikes, with his left hand on the victim’s back, head and neck areas. He did not stop.

EVIDENCE AND ANALYSIS OF THE INTENT [21] The defence argues that the Crown has not proven beyond a reasonable doubt that the accused possessed the intent to commitan attempt murder. All the evidence of intent was circumstantial; there was no direct evidence by the accused as to his intent. TheCrown has invited the Court to infer from the circumstantial evidence that the accused intended to kill the victim.

The defence arguedthat, while the inference for attempt murder might be a reasonable one, it is not the sole reasonable inference; the intent to commitaggravated assault is also a reasonable inference, and therefore, the offence of attempt murder is not proven beyond a reasonable doubt. [22] The defence argued that the accused told the police numerous times that he just wanted his wallet back, and if the victim hadgiven him the wallet he would have stopped. The intent, she argued, was to get the wallet back, and to teach the victim a lesson.

Shealso pointed to the accused’s shock and remorse on learning the nature of the injuries to the victim, particularly the tip of the knifebreaking off in his skull. [23] The regret and remorse expressed in the accused’s police statement is not relevant to the intent at the time he was stabbing thevictim.

[ 24 ] Although I agree that the precipitating motivation for the stabbing was the missing wallet, getting the wallet back did not remain the intent. The precipitating reason for the stabbing cannot be conflated with the intent, which must be inferred from all the circumstances of the attack. [ 25 ] It is clear in his police statement that the accused was desperate to find his wallet because he had a lot of money in it – $3,400 apparently – and it was “his life”.

His comments about the need to get the wallet back, transitioning to his increasing anger and desire for payback are evidence of the mens rea of intent to kill. He stated in his police statement: “So I was not playing around. I needed it.” “Yeah, I snapped. . . My life was in my wallet, so now you’re going to pay” (referring to the victim).

These motivations, along with the nature of the attack, which I will consider further below, lead to an attempt murder, not an aggravated assault. [ 26 ] The nature of the knife, the force with which the accused stabbed the victim, the number of stab wounds, the repeated stabbing which did not end until the victim fell into the apartment manager’s suite, and the location of the stab wounds all lead inexorably to the conclusion that the accused intended the death of the victim. [ 27 ] The knife was described as a “Warhol” knife in Cooke’s police statement, with a wide, curved blade over three inches long.

The lower part of the blade is jagged-toothed, and the tip of the blade is smooth. It is a menacing looking knife. The accused told police, “The top was you know pointy like a regular knife, but . . . going downward in the front it was like an alligator’s mouth if that makes sense.” The knife was sufficiently long and wide, and jagged enough to kill. One of the victim’s lungs was collapsed, a rib was broken, his skull was fractured, and the tip of the knife blade was lodged in his skull. [ 28 ] The stabbings were not just pokes to threaten the victim.

They were forceful, and penetrated the victim sufficiently to fracture bones, cut a lung, lodge the tip of the knife in his head and cause significant blood loss. [ 29 ] The accused was wielding the knife and stabbing the victim with sufficient ferocity that the tip of the blade broke and lodged in the victim’s skull.

And with sufficient ferocity that one of the victim’s ribs was broken and his skull was fractured. [ 30 ] The accused was not just “trailing” him, as he corrected police in his statement, “I was going at him.” He told police that the victim was trying to stop him, at first denying that he had the wallet and then saying he was sorry “after I got the best of him”. That did not stop the accused, however. He told police, “He tried to stop me. That’s when I got angrier.” [ 31 ] The accused did not stop stabbing the victim until the apartment manager opened her door and the victim fell into her apartment.

She could see the accused still stabbing the victim through the window in her door. In describing arriving at the apartment manager’s door, the accused told police, “And we just make it to the first floor where Dawn [the apartment manager] is, and he bangs on the door and I’m trying to fight for my life [referring to his presumed missing wallet].

He’s trying to save his life.” [ 32 ] He described the stabbing to police as being “caught in the heat of the moment”. [ 33 ] According to the agreed statement of facts, there were 10 stab wounds across the back of the neck and right shoulder, a laceration to the lower lobe of the right lung, the right lung was collapsed, a fractured rib on the right side, lacerations to the hands, lacerations to the skull, a fractured right frontal bone of the skull and the tip of the knife blade in the left parietal bone of the skull that had to be surgically removed. [ 34 ] There were many opportunities for the accused to stop, to pause, to think about what he was doing.

He was able to recount to the police where he first stabbed the victim, the words of the victim pleading with him to stop, the amount of blood loss, that he used all overhand strikes, and how the victim was trying to save his life. But he did not stop. He kept stabbing and stabbing and stabbing the victim. One of the segments of video, which is very near the end of the attack, on the main floor of the apartment building, where the victim was fleeing to the apartment manager’s suite, shows multiple stabbings of the victim, with the accused trying to hold the victim.

He is primarily stabbing the victim’s head, although some of the blows might have landed on his neck and shoulders. [ 35 ] The police asked him more than once if he was trying to kill the victim. Not once did he answer “no”. His answers were equivocal: “I was just thinking about my money.” And, “I don’t really know if I was trying to kill him. I knew I was just pissed off at that point.” He said, “Yeah, I snapped. I was like, ‘Okay. Well my life was in my wallet, so now you’re going to pay.’” [ 36 ] He told police he discovered the wallet was in his pocket when he was already in Osborne Village.

His response was to blame the victim: “That’s what you get for playing so much. Don’t do that to people. But I need to be more responsible. But you need to not do stuff like that” (referring to the victim). [ 37 ] I find that the only reasonable inference to be drawn from all the evidence in this case is that the intent was to kill the victim.

The stabbing was targeted, repeated, deliberate and relentless, born out of the accused’s fear that his money was missing, and that the victim took it and now had to pay – with his life. [ 38 ] I have come to this conclusion for the following reasons. [ 39 ] The stabbing was repeated, protracted, forceful and to the victim’s head, back and neck. It is remarkable that the victim survived. [ 40 ] The accused knew he was strong – he told police that in his statement. He used all overhand stabbing. [ 41 ] He told the police he first stabbed the victim in his back or head, while gesturing to the back of his neck.

That stab alone could have resulted in death. He stabbed the victim in the proximity of many arteries in his neck, his internal organs and his brain. The knife blade was eight centimeters long. The victim suffered a skull fracture and rib fracture from the blade, as well as a cut to his lung and a collapsed lung. [ 42 ] As the stabbing continued – to the victim’s neck, and torso where his vital organs are located – the accused knew that death

was virtually a certainty. This is because of the number of stab wounds alone. There was significant blood loss. Blood drops pooled in several places in the apartment. Both the victim’s clothing and the accused’s clothing were completely blood-soaked. [ 43 ] I am satisfied beyond a reasonable doubt that the accused intended to kill the victim. DECISION [ 44 ] Asham Joseph Cooke is convicted of attempt murder, possession of a non-restricted firearm (s. 92), possession of a weapon (s. 88) and unsafe storage of a firearm. The charge of aggravated assault is stayed by operation of Kienapple . Original signed by Judge Devine CYNTHIA A. DEVINE, P.J.