Indexed as:
R. v. Odulate

Between
Her Majesty the Queen, applicant, and
Adewumi Odulate, Olayinka Odulate and Andrew Brady

[2001] O.J. No. 4029
Court File No. 00-PR-000893

Ontario Superior Court of Justice
A. Campbell J.

Heard: October, 2001.
Judgment: October 17, 2001.
(110 paras.)

       Criminal law — Offences against person and reputation — Attempted murder — Assaults — Aggravated assault — Assault with a weapon — Offences against public order — Weapons — Possession — Evidence and witnesses — Witnesses — Credibility.

       Trial of the accused Adewumi Odulate, Olayinka Odulate and Andrew Brady for attempted murder, aggravated assault, assault and possession of a knife to commit an indictable offence. Adewumi was known as Tucks and Olayinka went by the name Abbey. The victim was an individual named Greene.  The accused attacked Greene in a subway station.  The Crown claimed that Tucks and Abbey pulled knives.  Greene and Tucks fought on the platform. Tucks stabbed Greene in the stomach with a knife. They fell onto the tracks and continued to fight.  The three accused continued the attack on the tracks. Greene's wounds were life threatening. The knife was never recovered.  A bystander who rescued Greene did not see the knife.  It was seen by another bystander.  The evidence was very confused because the fight happened very quickly.  Greene was able to precisely reconstruct the events.  Tucks claimed he did not stab Greene.  He had a significant criminal record that for offences that involved dishonesty, open disregard of the law and court process.

       HELD:  Tucks was found not guilty of attempted murder.  He was convicted of aggravated assault.  The charges of use of a knife and possession of a knife were stayed.  Abbey and Brady were only convicted of assault.  Greene and Tucks were not credible witnesses.  Greene's recall was too precise and his testimony was implausible.  Tucks intentionally stabbed Greene in the stomach during the fight.  The court had a reasonable doubt whether Tucks intended to kill Greene.  The fact that this wound was life threatening did not establish attempted murder.  The evidence only established that the stabbing was an impulsive action during a heated fight.  Once Greene was on the tracks the evidence only showed that the three accused assaulted Greene on the tracks through kicking, punching and stomping.  There was no evidence that Abbey and Brady possessed or used knives.

Statutes, Regulations and Rules Cited:

Criminal Code, s. 265(1).

Counsel:

M. Rogers, for the Crown.
E. Sapiano, for Adewumi Odulate.
L. O'Connor, for Olayinka Odulate.
D. Usher, for Andrew Brady.

       A. CAMPBELL J.:—

The Charges

 1      The three accused Adewumi Odulate, Olayinka Odulate and Andrew Brady stand charged that they:

1.

On or about the 24th day of July in the year 1999, at the City of Toronto, in the Toronto Region, did attempt to murder Sheldon Green by stabbing him, contrary to the Criminal Code.

2.

On or about the 24th day of July in the year 1999, at the City of Toronto, in the Toronto Region, did commit an aggravated assault on Sheldon Green by wounding him, contrary to the Criminal Code.

3.

On or about the 24th day of July in the year 1999, at the City of Toronto, in the Toronto Region, did commit an assault on Sheldon Green while using a weapon, to wit:  a knife, contrary to the Criminal Code.

4.

On or about the 24th day of July in the year 1999, at the City of Toronto, in the Toronto Region, did have in their possession a weapon, to wit:  a knife for the purpose of committing an indictable offence, contrary to the Criminal Code.

       Adewumi Odulate is often described by his nickname, Tucks or Tooks.

       Olayinka Odulate is often described by his nickname, Abbey.

       On these charges the defendants re-elected trial by judge alone.

The Allegation

 2      The Crown alleges that the three accused confronted Sheldon Greene in the Eaton Centre about 6:40 p.m. on Saturday July 24 and an hour or so later attacked him, in concert, in Bloor Yonge Subway station.  The Crown says that Tucks and Abbey pulled knives, that Greene and Tucks fought on the platform, Tucks stabbed Greene in the stomach with a knife, Greene and Tucks fell onto the tracks and continued to fight, Tucks and Abbey jumped down onto the tracks and all three accused attacked Greene.

 3      Greene was stabbed in the abdomen.  The wound was life-threatening.  It went completely through his stomach, in the front and out the back, narrowly missing his aorta.  The wound required emergency surgery and a week in hospital. Greene was also cut on his back between the right shoulder blade and the spine, on the right triceps, and below his left ear towards the neck.  He was bitten on the back.

 4      The knife, seen lying on the tracks at one point, was never recovered.

The Defence

 5      All three accused testified that there was a fight in the subway.  They all denied that any of them used knives or had knives or saw knives in the possession of any other accused.  Each accused denied stabbing Greene.

The Issues

 6      The issues are:

       Who stabbed Greene with what intent?

       Who had a knife?

Who knew about the knife or knives and participated directly or indirectly in the stabbing?

Non-Issues

 7      Identity is not in issue.  Self defence is not in issue.

Evidentiary Rulings

 8      Three statements by Tucks after his arrest were ruled admissible.  Evidence about a previous court case involving some of the witnesses and their families was ruled inadmissible.  A number of police occurrence reports, subpoenaed by the defence, were provided to the defence.

The Evidence in a Nutshell

 9      The witnesses involved in the fight were the victim Sheldon Greene, his then friend Warren Stoll, and the three accused.  As is typical in these cases, they all saw the fight differently.

 10      It is common ground that there was a confrontation on the subway platform between Greene and Brady who approached him and pulled a McDonald's straw from his mouth.  The fight then switched to Tucks and Brady as the main protagonists.  They punched and grappled on the platform then fell to the tracks.  Abbey and Brady jumped down to the tracks.  Warren Stoll attempted to help Greene by trying to fend off Abbey and Brady.

 11      An independent witness Tanya Lukezic saw one person being attacked by three or four people but saw no weapons.  Her brother Dan saw a group of guys arguing then fighting and ending up on the subway track where he saw a sharp object laying on the tracks, maybe like a pocket knife or something, but when he looked again it was gone.

 12      Sheldon Hyacinthe another independent bystander saw three men on the tracks beating up one guy, all of them kicking and punching and stomping the victim who was cowering defenceless.  Hyacinthe, a man as powerful as he is brave, jumped down, broke up the fight, rescued Greene and carried him up to the street.

 13      Most witnesses agree that for the most part the fight, until just before the end, was one on one, face to face, between Greene and Tucks with intervention from time to time by others.

 14      The only person who testified that he saw a knife during the fight was Greene.  He said Tucks and Abbey both pulled knives at the beginning and Tucks stabbed him in the stomach on the platform.  Greene said the knife lay on the tracks between him and Tucks after they fell off the platform. Warren Stoll, who was very close to the action, saw no knife. Tanya Lukezic did not see a knife but Dan Lukezic thought he saw one lying on the tracks briefly.  Hyacinthe saw no knife. All accused denied seeing or using or having a knife.

The Injuries

 15      Greene was taken immediately by ambulance to St. Michael's hospital where an emergency surgeon operated upon his abdomen.

 16      He had a penetrating stab wound to his abdomen two inches across that lacerated the anterior and posterior portions of his stomach.  The wound stopped within a few millimetres of the aorta artery.

 17      Counsel agree that with this kind of penetrating wound to the stomach no accurate determination can be made as to the actual depth of penetration of the instrument that caused the wound.

 18      Greene had a laceration underneath his left ear towards the neck 2-cm in length.

 19      Greene had a laceration on the back of his right arm to the triceps two inches across.

 20      Greene had a laceration to his back between the left shoulder blade and the spine.

 21      Greene had a bite mark on his back.

 22      Greene had a superficial scratch to the left chest measuring 2 to 3 cm across.

 23      Dr. Burstein the treating physician said that Greene's injuries were very serious and life-threatening.  If left untreated the chances were very close to 100%, well over 90%, that they would be fatal.

 24      The injury to the stomach, piercing in the front and out the back, was particularly serious.  It caused acids to leak into his bloodstream which leakage if untreated could lead to a septic death.  If the object that pierced the front and back of the stomach had gone even a few millimetres further it would have cut the aorta which would cause death by bleeding without immediate medical treatment.

 25      The Crown and accused agreed:

If your aorta is cut your hope of survival is very low unless you are in the hospital parking lot.  Had Mr. Greene's aorta been cut, it would be very difficult for him not to bleed to death before getting to a hospital.

 26      Immediately after the fight some people noticed blood all over Sheldon Greene and some did not.

Height and Weight

 27      This is a convenient point to note the approximate height and weight of the protagonists:

Name Height Weight Age at Trial

Sheldon Greene 5'8" 150 - 155 lb. 22

Warren Stoll 5'10" or 167 lb. 22
5'11"

Tucks 5'7" 155 lb. 24
Abbey 5'7" 145 lb. 21

Andrew Brady 5'8 1/2" 240 lb. 20

Sheldon Hyacinthe 6'4 1/2" 255 lb.

Credibility: Greene

 28      Greene although an obviously partisan witness was careful, articulate, poised and very precise.  He was so precise that he gave a blow by blow, second by second, step by step, swing by swing, freeze-frame choreography of each move by each person during the fight.  His absolute precision, about a fleeting whirlwind incident that took a few seconds, strains belief.

 29      There were significant inconsistencies between his previous police statements, his preliminary inquiry evidence, and his evidence at trial.  These inconsistencies involved important matters such as whether Tucks pulled out the knife before or during the fight, when Greene first felt the stab wound, and whether he considered Stoll a coward, whether he could describe Abbey's knife, whether he could make out Brady's specific threats.  He obviously embellished some of his evidence.  It is implausible that he could have held off two knife-wielding Odulate brothers and the larger Mr. Brady single-handedly with no help from Stoll.  As Stoll said:

I don't want to bad- talk anybody in court but he thought he was superman, he thought he did it all himself ....

 30      Whatever the reason for these difficulties, it is only safe to rely on his evidence where it is independently confirmed.

 31      The parts of his evidence that are independently confirmed are these:

The three accused attacked him and assaulted and fought with him

The main protagonist against him was Tucks

Greene for the most part was engaged directly one-on-one with Tucks who was in front of him at all material times except when they were both momentarily on the ground on the tracks before the others jumped down

One of the assailants used a knife

Greene was stabbed in the stomach and cut on the neck, back, and triceps

 32      The main questions arising from his evidence are:

       Did Tucks stab Greene

       Did Abbey pull out a knife?

Credibility: Warren Stoll

 33      Warren Stoll was a friend of Greene at the time of the stabbing.  By the time of trial they had fallen out because Greene accused Stoll of cowardice in failing to come to his aid, a charge hotly denied by Stoll.  Whatever the misunderstanding that led to his arrest during the trial on a material witness warrant, Stoll was not an enthusiastic Crown witness.

 34      Stoll was a bit of an actor and his testimony smacked of performance art.  He recalled little and his alleged lack of recollection appeared at times to be contrived.  He seemed at times reluctant to say things that would hurt the defendants and eager to make admissions that would make them look better.  Although his obviously reluctant memory was refreshed on a number of occasions from previous statements the Crown did not seek leave to cross examine him as an adverse witness.

 35      Stoll testified to the same effect as Greene with these major differences:

Stoll said he fought strongly by holding off Abbey and Brady while Greene fought one on one with Tucks.

Stoll did not in court, even after refreshing his memory with prior statements, recall that Brady in the Eaton Centre told Greene "You're a goon, you're dead".

Stoll denied that Tucks and Abbey pulled out knives at the beginning of the fight

Stoll never saw a knife and was particularly clear that Abbey, with whom Stoll was fighting most of the time, did not have a knife

 36      I accept the main outlines of Stoll's evidence about the struggle on the platform between Greene and Tucks and the later fight on the tracks.

The Evidence of Adewumi "Tucks" Odulate

 37      "Tucks" testified that the incident at the Eaton centre was very minor, he never saw or heard Brady threaten Greene, the Odulate group did not follow Greene to Bloor but met him there by coincidence, that words were exchanged on the subway platform and there was "attitude", that he and Greene who had some old history of conflict spoke briefly and agreed to fight one on one, that he Tucks threw the first punch, Greene punched back, they grappled on the platform and fell onto the tracks, he dislocated his shoulder and couldn't get up at first then he felt a punch; people jumped down on the tracks, and the next thing he knew Brady helped him on the platform and they left.

 38      Tucks said he never had a knife, there was no knife there that day, there was no knife at all, none of the three had a knife.  He said he was guilty of assault with his fists but not guilty of stabbing.

 39      Tucks said the fight between him and Greene was at all times one on one:

       I made it clear it would be one on one

       ....

       I stated this will be one on one

Q.

You told Sheldon it's one on one?

A.

It's going to be one on one, yeah

       ...

       I was fighting alone, no one helped me fight

       ....

We fought one on one, like I say and ended up on the tracks, it should have been on an open field, better than the train tracks

 40      On this issue he agreed with the evidence of most other witnesses that for the most part the fight was one on one and face to face between him and Greene, with some attempts by others to intervene from time to time.

 41      He disagreed with the evidence of Hyacinthe that he and his brother and cousin were all coming at Greene on the tracks.

 42      He said he saw blood on Greene's shirt, saw blood all over, bloodstains everywhere, upper right chest over to upper left chest then down to the right side, and blood on his lower left side, too.  He recalled seeing blood everywhere on Greene.

 43      He said he felt that he lost the fight with Greene and did not know until later that Greene was seriously injured.

Credibility: Tucks

 44      Tucks was not a credible witness.  It is implausible that he could fight continuously one on one and face to face with Greene on the platform then on the tracks and not see him get stabbed in the stomach.  It is implausible that he should be so close to Greene, facing him and wrestling with him one on one without seeing the infliction of the stab wound to the stomach and without ever seeing a knife.

 45      Greene's story, that he took over from Brady and drove the fight with Greene because of some years-old teenaged bullying or incident six years before, is not plausible.  This became very apparent when Mr. O'Connor pressed him on cross examination on his story that he started a fight on a crowded subway platform because of a memory of a six year old incident with Greene.  Tucks could not remember what kind of memory it was:

A.

I don't know what kind.  It was something I don't know what happened my mind just went like that

 46      It became clear during this cross-examination that Tucks was simply making up his story as he went along. When Mr. O'Connor finally suggested the story made no sense, Tucks could only reply:

       A.  No, it doesn't make no sense.

 47      This was characteristic of much of Tucks' testimony, including in particular his unsatisfactory evidence as to who was on the tracks and his lies to the police about the Eaton Centre incident.

 48      His credibility as a witness in court was adversely affected by his significant record of offenses involving dishonesty, open disregard for the law, and criminal disregard for the process of the court.

1995 December  Assault One day plus time served
Probation one year

1996 February Break, enter Suspended sentence
& theft Probation three years
Community service 360
hours

1996 July Fail to comply One day + 36 days time
with bail served
recognizance

1996 November Traffick in 11 months and fifteen days
narcotic Plus time served

2000 July Obstruct One day + 64 days time
police served
Two years probation

2000 July Prohibited 30 days
weapon

Possess $50 fine
marijuana

 49      He acknowledged that he carried a weapon contrary to his probation order, but insisted that he was not disobeying the court order by carrying the weapon.  He insisted that he was obeying the court order and obeying his probation order by carrying the knife despite the court order not to possess any weapon.  His understanding of his obligation to the court, and his appreciation of the difference between truth and falsehood was seriously strained by his cross examination on this point.

 50      For all these reasons set out above I reject and disbelieve the evidence of Tucks when it conflicts with the evidence of any credible witness and when it conflicts with objectively proven facts such as the fact that Greene was stabbed with a knife.

Credibility: Abbey and Brady

 51      Neither Abbey nor Brady presented as good witnesses but nothing in their evidence requires its outright rejection except Brady's weak attempt to say he was not fighting on the track but only trying to break up the fight.

The Lukezics

 52      Dan Lukezic, a subway bystander, saw "two groups of guys" arguing and yelling obscenities, then fighting on the platform then very quickly jumping or rolling onto the tracks. Two or three went in first, then one more jumped on top of the group or on top of one of them.  Then someone else jumped in to stop the fight.

 53      When one of the men walked past on the way out Lukezic saw an incision in that man's mid section dripping blood from a good-sized cut and blood on his clothing. Lukezic saw no one using a weapon but he might have seen something laying down in the tracks after the fight and it looked like a sharp object; he would have told the officer it was a knife, like a pocket knife or something on the track but someone picked it up, he presumed.

 54      Tanya Lukezic testified to the same effect.  It looked to her like one person was being attacked and three or four others were the instigators.  The victim had blood on his tee shirt and she thought on his neck and she could see something hanging out that looked like intestine.  She thought the injured person is the one she earlier thought was the victim who was being attacked but she could not say for sure. She saw no weapons.

Sheldon Hyacinthe

 55      Becherue Sheldon Hyacinthe, a courageous bystander, jumped onto the tracks to rescue Sheldon Greene from the three accused.  Hyacinthe is almost 6 foot five inches and weighed about 255 pounds.  Attracted by screams, he ran along the platform and saw "three guys beating up on one guy on the train tracks".  The victim was defenceless when Hyacinthe got there, cowering and being beaten upon.

 56      It is obvious from all the uncontradicted evidence that the three attackers were the three accused.

 57      The three attackers were "kicking and punching and stomping on the guy".  All three were "beating up on this one guy".  Hyacinthe saw no weapons and saw nothing in their hands.  He could not describe the individual actions of the three attackers; they were all doing the same thing, kicking and punching and stomping the victim.

 58      Hyacinthe pulled the victim away and tried to help him up to the platform but the attackers got on the platform and were pushing and kicking him back down with their feet.

 59      Hyacinthe pulled Greene away again and noticed that he had a laceration to his abdomen.  It was gruesome; his intestines were popping out and he could see the food he had eaten.  Hyacinthe carried him upstairs and outside and waited for the ambulance.

 60      Hyacinthe agreed there were a number of protruding things around the track like bolts and steel.  He did not recall seeing any litter on the track.

 61      Hyacinthe was cross-examined on a photocopy of a police notebook from which he had refreshed his memory, Constable Adams' notebook.  The notebook referred to five black males.  Hyacinthe was sure he had referred only to four black males and thought the fifth reference may have been to himself.  In any event the maker of the note, Constable Adams, was not called by the defence to contradict Hyacinthe and there is no evidence that he said anything different to the police officer than he said to the court.

 62      Hyacinthe did not see any black male trying to help Greene; if someone was there, he was maybe at the back where Hyacinthe would not have a clear view of him.

 63      Hyacinthe was an independent and honest witness with an excellent opportunity to observe.  I believe his evidence.

Finding: The Eaton Centre Incident

 64      The surveillance tape is not particularly helpful except to show that Tucks lied to the police about the incident in his post-arrest statement.  The evidence of the witnesses is full of conflict.  The only safe finding is that there was some momentary encounter at the jewelry booth between the Greene group and the Odulate group, an encounter primarily, if not solely, between Brady and Greene which involved staring, tension, hostility, and some exchange of words.  It is far from clear whether Brady started it, as Greene says, or whether Greene started it, as Brady says.  It is also unclear whether there was a death threat or any specific words of threat by Brady, as alleged by Greene and denied by Brady.  All that can be found is that there was a hostile confrontation between Brady and Greene that engaged the attention of Greene, Stoll, and the three accused.

Finding: Motive, Animus and Prior Knowledge

 65      There is no evidence that any protagonist had taken alcohol or drugs.  There is no evidence that this was a drug related incident.

 66      Greene said he knew Tucks and Abbey by their nicknames from some association years before at a neighbourhood recreation centre but there was no prior animus between him and Tucks or Abbey.

 67      Greene said that he never met Brady before and had no problems with him.  Brady says that he did not know Greene and could not explain why Greene would stare at him aggressively in the Eaton centre.

 68      Tucks as noted above, said that he had a teen-aged problem with Greene some years earlier.  He first said that he had no real great problem with Greene personally and then, as noted above, claimed that it was some memory that made him square off and start the fight with Greene.

 69      Abbey said he did not realize until these court proceedings that there was a connection between Sheldon Greene and his brother, who was known to Abbey from a previous occasion.  Abbey's testimony on this point is largely supported by Greene who said that he did not even know Brady and that there was no prior animus between him and Abbey or Tucks.

 70      The Crown submits that a comment made to Stoll by Abbey or Brady after the fight to the effect that "Warren, your friend deserves it, he's got a big mouth" suggests some background hostility.

 71      Because of that remark, and because of the unexplained level of hostility at the Eaton Centre and at the subway, it seems unlikely that the court heard from anyone the whole story of any animus, knowledge, and mutual history between the Greene group and the Odulate group.

 72      However one may speculate, there is no evidence of any pre-existing motive or animus to explain what happened at the Eaton Centre or at the subway.  Although the lack of any plausible explanation for the hostility requires that the Crown evidence be scrutinized with some care, the absence of such evidence does not support any inference in favour of or against the Crown or the defence.

Finding: Propensity and Disposition

 73      Mr. O'Connor says the evidence suggests there was only one knife at the subway and argues that:

The fact that Tucks carried a knife when arrested days later shows a disposition or propensity to carry a knife

That disposition or propensity, on the basis of cases like R. v. McMillan (1975), 23 C.C.C. (2d) 160, makes it more likely that the subway knife was wielded by Tucks and not by Abbey

 74      The fact that Tucks carried a knife when arrested days later is no evidence of disposition or propensity to carry a knife and does not constitute evidence in favour of Abbey.

 75      The fact that Tucks had a knife when arrested is of course no evidence against him on the charges before the court.

Findings: Premeditation

 76      The Crown says that the Odulate group followed Greene and Stoll to the Bloor subway station in order to continue the hostilities and settle the score.  The Crown says that the attack on Greene at Bloor Street was premeditated.

 77      This theory is as plausible as the defence evidence of coincidental meeting, but it seems unlikely that anyone would choose a crowded subway platform as the best place for a premeditated murderous knife attack.

 78      There is some logic in Tucks evidence:

We fought one on one like I say and ended on the tracks, it should have been on an open field, better than train tracks;

 79      It is unnecessary to make a finding of fact except to say that I am not satisfied beyond a reasonable doubt that there was any element of planning or premeditation in the subway attack.

 80      The evidence is equally consistent with a macho swaggering encounter that started as a consensual fight and then spiralled out of control and went badly wrong.

Findings: Knife

 81      No one but Greene said they saw a knife during the fight.  Greene said he saw it on the tracks between him and Tucks just after they fell to the tracks.  Dan Lukezic corroborates Greene's evidence that there was a knife on the tracks after the two protagonists fell there.

 82      There is no evidence of any object around the subway, other than the knife, which could have caused the stomach incision and the other lacerations.  It is clear from the stab wound that Greene was stabbed with a knife.

 83      I find as a fact that Greene was stabbed in the stomach with a knife and that the cuts on his right upper back, right triceps, and left neck were caused by a knife.

 84      I find as a fact that the knife was on the subway tracks as described by Greene and corroborated by Dan Lukezic, despite the vagueness of some of his evidence on this point.

 85      I doubt that both Odulate brothers pulled out a knife at the beginning of the fight on the platform as Greene testified.  There seemed to be a certain code about one on one fight and it is implausible that both brothers at the outset of a basically consensual hand to hand struggle would present knives.  There was no reason for anyone to pull a knife before Tucks started to lose the fight.

 86      Although it may be that Abbey and/or Brady had a knife and used it, the only certain thing is that Tucks used the knife to stab Greene in the stomach.  The one common theme in all the conflicting evidence is that Tucks and Greene were facing each other, were closest to each other, were the principal protagonists in the fight.  Because of the way they paired off, both on the platform and on the tracks, the only person with opportunity to inflict the frontal stomach wound was Tucks.  It is not reasonable on this evidence to find that anyone but Tucks was in a position either on the platform or on the tracks to stab Greene frontally in the stomach.

 87      I reject and disbelieve Tuck's evidence as to the stabbing and I am satisfied beyond a reasonable doubt on all the evidence that Tucks stabbed Greene in the stomach with a knife.

 88      As for Abbey, it seems most likely that he did not display or use a knife.  The best evidence on this point is from Stoll who was fighting for the most part with Abbey as well as Brady.  He could see and feel Abbey's hands as they punched, pushed, grappled, grabbed, and repelled blows and slapped away grasping hands.  He said Abbey did not have a knife in his hand at any time.  Although Stoll had a motive for exaggerating his role in the fight, he had no motive to deny, falsely, that Abbey had a knife.  This in itself is sufficient to raise a reasonable doubt and to acquit Abbey of any charge that has as an essential element the use of a knife by him.

 89      As for Brady, no one said he had a knife and in the absence of more compelling evidence it is not safe to find that he knew Tucks had a knife.

 90      I have a reasonable doubt whether Abbey or Brady knew that Tucks had a knife or used a knife during the fight. I have a reasonable doubt whether Abbey or Brady formed with Tucks a common intention to wound Greene and a reasonable doubt whether they knowingly aided or abetted him in wounding Greene.

 91      It follows that Abbey and Brady should be acquitted of attempted murder, aggravated assault, assault with a weapon and possession of a knife.

Finding: Common Assault

 92      The evidence is overwhelming that both Abbey and Brady participated in an assault on Greene.  On the evidence of Hyacinthe alone, which I accept and believe, it is obvious that all three accused, at least on the tracks attacked Greene and beat him up jointly by kicking and punching and stomping him.  Despite Brady's weak and unbelievable denials that he was doing anything more than trying to break up the fight, it is clear beyond any doubt, on the evidence of Hyacinthe alone, that Brady and the two other accused jointly attacked and assaulted Greene on the tracks.

 93      It is also clear on all the evidence including Brady's that he walked up to Greene and pulled the McDonald's straw from his mouth in an angry, physically threatening, and provocative manner.  He said Greene's attitude as he leaned against the wall, looked ignorant and it:

"... pissed me off so I pulled the straw out of his mouth and he replied what the fuck are you doing?"

 94      The Crown suggested to Brady that he pulled the straw out of Greene's mouth in order to start a fight:

Q.

You were trying to start a fight?

A.

Yes

 95      This application of force is an assault within the meaning of s. 265(1) of the Criminal Code.

 96      Although Brady and Abbey are guilty of assault, it is not an assault causing bodily harm.  There is a reasonable doubt whether they inflicted the stab wounds.  The only other injury is the scratch and bite mark, cannot be brought home to either of them beyond a reasonable doubt either individually or as parties.

 97      For these reasons Abbey and Brady are guilty of common assault.

Finding: Murderous Intent

 98      The intent required for attempted murder is a very high level of intent, higher than the degree of intent required for actual murder.

 99      Although the wound was life threatening because of the danger of septic death and the proximity to the aorta, it takes more than a life threatening wound to establish attempted murder.  To paraphrase what was said in R. v. Rajanayagam, [2001] O.J. No. 393, February 5, 2001:

It is not enough, for attempted murder, that the stabber intends to cause bodily harm that he knows is likely to cause death and is reckless whether death ensues or not. Attempted murder now requires a specific intent to kill. R. v. Ancio (1984), 10 C.C.C. (3d) 385 (S.C.C.); R. v. Logan (1990), 58 C.C.C. (3d) 391 (S.C.C.)

The mere fact that A stabs and wounds V with life threatening results is not, alone, any evidence of intent to kill.

For attempted murder there must be some additional evidence from which the trier of fact may infer that the stabber intended something more than the actual consequence of the wound.

Some stab wounds, by themselves alone, provide such evidence.  Other stab wounds do not.  It is impossible to draw a bright line between the two.  It is entirely a question of degree having regard to all the circumstances including the nature of the wound, the vital nature of the area wounded, the nature of the combat, the evidence or lack of evidence of premeditation or spontaneity or threat or plan, the presence or absence of evidence of defensive motivation, the persistence with which the stabbing is repeated or not, whether or not intent to kill has been established.

 100      On this evidence, having rejected the Crown theory of a premeditated following for the purpose of murderous attack, there is nothing left other than a single impulsive stab to the abdomen during the course of a heated fight, probably when the accused started to get the worst of it.

 101      Had Mr. Greene died, the intent to cause bodily harm of the nature inflicted would supply the intent for murder.  Having regard to Mr. Greene's lucky survival, however, the Crown has not succeeded in proving attempted murder.

 102      I have a reasonable doubt whether Tucks intended to kill Greene.

Approach to the Findings

 103      Every essential element of every charge against each accused must be proven beyond a reasonable doubt.

 104      I disbelieve the evidence of Tucks in relation to the stabbing.  The evidence satisfies me beyond a reasonable doubt that he stabbed Greene in the stomach.

 105      Although I disbelieve many aspects of the evidence of Abbey and Brady it leaves me, together with all the other evidence, with a reasonable doubt whether they knew about the knife or participated directly or indirectly in the stabbing.  As for the assault, I disbelieve any evidence of Abbey and Tucks that might suggest they are not guilty of assault.  The evidence satisfies me beyond a reasonable doubt that Abbey and Brady assaulted Greene at least in the manner described by Hyacinthe.  See R. v. W. (D.) (1991), 63 C.C.C. (3d) 397 S.C.C. per Cory J.

Summary of Findings

 106      On all the evidence, I am satisfied beyond a reasonable doubt that:

1.

Adewumi "Tucks" Odulate stabbed Greene intentionally in the stomach during the fight.

2.

All three accused attacked and assaulted Greene on the tracks by kicking, punching, and stomping him.

 107      On all the evidence, I am left with a reasonable doubt as to whether:

1.

Adewumi "Tucks" Odulate intended to kill Greene

2.

Olayinka "Abbey" Odulate and/or Andrew Brady had or used a knife

3.

Olayinka "Abbey" Odulate and/or Andrew Brady knew that Adewumi "Tucks" Odulate had a knife with him or that he intended to stab Greene

4.

Olayinka "Abbey" Odulate and/or Andrew Brady acted in concert with Tucks in respect of the stabbing

Verdicts

 108      For these reasons, I find Adewumi "Tucks" Odulate

       Not guilty of attempted murder

       Guilty of aggravated assault

The charges of assault while using a knife and possession of a knife for the purpose of committing an indictable offence are stayed

 109      For these reasons, I find Olayinka "Abbey" Odulate

Not guilty of attempted murder

Not guilty of aggravated assault but guilty of the lesser included offence of common assault

Not guilty of assault while using a knife

Not guilty of possession of a knife for the purpose of committing an indictable offence

 110      For these reasons, I find Andrew Brady

Not guilty of attempted murder

Not guilty of aggravated assault but guilty of the lesser included offence of common assault

Not guilty of assault while using a knife

Not guilty of possession of a knife for the purpose of committing an Indictable offence

A. CAMPBELL J.

QL Update:  20011031
cp/d/qlrme/qldah