R. v. Raymond LeRoy

R. v. Raymond LeRoy Court Supreme Court Date 2022-09-16 Citation 2022 NSSC 272 Docket Syd. No. 503526 Judge/Registrar/Adjudicator Murray, Patrick J. (Honourable Justice) Document Type Decision Decision Content Supreme Court of Nova Scotia Citation: R. v. Raymond LeRoy, 2022 NSSC 272 Date: 20220916 Docket: Syd. No. 503526 Registry: Sydney Between: His Majesty the King v. Raymond Shawn Daniel LeRoy lIbrary Heading Judge: The Honourable Justice Patrick J. Murray Heard: May 30, 31, June 1, 2, 3, 2022 in Sydney, Nova Scotia Oral Decision: September 16, 2022 Subject: Criminal Law; s. 239(1)(a) Attempted Murder; s. 268(1) Aggravated Assault; 12 count indictment Facts: [1] The Defendant was charged with two counts of attempted murder, three counts of aggravated assault, and further, property and firearm related offences, and failing to comply offences. Issue: [2] The innocence or guilt of the Accused. Result: [3] The Defendant was acquitted on the charges of attempted murder. The Court was not satisfied the Crown had established the requisite intent beyond a reasonable doubt. [4] The Defendant was found guilty on two charges of aggravated assault. [5] As to remaining charges the Defendant was found guilty on three additional charges an acquitted on five additional charges. Caselaw: R v. Mitton, 2021 NSSC 325; R v. Baxter, 2019 NSSC 274; R v. Boone, 2019 ONCA 652; R v. Rajanayagam, [2001] O.J. No. 393; R v. Naname, 2017 SKCA 22; R v. LeFleur, [2000] O.J. no. 3961 (Ont. S.C.J.); R v. Nurse, (1993), 83 C.C.C. (3d) 520; R v. Pootlass, 2019 BCCA 96; R v. Godin, 1994 CanLII 97 (S.C.C.); and R v. Williams, (2004)184 C.C.C. (3d) 193 (N.L.C.A.) THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R. v. Raymond LeRoy, 2022 NSSC 272 Date: 20220916 Docket: Syd. No. 503526 Registry: Sydney Between: His Majesty the King v. Raymond Shawn Daniel LeRoy Judge: The Honourable Justice Patrick Murray Heard: May 30, 31, June 1, 2, 3, 2022, in Sydney, Nova Scotia Oral Decision: September 16, 2022 Counsel: Stephen Melnick and Christa MacKinnon, for the Crown Darlene MacRury for the Defendant, Mr. LeRoy By the Court: Introduction [1] Raymond Shawn Daniel LeRoy is charged in a 12 count Indictment dated and filed January 21, 2021 in the Supreme Court of Nova Scotia. The charges involve 2 counts of attempted murder, one with respect to Edward O’Brien, and the other with respect to Robert MacDonald. The Crown alleges he did this by discharging a shotgun at Mr. O’Brien and Mr. MacDonald. [2] Mr. LeRoy is also charged with 3 counts of aggravated assault, with respect to these same two individuals, plus a third Complainant, Carolyn Dermody. The Crown alleges that the actions of Mr. LeRoy caused the wounding of these persons. [3] Robert MacDonald did not testify at the trial. Ms. Dermody and Mr. O’Brien testified that the Accused, Mr. LeRoy, fired (discharged) a shotgun in the direction of Mr. MacDonald, and Edward O’Brien. Carolyn Dermody testified she was shot in the foot. The injuries to Mr. O’Brien and Mr. MacDonald were more serious than that received by Ms. Dermody. The medical records concerning these injuries are in evidence as Exhibits #2, #3, and #4. [4] The additional charges in the Indictment are break and enter a dwelling house at 16 Barrington Street, apartment #2, Sydney Mines, with intent to commit an indictable offence; use of a firearm in committing an aggravated assault on Ms. Dermody; possession of a weapon dangerous to the public peace; possession of a firearm while Raymond LeRoy was prevented from doing so; and 3 counts of failure to comply with a recognizance, commonly known as a breach of release conditions. [5] Mr. LeRoy has pleaded not guilty to each of these charges and the trial was held on May 30 - June 3, 2022. Mr. LeRoy did not testify at the trial. Presumption of Innocence/Burden of Proof [6] Raymond LeRoy is presumed innocent of each of these charges. The burden of proof rests solely upon the Crown and remains upon the Crown throughout the trial. There is no burden whatsoever upon the Defendant to prove anything. He is innocent unless and until proven guilty beyond a reasonable doubt. [7] The burden that rests with the Crown is proof of every essential element of each of the offences. Reasonable doubt means a doubt that is not fleeting or frivolous, but one based on reason and common sense after consideration of all the evidence. Crown Evidence [8] The Crown alleges that all of these offences arise from the same set of facts, the events that took place on December 22, 2019, at the apartment of Carolyn Dermody and Edward O’Brien, located at 16 Barrington Street, Sydney Mines. Both Complainants confirmed they were renting at this address, in apartment #2 on that date, and had been residing there since November 2019. [9] On that date the Cape Breton Regional Police Service (CBRPS) received a 911 call to that address, in relation to a shooting. Cst. Paul Ratchford, a 22-year veteran who worked patrol in the North Division, was the first to respond to the shooting complaint around 6:00 a.m. [10] He testified he was familiar with that address. As he approached with emergency lights on, he encountered two persons on the road. One was bleeding and had a t-shirt wrapped around his arm. This person was screaming and staggering and was later identified as Robert MacDonald. [11] The second individual fell to the ground. He was hollering as well but was back further, and Robert MacDonald was coming toward Cst. Ratchford. The second individual had an obvious injury to his leg, in the femoral area the Constable said, and he was concerned about him “bleeding out”. This individual was identified to be Edward O’Brien. The officer said there appeared to be other injuries, but the main one was to his leg. [12] When the paramedics arrived, Cst. Ratchford assisted them to the ambulance. Mr. O’Brien, he said, had been wandering and he had both of them against the police vehicle, as a safety measure sheltering them from 16 Barrington Street. He later placed Mr. MacDonald in the police vehicle with the door open. Another police vehicle arrived to assist. [13] Cst. Ogley also was at the scene outside 16 Barrington Street. He observed the two males. Cst. Ogley stayed until EHS arrived and then approached the building with Cst. MacGillvary. [14] Cst. Ogley said the report had been of a shooting, and he entered the stairwell to the apartment which had a steel door on the outside. As he proceeded down the stairs, he observed three (3) spent shotgun shells and observed that a window on the right wall looking into the apartment was smashed as was the window in the steel door at bottom of the landing on the right-hand side. He stayed there for continuity until the identification officers arrived. There were three (3) shells in the porch side of the apartment on the staircase. He did not enter the apartment. [15] Cst. MacGillvary attended the scene with Cst. Ogley. He had been informed that a call had been received of a shooting on Barrington Street as he was preparing to begin his shift at 6:00 a.m. He observed both males upon arriving. One had an injury to his arm, and the other to his leg. Both males had their shirts off. [16] Cst. MacGillvary was familiar with the building at 16 Barrington Street but had not been previously called to that apartment. As the police were unsure if anyone was still in the apartment, they decided to enter to secure it and check it for preservation of life. [17] Cst. MacGillvary confirmed the entry to the apartment was from an outside door leading to a stairway. As shown in the photos in Exhibit 1A, the entrance way, consists of 5 or 6 stairs down to a landing with the door to the apartment at the bottom to the right. He testified that the window on the right was broken, and he observed three (3) shotgun shells. He noticed a little bit of blood spatter which he thought may be on the bottom of the door. He confirmed the window in the bottom door was broken. (See Photo 23) [18] He testified that the apartment was empty except for two dogs found in separate rooms. The apartment was secured and taped off. Cst. MacGillvary testified they had received a call that Carolyn Dermody was in another apartment in the same building. As the evidence showed, this was that of Jessica LeRoy, in apartment #6. The police proceeded to that apartment where entry was refused. As a result, forced entry was made. Carolyn Dermody was found lying on the bed. There was blood on the floor from an injury to her foot. He asked if she was all right and immediately called EHS to have her transported to the Glace Bay General Hospital. Sgt. Geoff MacLeod [19] Sgt. Geoff MacLeod gave extensive evidence, mainly with respect to the exhibits seized and sent for testing. His evidence focussed on the photographs taken at the scene, apartment #2, and of the upstairs apartment of Jessica LeRoy, being apartment #6. [20] I am not going to deal with each of the photographs in Exhibits 1A and 1B. The photos in many cases speak for themselves. There are photos of the entrance to the apartment, the first door entering the stairway, the stairway window on the right, and a dual pane window which had been broken or smashed through. He noted, in particular, the damage to the wall, directly opposite from that window from a pellet blast. The mark is directly above the single chair and is shown where in numerous photos, 91 and 100-106. Edward O’Brien testified that he was sitting in the chair facing the shot through window just below what Sgt. MacLeod described as the “birdshot pattern” as shown in photo 26. This piece was cut out from the wall and marked separately as Exhibit #7, Piece of Gyproc, and taken from the wall as shown in photo 33. [21] There is also a blue curtain (or bedsheet) that Sgt. MacLeod testified had been hanging from the stair window. This appeared to have been tacked to the window but fell away and was hanging on one side. Carolyn Dermody later testified that this curtain was “basically destroyed” when the first shot came through the window. [22] Sgt. MacLeod gave evidence that three (3) spent shell casings were located in the stairwell and explained the yellow placards next to each in the photos as a means to identify them. These are shown photos 12, 13, 14, 15, 16, 17 and 18. Three wads were also found. A toolmark expert testified that these wads were contained within the shot shells with the pellets. [23] The shell casings are shown in photos 81-85, the curtain is shown in photos 59-67, and the placard photo of the curtain in photo 89. This blue curtain is also shown in photos 27, 28 and 29 and was entered at trial as Exhibit #9. The spent shell casings are entered as Exhibit #10. [24] In addition, photo 90 shows the blood on the radiator, marked by placard 8. There are as well, photos of a hot water heater, photo 95 (placard 12) and a close-up showing the heater with pellets on top, as shown in photo 96. [25] In evidence as Exhibit #11 are 28 pellets retrieved by police from the water tank. There was a single additional pellet received by police on January 9, 2020, from the Cape Breton Regional Hospital Ambulatory Care Unit. [26] In particular, there are photos of the second door at the bottom of the stairs, the door to the apartment itself (as shown in photo 23), with the window broken. [27] There was evidence from Sgt. MacLeod that this second bottom door window was shot from the inside out. Photo 15 shows a spent shell casing at the bottom of the stairs. The Crown acknowledges that this may be in error, given the evidence of the other Crown witnesses. [28] Sgt. MacLeod’s evidence with respect to the photos at the hospital(s) show the three (3) alleged victims, Carolyn Dermody, Robert MacDonald, and Edward O’Brien as they were being treated for their respective injuries. The extent of the injuries to Robert MacDonald is shown in photos 68-71 and to Edward O’Brien in photos 72-75. The injuries to Carolyn Dermody’s foot and her knees are shown in photos 76-81. These photos were taken by Cst. Kyle Dicks of the Ident Division of CBRPS. [29] The evidence of the police witnesses combined with the exhibits as testified to by Sgt. MacLeod establishes that there was a shooting on the night in question, that it occurred at 16 Barrington Street, in apartment #2, Sydney Mines, NS, and that three individuals were injured as a result. Pellets were found imbedded in the arm of Robert MacDonald and the leg of Edward O’Brien as stated in the Hospital Reports. Counts 1 and 2 - Attempt to Commit Murder, s. 239(1) of the Criminal Code [30] Pursuant to s. 239(1) attempted murder may be committed “by any means”. In this case, the Crown has particularized the Indictment in Counts 1 and 2, alleging that Mr. LeRoy attempted to murder Edward O’Brien and Robert MacDonald “while using a firearm by discharging a shotgun”. This would be the actus reus of the offence. [31] The Defence submits that the Crown has failed to prove that a shotgun was used in this case. No shotgun has been entered into evidence. [32] With respect to the mens rea, the crime of attempted murder requires a specific intention to cause death to the victim. Recklessness that the consequences of a person’s action, may or is likely cause death of a person, will not suffice to meet the mens rea required for attempted murder. Nothing less than a specific intention to kill will be sufficient. (R v. Mitton, 2021 NSSC 325; R v. Baxter, 2019 NSSC 274) [33] A review of the relevant cases makes it clear, that courts have struggled with this distinction in cases of attempted murder. In Mitton, my colleague, Justice Campbell said the following: [78] The charge of attempted murder is particularly difficult to prove. As my colleague Justice Hunt noted in R. v. Baxter, 2019 NSSC 274, at para. 104, it can be harder for the Crown to prove attempted murder than to prove murder itself. That is because of the requirement for the proof of the mental element of intent. It is the specific intent to kill. If the victim dies, there are some mental elements other than the intent to kill that can lead to a conviction. If a person is reckless as to consequences of an assault or anticipates that their actions may or probably will result in the victim’s death, they can be found guilty of murder. But for attempted murder there must be the specific intent to kill. R. v. Ancio, [1984] 1 S.C.R. 225, at page 248. [34] In short, it can be harder for the Crown to prove attempted murder than to prove murder itself. That is because of the requirement for proof of the mental element of intent. [35] In its brief, the Crown submits that in this case Edward O’Brien was shot by Mr. LeRoy at close range, and that the shots were at his head and leg. The Crown refers to the injuries sustained near the femoral area of Mr. O’Brien and the force of the blast to the wall behind where he was sitting. The photos show that the pellets had penetrated through the gyprock and into the stud. (Photos 99, 100-106) [36] The Defence says the Crown has not met its burden in this case. According to the Defence, the Crown witnesses, Carolyn Dermody and Edward O’Brien, should not be believed. It was a night where alcohol and drugs were consumed well into the night. The statements given by these witnesses are replete with omissions and inconsistencies. If you believe one, you cannot believe the other. In addition, these persons have significant criminal records, and their evidence must be viewed with extreme caution. [37] The Defence further submits that in addition to credibility, the identification of Mr. LeRoy as the person who committed these offences is a key issue. Carolyn Dermody [38] Carolyn Dermody testified that she resides in apartment #2 at 16 Barrington Street, Sydney Mines, with Edward O’Brien. They have been together for some time. Carolyn Dermody and Edward O’Brien went to Mr. LeRoy’s house (a short distance away) earlier in the day to help him clean, prior to the other individuals who were arriving later. Robert and Sheila Bonnar arrived later together and Alyssa Carter arrived on her own. [39] They were drinking and doing some drugs, two lines of coke, she said. Mr. O’Brien testified they were drinking a 40 oz. bottle of Captain Morgan and there was a fifth person at Raymond LeRoy’s who was drinking (from that same bottle) as well. [40] Mr. LeRoy had invited Alyssa Carter to his place that evening. Carolyn Dermody and Edward O’Brien were well acquainted with Mr. LeRoy. [41] As the evening progressed things began to deteriorate, Carolyn Dermody said she had consumed or opened Mr. LeRoy’s Berry Blast vodka, this made him upset. The four, Ms. Dermody, Mr. O’Brien, Mr. MacDonald, and Ms. Bonnar ended up leaving, but returned except for Ms. Bonnar. A fight ensued between Ms. Dermody and Alyssa Carter, when Carolyn Dermody confronted Mr. LeRoy about something Ms. Carter told her. [42] Later in the evening Carolyn Dermody testified they were back in apartment #2. She, Edward O’Brien, Robert MacDonald, and Jessica LeRoy, the Accused’s grandniece. Ms. LeRoy resided in apartment #6 in the upper level. The police would later enter that apartment to locate Ms. Dermody. [43] Edward O’Brien testified that they were sitting around listening to music and finishing off the liquor. Carolyn Dermody stated that Edward O’Brien was sitting in a single chair with a flag hanging to the left, with the wall behind him, with the kitchen area and the fridge to his right. On the couch were Jessica LeRoy to the left, Carolyn Dermody in the middle, and Robert MacDonald to the right. (See photo 26) [44] Carolyn Dermody heard a loud bang from upstairs then a shot came through the window on the stairway leading down to the apartment. She said this shot just missed Edward O’Brien’s head and went into the wall. Sgt. MacLeod testified this was a straight shot, as the single chair is directly across from the window. The curtain got completely pushed away. [45] When she heard the bang, Ms. Dermody thought the door entering the building upstairs had been shot or kicked open. She immediately got up to put the dog in the bathroom, that was her first thought. There were shotgun pellets all over the place, she said. [46] She returned to see Edward O’Brien swinging a long metal dog chain. Robert MacDonald was hovering over on the couch. The shooter had gotten a couple of shots off. It was Ray LeRoy who was shooting, “we all saw him”, she said. [47] In cross-examination Ms. Dermody said Edward O’Brien was standing in front of the fridge, as shown in photo 26, where the carpet meets the floor. Edward O’Brien was shot in the back of the leg and ran to the bedroom to lay down. [48] She testified that she herself was shot but did not realize it, because of adrenaline. In the end she challenged the shooter, screaming at him, “pull the trigger”. She testified Mr. Leroy’s niece was in the middle of the room screaming at the Accused. She heard a click and the shooter turned around and left. Mr. LeRoy, she said, had on a four-wheeler helmet and there was nothing covering his face, as it was sitting on top of his head. [49] With respect to the gun used, Ms. Dermody said, “I saw a shotgun”, further calling it “a long gun hunting rifle, not a handgun”. She described it as having a black barrel and brown on it. He had it against his shoulder, pointing it right at her, she said. In the end, he ran out of bullets. [50] Carolyn Dermody was asked in direct how sure she was that it was the Accused, Mr. LeRoy. She said on a scale of 1 to 100%, she was “150,000%” sure it was him. [51] When asked about what she consumed between cocaine and alcohol, she testified she was “pretty sober to be honest”, saying “you don’t stay intoxicated in a situation like this”. [52] Carolyn Dermody was challenged on her evidence at trial in a number of areas, including the statement she gave to police. She was asked about her statement at page 6 where she said the Accused wore no helmet but a bike mask and had probably left it outside. She said the mask was “turned up”. [53] She was cross-examined on a number of things. The reference to “dogs” plural; her trial evidence that the shooter reached in to open the door being new. Saying in her statement that Edward was laying on the floor and did not run into the bedroom; and that Ray LeRoy had been “talking shit”, whereas at trial she said he said nothing. In particular, there was no mention in her police statement of her trial evidence that Edward O’Brien was swinging a chain. [54] There were other features, whether both deadbolts were locked, whether she threw her foot up and got shot (as she said in her statement), and whether the fight was during the first or second visit. [55] In addition, there was the evidence of Carolyn Dermody that Ray LeRoy entered the apartment, which is contrary to the evidence given by Mr. O’Brien. He was a little bit past the door, she said, standing level to the open door, by the threshold. [56] When asked about these contradictions, Carolyn Dermody testified she was “all over the place” at the time of her statement, “tripping over her words” she said. On cross-examination she explained that the differences between her statement and evidence at trial were because of the trauma, intoxication that evening, and also “being a criminal”. [57] She acknowledged she would probably know a lot more at the time of the statement but she remembered the shooting, saying “some things you don’t forget”. [58] The Crown submits these omissions are collateral to the main issue, whether Mr. LeRoy is guilty. The Defence submits these matters go to credibility, which is a key issue. Cheryl Sullivan [59] Carolyn Dermody’s mother, Cheryl Sullivan, testified that she received a call from her daughter, whom she said was screaming and scared. While on the phone Ms. Sullivan said she could hear the police at the door in the background. It was Ms. Sullivan who phoned the police, contrary to Carolyn Dermody’s evidence. Yannick Gauthier, RCMP [60] The Crown called an expert witness, a firearms and toolmark specialist. Mr. Gauthier was qualified to provide analysis in these areas, as well as the mechanical assessment of firearms, ammunition and prohibited devices, firearm toolmark comparison and identification, and the legal classification of firearms, ammunition and prohibited devices. (See Exhibits #5, #6, and #16) [61] His CV and report were entered as exhibits. In his report (Exhibit #5) he states he examined each of the three (3) shot shells located at apartment #2. Each of these were identified as “12-gauge x 2 3/4 inches”. [62] In his evidence, Mr. Gauthier explained that a shot shell is ammunition containing metallic pellets that are expended when a shotgun is fired. Its makeup includes gunpowder, that creates an explosion upon being fired causing the wad and pellets to propel through the barrel and in the direction to which the gun is pointed. The blast acts like a flashlight he said, the closer the target the smaller the diameter of the blast. At a distance, the pellets would be spread wider when the target is hit. An example is the wall that is shown in the photos 100 - 104 and 106, of apartment #2. [63] The results of the forensic analysis as it pertains to these cases are: 1) the 3 expended shot shells (1, 2, 3) were fired by a single firearm, that is, fired from the same gun. 2) the expended shot shells were probably fired from a 12-gauge shotgun or another firearm with similar characteristics. He did state there are many makes of firearms from which the expended firearms could have been fired. No shotgun or other firearm was entered into evidence. 3) the pellets, (exhibits 12 -16, of the Forensic Report (Exhibit #6) are consistent in composition, weight and diameter with #8 lead shot, and consistent in type and size of pellets that could have been loaded in the expended shot shells, Exhibits 1, 2, 3. [64] In cross-examination Mr. Gauthier was asked about the possibility that the shells were fired by a firearm other than a shotgun. He stated it was possible, for someone to “fit up” a firearm to shoot them but stated the shells in their diameter and length are consistent with those fired from a 12-gauge shotgun. 12-gauge shells are designed for a 12-gauge shotgun, he said. [65] Sgt. MacLeod gave evidence that yellow placards were used to provide the Court with an indication of the size in millimeters and centimeters, which, as stated, equated to 2 ¾ inches, as shown in photos 83, 84 and 85 of Exhibit #1A. Jessica LeRoy – evidence and utterance [66] Jessica LeRoy had difficulty giving her evidence, which was brief. She had virtually no recollection of the shooting, stating she was high and asleep. She said she knew something bad happened and it seemed like Carolyn Dermody was hurt. As stated, she had no recollection of what took place in Edward O’Brien and Carolyn Dermody’s apartment. [67] When asked about any interaction with police, she said she remembered footsteps in and out. She did not recall seeing her grand uncle Ray LeRoy around that time in 2019. She testified she had issues with memory, PTSD and blocks out a lot of her life. She wanted to make sure she was alone in her mother’s room in apartment #6 and did not remember anything after that. [68] Carolyn Dermody and Edward O’Brien testified that during the shooting Ms. LeRoy was in the living room, screaming, “Ray don’t shoot, I’m your niece”, or words to that effect. [69] A statement made in the presence of an Accused is not hearsay. However, in this case the identity of the Accused as the shooter is in issue. The statement relates directly to that issue. [70] Ms. LeRoy did not adopt this statement, in fact, she testified that she did not recall being there. [71] Therefore, the Court must first decide if the statement was made. This will depend on the credibility and reliability of the other two witnesses, who said the statement was made by her. [72] If the Court accepts that the statement was made by Jessica LeRoy, it would likely fall under the res gestae exception to the hearsay rule for “spontaneous exclamations”, sometimes called “excited utterances”. [73] This exception captures statements that are made in such a way that the possibility of fabrication or concoction can be disregarded. I will provide my ruling on this evidence later in this decision. Edward O’Brien [74] Mr. O’Brien testified on behalf of the Crown. He confirmed that he and Carolyn Dermody rented apartment #2, 16 Barrington Street, Sydney Mines. He indicated he had a grade 4 education and has spent half his life in custody. He did not read his statement before the trial. He testified that he had been drinking that night but used no drugs. He stated he had been drinking since he was 12 and had his share of drug issues in the past. Mr. O’Brien’s criminal record was entered into evidence as Exhibit #18. [75] He recalled the night in question. Initially, going to Mr. LeRoy’s to help him clean, he said. There was an argument between Ray LeRoy and Carolyn Dermody over liquor and a fight between Carolyn Dermody and Alyssa Carter. They were concerned about Ms. Carter, he said, and went down to Mr. LeRoy’s house a second time. No one was home on this visit, he said. [76] Upon returning to the apartment, Sheila Bonnar had left, and Mr. O’Brien said the three of them (him, Carolyn Dermody, Robert MacDonald) went upstairs to apartment #6 before returning to their apartment, along with Jessica LeRoy, apartment #2. [77] In his testimony, Mr. O’Brien said he was on the single armchair and that on the couch next to him was Carolyn Dermody, Robert MacDonald in the middle, then Jessica LeRoy. This order of seating on the couch is different than that described by Carolyn Dermody. [78] In describing what happened, Edward O’Brien said the four were sitting around listening to music and “boom”, the shooter came through the outside door and shot through the window on the staircase, which he was facing. [79] The shooter then shot the second window out in the door at the bottom, which enters into the apartment itself. Robert MacDonald got up and raised his hands, standing where the couch cushion is on the floor in photo 62. He got shot in the arm and went back over to the couch. [80] Edward O’Brien testified that the gun came in his direction and he dove to the floor, some pellets hitting him on the back. He then grabbed the dog chain (blue handle) and stood against the same wall as the window that was shot out, between the TV and the door, as shown in photo 62, with his back to the wall right next to the door at the bottom. [81] Edward O’Brien testified that he was swinging the chain out the door at the shooter, who he described as a person with a gun, and a helmet with a mask. He testified that the dogs were fighting, and Carolyn Dermody was in the kitchen and living room running around. [82] Edward O’Brien testified that Mr. LeRoy then reached in and shot him in the leg, and he went to the bedroom and laid down. Robert MacDonald went back to the couch, which had blood on it, as did the radiator. Carolyn Dermody’s evidence had placed Robert MacDonald on the end of the couch. (See photo’s 28 and 30) [83] In cross-examination Edward O’Brien testified that the bottom window being shot through enabled him to swing the chain out before the shooter reached in and shot him. [84] Edward O’Brien testified that there were marks on the wall from the chain hitting it near the door jams, referring to photo 80. He confirmed that Jessica LeRoy was standing in the living room and that things were chaotic, and it was hard to tell where anyone was. He was asked where the dogs ended up and said there was one in the bedroom and one in the bathroom. He was asked where the shooter went and Mr. O’Brien replied, “there was only one way in and one way out”. [85] In direct examination, Edward O’Brien was asked if the shooter entered the apartment, to which he replied, “no he didn’t cross the threshold”. He testified that his (O’Brien’s) left leg was closest to the door and the shooter, Raymond LeRoy, reached in and shot him and then pointed the gun at Carolyn. [86] Edward O’Brien was asked what stopped the shooter. He said he was not sure if it was the chain or that he ran out of bullets. [87] Mr. O’Brien described the firearm used as a long gun and the pellets taken from his leg as pellets from a shotgun. [88] Asked to describe the shooter, Edward O’Brien said he was wearing a black helmet with a black mask. He was asked if he was able to identify this person and if he had the ability to do so, to which he replied, “yes”. He was asked, “Who did you see that night?” He replied, “I saw Ray LeRoy”. [89] The helmet was raised Edward O’Brien testified and he was able to see the front of his face. When asked if he had any doubts he answered, “not really”. He was asked further what “not really” meant, and he replied he was confident, “very confident” it was Ray LeRoy. He said he had known him his whole life. Mr. O’Brien was challenged in a number of areas on cross-examination, including his criminal record, which is extensive, and his statement given to police following the incident. His and Ms. Dermody’s previous record are in evidence as Exhibits #17 and #18. [90] Mr. O’Brien testified that he did not inform police who the shooter was out of fear for the safety of the others and because he knew nothing of the shooter’s whereabouts. [91] In cross-examination, Mr. O’Brien confirmed his evidence that Raymond LeRoy never entered the apartment and that all shots were fired through the window of the bottom door. [92] He was challenged about his reluctance to be forthcoming in his police statement. Defence Counsel suggested that he was waiting for Carolyn Dermody to “make the first move” and that he was worried about incriminating himself. Mr. O’Brien explained he was mainly concerned that he knew so little of what was happening, but he knew he had to be concerned about the safety of Carolyn Dermody and himself. [93] He was further cross-examined on the fact that he at no time, mentioned the chain in his statement, and that he told police he was attempting to “hold the door shut”. In his evidence at trial his stated that he was trying to keep the door closed, to prevent the shooter from entering, by swinging the chain, and that is what he meant. He didn’t withhold information, he said, but was keeping the door closed trying to protect his property and those in his property. [94] This was also the case with Ms. Dermody who stated, in regard to omissions in her statement, that she did not wish to incriminate someone she loved. She stated that as time went by she remembered. She acknowledged she did not tell the police everything, “I was a criminal”, she said, “I kept a lot from the cops”. [95] In his police statement Mr. O’Brien indicated that he was shot through the wall, while at trial he said he was shot through the window. Further, he said in his statement that he was unsure exactly how the shots took place. He said he never read his statement until it was shown to him at trial, stating, “when you are getting shot at, you don’t remember every little detail, but then you start to process it and clue into what happened”. [96] Mr. O’Brien maintained that he told the police what he knew, and he testified at trial to what he remembered. Any reluctance he had during the interview with police was out of safety reasons. “You don’t just throw names out”, he said. Letter – Exhibit #19 [97] A letter was entered into evidence by the Defence. It is dated March 28, 2021, and in it Mr. O’Brien stated “Ray LeRoy wasn’t the shooter, he is too tall” and he, “Edward O’Brien, will go to trial and say it wasn’t him”. A note at the bottom says, “drop all charges”. It also says that Edward O’Brien is the only one who saw who the shooter was. The letter also states, “they were all too drunk, they didn’t even know their own names to be able to say who the shooter was.” Edward O’Brien testified that he was forced to write the letter and that his signature on the letter entered as Exhibit #19 was not voluntary. [98] The Defence submits that by his own admission this letter was signed by Mr. O’Brien and is evidence that Mr. LeRoy was not the shooter. The Crown submits that the evidence shows the letter was made up and signed by Mr. O’Brien while at the correctional facility and not of his own doing. The Crown’s Position [99] The Crown says Raymond LeRoy took a gun and ammunition and went to the home of Edward O’Brien and Carolyn Dermody. After forcing his way in, he fired multiple times at Mr. O’Brien and Mr. MacDonald. The Crown submits these acts show that Mr. LeRoy intended to cause the death of those individuals, that he intended to kill them. The Crown asks the Court to apply common sense to the facts in arguing that Mr. LeRoy had the specific intention to kill the two victims. The Defence Position [100] According to the Defence, it is not entirely clear what happened in the apartment, the participants having been fueled by alcohol and drugs. The Defence submits neither Carolyn Dermody nor Edward O’Brien can be believed, their evidence is absolutely not credible. There are too many discrepancies, whether the shooter stepped inside or was outside the apartment, for example. The Defence asks that all charges be dismissed. Analysis [101] Credibility is comprised of two components. My colleague, Justice Hunt, summarizes this succinctly in Baxter, paragraphs 13 -15: [13] On the issue of assessing the evidence of witnesses the Court is aware of the many cases governing the analysis of witness testimony. What we sometimes refer to as the “credibility” of a witness really is comprised of two distinct components of creditworthiness: 1. Honesty of recollection; 2. Reliability of recollection. [14] Honesty speaks to the sincerity and candour of a witness’s evidence while reliability relates more to such factors as the witness’s individual perception, memory and clarity. Both sides of the equation – honesty and reliability – impact the credit that can be afforded to testimony. A judge may consider all, none or some of a witness’s evidence depending on the findings. A judge may apply different weight to different portions of the evidence which is accepted. [15] A foundation for reasonable doubt can be found in any witnesses’ testimony. So too, a finding of guilt may be safely grounded on the evidence of a single witness if, of course, it is found sufficiently credible and persuasive to meet the exacting burden of proof. In assessing the credibility of testimony, I am aware of the factors which have been pointed to by courts as helpful to this process. On this point I have found R. v. Farrar, 2019 NSSC 46 to be instructive. [102] The Court has carefully considered the evidence in this matter including the entire testimony of Carolyn Dermody and Edward O’Brien. Naturally, it is concerning when witnesses admit to not telling the police everything, and when they say, “I’m a criminal and don’t wish to incriminate those I love”. [103] That said, in terms of sincerity and candour, Mr. O’Brien’s evidence, including his response to questioning about his police statement, I found to be both. [104] Mr. O’Brien explained the impact of being shot, supported by other evidence. Constable Ratchford testified that in addition to being vocal, Mr. O’Brien and Robert MacDonald were both in a “state of shock”. Cst. Ratchford had been a paramedic for 12 -13 years. [105] Mr. O’Brien has an extensive criminal record. The Crown submits that his prior offences, and those of Ms. Dermody, are not for offences of dishonesty, such as deceit, fraud, or falsehood. That maybe true, but I did note convictions of Mr. O’Brien for theft and failure to comply with court orders and undertakings, which is breach of a promise. [106] Similarly, Carolyn Dermody has a criminal record, not as extensive as Mr. O’Brien’s, but one that includes numerous offences for failure to comply with recognizances or undertakings and breach of a probation order. [107] Section 12 of the Canada Evidence Act permits any witness to be cross-examined on the existence of a criminal record. Defence can cross-examine a Crown witness on the details behind their criminal record, subject to it being relevant to the case before the Court. [108] In this case each of Carolyn Dermody and Edward O’Brien readily admitted to having a criminal record. I have reviewed the record of Edward O’Brien and the clear majority of offences pertain to failure to comply with conditions, recognizance or undertaking. There are a broad range of offences. The level of violence in terms of assault is on the lesser scale. [109] In terms of reliability, the failure to mention prominent features (the chain, the confrontation by Carolyn Dermody) in their statement to police combined with their records is a significant consideration for the Court. [110] In addition, identification evidence can be fraught with frailties. Extreme caution must be exercised to avoid an injustice. The Court must not only be aware of such frailties but relate and consider those that affect a witness’s ability in the case before it. [111] Combined with the use of drugs and alcohol this was a long night for Carolyn Dermody and Edward O’Brien. In addition, there is evidence of shock. Carolyn Dermody’s mother said Carolyn was “screaming and scared”. Carolyn Dermody herself referred throughout the evidence to the trauma she suffered. Edward O’Brien also acknowledged this, stating “when you’re getting shot at, you don’t necessarily process what happened right away. You don’t clue in until you have time to process what happened”. [112] I earlier discussed the details of the identification evidence. The Accused, Mr. LeRoy, was well known by Carolyn Dermody and Edward O’Brien. Each said they had known him their whole lives. The evidence showed they were together that evening, that they were friends, and that they went down to visit with him in his house nearby. [113] They said when the helmet was down on this head it allowed them to see from the top of his chin to above his eyes, including his eyebrows. Each were confident it was the Accused, Raymond LeRoy. Carolyn Dermody testified that she was able to see Mr. LeRoy’s silhouette in the window before it was shot out by him, and then see him after it had been shot through. [114] While there may have been some difficulty describing the helmet worn by the shooter, both witnesses stated he had one, and the shooter had it raised, so that it was sitting on the top of his head, above the forehead. Both said they had a full view of his entire face [115] The Crown submits that despite some differences, the core allegations made by the Crown witnesses remain intact, their evidence was consistent. The Defence submits there are too many inconsistencies to place any weight on these witnesses and that they are not to be believed. [116] In this case, I am satisfied the Crown has established beyond a reasonable doubt that it was the Accused, Raymond LeRoy, who discharged the firearm in apartment #2, 16 Barrington Street, on the date in the Indictment. [117] Despite a rigorous and thorough cross-examination by Defence Counsel, and notwithstanding the existence of his criminal record, Edward O’Brien’s evidence was basically unshaken. [118] Carolyn Dermody’s evidence was similar. At times, she contradicted herself, stating for example, she would know more or remember more at the time of giving her statement and later stating, things came to her as time goes on. She was adamant that she had a clear recollection of the shooting and I believe she was being candid, sincere and truthful. [119] In terms of reliability, I found that her evidence held up, following both cross-examination and close scrutiny by the Court. [120] Neither the Criminal Code, the Firearms Act, SC 1995, c. 39, nor any other federal criminal legislation defines a “shotgun.” [121] Black’s Law Dictionary (4th Ed. Rev.) defines the word “shotgun” as follows: A smooth-bore gun, often double barreled, and now almost universally breach-loading, designed for firing shots at short range and killing small game, especially birds. [122] The Concise Oxford Dictionary provides the following: a smooth-bore gun for firing small shot at short range. [123] The Shorter Oxford Dictionary provides a succinct definition of a “shotgun”: A smooth-bore gun (fowling-piece) used for firing small-shot, as dist. from a rifle for firing a bullet. [124] Dictionary definitions are clear that the defining features of a shotgun are that it is a gun that fires small shot rather than single bullets, as with a rifle. It appears that this is straightforward enough that it has not been necessary to specify it in legislation. If there are discharged 12-gauge shells in evidence, and the evidence indicates that the weapon that fired them was a long gun, in my view there cannot be any doubt, reasonable or not, that it was a shotgun within the meaning of the various dictionary definitions. As the Shorter Oxford indicates, the alternative is a rifle, which fires a single bullet. [125] With respect to the letter written and signed by Mr. O’Brien, it is my impression of the evidence of Mr. O’Brien that the circumstances involved in its writing are clearly suspicious. Without naming them Mr. O’Brien said there were other inmates present. He signed it, stating he was forced to. “That’s just the way it works in jail”, he said. [126] I reject the letter in Exhibit 19 both as to its authenticity and as an exculpatory statement in regard to the Accused. I am satisfied it was obtained in circumstances that were coercive, and that its contents cannot be relied upon. [127] With respect to the letter tendered into evidence by the Defence, I do not believe its contents to be true. Nor does it leave me with a reasonable doubt. In respect of all the evidence, I may only convict Mr. LeRoy if I am satisfied, on the basis of the evidence I do accept, that the Crown has proven his guilt on these offences beyond a reasonable doubt. [128] With respect to the statement alleged to have been made by Jessica LeRoy, I am satisfied the statement was likely made, but given her poor recollection of events, she could not confirm whether or not the statement was made by her, and she was not asked. Thus, this statement should be given limited weight. [129] In terms of the actus reus, I am satisfied that the Crown has established the identity of the Accused and that a shotgun was used by him to the criminal standard of proof. It was Mr. LeRoy who discharged the firearm, and it was a shotgun. [130] I turn now to the mens rea for this offence and whether the Crown has proven that Mr. LeRoy intended to kill Edward O’Brien and Robert MacDonald as alleged in Counts 1 and 2. Did Raymond LeRoy have a Specific Intention to Kill Robert MacDonald and Edward O’Brien? [131] In R v. Boone, 2019 ONCA 652, which is not a shooting case, the Court discussed the mens rea for attempted murder. In that case the Ontario Court of Appeal held that the fault element may be established where the Crown proves beyond a reasonable doubt that the accused: i) Set out to kill a person; or ii) Knew that the death of a person was a virtual consequence of their conduct. [132] It is not sufficient under (ii) that the accused believed that death was a possible or probable outcome of their conduct (which would be recklessness). See R v. Rajanayagam, [2001] O.J. No. 393, at paragraph 15. [133] There are a number of factors that have been considered in determining whether an accused who shot the victim had intent to kill. 1) The location and severity of the injuries; 2) The nature of the firearm used; 3) The physical distance from the victim when the accused fired the weapon; 4) The number of shots fired; 5) Whether the accused had an opportunity to “finish the task”, so to speak and did not; 6) Utterances or threats by the accused, “I’m going to kill you, her or him”, for example. 7) Evidence of motive. [134] This list is not exhaustive and the individual circumstances of each case must be considered as a whole in assessing whether an accused had the mens rea to commit attempted murder, pursuant to s. 239(1)(a.1) of the Criminal Code. Nature of the Injuries or Wounds [135] Edward O’Brien was shot in the back of the leg at close range leaving “a small to moderate amount of pellets in the posterior left leg”, according to the hospital record (Exhibit #3). Mr. O’Brien described his injury as being about the size of a softball when displaying it to the Court. The Emergency Room Report further indicated the pellets were “lodged uncomfortably close” to where the femoral artery would be. This was also an initial concern of Cst. Ratchford. [136] The plan for healing was “simply to clean it thoroughly, bandage it and put him on antibiotics”. The x-ray of the leg disclosed no fracture. [137] Robert MacDonald was shot in the arm at the elbow and the extent was that his injury is shown in Exhibit #1A and #1B, in photos 68 - 71. The evidence of Edward O’Brien following the first shot, he got up from the couch and raised his arms, which would seem to account for this injury. The Court heard evidence of blood on the arm of the couch and radiator, where he was said to have returned to after being shot. [138] Robert MacDonald was absent from the trial and did not testify as to the alleged attempt by the Accused to take his life. The hospital photos show him sitting up, with his arm bandaged. As stated, when the police officers first met him, he appeared to be in shock and blood was weeping from his arm. [139] The hospital report stated Robert MacDonald’s main wound was to his left posterior elbow. There did not appear to be any metallic foreign objects projected over his chest. The elbow, it said was “a different story” and had “many small pellet-like metallic densities, in and around the elbow”. There were no fractures, but the concern was that the pellets may have penetrated the elbow joint itself. The treatment plan was pain medication, a tetanus shot and a referral for possible surgery. A second look at the chest x-ray showed some pellets visible in the left flank area on his side. [140] Both of these injuries were serious, resulting in a loss of blood. Mr. O’Brien’s photos at 73 - 74, show more of a gaping injury to his left leg. [141] In terms of blood loss, Edward O’Brien stated he lost a lot from the shot to his leg. There was no evidence that blood was found in the bed or bedroom where he was said to have gone after he was shot. [142] In Rajanayagam, the Court discussed these types of injuries as it pertains to intent: 17. Some gunshot wounds, by themselves alone, provide evidence of intent to kill. Other gunshot wounds do not. If A empties into V’s chest a .40 calibre semi automatic Glock, loaded with expanding dum dum bullets, the shots in themselves provide some evidence of intent to kill. If A shoots V in the hand once with a .22 caliber pistol, the shot in itself provides no evidence of intent to kill. 18. It is impossible to draw a bright lie in every case between gunshots that provide evidence of intent to kill and gunshots that do not. It is entirely a question of degree having regard to all the circumstances including the firearm, the range, the caliber, the load, the projectile, the number of shots, the aim, and the vital or non-vital portion of the anatomy stuck by the bullet. [143] The Crown submits that it is not a big stretch to conclude that the Accused intended to take both Edward O’Brien and Robert MacDonald’s life as a result of the shots fired that evening. [144] The evidence showed the stairway window was covered with a light blue curtain. As can be seen in photo 66, this curtain is not fully transparent. This curtain is in evidence and contains several holes, as pointed out by Sgt. MacLeod. The Defence suggested that all three (3) shot shells were fired through the curtain which is in evidence as Exhibit #9. The Nature of the Firearm [145] Shotguns are generally known to be powerful weapons. In R v. Naname, 2017 SKCA 22, the Court held that a shotgun is “a weapon with notoriously destructive power at close range. It is relevant that the Accused, Mr. LeRoy, was armed with a shotgun. The Physical Distance from the Victim (MacLeod 12 feet; Carolyn Dermody 10 feet) [146] This was a small apartment, and the shooter was in close proximity to the alleged victims and to Mr. O’Brien, in particular, when the firearm was discharged a number of times at close range. [147] Also relevant, is the location of the shooter when the shots were being fired. He was clearly in the staircase area and at the bottom of the landing by the second door. [148] There was some variance in the Crown evidence as to whether Raymond LeRoy crossed the threshold. Edward O’Brien maintained that he did not, and that all shots were fired through the window of the door. There was also some difference in evidence as to where the victims were standing. There are bound to be such differences says the Crown. It was chaotic. Carolyn Dermody was running throughout the apartment. She testified that Mr. LeRoy reached in and opened the handle and seemed to say he had stepped in, if only to be just in line or “level” with the door. [149] If the Accused crossed the threshold and forced his way in, he could then have had an opportunity to “complete the task”. There is also evidence of Mr. O’Brien that he used the chain to prevent him from entering, although Carolyn Dermody testified that the gun was empty at that point. The witnesses said there were 4 - 5 shots fired, and that it was fast and loud. [150] Edward O’Brien and Robert MacDonald were clearly hit. Jessica LeRoy, whom the crown witnesses said was in the middle of the living room screaming, was not. Carolyn Dermody was injured but the circumstances of her being shot are less clear. Utterances or Motive [151] Carolyn Dermody testified at trial that Raymond LeRoy was silent, and that he turned around as if nothing happened and walked out. [152] Apart from the shooting itself there is not a great deal of evidence of the shooter’s intent. There was evidence that he was upset and angry earlier in the night about the Berry Blast cooler being opened, and because of Ms. Dermody confronting him regarding what Alyssa told her about Ray. Although there was drinking and the use of drugs, these things hardly suggest a motive to kill someone. [153] Edward O’Brien also gave evidence that “Robbie robbed Ray”, but that was two weeks earlier. The evidence showed that all of these people were friends and had been socializing together that evening. The number of Shots Fired [154] Carolyn Dermody and Edward O’Brien testified that there were numerous shots fired into the apartment one after the other. They each estimated between 4 - 5. [155] In R v. LeFleur, [2000] O.J. no. 3961 (Ont. S.C.J.), a case of a gunshot to the groin, Then J. stated “no doubt that the firing of more than one shot would have been more probative of the requisite intent.” Nonetheless, he upheld a committal for trial where there was no specific evidence of pointing of a sawed-off shotgun at a vital part of the anatomy, and no specific declaration of an intent to kill. He held that a deliberate shotgun blast from 8 feet to the upper inner thigh, close to the groin, with a considerable loss of blood was close enough to provide some evidence of an intention to kill. [156] The test for committal, is less stringent than the trial standard of proof beyond a reasonable doubt, which must be applied here. In LeFleur the gaping nature of the flesh wound was a significant feature. [157] Sgt. MacLeod’s evidence was that three (3) shot shells were located, along with three wads. In reviewing Mr. O’Brien’s evidence, in direct and cross-examination, he recounted 4 shots. He testified that, he dove when the gun came in his direction, after Robert MacDonald was shot, and it hit his shoulder and back and went into the wall. Constable MacLeod’s evidence varied somewhat from Edward O’Brien’s, suggesting the pellets hitting the wall was a straight shot in from the stair window to where Mr. O’Brien was sitting. A: … And that chair, taking that photograph directly behind me is the window, the broken window on the stairwell going down which would be, if I could demonstrate with this pointer it would be coming at it in this direction. I can’t offer the Court elevation, I don’t know, but in terms of the impact because the circles were very, very small and even, it appears that it is coming straight in from the window. [158] Sgt. MacLeod testified that he took measurements of the height of the shotgun pattern from the floor, 44 inches, but he could not provide the Court with “elevation” in referring to the window from which he believed the shot came. [159] No expert evidence was given in respect of the living room dimensions, the height of the window, compared to the pellet blast in the wall, the trajectory of the shells or wads, or an actual diagram of where Edward O’Brien was sitting, showing the position of his head and body. [160] Sgt. MacLeod estimated the distance from the stair window to the wall behind the single chair to be 12 feet. Carolyn Dermody stated that distance to be about 10 feet. [161] The expert, Mr. Gauthier stated that a shotgun blast expands in size as it travels. Decision [162] Having weighed and considered all of the evidence, I am not satisfied beyond a reasonable doubt that Mr. LeRoy intended to kill these individuals, as opposed to an intent to cause them harm, even serious harm. A specific intent to kill is not the only rational inference that can be drawn from these facts. (R v. Mitton) [163] It is likely that the shot that hit the wall above the chair as shown in Exhibit 7 had the potential to be fatal. Sgt. MacLeod testified that he thought this shot came “straight in” through the stair window, the first shot. Edward O’Brien testified that there was a first shot through the window, then the shot that hit Robert MacDonald after he got up from the couch, and then when the gun came in his direction, Mr. O’Brien dove, and that shot grazed his shoulder and went into the wall. Next, Mr. O’Brien testified that he was shot in the left leg while his back was against the wall, fending of Mr. LeRoy with a chain. The Accused “reached in” he said and shot him. [164] The Crown need not establish the exact sequence of events, but the entire circumstances are relevant to whether the Crown has established the mens rea required for attempted murder, namely, that the Accused had a specific intention to kill each of Edward O’Brien and Robert MacDonald. [165] This was a small apartment full of people at the time. [166] The Court is left to wonder what would have happened had Mr. O’Brien not dove and also whether Mr. LeRoy had the ability to aim directly at him, through the door window. The evidence was that after the first shot the Accused came down the stairs and shot out the second window after pulling up his mask and helmet the “gun came up”, Mr. O’Brien then dove and a shot went off as he grabbed the chain. Mr. Leroy never entered the apartment, O’Brien said. [167] In the apartment, there was diving, screaming and moving, and everybody was in motion. Things were chaotic and happening fast. Mr. LeRoy ultimately left without saying a word. Two persons were seriously injured, Mr. O’Brien in the leg near a vital part of his anatomy and Mr. MacDonald in the arm, at or near the elbow joint. [168] If a gunshot wound is to a vital part of the anatomy, a common sense inference arises that the shooter intended to kill. If the gunshot wound is near a vital part of the anatomy a similar common sense inference may arise that the shooter intended to kill. (See Rajanayagam at paragraph 20, 21) [169] I have indicated there are a number of factors that Courts have considered in assessing the mens rea for these offences, of which the location and severity of the injury is but one. It is often a question of degree. I have reviewed other factors and taken into account all of the circumstances. In my view the evidence must be clear for the Court to conclude the mens rea existed. [170] The criminal standard of proof is an exacting one and often described as significant onus for the Crown to meet. At the same time the Crown is not expected to prove the essential elements of an offence to an absolute certainty. [171] Respectfully, I am not satisfied the Crown has met its burden on the charge of attempted murder. On the whole of the evidence, I am left with a reasonable doubt as to Mr. LeRoy’s guilt. [172] Mr. LeRoy is therefore acquitted on Counts 1 and 2 of the Indictment. Counts 3, 4, 5 - Aggravated Assault Charges, s. 268 of the Criminal Code [173] In Counts 3, 4, 5 the Accused is charged with aggravated assault of Edward O’Brien, Robert MacDonald and Carolyn Dermody. [174] The essential elements of the offence of aggravated assault are the elements for simple assault and a resultant wound that was objectively foreseeable. (R v. Nurse, (1993), 83 C.C.C. (3d) 520) [175] Assault is defined in s. 265(1)(a) or (b) of the Criminal Code. It is generally considered to be the intentional application of force to a person without their consent. The Crown must also prove that the Accused knew the victim was not consenting. Consent is not really an issue in these circumstances. [176] Section 268(1) of the Criminal Code states: Aggravated assault 268 (1) Every one commits an aggravated assault who wounds, maims, disfigures or endangers the life of the complainant. [177] In each of these counts the Crown alleges that Mr. LeRoy did wound Edward O’Brien, Robert MacDonald and Carolyn Dermody. [178] To “wound” means generally to cause a breaking of the skin. It has been held that the term “wound” requires a break in the continuity of the whole skin that constitutes serious bodily harm. (R v. Pootlass, 2019 BCCA 96) A “cut” requiring stitches would be considered a wound. [179] The mens rea of this offence is objective foresight of bodily harm and does not require proof of an intent to maim, wound or disfigure. (R v. Godin, 1994 CanLII 97 (S.C.C.)) [180] In the present case, the Crown alleges it was the conduct of Mr. LeRoy in assaulting Mr. O’Brien, Mr. MacDonald and Ms. Dermody that caused the wounding. That it was him who inflicted the injuries that each of them suffered. [181] The Crown further submits that the conduct of the Accused which caused the wounding, is conduct that any reasonable person would realize would subject persons to the risk of bodily harm. [182] Applying these principles to the evidence in this case, I conclude that Raymond LeRoy intentionally applied force to Edward O’Brien by shooting at him and striking him. Given the nature of his injury this caused to Mr. O’Brien, I conclude he was wounded by the Accused’s actions. I am also satisfied that a reasonable person would realize that, using a shotgun containing ammunition (shot shells) would subject Mr. O’Brien to the risk of “bodily harm”. [183] “Bodily harm” is defined in the Criminal Code as “a hurt or injury that interferes with the integrity, health and well being of the victim”. [184] It is not harm that is fleeting, transient or trifling in nature. It requires more than that. Mr. O’Brien’s wound was described in the medical records as having shotgun pellets in his posterior left leg. It needed to be packed with lengths of gauze. There were no gunshot wounds about the head, neck, chest or abdomen and there was nothing in his back. I accept this evidence in relation to the injury. [185] Similarly, I find the force inflicted upon Robert MacDonald by Mr. LeRoy was intentional and caused him to be wounded in the arm. I accept the police evidence that he was in shock when they encountered him. The medical report referred to “a wound that is consistent with a shotgun to the left elbow. This is somewhat mangled and macerated”. There were hundreds of shotgun pellets to the elbow and there was a concern that some of them may have penetrated into the elbow joint. [186] I conclude that Mr. LeRoy did wound Mr. MacDonald and that the risk that Mr. MacDonald would suffer bodily harm was objectively foreseeable by any reasonable person in these circumstances, that is the discharge of a firearm containing shotgun shells with pellets. [187] With respect to Ms. Dermody, the circumstances around her injury are not as clear from the evidence. She clearly suffered an injury to her left foot, she was shot, she said. She believed it resulted from the first shot through the window. [188] Mr. O’Brien was unsure of how Carolyn Dermody got hit. She stated there were pellets in her foot that had to be removed and she required stitches, 5 or 6 she said. [189] The medical reports state there were “no foreign bodies found” in her foot. The wound was described in the ER report as a “very small superficial puncture wound with no active bleeding”. The bleeding had stopped by the time she arrived at the hospital. Instead of stitches the hospital report states she was treated with a “silver nitrate strip” being placed over the injury. [190] She had a normal range of motion, and the x-ray of the foot was within normal limits. [191] There is a notation that she had some pain in her foot [192] The evidence raises some question as to whether the essential elements of the charge of aggravated assault in Count 5 have been made out. Clearly there had been some bleeding, but the wound was described as superficial, which gives rise to the question of whether there was a break in the continuity of the whole skin. It did interfere with the health and well being of Ms. Dermody, to an extent. Actual bodily harm is not an essential element of this offence, only the foreseeability of it. (R v. Williams, (2004)184 C.C.C. (3d) 193 (N.L.C.A.)) [193] In addition, there no direct evidence that the Accused shot directly at Ms. Dermody or intentionally applied force to her. However, the Crown submits that is not necessary where the accused discharged a shotgun into a confined space with multiple individuals present. There were pellets all over the apartment, she said. There was also glass in the apartment, in which she was running around. No foreign objects were found in her foot, the report stating “no pieces of shotgun visible on the x-ray”. [194] On the other hand, the police officers gave evidence of the blood trail leading into apartment #6 that would suggest her foot was cut and clearly bleeding at that time. [195] As to objective foreseeability, once again, this was a shooting with several people in a small apartment. This included Mr. LeRoy’s niece, who was not shot. [196] On the whole, I am not satisfied that the Crown has proven the essential elements of the offence involving Ms. Dermody. It is unclear how Mr. Dermody was wounded. I am cognizant that she would not have been injured at all had it not been for the actions of the Accused. However, the essential elements of the offence must be proven beyond a reasonable doubt. Mr. LeRoy is entitled to the benefit of any such doubt. The Accused, Mr. Leroy, is found not guilty of the offence in count in Count 5. [197] The Crown had satisfied me that the essential elements of the offence of aggravated assault have been proven with respect to Counts 3 and 4 involving Mr. O’Brien and Mr. MacDonald. I therefore find Mr. Leroy guilty and enter convictions on these two Counts. Count 6 s. 348(1)(a) of the Criminal Code [198] In this count Mr. LeRoy is charged that he did break and enter a place, to wit the dwelling house at 16 Barrington Street, Apartment #2, Sydney Mines, with intent to commit an indictable offence therein, contrary to s. 348(1) (a) of the Criminal Code. [199] Pursuant to s. 348(3) the word “place” means a dwelling house, or a building or structure other than a dwelling house. It is not disputed that apartment #2 was the residence of Carolyn Dermody and Edward O’Brien, and that the apartment was their place of dwelling. [200] The term “break” is also defined in the Criminal Code to mean (a) to break any part, internal or external, or (b) to open anything that is used or intended to be used to close or to cover an internal or external opening. (Section 321 (a) and (b)) [201] The word “enter” is defined in the Criminal Code (s.350(a)) for the purpose of s. 348. A person “enters” as soon as any part of his body or any part of an instrument that he uses is within anything that is being entered. [202] Applying these definitions to the case before me, the evidence is that Mr. LeRoy first entered apartment #2 by kicking the door in at the top of the stairs. The photos show the “latch” that had been part of the frame, on the ground directly in front, as testified to by Mr. O’Brien and shown in photo 9 of Exhibit #1B. [203] I am satisfied the evidence showed that the stair window was shot through, leaving the curtain hanging, and that the bottom window in the door, the lower pane, was shot through by Mr. LeRoy. [204] Both Crown witnesses testified that the Accused was shooting through the window, he reached in said Mr. O’Brien. Ms. Dermody said he had passed the threshold and was standing level to the door. Even if he had not, as Edward O’Brien maintained, the wads, pellets and barrel of the gun are part of that instrument and clearly broke the windows and entered the apartment. Sgt. MacLeod confirmed the pellets, wads, and damage that had occurred inside the apartment. [205] The mental element for this offence requires proof that Mr. LeRoy intended not only to break in and enter a place, but in doing so intended to commit an indictable offence in the residence of Edward O’Brien and Carolyn Dermody. [206] As previously shown, intention is a state of mind, and it is impossible to see inside a person’s mind to determine whether or not they intended to do something. [207] Where there is evidence that a person without lawful excuse enters a dwelling house, that evidence is, in the absence of any evidence to the contrary, proof that he entered the dwelling house with intent to commit an indictable offence therein. (See s. 349(2) pf the Criminal Code) [208] This Court has already found on the evidence at trial that Mr. LeRoy did commit the indictable offence of aggravated assault on the date, time and place alleged in the Indictment. [209] The Defence maintained it was not Mr. LeRoy and that there was no proof beyond a reasonable doubt that a shotgun was used by the shooter. I have already made the finding that it was him and that a shotgun was used. [210] I further am satisfied the Crown has established that this was a dwelling house, and that the date, time and place of the offence has been proven beyond a reasonable doubt. [211] Mr. LeRoy is convicted of the offence of break and enter with intent in Count 6. Count 7 – s. 85(1)(a) of the Criminal Code [212] In this count Raymond LeRoy is charged with the use of a firearm while committing the offence of aggravated assault on Carolyn Dermody. [213] In order to be convicted of this offence, an essential element that must be proven is that Mr. LeRoy committed the underlying offence as stated in the charge. [214] Whereas I have found that Mr. LeRoy did not commit the underlying offence of aggravated assault on Ms. Dermody, a conviction for Count 7 cannot be sustained. [215] Mr. LeRoy is therefore acquitted on this Count pursuant to s. 85(1)(a) of the Criminal Code. Count 8 – s. 88(1) of the Criminal Code [216] The Accused, Mr. LeRoy, is charged that he did carry or have in his possession a weapon, to wit a shotgun for a purpose dangerous to the public peace. [217] “Weapon” as defined in section 2 of the Criminal Code includes a firearm. “Firearm” is defined in s. 2 as a “barrelled weapon from which any shot, bullet or other projectile can be discharged… and is capable of causing serious bodily injury or death to a person”. [218] Based on the evidence that I have accepted ,I am satisfied that the shotgun carried by Mr. LeRoy would constitute a weapon within the meaning of s.2 and that Mr. LeRoy had this weapon in his possession on the date of December 22, 2019, while at 16 Barrington Street, apartment #2, Sydney Mines, NS. [219] The critical element of this offence is the purpose for which the Accused possessed the weapon. The Crown must establish that the purpose for which Mr. LeRoy possessed the weapon was one dangerous to the public peace. [220] The weapon in this case has not been located. The actual use of the weapon, in a way that is in fact dangerous does not satisfy the requirement of this offence because it is the purpose for which it was carried or possessed that matters, and not its actual use. That is unless it is proven that the purpose Mr. LeRoy carried the weapon was to use it in the way he did. [221] I am satisfied that is the rational inference to be drawn from the evidence introduced at this trial. Clearly, the use made of the shotgun by the Accused was dangerous to the public peace. I have concluded that using the weapon to cause harm to the victims would constitute a purpose dangerous to the public peace. [222] Mr. LeRoy is therefore convicted on Count 8. Count 9 – s. 117.01(1) of the Criminal Code [223] With respect to the charge in Count 9 the Crown acknowledged that no prohibition order was entered into evidence. Accordingly, the Crown asked that the Court enter a finding of not guilty on this charge. [224] Mr. LeRoy is found not guilty of possessing a firearm contrary to a prohibition order dated September 11, 2011. Count 10 – s. 145(3) of the Criminal Code [225] Mr. LeRoy is charged that he failed to comply with a condition of his Recognizance entered into on February 19, 2019, which condition required him to keep the peace and be of good behavior. This Recognizance has been entered into evidence as Exhibit #8. [226] The evidence at trial satisfied me that Mr. LeRoy did fail to abide by this condition in that his actions constituted a breach of his promise to keep the peace and be of good behaviour as contained in clause (1) of Exhibit #8. [227] The Crown has proven the essential elements of this offence beyond a reasonable doubt. [228] Mr. LeRoy is found guilty on Count 10. Count 11 – s. 145(3) of the Criminal Code [229] Similar to the previous Count, the Accused is charged with failure to comply with a condition of his Recognizance dated February 19, 2019, specified in the Indictment as a failure to prove compliance with the curfew condition by presenting himself at the entrance of his residence within three (3) minutes should a peace officer or supervisor attend there to check compliance. [230] In order for the Crown to establish the elements of this offence it would have to establish that Mr. LeRoy failed to respond to the attendance by a peace officer to check on his compliance. No such evidence was introduced by the Crown. Mr. LeRoy is therefore acquitted of this charge. Count 12 – s. 145(3) Curfew [231] This Count contains a charge that the Accused failed to comply with a condition of his Recognizance to remain in his residence from 10:00 a.m. to 7:00 p.m. [232] During the Crown submissions it was brought to their attention that the charge in Count 12 alleged the curfew was from 10:00 a.m. to 7:00 p.m. The offence is alleged to have occurred at 6:00 a.m. and outside the time frame alleged on the Indictment. [233] This was clearly a clerical error as the Recognizance entered as Exhibit #8 contains the time 10:00 p.m. to 7:00 a.m. as evidenced by the words “the following day”. [234] Procedure is an important aspect of criminal law and setting out a charge accurately is something the Accused is entitled to expect in the in the form of the Indictment. [235] Had there been an amendment requested by the Crown, it would likely have been granted. However, no amendment was requested or granted. [236] In my respectful view, the Crown is left with an allegation in the Indictment that falls outside the time frame that the curfew was alleged to have been breached. [237] While it may fall within the inherent jurisdiction of the Court to amend the Indictment, because of an obvious error, I find that would be prejudicial to the Accused. [238] I therefore enter a finding of not guilty on Count 12. Murray, J.