WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—

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

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

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

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

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

Court Information

Ontario Court of Justice

Date: 2014-02-21

Court File No.: Belleville 130039

Between:

Her Majesty the Queen

— and —

Gary Whyte, Justin Kleinsteuber & Claudette Cardinal

Reasons for Ruling

Before: Justice E. Deluzio

Heard on: November 5-8, 2013; January 20-24, 2014; February 19, 2014

Counsel:

• P. Layefsky and A. Zegouras — counsel for the Crown
• P. Hurley — counsel for the accused Gary Whyte
• P. Kort — counsel for accused Justin Kleinsteuber
• J. Bonn — counsel for accused Claudette Cardinal

Deluzio J.:

[1] The three accused, Gary Whyte, Justin Kleinsteuber, and Claudette Cardinal, are jointly charged with second degree murder in the death of Shane Stone on January 2, 2013.

[2] This is an Application by the Crown to admit evidence of other discreditable conduct of Justin Kleinsteuber and Claudette Cardinal relating to an incident on November 23, 2011, which involved both accused assaulting two adult male victims. The Crown seeks to admit the transcripts of the facts read in on the guilty pleas of both accused as evidence on this Preliminary Inquiry to support a committal against both accused on the charge of second degree murder.

[3] On January 2, 2012 Claudette Cardinal pleaded guilty to Assault Cause Bodily Harm and Breach of Recognizance. On March 2, 2012 Justin Kleinsteuber pleaded guilty to Assault Cause Bodily Harm, Assault with a Weapon, and Breach of Probation. Transcripts of the facts read in on these guilty pleas have been filed in support of the Crown's Application.

[4] The accused, Justin Kleinsteuber, concedes committal on the charge of second degree murder as framed in the information. He does not oppose this Application for the purpose of the preliminary hearing only. The accused, Claudette Cardinal, takes the position that the evidence relating to the prior assault is inadmissible.

[5] Evidence that an accused has engaged in a prior criminal act presents a serious risk of prejudice and is presumptively inadmissible.

[6] The Crown argues that the evidence is admissible in this case because it is more probative than prejudicial and will assist the Court in determining the specific role each accused played in the death of Mr. Stone and whether or not either accused was acting independently or whether they acted as parties and in concert.

[7] Counsel for Ms. Cardinal argues that the evidence should not be admitted because the evidence is highly prejudicial and there are not enough distinctive or unique similarities between the prior discreditable conduct and the offence charged, to overrule the probability of coincidence.

[8] The facts admitted by Ms. Cardinal relating to the November 23, 2011 incident are basically as follows: Mr. Kleinsteuber and Ms. Cardinal were overnight guests in the residence of the two victims, who were brothers. The two accused and both victims spent the day drinking together until Mr. Kleinsteuber and Ms. Cardinal turned on the brothers in an alcohol fuelled rage for no apparent reason. Mr. Kleinsteuber admitted to breaking glass beer bottles over both victims' heads before punching, kicking and stomping the brothers as they lay dazed on the living room floor. Ms. Cardinal admitted to cheering Mr. Kleinsteuber on and kicking the victims while they were on the ground. One of the brothers fled and called the police from a neighbour's apartment. Both brothers suffered mainly head and facial injuries, including bruising to their head and faces, as well as cuts, scrapes and purple bruising to their backs and the backs of their heads. One brother had a swollen left eye and broken nose. Most of the blood vessels in the second brothers' eyes had ruptured. The clothing of both brothers was covered in blood. When police arrived both accused were passed out in the living room. Ms. Cardinal had a small amount of blood on the toe of her right shoe and the side of her left shoe. Mr. Kleinsteuber had blood on his red swollen knuckles and forearms as well as both pyjama pant legs.

[9] The Crown's evidence heard during this preliminary inquiry can be summarized as follows: During the early evening of January 2, 2013, Mr. Kleinsteuber and Ms. Cardinal went to the Duke bar in Belleville, Ontario where they met two other individuals, the co-accused, Gary Whyte, and the victim, Shane Stone. Mr. Whyte and Mr. Stone arrived separately at the bar. There is no evidence that Mr. Stone knew any of the accused before that evening. While they were at the bar, Mr. Kleinsteuber was seen talking to Mr. Whyte, and Ms. Cardinal was seen talking to Mr. Stone. At the end of the night the four left the bar together, and took a cab to 90 Gilbert St., the rooming house where Mr. Whyte lived. At some point during the night Mr. Stone suffered massive brain injury caused by blunt force trauma to his head and face and multiple facial and head injuries, caused by multiple impacts and blows to Mr. Stone's head and face.

[10] Dr. Michaud, a Neuropathologist who conducted a post mortem examination of Mr. Stone's brain, testified that Mr. Stone's brain injuries were the main contributing factors leading to Mr. Stone's death. Although most of Mr. Stone's injuries were to his head and face he had other injuries, including multiple bruises on his hands and forearms and multiple circular burn marks on his back shoulder area. Dr. Kepron, the Forensic Pathologist, testified that all of these burn injuries were "recent", at least one burn mark was made after Mr. Stone died, and the burn marks were likely caused by a cigarette.

[11] There is forensic evidence linking both Mr. Kleinsteuber and Ms. Cardinal to Mr. Whyte's room, where Mr. Stone's body was found. Mr. Stone's blood was found in the taxi that Mr. Kleinsteuber and Ms. Cardinal took from 90 Gilbert St. to 59 Russell St. His blood has also been found on a pair of men's boots and a pair of women's boots found in the dryer, in the basement area of 59 Russell St. where Mr. Kleinsteuber and Ms. Cardinal were arrested. Bloody footwear impressions found at 90 Gilbert St. share significant characteristics with both of these pairs of boots seized from 59 Russell St. Mr. Stone's blood has also been detected on jeans found in a dryer in the basement of 59 Russell St. Mr. Stone's blood was also detected on a sock Mr. Kleinsteuber was wearing on arrest.

[12] DNA of Mr. Kleinsteuber and Ms. Cardinal was found on the non-bloodied filter portion of a cigarette butt at the scene, in Mr. Whyte's room. Mr. Stone's blood has been detected on the other end of the same cigarette butt.

[13] An empty, blood covered bottle of rum was found at the scene near Mr. Stone's body. Mr. Stone's DNA was detected in the blood. Blood spatter evidence supports an inference that Mr. Stone was struck while he was lying down.

[14] The Crown argues that there are multiple similarities between the two incidents and identifies the following:

(i) same two parties involved (Mr. Kleinsteuber and Ms. Cardinal);

(ii) two other men present and drinking with Mr. Kleinsteuber and Ms. Cardinal;

(iii) both incidents occurred very early in the morning, when the two accused were guests in another person's home;

(iv) the victims in both incidents were struck in the head, suffered injuries, including broken noses, and were struck when they were not standing;

(v) Ms. Cardinal had blood from the victim on her right footwear in both cases; and

(vi) neither Mr. Kleinsteuber nor Ms. Cardinal suffered any injuries in either incident, except that Mr. Kleinsteuber had swollen knuckles on his right hand in both incidents.

[15] Most of the "similarities" relied on by the Crown are generic in the sense that they are the kinds of details present in countless assaults that are before the courts. As Paciocco and Struesser point out at p 67 of "The Law of Evidence" (6th ed. 2011) "Where the probative value of similar fact evidence depends on similarities, care has to be taken not to act on generic similarities or the kinds of features likely to be present in most instances of the same crime. Generic similarities do not yield appropriate inferences. They also increase the risk that the improper inference from 'bad personhood' will be drawn and they may mask important dissimilarities between the similar fact evidence and the crime charged."

[16] Many assaults occur between people who have been drinking heavily. Physical injuries to the head of the victim are also, unfortunately, not uncommon in assault cases. Many post bar assaults occur in private residences. None of these details will assist the Court in assessing what Ms. Cardinal's degree of participation or what role, if any, she and Mr. Kleinsteuber played in Mr. Stone's death.

[17] The absence of injuries to both accused is evidence of nothing, and the presence of bruising on Mr. Kleinsteuber's right knuckles is not a similarity that could assist the Court in determining what role, if any Ms. Cardinal played. The fact that Mr. Kleinsteuber assaulted the victims of the first incident by hitting them with a bottle is not sufficiently similar to the presence of the victim's blood on an intact bottle found at the scene, and in any event, does not assist the Court in assessing the role or degree of participation of Ms. Cardinal in Mr. Stone's death.

[18] There are significant differences between the two incidents, including the number of people charged, and the number of victims. Certainly these differences suggest a different dynamic that would directly impact the role or degree of participation of each accused person. Another significant difference is that in the prior assault, the victims were known to both accused and the accused were in fact guests in the victims' residence, while in this incident the victim was previously unknown to the accused.

[19] The burn marks on Mr. Stone would qualify as the type of unusual or distinctive feature that could unify two events, but there were no burn injuries caused to the two victims of the previous assault.

[20] The presence of the victim's blood on footwear linked to Ms. Cardinal is a significant similarity between the two events, but when considered along with the other more generic similarities and the significant differences between the two events, it has limited probative value in the Court's assessment of the role played by Ms. Cardinal.

[21] In the previous assault, Ms. Cardinal cheered on Mr. Kleinsteuber and kicked the victims while they were lying down. She had blood on her footwear. In this case there is forensic evidence that places Ms. Cardinal in the room where Mr. Stone was killed and the victim's blood is found on a woman's boot found in the dryer in the basement room where Mr. Kleinsteuber and Ms. Cardinal were arrested.

[22] The Crown wants to use the evidence of the previous assault to argue that Ms. Cardinal either played an active role in Mr. Stone's death or encouraged or cheering on Mr. Kleinsteuber's violent attack.

[23] The Crown argues that Ms. Cardinal's participation with Mr. Kleinsteuber in a drunken violent serious assault before is highly probative to show that Ms. Cardinal played an active role in the death of Mr. Stone.

[24] To be admissible "the strength of the similar fact evidence must be such as to outweigh 'reasoning prejudice' and 'moral prejudice'. The inferences sought to be drawn must accord with common sense, intuitive notions of probability and the unlikelihood of coincidence": see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908.

[25] Even when taken together the similarities identified by the Crown are of limited probative value in the Court's determination of the role played and degree of participation of Ms. Cardinal and Mr. Kleinsteuber. Essentially the Crown wants to adduce this evidence to show that Ms. Cardinal is the "type of person" who commits serious assaults with Mr. Kleinsteuber. This is exactly the type of reasoning that is prohibited, and the risk of prejudice to the accused is significant.

[26] For these reasons I find that the evidence of prior disreputable conduct of the accused, Mr. Kleinsteuber and Ms. Cardinal, is inadmissible and the Crown's Application is dismissed.

Released: February 21, 2014

Signed: "Justice E. Deluzio"