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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: 2014-03-28

Court File No.: 130039 Belleville

Between:

Her Majesty the Queen

— And —

Gary Whyte, Justin Kleinsteuber, Claudette Cardinal

Ruling on Committal

Before: Justice E. Deluzio

Heard on: November 5, 2013 – November 8, 2013; January 20, 2014 - January 24, 2014; February 19, 2014; February 21, 2014; February 24, 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.:

Introduction

[1] On January 2, 2013 Shane Stone was beaten to death in Gary Whyte's bedroom in a rooming house located at 90 Gilbert St., Belleville, Ontario. The three accused, Gary Whyte, Justin Kleinsteuber, and Claudette Cardinal, are jointly charged with second degree murder.

[2] The preliminary inquiry was heard over 12 days, beginning November 5, 2013 and ending January 24, 2014. Submissions were heard on February 19, 21 and 24, 2014.

[3] At the conclusion of the preliminary hearing, the accused, Mr. Kleinsteuber, conceded committal and he is hereby committed to stand trial on the charge of second degree murder.

[4] The Crown seeks committal against Ms. Cardinal on the charge of second degree murder. The Crown also submits that the evidence heard at the preliminary hearing supports Ms. Cardinal's committal on the charges of accessory after the fact to second degree murder or manslaughter and robbery.

[5] The Crown asks that Mr. Whyte be committed to stand trial on the charge of second degree murder.

[6] Counsel for Ms. Cardinal argues that the evidence does not support a reasonable inference that Ms. Cardinal possessed the requisite intent for murder and argues that Ms. Cardinal should be committed as a party to manslaughter.

[7] Counsel for Mr. Whyte argues that the evidence establishes only that Mr. Whyte was present, that there is no evidence at all that he was involved in the events that caused Mr. Stone's death, and that Mr. Whyte should be discharged outright.

Summary of the Evidence

[8] There is evidence establishing that during the early evening of January 1, 2013, sometime before 7:30 pm, Mr. Kleinsteuber and Ms. Cardinal, who were in a relationship, went to the Duke bar in Belleville. While they were at the bar, Mr. Kleinsteuber was seen talking to Mr. Whyte, and Ms. Cardinal was seen talking to and flirting with Mr. Stone. There is no evidence that Mr. Whyte knew Ms. Cardinal or Mr. Kleinsteuber before that night, but there is evidence that all three co-accused were regulars at the Duke bar. There is no evidence that Mr. Stone knew any of the three co-accused before that night.

[9] Dan Proud, the bouncer at the Duke, testified that Mr. Kleinsteuber and Ms. Cardinal, both of whom he has known as regular bar patrons for four or five years, were already at the bar when he arrived for work at 7:30 p.m. on January 1st, 2013.

[10] Mr. Proud testified that he also knew Mr. Stone because Mr. Stone's brother dated Mr. Proud's daughter. He recalled that Mr. Stone arrived at the bar around 8 or 8:30 p.m., shortly after he started working. He testified that Mr. Stone "had a girl with him" but he didn't know who the girl was.

[11] Mr. Proud testified that he saw Mr. Kleinsteuber and Ms Cardinal associating with Mr. Whyte, who he also knew as a regular at the bar. Mr. Proud testified that Mr. Whyte arrived at the bar at around 10:00 p.m. and said he saw Mr. Kleinsteuber and Ms. Cardinal talking to Mr. Whyte for "maybe an hour". Mr. Proud recalled that Mr. Kleinsteuber and Ms. Cardinal were seated at a table near the jukebox and Mr. Stone, and the girl he was with, were sitting at a table about 10 feet away.

[12] Mr. Proud testified that not long after seeing the three co-accused together, he saw Mr. Kleinsteuber and Ms. Cardinal arguing with another couple over the music being played at the jukebox and he asked Mr. Kleinsteuber and Ms. Cardinal to leave. He said they asked him to call a cab for them and he called Central Cab company. He said he saw Mr. Whyte leave the bar with Ms. Cardinal and Mr. Kleinsteuber, exiting the front door. He testified that Mr. Stone left the bar 15 minutes before the three co-accused left, exiting from the back door. He recalled that Mr. Stone left the bar by himself, and that the girl he had been with had left before he did.

[13] Ashley Dobson testified that she was in a relationship with Mr. Stone and had been seeing him for several months before he died. She said she was sitting at a table with Mr. Stone and her friend, Patricia Morrison, and that Ms. Cardinal and Mr. Kleinsteuber were sitting at a table just across the room, near the jukebox. She said Mr. Kleinsteuber introduced himself to her when they were standing by the jukebox, told her his name was Justin and said he just got out of jail.

[14] Both Ms. Dobson and Patricia Morrison testified that Ms. Cardinal was flirting with Mr. Stone, and grabbing at his clothing. They both say that Ms. Cardinal was confrontational towards them and was calling them names like "bitch" and "slut".

[15] Ms. Dobson testified that she left the bar before Mr. Stone left. She said before she left she went outside to have a cigarette on the balcony at the rear of the bar and she talked to Mr. Whyte. She said he gave her a cigarette and asked her if there was anywhere he could get drugs. While she was outside she looked into the bar and saw Ms. Cardinal "hanging off" of Mr. Stone. She said Mr. Stone came out and told her she should go home. She was upset that Ms. Cardinal was flirting with Mr. Stone.

[16] Ms. Morrison and Ms. Dobson both testified that they saw Mr. Whyte and Mr. Kleinsteuber together at the bar. Ms. Dobson testified that she overheard Mr. Whyte and Mr. Kleinsteuber say they that if they could get drugs they were going to "lose Claudette". Ms. Morrison testified when she was out on the patio she saw Mr. Whyte and Mr. Kleinsteuber together and she overheard them talking about being bisexual and having sex, and not wanting the girl involved.

[17] Ms. Dobson and Ms. Morrison testified that they did not know any of the three co accused before that night. They both identified all three accused from police photo line ups.

[18] A still shot from street surveillance cameras show four people standing outside the bar at 12:06 a.m. Ms. Dobson identified Mr. Stone from a second still shot at 12:07 a.m. as one of the four people entering a cab parked in front of the Duke bar. She said she recognized him from his height, and the clothing he was wearing that night. She said Mr. Stone was wearing a white ball cap and a black coat with fur trim that night. A white ball cap and a coat matching Ms. Dobson's description of the coat Mr. Stone was wearing that night were found at the scene near Mr. Stone's body.

[19] A cab driver for Central Taxi, Ted Hill, testified that between midnight and 2:00 a.m. he picked up a woman and three men at the Duke Bar and drove them to 90 Gilbert St., Belleville. He described taking a route along College St. to Gilbert St. and said the ride would have taken 4 or 5 minutes. He said he parked his cab in the "inlet" on the street in front of the bar. Mr. Hill testified that he recognized one of the men from having picked him up earlier that same evening at the bus station in Belleville, and driven him to 90 Gilbert St. The man told him he had been in Toronto visiting family for Christmas. Mr. Hill testified that the man he picked up earlier that day sat in the front passenger seat and the woman and two other men sat in the back seat. He recalled that during the ride the man in the front seat made a comment that he only had three glasses and did not have enough glasses for everyone to have a drink. One of the men in the back said "I do not have much, but I have more than three glasses". It is reasonable to infer from this evidence that the plan of the three co accused and Mr. Stone was to continue drinking at Mr. Whyte's residence.

[20] Ms. Dobson testified that after Mr. Stone left the bar she called him and talked to him while he was still in the cab. Cell phone records for Ms. Dobson's cell phone and the cell phone used by Mr. Stone that night corroborate Ms. Dobson's evidence and show a voice call occurring between Ms. Dobson and Mr. Stone at 12:14 a.m. Ms. Dobson testified that during this call she asked Mr. Stone if he had made it home and he told her he was still in a taxi and that he did not know where he was going but was near Quinte High School. Ms. Dobson said she heard Ms. Cardinal's voice in the background. She said she recognized Ms. Cardinal's voice from her contact with Ms. Cardinal at the bar earlier that evening. Officer Doucette testified, referring to a google street map, that Quinte High School is on College St., on the most direct route leading from the Duke Bar to 90 Gilbert St.

[21] SMS records between these same phones show text messages between Mr. Stone and Ms. Dobson arranging their meeting at the bar that night, and also show several text messages sent by Ms. Dobson after the 12:14 a.m. phone call, that went unanswered. The following text, sent at 12:46 a.m. is corroborative of the evidence of both Ms. Dobson and Ms. Morrison, about the interactions between Ms. Cardinal and Mr. Stone at the bar: "I don't no why u tell me to texts u when u don't even texts me like what the fuck like really did u go with that fucking bitch I don't fucking care I just wanted to no".

[22] Cell phone records for Mr. Stone's phone show that at 4:42 a.m. a phone call was made to the Central Cab taxi company. The call was recorded by the taxi company in accordance with the cab company's regular practice at that time. The recording was played in Court and entered as an Exhibit. On the recording a female voice can be heard asking "what's your address here?" and a male voice responds: "90 Gilbert". The female voice then asks "is it a house or an apartment?" and the male responds: "a house". Officer Kiley, testified that he recognized the female voice as the voice of Ms. Cardinal and the male voice as the voice of Mr. Whyte.

[23] The taxi cab driver, Lhemi Garcia, testified that he picked up a lady "that looked like a Canadian native person" and a young man at 90 Gilbert Street between 4:00 and 5:30 a.m. on January 2, 2013. They were standing at the end of the driveway of 90 Gilbert when he arrived. A beer bottle, and blood linked by DNA testing to Mr. Stone, was later found in the snow at the location where Mr. Garcia says the couple was standing when he arrived.

[24] Mr. Garcia testified that he heard one of them say that if they were not going to be looked after in the place they were going they were going to go to another place. He recalled that the lady accused him of taking a longer route to make more money and she looked quite angry. Mr. Garcia described the young man as quiet, calm and nice. He drove them to 59 Russell St, Unit 77. Mr. Garcia testified that when he arrived, the lady asked him if the young man could smoke in his cab. He could understand clearly what the lady was saying and that he did not think they were drunk. The young man waited in the cab while the lady got out and knocked on the door. The door was open by a man in his pyjamas, the young man paid the cab fare, exited the cab and they both entered the unit.

[25] Ralph Karl is the tenant at 59 Russell St. Unit 77. He testified that he had known Ms. Cardinal for about a year before her arrest in the death of Mr. Stone. He said Ms. Cardinal and Mr. Kleinsteuber had been staying at his home and partying for a couple of nights, including New Year's Eve. He says they left his house at some point during the day on January 1st and they were not planning to return that night. Mr. Karl testified that he heard them say they were going to the Duke bar. The next time he saw them was at 4:00 or 5:00 a.m. when Ms. Cardinal was knocking on his door. He answered the door and Ms. Cardinal told him "they had been in a fight" and asked if they could stay at his home. Mr. Karl said Ms. Cardinal seemed upset, like someone would be in a stressful situation, and he thought she was intoxicated. Mr. Kleinsteuber was sitting in the cab while he talked to Ms. Cardinal at the door. Mr. Karl said they could stay and saw Ms. Cardinal and Mr. Kleinsteuber sleeping together on his sofa when he got up to walk his dog the next morning.

[26] Just before midnight that same day, at approximately 11:55 p.m., based on information gathered from Mr. Whyte, various witnesses at the Duke Bar, the cab company, and the taxi drivers, the police attended Mr. Karl's residence, and arrested Mr. Kleinsteuber and Ms. Cardinal in the basement of Mr. Karl's residence.

[27] A pair of men's size 8 boots, a pair of women's size 6.5 Airwalk boots, and several items of clothing were seized from the basement and clothes dryer in close proximity to where Mr. Kleinsteuber and Ms. Cardinal were located when they were arrested.

[28] Mr. Stone's cell phone was recovered from Mr. Karl's residence several days after the pair was arrested. Mr. Karl found the smashed up cell phone among some of his own personal belongings in the living room on the main floor of his residence. Mr. Karl turned the phone over to the police. This phone was later identified as the cell phone associated to Mr. Stone. Phone records support the reasonable inference that Mr. Stone last used the phone during his phone conversation with Ms. Dobson when he was in the cab en route to Mr. Whyte's residence. The records show that after the incoming voice call from Ms. Dobson at 12:14 a.m. Ms. Dobson sent multiple text messages to Mr. Stone between 12:32 a.m. and 2:22 a.m. that went unanswered.

[29] The phone was then used to make two calls to the cab company, at 4:41:39 a.m. and at 4:42:06 a.m. The first call appears to be a wrong number because it is one number off of the correct phone number for the cab company. The second call is the recorded call to Central Taxi.

[30] The Court heard from Mr. Whyte's landlord, Gary Fox. Mr. Fox owns the home at 90 Gilbert St. and rents out rooms, including the downstairs room rented by Mr. Whyte. Mr. Fox testified that the downstairs consists of three bedrooms that he rents out, a shared bathroom, shared kitchen and shared laundry room. There is a side entrance leading downstairs. At the time of Mr. Stone's death, Mr. Fox had two other tenants, Ralph Cobledick who rented an upstairs room, and Chris Maracle who rented another downstairs bedroom, and shared a bathroom with Mr. Whyte. Both Mr. Fox and Mr. Cobbledick were home that night, in the upstairs portion of the house. Mr. Maracle was away and the third downstairs bedroom was unoccupied.

[31] Mr. Fox testified that he was awake and heard some people coming in and going downstairs. He also recalled that he went to sleep but woke up to what he thought was a "bit of a disturbance, you know, a little bit of a…..but then it quieted down and I went back to bed".

[32] Mr. Cobbledick also testified that he was in the house at 90 Gilbert St. that night. He went to bed early because he was working early the next day. He recalls going to bed around 8:00 p.m. He says he woke up at 3:00 a.m., had a shower and left the house around 4:00 a.m. He remembers hearing voices downstairs at some point during the night, but he did not hear anything unusual either during the night or while he was up and getting ready for work.

[33] Mr. Fox says he woke up around 8:00 or 8:30 a.m. and while he was having breakfast he heard a knock on his door. He opened the door to Mr. Whyte and he says he recalls exactly what Mr. Whyte said. He quoted Mr. Whyte as saying to him: "You're not going to like what I have to tell you but there's a dead Indian downstairs". Mr. Fox said he followed Mr. Whyte downstairs and saw a man's body laying there so he phoned the police immediately.

[34] Mr. Fox testified that when Mr. Whyte appeared at his door he looked like he had just woken up with a hangover, and he described Mr. Whyte as appearing emotional and shaken.

[35] Police were dispatched to 90 Gilbert St. at 9:06 a.m. Officer Aaron Bucci was the first officer on scene. Numerous police photographs were filed. The photos show Mr. Stone's body laying on the floor of a small, extremely cluttered bedroom only a few inches from Mr. Whyte's bed. The room dimensions, described in the police forensic report, are 12' x 9'. There are several items of furniture including a single bed, bedside table, two chairs, a dresser, a small card table, several shelving units, a coat rack, and an entertainment unit. A pillow and bedding are on the floor. There is no bedding, only a bed sheet, on the bed. There is minimal free floor space. There is a lot of aspirated and projected blood spatter around Mr. Stone's body and especially around his head and upper torso area. There is a bloodied towel under his head. There is obvious and extensive bloodied trauma and injury to Mr. Stone's head, and face. Mr. Stone is naked from the waist up. His jeans are down at his knees but his belt is still attached. He is wearing a pair of running shoes. His underwear are pulled down to below his hip area on his left side. There is a white plastic bag tied tightly around Mr. Stone's left wrist.

[36] Mr. Whyte was arrested at the scene by Officer Kellar at 10:10 a.m. Officer Kellar testified that he looked for and did not see any marks or injuries on Mr. Whyte's face and hands. Mr. Whyte was wearing a sweater and pants and had socked feet at the time of his arrest. Officer Bucci and Officer Kellar both described Mr. Whyte as polite and co-operative during their initial investigation of the scene and during his arrest.

The Evidence About Injuries and Cause of Death

[37] There is evidence that Mr. Stone suffered a violent and prolonged beating that night and that he died from injuries he suffered during this beating.

[38] Dr. Kepron, the Forensic Pathologist, testified that Mr. Stone suffered multiple facial and head injuries, including multiple nasal bone fractures, a fractured skull, multiple facial lacerations around his eyes, chin, and mouth, and the loss of three teeth and one tooth fragment which were found at the scene.

[39] Dr. Kepron testified that these injuries were caused by multiple impacts and blows to Mr. Stone's head and face. At some point during the night Mr. Stone suffered massive brain injury, caused by blunt force trauma to his head and face.

[40] Although most of Mr. Stone's injuries were to his head and face, he did have other significant injuries. There were multiple bruises on his hands and forearms.

[41] There were four small circular burns on his back (left) shoulder area. There is a similar circular blister on the left side of his lower stomach area. Fine grey ash was present on the surface of this lesion.

[42] There was a small round blister on Mr. Stone's back right shoulder. Dr. Kepron testified that this burn injury was caused close to or after death because the dermis was white with no erythema, meaning there was no blood flow to the burn area.

[43] Dr. Kepron testified that the finding of ash on one of the burn marks indicates that the burns were possibly cigarette burns.

[44] All of the injuries, including the burns suffered by Mr. Stone, were described as "recent" by Dr. Kepron.

[45] Dr. Kepron's opinion about the cause of Mr. Stone's small circular burn injuries is supported by forensic evidence. There is evidence that DNA from Mr. Kleinsteuber and from Ms. Cardinal was found on the non bloodied filter portion of a cigarette butt found in Mr. Whyte's room. Mr. Stone's blood has been detected on the other blood stained end of the same cigarette butt.

[46] Dr. Michaud, a Neuropathologist, conducted a post mortem examination of Mr. Stone's brain and testified that Mr. Stone suffered subdural hematoma with mass effect, and diffuse axonal injury, and that these two brain injuries were the main contributing factors leading to Mr. Stone's death. Dr. Michaud explained that the physical evidence of diffuse axonal injury means that Mr. Stone survived for at least 40 minutes and possibly an hour after the triggering event, before dying, and that during that period of survival there would have been vital functions sufficient to bring some blood to the brain.

The Forensic Evidence

[47] DNA testing has confirmed that Mr. Stone cannot be excluded as the donor of the blood found on the following items:

a. Blood splatter and/or pooling on various items of furniture, floor and wall areas of Mr. Whyte's room;

b. The bathroom counter, near the cold water tap in the shared downstairs bathroom at 90 Gilbert St.;

c. The back passenger area of the taxi that Mr. Kleinsteuber and Ms. Cardinal took from 90 Gilbert St. to 59 Russell St.;

d. The toe section of the right size 8 men's Mountain Ridge boot found in the basement at 59 Russell St. Unit 77;

e. A size 6.5 black Airwalk woman's boot found in the dryer, in the basement area of 59 Russell St. Unit 77 where Mr. Kleinsteuber and Ms. Cardinal were arrested;

f. A pair of size 34 waist jeans found in a dryer in the basement of 59 Russell St. Unit 77;

g. A sock Mr. Kleinsteuber was wearing on arrest;

h. In the blood, and on a hair stuck to an empty, blood covered 750 ml bottle of Bacardi rum found at the scene near Mr. Stone's body;

i. On a bloodied cigarette butt found on a bedside table at the scene. DNA testing links both Ms. Cardinal and Mr. Kleinsteuber to the filter portion of this same cigarette;

j. On a second cigarette butt found on the card table at the scene;

k. In the snow at the end of the driveway at 90 Gilbert St.;

l. On a black coat seized directly from Mr. Kleinsteuber after he was arrested; and

m. On a swab taken from a blood stain on Mr. Whyte's right hand.

[48] Ms. Cardinal and Mr. Kleinsteuber were arrested in the basement area of Mr. Karl's rental unit at 59 Russell St. Unit 77. There is evidence from Mr. Karl that they slept on the couch but when the police arrived they were in the basement. During the arrest police seized boots a pair of size 6.5 woman's boots from a clothes dryer which was located in the basement. Mr. Stone's blood was detected on the toe area of the right boot. The woman's boots taken from the dryer are similar to the boots worn by the female in the street surveillance photos.

[49] The only other people in the residence, Mr. Juby and Mr. Karl, both testified and said they did not have any clothing in the dryer and had not done laundry that day. They identified their own shoe and clothing sizes as different from the sizes of the boots and jeans seized by police.

[50] The police found footwear outsole and socked foot impressions in the blood at the scene, including Mr. Whyte's room, the hallway leading to the bathroom, and the bathroom floor areas. Sargeant Grant Boulay, Forensic Identification Officer, testified that there were two main footwear impressions found, a socked impression. A third footwear outsole pattern was determined to match the boots worn by the first officer on scene, Officer Bucci.

[51] The Size 8 left men's Mountain Ridge boot seized from the basement of 59 Russell St. had a lace pulled into the heel section of the boot tread. The footwear impressions were found to have a high degree of association with the Mountain Ridge boot, because of the unique characteristic in the footwear impressions, of a lace wedged between the lug treads. This boot had obvious blood staining, in particular on the right toe area. DNA testing from bloodstains on the edge of the sole and inside heel of one of these boots has determined that Shane Stone cannot be excluded as the donor of the DNA. Statistical odds that the donor could be someone else are 1 in 52 quadrillion.

[52] Sargeant Boulay, Belleville Police Forensic officer, testified that the women's boots taken from the dryer share only class characteristics with the footwear impressions in the blood in Mr. Whyte's room and he was unable to draw any conclusions about the degree of association between the footwear impressions and the boots. However, the presence of Mr. Stone's blood on the boot is evidence that connects the boots to the scene. This evidence supports the inference that the boots were worn by Ms. Cardinal and the further reasonable inference she participated in the assault on Mr. Stone by kicking him.

[53] These footwear impressions were found in the hallway and in the bathroom. There is evidence of diluted blood in the bathroom sink and Mr. Stone's DNA has been detected in blood on the sink. This evidence supports a reasonable inference that Ms. Cardinal was involved in a cleanup effort before she left Mr. Whyte's residence. The presence of the boots and jeans in the dryer supports the inference that both Ms. Cardinal and Mr. Kleinsteuber were engaged in another cleanup effort at Mr. Karl's residence.

[54] Mr. Stone's DNA was detected in a blood swab taken from a bloodstain on Mr. Whyte's hand. Statistical odds that the donor of the DNA could be someone other than Mr. Stone are 1 in 52 quadrillion. A bloody cell phone belonging to Mr. Whyte was found under his bed. The phone was seized and a swab taken from the phone, but there was no evidence that the blood swab has been analyzed for DNA. Other bloody items were found under Mr. Whyte's bed including a CD/Radio unit and a bloody towel. Given the significant amount of blood, including blood spatter and blood pooling in several locations in the room, it is also reasonable to infer that that these items were moved after the beating and bloodletting. The placement of the items under Mr. Whyte's bed, and the evidence that Mr. Whyte slept in his room that night, supports a reasonable inference that Mr. Whyte was involved in moving these items under his bed.

The Test for Committal

[55] The test for committal is whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty. A preliminary inquiry judge must commit an accused to stand trial "in any case where there is admissible evidence which could, if it were believed, result in a conviction." See: R. v Arcuri, 2001 SCC 54, 157 C.C.C. 3d 21 (S.C.C.).

[56] It is not the role of the preliminary inquiry judge to assess credibility or weigh the evidence for competing inferences. However, where the Crown relies on circumstantial evidence, as in this case, the preliminary inquiry judge must engage evidence in a limited weighing of the evidence by determining whether, if the Crown's evidence is believed, it could reasonably support an inference of guilt. The whole of the evidence is to be considered, and if there is sufficient evidence upon which a reasonable and properly instructed jury could convict, the preliminary inquiry judge must commit. Where more than one inference can be drawn from the evidence only the inferences favourable to the Crown are to be considered. See: R. v Sazant, 2004 SCC 77, 193 CCC (3d) 446 at para 14 (S.C.C.) and R. v Arcuri, 2001 SCC 54, 157 C.C.C. (3d) 21 (S.C.C.)

The Law

[57] The relevant provisions of the Criminal Code are: section 222 (definition of culpable homicide), section 229 (definition of murder) and section 21 (definition of party).

[58] A person commits culpable homicide when he causes the death of another human being by means of an unlawful act. A culpable homicide is murder where the person who causes the death of a human being means to cause his death or means to cause him bodily harm that he knows is likely to cause his death and is reckless whether death ensues or not.

[59] In order to commit Ms. Cardinal and Mr. Whyte to stand trial on a charge of second degree murder, I must find some evidence to support the reasonable inferences that each accused unlawfully caused Mr. Stone's death as a principal or as a party, and that each accused did so with the state of mind necessary for murder. A person who aids and abets another in the offence of murder can be guilty of that offence under section 21 of the Code if he or she possesses the requisite subjective mens rea for murder.

[60] The evidence of the individuals at the Duke bar that night, including the evidence of Mr. Proud, Ms. Dobson, Ms. Morrison, the street surveillance videos, and the evidence of the cab driver, Mr. Garcia, the phone call for a cab from Mr. Stone's phone, and the DNA evidence, all support an inference that both Ms. Cardinal and Mr. Whyte were present in Mr. Whyte's room when Mr. Stone was beaten to death.

[61] But presence alone is not enough to provide some evidence of participation, aiding or abetting. To establish party liability "something more is needed, encouragement of the principal offender, an act which facilitates the commission of the offence, such as keeping watch or enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit..." see: R. v Dunlop, [1979] S.C.J. No. 75 (S.C.C.) p 7 per Dickson J.

[62] In R. v Mariani, 2007 ONCA 329, [2007] O.J. No. 1715 (Ont C.A.), the Court of Appeal approved the charge of the trial judge on the three elements of party liability: "In relation to aiding and abetting, the trial judge told the jurors they must be satisfied (i) that the person alleged to have been a party was present at the scene of the assault or was close to the victim when he was being kicked (ii) that the presence of conduct had the effect of aiding or encouraging the perpetrators to commit the offence, and (iii) that the person alleged to have been a party must have intended to aid or encourage the assault."

[63] A person aiding and abetting a murder must intend that death ensue or intend that the perpetrator cause bodily harm of a kind likely to result in death and be reckless, whether death ensues or not, and by some act or omission, such as keeping watch, preventing or hindering interference with the assault, or preventing the victim from escaping: R. v Kirkness, [1990] 3 S.C.R. 74 and R. v Dunlop, [1979] 2 S.C.R. 881.

[64] Pursuant to section 229(a)(ii) the accused must foresee a likelihood of death arising from the bodily harm he/she is inflicting. To meet the test for committal at a preliminary hearing stage it is sufficient that the evidence establish that the likelihood of the victim's death was objectively foreseeable, and that therefore it would be open to a jury to infer that the accused had the subjective knowledge and requisite intent required by section 29. If the evidence establishes that a reasonable person would have foreseen the likelihood of the victim's death, a reasonable inference is that the accused persons are reasonable persons and would have foreseen the likelihood of the victim's death. All relevant evidence including the degree of force used, and the nature and extent of the injuries inflicted must be considered in assessing whether an intent to kill or an intent to cause bodily harm that one knows is likely to cause death, can be inferred from the circumstantial evidence: see R. v Pittman, 2011 ONCA.

Decision

[65] There is no evidence of animus by any of the three co accused against Mr. Stone before they arrived at Mr. Whyte's residence and no evidence that this was a planned and deliberate murder. The only evidence of any prior association between all three co accused, and between the three co accused and Mr. Stone, is the evidence about their contact at the bar and in the cab ride to Mr. Whyte's room. It is reasonable to infer that something happened in Mr. Whyte's room when all three accused were present with the victim to trigger the violence that ensued.

[66] There is no direct evidence that any of the three co-accused intended to kill Mr. Stone or intended to commit bodily harm that they knew was likely to cause his death. However, intention to commit murder can be inferred from the actions of the accused.

[67] The medical evidence, the photographs, the evidence of burn marks and the evidence of Mr. Stone's teeth being knocked out of his mouth support the inference that the attack on Mr. Stone was prolonged, and vicious. There is evidence of multiple blows and impacts. There is evidence that Mr. Stone was healthy and larger than any of the three accused. The beating occurred within the small confines of Mr. Whyte's room. There is some evidence that a struggle took place before Mr. Stone ended up laying on the floor. One of the chairs in Mr. Whyte's room is knocked over. There is blood spatter in three distinct areas of the room. Mr. Stone's body is in a state of undress. He has no shirt on and his underwear is pulled down and his jeans are pulled down almost to his knees. His shoes are still on. When Mr. Stone's body is found there is a white plastic bag tied to his wrist. There are minimal defensive injuries on Mr. Stone and minimal injuries on the three co-accused. This evidence supports a reasonable inference that more than one person directly participated in the assault.

[68] The presence of the victim's blood on the woman's boot found in the dryer in the basement where Ms. Cardinal was arrested supports an inference that Ms. Cardinal directly participated in the assault by kicking Mr. Stone.

[69] The presence of the victim's blood on Mr. Whyte's hand supports the reasonable inference that Mr. Whyte directly participated in the assault by hitting or restraining Mr. Stone.

[70] The presence of Ms Cardinal's DNA on the non-bloodied filter portion of a cigarette butt that had Mr. Stone's blood on it, considered with the medical evidence about the burn marks and cigarette ash on Mr. Stone and the timing of those burn marks, supports an inference that Ms. Cardinal participated in an act of gratuitous and tortuous violence by burning Mr. Stone with a cigarette while he was close to death and possibly after he died.

[71] Photos of Ms. Cardinal taken after her arrest show bruising on both arms and an injury to her left arm. While there is no evidence about the age of the bruises the presence of even minor bruising is evidence, when considered with all of the evidence, which can support an inference that Ms. Cardinal was involved in a struggle with Mr. Stone.

[72] The evidence that Ms. Cardinal used Mr. Stone's phone to call for a cab and then left Mr. Whyte's residence while Mr. Stone lay dying or may have already been dead, further supports an inference that Ms. Cardinal meant to cause Mr. Stone bodily harm that she knew was likely to cause his death and was reckless whether death ensued or not. Mr. Karl's evidence that Ms. Cardinal told him that "they had been in a fight" and needed a place to stay that night is evidence that Ms. Cardinal took part in the attack on Mr. Stone. The evidence that Ms. Cardinal spoke with Mr. Karl to arrange a place for them to stay while Mr. Kleinsteuber remained in the cab, the evidence of clean up at Mr. Karl's residence, the evidence of Mr. Stone's damaged phone being found among Mr. Karl's personal effects at Mr. Karl's residence, all support an inference that Ms. Cardinal was acting in concert with Mr. Kleinsteuber. This evidence also supports a further inference that Ms. Cardinal committed robbery by stealing Mr. Stone's phone, and acted as an accessory after the fact to Mr. Stone's murder.

[73] There is evidence of items being moved around in Mr. Whyte's room after the beating and bloodletting of Mr. Stone. A blood smeared water jug was found on an upper shelf in Mr. Whyte's room. Several other blood smeared items including CD/Radio and a blood stained cell phone belonging to Mr. Whyte were found under Mr. Whyte's bed. There is evidence of three sets of footprints, including socked footprints, leading from Mr. Whyte's room to the bathroom where diluted blood was found in the bathroom sink. All of this evidence supports an inference that Mr. Whyte was involved in the cleanup.

[74] Photos taken of Mr. Whyte after his arrest show several scratch marks and bruises, consistent with being involved in a struggle, including scratch marks to his upper left arm, upper torso, shoulder blade, right shoulder and back, a bruise on his leg, and a round mark on his arm. There was no evidence about the age or possible cause of these marks and bruises. This evidence and the evidence of Mr. Stone's blood on Mr. Whyte's finger can support a reasonable inference that Mr. Whyte participated in the altercation.

[75] There may be other inferences to be drawn about how the blood ended up on Mr. Whyte's finger, since the victim's blood was in many locations in a small room, but one reasonable inference is that Mr. Whyte participated in assaulting Mr. Stone.

[76] Medical evidence points to prolonged beating, and there are disturbing elements of gratuitous violence, including the circular burn marks, the teeth being knocked out, the deep lacerations around Mr. Stone's eye and lip areas. The evidence supports a reasonable inference that Mr. Stone was beaten and assaulted in numerous ways, and by more than one person. The evidence supports an inference that he was kicked, and possibly stomped on. There is also evidence of Mr. Stone's blood and hair on the empty rum bottle that supports an inference that he was also struck with a bottle. There is evidence that supports a reasonable inference that Mr. Stone was burned with lit cigarettes. There is evidence that Mr. Stone was still being assaulted after he lay unconscious on the floor. According to Dr. Michaud, Mr. Stone may have been unconscious but alive for 40 minutes after the triggering event. There is evidence to support a reasonable inference that one burn injury was inflicted when Mr. Stone was close to death or already dead. This evidence, when considered with the DNA evidence linking both Ms. Cardinal and Mr. Kleinsteuber to a cigarette butt with Mr. Stone's blood on it, also supports a reasonable inference that Mr. Stone was already dead or close to death when Ms. Cardinal used his cell phone to call a cab, assisted by Mr. Whyte.

[77] The evidence of Mr Whyte's responses to Ms. Cardinal during her phone call to the cab company at 4:42 a.m. supports an inference that Mr. Whyte was awake and alert just before Ms. Cardinal and Mr. Kleinsteuber left the scene. When considered with the evidence of Dr. Kepron that one of the burn marks was inflicted on Mr. Stone just prior to or after his death, and the DNA evidence linking Mr. Kleinsteuber and Ms. Cardinal to a cigarette butt with the victims' blood on it, it is reasonable to infer that at the time of the phone call for the cab, Mr. Stone was either close to death or may already have been dead. The act of using Mr. Stone's cell phone to call a cab, and conferring about the right address and residence description when Mr. Stone lay battered and bloodied and close to or already dead, supports a reasonable inference that both Mr. Whyte and Ms. Cardinal were reckless whether Mr. Stone died from his injuries.

[78] The evidence heard at the preliminary hearing establishes that a reasonable person would have foreseen the likelihood of Mr. Stone's death. Most of Mr. Stone's injuries were to his head. A reasonable person knows that even a single significant impact to the head can cause serious injury or death. Forensic blood spatter evidence supports inference that Mr. Stone was laying on the floor when much of the bloodletting occurred. In one area spatter marks were about a meter off the ground. There is evidence that Shane Stone was coughing up and inhaling his own blood. This evidence when considered with the medical evidence of Dr. Michaud, supports a reasonable inference that additional blows and injuries were inflicted after Mr. Stone was unconscious.

[79] Therefore it is open to a jury to infer that both Ms. Cardinal and Mr. Whyte meant to cause Mr. Stone bodily harm that they knew was likely to cause his death and there is evidence supporting an inference that Ms. Cardinal and Mr. Whyte were reckless whether death ensued or not.

[80] There is evidence of efforts made to clean up, and evidence of a taxi call being made, but there is no evidence of efforts made to assist Mr. Stone or call an ambulance for him. Given the small size and cluttered state of Mr. Whyte's room, all three co accused would have had to step around and possibly over Mr. Stone's body to move around the room, or to leave the room and go down the hall to the bathroom.

[81] None of the accused attempted to call for help or render assistance. Mr. Whyte helped Ms. Cardinal and Mr. Kleinsteuber by providing his address and residence description but even after they left he did not do anything for Mr. Stone. There is evidence that Mr. Whyte stayed in his room and at some point fell asleep, while Mr. Stone lay either close to death or already dead.

[82] The size of Mr. Whyte's room negates possibility that Mr. Whyte could not see what was happening. Mr. Whyte would have seen the brutal nature of the assault and therefore it is reasonable to infer that he would have known that Mr. Stone would die, or been reckless about whether death would occur. It is reasonable to infer that both Ms. Cardinal and Mr. Whyte knew that Mr. Stone could die from his injuries and they were reckless about whether death ensued.

[83] There is evidence that Ms. Cardinal used Mr. Stone's cell phone to call a taxi at 4:42 a.m. It is reasonable to infer from all of the evidence that the phone was taken without Mr. Stone's consent. Mr. Whyte talked to Ms. Cardinal while she was using the phone. It is reasonable to infer that Mr. Whyte was aware that Ms. Cardinal was using Mr. Stone's phone. While Ms. Cardinal is talking to the dispatcher Mr. Whyte gives his address but does not use that opportunity to seek help for Mr. Stone. After Ms. Cardinal and Mr. Kleinsteuber leave there is no evidence that Mr. Whyte called for help or rendered any assistance to Mr. Stone. It is reasonable for a jury to consider this evidence when drawing inferences about whether Mr. Whyte was acting in concert with Mr. Kleinsteuber and Ms. Cardinal.

[84] I find, having considered the whole of the evidence, that there is sufficient evidence upon which a properly instructed jury acting reasonably could find that both Ms. Cardinal and Mr. Whyte, acting either as a principal or a party, meant to cause Mr. Stone's death or meant to cause him bodily harm that they knew was likely to cause his death and they were reckless whether his death ensued.

[85] Mr. Kleinsteuber concedes committal, and the evidence presented at the preliminary hearing supports his committal on the charge of second degree murder. He is hereby committed to stand trial on the charge of second degree murder.

[86] For the reasons outlined above, I hereby commit Mr. Whyte to stand trial on the charge of second degree murder; and I hereby commit Ms. Cardinal to stand trial on the charges of second degree murder, and the additional charges supported by the evidence presented at the preliminary hearing of accessory after the fact to second degree murder pursuant to section 23(1) of the Criminal Code, and robbery, pursuant to section 343 of the Criminal Code.

Released: March 28, 2014

Signed: Justice E. Deluzio