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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: 2014-06-07

Court File No.: Toronto 12-10003078-00

Between:

Her Majesty the Queen

— and —

Blake Paul

Before: Justice K. Caldwell

Reasons for Judgment released on: June 7, 2014

Counsel:

• Mr. Ed Stimec, counsel for the Crown
• Ms. Nicole (Nic) Rozier, counsel for the accused Mr. Blake Paul

Judgment

K. Caldwell J.:

[1] At the end of August 2010, Mr. Leo Buswa was found naked, unconscious and badly beaten just inside the front door of his rooming house at 577 Clendenan Avenue. He was rushed to hospital, never regained consciousness, and died approximately one month later.

[2] Mr. Paul, an acquaintance of Mr. Buswa's, was arrested at Mr. Paul's mother's home in Moose Factory, Ontario*. He was charged with second degree murder.

*It has been brought to my attention that I misidentified the place of arrest in my original judgment. Mr. Paul was arrested in March 2012 in Cape Breton, Nova Scotia, not at his mother's home in Moose Factory.

THE ISSUES

[3] This case is purely circumstantial. There are two primary issues.

[4] First, the issue of intention. Is there sufficient evidence to find that the perpetrator had the intent to cause Mr. Buswa's death or to cause him bodily harm that the perpetrator knew was likely to cause his death?

[5] Secondly, the issue of identity. Is there sufficient evidence upon which it could be found that Mr. Paul is the person who beat Mr. Buswa?

[6] Before I turn to the specifics of these issues, it is necessary to outline the test for committal and the law pertaining to inferences.

Test for Committal

[7] The preliminary inquiry test is whether there is some evidence upon which a reasonable jury properly instructed could convict[1].

[8] This statement is not as simple as it appears at first blush. "Some evidence" does not mean that the Crown need only adduce a scintilla of evidence pointing towards guilt. The evidence must be sufficient to allow a reasonable jury properly applying the law to be convinced beyond a reasonable doubt of the accused's guilt[2].

[9] Further, the preliminary inquiry judge does not weigh the evidence to determine if it is credible or true[3]. There is a slight modification of this principle in circumstantial cases. In a circumstantial case there will be "an inferential gap between the evidence and the matter to be established". In such instances the judge must engage in a limited weighing of the evidence to determine if it is reasonably capable of supporting the inferences that the Crown will ask the jury to draw[4].

Law of Inferences

[10] It can be difficult to determine if the evidence is capable of such reasonable support as it is often difficult to determine the difference between speculation and a logical conclusion.

[11] A properly drawn inference does not amount to speculation. Speculation is akin to guesswork and proof beyond a reasonable doubt cannot flow from hunches, speculation or guesses.

[12] Justice Ducharme has outlined the two-step process required to draw a proper inference[5]. First, the jury must determine if the primary facts underlying the inference have been proven. Once the jury has determined the primary facts, then the jurors must determine if they are convinced beyond a reasonable doubt that such evidence establishes the inference requested by the Crown.

[13] At the preliminary hearing stage, the judge must determine first whether there is evidence of the primary facts. If there is such evidence, then the judge must determine if that evidence is capable of reasonably supporting the requested inferences.

[14] It can be very difficult to make the assessment required by the second step in this process. Justice Ducharme noted that it is virtually impossible to precisely define the line between reasonable inferences and impermissible speculation. He cited the following passage from an American case:

If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts.[6]

[15] A primary fact also can require inferences in order to be established. In such instances, the preliminary hearing judge must determine if there is evidence that would reasonably allow the jury to conclude that the necessary primary fact has been established.

[16] Justice Moldaver has noted that reasonable inferences needn't be those that are most obvious or easily drawn. Instead, he noted, "all that is required is that the inference be reasonable and logical. The fact that an inference may flow less than easily does not mean that it cannot be drawn"[7]. On the other hand, Justice Fairgrieve of this Court has noted, "[s]imply because a possibility cannot be excluded does not necessarily mean that a reasonable trier could be justified in reaching such a conclusion on the evidence"[8].

Evidence of the Necessary Intent

[17] I will focus on the second aspect of the intent requirement for second degree murder, namely, whether there is sufficient evidence upon which a properly instructed jury could find that whoever beat Mr. Buswa intended to cause him bodily harm that he knew was likely to cause Mr. Buswa's death.

[18] The preliminary hearing judge can look at all of the relevant evidence including the degree of force, the nature and extent of the injuries and any other evidence to determine if there is sufficient for a jury to infer intent[9].

[19] The evidence of the pathologist, Dr. Michael Pollanen, settles this issue for preliminary hearing purposes. His evidence, if accepted by the jury, would establish the following primary facts:

• The direct cause of death was a mucous plug that had developed in Mr. Buswa's tracheostomy tube. The tube had been inserted to allow Mr. Buswa to breathe and the plug cut off his air supply;

• This tube would not have been required but for Mr. Buswa's unconscious state and severe injuries;

• Severe blunt force trauma caused Mr. Buswa's injuries;

• The blunt force trauma was beyond that which could be inflicted simply by punching;

• The blunt force trauma was found in several areas in Mr. Buswa's head and face, including deep sinus fractures and enough damage to his brain to require assistance in breathing, urinating and receiving nutrition.

[20] The next step is an assessment of the requested inference. Assuming the jury accepts the above as the primary facts, would these allow the jury to conclude that the person who inflicted them knew he would likely cause Mr. Buswa's death by inflicting such severe bodily harm? In my view there is no question that a jury could conclude that anyone who inflicted such an extreme degree of trauma knew that death would likely follow.

[21] There was some evidence that doctors expected Mr. Buswa to survive. The fact that the direct cause of death was a mucous plug in his trachea adds further weight to this conclusion. Ms. Rozier submits that these facts should lead me to conclude that there is insufficient evidence of the requisite intention to support committal. In other words, if medical staff expected him to survive, how could a non-medically trained perpetrator conclude that death was "likely" to follow?

[22] First, the fact that alternative inferences are possible is not the issue at the preliminary inquiry stage. It is possible that a jury may conclude that the necessary intent was not present given the other evidence that I have just outlined but that is an issue to be decided by the jury.

[23] Secondly, however, I turn to other factors. The perpetrator would have no way of knowing when Mr. Buswa would be found, and how much blood loss there would be up to that point. Such a perpetrator would also have no way of knowing the possible medical interventions available to save Mr. Buswa. Given the sheer magnitude of extreme damage outlined by Dr. Pollanen, in my view a reasonable jury could infer that anyone who inflicted this degree of damage knew that death was a likely outcome.

Evidence of Identity

577 Clendenan

[24] It is helpful at the outset to understand the nature of 577 Clendenan. It is a rooming house run by Nishnawbe Homes Inc. for single aboriginal men in need of stable, reasonably priced housing. A number of neighbours testified that the home was problematic for those who lived close by due to the constant fighting and yelling at all hours of the day and night. One neighbour, Ms. Vonda Bonesso, described it as a "living nightmare"[10].

[25] Dried blood was found in various places within the home by both the initial investigators and the homicide team. It became apparent that the blood came from various different incidents given the amount of violence in the home and the lack of subsequent cleaning.

[26] At least two of those incidents occurred within weeks of the assault on Mr. Buswa. First, Mr. Ryan Sheppard was hit with an ashtray two weeks prior, resulting in a great deal of blood. On a second occasion, the night before Mr. Buswa's assault, Mr. Rick Jacko was hit with a Pyrex baking dish, again resulting in copious amounts of blood. The volume of blood from different sources on different occasions must have made the task of the forensic investigators extremely difficult.

Evidence of Mr. Ryan Sheppard and Ms. Tara Gardner

[27] A substantial amount of the Crown's case rests upon the testimony of Mr. Ryan Sheppard and Ms. Tara Gardner. Both individuals gave very protracted and difficult evidence over several days. Very tragically, Ms. Gardner, a young woman only in her mid twenties, died after being hit by a train approximately two weeks after her preliminary hearing evidence was completed. This fact undoubtedly will present the Crown with hurdles at trial but those are issues for that forum on a future date.

[28] I will outline their evidence as a whole as each essentially corroborated the other. Mr. Sheppard and Ms. Gardner were boyfriend and girlfriend. Mr. Sheppard lived with Mr. Buswa at 577 Clendenan and Ms. Gardner often stayed there. On the date of the beating, Ms. Gardner came over to 577 Clendenan with a six-pack of beer. She and Mr. Sheppard sat drinking in the living room. Mr. Buswa and Mr. Paul, who was visiting, came down and joined them. The two men were also drinking. Eventually Mr. Buswa and Mr. Paul ran out of their own supply of beer and wanted to call Dial-a-Bottle to order more. Ms. Gardner and Mr. Sheppard helped place that call.

[29] Around 4:30 in the afternoon, before the beer arrived, Mr. Sheppard and Ms. Gardner decided to leave to get some more beer for themselves at a nearby beer store. Once they got to the store, Ms. Gardner bought a 40 ouncer of Black Ice while Mr. Sheppard stole two cases. They then went to a pizza place, bought some pizza, and headed to a park to eat and drink. On the way to the park they were laughing, joking around, and Ms. Gardner smashed the bottle of Black Ice against a fire hydrant outside someone's home. She wasn't too concerned as they had plenty of stolen beer to drink.

[30] Video footage seized from the beer store corroborated both Ms. Gardner's purchase of the Black Ice and Mr. Sheppard's theft of the beer cases. Further, in a neighbourhood walkabout shortly after the police attended that evening, two officers came upon a homeowner throwing the remains of a shattered beer bottle in his garbage. He told the officers that he had picked the pieces up from beside the fire hydrant in front of his home.

[31] At some point between 5 pm and 6 pm, Mr. Sheppard and Ms. Gardner get back to 577 Clendenan. Ms. Gardner had trouble opening the front door so she gave it a good shove. It turned out that the reason she had trouble was that Mr. Buswa was lying naked and unconscious in front of the door, preventing it from opening easily.

[32] Ms. Gardner screamed once she saw Mr. Buswa. Mr. Sheppard ran inside but told her not to come in. He then pulled a black "sap"[11] from his pocket and ran through the house to check for intruders. Ms. Gardner called 911. Once Mr. Sheppard had finished his check, and finding no one else in the house, he put Mr. Buswa's head on his lap, turning it to the side, according to instructions relayed to Ms. Gardner by the 911 operators. Mr. Sheppard ended up with blood on his jeans, hands, arms and shirt as Mr. Buswa was bleeding profusely. Blood also got on the sap. Mr. Paul was nowhere to be found.

[33] Ms. Rozier argues that I should discount Ms. Gardner's and Mr. Sheppard's evidence, even at the preliminary inquiry stage. The obvious issue with this submission is that it requires a credibility assessment and such assessments are not to be made at the preliminary inquiry stage[12]. Ms. Rozier argues, however, that any assessment of sufficiency of evidence must be done in relation to the standard of proof required for conviction. As I understand the argument, she contends that even at the preliminary hearing stage a judge can determine evidence to be so highly incredible and/or unreliable that it could never be viewed as "sufficient" for a finding of guilt given the very high standard of proof required.

[34] Even if there is some degree of leeway for preliminary inquiry judges to make such assessments in extreme cases[13], I do not find that Ms. Gardner's and Mr. Sheppard's evidence falls into such a category. There is no question that the Crown will have to deal with both credibility and reliability issues at trial given their severe alcohol problems, some contradictory statements from Mr. Sheppard, and possible motives. I do not find, however, that their evidence is so inherently problematic that it should not be left to a jury. Furthermore, there is independent evidence – the beer store video and the broken beer bottle - which corroborates their account of their actions after they left 577 Clendenan that afternoon. At the end of the day, it will be for a jury to assess the weight of their evidence.

[35] Ms. Rozier also argues that their evidence allows for a window of opportunity for Mr. Sheppard himself to have returned to the residence and committed the murder. I am not going to outline the time line that she says substantiates this contention. Even if Ms. Gardner's and Mr. Sheppard's evidence leaves such a window of opportunity, at most such evidence simply results in a competing inference. My role is limited to determining if there is sufficient evidence that would allow the jury to draw the inference or inferences requested by the Crown. Ultimately it is the jury's role to determine which, if any, of the available inferences are to be drawn[14].

The Denver Hayes Shoes

[36] A pair of brown suede shoes or work boots was found in the middle of Mr. Buswa's room. These were termed the "Denver Hayes" shoes given the name of the manufacturer. Dr. Trevor Claxton, a forensic biologist with the Centre of Forensic Sciences, performed DNA testing on these shoes.

[37] Blood was found on both the inside and outside of these shoes. On the outside, the blood was found on the toe, right side and top of the heel of both shoes. Mr. Buswa could not be excluded as the source of the DNA on both toes, both sides, and from the top of the heel of the left shoe. The probability that a random individual unrelated to Mr. Buswa would share this same profile was estimated to be 1 in 1.2 quadrillion.

[38] From this evidence, a properly instructed jury could infer that it was Mr. Buswa's blood on the outside of these shoes.

[39] Further, again using a similar analysis, the jury could conclude that it was Mr. Rick Jacko's blood on the top of the heel of the right shoe.

[40] Skin cells will often transfer to the inner tongue of a shoe that is worn without socks due to the shoe rubbing against the skin. In this case, the DNA from the inner tongues of both Denver Hayes shoes is consistent with Mr. Paul's, using the same analysis as outlined above. This evidence would allow a jury to infer that Mr. Paul wore the Denver Hayes shoes and such a conclusion would in turn allow for the inference that the Denver Hayes shoes belonged to Mr. Paul.

The Molson Canadian Beer Bottles

[41] Ms. Mysik Lee and Mr. Dominic Iozzo of Cheers Delivery testified. Ms. Lee owned the company in 2010 and Mr. Iozzo was one of her drivers. She brought some of the company records that verified that a request for delivery of 24 Molson Canadian beer bottles to 577 Clendenan on August 29, 2010. As the company deals only in cash, there are no records confirming delivery. Mr. Iozzo, the driver who serviced that area, testified that he would have told Ms. Lee if the delivery had not been fulfilled otherwise Ms. Lee would have expected to receive part of the customer's cash payment from him. Ms. Lee testified that if the delivery hadn't occurred, she would have removed the order from the books. These facts, if accepted, would allow the jury to infer that the delivery was successfully completed that day.

[42] The police found an empty case of Molson Canadian, and seven empty Molson Canadian beer bottles. Mr. Sheppard testified that they were drinking from cans, not bottles, earlier in the afternoon. Further, there was DNA evidence that would allow for the inference that Mr. Paul drank from four of the bottles.

The Sapphire Work Boots

[43] A great deal of time was spent on the admissibility of evidence relating to a pair of Sapphire work boots found in Mr. Paul's home in Moose Factory. Identification of these boots was the subject of a voir dire and, at the end of the preliminary hearing, counsel disagreed about the extent of the evidence that was even in issue on the voir dire.

[44] I find that this very thorny issue does not need to be determined at this stage as the Crown does not require any evidence relating to these boots in order to meet the test for committal. The nature of this potential evidence is extremely problematic. Identification of these boots came from the evidence of Ms. Judy Rickard (mother of Mr. Paul) and Ms. Sharon Buswa (sister of Mr. Buswa). All I will note at this point is that the manner in which the evidence was obtained from both women raises great concerns about its reliability.

The Theft of Beer Bottles

[45] The police ultimately found a Molson Canadian beer case in Mr. Buswa's room and seven empty beer bottles were located in the house. The remaining seventeen bottles from the case of twenty-four were never found.

[46] The prosecution's theory of motive is based on the missing beer bottles. The Crown contends that Mr. Paul stole or removed the seventeen bottles and that in the course of this theft/removal Mr. Paul beat Mr. Buswa, perhaps in order to overcome his resistance to Mr. Paul removing the bottles.

[47] In order to infer this motive, the jury would have to find as a primary fact that Mr. Paul stole the missing bottles or removed them over Mr. Buswa's protests[15]. There is no direct proof of such removal/theft thus the jury would have to infer that Mr. Paul took the bottles. I find that there isn't evidence that would allow a properly instructed jury to reach this conclusion.

[48] First, this is a home in a great deal of disarray both inside and outside. At the time of the incident, Homicide was not involved as Mr. Buswa was alive. D/C Carefoot from the Identification Unit attended and seized both the beer case and the beer bottles he saw but it is clear that there wasn't a thorough search of the home or of the front and back yards. Ms. Bonesso saw a man leave the house at some point, possibly around 4 pm, with a backpack that appeared full. The jury would then be asked to draw the conclusion that Mr. Paul removed or stole the beer bottles based upon a sighting of a male with a full backpack and the fact that the police found only seven bottles in plain sight when they searched the interior of the home. I find that this evidence would not allow the jury to infer that Mr. Paul removed or stole these bottles.

[49] Further complicating matters is that removal alone would not be sufficient to support the Crown's theory – it is the theft or removal over Mr. Buswa's protests that is essential to the issue of motive. If Mr. Buswa had no issue with the bottles' removal, then where is the motive?

[50] It is at this point that the analysis becomes circular and therefore problematic. In order to prove that Mr. Buswa had issues with Mr. Paul taking the bottles, it becomes necessary, given the lack of evidence concerning what happened to the bottles, to establish that Mr. Paul beat Mr. Buswa. Mr. Paul's beating of Mr. Buswa would be the evidence that the bottles were removed against Mr. Buswa's will. That removal against Mr. Buswa's will becomes Mr. Paul's motive. This motive is then used as evidence that Mr. Paul was the one who beat Mr. Buswa. It is in this way that the reasoning is circular and therefore of no use in determining the issue of identity.

Primary Facts Arising from the Evidence

[51] It is open to the jury to find the following primary facts either from direct evidence or by inference:

• Mr. Sheppard and Ms. Gardner were absent from the house for approximately two hours;

• A case of Molson Canadian was delivered to the home at some point after Mr. Sheppard and Ms. Gardner left;

• Mr. Paul remained at the house after they left for at least the length of time it took for the beer to be delivered and for him to then drink four beer;

• Mr. Paul left his shoes in Mr. Buswa's room prior to leaving[16];

• These shoes had Mr. Buswa's blood on the toes and sides of both shoes and the upper heel of the left shoe.

Do These Primary Facts Allow for the Inference that Mr. Paul was the Person who Beat Mr. Buswa?

[52] I find that these facts do allow for this inference. I find that it is open to a reasonable jury to reach such a conclusion though, of course, it will be up to a jury to make the final decision.

[53] The time Mr. Sheppard and Mr. Gardner were gone from the home was relatively short. The primary facts allow the jury to conclude that Mr. Paul was present for some time after their absence, as it would take time for the beer to be delivered and then for Mr. Paul to drink multiple bottles. Finally, and most problematic for Mr. Paul, there is the issue of the shoes.

[54] Mr. Paul doesn't live at 577 Clendenan yet his shoes were found in the home – in fact, in the middle of Mr. Buswa's bedroom. The fact that Mr. Buswa's blood is found in multiple locations on both shoes further strengthens the inference that Mr. Paul committed the beating. I agree with Ms. Rozier that the expert evidence was ambiguous at best on the issue of the shoes being used as the mechanism of injury but the presence of Mr. Buswa's blood in multiple locations on the shoes combined with the other evidence I have outlined is sufficient to allow a jury to infer that Mr. Paul beat Mr. Buswa. It is not necessary to prove that the shoes were the tools utilized to effect the beating.

[55] In conclusion, I find that there is sufficient evidence to meet the test in Shephard that Mr. Paul was the person who murdered Mr. Buswa.

Released: June 7, 2014

Signed: "Justice K. Caldwell"

Footnotes

[1] United States of America v. Shephard, [1977] 2 S.C.R. 1067, 34 C.R.N.S. 207, 30 C.C.C. (2d) 424

[2] See R v Charemski (1998), 123 C.C.C. (3d) 225 (S.C.C.) at para 20 and R v Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702

[3] R v Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52 at para. 30

[4] R v Arcuri, supra, at paras. 31-32

[5] R v Alexander, [2006] O.J. No. 3173 (Ont. SCJ) at paras. 24-26 – see also R v Munoz, [2006] O.J. No. 446

[6] Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879 at 895 (3rd Cir.), cert. denied, 454 U.S. 893 (1981) as cited in R v Alexander, supra, at para. 28

[7] R v Katwaru, [2001] O.J. No. 209 (Ont. CA) at para. 40

[8] R v Ruiz, [2000] O.J. No. 2713 (Ont. CJ) at para. 3

[9] R v Pittman, [2011] O.J. No. 826 (Ont. CA)

[10] Ms. Bonesso's evidence, transcript pg. 84

[11] A black item resembling a foot long length of narrow pipe, covered in leather. Appeared to be intended to be used as either a weapon or in self-defence

[12] See Footnote 3 above

[13] The recent SCC case of R v Hay, 2013 SCC 61, arguably allows for this contention. I note, however, that Hay pertains to eyewitness identification evidence which is a unique category of evidence that has been the subject of a great deal of appellate scrutiny in recent years. In essence, Hay holds that eyewitness identification evidence that amounts to "no evidence" should not be left to the jury on the basis that it is just that – no evidence. I do not interpret Hay to hold that it is now within the jurisdiction of preliminary hearing judges to conclude that a witness's testimony in general is so unreliable and incredible that it amounts to "no evidence" though perhaps this argument has merit in very extreme cases. This is not one of those cases.

[14] Martin, Simard and Desjardins and the Queen, [1977] O.J. No. 2532 (Ont. C.A.)

[15] I speak of theft or removal as alternative scenarios as there isn't evidence of who paid for the case of beer. If Mr. Buswa paid for it, then if Mr. Paul removed the bottles it could constitute theft. If Mr. Paul paid for them, then it couldn't be said that he stole any bottles he later removed.

[16] Ms. Rozier argues that the shoes could have been left on another occasion as there is evidence that Mr. Paul had been there before and that he was the one who injured Mr. Jacko the previous evening. I find this argument highly speculative on the basis of the evidence before me, and one that does not account for the presence of Mr. Buswa's blood in multiple areas on the shoes.