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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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: 2016-07-12

Court File No.: Barrie 15-0923

Between:

Her Majesty the Queen

— And —

Terrence Barrett

Before: Justice Cecile Applegate

Heard on: April 25-29, May 2-4 and 6, June 13-14 and 16, 2016

Reasons for Committal released on: July 12, 2016

Counsel:

• F. Temple and C. Peters — counsel for the Crown
• A. Robbins and A. Kwan — counsel for the accused Terrence Barrett

APPLEGATE J.:

Introduction

[1] Terrence Barrett is charged with the second degree murder of Milan Segota. The defence concedes committal on this count. The Crown also seeks committal on the more serious charge of first degree murder.

[2] In addition, the defendant is charged with assault with a weapon on Aimee Novak. The defence also concedes committal on this charge. At the end of the preliminary inquiry, the Crown sought committal on the more serious charge of aggravated assault.

[3] The evidence was heard over twelve days in April, May and June of 2016. The Crown called 22 witnesses and the defence called 11 witnesses. In addition to calling their witnesses, the Crown also filed transcripts of police statements of several witnesses pursuant to s. 540(7) of the Criminal Code on consent of the defence.

[4] The Crown argues that, based on the totality of the inferences that a jury could draw from the circumstantial evidence in this case, there is sufficient evidence of planning and deliberation such that I should commit the defendant to stand trial on first degree murder. The defence argues that the inferences the Crown is asking to be drawn from the circumstantial evidence are speculation and conjecture and, as a result, there is insufficient evidence to commit the defendant to stand trial on first degree murder.

The Evidence

22 Ross Street, Barrie

[5] The defendant and the deceased lived in a rooming house located at 22 Ross Street in Barrie. The rooming house consists of four floors. There is a basement with two rooms, a ground floor and upper floor with 8-10 rooms on each floor and a separate apartment in the loft. None of the rooms have their own bathrooms. The residents share two bathrooms – one on the upper floor and one in the basement.

[6] A number of the residents testified at the preliminary hearing. It was generally agreed that the building was not in very good condition and had a bug infestation problem. The walls in the building were described as paper-thin with one witness stating you could hear your neighbour open a pop can in the room next door.

[7] The defendant and his girlfriend, Aimee Novak, lived in Room 101, while the deceased lived next door in Room 102, both on the ground floor. The two rooms shared a common wall but had separate entrances.

Milan "Mike" Segota – the deceased

[8] The deceased moved into 22 Ross Street in December of 2014. He lived alone with his two dogs. He was a man with a number of health issues who used a mobilized scooter to get around. Despite these health issues, he was described by his son, Robert Segota, as someone who knew how to fight and had been "navy-trained".

[9] The deceased's neighbours generally describe not having any issues or problems with the deceased. The defendant and the deceased did not like each other. In the weeks leading up to February 15, 2015, there had been at least two altercations where the deceased had gotten the upper hand on the accused. As of February 15, 2015, however, the deceased had told his son that it was all over with and Ms. Novak testified that the defendant did not hold a grudge in this regard.

[10] Aimee Novak and the deceased got along. She would often seek refuge at the deceased's apartment after having had a fight with the defendant. Sometimes, the defendant would attend at the deceased's apartment to retrieve her. Some witnesses testified that this was another reason the deceased and the defendant did not like each other. Ms. Novak testified that the defendant was jealous of the deceased.

[11] Stephen Shortridge, the superintendent of 22 Ross Street, was good friends with the deceased. He testified that, recently, the deceased had been sold a defective laptop and had refused to pay the individuals who sold him the laptop. This had led to the deceased and the other individuals threatening to stab one another. As a result, the deceased had armed himself with a flick knife because of that incident. He had also stuck a couple of knives in the door frame by his front entrance door.

Terrence Barrett and Aimee Novak

[12] The defendant and Aimee Novak began a relationship in May of 2014. They lived together in a tent until November 1, 2014 when they moved into 22 Ross Street. Both parties relied on the services offered by the Busby Street Centre including the Street Outreach van and the Outreach Centre for counselling.

[13] The defendant suffered from depression for which he took medications. According to Aimee Novak, he also suffered from seizures and he took medications for other conditions she was not aware of. She also relayed instances where the defendant had told her that he heard voices and he "saw ghosts or the devil or something". Ms. Novak suffered from agoraphobia and social anxiety. She also took medications to address these mental health issues. Both parties are alcoholics.

[14] Ms. Novak testified that the defendant assaulted her all the time and that he was convicted of Assault upon her for which he served a jail sentence. She stated that the fights would start off being verbal and end up being physical with him often choking her. She maintained that she might have hit him on a couple of occasions but never in front of witnesses. Robert Segota confirmed that he saw Ms. Novak with two black eyes on one occasion when she sought refuge in his father's room.

[15] The other residents, however, generally describe Ms. Novak, not the defendant, as the aggressor. In fact, Ms. Novak was described as obnoxious, loud and had a tendency to get violent when she drank. Some residents described incidents where she was violent towards the defendant and the defendant did nothing to stop her while she struck him repeatedly.

[16] On January 20, 2015, the defendant attended at the Barrie Police Service sub-station on Maple Avenue to report that he had been assaulted by the deceased. PC Hankin observed injuries on the defendant that were consistent with having been assaulted. PC Hankin did not follow up on this incident as the defendant told him that he was not "a rat" and just wanted the matter reported.

February 15, 2015

[17] Robert Segota and his girlfriend had visited the deceased on February 14 and left around 3 a.m. on February 15, 2015. Mr. Segota recalls hearing fighting from Room 101 including screams, shaking and things being thrown around 1 a.m.

[18] Ms. Novak and the defendant attended the Beer Store and picked up a 6-pack of Laker Ice tall boys to share between them during the late morning hours or early afternoon on February 15, 2015. Ms. Novak describes the defendant as being depressed prior to going to the Beer Store but in a good mood after. They returned home and drank their beer, each drinking three beers, while watching TV. There was evidence from two other tenants, Mr. Ferrans and Ms. Hoff, that Ms. Novak and the defendant had spent time in their room (Room 105) that night. Ms. Novak was drinking beer and was described as being quite intoxicated and yelling at the defendant. The defendant was also drinking beer but did not appear intoxicated. When she did not quieten down, they were told to go home which they did.

[19] Approximately one hour later, Ms. Novak had to use the bathroom. She and the defendant both left their room, locked it and went to the upstairs bathroom. While coming down the stairs, the defendant was upset with Ms. Novak because she was giving him the silent treatment. He was calling her names.

[20] The deceased came out of his room and told the defendant to stop yelling at Ms. Novak – telling him he should not call her names, talking about the noise level and the time of night. Ms. Novak was upset and yelled at the deceased confronting him about the noise he was making the previous night while banging on the walls. Ms. Novak took the room key from the defendant and then went to unlock her room turning her back on the deceased and the defendant who were face to face yelling at each other.

[21] Some residents heard the deceased say "Get your fingers out of my face" or "Don't stick your fingers in my face". The deceased was described as being angry. Many residents heard words uttered to the effect "Don't hit my wife" or "You hit my wife". These words were attributed to the defendant – some saying that these words were said after they heard the deceased say don't stick your fingers in my face. The impression left for some was that the defendant was defending Ms. Novak from the deceased. Ms. Novak did not hear these words being said and confirmed that the deceased had not struck her at any time.

[22] Ms. Novak was in her room only momentarily. When the defendant did not join her, she turned around and saw that the two parties were fighting. She believed that they were fist fighting describing them as being close together, grabbing and punching each other. Ms. Novak attempted to break up the fight by placing herself in between the two parties and that is when she was stabbed in the arm. As she was separating them, she was facing the defendant. She maintained that she did not realize that she had been stabbed until she changed her clothes.

[23] Ms. Novak testified that when the deceased fell to the ground, she immediately went to help him and never left his side until the paramedics arrived. Ms. Novak was observed by many witnesses cradling the deceased's head on her lap. She states that the defendant ran – presumably out through the back entrance of the house. She testified that she did not hear him say anything as he left. However, in one of her statements to police she said that she thinks she heard him say "I love you" and in another statement to police she agreed with the suggestion made that the defendant had uttered words to the effect "I didn't do anything, I love you". When asked what she thought he meant by that, she told police "I don't know, trying to convince himself that it didn't happen".

[24] Parts of Ms. Novak's evidence are not supported by the evidence of Mr. Ferrans and Ms. Hoff who said that Ms. Novak attended their room located at the rear of the rooming house on the ground floor after the fight. She was screaming that she had been stabbed and they noticed blood on her arm. She was yelling to call 911. At this time, the defendant was observed to be standing approximately 1 foot behind her trying to calm her down. It's not until later when Ms. Novak returns to the deceased that these tenants notice that the defendant had left. Ms. Hoff thinks that the defendant may have said "He hit my girlfriend" while he was standing behind Ms. Novak at the door. She also recalls Ms. Novak stating that the deceased had stabbed her.

[25] Another tenant, Thomas Poirier, did observe the defendant and Ms. Novak in the hallway while the deceased was on the floor bleeding very badly. Mr. Poirier left the building to notify the superintendent, Stephen Shortridge, and returned with a towel to tend to the deceased. He engaged Ms. Novak to assist him and that's when she placed the deceased's head in her lap. When he returned from the superintendent's building, the defendant was gone.

[26] At no point during this altercation did Ms. Novak see a knife. She did not see the defendant arm himself with a knife prior to leaving the apartment, nor did she see the deceased with a knife. She confirmed that she and the defendant owned knives which appeared to all be accounted for with the exception of possibly a small yellow paring knife. Stephen Shortridge, who had visited the deceased earlier that evening, confirmed that the deceased had two knives stuck in the door frame by his door when he left around 10:00 – 11:00 p.m. that night. Robert Segota, who was there earlier that morning, did not see any knives in the deceased's door frame. When the police investigated the deceased's room, there was only one knife in the door frame.

[27] Another neighbour, Randy Timm, lived in Room 106, the room furthest away on the ground floor. He said he could hear arguing coming through the walls. He heard the deceased come out of his room and yell "Come out you bitch" or "Bitch, c'mon out". In his statement to police on February 16, 2015, he stated that he heard "Come on out you bitch … let's-let's get in on whatever". There was a pause and Aimee Novak came out and the two started arguing. Then there was another pause and he heard the defendant say a couple of times, "Did you want to attack my wife". Then he heard nothing until Ms. Novak came down the hall saying "Call 911". When he opened his door, Mr. Timm saw blood on her arm and she said "He stabbed me first". He could not see the deceased or the defendant in the hallway and assumed she was referring to the deceased. He then observed Ms. Novak go back into her room and exit a short time later where she put the deceased's head in her lap. At that time, out of the corner of his eye, he saw the defendant come out of the room and run down the hall yelling "I didn't do anything" or "I didn't do nothing wrong, baby". To which, Ms. Novak responded "Yes, I know" or "Yes, baby, I know". Mr. Timm stated that the defendant's words sounded more like a direction based on his tone of voice.

[28] Aimee Novak and the deceased owned a green couch which they had acquired from a next door neighbour when that neighbour left. The couch had some material coming out of the arm and was damaged. Photographs of the couch taken after the incident showed some slits on the back rest of the couch. Ms. Novak testified that she did not know how these slit marks got there. She speculated in her third statement to police that "Maybe Terry ran in and did that" but couldn't be sure as her back was towards the door when she was tending to the deceased. In that same statement, she told police that those marks were not there when they left to go to the bathroom that night nor when she returned from the bathroom. Neighbours who had seen the green couch confirmed that it was in very bad condition with stuffing coming out of it and that the damage was not new.

[29] Ms. Novak initially lied to police telling them that squatters in ski masks had done this and provided details supporting this lie. Ms. Novak indicated that she lied to police because the defendant had just killed a man and she was afraid he would come back. Once she knew that the police had caught the defendant, she told the police the truth.

Cause of Death

[30] Dr Herath, the forensic pathologist, testified that the cause of death was multiple stab wounds to the torso with these stab wounds entering the deceased's heart, lung and liver. He indicated that "the mechanism of death is hemorrhagic shock due to exsanguination and pump failure due to stab wounds of the heart". Some of the stabs were delivered with such force that there were approximately 10 cut fractures to the ribs. There were two stab wounds to the heart. In the pathologist's opinion, all of the sharp forced injuries could have been caused with the same weapon.

Arrest of the defendant

[31] At 7 a.m. on February 16, 2015, DC Scales observed the defendant walking on Simcoe Street in Barrie. Upon being asked his name by police, the defendant stated "Terrence Barrett, I was on my way to turn myself in". The defendant was described as calm and compliant. He then began to shake, became weak in the legs and fell backwards. While on the ground, the defendant was shaking vigorously and crying. DC Scales tried to calm the defendant down and decided he should be taken to the hospital for examination.

[32] While in the ambulance bay of the hospital, the defendant stated "He threatened to kill me" and also asked if Aimee was ok. When the officer told him that he believed Aimee was ok, the defendant asked if she was in trouble to which the officer responded that he didn't believe so.

[33] After being examined by the nurses, DC Scales heard the defendant say "It happened so quick". At the time, he was lying in a hospital bed and was crying and talking out loud. PC Watt, who was also present at the hospital, noted that the defendant stated "It fucking happened all so fucking quick" and at one point he said "My life's fucked". The defendant also asked to speak to his brother and his mental health worker. He was overheard by PC Watt saying "I don't know what happened" when speaking to other officers who arrived later to interview him.

108 Anne Street, Barrie

[34] The defendant's brother resides in Unit 208, 108 Anne Street in Barrie. In the garbage bins outside that building a green plastic bag containing a pair of jeans with blood stains was located. Also in the garbage chute of the garbage room of that building, police located a white bag containing a 9" knife with a 4 ½" blade.

[35] The Centre of Forensic Science conducted DNA analysis of various items seized. The deceased could not be excluded as the source of bloodstain on the jeans. The defendant could not be excluded as the source of bloodstains on the jeans, blood on his hands and bloodstained fingernail clippings taken from the right hand of the deceased. Aimee Novak could not be excluded as the source of DNA found on the front button closure of the jeans. With respect to the knife found, blood was detected on it but the presence of DNA could not be confirmed.

[36] Ms. Novak and Mr. Timm believed that the defendant may have fled to his brother's residence after the incident. Both items are believed to have been disposed of by the defendant.

Legal Analysis

[37] Pursuant to section 548(1) of the Criminal Code, a preliminary inquiry judge must commit if there is "sufficient evidence" to put the accused on trial. The test for sufficiency is the Sheppard test: any evidence upon which a reasonable jury, properly instructed, could return a guilty verdict (U.S. v. Sheppard, [1976] S.C.J. No. 106). This test is the same whether the evidence is direct or circumstantial and there must be sufficient evidence on each element of the offence for which committal is ordered.

[38] When the Crown relies on circumstantial evidence, the judge is required to engage in a limited weighing of the circumstantial evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. The judge does not determine if the defendant is guilty, draw factual inferences or assess credibility. The judge only determines whether the evidence, if believed, could reasonably support an inference of guilt: R. v. Arcuri, 2001 SCC 54, [2001] S.C.J. No. 52, at para 23, 29 and 30; R. v. Nichols, [2005] O.J. No. 3246 (S.C.J.), at para 37.

[39] Where there are competing reasonable inferences to be drawn from the evidence, the preliminary inquiry judge must make the inference most favourable to the Crown, even if a jury might decide otherwise: R. v. Sazant, 2004 SCC 77, [2004] S.C.J. No. 74, at para 18; R. v. Coke, [1996] O.J. No. 808 (S.C.J.).

[40] The judge is obligated to consider the totality of the evidence. It is improper for the judge to isolate pieces of the evidence and their reasonable inference without having regard to the context of the whole of the evidence: R. v. Coke, supra at para 9.

[41] It is equally important to avoid drawing inferences from equivocal, ambiguous and uncertain evidence as this leads to speculation and conjecture: R. v. Coke, supra, para 11.

[42] Any inferences relied upon by the judge in committing a defendant must (a) be reasonably based on the evidence heard at the preliminary inquiry and (b) must be reasonable. These inferences cannot be based on speculation: R. v. Munoz, 86 O.R. (3d) 134 (S.C.J.) at para 22.

[43] The first step in drawing an inference is ensuring that the primary facts that form the basis for the inference have been established by the evidence. If they have not, then any inference will be speculative and impermissible: R. v. Munoz, supra at para 26.

[44] The second way in which inferences become speculative and impermissible is when the inference cannot be reasonably and logically drawn from the facts established by the evidence: R. v. Munoz, supra at para 28.

[45] "The inference must be one that can be reasonably and logically drawn and, even where difficult, it cannot depend on speculation or conjecture, rather than the evidence, to bridge any inferential gaps": R. v. Munoz, supra at para 31.

Planning and Deliberation

[46] To commit on first degree murder, the Crown is required to adduce some evidence of both planning and deliberation on the part of the defendant prior to killing the deceased.

[47] "Planned" has been described by Justice Watt as follows [see Watt's Manual of Criminal Jury Instructions at p. 691]:

(a) Planned means a calculated scheme that has been carefully thought out;

(b) The consequences of the scheme have been weighed, considered and sized up;

(c) The plan does not have to be complicated, nor sensible;

(d) A planned murder is one committed as a result of a plan previously formulated; and

(e) A murder committed on sudden impulse and without consideration, even with an intention to kill is not a planned murder;

[48] At the same page, Justice Watt defines "deliberate" as follows:

(a) It means considered, carefully thought out, slow in deciding, cautious;

(b) Not impulsive, hasty or rash;

(c) A person being deliberate has taken the time to weigh the advantages and disadvantages of that act;

(d) The deliberation must take place before the murder; and

(e) A murder committed on sudden impulse without prior consideration, even with an intention to kill is not a deliberate murder.

[49] As stated by Justice Watt, supra at p. 695, evidence of post-offence conduct, considered along with the rest of the evidence, may be relevant to the issue of planned and deliberate in that it may provide a reasonable inference of same.

[50] In cases where second degree murder is conceded, the relevance of post-offence conduct is whether it assists in determining if the defendant's actions amounted to first degree murder or second degree murder: R. v. Nichols, supra at para 68.

Application to the Facts

[51] The Crown concedes that there is no direct evidence of these elements, but asserts that there are reasonable inferences capable of supporting planning and deliberation that are available to the jury on the evidence.

[52] In particular the Crown argues the following inferences can be drawn:

(a) The defendant was preparing a plan of self-defence in anticipation of murdering the deceased.

• The Crown argues that one reasonable inference that can be drawn from the fact that the defendant reported being assaulted by the deceased on January 20, 2015, to the police, but was adamant that no charges be laid against the deceased, is that it was the for the purpose of setting up a future self-defence argument.

• The Crown argues a further reasonable inference can be drawn that the defendant's comments of "Don't hit my wife" or "You hit my wife" was the defendant's implementation of the self-defence plan just prior to killing the deceased. Given the evidence of Aimee Novak that the deceased had never struck her, one can infer that this comment was a lie. The defendant knew the walls of 22 Ross Street were paper-thin and that he would have been overheard. In fact, there was evidence from at least one tenant, Rhonda Hoff, who believed that the defendant had been defending Ms. Novak against the deceased. The Crown argues that the lie had its desired effect.

(b) The defendant armed himself with a knife.

• The Crown argues that the deceased sustained 22 stab wounds at the hands of the defendant. It is reasonable to infer that the person who used the knife brought the knife.

(c) Animus towards the deceased

• The defendant did not like the deceased. The deceased had bested him on two prior occasions. The deceased interfered in the defendant's relationship with Aimee Novak. The defendant was violent according to Aimee Novak.

• After he was arrested, the defendant told police that the deceased had threatened him. No witnesses heard that on the night in question. As such, one inference is that the threat may have been made between January 20, 2015 and February 15, 2015, thereby adding to the defendant's motivation to kill the deceased.

• Combined with the other factors above and the manner of killing (see below), the Crown argues that one reasonable inference is that the defendant wanted to kill the deceased and would take his chance when he got it.

(d) The manner of killing suggests it was planned and deliberate rather than impulsive.

• The Crown argues that stabbing someone 22 times is much different than only stabbing them once. This was not simply an escalation of a physical fight. One inference, on the whole, is that the defendant seized his opportunity and ambushed the deceased making sure he killed him by stabbing him 22 times with great force. The deceased had very few defensive marks suggesting he was taken by surprise. This supports the notion that this was a non-impulsive, revenge-type stabbing.

(e) The post-offence conduct suggests a plan to escape and a continuation of the self-defence plan

• The Crown argues that the defendant was not shocked after the killing. That he had the forethought to say to Ms. Novak that "I didn't do anything babe" which was characterized as a direction to Ms. Novak by Mr. Timm who also heard the comment. The Crown argues that this is part and parcel of the self-defence fall-back position.

• The defendant almost immediately fled the scene and got rid of evidence. His jeans were found in a garbage bin at his brother's apartment. A knife, which may or may not have been the murder weapon, was also found in the garbage chute of his brother's apartment. The Crown argues that the immediacy upon which the defendant acted can lead to a reasonable inference that he had planned his escape.

(f) The slash marks on the green couch suggest that the defendant was practicing stabbing in advance of the killing

• The Crown argues that one can reasonably infer, based on the totality of the evidence, that the defendant caused the slash marks in his green couch by using a knife. And, further, the slash marks had to have occurred prior to the killing as there was no blood on the couch.

[53] The defence argues that the inferences the Crown suggests are speculation and conjecture. The defence further submits that the Crown arguments go to intention to kill and cautions me not to confuse evidence of intention to kill with deliberation. Specifically the defence argues:

(a) Based on Ms. Novak's evidence, the fight occurs after a trip to the upstairs washroom where the deceased exits his room to engage Ms. Novak and the defendant. Ms. Novak did not see the beginning of the physical altercation as she was entering her apartment. There is no evidence as to who started this part of the altercation and who had the knife.

(b) In addition, the deceased and Ms. Novak are the ones who get into a verbal argument. All witnesses confirm this. How could the defendant have planned that?

(c) The only way one can infer that the defendant was lying about saying 'you hit my wife or don't hit my wife' is by relying solely on Ms. Novak's evidence in this regard. Ms. Novak says she wasn't hit by the deceased yet she told Ms. Huff that the deceased stabbed her.

(d) The fact that the defendant reported an assault to the police is not sufficient to support the inference that the defendant intended revenge and such an inference would not be supported on the evidence. There are no words or links to support such an inference. It also makes no sense when Ms. Novak indicated that the defendant did not hold a grudge.

(e) With respect to animus, the defence states that there is evidence from Robert Segota confirming that the deceased thought the fights with the defendant were all over. In addition, there is direct evidence from Ms. Novak that the defendant did not hold a grudge in this regard. There is no evidence attributed to the defendant that he wanted to get back at the deceased and was waiting for his opportunity for revenge.

(f) With respect to the post-offence conduct, the defence argues that there is no evidence that the defendant was not in shock. Further, there is evidence that the flight did not occur immediately. The defendant's comment that "I didn't do anything, babe" could imply that he was telling Ms. Novak to lie. That simply affords evidence that he committed a criminal offence such as second degree murder, but does not speak to elements of planned or deliberate.

(g) There is no evidence that the defendant armed himself. Witnesses had never observed the defendant with a knife or known him to use a knife. Ms. Novak never saw him arm himself with a knife in anticipation of a fight. The deceased had a knife not accounted for from the door frame of his residence.

(h) Inferring that the defendant practiced on the couch by slicing it is pure conjecture. No one gave evidence as to when the damage/cuts occurred.

Conclusion

[54] In weighing the circumstantial evidence to determine whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw in this matter, I find as follows:

(1) Nothing can be inferred from the post-offence conduct in regard to whether the murder was first or second degree murder. The evidence of flight, getting rid of evidence, and possibly directing Ms. Novak to lie for him is equally explained as consciousness of guilt of either offence and cannot support an inference of guilt with respect to first degree murder;

(2) There is no evidence as to who brought the knife to the altercation. The reasonable inferences are that either the deceased, the defendant or Aimee Novak brought the knife as they were the only three persons present. The inference most favourable to the Crown would be that the defendant brought the knife and I find that is a reasonable inference on the evidence before me.

(3) In my view, inferring the preparation of a self-defence plan by reporting being assaulted by the deceased in January of 2015 cannot be reasonably and logically drawn on the evidence before me. The only evidence as to the accused's state of mind at that time is that he did not want to be a 'rat' but wanted the assault on record. Further, Ms. Novak indicated that the defendant did not hold a grudge. A reasonably instructed jury would need more evidence to bridge this inferential gap.

(4) Similarly, the inference of the defendant practicing by slicing his couch lacks an evidentiary foundation. This is particularly so when there is no clear evidence as to who caused these marks, when it occurred (Ms. Novak speculated it may have occurred after the altercation which would not assist in determining the issue of planned and deliberate) or how it occurred.

(5) There is sufficient evidence to infer that the defendant lied when he uttered the words "Don't hit my wife" or "You hit my wife" given Ms. Novak's evidence that the deceased never struck her. If this is a lie, it appears to be designed to give the moral high ground in a fight and not the most obvious way to communicate self-defence. This inference alone is insufficient to support planning and deliberation. It would be speculative to find that this was a previously contrived utterance designed to create an impression on listeners that the defendant was acting in self-defence.

[55] When items 1, 3 and 4 above are removed what remains as potentially relevant evidence is the animus between the parties, the inference that the defendant had the knife with him, the manner of killing – 22 stab wounds to vital parts of the body executed with sufficient force to cause 10 fractured ribs, and the inference that the defendant lied about the deceased hitting Ms. Novak.

[56] The manner of killing must be looked at in the context of the entire evidence pertaining to the altercation which started in one of two different ways depending on which evidence the jury accepts:

(a) On Ms. Novak's evidence, the defendant and Ms. Novak returned downstairs from a trip to the washroom. They were not getting along and the deceased exited his room to confront the defendant. Ms. Novak started arguing with the deceased. Sometime later, the defendant is heard by witnesses other than Ms. Novak to utter the words 'you hit my wife or don't hit my wife' ; or

(b) On Mr. Timm's evidence, the deceased called out to either Aimee Novak or the defendant "c'mon out bitch or bitch, come on out". It's at this point, that Ms. Novak and the deceased get into a verbal confrontation. Sometime later, Mr. Timm's hears the defendant utter words to the effect 'did you want to attack my wife'.

[57] Regardless of how the initial confrontation started, the verbal argument between Ms. Novak and the deceased led to a physical confrontation between the defendant and the deceased. There is no evidence as to how that physical confrontation started. Ms. Novak described both parties as being involved – face to face and yelling at each other prior to the physical altercation starting. When she turned back and intervened, she described both males as being in a struggle and punching one another. The evidence, including the 22 stab wounds, points more to a murder committed on impulse in the course of a physical exchange which escalated.

[58] This situation is different than the one in R. v. Adam, [2011] O.J. No. 5825 (S.C.J.), where the court found that the fact that the accused armed himself with a knife in combination with the ambush nature of the attack, the violence of the assault, and the fact no words were exchanged between the parties could lead to an inference that this was not an impulsive act.

[59] I also find the facts of this case are distinguishable from those in R. v. Hindessa, [2008] O.J. No. 5897 (S.C.J.), where the evidence in that case could have led the trier of fact to conclude that the accused walked to the kitchen, took a knife from the kitchen, returned to the deceased's bedroom, locked the door and stabbed her. In our case, there is no evidence from which a jury could reasonably infer that the defendant armed himself with a knife and deliberately sought out the deceased for the purpose of killing him.

[60] In my view, the totality of the evidence would not allow a jury to conclude that there was a formulated plan or that the defendant's conduct bore the characteristics of a calculated scheme which was thought out and contemplated. Further, a jury would be unable to conclude that there was any deliberation such as the defendant being slow and cautious in deciding and not hasty or rash.

[61] As a result, the defendant will not be committed to stand trial on the charge of first degree murder, but will be committed to stand trial on the charge of second degree murder.

Committal on Aggravated Assault on Aimee Novak

[62] In order to commit on aggravated assault, there must be some evidence that the defendant assaulted Ms. Novak and caused an injury that wounded, maimed, disfigured or endangered the life of Ms. Novak. The defence has already conceded that there is sufficient evidence to commit the defendant with respect to assault with a weapon. Namely, there is sufficient evidence that the defendant stabbed Ms. Novak. The element of wounding requires a breaking of the skin. There is evidence before me that Ms. Novak sustained a cut to her arm as a result of being stabbed which required stitches to close. I find there is sufficient evidence to commit the defendant for trial on the charge of aggravated assault.

Released: July 12, 2016

Justice Cecile Applegate