ONTARIO COURT OF JUSTICE

CITATION: R. v. Ingram-Piruzevski, 2019 ONCJ 326

DATE: 2019 03 19

COURT FILE No.: 18-02519

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DMYTRI INGRAM-PIRUZEVSKI

JUSTIN RYAN

RULING ON VOLUNTARINESS AND COMMITTAL

Evidence heard: February 4-7,11-14, 25-27 Submissions: March 6,7 2019. Reasons delivered: March 19, 2019.

Counsel: Ms. McCallum, Ms. Szirmak .............................................................. counsel for the Crown Mr. D. North ................................................... counsel for the accused Ingram-Piruzevski Mr. Donnell, Mr. Lipchitz ..................................................... counsel for the accused Ryan

BAN ON PUBLICATION s 539

There is an order directing that the evidence taken at this preliminary inquiry shall not be published before such time as the trial is completed for each accused.

KENKEL J.:

Introduction

[1] Keegan Blyth met Dimitri Ingram-Piruzevski and a young person late at night for a drug deal. Moments after they met, Mr. Blyth was stabbed repeatedly by the young person. Mr. Ryan drove Mr. Ingram-Piruzevski and the young person to the meeting and drove them away after the altercation. The next day Mr. Ingram-Piruzevski texted Mr. Ryan and suggested that they leave town. By that time police had Mr. Ingram-Piruzevski under surveillance. He was arrested shortly after being picked up by Mr. Ryan. Tragically, police were later informed that Mr. Blyth had succumbed to his injuries.

[2] A properly instructed trier of fact considering the direct evidence in this hearing and drawing reasonable inferences from the circumstantial evidence could identify three different explanations for the killing:

• The accuseds planned to rob Mr. Blyth of his money using violence including knives and Mr. Blyth was killed during that robbery.
• Mr. Blyth and his associates planned to rob the accuseds of the drugs and Mr. Blyth was killed when they resisted.
• Neither party intended to rob the other, but something occurred between Mr. Blyth and the young person after the initial handshake that led to an altercation in which Mr. Blyth was killed.

[3] It is not the purpose of a preliminary hearing to sort out which version of the events is more likely to be true. The narrow function of this inquiry is to determine whether the Crown has proved there is sufficient evidence upon which a trier of fact could find guilt on the charges alleged. All parties agreed that the ruling on the voluntariness of the statements could be included in these reasons. The defendants’ submissions on committal included reference to the statements should they be admitted.

[4] The central issues for decision:

• Whether the Crown has proved that the statements of the two accuseds were voluntary.
• Whether the Crown has proved that either party should be committed to stand trial for Second Degree Murder s.229.
• Whether the Crown has proved that Mr. Ryan should be committed to stand trial for any offence.

[5] These issues must be considered through the lens of preliminary hearing procedure applying United States of America v Shephard 1976 8 (SCC), [1976] SCJ No 106 and R v Arcuri 2001 SCC 54, [2001] SCJ No 52. In that context the court must consider the allegations of party liability under s.21 of the Criminal Code for unlawful act murder contrary to s.229(c).

Voluntariness of the Statements

[6] For the purpose of the preliminary hearing, Mr. North concedes that the Crown has proved Mr. Ingram-Piruzevski’s statement voluntary. The evidence plainly supports that concession.

[7] Mr. Donnell submits that Mr. Ryan’s statement has not been proved voluntary for the following reasons:

• Oppression – a long wait for booking then interviews conducted despite lack of sleep.
• Oppression/Operating Mind – interviews not tailored to accommodate the accused’s statement that he had autism.
• Inducement – encouragements to tell the truth.
• Inducement – discussions about release and charges.

[8] Statements made by an accused are admissible at a preliminary hearing if they meet the same voluntariness test as applied at trial, proof beyond a reasonable doubt – Criminal Code s.542(1), R v Pickett 1975 1428 (ON CA), [1975] OJ No 675 (CA). The voluntariness assessment is broad and contextual, requiring the court to take into account all of the circumstances to determine whether there is a reasonable doubt that the statement was voluntary – R v Oickle 2003 SCC 38 at para 47.

[9] Mr. Ryan did have to wait for booking, but there was a further gap in time before he was interviewed and he spoke to a lawyer during that period. If the wait had any effect on Mr. Ryan it wasn’t apparent in either interview. Mr. Ryan was alert and talkative during both discussions. There’s no evidence to support the assertion that the booking delay or the timing of the two interviews interfered in any way with the accused’s ability to choose whether to remain silent.

[10] Mr. Ryan mentioned to the interviewing officers that he had autism. The defence submits that this statement should have triggered a special interview approach to accommodate the accused’s stated condition. The officers were given little information about that condition. Mr. Ryan’s statement to Detective England well into the interview that his autism was “going off the charts” seemed to refer in context only to his anxiety about being arrested and charged. There was nothing about his demeanor that changed at that time. The officer offered to provide him water and suggested that he take a moment, relax and breathe. He paused the interview for a break. When the officer returned, Mr. Ryan spoke without being asked questions and he chose to provide further information about another party. Mr. Ryan was relaxed and he talked freely throughout. The subsequent discussion continued without any sign of difficulty. Mr. Ryan offered to provide further information if it would help him, but the officer was careful not to give him any assurances in that regard. There’s no evidence to support the defence assertion that the police, “took advantage of Mr. Ryan’s autism”.

[11] Mr. Ryan was charged with murder after the death of Mr. Blyth. He spoke with a lawyer about the new charge before being interviewed by a detective from Homicide. In the second interview Mr. Ryan told the officer his version of events emphasizing his limited involvement. He explained that he simply gave a ride to a friend for gas money without any knowledge of the purpose of the trip. Through the rest of the interview Mr. Ryan told the officer he wanted to cooperate with the investigation and he did so to an extent. He was relaxed and responsive to the officer’s questions. He again asked whether he would be rewarded for providing further information but the officer was careful not to make any promises or provide any assurances.

[12] In both interviews Mr. Ryan plainly understood the questions asked and his answers were responsive. He made eye contact with the officers and showed no sign of being withdrawn or not participating in the interview. There was nothing in the course of either interview that suggested that Mr. Ryan did not have an operating mind. There was nothing in either conversation to suggest that Mr. Ryan’s ability to choose to speak with the police was ever compromised.

[13] Mr. Ryan provided certain information to the police but chose to withhold other information. His story changed over time and he explained to the first detective that he initially chose to withhold certain information because he didn’t want to incriminate himself or as he put it, “put himself in the hole”. In the second interview there were further changes in Mr. Ryan’s account and he found himself caught in a number of internal contradictions. Both officers observed generally that it would be better for him to tell the truth.

[14] General encouragement to “tell the truth” is not itself improper and is not an inducement where no “quid pro quo” is offered – R v Oickle 2000 SCC 38 at paras 53-57, R v Leung 2013 BCSC 1229 at para 81. If an officer states that, “It would be better to tell the truth” in a manner that threatens dire consequences for refusal, that could render any subsequent statement involuntary. The officers’ observations in this case that it’s generally best to tell the truth were factual and related in part to Mr. Ryan’s changing story. The officers declined to give Mr. Ryan the promises or assurances he sought. Mr. Ryan chose to tell the officers things he wished them to know but he withheld other information. He was candid about his reasons for speaking to influence the investigation in his favour, but the evidence as a whole shows that he was aware of his right to choose to remain silent at all times and he exercised that choice as he saw fit.

[15] Considering the testimony of the officers, the circumstances and the video record I can find no evidence that could reasonably leave a doubt about the voluntariness of either statement. I find the Crown has proved both statements voluntary to that standard.

Liability of the Principal

[16] The young person is not a party in this hearing, but it’s common ground that the evidence shows he alone stabbed Mr. Blyth. His liability as principal in the killing is relevant to the liability of the two accuseds in this proceeding. The young person may be liable to conviction on a charge of murder if the killing is found to be intentional or if it’s found pursuant to s.229(c) that he did anything he knew was likely to cause death in furtherance of an unlawful object and death was thereby caused notwithstanding that the young person hoped to accomplish the unlawful object without causing death or harm.

[17] Of the multiple theories available on the evidence, the one most favourable to the Crown is the theory that Mr. Blyth was killed in a drug “rip-off” robbery where the accuseds planned to take Mr. Blyth’s money by force using knives without giving him the marijuana he was trying to purchase. There is direct and circumstantial evidence which supports that theory including:

• Text evidence and direct evidence that Mr. Blyth and Mr. Pepper arranged to purchase a large amount of marijuana from Mr. Ingram-Piruzevski.
• Direct evidence from Mr. Pepper and Mr. Chanady that Mr. Blyth had $1200 to purchase the drugs.
• Direct evidence and circumstantial evidence showing that neither Mr. Blyth nor Mr. Pepper were armed at the time they met Mr. Ingram-Piruzevski and the young person for the transaction.
• Circumstantial evidence and an admission by Mr. Ingram-Piruzevski that he armed himself with a knife and provided a knife to the young person in preparation for the transaction.
• Direct evidence that Mr. Blyth had the $1200 with him when he met the young person to commence the transaction. From the evidence of a handshake and the fact that Mr. Blyth no longer had the money shortly afterwards, a trier of fact could reasonably infer that Mr. Blyth had given the money to the young person. That inference is available independent of the witness Mr. Pepper’s similar conclusion.
• Mr. Pepper stated that Mr. Blyth was attacked by the young person just after the apparent exchange of money. Direct and circumstantial evidence shows the attack involved repeated blows with a knife. Other than the apparent exchange of money Mr. Pepper’s evidence shows no other cause for the knife attack.
• Mr. Pepper stated that Mr. Ingram-Piruzevski appeared to run to join the attack on Mr. Blyth until Mr. Pepper intervened to stop him. Mr. Pepper received a small but deep cut to his hand as shown in police photographs. Mr. Chanady was also stabbed after he intervened to help Mr. Blyth.
• No drugs were ever given for the money taken.

[18] If that direct evidence were accepted, that testimony along with the circumstantial evidence could reasonably lead a properly instructed trier of fact to conclude that Mr. Blyth was killed in the course of a plan where the exchange of money was meant to be followed by a knife attack to accomplish a robbery. Although it’s not the function of a preliminary hearing court to weigh evidence, it is worth mentioning for the sake of those who followed all of the evidence at this preliminary hearing that on the whole of the evidence this might well be found to be the least likely scenario.

[19] A properly instructed trier of fact could reasonably find that in furtherance of the robbery the young person stabbed the deceased in a manner and in circumstances where he intended to kill or knew that the stabbing was likely to cause death.

Liability of Mr. Ingram – Piruzevski

[20] As the drug dealer who planned the meeting, armed himself and armed the young person, the defence concedes that Mr. Ingram-Piruzevski is liable to committal as a party to an included offence of Manslaughter contrary to s.234. The defence may well be correct that manslaughter is the charge that best reflects his liability on the whole of the evidence. However, there is evidence that this accused was acting in concert with the young person for an unlawful object – robbery. During the course of that robbery the young person attacked Mr. Blyth with the knife given to him by Mr. Ingram-Piruzevski. If the trier of fact were to accept the evidence of Mr. Pepper and Mr. Chanady, that the knife attack on Mr. Blyth was sudden and followed the apparent exchange of money, that Mr. Ingram-Piruzevski tried to join in that attack but was stopped by Mr. Pepper, that Mr. Chanady was also stabbed with a knife when he tried to intervene, that a knife was found on the ground in a position consistent with having come from Mr. Ingram-Piruzevski, combined with Mr. Ingram-Piruzevski’s statement that he specifically took knives to this transaction in addition to the taser and baton he otherwise carries to drug deals, they might reasonably infer that the robbery and the use of knives was planned. A trier of fact could reasonably conclude that both the young person and Mr. Ingram-Piruzevski knew that a robbery where they prepared to use violence with knives carried the likelihood of death regardless of whether they hoped to accomplish the robbery without that result.

[21] While the whole of the evidence when weighed may well lead to different conclusions, I find the Crown has proved that there is direct and circumstantial evidence upon which a trier of fact could find that Mr. Ingram-Piruzevski aided the young person in committing the offence and acted pursuant to a common intention to pursue the unlawful object knowing that death was likely to be caused even if he did not desire that result. On the direct evidence and available inferences most favourable to the Crown, Mr. Ingram-Piruzevski would be liable under s.21 as a party to murder contrary to s.229(c).

Liability of Mr. Ryan

[22] Mr. Ryan drove his co-accused and the youth to the transaction and drove them away after the stabbing. He parked his car at the roadway during the transaction and was not immediately present when Mr. Blyth was stabbed. The Crown submits that the evidence shows Mr. Ryan was not a one-time driver, completely unaware of the reason he was taking Mr. Ingram-Piruzevski to the meeting. He was acting to assist his co-accused and the young person in their plan. There is evidence that Mr. Ryan was present for the planning of the offence and he knew his co-accuseds were armed with knives. This crime could not have happened without his assistance so even as a driver he is equally liable under for the offence of murder.

[23] The defence does not attempt to reconcile the various explanations of his involvement given by Mr. Ryan, but they emphasize the central fact that he was not present at the time of the killing. He did not admit any knowledge of a plan to rob Keegan Blyth. The defence submits that there is no evidence upon which the court could find he is a party to murder or any of the offences alleged.

[24] I do not find it necessary to review whether the co-conspirator’s exception to the hearsay rule applies in this case as submitted by the Crown. The evidence of Mr. Ryan’s knowledge of and involvement in the robbery plan includes:

• Mr. Ryan told police that he met Mr. Ingram-Piruzevski at high school. His statements and the direct evidence of witnesses like Ms. Hattam show that Mr. Ryan and Mr. Ingram-Piruzevski were close friends who spent much of their time together.
• Mr. Sadeghi-Niaraki testified that he saw Mr. Ryan drive Mr. Ingram-Piruzevski to drug deals prior to the transaction in question. He said he directly saw Mr. Ryan drive his co-accused for that purpose “once a week, twice maybe”. Mr. Ryan told police that he knew Mr. Ingram-Piruzevski sells marijuana regularly. Mr. Ryan admitted to police that he “probably has” driven Mr. Ingram-Piruzevski to drug deals although he added that he doesn’t ask questions so he didn’t do so knowingly.
• There is direct evidence from Mr. Sadeghi-Niaraki that when he arrived home at 8:00 p.m. Mr. Ryan was already with Mr. Ingram-Piruzevski and the young person in his apartment. Mr. Ryan remained and was with them when they left together to go to the transaction with Mr. Blyth. Mr. Sadeghi-Niaraki gave each one a fist bump and told them to “be safe”. (I acknowledge Mr. Sadeghi-Niaraki’s evidence was internally inconsistent on a number of points including this one.)
• Mr. Sadeghi-Niaraki’s evidence puts Mr. Ryan in the same room as his co-accused and the youth while the transaction with Mr. Blyth was being discussed and planned. Mr. Ryan was also present nearby in the apartment when Mr. Ingram-Piruzevski discussed aspects of the drug deal with Mr. Sadeghi-Niaraki. Later Ryan was nearby putting on his shoes when Mr. Sadeghi-Niaraki asked Mr. Ingram-Piruzevski not to “rip off” Keegan Blyth as he was a friend.
• Mr. Ryan told police that he believed the incident was planned, but he added that he was kept out of the loop.
• Mr. Ryan told police in the second interview that he was present when the transaction was first arranged through a middle-man (Stelnick). He heard Mr. Ingram-Piruzevski in a phone discussion with Mr. Stelnick arranging a meeting with Mr. Blyth to “talk business”. He said he heard Mr. Ingram-Piruzevski say that if he was going to meet he didn’t want to get jumped as he’d been stabbed before. He said he didn’t want to get stabbed. Mr. Ryan told police he knew that the young person attended the transaction to provide protection for Mr. Ingram-Piruzevski.

[25] A jury may accept all, some or none of the evidence of a witness. From the direct evidence heard and the circumstantial evidence, a trier of fact could reasonably infer that Mr. Ryan was a close friend of Mr. Ingram-Piruzevski and they regularly spent time together. Mr. Ryan knew that Mr. Ingram Piruzevski was a drug dealer who sold marijuana. He drove Mr. Ingram-Piruzevski to drug transactions once or twice a week. Given the circumstances a jury could reasonably infer that he did so knowing the purpose of the trips. There is evidence that Mr. Ryan was present during the planning of the transaction in question from the outset. He spent the evening with Mr. Ingram-Piruzevski and the young person. He admitted he overheard the call with Mr. Stelnick and he would have been present when any further plans were made. A jury could reasonably infer that Mr. Ryan was aware of any plan made and he agreed to assist by acting as the driver on that basis. If a trier of fact accepted the evidence of Mr. Pepper and Mr. Chanady and concluded that the transaction planned was a robbery including a knife attack on Mr. Blyth as the person with the money, then they would conclude that Mr. Ryan was a party to that robbery under s.21 by aiding the offence and by assisting the common plan. Mr. Ryan’s after-the-fact conduct including assisting Mr. Ingram-Piruzevski in flight is not a necessary circumstance to form that conclusion but a trier of fact could reasonably find that it is further evidence consistent with that conclusion.

[26] As a party to a robbery which included a violent knife attack on multiple people where he knew his co-accused was worried about being stabbed in the altercation, Mr. Ryan would have been aware that death was likely to be caused to Mr. Blyth even if he did not desire that result. If a trier of fact made those findings which are available on the evidence, Mr. Ryan could be found guilty as a party to murder under s.229(c).

Conclusion

[27] Considering the direct evidence, reasonable inferences from the circumstantial evidence, the agreed statement of fact and exhibits filed including Exhibit #2 regarding the CDSA charges, I find that the Crown has proved that a properly instructed jury could reasonably find guilt on counts 1,2,4,5,6 on Information 18-02519 and counts 1 to 3 on Information 18-03058 to which the evidence in this hearing was applied on consent. The accuseds are committed to stand trial as charged on those counts. Given the ambiguity in the evidence in relation to Mr. Pepper’s injury the Crown concedes that both accuseds should be discharged on count #3 on Information 18-02519.

Released: March 19, 2019

Justice Joseph F. Kenkel