ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: M-256/14

DATE: 2015/11/20

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

BLAKE WILSON
Applicant

L. Schwalm, for the Respondent

A. Herscovitch, for the Applicant

HEARD: September 21 & 28, 2015

RULING ON CERTIORARI APPLICATION

GARTON J.:

[1] The applicant, Blake Wilson, age 28, is charged with the first degree murder of Janina Wrigglesworth, contrary to s. 235(1) of the Criminal Code. It is alleged that he caused her death while committing or attempting to commit a sexual assault which, pursuant to s. 231(5)(b), constitutes first degree murder irrespective of whether the murder is planned and deliberate.

[2] On September 22, 2014, Mr. Wilson was committed to stand trial following a seven-day preliminary hearing before Grossman J.

[3] Mr. Wilson has brought this application to quash his committal on first degree murder on the basis that there is no evidence upon which a reasonable jury, properly instructed, could find that he committed a sexual assault on the deceased. He concedes that there is sufficient evidence to support his committal on second degree murder.

EVIDENCE AT THE PRELIMINARY HEARING

The Fire

[4] On July 13, 2013, at 1:12 p.m., Toronto Fire Services was dispatched to an apartment building at 5754 Yonge Street. Firefighters entered Apartment 207, extinguished fires in the bedroom and living room areas, and located the body of 72-year-old Ms. Wrigglesworth on the floor of the second bedroom. She had died prior to the arrival of the firefighters.

[5] An investigator with the Ontario Fire Marshall’s office determined that the fire was intentionally set, based on evidence that fires were started in three different locations within the apartment. An open flame was used to start each fire, and was intentionally applied to combustive material such as paper or blankets. The first fire was started on the back of a couch in the living room.

Injuries and Cause of Death

[6] Dr. Michael Pollanen, who was qualified as an expert in forensic pathology, conducted the post-mortem examination on July 14, 2013. He determined that Ms. Wrigglesworth had died before the fire was started. He based this finding on the lack of soot in her lungs.

[7] Dr. Pollanen testified that the cause of death was “neck compression.” He reached this conclusion based on bleeding underneath the skin of the neck, bleeding on the surface of the larynx, and a fracture of the horn of the larynx on the left side. He testified that significant force was required to fracture the horn. The force used would have been close to the amount of force necessary to break a bone. Strangulation is one example of neck compression. However, Dr. Pollanen was unable to detect any of the usual signs of strangulation and was thus unable to draw any further conclusions as to the specific manner in which the neck was “compressed.”

[8] Ms. Wrigglesworth also suffered bruising around and inside the muscles of her right and left shoulder blade, her left buttock, and the back or nape of her neck. There was also bleeding in the muscle on the right side of her body (the “lats”). Dr. Pollanen concluded that Ms. Wrigglesworth sustained these injuries either by something forcibly striking her body or by her body forcibly striking something. The injuries to her back were caused by blunt force. All of the injuries occurred around the time of death, that is, a few minutes to a few hours before death.

The DNA Evidence

[9] Up until her death, Ms. Wrigglesworth was working in the sex trade. Her advertisement in NOW Magazine for sexual services included her cell phone number but did not include her landline.

[10] Swabs taken from the deceased’s oral, vaginal and rectal cavities were sent to the Centre of Forensic Sciences for DNA testing. Analysis of the oral swab revealed the presence of semen, which was matched on the DNA databank to Mr. Wilson: the probability that a randomly selected individual would coincidentally share the same DNA profile was estimated to be one in 18 quadrillion. Joanne Cox, who was qualified as an expert in body fluid identification and the analysis and interpretation of DNA results, testified that the semen would have been deposited in the deceased’s mouth within 24 hours prior to her death.

[11] Another major DNA profile was generated from semen detected on the vaginal swab. The police have not as yet identified the source of that DNA. Other DNA was detected on the vaginal swab but the quantities obtained were insufficient to allow for testing. Blood belonging to a person or persons other than the deceased was detected on the swab taken from the deceased’s rectal cavity.

[12] Ms. Cox testified that semen can remain in the vaginal and anal cavities for a maximum of seven days, although on average, semen in the vaginal cavity will be lost “within the first two or three days.” It is not possible to determine when within those time periods each of the samples was deposited or in what order.

The Cell Phone Records

[13] Mr. Wilson was arrested on September 10, 2013, as a result of the DNA match. The police seized the cell phone he was carrying and subsequently obtained a production order for the phone’s records from the service provider, Public Mobile. They also obtained a production order for the records pertaining to Ms. Wrigglesworth’s cell phone, which was also on the Public Mobile network. Her phone records included all the calls that she made or received (where there was a connection) from June 13 to July 22, 2013. Ms. Wrigglesworth also had a landline telephone, which was registered to her at the address at 5754 Yonge Street, Apartment 207. The police did not obtain the records for the landline.

[14] Matthew Longo, who is the corporate security manager for TELUS Mobility, interpreted the cellular phone records. He testified that the times listed in the phone records are regulated by an atomic clock and are accurate.

[15] The records indicate that there were two calls from Mr. Wilson’s cell phone that connected with Ms. Wrigglesworth’s landline on July 12, 2013. The first call was made at 6:36:28 p.m. and lasted 17 seconds. The second call was made at 6:37:10 p.m. and lasted 51 seconds. Mr. Wilson’s cell phone used a tower located at 155 Sherbourne Street for both calls. Mr. Longo explained that a cellular phone will use the closest tower that has the least path of resistance. Thus, the address of each tower indicates that the cell phone was within the general vicinity of that tower when the call was made or received.

[16] On July 13, 2013, Mr. Wilson’s cell phone contacted Ms. Wrigglesworth’s landline on three occasions:

i) At 11:47:54 a.m., there was a call that lasted 121 seconds;

ii) At 11:50:12 a.m., there was a call that lasted 12 seconds; and

iii) At 12:04:34 p.m., there was a call that lasted 11 seconds.

[17] The length of each call is calculated from the time of connection as opposed to when the phone begins to ring. Each of these calls corresponded to a phone call received on Ms. Wrigglesworth’s cell phone. Mr. Longo testified that an explanation for the corresponding phone calls could be that the calls to Ms. Wrigglesworth’s landline were forwarded to her cell phone. Both Mr. Wilson’s and Ms. Wrigglesworth’s cell phones used the tower located at Ms. Wrigglesworth’s apartment building at 5754 Yonge Street with respect to these calls.

[18] Ms. Wrigglesworth’s cell phone received and answered four calls after the three calls from Mr. Wilson’s cell phone on July 13, 2013. These calls occurred at the following times:

i) 12:06:24 p.m. for 10 seconds;

ii) 12:06:24 p.m. for 10 seconds;

iii) 12:12:42 p.m. for 112 seconds; and

iv) 12:28:58 p.m. for 73 seconds.

[19] None of the calls after the call at 12:28:58 p.m. were answered but instead were connected to Ms. Wrigglesworth’s voicemail. There were over 200 of these calls, which began at 12:46:40 p.m. and continued at brief intervals.

Surveillance Video

[20] The police obtained surveillance video from 5754 Yonge Street, as well as from the Toronto Transit Commission and the College Park shopping centre.

[21] Det. Cst. Abkarian watched the surveillance videos at 5754 Yonge Street and compared the time stamps on the live cameras to the time on his iPhone “atomic clock.” He determined that the times on all the cameras in the building were 12 minutes slow. The times referred to below have been adjusted to reflect the time according to the officer’s iPhone.

[22] At 12:00:12 p.m., a black male is seen entering the elevator bank in the lobby of 5754 Yonge Street.

[23] At 12:00:40 p.m., the camera on the second floor shows the same black male exiting the elevator and proceeding down the hallway. The male is holding what appears to be a cell phone to his ear. The camera’s range is such that it is not possible to see what apartment he enters – the camera cuts off when he is about two doors away from apartment 207. The male has the cell phone to his ear throughout the time that he is seen on camera.

[24] The same male exits the west stairwell of the apartment building at 1:08 p.m. He is next seen at the Finch subway station, and is later observed entering the basement of the College Park shopping mall. At 2:13 p.m., he attended in the area of the mall where several Toronto Dominion ATMs are located. TD bank records show that around the same time, a person made three attempts to withdraw money from one of the bank’s ATMs at College Park using Ms. Wrigglesworth’s bank card. All attempts were unsuccessful because an incorrect PIN was used.

[25] The defence admitted for the purpose of the preliminary hearing that a reasonable jury, properly instructed, could find that the black male on the videos from 5754 Yonge Street, the Finch subway station, and the College Park mall is the person who killed Ms. Wrigglesworth in circumstances that would constitute murder. The defence also conceded that Mr. Wilson’s skin colour and build are consistent with the skin colour and build of the black male in the video footage, and that there are no features visible in the video that distinguish that male from Mr. Wilson.

[26] Ms. Wrigglesworth had a roommate, Philip Evans. Mr. Evans testified that only he, Ms. Wrigglesworth, and the building superintendent had keys to her apartment.

[27] The security video shows Mr. Evans in the second floor hallway at 10:44 a.m., when he was taking out the garbage. The next image captured by the security camera on the second floor is the black male exiting the elevator at 12:00:40 p.m., and proceeding down the hallway in the direction of Ms. Wigglesworth’s apartment.

[28] Mr. Evans viewed the footage of the black male leaving the building via the west exit at 1:08:56 p.m. He testified that the male appeared to be wearing one of his shirts, and carrying another of Mr. Evan’s shirts in his hands.

ISSUES RAISED AT THE PRELIMINARY INQUIRY

[29] The issues raised at the preliminary hearing were as follows:

1. Was there evidence upon which a reasonable jury, properly instructed, could find beyond a reasonable doubt that Mr. Wilson was the black male seen in the video surveillance?; and

2. Was there evidence upon which a reasonable jury, properly instructed, could find that Mr. Wilson committed a sexual assault on Ms. Wigglesworth – that is, was there evidence that the sexual activity was non-consensual?

[30] Grossman J. answered both of these questions in the affirmative and committed Mr. Wilson for trial on the charge of first degree murder. Counsel for Mr. Wilson, Mr. Herscovitch, submitted in his factum that he erred in so doing. However, in oral submissions, Mr. Herscovitch abandoned his argument with respect to the first issue and made submissions only in regard to the second issue.

REASONS FOR COMMITTAL

[31] After reviewing the evidence, Grossman J. held that the test for committal with respect to the issue of identity had been met. At para. 37 of his reasons, he stated:

Taking into account all of the circumstantial evidence including the evidence relating to DNA, bank records and security video, I am satisfied a reasonable inference of identity of Mr. Wilson can be drawn.

[32] The position of the defence with respect to the second issue was that more was needed than evidence of Mr. Wilson’s semen in Ms. Wrigglesworth’s mouth to show that the sexual activity was non-consensual. In addressing this issue, Grossman J., at paras. 40-45, stated:

[40] It is clear that Ms. Wrigglesworth was engaged in sexual relations from time to time as evidenced by the advertisement in “NOW” magazine with her registered phone number. Engaging in such activity would allow for a reasonable inference that consent was present.

[41] However, the evidence of the pathologist, Dr. Pollanen, colours the situation differently. Dr. Pollanen related that Ms. Wrigglesworth died from neck compression before the fire started. He related there was bleeding under the skin of the neck, bruising to the muscles of the left shoulder blade and left buttock, bruising to the right shoulder blade and muscles in the nape of her neck and a fracture of the left horn of her voice box. He stated these injuries imply something forcibly struck her body or her body forcibly struck something and the force was significant. This evidence allows for the reasonable inference that consent was not present when semen was deposited in her mouth within twenty-four hours of death.

[42] It is open to reasonably infer that Ms. Wrigglesworth was killed in her apartment before the fire occurred and around the time that a sexual act was committed.

[43] The phone records relate no answering of phone calls in relation to her telephone numbers after 12:30 p.m. The video footage shows the male person leaving around 1:08 p.m. The fire alarm is generated at 1:12 p.m. It is reasonable to infer that sometime between 12:30 p.m. and 1:08 p.m., an act of oral sex occurred, a significant degree of force was applied to Ms. Wrigglesworth causing injuries, neck compression caused death and three fires were set just prior to 1:12 p.m. This evidence attracts a reasonable inference of one continuous sequence of events.

[44] Even if, as a participant in the sex trade, the sexual act was consensual, the nature of the injuries and the neck compression causing death, dramatically take the events out of the arena of consensual behaviour.

[45] I am satisfied there is a reasonable inference consistent with guilt considering all of the circumstances. In the final analysis, a number of issues will be determined by the triers of fact. Accordingly, I find there is evidence upon which a reasonable jury, properly instructed, could, if the evidence were believed, return a verdict of guilty for first degree murder. The test of sufficiency has been met.

THE STANDARD FOR COMMITTAL

[33] The seminal case on the test to be applied by a preliminary hearing judge is United States of America v. Sheppard, 1976 8 (SCC), [1977] 2 S.C.R. 1067, where, at p. 1080, Ritchie J. stated:

I agree that the duty imposed upon a “justice” under s. 475(1) is the same as that which governs a trial Judge sitting with a jury in deciding whether the evidence is “sufficient” to justify him in withdrawing the case from the jury and this is to be determined according to whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The “justice”, in accordance with this principle, is, in my opinion, required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[34] In R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, McLachlin J. (as she then was), dissenting on other grounds, was of the view that the Sheppard test must include reference to the criminal standard of proof. Charemski concerned the sufficiency of evidence in the context of the test for a directed verdict. At para. 35, she stated:

… “sufficient evidence” must mean sufficient evidence to sustain a verdict of guilt beyond a reasonable doubt; merely to refer to “sufficient evidence” is incomplete since “sufficient” always relates to the goal or threshold of proof beyond a reasonable doubt. This must constantly be borne in mind when evaluating whether the evidence is capable of supporting the inferences necessary to establish the essential elements of the case.

[35] In R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 53, the Court adopted the above-quoted passage as a correct statement of the test:

Accordingly, as McLachlin J. explained in Charemski, supra, the case against the accused cannot go to the jury unless there is evidence in the record upon which a properly instructed jury could rationally conclude that the accused is guilty beyond a reasonable doubt [emphasis in the original].

[36] The test set out in Charemski and Fontaine is a modification of the Sheppard test in that it explicitly recognizes that the standard of proof beyond a reasonable doubt must be incorporated into the analysis. See also R. v. Turner, 2012 ONCA 570, [2012] O.J. No. 4088 (C.A.), at para. 16.

[37] The test for committal is the same regardless of whether the Crown’s case is based on direct or circumstantial evidence. However, as stated in R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 23, the nature of the judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence:

The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence, supra, at para. 9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence, supra, at pp. 641-42 (“circumstantial evidence … may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[38] A “reasonable inference” must be based on the evidence admitted at the preliminary inquiry and “cannot be based on speculation, no matter how seemingly reasonable.” An inference can become “impermissible speculation” if the primary facts are not established by the evidence: R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (Sup. Ct. J.) at paras. 22 and 26.

[39] Inference can also devolve into speculation if the inference “cannot be reasonably and logically drawn from the established primary facts: Munoz, at para. 28. In United States v. Huynh, 2005 34563 (ON CA), [2005] O.J. No. 4074 (C.A.) at para.7, Doherty J.A. distinguished between the process of drawing inferences and speculation:

The process of drawing inferences from evidence is not, however, the same as speculating even where the circumstances permit an educated guess. The gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance can only be bridged by evidence … I do not think there is anything in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity. (Emphasis added.)

THE SCOPE OF CERTIORARI REVIEW

[40] The scope of review on certiorari is very limited. It is well settled that where there is a scintilla of evidence upon which the preliminary inquiry judge could conclude that the test for committal is satisfied, a reviewing court should not intervene to quash the committal. A preliminary inquiry judge’s determination of sufficiency is entitled to the greatest deference: R. v. Martin, 2001 4971 (ON CA), [2001] O.J. No.4158 (C.A.), at para. 3; and R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 48.

[41] Review on certiorari does not permit a reviewing court to overturn the decision of a preliminary inquiry justice merely because he or she committed an error of law or reached a conclusion different from that which the reviewing court would have reached. Rather, certiorari permits review only where it is alleged that the preliminary inquiry justice has acted in excess of his or her assigned statutory jurisdiction or has acted in breach of the principles of natural justice which, by the authorities, is taken to be an excess of jurisdiction: Russell, at para. 19.

[42] The jurisprudence of the Supreme Court leaves no doubt that a preliminary inquiry judge commits a jurisdictional error by committing an accused for trial under s. 548(1)(a) when an essential element of the offence is not made out: R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 23. See also Russell, at para. 21, where McLachlin C.J., quoting from R. v. Skogman, 1984 22 (SCC), [1984] 2 S.C.R. 93, at p. 104, stated: “Thus, ‘where the record … does not include evidence relating to each essential element of the charge brought against the accused, a committal of the accused to stand trial can be brought forward by way of a writ of certiorari to a superior court and can be quashed.’”

ANALYSIS AND APPLICATION OF THE LAW TO THE PRESENT CASE

[43] In order to convict Mr. Wilson of first degree murder under s. 231(5)(b), a properly instructed jury would need to be satisfied beyond a reasonable doubt that the murder occurred while the accused was committing or attempting to commit a sexual assault. Section 231(5)(b) states:

Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(b) section 271 (sexual assault)

[44] It is clear from the evidence that a sexual act took place between Mr. Wilson and the deceased, given the presence of the accused’s semen in the deceased’s mouth. The offence of sexual assault, however, requires the Crown to establish beyond a reasonable doubt that the deceased did not consent to that sexual activity.

[45] Assuming that Mr. Wilson is the person shown in the video surveillance footage, he was in the deceased’s apartment from 12:00 p.m. until 1:08 p.m. Taking into account the fact that Ms. Wigglesworth did not answer her phone after 12:30 p.m., the preliminary inquiry judge inferred that the act of oral sex and the violence that resulted in the deceased’s death took place within the time-frame of 12:30 p.m. and 1:08 p.m. He also noted that the fire alarm went off at 1:12 p.m., from which he inferred that the fires were set just prior to that time. Thus, the time-frame could be somewhat shorter than between 12:30 to 1:08 p.m. if allowance is made for the time required to set the fires and to take the roommate’s shirts. Defence counsel noted in his submissions that the act of oral sex could also have taken place earlier, that is, during the 14-minute interval between the phone call that ended at around 12:15 p.m. and the next call at 12:29 p.m.

[46] In any event, other than the violence involved in the murder, there is no evidence of a sexual assault. As the preliminary inquiry judge observed at para. 40 of his reasons, “it is clear that [the deceased] was engaged in sexual relations from time to time as evidenced by the advertisement in ‘NOW’ magazine”, and that “engaging in such activity would allow for a reasonable inference that consent was present.” However, he found that the pathologist’s evidence “colours the situation differently.”

[47] I would note at this juncture that in addition to the deceased’s advertisement, there was other evidence to support the inference drawn by the preliminary inquiry judge that the act of oral sex was consensual and that the accused’s attendance at the apartment was for sexual services. This evidence includes the following:

i) the telephone contact between the accused and the deceased, including the two brief calls by the accused to the deceased on July 12, 2013, at 6:36 p.m. (17 seconds) and at 6:37 p.m. (51 seconds), and the three brief calls shortly before or as he was arriving at her apartment around noon on July 13, 2013.

ii) the absence of any evidence of forced entry;

iii) the absence of any evidence of a pre-existing relationship between the accused and the deceased to suggest any reason for his phone calls or for him to be at the deceased’s apartment other than for sexual services; and

iv) the presence of semen from at least one male (not the accused) in the deceased’s vaginal cavity, as well as other DNA that was not in sufficient quantities to allow for testing. There was also DNA from a male other than the accused found in the deceased’s rectal cavity. According to the expert evidence, semen can remain in the vaginal cavity for a maximum of seven days, although on average it will be lost within the first two or three days.

[48] As previously stated, other than the violence involved in the murder, there is no evidence of a sexual assault. The key issue in this case, therefore, is whether the fact that the deceased was murdered or the manner in which she was murdered could form a basis upon which to find that the sexual activity was non-consensual. The preliminary inquiry judge, after reviewing the pathologist’s evidence, found that it could form such a basis. At para. 41, he referred to Dr. Pollanen’s finding that the cause of death was neck compression, and that the injuries included bleeding under the skin of the neck, bruising to the muscles in the nape of the neck, a fracture of the left horn of the voice box, and bruising to the muscles of the left and right shoulder blades and left buttock. These injuries were the result of the application of significant force. The preliminary inquiry judge concluded:

This evidence allows for the reasonable inference that consent was not present when semen was deposited in her mouth within twenty-four hours of death.

[49] At para. 42, he stated:

It is open to reasonably infer that Ms. Wigglesworth was killed in her apartment before the fire occurred and around the time that a sexual act was committed.

[50] At para. 43, the preliminary inquiry judge, after referring to the phone records and video surveillance, found that “it was reasonable to infer that sometime between 12:30 p.m. and 1:08 p.m., an act of oral sex occurred, a significant degree of force was applied to Ms. Wigglesworth causing injuries, neck compression caused death and three fires were set just prior to 1:12 p.m. This evidence attracts a reasonable inference of one continuous sequence of events.”

[51] At para. 44, he stated:

Even if, as a participant in the sex trade, the sexual act was consensual, the nature of the injuri