Court File and Parties

COURT FILE NO.: CR-23-30000458-0000 DATE: 20241018 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING - and - NORBERT BUDAI

Counsel: Matthew Shumka and Perry Rutherford, for the Crown Loui Dallas and Greg Dorsz, for Norbert Budai

HEARD: September 9-11, 20, and 25, 2024

KELLY J.

Reasons for Judgment

[1] Mr. Norbert Budai is charged with first-degree murder in the death of his estranged wife and the mother of their children, Ms. Henrietta Viski. Ms. Viski died on June 18, 2022 – the day after Mr. Budai doused her with gasoline and lit her on fire.

[2] Pursuant to s. 473(1) of the Criminal Code, R.S.C., 1985, c. C-46 and with the consent of the Attorney General, Mr. Budai proceeded to trial before me, sitting without a jury. At the commencement of trial, Mr. Budai pleaded not guilty to first-degree murder but guilty to second-degree murder. The plea was not accepted by Crown counsel.

Overview of the Case

[3] Mr. Budai and Ms. Viski were in a common-law relationship for 19 years. At the time of the incident, Ms. Viski and Mr. Budai had separated. Ms. Viski was living with their children in Unit 21 at 275 Chester Le Boulevard in the City of Toronto. Mr. Budai had no fixed address.

[4] The breakup of the relationship was tumultuous. In 2021, Mr. Budai was charged and convicted of three counts of uttering threats and two counts of failing to comply with his release order. All five offences related to Ms. Viski.

[5] At the time of Ms. Viski’s death, Mr. Budai believed that Ms. Viski was involved in a relationship with someone else. She had dyed her hair bright red. Mr. Budai associated her red hair colour with her infidelity. He admitted that he was jealous and wanted to remove her hair. However, he denies that he wanted to hurt her or planned to kill her.

[6] Mr. Budai testified that on both the day before and the day of the murder, he consumed alcohol and fentanyl. He then attended Ms. Viski’s home, broke down the door, doused her with gasoline, and set her on fire. The day after the incident, Ms. Viski died of the injuries she sustained during this incident.

The Positions of the Parties

[7] Counsel for Mr. Budai concede that Crown counsel has proven that Mr. Budai is guilty of second-degree murder. They argue however, that a reasonable doubt exists with respect to whether the murder was planned and deliberate so as to amount to first-degree murder. They submit that the combination of alcohol and fentanyl that Mr. Budai consumed before the incident limited his ability to plan and deliberate the murder of his wife.

[8] Crown counsel submit that Mr. Budai committed first-degree murder. They submit that the murder was both planned and deliberate. Mr. Budai had the capacity to form the requisite intent and was not impaired by either alcohol or fentanyl at the time.

[9] For the reasons set out below, I am satisfied that Crown counsel has proven beyond a reasonable doubt that the murder of Ms. Viski was planned and deliberate. Mr. Budai is found guilty of first-degree murder.

Overview of the Proceedings

[10] An Agreed Statement of Facts (the “ASF”) was filed at the commencement of the proceedings. I have attached it as Appendix A. A 911 call made by the daughter of Ms. Viski and Mr. Budai was admitted for the truth of its contents. Statements made by Ms. Viski and Mr. Budai to a paramedic were also admitted for the truth of their contents. The report of the postmortem examination conducted by Dr. Andrew Williams was filed on consent. A member of the Toronto Police Service Forensic Identification Service (“FIS”) testified. Photographs were filed of the scene, Ms. Viski’s home, and the motor vehicle driven by Mr. Budai at the relevant time (the “vehicle”). Videos were shown and filed, including videos depicting the incident in question.

[11] Mr. Budai testified. The defence also called Dr. Joel Mayer, an expert in forensic toxicology and pharmacology. Crown counsel called a paramedic in reply regarding the issue of intoxication.

The General Legal Framework

[12] Murder is defined in s. 229 of the Criminal Code. Subsection 229(a) of the Criminal Code provides as follows:

229. Culpable homicide is murder (a) where the person who causes the death of a human being (i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not[.]

[13] Section 231(2) of the Criminal Code provides that murder is first-degree murder when it is planned and deliberate.

R. v. W.(D.)

[14] As I have stated above, Mr. Budai testified. He denied that he planned or deliberated the murder of his wife. When examining the evidence favouring Mr. Budai, including his own evidence, I am required to consider the principles set out in R. v. W.(D.) [^1]. I remind myself of those principles, which are as follows:

i. If I believe the evidence of Mr. Budai, I must acquit. ii. If I do not believe the evidence of Mr. Budai, but it raises a reasonable doubt as to his guilt, I must acquit. iii. Even if I am not left in doubt by the evidence of Mr. Budai, I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt of Mr. Budai’s guilt.

[15] When considering Mr. Budai’s evidence and the evidence that favours him, I have done so in the context of the evidence as a whole. I have not isolated it in a vacuum.

Analysis and Decision

[16] While Mr. Budai concedes the first three essential elements of murder, giving rise to a conviction for second-degree murder, I will address them briefly.

i. Did Mr. Budai cause Ms. Viski’s death?

[17] Crown counsel has proven beyond a reasonable doubt that Mr. Budai’s conduct of dousing Ms. Viski with gasoline and setting her on fire caused Ms. Viski’s death. The video evidence shows that Mr. Budai attended at Ms. Viski’s home in the early afternoon of June 17, 2022. He was in possession of a red jerrycan. Mr. Budai testified that he entered the unit with the jerrycan. He used his hands (one or both) to splash Ms. Viski with gasoline as she sat on the couch. Mr. Budai testified that he retrieved a lighter from his pocket and approached her as she ran away from him and outside of the unit. He directed the lighter at Ms. Viski, ignited it, and lit her on fire.

[18] Following the incident, emergency personnel arrived at the scene including police, fire, and emergency medical services. Ms. Viski was transported from her home to the hospital for urgent care. The following day, Ms. Viski died from the injuries caused by the gasoline doused on her and ignited by Mr. Budai on June 17, 2022.

[19] The report of the postmortem examination authored by forensic pathologist Dr. Williams explained the cause of Ms. Viski’s death as complications from the thermal burns that she sustained to approximately 80 percent of her body, including the following: face and head; neck; upper chest; abdomen; back; arms, forearms, and hands; upper legs; and proximal shins.

[20] Based on the evidence presented at trial, I am satisfied beyond a reasonable doubt that Mr. Budai caused Ms. Viski’s death.

ii. Did Mr. Budai cause Ms. Viski’s death unlawfully?

[21] There is no question that Mr. Budai caused Ms. Viski’s death unlawfully by dousing her with gasoline and setting her on fire, committing assault causing bodily harm. Mr. Budai’s unlawful actions caused Ms. Viski’s death.

[22] I am satisfied beyond a reasonable doubt that Mr. Budai unlawfully caused the death of Ms. Viski.

iii. Did Mr. Budai have a state of mind required for murder?

[23] The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove beyond a reasonable doubt that Mr. Budai either: meant to kill Ms. Viski (s. 229(a)(i) of the Criminal Code) or meant to cause Ms. Viski bodily harm that Mr. Budai knew was likely to kill Ms. Viski and was reckless whether Ms. Viski died or not (s. 229(a)(ii) of the Criminal Code).

[24] Counsel for Mr. Budai concedes that Mr. Budai meant to cause Ms. Viski bodily harm that he knew was likely to cause her death and was reckless as to whether death ensued or not. Counsel submits that although Mr. Budai consumed both alcohol and fentanyl before the murder, he was not in a state of advanced intoxication such that he did not have the state of mind required for second degree murder. [^2] I agree.

[25] Based upon the evidence presented at trial, I am satisfied beyond a reasonable doubt that Mr. Budai meant to kill Ms. Viski. I find further, that he meant to cause Ms. Viski bodily harm by setting her on fire, and that Mr. Budai knew that such action was likely to kill her and was reckless as to whether Ms. Viski died or not.

[26] I will now consider the more contentious issue of whether Mr. Budai’s murder of Ms. Viski was both planned and deliberate.

iv. Was Mr. Budai’s murder of Ms. Viski both planned and deliberate?

The Law of Planning and Deliberation

[27] To prove that Mr. Budai’s murder of Ms. Viski was first-degree murder, Crown counsel must prove beyond a reasonable doubt not only that Mr. Budai murdered Ms. Viski, but also that the murder was both planned and deliberate.

[28] The word “planned” means a calculated scheme or design that has been carefully thought out. The consequences of it have been considered and sized up. A planned murder is one that is committed because of a scheme or plan that has been previously formulated. It is not committed on an impulse and without prior consideration. [^3]

[29] The word “deliberate” means “considered, not impulsive”, “carefully thought out, not hasty or rash”, “slow in deciding”, and “cautious”. [^4] A deliberate act is one that the actor has taken time to weigh the advantages and disadvantages of. The deliberation must take place before the act of murder starts. A murder considered on a sudden impulse and without prior consideration, even with an intention to kill, is not a deliberate murder. [^5]

Analysis

[30] Counsel for Mr. Budai submits that Mr. Budai’s murder of Ms. Viski was neither planned nor deliberate. Mr. Budai testified that he did not mean to hurt her and that he was “drunk” and “high” at the time of the incident. Counsel for Mr. Budai submits that while the defence is not arguing that Mr. Budai was in an advanced state of intoxication, he had a limited ability to plan and deliberate the murder of Ms. Viski due to his consumption of fentanyl and alcohol before the murder. I do not agree.

[31] I do not believe the evidence of Mr. Budai: that he did not mean to hurt Ms. Viski or that he was “drunk” and “high” at the time of the murder. Further, his evidence does not raise a reasonable doubt. Lastly, on the basis of the evidence that I do accept, I am convinced beyond a reasonable doubt that Mr. Budai’s murder of Ms. Viski was both planned and deliberate.

i. Do I believe the evidence of Mr. Budai?

[32] While I accept some of the evidence of Mr. Budai, I do not believe his evidence that he did not plan and deliberate the murder of Ms. Viski. During his testimony, he repeatedly said that he did not wish to hurt Ms. Viski. He said that he was “drunk” and “high” at the time of the incident. I do not believe that Mr. Budai did not mean to hurt Ms. Viski and the evidence does not support a finding that he was either “drunk” or “high” at the time.

Background

[33] There is no question that Mr. Budai and his family had suffered some setbacks since arriving in Canada from Hungary in March 2019 as Convention Refugee claimants. Although Mr. Budai and Ms. Viski were in a common-law relationship for 19 years and shared three children, their relationship ended some time in 2021, the same year they were granted Convention Refugee status in Canada.

Prior Discreditable Conduct

[34] Also in 2021, Mr. Budai became embroiled in the Canadian criminal justice system. Mr. Budai pleaded guilty and was convicted of three counts of uttering threats and two counts of breaching his court orders. All five offences involved Ms. Viski. The terms of his probation required that he have no contact or communication with Ms. Viski. He was subject to that term at the time of the murder. He admitted, and the video evidence shows, that he breached the order by attending Ms. Viski’s home. Mr. Budai is seen communicating with her the day before, and of course, on the day of the murder.

[35] While Mr. Budai pleaded guilty to three counts of uttering threats and two counts of breaching court orders in 2021, and while he readily conceded that he breached the terms of his probation order by communicating with Ms. Viski, I do not rely on that evidence when considering the essential element of planning and deliberation giving rise to the conviction for first-degree murder. In my view, the planning and deliberation began on June 16, 2022 – the day before the murder. The fact that Mr. Budai previously threatened Ms. Viski and breached his court orders played no role in my findings.

Motive

[36] There is no question that Mr. Budai was jealous – a fact that he admitted at trial. He learned that Ms. Viski was having a relationship with a Hungarian man and it broke his heart. He testified that he did not like Ms. Viski’s red hair (it was previously black). He testified that when Ms. Viski changed her hair colour “she became a different person”. Mr. Budai associated the red colour of Ms. Viski’s hair with her having an affair, explaining that he believed that her “hair colour was the cause of her cheating on me”. He testified that he poured the gasoline on Ms. Viski and lit her on fire because he wanted to burn her hair, something he associated with her infidelity.

[37] There is also no question that Mr. Budai had a love for his children and had wanted the family to be reunited following his separation from Ms. Viski. During his allocution for the threatening and breach offences in 2021 (a little over a year before Ms. Viski’s death), Mr. Budai stated, “I just want to get my family back, get my family back.” Mr. Budai testified that he continued to visit his family’s home and breached his probation order by communicating with Ms. Viski to maintain contact with his children. After the incident in question and when speaking with the Hungarian paramedic, Mr. Budai explained that he committed the attack on Ms. Viski for his children. When asked at trial why he told the paramedic this, Mr. Budai answered, “So that I can get my family together just like they were when my wife had black hair.”

[38] I accept that Mr. Budai was jealous because of Ms. Viski’s infidelity and had a desire to reunite with his children. This provides evidence of motive for his actions. But that, standing alone, cannot support an inference of planning and deliberation. [^6] While I have considered the evidence of motive, it is not the sole factor in my conclusion that this murder was planned and deliberate.

[39] I will now consider the evidence regarding the incident and why I do not believe Mr. Budai’s testimony, that the murder of Ms. Viski was not planned and deliberate.

Planning and Deliberation

[40] Overall, Mr. Budai testified that he did not want to hurt Ms. Viski when he doused her with gasoline and lit her on fire. Specifically, he testified, “I never wanted to hurt her. I never wanted to hurt her. I didn’t think it through. The whole thing happened based on a very bad accident. I don’t know how this happened. I cannot explain it anyway.” Mr. Budai also testified that he was intoxicated at the time of the murder, having consumed both fentanyl and alcohol.

[41] I do not believe Mr. Budai’s evidence that he did not want to hurt Ms. Viski and that he was intoxicated at the time. I acknowledge that there were some inconsistencies in his evidence, and he was unresponsive to the questions asked on occasion. However, I found that he was an unreliable witness. [^7] His evidence was contradicted by his own actions observed on videotape.

[42] I begin my analysis with the evidence of the incident that supports my conclusion, and then address the issue of intoxication.

The Incident

[43] On June 16, 2022, Mr. Budai attended at the home of Ms. Viski. He drove his vehicle. He pulled into the parking lot of 275 Chester Le Blvd. He attended at Ms. Viski’s unit and entered. The video evidence shows Mr. Budai outside the unit speaking with Ms. Viski. Eventually, Ms. Viski, her son, and Mr. Budai are shown getting into Mr. Budai’s vehicle and the vehicle leaving the parking lot. Mr. Budai is driving, Ms. Viski is in the front passenger seat, and their son is in the back driver’s side seat. They leave and return ten minutes later. All three exit the vehicle. Mr. Budai tosses a shovel into the backyard of Ms. Viski’s unit. He agrees that he was angry, but he does not recall why. He is sure that he had a quarrel with Ms. Viski.

[44] I accept that Mr. Budai was angry at Ms. Viski because the ASF provides that on June 16, 2022, in the presence of two of their children, Mr. Budai threatened to light Ms. Viski on fire. Mr. Budai testified about this threat at trial and suggested it was not a threat at all.

[45] When asked to explain the threat, Mr. Budai testified, “I suppose we were arguing, and it was just a statement I made.” When asked what they were arguing about, he testified, “We had been always arguing over her hair colour.” When asked what was going through his mind at the time he made the threat, he testified, “I think that what was in my mind in that state, the person is just talking to in vain and doesn’t think.” He was then asked the following question and provided the following answer:

Q: On June 16, 2022, when you threatened to light your wife on fire, did you actually want to? A: Not at all. I didn’t want to do anything like that to her. It was just a statement.

[46] When asked if he thought about killing his wife on the evening of June 16, 2022, Mr. Budai testified, “No. No, I would not want to hurt my wife.”

[47] I do not accept Mr. Budai’s explanation at trial, that the threat to light Ms. Viski on fire was just a statement and that he did not want to hurt her. His evidence is contradicted by his own actions on June 17, 2022, when he did just that. The threat he uttered on June 16, 2022 accurately reflected his state of mind and intention to do the very thing he did the next day.

[48] Mr. Budai’s conduct on June 17, 2022, does not support his evidence that he did not wish to light Ms. Viski on fire or hurt her. The following evidence leads me to the conclusion that he planned and deliberated to murder Ms. Viski, commencing with the threat the day prior:

a. At 6:53 a.m. on June 17, 2022, Mr. Budai attended at Ms. Viski’s home. He testified that he went there to speak to his family. He tried to enter through the front door, but it was locked. He returned to his vehicle in the parking lot where he remained for 12 minutes before driving away. b. At approximately 1:36 p.m. that same day, Mr. Budai returned to the area of his wife’s home. Mr. Budai initially drove into the parking lot at 275 Chester Le Blvd., but then drove to the parking lot at 260 Chester Le Blvd. (across the street). He walked over to Ms. Viski’s home. He testified that he was intending to speak with his family, but the door was locked. It was now approximately 1:43 p.m. c. Mr. Budai is then seen on the video footage walking back to his vehicle parked in the lot at 260 Chester Le Blvd. At 1:45 p.m., Mr. Budai backs his vehicle into the parking lot at 275 Chester Le Blvd. He gets out and approaches the front door of Ms. Viski’s home. d. Mr. Budai went back to his vehicle and waited in the parking lot. He appears to be speaking on the phone for approximately four minutes. He denies any recollection of this call and does not remember if he was speaking with Ms. Viski at the time. He also testified that he did not recall what was going through his mind at the time because he was feeling “drunk” and “high” (more will be said about this below). e. At 1:50 p.m., the video shows that Mr. Budai is doing something with the red jerrycan located on the seat behind the driver’s seat in his vehicle. While he testified that the jerrycan is always in the vehicle because he uses tools that require gas, it was not in this location the day prior. The video footage of the parking lot on June 16, 2022 permits a view into the back seat of Mr. Budai’s vehicle. No red jerrycan is observed on the back driver’s side seat at that time. Further, Mr. Budai’s son was sitting in that seat and did not appear to move anything before doing so. The inference to be drawn is that it was placed on that seat sometime between the afternoons of June 16 and 17, 2022. f. Mr. Budai is seen on the video in the back driver’s side seat of his vehicle. He appears to remove the lid and yellow nozzle from a red jerrycan. He leaves the lid and nozzle on the rear driver’s side seat. [^8] g. Mr. Budai is then seen taking the red jerrycan out of the vehicle and walking towards Ms. Viski’s home. When asked what was going through his mind when he did that, Mr. Budai testified, “I believe that I wanted to remove her hair.” He testified that he thought that the hair would “disappear” if he lit it on fire, “just like when we put dry grass on fire, it would just disappear”. When asked if he was “worried” that Ms. Viski’s “body would go up in flames” if he simply tried to light her hair on fire, he replied, “I didn’t think of that, and I was on drugs. That’s the truth.” For the reasons set out below, I do not find that Mr. Budai was impaired by drugs or alcohol at the relevant time. h. Further, it defies logic that he did not think that Ms. Viski’s body would go up in flames. He did not simply pour the gasoline on Ms. Viski’s head and light her hair on fire. The video shows the entirety of Ms. Viski’s body on fire, not just her hair. The postmortem report supports the finding that most of her body was doused with gasoline, as she suffered thermal burns to approximately 80% of her body, including the following: face and head; neck; upper chest; abdomen; back; arms, forearms and hands; upper legs; and proximal shins. i. Mr. Budai broke through the door of Ms. Viski’s home using his shoulder. He broke the deadbolt of the door when he did so. j. Once inside, Mr. Budai testified that he recalled using his hands (one or both) to douse Ms. Viski with gasoline as she sat on the sofa. Eighteen seconds after Mr. Budai’s entry into the home, Ms. Viski went outside. Mr. Budai followed her, determined to execute his plan – lighting her on fire. Mr. Budai recalls retrieving his lighter from his pocket and lighting Ms. Viski on fire, igniting the gas on her body. k. When Mr. Budai directed his lighter towards Ms. Viski to light her on fire, he did not light Ms. Viski’s hair on fire. Although he says that he ignited the flame of his lighter in the area of her shoulder, he is contradicted by the video footage that shows him aiming the lighter at her chest area and igniting it there. He is certainly not lighting Ms. Viski’s hair on fire. l. While Mr. Budai testified that he wrestled with his wife after lighting her on fire to put out the flames, it appears that his fixation on Ms. Viski’s red hair continued. He can be seen grabbing at her red hair as she is engulfed in flames. He succeeded at removing it, as a clump of red hair is found at the scene and photographed by the FIS. m. While Mr. Budai retrieved a pail of water from the house, it was too late. He had already planned and deliberated Ms. Viski’s murder and followed through by lighting her on fire.

[49] It is Mr. Budai’s position that he had a jerrycan full of gasoline in his vehicle because he is employed in the landscaping business. Gas is required for some of the gardening tools he uses, such as lawnmowers. While there is no evidence of gardening tools in the vehicle that required gasoline, it matters not when the gasoline was purchased and for what purpose. What matters is that he had it and planned to use it for the purpose of lighting Ms. Viski on fire. This was not a spur of the moment decision.

[50] Mr. Budai’s intended use of the gasoline is supported by the immediate actions he took with it upon his arrival at the parking lot and unit. With the jerrycan in hand and no lid on it, Mr. Budai walked to the door of Ms. Viski’s home. This time, a locked door would not deter him. Using his shoulder, he forcefully pushed through the front door, gaining entry to the home. A photograph of the door shows the significant damage his actions caused to the door and its frame. He doused Ms. Viski with gasoline and 18 seconds later he lit her on fire, following through on his threat within 24 hours of making that threat and obviously hurting her.

[51] As I have said, I do not believe the evidence of Mr. Budai, that he had no intention of hurting Ms. Viski and that he did not plan and deliberate to kill her. (I would also note parenthetically that this claim is inconsistent with admitting his guilt for second-degree murder. To plead guilty to second-degree murder, he was admitting that, at the very least, he had the intention to cause serious bodily harm that he knew was likely to cause death). His viva voce evidence is contradicted by the facts that I have described above. He threatened to light Ms. Viski on fire on June 16, 2022. He then returned the following day armed with the tools to do just that: gasoline and a lighter. He splashed gasoline on Ms. Viski and then set her ablaze, following through on his plan. I do not find that he was intoxicated at the time, as he claimed at trial.

Intoxication

[52] There are three broad categories of intoxication as a potential defence to a criminal charge: (a) mild intoxication or alcohol induced relaxation of both inhibitions and socially acceptable behaviour; [^9] (b) advanced intoxication or intoxication to the point where the accused lacks specific intent, to the extent of an impairment of the accused’s foresight of the consequences of his or her act sufficient to raise a reasonable doubt about the requisite mens rea; [^10] and (c) extreme intoxication akin to automatism. [^11] Only advanced and extreme intoxication can provide a viable defence to murder.

[53] Counsel is not submitting that Mr. Budai fell into the category of advanced or extreme intoxication. Counsel submit that both alcohol and fentanyl “would have limited his ability to plan and deliberate the murder of his wife”. I do not agree. I do not find that Mr. Budai was intoxicated at the time of the murder as he submits. His evidence is again contradicted by the video and other evidence.

[54] Mr. Budai testified that he had consumed both fentanyl and alcohol before the incident as follows:

June 16, 2022: $30 worth of fentanyl that he snorted on separate occasions. He testified that he consumed approximately four to six drinks containing vodka mixed with soft drinks. June 17, 2022: $30 worth of fentanyl that he snorted. He testified that he does not remember the amount of alcohol he consumed but it was “three or four or five glasses” of vodka mixed with soft drinks.

[55] Mr. Budai testified that he was feeling intoxicated when he attended at Ms. Viski’s home at 6:53 a.m. on June 17, 2022. When asked why he parked at 260 Chester Le Blvd. when he returned at 1:36 p.m., he testified, “I was on drugs, and I was drunk.” He testified that he does not recall what was going through his mind when he moved the vehicle to 275 Chester Le Blvd. at approximately 1:45 p.m. He explained that he was still feeling “drunk” and “high”.

[56] I do not find that Mr. Budai was so intoxicated by alcohol and fentanyl that his ability to plan and deliberate Ms. Viski’s murder was limited. He said that he bought and snorted fentanyl and that he bought and consumed vodka. However, there is little evidence that he did so. Further, there is little evidence that if he did, he was impaired or intoxicated at the time of the murder:

a. The only evidence that Mr. Budai consumed fentanyl and alcohol before the incident comes from Mr. Budai himself. There is no independent evidence of his claim. For example, Mr. Budai does not remember where he purchased the vodka but testified that he probably had alcohol in the vehicle. However, there is no evidence that supports this. Mr. Budai’s vehicle could be described as a storage locker on wheels. Photographs taken by the FIS of the inside of the vehicle after the incident show that it was full of refuse, including a Tim Horton’s cup; a Petro-Canada receipt; McDonald’s and other food receptacles; water bottles, and more. Clothing and toiletries were strewn throughout it. Despite the amount of refuse in the vehicle, there was no evidence of narcotic use (such as packaging), or alcohol use (such as a vodka bottle or receipt) found in it. b. Evidence of fentanyl use was found in the “Drugs of Abuse Screen – Urine” conducted at the Sunnybrook Health Sciences Centre when Mr. Budai was admitted for care. While that could have appeared because of Mr. Budai’s illicit use of fentanyl, there could be another explanation for its existence. Paramedic Mohammad Sharif testified at trial. He attended to Mr. Budai, who suffered burns to his body during the incident. When he did, he provided Mr. Budai with three doses of fentanyl at 14:23 p.m. (75 micrograms), 14:27 p.m. (75 micrograms), and 14:35 p.m. (50 micrograms), the maximum dose permitted. c. Dr. Joel Mayer, the expert called by the defence, testified that a finding of any substance in the urine, whether fentanyl or alcohol, is not an indicator of the dose taken, when it was last taken, the mode of administration, or the impact on the individual. While Dr. Mayer concluded that it was possible Mr. Budai used fentanyl before the incident, giving rise to the finding of fentanyl in the urine, he could not rule out that it was in Mr. Budai’s urine because of the fentanyl administered by the paramedics. It is possible that the fentanyl in the urine came from both. d. Based on the amount of alcohol that Mr. Budai testified he consumed on June 16 and 17, 2022, Dr. Mayer testified that Mr. Budai would have been alcohol free at the time of the murder, based on his calculation of elimination. As such, Mr. Budai would not have been impaired by alcohol at the time of the murder. e. With respect to fentanyl, Dr. Mayer concluded that depending on the dose, the manner of ingestion, the interval between each ingestion, and the purity of the fentanyl, there could be an effect for several hours if it was taken that morning or closer to 1:53 p.m. Of course, Mr. Budai did not give any specific evidence as to when he consumed fentanyl or the purity of the fentanyl. Mr. Budai testified that he consumed $60 worth of fentanyl on the evening of June 16, 2022, and the morning of June 17, 2022. However, there was no evidence as to the exact amount of fentanyl that $60 would buy, the interval between each ingestion, the purity of the fentanyl, etc.

[57] Dr. Joel Mayer testified that fentanyl use can impact a person’s cognition by creating confusion and impairment of thought. Confusion and impairment can be exacerbated by the consumption of alcohol. Mr. Budai testified that he was drunk and high, and that that explained some of his conduct that day. His evidence is not credible. Even accepting Mr. Budai’s evidence that he consumed fentanyl and alcohol before the murder, Mr. Budai exhibited no signs that he was confused or impaired at the time of the murder. For example:

a. I had an opportunity to observe Mr. Budai driving both before and after his alleged use of fentanyl and his consumption of alcohol. There is video evidence of Mr. Budai attending at 275 Chester Le Blvd. on June 16, 2022, and again on June 17, 2022. It also shows him pulling into the parking lot of 260 Chester Le Blvd. within a half hour of the incident. I did not notice any change in his method of driving from one day to the next. On both days, he was able to drive and park his vehicle without any indicia of impairment (i.e., the vehicle did not swerve at any point, and he was able to back up and park without any difficulty). b. In particular, on June 17, 2022, Mr. Budai is observed expertly parking his vehicle in a tight spot in the lot of 260 Chester Blvd. less than a half hour before the incident. The spot was located between a parked car and a large fence. He drove his vehicle into the spot with ease. He got out and walked, showing no indicia of impairment, from that lot to the complex at 275 Chester Le Blvd. Approximately seven minutes later, he is seen walking normally across the street and back to his vehicle. He backed out of the tight spot, turned left, and then backed the vehicle down the driveway into the parking lot at 275 Chester Le Blvd., again with ease. c. The video shows Mr. Budai walking both before his use of fentanyl and alcohol on June 16, 2022, and after his use of fentanyl and alcohol on June 17, 2022. There is no change in his appearance from one day to the next. He walks to the unit and conducts himself in the same manner both before and after his alleged consumption. Mr. Budai did not stumble or weave, particularly as he pursued Ms. Viski out of her home after having doused her with gasoline at a time, he says, he was “drunk” and “high”. d. Mr. Budai is observed exiting the driver’s seat of the vehicle just before the incident. He opens the rear driver’s side door and leans in to access the jerrycan. He removes the lid and the spout, leaving both on the seat. There is nothing to suggest that he had difficulty doing so because he was impaired by alcohol and/or fentanyl. No difficulties in his coordination are observed. e. When Mr. Budai approaches the unit with the jerrycan in his hand, he is walking in the same manner depicted on June 16, 2022. There is nothing observed in his gait to suggest that he was impaired. f. There is nothing to suggest Mr. Budai was impaired as he plowed through the locked door of the unit using his shoulder. g. There was no staggering or any other indicia of impairment when he followed Ms. Viski out of the unit and lit her on fire. h. He wrestled with his wife on the ground as she was engulfed in flames. He did not lose sight of his purpose for lighting her on fire. He can be seen grasping at Ms. Viski’s red hair. He succeeded in removing the hair, as a clump of it was found on the ground. i. The threat to light Ms. Viski on fire was made on June 16, 2022, before he says that he consumed any alcohol or fentanyl. His appearance after the incident appears to be similar to the rest of the videos observed. There is nothing to suggest he was impaired.

[58] Mr. Budai’s actions proximate to the murder do not suggest that intoxicants, if consumed, were impacting him or impairing his decision making. Mr. Budai made the threat to light Ms. Viski on fire when he was sober. He left. He deliberated on that plan and then his conduct showed the execution of his plan. The following day he returned. As he drove and parked the vehicle at 260 Chester Le Blvd. and then at 275 Chester Le Blvd., prepared the jerrycan, walked to the unit with the jerrycan, broke open the door, splashed Ms. Viski with gasoline, pursued her outside, and lit her on fire, he was showing little impact from fentanyl and alcohol if he had consumed these substances. The conduct he exhibited was functional, logical and purpose driven, as well as “rational, linear and goal directed”. [^12]

[59] Mr. Budai knew that dousing Ms. Viski with gasoline and lighting her on fire would cause her to die. He intended that outcome. His ability to understand the inevitable consequences of his actions was not negated by intoxication. I am satisfied beyond a reasonable doubt that Mr. Budai was not incapacitated by drugs or alcohol to any appreciable degree. It had no impact on the planning and deliberation involved in carrying out Ms. Viski’s murder nor did it impair his capacity to form the requisite intent. This evidence does not raise a reasonable doubt as to the foreseeability of the consequences of his actions.

[60] I do not believe the evidence of Mr. Budai, that he did not plan and deliberate the murder of Ms. Viski. His evidence does not leave me with reasonable doubt with respect to his ability to foresee the inevitable consequences of his actions.

ii. If I do not believe the evidence of Mr. Budai, does it raise a reasonable doubt?

[61] Further, the evidence of Mr. Budai does not raise a reasonable doubt as to his guilt for the offence of first-degree murder, and in particular the elements of planning and deliberation.

iii. Even if I am not left in doubt by the evidence of Mr. Budai, on the basis of the evidence I do accept, am I convinced beyond a reasonable doubt of Mr. Budai’s guilt?

[62] On the basis of the evidence I do accept, I am convinced beyond a reasonable doubt that Mr. Budai planned and deliberated the murder of Ms. Viski. While I rely on the analysis above in coming to my conclusion, I reiterate that I have found the following:

a. Mr. Budai threatened to light Ms. Viski on fire on June 16, 2022. This is a statement of the plan. b. He left the area of Ms. Viski’s home for approximately 15 hours. This provided ample time for Mr. Budai to deliberate, consider his actions, and weigh the consequences, even if he was consuming fentanyl and alcohol. c. He returned to Ms. Viski’s home on June 17, 2022 twice — once early in the morning and once later in the early afternoon. d. In the afternoon, he initially drove into the lot at 275 Chester Le Blvd. Then, he exited that lot and parked at 260 Chester Le Blvd. He walked across the street to Ms. Viski’s unit. He tried to open the door to Ms. Viski’s unit, but it was locked. He then walked back to the lot at 260 Chester Le Blvd. and moved his vehicle to the lot at 275 Chester Le Blvd. e. Although he cannot recall who he was speaking to, Mr. Budai is seen on the phone. As soon as the phone call ends, he is seen fussing in the driver’s side back passenger seat. f. He prepared the jerrycan for use by removing the cap and nozzle. He left both on the back seat of his vehicle. g. He removed a jerrycan filled with gasoline from the driver’s side back passenger seat. The inference is that it had to have been placed there after having dropped his wife and son off the previous day because that is where his son had been sitting on June 16, 2022. h. Without hesitation, he busted through a locked door into Ms. Viski’s home using his shoulder, while maintaining possession of the jerrycan. i. While Ms. Viski was sitting on her couch, Mr. Budai doused her with gasoline. j. Ms. Viski left the home and he followed. k. Mr. Budai then lit her on fire just as he said he was going to do the day before. He aimed his lighter at Ms. Viski’s chest. She was immediately engulfed in flames. l. Mr. Budai then wrestled with her. The video shows that while Ms. Viski is burning, he grabs her hair and rips some of it out. It was left behind at the scene.

[63] The plan was conceived and carefully thought out prior to being committed. [^13] There was nothing impulsive about his actions. He had time to weigh the advantages and disadvantages of his intended actions. [^14]

[64] As I have stated above, evidence that Mr. Budai was jealous or angry or felt animosity towards Ms. Viski may be evidence of motive, but it is not evidence of planning and deliberation. [^15] I have not inferred planning and deliberation from the evidence of animosity admitted to by Mr. Budai towards Ms. Viski.

[65] Counsel submits that it defies logic that Mr. Budai would plan and deliberate murdering Ms. Viski in broad daylight knowing that it would be caught on the security cameras. He also submits that it defies logic, if Mr. Budai had planned and deliberated to kill Ms. Viski, that he would try to put out the flames by wrestling with her on the ground, throwing a pail of water on her, and remaining on the scene thereafter. I have considered this evidence and submission. It does not raise a reasonable doubt.

[66] I would also note that it defies logic that someone would be so jealous that they would decide in these circumstances to light their estranged spouse on fire to remove her red hair, knowing that they would cause serious bodily harm that would likely cause death, but that is exactly what the defence is submitting Mr. Budai did. A planned and deliberated murder does not require proof that the person had a good or elaborate plan, or that the deliberation also contemplated how to get away with what they were doing. Although those are features of some planned and deliberated murders, they are not conditions precedent.

[67] As I have stated above, I do not believe Mr. Budai when he says that he did not plan and deliberate to kill Ms. Viski. These facts do not raise a reasonable doubt about the planning and deliberation of Ms. Viski’s murder.

[68] I am satisfied beyond a reasonable doubt that Mr. Budai knew what he was doing, that he planned to kill Ms. Viski by dousing her with gasoline and lighting her on fire, that he deliberated on that plan, and that he carried it out in a horrific manner.

[69] Mr. Budai is guilty of first-degree murder.

Kelly J.

Released: October 18, 2024

Appendix A

[^1]: , [1991] 1 S.C.R. 742. [^2]: Counsel for Mr. Budai submits that the alcohol and fentanyl consumed prior to the murder would have limited Mr. Budai’s ability to plan and deliberate the murder of Ms. Viski. This will be further addressed when dealing with the fourth essential element of first-degree murder. [^3]: David Watt, Watt’s Manual of Criminal Jury Instructions (Toronto: Thomson Reuters Canada Limited, 2024), at p. 626; R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1084 [Nygaard]. [^4]: Ibid. [^5]: Ibid; R. v. Widdifield (September 29, 1961) (Ont. S.C.) [Widdifield]. [^6]: R. v. McKenzie, 2018 ONSC 2006, 2018 CarswellOnt 5486, at para. 34. [^7]: For example, he initially led the court to believe that he was living in a residence at Jane Street and Wilson Avenue, in the City of Toronto. It was only in cross-examination that he admitted to living out of his vehicle. He did not initially concede that he was breaching the court order that he not communicate with Ms. Viski. It was only when pressed (and when obviously contradicted by the video evidence) that Mr. Budai agreed that he breached the court order. [^8]: The nozzle and the lid are photographed by the FIS in the rear driver’s seat of the vehicle following the incident. [^9]: R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, at para. 41. [^10]: Ibid. [^11]: Ibid, at para. 43. [^12]: R. v. Sheepway, 2022 YKCA 3, 2022 CarswellYukon 24, at para. 65. [^13]: Nygaard, supra, note 4, at para. 43. [^14]: Widdifield, supra, note 5, as excerpted in 6 Crim. L.Q. 152, at p. 153. [^15]: R. v. Evaloakjuk, 2001 NUCA 1, at para. 18.