Court File and Parties

Court File No.: CR-20-632 Date: 2024-12-17 Ontario Superior Court of Justice

Between: His Majesty The King, for the Crown And: Anthony Bruzzese, Accused

Counsel: T. Meehan, for the Crown S. Cowan, for the Accused

Heard: September 9, 10, 11, 12 and 16, 2024

Judgment

Justice: C. Petersen

Introduction

Overview

[1] Anthony Bruzzese is accused of attempted murder. The Crown alleges that he stabbed Mr. M. twice in the abdomen in the parking lot of a Food Basics grocery store and left him there to die.

[2] This incident is alleged to have occurred in the early morning hours of September 3, 2018, around 2:50 AM. Mr. M. was discovered about 40 minutes later by Sebastien Brugma, a local resident who happened to be driving by. Mr. Brugma called 911 after observing Mr. M. lying on his back on the ground in the parking lot, mumbling, and rolling side to side, with blood pooling beside him.

[3] Mr. M. was transported by ambulance to Guelph General Hospital. Upon arrival, he was hypertensive but responsive. He became progressively unresponsive and ultimately required intubation and ventilation. He had two stab wounds, one on the left side of his torso below his stomach, and the other close to his umbilicus. He had lacerations to parts of his intestines and bowel, and his inferior vena cava (the largest vein in the human body) was compromised. He was bleeding heavily into his abdomen and required emergency surgery to stem the flow of blood and repair the damage caused by the stabbing. The undisputed medical evidence establishes that without intervention, he would have bled to death in the parking lot.

[4] Mr. Bruzzese and Mr. M. had just met for the first time a few hours prior to the alleged stabbing, in a nearby sports bar called Shoeless Joe’s. Mr. M.’s goal was to get drunk that night to mask the pain of a recent breakup with his girlfriend and the death of his best friend. He started drinking shots of vodka alone in his apartment around 7 PM or 8 PM. Then he went to Shoeless Joe’s at around 10:40 PM, where he sat beside a stranger at the bar. That stranger was Mr. Bruzzese. They talked, watched sports, and drank beer together. They left the bar around midnight and went to another establishment, Crabby Joe’s, where they continued to sit together and drink more beer.

[5] Mr. M. testified that he became increasingly intoxicated as the night went on. He said he “leaned into alcohol” that night because he was grieving. He remembered that earlier in the day, while visiting his parents, he stared at himself in the mirror in their bathroom, cried, and talked to himself. He was feeling overwhelmed with deep sadness and despair. He said he did the same thing in the bathrooms of both bars.

[6] At Crabby Joe’s, Mr. M. and Mr. Bruzzese encountered another patron, Konrad Karcz, who was not previously acquainted with either of them. They did not sit together, but they engaged in conversation with Mr. Karcz from across the bar. Video surveillance footage shows that they all departed the bar around 1:30 AM.

[7] According to both Mr. Karcz and Mr. M., the three men then walked to Mr. M.’s nearby apartment. Mr. M. was very intoxicated and needed help to get home. Mr. Karcz testified that, during the walk and while at Mr. M.’s apartment, Mr. Bruzzese made repeated derogatory and threatening comments about Mr. M., calling him a loser, worthless, and a piece of shit, and saying he is weak, and it would be easy to kill him. Mr. Karcz assumed that the two men knew each other because they were seated together at the bar. He explained that he therefore did not take Mr. Bruzzese’s threats seriously. He thought Mr. Bruzzese was just jokingly jawing Mr. M. with a kind of sarcastic banter between friends.

[8] Mr. Karcz testified that, inside Mr. M.’s apartment, Mr. Bruzzese took a knife out of his pocket and showed it to them. Mr. M. then retrieved a “Samurai sword” from the top of a shelf in his bedroom and showed it as well. Mr. Karcz had the impression that Mr. M. was trying to look cool. He felt the situation was weird and it made him a bit uncomfortable, but he was not interested in the knives, so he basically ignored what the other two men were doing.

[9] Mr. Karcz recalled that, after the show of knives, Mr. Bruzzese emptied an entire bag of cocaine on a desk, made three lines for them to consume, and slid most of the coke off to the side. He and Mr. Bruzzese each did one line of coke. When it came to Mr. M.’s turn, instead of just doing the last prepared line, he snorted all the remaining cocaine on the desk. Mr. Karcz testified that this made Mr. Bruzzese angry. He recalled Mr. Bruzzese saying to Mr. M., “look what the fuck you did”, and saying to him, “that wasn’t for him.”

[10] Mr. Karcz testified that he and Mr. Bruzzese then went outside for a smoke. When Mr. Karcz re-entered the apartment, Mr. M. asked him, “Who is this guy? Do you know him?” and said he was afraid of Mr. Bruzzese. It was at that moment that Mr. Karcz realized the two men were not friends. He became fearful, recognizing that Mr. Bruzzese’s comments about how easy it would be to kill Mr. M. were not a joke, and remembering that Mr. Bruzzese possessed a knife.

[11] According to Mr. Karcz, Mr. Bruzzese then re-entered the apartment and continued with the threats and insults toward Mr. M. Mr. Karcz was feeling scared and trying to think of a way to get Mr. Bruzzese to leave with him so that nothing bad would happen to Mr. M.

[12] Mr. Karcz testified that he thinks Mr. Bruzzese’s words got inside Mr. M.’s head because Mr. M. started crying, grabbed a kitchen knife out of a drawer, fell to his knees, held the knife to his chest, and said, “you guys don’t have to kill me I can do it by myself.” Mr. Karcz tried to calm him down. He told Mr. M., “Don’t do it.” He approached Mr. M., who became aggressive. Mr. M. stood up and pointed the knife at him. He grabbed Mr. M.’s hand and took the knife. He then slid the knife into some books on a shelf.

[13] Mr. Karcz testified that Mr. Bruzzese was standing silently nearby, watching this drama unfold. He recalled that Mr. Bruzzese said to him, “that was brave,” after he disarmed Mr. M.

[14] Mr. Karcz testified that Mr. M. sat down on his couch. He was still crying but was calmer than before. Mr. Karcz did not think he was going to hurt himself if left alone, so he said to Mr. Bruzzese, “Let’s go. Leave him alone.” He and Mr. Bruzzese then exited, leaving Mr. M. by himself in the apartment. Mr. Karcz thought Mr. M. was safe, that he would wake up in the morning with a hangover and likely not remember what had happened the night before.

[15] Mr. Karcz recalled walking his bicycle alongside Mr. Bruzzese in the direction of the Food Basics plaza. He was relieved to have separated Mr. Bruzzese from Mr. M. He did not feel personally threatened by Mr. Bruzzese because Mr. Bruzzese did not appear to have an issue with him.

[16] After a short time, as they approached the Food Basics plaza, Mr. Karcz heard Mr. M. running towards them, calling out to them, “I want to be friends with you,” and screaming, “wait for me.” It was shortly thereafter that Mr. Karcz claims to have witnessed Mr. Bruzzese stab Mr. M. twice in the abdomen in the Food Basics parking lot. His evidence about the alleged stabbing is described later in this Judgment.

[17] Mr. M. has significant gaps in his memory of the events of that day. His testimony is also summarized later in this Judgment.

Witnesses Called at Trial and Parties’ Positions

[18] The implement used to stab Mr. M. was not recovered. The Crown alleges that it was Mr. Bruzzese’s pocketknife.

[19] Mr. Karcz and Mr. M. are the Crown’s two key witnesses. The Defence argues that their direct evidence of what transpired on the day in question suffers from chronic and unsalvageable problems with reliability and credibility, which give rise to reasonable doubt about Mr. Bruzzese’s guilt.

[20] In addition to calling Mr. Karcz and Mr. M. as witnesses at trial, the Crown also called two police officers, a forensic expert, Mr. Brugma (who discovered Mr. M. in a pool of blood), and Rachel Ragbir, a woman who was working at Crabby Joe’s on the morning in question. None of these witnesses’ evidence was seriously challenged by the Defence. Mr. Bruzzese elected not to testify and not to call any witnesses at trial.

[21] The Defence takes the position that the Crown has not established beyond a reasonable doubt that Mr. Bruzzese committed the stabbing. Among other things, Defence counsel argues that reasonable doubt arises from the absence of any forensic evidence linking Mr. Bruzzese to the stabbing, and from evidence that the stab wounds may have been self-inflicted.

[22] Before turning to the issues in the trial, I need to explain why I have admitted evidence that Mr. Bruzzese engaged in discreditable conduct other than that which forms the subject of the charge against him.

Admissibility of Evidence of Other Discreditable Conduct

The Disputed Evidence

[23] The evidence in question came from Ms. Ragbir, the bartender at Crabby Joe’s. She testified about her interactions with and observations of the three men in the bar from just after midnight until about 1:30 AM on September 3, 2018. Among other things, she described “inappropriate comments” made to her by Mr. Bruzzese. She said his remarks were “gender-specific” and related to her appearance. He told her how pretty she was, “but not in a complimentary way.” He asked where she was from and where she lived. He asked her to smile. He was aggressive and persistent.

[24] Ms. Ragbir said that, after last call, she was putting chairs up on the tables, signalling that the bar was closing. The three men were the only patrons left. She had stopped serving Mr. Bruzzese and Mr. M. and had asked them to leave the premises. Mr. Bruzzese approached her and told her she had to smile and if she didn’t, he would make her smile. He cornered her between the tables and the wall. She felt really uncomfortable and frantic. Mr. Karcz stepped in and helped her by persuading Mr. Bruzzese to leave the bar. Mr. Karcz exited the bar with Mr. Bruzzese, then returned a short time later and offered to walk her home. She declined his offer.

[25] Mr. Karcz’s testimony is consistent with Ms. Ragbir’s account of this incident. He testified that, as he was leaving the bar to go home, a female bartender was cleaning a table near the exit. She was asking Mr. Bruzzese and Mr. M. to leave, but they were refusing, stating that they still had lots of beer to finish. She conveyed to Mr. Karcz that she was scared to be left alone with them. He could not remember whether she spoke to him or conveyed her fear through a facial expression, but he got the clear impression that she was afraid, so he came back and said to Mr. Bruzzese and Mr. M., “ok guys, the bar is closed, can we just go out” (or words to that effect). He and Mr. Bruzzese then went outside and had a smoke and some conversation about cocaine. They re-entered the bar and he persuaded both Mr. Bruzzese and Mr. M. to leave.

[26] Video surveillance evidence from inside Crabby Joe’s corroborates both Ms. Ragbir’s and Mr. Karcz’s testimony regarding this incident. There is no audio recording, but the video shows Ms. Ragbir stacking chairs and cleaning tables near the exit, when Mr. Bruzzese confronts her, traps her between the tables and the back wall of the bar, widens his stance, squats and gestures something to her, and generally invades her personal space while speaking to her. Mr. Karcz is seen approaching the exit door, but he turns back toward Mr. Bruzzese, says something to him, places his hand on Mr. Bruzzese’s back and gently guides him toward the door. The two men exit the establishment. Mr. M. is, at that point, still seated at the bar. According to the time stamp on the video recording, this event occurred around 1:19 AM. The video evidence shows that Mr. Bruzzese and Mr. Karcz eventually re-entered the bar, then the three men left shortly thereafter.

[27] The Defence objected to this evidence on the basis that it constitutes irrelevant bad character evidence that has no probative value. For the reasons set out below, I have overruled that objection.

Analytical Framework

[28] Evidence of an accused person’s prior discreditable conduct is presumptively inadmissible because it has the potential to be misused as propensity evidence, but this general exclusionary rule is not absolute. Such evidence is properly admitted if it goes beyond showing a mere general disposition of the accused and is more probative than prejudicial in relation to a live issue at trial: R. v. Handy, 2002 SCC 56, at paras. 71, 94-97; R. v. Chizanga, 2024 ONCA 545, at paras. 19-23.

Probative Value of the Evidence

[29] The evidence of Mr. Bruzzese’s sexual harassment of Ms. Ragbir does not make it more likely that he stabbed Mr. M. in the Food Basics parking lot later that morning. There is no connection or “nexus” between the prior discreditable conduct and the alleged conduct that forms the basis of the charge against Mr. Bruzzese: Chizanga, at para. 26. The two incidents did not occur in close proximity in time (they were separated by about 90 minutes) and there are no distinctive features unifying the two events. The evidence of what happened inside the bar has no probative value with respect to the central issue of whether Mr. Bruzzese stabbed Mr. M.

[30] However, the evidence of Mr. Bruzzese’s conduct toward the bartender has some probative value with respect to another live issue at trial, namely whether Mr. Bruzzese made disparaging and threatening remarks about Mr. M. after leaving the bar, as alleged by Mr. Karcz. The two behaviours share similarities and common features. I disagree with Defence counsel’s submission that Mr. Bruzzese’s conduct inside the bar amounted to “awkward attempts at charm.” He sexually harassed the bartender and subjected her to menacing behaviour. In both that instance and during the walk to Mr. M.’s apartment, Mr. Bruzzese is accused of being verbally aggressive, demeaning, threatening and persistently belligerent toward a complete stranger, without provocation. Moreover, the two behaviours are alleged to have occurred one immediately after the other. There is therefore a nexus between Mr. Bruzzese’s harassment of Ms. Ragbir and his bullying behaviour toward Mr. M. on the walk to Mr. M.’s apartment.

[31] Mr. Bruzzese’s disrespectful and menacing treatment of Ms. Ragbir does not prove conclusively that he made derogatory and threatening comments to Mr. M. The Crown concedes that it is not even evidence from which a strong inference can be drawn that he made those comments. However, Mr. Bruzzese’s interaction with Ms. Ragbir demonstrates that he was in a combative and confrontational mood immediately prior to leaving the bar, which makes it slightly more likely that he made the comments attributed to him by Mr. Karcz during their ensuing walk toward Mr. M.’s apartment and while at Mr. M.’s residence. This is sufficient to establish that the evidence of his prior discreditable conduct has some probative value: Handy, at paras. 94-97; Chizanga, at para. 24. Whether or not he made the derogatory and threatening comments about Mr. M. is relevant to a material issue at trial, namely his state of mind at the time of the alleged offence.

[32] The evidence of Mr. Bruzzese’s conduct toward the bartender also has probative value in relation to the live issues of Mr. Karcz’s reliability and credibility. The trustworthiness of Mr. Karcz’s evidence is challenged on several fronts. Defence counsel questions the effects of alcohol consumption on his perception and memory. Defence counsel also suggests that Mr. Karcz displayed animus toward Mr. Bruzzese, painting Mr. Bruzzese in an overly negative light and portraying himself in an exaggerated positive light in recounting the three men’s interactions that morning.

[33] Ms. Ragbir’s testimony about Mr. Bruzzese’s conduct toward her corroborates Mr. Karcz’s account of their interaction and confirms Mr. Karcz’s role in diffusing the situation. Although the interaction in the bar was a minor incident, Mr. Karcz’s ability to remember details of the incident and the accuracy of his narrative regarding the incident are significant factors that enhance the overall trustworthiness of his evidence, despite his intoxication. Ms. Ragbir’s evidence about Mr. Bruzzese’s discreditable conduct therefore has substantial probative value with respect to the central issues of Mr. Karcz’s credibility and reliability.

[34] I have considered the strength of the evidence of prior discreditable conduct in assessing its probative value: Handy, at paras. 133-135; Chizanga, at para. 25. There are no frailties in Ms. Ragbir’s testimony about how Mr. Bruzzese treated her. She presented as an independent and objective witness. She gave her evidence in a straightforward manner. She demonstrated excellent recall of the day in question and was able to describe the individuals involved and the events that unfolded with significant detail, despite the passage of time. Her credibility was not challenged. The Defence chose not to cross-examine her. Finally, her testimony about this specific interaction with Mr. Bruzzese is corroborated by independent evidence from two different sources, namely Mr. Karcz and the video surveillance footage. There is no evidence of intentional or inadvertent collusion between Mr. Karcz and Ms. Ragbir. In summary, there are no identified weaknesses that would reduce the probative value of her evidence.

Prejudicial Effect of the Evidence

[35] Having determined that Ms. Ragbir’s testimony about Mr. Bruzzese’s discreditable conduct has sufficient probative value to potentially warrant its admission, I must assess its prejudicial effect. This assessment involves an analysis of the risk of two types of prejudice, namely, “moral prejudice” and “reasoning prejudice,” either of which can lead to an unfocussed trial or a wrongful conviction: Handy, at para. 139; Chizanga, at para. 27.

[36] “Moral prejudice” arises when the trier of fact infers guilt and convicts the accused not because the Crown has proven its case beyond a reasonable doubt but merely because the accused has committed bad acts in the past. The risk that such an impermissible inference will overwhelm the trier of fact’s reasoning is particularly acute where the evidence of prior discreditable conduct paints the accused as a person with a general disposition to commit crimes: Handy, at para. 85; Chizanga, at para. 28. Those circumstances are not present in this case.

[37] The risk of moral prejudice is also heightened where the evidence of prior discreditable conduct is inflammatory or repugnant, thereby potentially leading the trier of fact to convict the accused (consciously or unconsciously) simply to punish them for their prior conduct: Chizanga, at para. 28. That risk is low in the circumstances of this case. Mr. Bruzzese’s sexual harassment of the bartender reflects poorly on him, but it is not the kind of reprehensible behaviour that provokes moral outrage. Notably, it is not evidence of conduct that is more egregious than the stabbing allegation that forms the subject of the charge before the Court.

[38] “Reasoning prejudice” arises where the evidence of prior discreditable conduct distracts the trier of fact from the real issues in the case: Handy, at para. 100; Chizanga, at para. 29. This can occur where the evidence is disputed or unclear, thereby causing the trier of fact to focus improperly on the sufficiency of proof of the other discreditable conduct, rather than on whether the Crown has proven the specific allegations in the indictment beyond a reasonable doubt. Those circumstances do not apply in this case; the Defence did not challenge the accuracy of Ms. Ragbir’s account of the events in question.

Conclusion

[39] For the above reasons, the probative value of the evidence of Mr. Bruzzese’s harassment of Ms. Ragbir is limited but is sufficient to outweigh the minimal risk of prejudice that could be caused by its admission. The evidence is therefore admissible, but only for the restricted purposes described above. To be clear, I have not relied on the evidence of other discreditable conduct to draw any negative inferences about Mr. Bruzzese’s character or disposition. I am mindful that the evidence of his treatment of the bartender is not probative of the Crown’s allegation that he stabbed Mr. M.

Trustworthiness of Victim’s Evidence

[40] Before turning to the factual issues at trial, I want to comment on the credibility and reliability of Mr. M.’s evidence.

Mr. M.’s Credibility

[41] I am confident that Mr. M. was doing his best to be truthful throughout his testimony. He answered questions in a straightforward and frank manner. He volunteered sensitive and unflattering information about himself. His candour bolstered his credibility.

[42] As the Crown submitted, Mr. M. testified with “the opposite of guile”. Although demeanour has limited utility in assessing a witness’s credibility, it is noteworthy that there was no artifice or craft in Mr. M.’s testimonial presentation. He was objective and demonstrated no animus toward Mr. Bruzzese. Indeed, he exhibited no interest in having Mr. Bruzzese convicted. He readily acknowledged that he does not remember who stabbed him. He also admitted other gaps in his memory and did not attempt to fill them with speculation. He carefully delineated between memories that are clear and strong, and those that are vague and foggy.

[43] I conclude that Mr. M. is an honest witness who tried sincerely to assist the court in its fact-finding mission. I take no issue with his credibility.

Mr. M.’s Reliability

[44] I have considered whether the reliability of Mr. M.’s evidence is diminished by the pronounced gaps in his memory, his state of intoxication on the day in question, and the passage of time. Mr. M. has good recall of what transpired in the bars, but his memories of what happened later in his apartment are fragmented, and he remembers only “flashes” of what transpired in the Food Basics parking lot. This is not surprising given his increasing level of alcohol intoxication as the hours passed, and the trauma that he ultimately experienced. I am therefore mindful of the need to proceed cautiously in relying on his evidence.

[45] Mr. M. testified that, although his memories of the day are incomplete, “the things I do remember, I remember.” I believe him. For the reasons set out below, I find that his strong memories, while fragmented, are reliable.

[46] Much of Mr. M.’s testimony is corroborated by independent evidence. He described how he arrived at Shoeless Joe’s alone, ordered a beer, and sat down beside a man near the taps at the bar. He identified Mr. Bruzzese as that man and remembered that his first name was Anthony. He remembered that they left together and went to another bar, but he could not recall the name of the second bar. He remembered that they were both drinking alcohol at the bars; he wasn’t sure, but he thought they were drinking beer. He said they encountered a third man, but he could not recall whether they met him at Shoeless Joe’s or at the second bar.

[47] Mr. M. accurately described, in general terms, the appearance and clothing of the two men, who were previously unknown to him and with whom he has had no contact in the past six years (except to see Mr. Bruzzese during court appearances). He recalled that Mr. Bruzzese was shorter than him and that the third man was taller and had a more athletic build. He clearly remembered the contrast between the third man’s white clothing and Mr. Bruzzese’s dark clothing. He said Mr. Bruzzese’s t-shirt had “a band logo or something” printed on the front. He remembered that the other man had a Polish accent. He said he picked up on the accent right away because he has a Polish family background. He thought it was “kind of remarkable to meet a Polish person in a bar late at night.” All the above evidence is corroborated by video surveillance footage and by the independent testimony of other witnesses, including Mr. Karcz, who began his testimony with the aid of a Polish-English interpreter, but later requested and was granted permission to testify in English.

[48] Mr. M. could not remember what he and Mr. Bruzzese talked about in the bars, but he was able to recount some details of their interactions. For example, he remembered Mr. Bruzzese buying him a drink in exchange for him letting Mr. Bruzzese use his cell phone to contact someone. This is corroborated by Mr. Bruzzese’s stipulation, in an agreed statement of fact, that he used Mr. M.’s cellphone to order cocaine. Mr. M. remembered Mr. Bruzzese showing him a white-handled pocketknife under the wood top of the bar. This evidence is partially corroborated by Mr. Karcz’s testimony that Mr. Bruzzese showed off a similar knife while the three men were at Mr. M.’s apartment.

[49] Mr. M. has no memory of what transpired in his apartment, other than telling his two acquaintances to keep quiet, doing cocaine supplied by Mr. Bruzzese, and looking in the mirror while feeling a wave of sadness about the loss of his girlfriend and best friend. These fragments of his memory are corroborated by Mr. Karcz’s testimony that Mr. M. told them to be quiet, that Mr. M. consumed cocaine in the apartment, and that “something broke in his [Mr. M.’s] head” and he became despondent. Mr. M.’s testimony about cocaine consumption is also corroborated by photographic evidence of plastic packaging found inside his residence. The packaging is consistent with drug packaging, and it was discovered on a computer desk, where Mr. M. described the drugs being located.

[50] The corroborative evidence fortifies my confidence that, although Mr. M.’s memory is partially blacked out, his testimony about the things he does remember is reliable. There are no significant internal contradictions in his testimony. As will be discussed below, to the extent that he made prior statements that are inconsistent with his testimony, those inconsistencies are satisfactorily explained. Furthermore, as discussed below, any apparent inconsistencies between his testimony and other extrinsic evidence are reconcilable.

[51] For all these reasons, I am satisfied that Mr. M. is not only an honest witness, but also a reliable narrator.

Accused’s Opportunity to Commit the Alleged Offence

[52] Some of the issues at trial were more contentious than others. One of the less controversial issues is whether Mr. Bruzzese was present in the Food Basics parking lot with Mr. M. in the early morning hours of September 3, 2018. This fact was not seriously disputed by the Defence, but nor was it explicitly conceded, so I will explain why I believe that Mr. Bruzzese was present and therefore had an opportunity to commit the alleged stabbing.

[53] Mr. Karcz, Mr. M. and Ms. Ragbir all identified Mr. Bruzzese in court as the man who was seated beside Mr. M. at the bar in Crabby Joe’s in the early morning hours of September 3, 2018. I need not concern myself with the frailties of eye-witness identification evidence because the Defence stipulated that, in the video recordings marked as Exhibits at trial, Mr. Bruzzese is the man sitting directly beside Mr. M. at Shoeless Joe’s bar on September 2, 2018 and at Crabby Joe’s bar in the early morning hours of September 3, 2018.

[54] The Defence did not expressly concede that Mr. Bruzzese is one of two individuals later captured on outdoor surveillance video footage from various commercial establishments in the vicinity of the Food Basics plaza between 2:50 AM and 2:55 AM. Neither person’s facial features are visible on those videos. For the reasons that follow, I have concluded that the two people depicted on the outdoor videos are Mr. Bruzzese and Mr. Karcz.

[55] First, there is overwhelming evidence that places Mr. Bruzzese and Mr. Karcz in the vicinity of the surveillance cameras at the relevant time, which was approaching 3:00 AM:

(a) Mr. Karcz and Mr. M. both testified that the three men walked to Mr. M.’s apartment after leaving Crabby Joe’s and spent some time inside the residence. Neither of them was challenged on their evidence on this topic. Mr. Karcz was not seriously challenged on his evidence that he and Mr. Bruzzese subsequently left Mr. M.’s apartment together and walked back toward the Food Basics plaza. Defence counsel suggested that Mr. Bruzzese left the apartment first and Mr. Karcz caught up to him. Mr. Karcz denied that suggestion, but nothing turns on that issue.

(b) Mr. Bruzzese’s wallet was found on a sidewalk between Mr. M.’s residence and the Food Basics grocery store. It was discovered by Mr. Brugma not long after he noticed Mr. M. lying on the ground in the parking lot. The location of the wallet is circumstantial evidence from which it can reasonably be inferred that Mr. Bruzzese passed by that area on foot earlier that morning. This evidence corroborates Mr. Karcz’s account of Mr. Bruzzese’s movements after leaving Mr. M.’s apartment.

(c) The video surveillance evidence shows that businesses in the area were closed, and there were virtually no other people walking around.

[56] Second, Mr. Karcz identified himself and Mr. Bruzzese as the two men who are seen on the outdoor video surveillance recordings. I find his evidence on this point to be both credible and reliable for the following reasons:

(a) On video footage shot outside Firehouse Subs, the two individuals appear from their physique to be males. The man with the bicycle is wearing dark shorts and a white coloured t-shirt with a black rectangle printed across the chest. The other man is wearing long dark pants, a darker or black t-shirt, and a baseball cap. The man with the cap is significantly shorter and has a stockier build than the man with the bicycle. The physical appearance of the two people captured on the outdoor videos is consistent with the appearance and attire of Mr. Karcz and Mr. Bruzzese when they were inside Crabby Joe’s bar about 90 minutes earlier, as captured on the interior surveillance videos.

(b) It is undisputed that Mr. Karcz had a bicycle with him on the day in question. The individual wearing the white t-shirt and shorts is shown on all the outdoor video recordings either walking or riding a bicycle.

(c) While I would expect it to be very difficult for Mr. Karcz to identify Mr. Bruzzese, a person with whom he is not well-acquainted, from the video footage in this case, I expect that Mr. Karcz can more easily recognize himself in the videos. His identification of Mr. Bruzzese as the other person in the videos is not based on his purported ability to discern Mr. Bruzzese’s features and recognize him. Rather, his identification is based in large part on his recollection of the events of that day. In other words, he recognizes himself in the video and remembers that Mr. Bruzzese was walking and speaking with him during the moments that are captured on video.

(d) Finally, Mr. Karcz was not challenged on his identification of himself and Mr. Bruzzese as the two individuals shown in the outdoor videos. Defence counsel did not suggest that Mr. Karcz was mistaken in his self-identification or that a different person was with him on the videos. His evidence is therefore uncontested and uncontradicted.

[57] One of the outdoor videos is recorded from the vantage point of a Scotia Bank drive-through ATM located across from the Food Basics store. At 2:51 AM, the video shows two men walk across the front of the store’s entrance, just to the right of where Mr. M. was later discovered lying on the ground. One of the men is wearing a white shirt and walking a bicycle. The other man is shorter and is dressed in black. The two men walk off screen in the direction of Firehouse Subs.

[58] The totality of the outdoor surveillance videos and Mr. Karcz’s testimony provide overwhelming proof, beyond a reasonable doubt, that Mr. Bruzzese and Mr. Karcz were both leaving the parking lot where Mr. M. was found, 40 minutes later, lying on the ground in a pool of blood. From this evidence, I infer that Mr. Bruzzese had an opportunity to commit the alleged stabbing.

Assessment of Eye-Witness Testimony

Summary of Mr. Karcz’s Evidence

[59] The Crown case rests largely on Mr. Karcz’s account of what happened at the Food Basics plaza. The following is a summary of his eye-witness testimony.

[60] When he and Mr. Bruzzese heard Mr. M. running from behind and calling out to them, Mr. Bruzzese said, “Get him back or I am going to kill him.” Mr. Karcz then put his bike on its stand and walked back toward Mr. M. He warned Mr. M., “You got to go back because this guy is going to kill you.” Mr. M. did not want to leave and was saying, “I want to be your friend.” Mr. Karcz approached him, yelling and pointing for Mr. M. to go home. Mr. M. was not listening. He was resisting and he pushed Mr. Karcz away.

[61] Mr. Bruzzese approached them, handed Mr. Karcz his knife and said, “Just stab him. It’s very easy. Nobody will know about it.” Mr. M. then knelt down with his hands cupped in a pleading gesture and said, “guys, I want to be your friend.” Mr. Karcz was holding the knife in his hand. Mr. Bruzzese was trying to convince him to stab Mr. M., saying, “It’s very easy, just slide the knife.” Mr. Karcz said, “No, I’m not going to do that” and walked away. He headed toward his bike. Mr. Bruzzese followed him saying, “Give me that fucking knife.”

[62] Mr. Karcz stopped and folded his arms with the knife in his right hand under his left arm. The knife was closed the entire time. He never opened the blade. Mr. Bruzzese confronted him and yelled at him to give up the knife. Mr. Bruzzese grabbed the knife from his hand and headed back toward Mr. M.

[63] Mr. Bruzzese did not run toward Mr. M., but rather walked at a normal pace. By then, Mr. M. was standing up on his feet. Mr. Karcz turned away and resumed walking toward his bike. He then turned to look back and he saw Mr. Bruzzese make two thrusting motions toward Mr. M.’s stomach with a closed fist. After the first motion, Mr. M. took a short step back and buckled at the knees. Mr. M. said something like, “don’t play with me,” or “are you playing with me?” His voice sounded strange, kind of surprised, shaky, and afraid, as though something was wrong. Mr. M. was already falling down when Mr. Bruzzese made the second thrusting motion. Mr. M. then fell to the ground and was silent.

[64] Mr. Karcz estimated that he was standing about 20 metres away. He could not believe what he had seen. He turned back to his bike, raised both palms to his temples and said to himself, “This is not happening.” He had not seen the blade of the knife in Mr. Bruzzese’s hand. He saw only a fist, so he was hoping that Mr. Bruzzese did not open the knife. He did not want to believe that he had just witnessed a stabbing.

[65] Mr. Karcz’s back was to Mr. Bruzzese and Mr. M. He heard Mr. Bruzzese tell him not to look, but he turned around and had another quick look. He did not see anyone other than Mr. Bruzzese approaching him. He did not see Mr. M. lying on the ground, so he thought that maybe Mr. M. had escaped and run away. It was dark outside and there was a curb with grass in the parking lot that may have obstructed his view of Mr. M.

[66] Mr. Karcz took his bicycle off its stand and started walking away with it. Mr. Bruzzese followed and caught up to him. Mr. Karcz asked Mr. Bruzzese, “Did you do it?” and Mr. Bruzzese responded, “yes, twice.” Mr. Karcz was still hoping that Mr. Bruzzese had just put on a show and didn’t really stab Mr. M.

[67] Mr. Karcz did not see the knife in Mr. Bruzzese’s hand when Mr. Bruzzese caught up to him. He did not see what Mr. Bruzzese had done with the knife. He did not look back again and did not ever see the knife again.

[68] The two men walked together for a few minutes, then went in different directions. Mr. Bruzzese told him that they might never see each other again, that nobody can know about what happened, and that he (Mr. Karcz) must not tell anyone what happened. Mr. Karcz interpreted these comments as a threat. He shook hands with Mr. Bruzzese as they parted. Mr. Bruzzese said, “Welcome to Canada.”

Reliability of Mr. Karcz’s Evidence

[69] The events of the morning in question occurred six years prior to the trial. The passage of that much time can adversely impact a witness’s ability to recall facts with precision, but Mr. Karcz testified that it would be hard for him to forget what happened that day because of “all the aftermath going on since then.” He explained that he has been embroiled in legal proceedings for the past six years. He gave a statement to the police about the alleged stabbing on September 6, 2018. He testified at the preliminary inquiry on July 7, 2020, then again before a judge and jury at a trial in October 2021. Finally, he testified before me in September 2024, in a second trial that was ordered by the Court of Appeal.

[70] The events in question are obviously memorable for several reasons. I accept that the experience of retelling the events repeatedly in court proceedings could help to solidify and reinforce Mr. Karcz’s memories, despite the passage of time.

[71] The consumption of mind-altering substances can negatively impact the reliability of a witness’s evidence. It is a notorious fact of which I can take judicial notice that, depending on several factors, different people react differently to the ingestion of drugs and alcohol, but both perception and memory can be adversely affected.

[72] Mr. Karcz consumed a significant amount of alcohol in the hours leading up to the alleged stabbing. Video surveillance shows that he arrived at Crabby Joe’s around 12:21 AM. He testified that he had not consumed any alcohol earlier that day. He remembered this because he spent the day with his then girlfriend, who did not want him to drink. He said he ordered and ate some flatbread at the bar. He thinks he drank two pints of beer and about four shots of something stronger, likely Jack Daniels. He cannot be certain because he was not counting his drinks. Video surveillance shows, and he confirmed, that he took a swig of Mr. Bruzzese’s unfinished pitcher of beer just before leaving the bar at 1:31 AM.

[73] Despite his considerable alcohol consumption, Mr. Karcz testified that he was not drunk when he left Crabby Joe’s. Ms. Ragbir said she continued to serve him because he did not appear intoxicated to her. His movements as shown on the video surveillance footage from inside the bar do not suggest that he was overly impaired.

[74] Mr. Karcz does not recall drinking additional alcohol at Mr. M.’s apartment, but he testified that he did a line of coke there. As will be discussed later in this Judgment, I have concluded that it is unlikely the substance he ingested was in fact cocaine, but it may have been another narcotic or synthetic drug.

[75] I have assessed the accuracy of all the above evidence and have concluded that Mr. Karcz’s reliability is not diminished by either the passage of time or the consumption of drugs and alcohol. I arrive at this conclusion because many details in his testimony are corroborated by independent evidence.

[76] For example, Mr. Karcz remembered that he rode his bicycle to Crabby Joe’s on the morning of September 2, 2018. He recalled where he sat inside the bar and where Mr. Bruzzese and Mr. M. were sitting in relation to him. He remembered their first names, and that Mr. Bruzzese was Italian. He described, in general terms, what Mr. Bruzzese was wearing, including his baseball cap. He remembered that he ordered flatbread to eat and was texting and scrolling on social media on his cell phone while sitting at the bar. He described the interaction between Mr. Bruzzese and Ms. Ragbir as she was closing up the bar, and his interjection in that situation (as discussed above). His evidence on all these topics was corroborated by video surveillance footage and by elements of the testimonies of Mr. M. and Ms. Ragbir.

[77] Mr. Karcz testified that, when he stepped outside with Mr. Bruzzese for a smoke, Mr. Bruzzese was waiting for someone to bring something to him. He recalled that Mr. Bruzzese asked him if he liked coke. He had the impression that Mr. Bruzzese was trying to buy cocaine. His evidence on this issue is consistent with Ms. Ragbir’s unchallenged testimony that she stopped serving Mr. Bruzzese and asked him to leave the premises because he told her that he was on the phone with his drug dealer trying to purchase drugs. It is also consistent with Mr. M.’s recollection that Mr. Bruzzese borrowed his phone to message someone, and with Mr. Bruzzese’s own admission (in an agreed statement of facts) that he accessed his Facebook Messenger account on Mr. M.’s cell phone to order cocaine for the parties to consume later.

[78] Mr. Karcz remembered details about Mr. M.’s apartment that are corroborated by photographs taken during a subsequent police search of the residence. Elements of his account of what transpired inside the apartment are also corroborated by photographic evidence and by Mr. M.’s independent testimony.

[79] For example, Mr. Karcz recalled that, when the three men arrived at Mr. M.’s basement apartment, Mr. M. immediately asked them to be quiet because there was a family with small children living upstairs. Mr. M. similarly testified that he remembered telling Mr. Bruzzese and Mr. Karcz, when they arrived at his apartment, that they had to be quiet because the family upstairs had little kids. Mr. M. recalled that it was Labour Day weekend, and the children were starting school the next day.

[80] I should note that there is no evidence of intentional collusion or inadvertent tainting of these two witnesses’ testimonies. Mr. Karcz and Mr. M. had never met before the morning in question and did not ever meet again or communicate with each other afterward, including during the court proceedings. Witness exclusion orders prevented them from hearing each other’s testimony and there is no suggestion that they learned of each other’s evidence through different means, including media reports.

[81] Mr. M. does not remember the show of knives in his apartment, but Mr. Karcz’s evidence on that topic is corroborated by a photograph of a dagger found in Mr. M.’s bedroom. The dagger is sheathed and matches the description of the “Samurai sword” that Mr. Karcz said he saw Mr. M. show Mr. Bruzzese in response to Mr. Bruzzese’s display of a knife. Mr. M. confirmed that the dagger belongs to him. Further corroborating evidence was found when police searched Mr. Bruzzese’s apartment on September 7, 2018, and photographed a collection of two dozen pocketknives. This circumstantial evidence makes it more likely that Mr. Bruzzese displayed a knife in Mr. M.’s apartment, as described by Mr. Karcz.

[82] There are notable similarities between Mr. Karcz’s testimony about the knife that Mr. Bruzzese displayed in Mr. M.’s apartment and the knife that Mr. M. said Mr. Bruzzese showed him in the bar. Mr. M. remembered that it had a white or pearl coloured handle. He did not see the blade, which was concealed within the handle. He thought it was a switchblade because it had some sort of button mechanism. He estimated that the knife might be 5 or 6 inches long when closed, and maybe 8 inches long if the blade was opened. Mr. Karcz described the knife as having a “spring opening” and an ivory or bone coloured handle. He estimated that it was about 4 inches long when closed, twice as long when opened.

[83] All the above evidence is corroborative of Mr. Karcz’s testimony that Mr. Bruzzese was carrying a small pocketknife with a quick-open mechanism on the morning of September 3, 2018. This fact establishes that Mr. Bruzzese had not only an opportunity but also the means to stab Mr. M. in the parking lot of Food Basics.

[84] Mr. Karcz’s account of Mr. M.’s expressed suicidal ideation while in the apartment is also corroborated by independent evidence. Mr. M. does not remember holding a kitchen knife to his chest or threatening to kill himself, but he did testify about how despondent he was feeling that day. He remembered looking at himself in the mirror in his apartment, as he had done earlier in the washrooms at his parents’ house and at the bars. He said he cried and reflected on how sad he was. He testified, “the experience of losing my girlfriend and my best friend at the same time was overwhelming, as well as I have bipolar disorder and am generally a pretty anxious person, so it was all coming to a head, I guess.” This evidence is consistent with Mr. Karcz’s remark that “something broke in his [Mr. M.’s] head” just before he threatened to kill himself.

[85] Mr. Karcz testified that he believes Mr. M. cut his hand when he took the kitchen knife away from Mr. M., because there was a spot of blood on his t-shirt. Forensic DNA evidence confirmed that the blood belonged to Mr. M. Mr. Karcz surmised that the blood transferred from Mr. M.’s hand to his t-shirt when Mr. M. pushed him away in the Food Basics parking lot. This theory is consistent with the location of the blood stain on the edge of Mr. Karcz’s right sleeve, and it is also supported by other independent evidence. Specifically, a small amount of Mr. M.’s blood was found on the frame of the patio door in his apartment, which suggests that he was bleeding before he left the apartment. Furthermore, when Mr. M.’s injuries were photographed by police at the hospital in the afternoon of September 3, 2023, he had a small laceration on the inside of his left thumb.

[86] Furthermore, when the police searched Mr. M.’s apartment, they photographed a large knife on a shelf, with the blade hidden between some books and the handle sticking out. Mr. M. identified the knife as one of his kitchen knives. He could not explain how it got there. Mr. Karcz’s account of how he disarmed Mr. M. and stored the knife between books on a shelf matches the unusual placement of the knife found by the police. Moreover, Mr. Karcz’s description of the knife matches the knife in the photograph, including the black colour and red stripe on the handle.

[87] From all the above evidence, I conclude that Mr. Karcz has a reliable and detailed recollection of the events of the day in question. This is not to suggest that I accept his evidence wholesale, but I am not concerned about his perception being skewed by the effects of drugs and alcohol, or his memory being eroded either by those effects or by the passage of time.

Credibility of Mr. Karcz’s Evidence

[88] Reliability and credibility are two different concepts. A witness with a reliable memory can be dishonest and therefore not credible, just as an honest witness can be mistaken and therefore not reliable. The Defence argues that deficiencies in Mr. Karcz’s credibility give rise to reasonable doubt about the truth of his account of what transpired in the Food Basics parking lot.

Evidence of Cocaine Consumption and Motive

[89] One of the contested elements of Mr. Karcz’s testimony is his account of how Mr. Bruzzese became enraged because Mr. M. consumed all his cocaine, instead of just doing the one line of coke that was prepared for him. The Defence argues that Mr. Karcz fabricated that story to create a false impression that Mr. Bruzzese had a motive to stab Mr. M. The Defence submits that the court should reject Mr. Karcz’s evidence on this topic and should treat it as proof that he cannot be trusted generally.

[90] The Defence made three points to advance this argument: (1) the credibility of Mr. Karcz’s statement that he consumed cocaine in Mr. M.’s apartment is doubtful because he made a prior inconsistent statement to the police on the subject; (2) Mr. M.’s evidence about consuming cocaine should not be treated as corroborative of Mr. Karcz’s evidence because Mr. M. made a prior inconsistent statement on the topic at the first trial; and (3) a toxicology screen performed on Mr. M.’s urine at the hospital was negative for cocaine, so he could not have consumed any coke, let alone the bulk of Mr. Bruzzese’s coke, as alleged by Mr. Karcz. I will address each of these points in turn.

[91] First, Mr. Karcz initially told the police he did not consume any cocaine on the day in question. The Defence argues that this statement contradicts the narrative he gave at trial about how he and Mr. Bruzzese each did a line of coke before Mr. M. consumed the remainder. The Defence argues that his testimony at trial should be rejected. Alternatively, if the court finds that Mr. Karcz did do a line of coke at Mr. M.’s apartment, then the Defence submits that Mr. Karcz lied to the police, which undermines his trustworthiness generally.

[92] At the time of his police interview, Mr. Karcz was on probation and was under a court-ordered condition not to consume any drugs. The officer was aware of that fact and mentioned it at the point at which Mr. Karcz reported that Mr. Bruzzese asked him if he liked cocaine. This prompted Mr. Karcz to tell the officer that he was only drinking alcohol while on probation (implying that he was not doing any drugs) because he did not want to get in any trouble. The officer then reassured him that, if he disclosed that he used cocaine on the day in question, the police would not notify his probation officer and would not charge him, because that was not what they were investigating. Later in the interview, after receiving that reassurance, Mr. Karcz admitted to doing a line of coke at Mr. M.’s apartment.

[93] Mr. Karcz’s initial lie to the police about his own drug consumption is troubling. It constitutes a blemish on his credibility, but it was not motivated by an intent to mislead the police in their investigation. The lie is explained by his initial concern that, if he admitted to doing coke, he could be arrested for a breach of his probation. In the circumstances, the inconsistency in his statements about his own drug use does not cause me to question the veracity of his testimony about the three men doing cocaine in Mr. M.’s apartment. There is an abundance of circumstantial evidence that corroborates his testimony on that topic, including Mr. Bruzzese’s own admission that, while at the bar, he contacted someone to purchase cocaine for the men to consume later. Mr. Karcz’s testimony about the three men’s cocaine use is also corroborated by the presence of plastic packaging on a desk in Mr. M.’s bedroom, which is where both Mr. Karcz and Mr. M. said the lines of coke were prepared.

[94] The Defence submits that Mr. M.’s testimony about using cocaine that morning should be rejected because he gave a prior inconsistent statement while testifying at Mr. Bruzzese’s first trial. To be fair to Mr. M., he did not directly contradict himself on the issue of whether he consumed cocaine on the day in question. At the first trial, he said he did not remember doing cocaine, which is not the same thing as denying that he did cocaine. Still, his testimony at the first trial is inconsistent with his statement during the trial before me to the effect that he distinctly remembers doing cocaine.

[95] Mr. M. testified that he ingested the cocaine to escape his life because of the emotional pain he was experiencing. He said he remembered the sensation it gave him, and that he recognized the sensation from previously doing cocaine. He readily acknowledged that, at the first trial, he said he had no memory of doing cocaine. He explained that his memories had all been “confused together in a sort of whirlwind of emotion and alcohol” and that it wasn’t until a few weeks ago, while writing an email to his ex-girlfriend, that he “got flashes of new memories” from that night in 2018. He said that taking his mind back to the sadness around their breakup enabled him to remember doing cocaine to mask his pain.

[96] I find this explanation to be reasonable and believable. Common sense dictates that memories often fade with the passage of time, but logic and human experience also dictate that time can sometimes bring clarity to a memory of a stressful or traumatic event, with the benefit of emotional distance and calm reflection. A memory that is “recovered” after some time will naturally give rise to questions about its reliability, but in this case, Mr. M.’s testimony about ingesting cocaine is not tainted by collusion and is corroborated by significant independent evidence. The corroborating evidence includes: Ms. Ragbir’s unchallenged testimony that Mr. Bruzzese was trying to buy drugs while at Crabby Joe’s; Mr. Bruzzese’s admission that, while at the bar, he ordered coke for the men to consume later; Mr. Karcz’s testimony that Mr. Bruzzese asked him if he liked coke while having a smoke outside the bar; and Mr. Karcz’s testimony that, at Mr. M.’s apartment, all three men consumed cocaine.

[97] Furthermore, the reliability of Mr. M.’s recently recovered memory of doing cocaine is reinforced by the detail he provided regarding the small computer desk on which the cocaine was prepared. That detail is corroborated by the plastic packaging located on the computer desk in his apartment, and by Mr. Karcz’s testimony that Mr. Bruzzese prepared the lines of coke on a desk in Mr. M.’s bedroom.

[98] In short, Mr. M.’s and Mr. Karcz’s independent evidence about the cocaine consumption is mutually corroborative. However, as the Defence points out, their testimony is contradicted by the fact that Mr. M.’s urine tested negative for cocaine when a toxicology screen was performed at the hospital on September 3, 2018. This is an agreed fact, which I must and do accept.

[99] Given the extrinsic circumstantial evidence that corroborates Mr. Karcz’s and Mr. M.’s testimony about the cocaine consumption in the apartment, I do not believe that either of them lied about this topic or misremembered and confused the facts. Rather, it is highly likely that they ingested a powder that they reasonably believed to be cocaine, since Mr. Bruzzese had earlier purchased what he thought was cocaine and had offered it to them.

[100] Mr. Karcz was asked how he knows that the drug supplied to him by Mr. Bruzzese was actually cocaine. He responded, “That’s a good question. I believe it was, but I cannot be 100% sure.” He stated that he usually does not do drugs, so he would not necessarily be able to tell if the powder he snorted was coke or a different substance.

[101] Mr. M., in contrast, was certain that what he ingested was cocaine because he recognized the sensation it gave him, but he could be mistaken. I do not question his honesty or the vividness of his memory, but his deduction that the substance was cocaine overlooks the possibility that a similar high could be produced by the ingestion of other drugs. The source of the substance he ingested is unknown, apart from the fact that Mr. Bruzzese apparently purchased it from someone else believing it to be cocaine. Mr. Bruzzese could have been duped by a drug dealer. The substance may have been a different drug. In short, the fact that Mr. M. did not have cocaine in his system does not disprove the truth of his and Mr. Karcz’s testimony about consuming what they sincerely believe to be coke that day.

[102] For all the above reasons, I trust Mr. Karcz’s evidence about what transpired in the apartment after Mr. Bruzzese laid out three lines of a powdered substance on Mr. M.’s computer desk. The fact that the packaging later found on the desk by police was empty corroborates Mr. Karcz’s evidence that the entire quantity produced by Mr. Bruzzese was consumed.

[103] There is no corroboration of Mr. Karcz’s specific testimony that Mr. M. consumed more than his share of the cocaine, or that his over-consumption angered Mr. Bruzzese. I accept that uncorroborated evidence because I find Mr. Karcz to be, overall, a trustworthy witness. I am not suggesting that the Crown has proven that Mr. Bruzzese had a motive to stab Mr. M., but I believe Mr. Karcz’s account of what happened with the substance that he believed to be cocaine. I have no reason to suspect that he concocted the story to incriminate Mr. Bruzzese.

Alleged Bias Toward Mr. Bruzzese

[104] The Defence submits that Mr. Karcz demonstrated bias against Mr. Bruzzese by testifying that he “was behaving all night like he just came out of jail,” and making other similar statements. Taken in context, I do not interpret Mr. Karcz’s descriptions of Mr. Bruzzese’s conduct as evidence of bias or animus.

[105] Mr. Karcz testified before me in English, which is not his native tongue. He tried to express with limited vocabulary the bravado exhibited by Mr. Bruzzese, so he said it reminded him of guys he knew in Poland who had served time in jail and were not afraid of anyone. He conveyed Mr. Bruzzese’s psychological manipulation of Mr. M. by saying it reminded him of how former inmates in Poland would try to play with people’s emotions and exercise power over others by saying things like, “go hang yourself” and “you have no reason to live.” Similarly, he conveyed how persistently Mr. Bruzzese tried to goad him into stabbing Mr. M. by testifying that Mr. Bruzzese was in his face, trying “with prison language” to force him to do it, saying how easy it would be to kill him.

[106] Mr. Karcz’s comparisons of Mr. Bruzzese’s words and conduct to those of ex-inmates in Poland were not indicia of bias against Mr. Bruzzese. He simply employed an analogy to express himself effectively in a second language.

Inconsistencies in Mr. Karcz’s Statements

[107] The Defence submits that the credibility of Mr. Karcz’s testimony is marred by prior inconsistent statements about the events in question. Material inconsistencies in a witness’s statements can undermine their credibility and reliability, but most of the inconsistencies in Mr. Karcz’s evidence are minor and inconsequential.

[108] For example, during his police interview, Mr. Karcz told the officer he drank two beer and two shots at Crabby Joe’s, whereas in court he said he probably drank two beer and four shots. On both occasions, he expressly stated that he was uncertain about how much alcohol he had consumed. Although his alcohol consumption is circumstantial evidence of his intoxication, which is a relevant factor in assessing his reliability and credibility as a witness, the precise number of drinks he consumed is a mundane fact that I would not reasonably expect him to remember. The number of drinks he consumed is a peripheral issue that does not go to the core of the allegations to be adjudicated in this trial.

[109] The Defence argues that there are material inconsistencies in Mr. Karcz’s statements about the threats allegedly uttered by Mr. Bruzzese and directed at Mr. M. during the walk to Mr. M.’s apartment. The Defence submits that Mr. Karcz’s evidence on this issue has become markedly more incriminating over time, revealing that Mr. Karcz has developed a bias against Mr. Bruzzese. The Defence argues that there is more than a minor variation in Mr. Karcz’s statements, and that the inconsistencies reflect a “seismic shift” in his narrative, an indicator that he is lying, or is at least embellishing his evidence.

[110] I will review the various statements made by Mr. Karcz on this topic before comparing and analyzing them:

(a) While giving his evidence-in-chief before me, Mr. Karcz stated that, on the walk to Mr. M.’s apartment, Mr. Bruzzese’s “comments was like, look, he look like a piece of shit, look how weak he is, how easy it would be to kill him, and like, he’s not worth it to, to like, he’s not worth to be alive, or something like that, putting him down very much.” Mr. Karcz testified that Mr. Bruzzese later made similar comments about Mr. M. while they were together in Mr. M.’s apartment.

(b) In the police interview, Mr. Karcz told the officer that, while they were walking to Mr. M.’s apartment, Mr. Bruzzese was saying, “look how drunk he is, he’s falling over” and was calling Mr. M. “useless and that kind of stuff.” The officer asked Mr. Karcz whether Mr. Bruzzese said anything about wanting to hurt Mr. M. while they were walking to Mr. M.’s house. Mr. Mr. Karcz responded, “No, he wasn’t saying anything about hurting him,” but later at the apartment, Mr. Bruzzese was saying, “look at him, look how easy it would be to kill him, here in the house, no one would know about it.” An interpreter was present throughout the police interview, but it appears from the transcript that Mr. Karcz spoke the above words in English.

(c) At the preliminary inquiry, Mr. Karcz testified in Polish with the benefit of an interpreter. When asked to relay the conversation during the walk to Mr. M.’s apartment, Mr. Karcz stated (as translated): “Anthony was speaking in that sort of vein, look at, look at this guy and how severely drunk he is, how heavy drunk he is an angler , and he, you know, he wasted his life, those sorts of things.” The Crown asked for a clarification of the word “ angler ” and Mr. Karcz then spoke in English, stating that the English word used by Mr. Bruzzese was “loser”. With the court’s permission, Mr. Karcz then testified in English: “So he [Mr. Bruzzese] said, look at the loser, he’s a loser, he’s a loser and he didn’t should live, something like that.” The interpreter interjected and said, “So I think he [Mr. Karcz] might want to say that he [Mr. Bruzzese] said that he [Mr. M.] is not worth to live.”

(d) There is no transcript of Mr. Karcz’s evidence from Mr. Bruzzese’s first trial. However, during his cross-examination before me, Mr. Karcz agreed with Defence counsel’s suggestion that, at the first trial, he testified that Mr. Bruzzese said something about killing Mr. M. during the walk to Mr. M.’s apartment.

[111] Evidently, there are inconsistencies in Mr. Karcz’s statements about the words spoken by Mr. Bruzzese during the walk to Mr. M.’s apartment. I agree with Defence counsel that the threatening character of the words attributed to Mr. Bruzzese intensified over time. In summary, Mr. Karcz told the police that Mr. Bruzzese did not say anything about wanting to hurt Mr. M. while they were walking to the apartment. He told the judge at the preliminary inquiry that Mr. Bruzzese said words to the effect that Mr. M. is not worthy of life. During the two trials, he testified that Mr. Bruzzese said it would be easy to kill Mr. M.

[112] It is notable, however, that the overall tenor of Mr. Karcz’s testimony did not become more incriminating of Mr. Bruzzese over time. From the very outset, during his police interview, he told the officer that Mr. Bruzzese said it would be easy to kill Mr. M. He told the officer that menacing remark was made while they were inside Mr. M.’s apartment. Consequently, the real inconsistency in Mr. Karcz’s statement is not with respect to the words attributed to Mr. Bruzzese, but rather with respect to the timing of when those words were spoken.

[113] Mr. Karcz’s prior statements were put to him during his cross-examination. He maintained that, to the best of his current recollection, the words “easy to kill” or words to that effect were spoken by Mr. Bruzzese on the walk to Mr. M.’s apartment. But he acknowledged that he could be wrong. He said, “Maybe it’s my mistake and he didn’t say any of those words on the way to the house but for sure in the house he said, ‘look we could kill him’.”

[114] I do not agree that there has been a seismic shift in Mr. Karcz’s narrative. The inconsistencies in his evidence on this issue are not significant and do not reveal bias or suggest embellishment. At most, they reflect some confusion about the sequence of events, likely due to the passage of time, but they do not detract from the overall trustworthiness of Mr. Karcz’s testimony.

[115] Finally, The Defence argues that Mr. Karcz told his girlfriend at the time that he was not present when the stabbing occurred, which directly contradicts his testimony at trial, and casts doubt on the veracity of his entire narrative. Defence counsel further argues that Mr. Karcz’s lie to his girlfriend amounts to a false alibi, which provides a basis to draw an inference of consciousness of guilt, and points to Mr. Karcz as the potential stabber. Defence counsel concedes that there is not sufficient evidence to prove that Mr. Karcz committed the stabbing but argues that Mr. Karcz’s fabrication of a false alibi is sufficient to raise reasonable doubt about whether he was the stabber.

[116] During cross-examination, Defence counsel reminded Mr. Karcz about the messages he exchanged with his then girlfriend in the days following September 3, 2018. Mr. Karcz remembered and confirmed that his former girlfriend accused him of “stabbing that boy”. He said he replied to her text and denied the accusation. Defence counsel suggested that, in his reply text to his girlfriend, Mr. Karcz wrote that he was not present when it happened, and that he could only guess what happened five minutes after he left. Mr. Karcz denied saying anything like that. He speculated that the English translation of his Polish text message might be incorrect.

[117] The text message in question was not adduced as evidence at trial, and Mr. Karcz did not adopt the suggested content put to him in cross-examination, so the content of the message has not been established. There is therefore no evidence that Mr. Karcz gave his girlfriend a false alibi in order to distance himself from the stabbing.

Evidence of Mr. Karcz’s Dishonesty and Purported Bad Character

[118] Mr. Karcz did, however, admit during his cross-examination that he was not honest with his former girlfriend about his activities on the day in question. He said he lied to her because she was “not right in the head” and she disapproved of his drinking alcohol.

[119] Even if Mr. Karcz conveyed to his then girlfriend that he was not present during the stabbing (a fact that has not been established on the record before me), that would not raise doubt in my mind about whether he was there. The Scotia Bank video surveillance evidence proves that he was with Mr. Bruzzese in front of the Food Basics grocery store at 2:51 AM. I accept Mr. Karcz’s testimony that he witnessed the two thrusting motions by Mr. Bruzzese just moments earlier because, as will be explained in greater detail below, there is independent evidence corroborating his account of what happened in the parking lot.

[120] Whatever Mr. Karcz told his girlfriend was admittedly untrue, but I do not infer from that fact that he invented a false alibi to deflect attention from his own wrongdoing. After learning from the media that investigators were looking for him as a potential witness to the stabbing, he went to the police station on his own initiative. He did not proffer an alibi to the police.

[121] I note that Mr. Karcz also did not, in the days following the incident, take steps to dispose of the t-shirt he was wearing that morning, despite a conspicuous blood stain on the sleeve. Knowing that the police were looking for him in the context of their investigation of a stabbing, he did nothing to conceal or destroy that evidence. He did not engage in conduct suggestive of consciousness of guilt.

[122] Many people lie to their romantic partners for all kinds of reasons. It does not mean they cannot be trusted to tell the truth during a police investigation or while testifying under oath. During Mr. Karcz’s cross-examination, Defence counsel tried to get him to admit that he previously lied under oath by pleading guilty to a charge of taking a motor vehicle without the owner’s consent even though he did not, in fact, commit that offence. Defence counsel suggested that he did so because he wanted to help his boss make an insurance claim after he drove and crashed his boss’s car while impaired.

[123] Mr. Karcz steadfastly denied the suggestion that he was innocent of the offence to which he plead guilty. He testified that his boss was out of town in the United States, and he used his boss’s car without permission to drive himself home. Defence counsel put to him that he admitted the false guilty plea while testifying before a jury at Mr. Bruzzese’s first trial. Mr. Karcz did not agree that he made such an admission. Rather, he stated that Mr. Bruzzese’s previous defence counsel “twisted everything” and made it “look like” he pleaded guilty to an offence he did not commit.

[124] The evidence does not establish that Mr. Karcz has a history of perjury. He does have a criminal record, including two impaired driving offences, in addition to the conviction for taking a motor vehicle without consent. His offences do not include crimes of dishonesty or crimes that suggest disrespect for the administration of justice. He is not a career criminal. His alcohol-related driving offence convictions, and the fact that he was dishonest with his former girlfriend, do not make him a person of demonstrable moral lack. He is not a person of such disrepute that extra caution must be exercised before accepting his evidence without independent corroboration: R. v. Vetrovec, [1982] 1 SCR 811.

Omissions from Mr. Karcz’s Prior Statements

[125] The Defence argues that there are indicia of embellishment in Mr. Karcz’s testimony at trial, discernable from omissions in his prior statements. During cross-examination, Defence counsel put to Mr. Karcz that some of the comments he attributed to Mr. Bruzzese during his examination-in-chief were not mentioned by him during his police interview, or on the two prior occasions when he testified in this proceeding. Specifically, Defence counsel suggested that Mr. Karcz had never previously asserted that: (i) Mr. Bruzzese said, “that was brave” after he took the kitchen knife away from Mr. M., (ii) Mr. Bruzzese told him, “don’t look back” after the alleged stabbing, or (iii) that Mr. Bruzzese said, “welcome to Canada” as they were parting.

[126] Mr. Karcz neither confirmed not denied these suggestions. He said he could not remember everything that was included or omitted from his police statement and his prior testimony. He noted that he previously gave his statements in Polish, with an interpreter, so something may have been lost in translation. He also said it’s possible that he now remembers more details than before because, with time, he has become much calmer and less emotional about the whole situation.

[127] The purported omissions from Mr. Karcz’s prior statements have not been established, so I cannot rely on them as inconsistencies in assessing his credibility. But even if they were established, they would amount to oversight of minor details that would not detract from the overall trustworthiness of his evidence. A person who recounts their recollection of the same event four times over six years cannot reasonably be expected to do so without any variation in the details, particularly on peripheral issues.

[128] There is one significant omission from Mr. Karcz’s police statement that is on a material issue, namely Mr. Bruzzese’s alleged confession to him. During his testimony before me, Mr. Karcz relayed that, after he witnessed the two thrusting motions by Mr. Bruzzese and Mr. M. fell to the ground, he asked Mr. Bruzzese “did you do it?” and Mr. Bruzzese responded, “yes, twice.” According to Mr. Karcz, Mr. Bruzzese had earlier threatened to kill Mr. M., had encouraged Mr. Karcz to stab Mr. M., and had approached Mr. M. with a knife in hand, so Mr. Karcz interpreted this exchange to be a confession by Mr. Bruzzese that he stabbed Mr. M. twice.

[129] Mr. Karcz did not mention this confessional exchange to the police when he was asked what, if anything, Mr. Bruzzese said to him after Mr. M. fell to the ground. He simply told the officer that Mr. Bruzzese said they may never see each other again, and no one can know about what happened.

[130] This omission from Mr. Karcz’s police statement was put to him during his cross-examination. He responded that he mentioned the confessional exchange in his prior court testimony. While prior consistent statements cannot be used to bolster the credibility of a witness’s evidence, in circumstances where the witness is accused of a recent fabrication of inculpatory evidence, the existence of prior consistent statements is admissible for the purpose of rebutting the alleged recent fabrication: R. v. Stirling, 2008 SCC 10, at paras. 5-7; R. v. D.K., 2020 ONCA 79, at para. 36. I therefore take note that Mr. Karcz did not report Mr. Bruzzese’s confession for the first time at his second trial, six years after the events in question.

[131] Still, the fact that the confessional exchange was not reported to the police is a material inconsistency that casts doubt on the trustworthiness of that evidence. The alleged confessional exchange is also inconsistent with Mr. Karcz’s testimony that he still harboured hope that Mr. M. was unhurt after Mr. Bruzzese admitted to stabbing him twice. Had Mr. Bruzzese confessed, he would have had no reason to maintain hope. For these reasons, I will not rely on the evidence of the alleged confession.

[132] The Crown correctly submits that I am entitled to accept some and reject some of any witness’s testimony. Given Mr. Karcz’s overall credibility and reliability as a witness, I find that this one deficiency in his testimony, albeit significant, does not warrant rejection of all his evidence.

The Scotia Bank Video Surveillance Recording

[133] The Defence argues that the video recording from the Scotia Bank ATM surveillance camera directly contradicts Mr. Karcz’s testimony that Mr. Bruzzese approached him twice in front of the Food Basics entrance, the first time to retrieve the knife, and the second time after he stabbed Mr. M. The Defence argues that the video recording proves this story is false because it shows that Mr. Bruzzese only approached Mr. Karcz once, and it does not show Mr. Bruzzese taking a knife from Mr. Karcz.

[134] The camera’s frame captures only part of the Food Basics parking lot directly in front of the store’s entrance. The area where Mr. M. was found lying on the ground is off screen several metres to the left. The video runs for two hours, between 2:00 AM and 4:00 AM. There is no activity on screen apart from the two men seen walking across the front of the store at 2:51 AM and a car that is later driven across the lot at 3:34 AM. I infer from the totality of the evidence that the car was likely driven by Mr. Brugma.

[135] On the video recording, Mr. Karcz enters the frame first, from the left, at 2:51:12 AM. He is walking his bicycle. Mr. Bruzzese enters the frame seconds later, also from the left. He is behind Mr. Karcz by a few paces. He quickly catches up to Mr. Karcz and the two men walk side by side until they exit the screen on the right at 2:51:51 AM.

[136] This video evidence does not contradict Mr. Karcz’s testimony. He said it depicts the moments after the stabbing occurred. He testified that he had been walking his bicycle beside Mr. Bruzzese but stopped when he heard Mr. M. calling out to them. He then put his bike up on its stand in the Food Basics parking lot and walked back toward Mr. M. He later walked back toward his bicycle with Mr. Bruzzese’s knife in hand. Mr. Bruzzese followed him and retrieved the knife, then Mr. Karcz turned again and continued walking toward his bike. It was only after he subsequently looked back and witnessed the two thrusting motions that he took hold of his bicycle and started walking away with it.

[137] At no time is a stationary bicycle shown anywhere on the Scotia Bank video recording. It could have been on its stand just beyond the left edge of the camera’s frame, in which case Mr. Karcz’s first interaction with Mr. Bruzzese (when Mr. Bruzzese retrieved the knife) would have happened off screen. The moment where Mr. Karcz looked back and then placed his hands on his forehead in disbelief would also have occurred off screen. The moment captured on the video would be, as Mr. Karcz stated, when Mr. Bruzzese caught up to him after the stabbing, while he was walking away with his bicycle.

[138] Defence counsel argues that Mr. Karcz said his bicycle was on its stand in front of the entrance to the Food Basics store when Mr. Bruzzese took the knife back from him. If that were true, the bike (at minimum) would appear on the Scotia Bank video. Mr. Bruzzese’s retrieval of the knife would not necessarily be captured on the video because Mr. Karcz testified that he was on his way back to his bicycle when Mr. Bruzzese confronted him and retrieved the knife.

[139] Upon close review of Mr. Karcz’s testimony, I have concluded that he did not say he stopped his bicycle directly in front of the entrance to the grocery store. During his cross-examination, Defence counsel asked him if he stopped his bicycle at the entrance at the time he gave the knife back. He responded, “Yes, something like that.” He confirmed that he lived in the area and was familiar with the grocery store. He also confirmed that there was only one entrance to the store, which is the entrance depicted on the Scotia Bank video. Defence counsel then put to him, “Your best estimate is that your bike was in front of the entrance when you gave the knife back?” He responded, “Close by, yes.”

[140] Mr. Karcz’s “estimate” that his bicycle was “close by” the entrance is not contradicted by the Scotia Bank video, which does not depict the area immediately to the left of the store’s entrance. The Scotia Bank video therefore does not contradict Mr. Karcz’s testimony. Rather, it is consistent with his evidence that Mr. Bruzzese had to catch up to him after the alleged stabbing took place a few metres away.

Failure to Call 911 and After-the-Fact Conduct

[141] Defence counsel suggested to Mr. Karcz that, if Mr. Bruzzese had taken the knife from him and headed toward Mr. M. after having expressed an intention to kill Mr. M., then Mr. Karcz would have called 911 for assistance from law enforcement. Mr. Karcz responded with a rhetorical question, “I’m in front of a guy with a knife and I’m supposed to take out my phone and call 911?” I accept his explanation that fear dictated his actions. Some people in those circumstances might call 911, others might flee, others might freeze. There is no typical way that people respond to stressful and dangerous situations. His failure to call for help does not raise reasonable doubt about the truth of his testimony.

[142] Defence counsel also suggested to Mr. Karcz that he did not see what he described in the parking lot, or did not know what had happened, because he would have called 911 if he thought at the time that Mr. M. had been stabbed. Mr. Karcz responded that he knew what happened, he just did not know what to do about it. Mr. Bruzzese still had the knife. Fear, shock and denial continued to dictate his actions. He said he did not see the blade of the knife, so he was hoping that Mr. Bruzzese did not open it. When he looked back the last time, he did not see Mr. M. on the ground, so he was hoping that Mr. M. was not seriously injured and had run away.

[143] I am satisfied with these explanations. Mr. Karcz’s failure to call 911 after witnessing the alleged stabbing does not raise reasonable doubt about the truth of his testimony.

[144] The Defence argues that Mr. Karcz’s narrative of the events is not plausible because Mr. Karcz would not have walked away from the Food Basics parking lot without a care in the world, fist bumped Mr. Bruzzese, and gone home and done nothing for a couple of days, if he suspected that Mr. Bruzzese had stabbed Mr. M. and knew that Mr. M. could be lying on the pavement wounded.

[145] Mr. Karcz and Mr. Bruzzese did not flee the Food Basics parking lot. Video surveillance evidence shows them walking away casually, conversing with each other for a few minutes, then shaking hands before parting. Mr. Karcz was questioned about why he was so calm and friendly toward Mr. Bruzzese if he had just witnessed the alleged stabbing. He effectively described a state of shock and denial. He said he could not believe what was happening, and did not know what to believe. He was faintly hoping that Mr. Bruzzese had not opened the blade of the knife before he thrust his hand into Mr. M.’s abdomen. He hoped that Mr. M. was not seriously injured.

[146] Mr. Karcz did not call 911 or contact the police immediately after arriving home safe, or later that day. Defence counsel suggested that it was because he had not witnessed anything that warranted contacting the police. Mr. Karcz said he did not contact authorities because Mr. Bruzzese had threatened him not to tell anyone what happened. He conceded that he made a mistake by not calling 911.

[147] The next day, after Mr. Karcz’s girlfriend told him about news reports of a stabbing in the area, and he learned that media were circulating his image as a possible witness, he immediately went to the police station to give a statement.

[148] Based on the totality of the circumstances, Mr. Karcz’s actions in the aftermath of the alleged stabbing do not render his account of what he witnessed implausible.

Conclusion

[149] For all the above reasons, I conclude that the only significant flaw in Mr. Karcz’s credibility is with respect to the alleged confession by Mr. Bruzzese. I accept his other evidence as both reliable and credible, including the evidence about what he witnessed in the Food Basics parking lot after Mr. Bruzzese retrieved the knife from him. My confidence in the trustworthiness of that evidence is reinforced by the testimony of Mr. M.

The Victim’s Recollection

[150] As noted previously, Mr. M. has only fragmented memories of the morning in question. He does not remember significant events, such as his threat to commit suicide with a kitchen knife. He does not remember Mr. Bruzzese making threats. He has no idea how he got to the Food Basics parking lot after doing (what he believed to be) cocaine in his apartment with the other two men. He said he has only a vague memory of being in the parking lot. He acknowledged that he might be remembering a different time that he was there because he lived nearby and shopped at that grocery store.

[151] Mr. M. testified that his last clear memory from inside his apartment is of looking at himself in the mirror and feeling sad about his best friend dying and the love of his life breaking up with him. He said he might have a memory of ushering people out of his apartment because it was becoming too noisy, but he was uncertain about that.

[152] When the Crown asked Mr. M. to relay his next memory, he said: “Of that night? I remember being in pain. And I remember thinking of [J.A.], my lost love. And I remember falling to my knees and, uh, that’s sort of it. And just confusion, and I heard the word “useless” or “worthless” spoken to me.” He testified that he does not know who spoke to him. He was asked if he remembered the speaker’s accent. He said it was a Canadian English accent, like people speak in southern Ontario. Later during his testimony, Mr. M. added a small detail, namely that he remembered clenching his abdomen as he fell to his knees. He also clarified that when he said he remembers being in pain, he meant emotional pain, not physical pain. His next recollection is of vague memories of being in an ambulance and then being at the hospital.

[153] Mr. M. was not challenged in cross-examination on his statement that he heard the word “useless” or “worthless” spoken to him as he fell to his knees. I have no reason to question the reliability or credibility of his evidence on that point. The only reasonable inference that can be drawn from it is that Mr. Bruzzese is the person who uttered those words as Mr. M. fell. Had it been Mr. Karcz, Mr. M. would have noticed his Polish accent. Video surveillance evidence confirms Mr. Karcz’s testimony that no one else was in the vicinity. Moreover, the word that Mr. M. remembers hearing spoken to him at the moment when he fell to the ground is similar to the derogatory comments that Mr. Karcz remembers Mr. Bruzzese making earlier. Indeed, in the absence of any opportunity for collusion between these two witnesses, the similarity is striking.

[154] Mr. M. did not identify Mr. Bruzzese as the person who stabbed him, but he provided strong circumstantial evidence that Mr. Bruzzese was standing near him and was insulting him as he clutched his abdomen and fell to the ground. This is compelling corroborative evidence that fortifies my confidence in the truth of Mr. Karcz’s account of what he witnessed in the parking lot.

Has the Crown Satisfied its Onus?

[155] The ultimate question for me to decide is whether, based on the totality of the evidence at trial, and the absence of evidence, the Crown has established beyond a reasonable doubt that Mr. Bruzzese deliberately stabbed Mr. M., and did so with an intent to kill him. The Defence takes the position that Mr. M.’s suicidality raises reasonable doubt about whether his stab wounds were self-inflicted. The Defence further argues that the absence of any forensic evidence linking Mr. Bruzzese to the stabbing raises reasonable doubt about Mr. Bruzzese’s guilt.

Possibility of Self-Inflicted Wounds

[156] The theory that Mr. M.’s wounds may have been self-inflicted is not frivolous, given the evidence of Mr. M.’s bipolar condition, depressed mood, state of intoxication, and expressed threat to kill himself with a kitchen knife. Crown counsel argues that, given the severity of his wounds, it is far fetched to suggest he could have stabbed himself twice. I am not prepared to discount that possibility without expert evidence. A person in a highly intoxicated and despondent state of mind might well be able to stab themselves twice.

[157] During closing submissions, I queried whether this theory of self-inflicted wounds is refuted by the fact that no knife was found on the ground with Mr. M. Defence counsel agreed that, if Mr. M. attempted to kill himself with a knife in the parking lot, it is very unlikely that he would have disposed of the knife after stabbing himself. However, Defence counsel suggested that the knife could have fallen down a nearby sewer grate, or that Mr. M. could have stabbed himself in a different location and left the knife there, a place that was never identified or searched by the police.

[158] The possibility that Mr. M. stabbed himself twice in another location, other than his apartment, and then walked to the parking lot is far-fetched. There is no evidence of his blood anywhere other than the smudge on the frame of his patio door, and the large pool of blood that accumulated beside him on the ground in the parking lot. Given the severity of his injuries and the blood loss that he sustained, I infer that he could not have walked a significant distance, after stabbing himself, without leaving a trail of blood. I am satisfied, beyond a reasonable doubt, that he sustained the stabbing wounds in the Food Basics parking lot, at the location where Mr. Brugma found him.

[159] Mr. Brugma testified that when he drove by that morning, he noticed an individual “laying over a drain” in the parking lot. Photographs taken at the scene show a drain grate within a few feet of a large blood stain. There appear to be spaces in the grate large enough to allow a small knife to pass through.

[160] The Defence has no onus to prove that Mr. M. stabbed himself and dropped the knife down the sewer. The Crown will have failed to satisfy its burden of proving Mr. Bruzzese’s guilt if I find that the possibility of self-inflicted wounds raises reasonable doubt about whether Mr. Bruzzese committed the stabbing. I must make that assessment based on the totality of the evidence at trial. For all the reasons detailed in this judgment, I find Mr. Karcz’s evidence to be compelling, credible, and overwhelming. I believe his testimony about what he observed in the Food Basics parking lot. What he witnessed eliminates reasonable doubt about Mr. M.’s wounds being self-inflicted.

[161] I am mindful that Mr. Karcz did not see the blade of the knife in Mr. Bruzzese’s hand. He was unsure, in the moment, whether Mr. Bruzzese had opened the knife and stabbed Mr. M. or had simply punched him in the abdomen with a closed fist. When all the evidence is taken into consideration – the fact that Mr. Bruzzese had threatened to kill Mr. M. and had tried to coax Mr. Karcz to stab him, that Mr. Bruzzese insisted on retrieving his pocketknife from Mr. Karcz, that he had the pocketknife in his hand as he approached Mr. M., that he made two thrusting motions toward Mr. M.’s abdomen, causing Mr. M. to buckle at the knees, clutch his abdomen and fall to the ground, and that Mr. M. sustained two stab wounds (consistent with two thrusting motions) – the only reasonable inference is that Mr. Bruzzese stabbed Mr. M. When stacked against the weight of this evidence, the theory of self-inflicted wounds does not raise reasonable doubt about whether Mr. Bruzzese committed the stabbing.

[162] The fact that Mr. Karcz did not see Mr. M. lying on the ground when he turned back one last time to look in that direction does not raise reasonable doubt. Mr. Karcz only glanced quickly; it was dark and there was a curb in the parking lot that could have obstructed his line of sight. Mr. Bruzzese was walking toward him and also could have obstructed his line of sight.

Absence of Forensic Evidence

[163] The police searched Mr. Bruzzese’s residence on September 7, 2018. From a pile of laundry, they seized some items of clothing that Mr. Bruzzese may have been wearing in the early morning hours of September 3, 2018, when the stabbing is alleged to have been committed. They took two pair of blue jeans, a black t-shirt with a white logo printed on the chest, a camouflage-coloured Blue Jays baseball cap with a blue brim, and boxer shorts. From the surveillance video evidence, it appears that Mr. Bruzzese was wearing denim jeans, a black t-shirt with white logo, and a baseball cap with a blue brim when he was at Shoeless Joe’s and at Crabby Joe’s.

[164] The items of clothing were examined at the Centre for Forensic Sciences. No blood was found on the boxer shorts or on either pair of jeans, including inside the pockets and waist band of the jeans. Blood was found on the outside right front sleeve of the black t-shirt. A sample was taken, and DNA testing confirmed that it contained Mr. Bruzzese’s own blood. The sample also contained a different source of DNA, but there was an insufficient amount to be able to determine whether it was from a single source or more than one source, and whether it was from blood or from another bodily fluid. It was impossible to create a profile from the second sample to use for comparison with Mr. M.’s DNA.

[165] The Defence argues that the absence of Mr. M.’s blood on Mr. Bruzzese’s clothing is compelling exculpatory evidence. The Defence submits that, if Mr. Bruzzese had thrust the blade of a pocketknife into Mr. M.’s abdomen twice, there would have been blood splatter on his clothing. In the absence of expert evidence, I am not prepared to speculate about blood splatter. Such conjecture does not raise reasonable doubt: R. v. Kruk, 2024 SCC 7, at para. 68.

[166] However, even if there was no blood splatter, logic and human experience dictate that there would blood on the blade of the knife: Kruk, paras. 71-79. Defence counsel points to Mr. Karcz’s testimony that Mr. Bruzzese probably put the knife back in his pocket after stabbing Mr. M. because it was no longer in his hand when he approached Mr. Karcz. The Defence submits that the absence of blood in or around the pockets of Mr. Bruzzese’s jeans therefore raises reasonable doubt about his guilt.

[167] It is well established that a reasonable doubt need not arise from the evidence. It can derive from the absence of evidence, from what the Crown has failed to prove: R. v. Lifchus, [1997] 3 S.C.R. 320, at paras. 36, 39; R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 28, 36-37; R. v. Darnley, 2020 ONCA 179, at para. 33. This principle applies to cases in which there is an absence of forensic evidence connecting the accused to the charged offence: R. v. Tebo, 175 C.C.C. (3d) 116 at paras. 5-12; R. v. Bero, 151 C.C.C. (3d) 545, at paras. 57-58, 61-64. However, the absence of forensic evidence will vary in importance depending on the facts of each case. In some cases, it may assume a place of prominence, whereas in other cases it will be of little significance: R. v. Stark, at paras. 29-31; R. v. Hassanzada, 2016 ONCA 284, at para. 71.

[168] The significance of the absence of forensic evidence in this case is diminished by two factors. First, it is unclear whether the denim jeans seized from Mr. Bruzzese’s apartment are those that he was wearing on the day in question. The parties submitted an agreed statement of fact that the seizure of clothing “was based on information [the police] had received about what Mr. Bruzzese might have been wearing on September 2-3, but they received no specific information confirming that the items he in fact wore that night were the items that they seized.” Mr. Bruzzese’s apartment was not searched until September 7, 2018; he could have disposed of blood-stained jeans prior to the search.

[169] Second, there is no evidence of what Mr. Bruzzese did with the knife. Mr. Karcz did not testify that he saw Mr. Bruzzese put it back in his pocket; that was merely an assumption he made. Placing the knife back in his pocket is not the only reasonable inference that can be drawn from the evidence. Mr. Bruzzese could have, for example, discarded it down the sewer grate beside where Mr. M. was lying on the ground. There is no evidence that the sewer was searched by police.

[170] I am not suggesting that the absence of forensic evidence is of no significance in these circumstances, but it is not sufficiently important to raise a reasonable doubt when stacked against the weight of the Crown’s direct and circumstantial evidence that Mr. Bruzzese stabbed Mr. M. The Crown has proven that he intentionally stabbed Mr. M. to the legal standard of beyond a reasonable doubt.

Intent to Kill

[171] The Crown has also satisfied its burden of proving beyond a reasonable doubt that Mr. Bruzzese meant to kill Mr. M. when he stabbed him. Mr. Bruzzese’s words and actions, the nature and severity of the harm he inflicted, and his disregard for Mr. M.’s life and wellbeing after the fact, are compelling evidence of his intention to kill Mr. M.

[172] In the hours leading up to the stabbing, Mr. Bruzzese stated, more than once, that Mr. M. was unworthy of life, and that it would be easy to kill him. In the minutes prior to the stabbing, at the Food Basics plaza, he threatened to kill Mr. M. if Mr. Karcz did not convince Mr. M. to go back home. He then stabbed Mr. M. with sufficient force to puncture his abdomen. Twice. Then he left Mr. M. lying on the ground in empty parking lot where he was unlikely to be noticed by anyone who could render or summon emergency medical assistance. The only reasonable inference that can be drawn from the totality of the evidence is that Mr. Bruzzese intended to kill Mr. M.

Verdict

[173] For all the above reasons, I find Mr. Bruzzese guilty of attempted murder.

Petersen J. Released: December 17, 2024