2015 MBPC 4, 2015 MBPC 4

Cite: 2015 MBPC 4 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Brian Bell and Paul Girdlestone, ) for the Crown - and – ) ) Zeljko Mikic, ) ) ) Martin D. Glazer and Jason Hatherly, Accused ) ) for the Accused ) ) Judgment delivered: February 18, 2015 ) MARY KATE HARVIE, P.J. Introduction [ 1 ] Zeljko Mikic is accused of committing murder in the second degree as a result of an incident which occurred between the dates of August 4 th and August 5 th , 2011.

At the conclusion of four days of evidence at a preliminary inquiry, crown counsel invited the Court to commit the accused to stand trial as charged in the Information. Defence counsel asserts that the evidence does not meet the standard for committal to stand trial and argues that the accused should be discharged. Alternatively, he submits that the accused should be ordered to stand trial on the charge of manslaughter.

The Facts [ 2 ] Sometime between the late evening hours of August 4 th and the early morning of August 5 th , 2011 an altercation occurred outside the Osborne Village Motor Inn in Winnipeg, Manitoba. A large group of people had gathered outside the hotel and an individual was seen waving a knife. The group dispersed at the sound of a gun being fired. [ 3 ] Approximately 20 minutes later the victim was seen walking south on Osborne Street towards Stradbrook Avenue.

Witness accounts vary as to the exact path taken by the victim, however it appears that he crossed the Stradbrook and Osborne intersection and ultimately ended up on the west side of Osborne Street across from the hotel. It was in that vicinity that witnesses describe a group of males setting upon and assaulting the victim. While it appeared to witnesses that he was being punched by his assailants, the victim actually sustained numerous stab wounds. He crossed Osborne Street and collapsed near the front door of the hotel.

He was transported by ambulance to the Health Sciences Centre where he was resuscitated and underwent surgery. He eventually succumbed to his injuries. The Evidence Implicating the Accused [ 4 ] The Court heard from several witnesses who were in the area at the time of the incident. One witness described the victim being attacked by a group of “Filipino” males, with the main perpetrator wearing distinctive clothing. The mother of the accused testified and confirmed that the accused is not of Filipino descent.

No witness identified the accused as being present. [ 5 ] Another witness in the vicinity of the assault observed individuals on Stradbrook Avenue shortly after the altercation. He described seeing one individual near the entrance of a restaurant located on Stradbrook Avenue, around the corner from where the assault occurred. The arm movements of this individual caught the attention of the witness, who attended to the area once the individual left. The witness noted that a knife had been left in a planter by the restaurant entrance.

While he did not actually see the individual leave the knife in the planter, he contacted the Winnipeg Police Service and advised them of his discovery. [ 6 ] Dr. Charles Littman, Forensic Pathologist, testified as to the injuries sustained by the victim. The victim suffered nine stab wounds, including a wound to his arm which transacted an artery. None of the victim’s vital organs were penetrated. The knife which had been retrieved from the planter was shown to Dr. Littman and he agreed that the knife could have caused the stab wounds.

He also conceded that the stab wounds could have been caused by a shard of broken glass. A window near the entrance to the hotel had been

broken that evening. [7] The knife was subject to forensic analysis, as were a number of other exhibits seized in the area. Of specific note with respectto the committal argument, is the mixed profile DNA finding which identified DNA being consistent with that of the deceased on theknife located in the planter. DNA consistent with that of the accused was also identified as being on the knife handle. Further, a spot ofblood having been located on Stradbrook Avenue in the vicinity of where the knife was found was identified as having DNA consistentwith that of the accused.

The DNA expert who testified for the crown confirmed that she could not say when the DNA of the accusedwas left on the knife. Nor could she say when the blood of the accused was deposited on Stradbrook Avenue. DNA from a number ofother items was retrieved but the individuals were not identified. The Law on Committal [8] There is little dispute as to the state of the law as it relates to the test to be applied by a preliminary inquiry Judge in a casewhere the evidence is circumstantial. In R. v.

Arcuri, [2001] 2 S.C.R. 828, 2001 SCC 54 (S.C.C.) McLachlin C.J. writing for the Courtnoted that the test in United States of America v. Shephard, (SCC), [1977] 2 S.C.R. 1067 applies in all preliminaryinquiries, that is, “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty”(see Shephard, supra. at page 1080).

However, the Court acknowledged that in a case where the Crown’s evidence is circumstantial,“The judge’s task is somewhat more complicated” (at para. 23): The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has notadvanced direct evidence -- may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requires thejudge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should bebelieved . . . The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting theinferences that the Crown asks the jury to draw. This weighing, however, is limited.

The judge does not ask whether she herself wouldconclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether theevidence, if believed , could reasonably support an inference of guilt. [9] The comments of the Court in Arcuri, supra, were relied upon by the Manitoba Court of Appeal in R. v. Eckstein, [2012]MBCA 96 where the Court discussed how a preliminary inquiry Judge should approach the evidence presented (at para. 18): A few points need to be made on certain distinctive evidentiary features which exist at the preliminary inquiry stage.

At this stage,if the Crown's evidence is capable of belief, it is to be believed. The preliminary inquiry judge is not to assess credibility or generallyweigh the evidence, nor is the judge allowed to draw inferences from the circumstantial evidence. Rather, that judge is to assess thereasonableness of the Crown's suggested inferences. This requires a "limited weighing" of the whole of the Crown's evidence (see R. v.Arcuri, 2001 SCC 54 at paras. 29-30, [2001] 2 S.C.R. 828).

While the accused may disagree with those inferences or prefer otherinferences, such differences of opinion are not proper considerations at this stage of the proceedings.

Finally, when conducting thisassessment, the preliminary inquiry judge must bear in mind that "where more than one inference can be drawn from the evidence, onlythe inferences that favour the Crown are to be considered" (Sazant at para. 18). [10] Crown counsel argues that it is reasonable for the Court to infer from the presence of DNA consistent with that of the accusedon the knife and from the blood located in the vicinity of where the knife was located that the accused was involved with the stabbing ofthe victim.

Defence counsel argues strenuously that the Court must draw a distinction between a reasonable inference to be drawn fromthe evidence and that which amounts to pure speculation. In R. v.Khan, (MB CA), [1998] M.J. No. 324, (1998) 126C.C.C. (3d) 353 (MBCA) the Manitoba Court of Appeal warned of the danger of failing to distinguish between circumstantial evidence,being “evidence which does not directly prove a fact in issue, but may give rise to an inference of the existence of a fact in issue” (atpara. 72) versus speculation, which amounts to mere conjecture or a guess.

Defence counsel points out that the DNA expert could notsay,

a) when the accused’s DNA was left on the knife,

b) by what circumstance the accused’s DNA came to be on the knife (directcontact or secondary or tertiary “transfer”),

c) how long the accused’s DNA had been on the knife. The DNA expert also conceded thatthe knife may well have been handled by an individual responsible for the stabbing without leaving any or a sufficient amount of DNAfor testing.

Simply put, defence counsel asserts that the presence of DNA consistent with that of his client does not establish that hisclient was involved in the stabbing, and that such a conclusion would be “mere conjecture”. [11] Similarly, defence takes issue with any reliance on the blood of the accused left on Stradbrook Avenue, without knowing whenit was deposited there and under what circumstances.

He asserts that reliance on this evidence amounts to mere speculation that theaccused was involved in the stabbing of the victim. [12] Defence counsel also asserts that an appropriate application of the test in Shephard, supra, and Arcuri, supra, requires theCourt to consider the evidence in its totality, including the testimony of the witnesses which negates the DNA evidence upon which theCrown relies.

To that end, defence points out the following: • There is no identification of the accused being present on the evening in question either at the hotel, during the altercation; • There is no evidence of motive; • There is direct evidence from the eye witness that the perpetrators were “Filipino” in appearance, with a specific description of theassailant being provided to the police; • The mother of the accused testified that the son was not Filipino but from Yugoslavia and defence counsel urges the Court toconclude that the accused does not appear to be of Filipino heritage. [13] The DNA evidence with respect to the knife must be considered in the context of the case as a whole.

The proximity in bothdistance and time of the location of the knife, coupled with the evidence as it relates to the DNA of the deceased, could lead a properlyinstructed jury to the reasonable inference that the knife was used in the stabbing of the victim. The evidence as it relates to the accused’s

DNA, both on the knife and from the blood droplet, must be the subject of “limited weighing” but in the context of those inferenceswhich “favor the Crown”. As such, the location of the DNA consistent with the accused, are circumstances which a jury should beallowed to consider. Committal on Murder versus Manslaughter [14] Defence counsel submits that the whole of the evidence does not support the finding or inference that the perpetrator had theintent to kill as opposed to wound the victim.

Amongst other things, he points to the location of the wounds, and to the fact that none ofthe vital organs of the victim were affected. He relies on R. v. Castel, [2004] M.J. No. 183, (MBPC). [15] I am mindful of the fact that the victim was the subject of an attack by a group of assailants and suffered numerous stab wounds.In R. v. Mariott [2007] M.J. 107 (QB) Greenberg J. commented that it would be a jurisdictional error for an accused to be ordered tostand trial where an essential ingredient of a charge is missing.

However, she stated “the preliminary inquiry Judge ought not todischarge an accused simply because the Crown’s evidence is weak” (see para. 15). [16] The whole of the evidence must be considered, with inferences most favourable to the prosecution applied to the evidence.Given the circumstances under which the victim was assaulted and the number of stab wounds sustained, a properly instructed jurycould draw the inference that the perpetrators meant to cause bodily harm which was likely to cause death and were reckless as towhether death occurred.

As such, I am satisfied that the accused ought to be ordered to stand trial on the charge of second degree murder. “Original signed by” MARY KATE HARVIE, P.J.