2018 MBPC 37, 2018 MBPC 37

Citation: 2018 MBPC 37 THE PROVINCIAL COURT OF MANITOBA Winnipeg Centre BETWEEN Her Majesty the Queen ) ) Rustyn Ullrich and Debbie Buors, for the Crown - and - ) ) Lacy Sorokowski - and - Ashley Marie Bezecki - and - Tyrone Anthony Chippeway - and - Christopher Ryan St. Paul ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Tara Walker and Matthew Raffey, for the Accused Wendy Martin White and Rita Katsanos, for the Accused Greg Brodsky, Q.C. and Zachary Kinahan, for the Accused Stacey Soldier and Mitch Enright, for the Accused ) Judgment delivered: ) September 28, 2018 CORRIN, P.J.

INTRODUCTION [ 1 ] The four accused are each charged with second degree murder in relation to the death of Shania Chartrand. [ 2 ] The preliminary inquiry in this matter began on May 28, 2018 and after five days of evidence in May, June and July, I heard submissions on July 31, 2018. [ 3 ] The Crown’s theory of the events of March 12, 2017 based on the evidence, is straightforward. It submits that on that date, as a result of a prior drug related incident, the four accused conspired to avenge themselves by luring the victim out into a public, accessible location and shooting her.

To do this, Tyrone Chippeway (the victim’s cousin), communicated with the victim via Facebook Messenger, while the other three accused, Christopher St. Paul, Ashley Bezecki and Lacy Sorokowski, circled the block of the Spence Street house the victim was known to be in, in a car. The three accused timed their last pass-by to coincide with her coming out of the residence and stopping briefly fired a single shot from the vehicle. The bullet struck the victim in the chest and killed her. [ 4 ] After the shooting the accused all fled, Sorokowski and St.

Paul remaining together for a time, Chippeway and Bezecki went to other locations. Ms. Sorokowski’s white Chrysler 300 was soon after seized by police and gunshot residue was found in the vehicle. [ 5 ] The Crown contends that there is evidence, which a trier of fact could utilize to come to a conclusion that all the accused

knew, or ought to have known that the act of violence against the victim would involve the use of a firearm, and that this knowledge orwillful blindness on their part makes them all liable for murder either as principles, or as willing parties. [6] The Crown in this case relied upon wide ranging evidence, which included pre-offence conduct, post-offence conduct,admissions made by some of the accused, intercepted communications and circumstantial evidence. THE LAW RESPECTING COMMITTAL [7] Based on the whole of the evidence I have heard I must decide whether the threshold test set out in United States of Americav.

Shepard, a 1976 decision of the Supreme Court of Canada, has been met. Shepard states that there must be some admissible evidencewhich could, if believed by the trier of fact, result in conviction. There must be admissible evidence of each element of the offencecharged.

The preliminary inquiry court is not permitted to weigh the evidence and assess its credibility except in relation tocircumstantial evidence, where the judge must engage in a limited weighing of the whole of the evidence to determine whether areasonable trier of fact, i.e. a jury, could after being properly instructed, return a guilty verdict (see para. 52 of R. v. Arcuri, a 2001Supreme Court case). Generally a judge sitting at a preliminary inquiry cannot discharge based on inconsistencies in the evidence as thatwould entail a weighing of the evidence and assessment of credibility.

Finally, both Shepard and Arcuri make clear that all availableinferences are deemed to be favourable to the Crown at the preliminary inquiry stage. THE LAW RELATED TO SECOND DEGREE MURDER [8]

Section 229(

a) of the Criminal Code reads: Culpable homicide is murder where the person who causes the death of a human being (

i) means to cause his death, or (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not… [9] The difference between the requisite mens rea for murder under s. 229(a)(

i) and (ii) has been judicially considered. In R. v.Nygaard and Schimmens, (1989) (SCC), 51 C.C.C. (3d) 417 (S.C.C.) where the court found there is only a “slightrelaxation” from the intention to cause death required in relation to s. 229(a)(ii). Cory J. referred to the difference in degrees ofculpability between the subsections as too slight to take into account (Nygaard, supra). The Ontario Court of Appeal has also describedthe difference as a “slim one,” with s. 229(a)(ii) modestly expanding the pure definition of murder observing that there is a closeproximity between the two states of mind (R. v.

Watkins, (2003) (ON CA), 181 C.C.C. (3d) 78 (Ont. C.A.)). [10] The Crown sought committal for trial on the basis of s. 229(a)(ii) only, and did not suggest there was any evidence to support acommittal for trial under s. 229(a)(i). When relying upon s. 229(a)(ii), there has to be some evidence that each accused had: • the subjective intent to cause bodily harm; and • the subjective knowledge that the bodily harm would be of such a nature that it was likely to result in death. R. v.

Cooper, (1993) (SCC), 78 C.C.C. (3d) 289 (S.C.C.). [11] The accused must foresee a likelihood of death flowing from the bodily harm that he or she is planning to exact on the victim.However, the test is objectively and not subjectively premised respecting the degree of harm that the assault is likely to cause. In otherwords, it doesn’t matter if the accused thought that shooting would not result in death when a gun was recklessly employed to perpetratethe assault and did in fact cause the death of the shooting victim.

The deliberate disregard of the risk of death presented by such apotentially lethal weapon will be sufficient in certain circumstances to constitute the mens rea of culpable homicide (Cooper, supra). [12] The essential element is that of intending to cause bodily harm of such a grave and serious nature that the accused should haveknown that it was likely to or could result in the death of the victim.

The aspect of recklessness is almost an afterthought, since to securea conviction under this section, it must be established that the accused had the intent to cause bodily harm that he knew was likely orcould cause death. One who causes such bodily harm is presumed to have a deliberate disregard for the fatal consequences which areknown or should have been known to likely follow. He must be reckless as to whether death will occur or not (Nygaard, supra). THE LAW RESPECTING PARTIES TO AN OFFENCE [13] The relevant

section of the Criminal Code is s. 21(1)(b), which states: Everyone is a party to an offence who ... (

b) does or omits to do anything for the purpose of aiding any person to commit it... [14] In R. v. Portillo, (ON CA), [2003] O.J. No. 3030 (ONCA) at para. 71, Doherty J.A. provided the followingjury charge outline for party liability under s. 21 in relation to a homicide charge: • To convict an accused of murder or manslaughter, the jury must be satisfied that the accused participated in the killing. • Participation means doing something that caused the death of the deceased or doing something for the purpose of helping another

person to do something that caused the death of the deceased. • If the jury is satisfied that an accused participated in the killing as described above, it is unnecessary for the jury to determine theexact nature of that participation. • If the jury is satisfied that an accused participated in the killing of the deceased, he is guilty of either murder or manslaughter.

Heis guilty of murder if he did so with the necessary blameworthy state of mind and manslaughter if the Crown has not proved theblameworthy state of mind. • The blameworthy state of mind consists of intending that the deceased should be killed; or intending that he should suffer bodilyharm of the kind likely to result in death and yet proceeding despite knowledge of that risk. R. v.

Kirkness, (1990) (SCC), 60 C.C.C. (3d) 97 at 127 (S.C.C.). [15] It is essential that the evidence be examined to determine whether the act of aiding was done with the intent to aid in theoffence upon which committal is sought or some other crime.

In this case, an accused is only liable to be committed for trial on seconddegree murder if there is evidence from which it could be concluded their acts assisted the person who actually committed the murderwere done with the intention of assisting a murder as defined in s. 229(a)(ii). [16] The person aiding the individual who commits the murder must appreciate that the actual perpetrator intends to cause bodilyharm of a kind likely to result in death, and be reckless whether death ensues or not. There is no requirement that the party desire that thevictim die.

However, the party must have the same intent as the person who actually committed the murder in order to be convicted (seeHibbert v. The Queen, (1995) (SCC), 99 C.C.C. (3d) 193 (S.C.C)). [17] As regards the actus reus of a party, the mere presence at the scene of a crime is not sufficient to ground culpability. Somethingmore is required, such as encouragement of the principle offender or

an act which facilitates the commission of the offence, such askeeping watch or enticing the victim away.

An act which tends to prevent or hinder interference with committing the criminal act, suchas preventing the intended victim from escaping, or being prepared to assist the prime culprit will also ground culpability: Dunlop andSylvester v. The Queen, (1979) (SCC), 47 C.C.C. (2d) 93 (S.C.C.) THE EVIDENCE AS AGAINST EACH ACCUSED Tyrone Chippeway [18] The Crown conceded that the strongest evidence against Chippeway comes from his statement to police, where he admitsluring the victim out of the residence to enable the others to commit a violent act against her.

To corroborate this aspect of his evidence,the Crown tendered Facebook messages (exhibit 9) between Chippeway and “Savia”, the victim’s known Facebook alias, that show thathe repeatedly and persistently communicated with her for such purpose on the evening of the shooting, including just moments beforethe shooting. [19] In terms of establishing a prima facie case for intent for murder, that is to say that Chippeway knew, or was wilfully blind tothe fact that the act of violence would involve the use of a firearm, the Crown submits that it is important to note the contents of hisstatement where he indicated that he had recently seen St.

Paul in possession of a gun and that he had actually asked St. Paul shortlybefore the shooting if he was going to shoot the victim thus leading to the logical inference that he not only knew that St. Paul had a gun,but also thought that or suspected that a shooting was probably the harm to be inflicted. [20] Defence argued that Chippeway simply didn’t know or didn’t appreciate that the others would shoot the victim even though hehad asked St. Paul if they were going to shoot her before luring her to the incident scene.

Defence contended that such conclusion wassupported by the description of Chippeway’s distress when he was observed and heard speaking to the accused Bezecki by TiaraLevasseur about the shooting of the victim. Lacy Sorokowski [21] It is the Crown’s view that the evidence establishes a clear link between Sorokowski, St. Paul and Chippeway, and the plan toinflict

an act of violence on the victim, Shania “Savia” Chartrand. It also argued that there is clear evidence that Sorokowski participatedin the actual incident and that she knew a gun would be used. [22] The Crown pointed to evidence showing that Sorokowski was the registered owner of a white Chrysler 300 i.e. a Certificate ofRegistration.

Equally importantly, the court heard evidence respecting descriptions of the vehicle: Chippeway described it, MorganLeclerc described it in detail and knew of the spare tire, or “donut” that Sorokowski had recently put on the vehicle, something thatSorokowski herself described in her own Facebook messages. This vehicle was towed from an apartment block on Pembina Highway, abuilding which Sorokowski and St. Paul are seen entering together a relatively short time after the shooting. The car is left behind whenSt. Paul and Sorokowski leave that location a little later that same night.

The parking spot’s owner takes a photo of the illegally parkedvehicle, which was filed with the court, prior to it being towed away. [23] On the night of the shooting that vehicle, with the ‘donut tire’ visible, is seen on numerous security video cams filed by theCrown, driving around the block on Spence to Broadway, to Young, and to Portage and back down Spence. It is effectively circling thelocation where the victim was located. It is only on the third circle after the shooting that the car is no longer seen passing by theselocations in that fashion on the video surveillance.

Of note as well is that it is a very short period of time between Chippeway’s last textmessage to the victim and the last time that the vehicle circles the block. [24] Forensic evidence confirmed the presence of gunshot residue located on the driver’s door frame of Sorokowski’s vehicle. [25] Aside from all the foregoing circumstantial evidence, there is also the evidence of Sorokowski’s actual involvement, whichwas established in a number of ways. There are Facebook messages between her and Chippeway, before and after the shooting. There is

also her connection to St. Paul - having been to Leclerc’s residence with him earlier in the day, and then seen on a security video relatively soon after the shooting with him at the Pembina Highway apartment block and also shortly afterwards at the Bleachers bar downtown. [ 26 ] Even more significantly, her involvement is established through her own words as described in the statement of Morgan Leclerc and the testimony of Tara Michell. Sorokowski admits her presence at and explains the shooting, and the reason for it to Leclerc when she attends to his residence in the early morning hours of March 13, 2017.

This visit is actually confirmed by video surveillance footage filed by the Crown as part of its case. [ 27 ] Among a number of other things which were also corroborated by Chippeway’s statement, she indicates that “someone” in the group shot “her” (the victim) and describes how they waited for her to come out of her apartment (Morgan Leclerc Statement, pages 23- 24). [ 28 ] The victim is not identified to Leclerc by name by Sorokowski but Crown witness Tara Michell, who was present at Leclerc’s residence when Sorokowski visited, learns of the death of her friend, Shania Chartrand, early the next morning and connects the dots in reference to what she had over-heard the previous night.

Moreover, Sorokowski had told Leclerc it was a shooting, from her vehicle, on Spence, and that she was the driver and that “her and Chris (St. Paul)” were involved. She also divulged the motive, which was drug business related. The Crown emphasized that Tara Michell had testified that she had overheard most, if not all of what Sorokowski told Leclerc as disclosed to police in Leclerc’s video statement. [ 29 ] In terms of evidence of intent, by way of common sense inference, which the Crown receives all benefit of at this stage, there are a number of factors to consider.

Firstly, there is knowledge of the motive for the incident. All indications as related to Leclerc are that Sorokowski was a willing participant and drove her vehicle at the time of the shooting. Prior Facebook messages in evidence (exhibit 31) also make mention of a “strap” being needed “ASAP”, showing that she also (like Chippeway) knew that a firearm was available to St. Paul. An earlier Facebook post also states “Chris has my strap too” (exhibit 32). [ 30 ] Practically speaking though, the fashion in which the shooting took place speaks to a high degree of involvement and participation by Sorokowski.

She provided the means - the vehicle. She had control of that vehicle which would have included slowing it, or stopping it completely to enable the shot to be fired. It would also involve rolling down her window and leaning back to allow the shot to be fired past her, as the direction of the vehicle and the location of the gunshot residue and victim serve to indicate that the gun was probably shot across her; or interestingly, if that did not occur, it would tend to indicate that she in fact was the shooter, which would be contrary to what she told Leclerc.

The Crown also emphasized that in the close-quarters of her vehicle, a location where it is virtually unimaginable that she did not see the gun before the shot was fired, she did nothing to frustrate its use. The Crown argued that a trier of fact who embraced this view could logically conclude that same fully implicated her as a party or main perpetrator in reference to the killing. [ 31 ] The Crown also reminded the court that evidence of Sorokowski’s general post-offence conduct is of significant interest. In such respect she’s seen on video with St.

Paul at the Pembina apartment, and then shortly afterwards, at Bleachers. The court agrees with the Crown that a trier of fact could draw the inference that she was ditching her car at the Pembina apartment to evade detection, something she told Leclerc she needed to do after the incident. Christopher St. Paul [ 32 ] The Crown contends that the evidence establishes that St. Paul was also part of the group that conspired to lure the victim out to shoot her. It suggested that the Facebook messages between St. Paul and Chippeway establish the motive as well as highlight the animus St. Paul had towards the victim.

It also argued that the Facebook and video evidence also established a substantial connection between Chippeway, Sorokowski and St. Paul before and after the shooting took place. [ 33 ] It emphasized that the video evidence from the Pembina apartment and Bleachers bar showed that St. Paul was with Sorokowski a short time after the shooting.

Also that his finger print, located in Sorokowski’s vehicle, suggested that he’d likely been in the vehicle at the time of the incident, another inference favourable to the Crown. [ 34 ] As previously mentioned, the Crown reminded the court that there are a number of Facebook messages between St. Paul and Chippeway, and others where St. Paul mentions a “strap” (gun), and where St. Paul is upset with Chippeway for meeting and talking with Savia (the victim) because he is of the view that she set him up over drugs. It also contended that a review of the text messages between St.

Paul, Chippeway and Sorokowski make it apparent that the victim was the intended target, and that it was indeed their plan to lure her out of doors to a more accessible and vulnerable situation. [ 35 ] The Crown further contends that St. Paul’s involvement is conclusively made out by admissions he made to his sister, Lacey Sinclair, who testified that he told her “he shot her”, and was taking responsibility and “ownership” of the act. Ms. Sinclair also told court that she knew that St. Paul was referring to Shania Chartrand, as St. Paul had dated her before.

It also submitted that given all of the other available evidence linking St. Paul to the other three accused at the material time - i.e. being together earlier in the day at Leclerc’s home, and after that, at the Pembina apartment with Sorokowski; and then of course all of the Facebook messages between St. Paul (Kodak TeeCee) and the other accused, it would be open to the trier of fact to conclude that St.

Paul was fully involved in the conspiracy to shoot the victim. [ 36 ] The Crown also argued that in terms of post offence conduct, albeit only in the general, not legal sense, he is seen with Sorokowski at the Pembina apartment block soon after the incident, having very likely arrived with her in her car, and then attends with her to the Bleachers bar and then, perhaps most tellingly, he tells Chippeway to take down his Facebook account, and deletes his own shortly after the shooting, something that the trier of fact could certainly perceive as an attempt to destroy evidence of his involvement in the shooting. [ 37 ] The Crown also reminded the court that Leclerc, in his statement to police, informed that he had seen a gun in St.

Paul’s possession “last February”, the date being only one to two months before the shooting. This is more information that a trier of fact could

use to conclude that St. Paul was fully involved in the shooting. [ 38 ] Defence argued that the court should overlook St. Paul’s Facebook post respecting his need for a gun, the suggestion being that such evidence could lead to an inaccurate and speculative conclusion that he got one and used it in the shooting. The Crown rebutted by noting that this was for the trier of fact and not this court to determine as the concerns went to weight and not admissibility of the evidence. The Court agrees with the prosecution in such respect.

Ashley Bezecki [ 39 ] The Crown contends that Ashley Bezecki was also part of the group that conspired to lure Shania Chartrand to a place where they could shoot her and submits that there is unequivocal evidence before the court which establishes her presence at the shooting. [ 40 ] The Crown relies on the testimony of Tiara Levasseur as well as a video statement that was tendered by virtue of s. 715(1) of the Criminal Code and as such is to be accepted as evidence in these proceedings. In that evidence, Ms.

Levasseur describes having been in the presence of Bezecki on three separate occasions shortly after the shooting and another time the day prior thereto, when Bezecki had shown her a handgun. On two of those occasions Tyrone Chippeway was also present. Levasseur said she had known him for a couple of years - that he had been a friend’s boyfriend. [ 41 ] In terms of Bezecki’s comments described by Ms. Levasseur, the Crown contends that because she didn’t refute them, they amount to admissible adoptive admissions to participation in the shooting of the victim. Ms.

Levasseur stated that the day after the incident, Chippeway repeatedly uttered words to the effect that she, Bezecki, “didn’t have to do that”, and Bezecki had responded “she deserved it” (Levasseur Statement, page 22, line 17-19). [ 42 ] The Crown also reminded the court that this happened on more than one occasion and that on the third occasion, as described by Ms. Levasseur, Chippeway is reputed to have asked Bezecki, “Why did you have to shoot her in the chest?”, to which Bezecki responded “Well, she shouldn’t have greased me for drugs and money.

She got what she deserved.” Levasseur clarified in her statement and testimony that they were referring to “Nia” throughout these exchanges, or that Chippeway used the phrase “my cousin” at other times - “Nia” being another nickname of Shania Chartrand (Levasseur Statement, pages 33-36). [ 43 ] The Crown argued that Ms.

Bezecki’s use of the collective term “we”, demonstrates that other persons were involved in the planning and commission of the act, providing more evidence of a collaborative conspiracy to shoot the victim. [ 44 ] The Crown points out that while Bezecki’s role may be “undefined”, it is still clear from her responses to Chippeway, as recounted by Ms. Levasseur, that she was seemingly present and fully involved.

The Crown also reminded the court that Bezecki’s expressed pleasure with the shooting, suggests her full complicity in the plot. [ 45 ] Defence suggested that the court should conclude that there was no basis for Bezecki being identified as the person who made the “She got what she deserved” and “She shouldn’t have greased me for drugs and money” comments. Defence argued that Ms. Levasseur had conceded not having actually seen her face on this occasion and identified her only by voice.

The Crown took the position that Levasseur had been in Bezecki’s company three times within a couple of days and had provided evidence to police investigators that Bezecki had a distinctive “high pitched voice.” The Crown contended that this evidence was inferentially supportive of Levasseur’s identification of Ms. Bezecki, another inference which the court must perceive as favourable to the Crown, because this matter is a preliminary inquiry and not a trial. [ 46 ] Bezecki was also identified in court by the witness Tiara Levasseur.

While defence counsel argued that there was some ambiguity in her dock identification, I disagree. Although she may not have looked directly at the accused when pointing her out, she was clearly not pointing at Ms. Sorokowski, or the uniformed Sheriff seated directly next to her. There was no one else in that corner part of the courtroom and as such I am of the view that defence’s argument in this respect is simply devoid of any air of reality. Defence also cited Levasseur’s failure to identify Bezecki’s photo in a police photopack.

The court is of the view that the “missed” photopack identification in her video statement taken a year after she had seen Bezecki is, in the over-all circumstances of the case, not something that I can “weigh” at this stage of proceedings. CONCLUSION [ 47 ] The court has carefully reviewed and considered all the evidence. The court is aware that some evidence was inconsistent with the general evidence received. However, as I have previously mentioned several times, the court must generally not weigh such evidence as this is a preliminary hearing and not a trial.

In this case, as pointed out by the Crown, there are numerous substantial connections made between each accused at the material time. Some of this is supported by circumstantial evidence. The court is aware that there is a crucial distinction between a reasonable inference in such respect and impermissible mere speculation, which cannot be relied upon as the basis for a reasonably drawn inference.

Keeping this in mind, the court is of the view that collectively speaking, and on an individual basis, there is ample evidence to meet the appropriate test for the committal of all four accused on charges of second degree murder. “Original signed by:” CORRIN, P.J.