• Lewis Waring

A Strong Case Based on Circumstantial Evidence - Megan Filyk

On the early morning of October 3rd, 2017, the accused in R v Belyk (“Belyk”) got into the car of Brittany Bung and stabbed her multiple times; these injuries would lead to her death sometime soon after. At first glance, a second-degree murder conviction seemed probable. The facts, however, pointed to Belyk, a decision by the Manitoba Court of Queen’s Bench (“the MBQB”) being more complicated. Eventually, a conviction of manslaughter was reached. In the immediate circumstances around the killing, there was witness testimony stating that Mr. Belyk, the accused, was acting very erratically and unpredictably in the gas station where he first encountered the victim. It was established by the employee of the gas station who served the victim that they did not know the accused, though they were seen speaking at the coffee station prior to the events unfolding.


After this, the accused in Belyk followed the victim to her car and got in. As she began to drive away, he stabbed her multiple times. The car was found on the side of the highway, very near to the Petro Canada where the accused and victim first encountered each other. The victim died on transport to the hospital not long after she was found. The accused had fled the scene and there had been witness reports of him being spotted when several officers of the Royal Canadian Mounted Police (“the RCMP”) found him undressed and hissing at them as they approached with weapons drawn. Numerous accounts of the accused being spotted noted the same odd and erratic behaviour. The evidence used to establish the events in and around the killing was circumstantial, as there was no direct evidence to be analyzed.


The defence in Belyk focused on witness and expert testimonies that pointed toward the accused being an individual who was in an alternate state of mental reality at the time of the event. Mainly, they highlighted the expert testimony of Dr. Cetaruk, a medical toxicology expert and ER doctor. The Crown decided to not concede that the accused was acting in an odd manner, even though this was mentioned by every witness who saw the accused that evening. The Crown instead put forth that the drugs ingested by the accused would have shown up more readily in the toxicology report and downplayed their effects on the accused.


This tactic used by the Crown was essentially hole-poking. Crown prosecutors in Belyk made minor-detail differences in eye-witness accounts out to be a large part of their case, along with the discrediting of the defence’s expert witnesses. The issue at hand was not whether the accused committed the crime; it was whether the requisite mens rea for a second-degree murder charge was present at the time of the killing.


The crucial role of expert evidence


In my opinion, Belyk was a well-decided case based on the evidence. It can't be ignored that a case such as this, where the outcome rests on the ability of the expert witness to convey what the actual state of the accused was at the time of the incident, could be decided very differently if the accused did not have access to such expert witnesses. Immediately this struck me as a potential access-to-justice issue for those who could not afford such aid.


Expert witnesses provide information in a trial for the judge or jury so they can make a better decision on the issue at hand. They are to be impartial and only testify on subject matter that is pertinent to the trial. Although this can be a fantastic resource for a case, the use of – or inability to use – expert witnesses can illuminate an access-to-justice issue within the field of law.


Mens rea issues can often be difficult to establish. Second-degree murder is a specific intent crime, so mens rea has to be proven to have a successful conviction. In Belyk, the analysis was largely centred on the expert testimony of Dr. Cetaruk and Kimberly Snider. This is where the expert testimony became so important, as the physical evidence was lacking for the defence. Immediate testing of certain drugs in the accused’s system was not done at the hospital, so the drug levels would have to have been established after the fact. Such a delay would have rendered any conclusions unconvincing as direct evidence. Dr. Cetaruk was able to show that every witness sighting of the accused, along with the accounts of drug intake and sleep deprivation, were consistent with a diagnosis of either cocaine-induced psychotic disorder (“CIPD”) or substance-induced psychotic disorder (“SIPD”). Ms. Snider explained how certain drugs, like cocaine and methamphetamine, leave the bloodstream quickly. She went on to explain that though drugs may be present in someone’s system in smaller amounts, they may be experiencing psychosis after the fact.


The degree of intoxication, and being able to prove that, is the difference between Belyk being decided as manslaughter or second-degree murder. The importance of these two witnesses could not be understated. Of course, the other witness testimonies did paint a picture of odd behaviour. However, without the evidence that this was in fact caused by sustained drug use and sleep deprivation, the Crown’s method of hole-poking may have worked better on the witness accounts. The Crown attempted to convey that the accused specifically targeted the victim, as she was the only female at the gas station, yet stated that in general the crime committed by the accused was a common intent crime. The analysis included many possibilities of why the accused was in an altered state of mind, incapable of having the specific intent necessary for a conviction of second-degree murder, so the MBQB in Belyk decided that the Crown did not meet their burden of proving guilt beyond a reasonable doubt. I would consider the expert witnesses’ testimonies to have been crucial in the decision of manslaughter. This begs the question of what to do if one is unable to afford such a defence?


Expert evidence key to manslaughter conviction


Without the ability to call on expert witnesses in Belyk, there would not have been evidence to show the likelihood that the accused was either suffering from SIPD or CIPD. The analysis was largely centered on the evidence provided by Ms. Snider and Dr. Cetaruk, although the eye-witness testimony did point to the odd behaviour of someone not being aware of their surroundings or their actions. If this had been the extent of the evidence put forth by the defence, the Crown in Belyk would have had a better time in convincing the MBQB that, although the accused was frightened, he carried through his plan of killing someone.


However, one major element of the Crown’s case was to show the inconsistencies in the multitude of eye-witness accounts of the accused. They mainly centered on the individuals who the accused was with prior to the killing, the Disbrowes and Mrs. Young. The MBQB found that the testimony of these witnesses may have contained minor inconsistencies but that the overall picture of the dissociated state that the accused was in was present in every account.


The use of circumstantial evidence in Belyk was extremely thorough and, considering there was no direct evidence to gain insight into the intent for this crime, it was crucial in deciding the case. Had it not been for the expert witnesses, the case for the defence would have been weaker. Though this was a tragic event, there could not have been a second-degree murder conviction without the presence of specific intent. The Crown in Belky based their case on dismantling the case the defence put forth, and I believe this was the best tactic they had at their disposal. In the end, it seems that a thorough trial had occurred in Belyk, ultimately leading toward a properly rendered conviction for manslaughter.




Check out the Robson Crim MLJ
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