NEWS
03/31/2016 15:27 EDT | Updated 04/01/2017 01:12 EDT

First-degree murder charge reinstated in case of Toronto sex worker's death

TORONTO — Ontario's top court on Thursday ordered a man to stand trial for first-degree murder in the case of a woman found dead with semen in her mouth.

In agreeing with the prosecution, the Ontario Court of Appeal found a lower court justice was wrong to commit Blake Wilson to a trial for second-degree murder — when a preliminary inquiry judge had already decided it was a first-degree murder case.

According to court documents, firefighters found 72-year-old Janina Wrigglesworth in her north-end Toronto apartment on an afternoon in July 2013. She had died of a violent neck compression before three deliberately set fires broke out inside. A man's bodily fluid was in her mouth.

Police charged Blake, then 26, with first-degree murder on the grounds that he had killed Wrigglesworth during a sexual assault.

A preliminary inquiry judge committed him in September 2014 to stand trial on first-degree murder, but Blake appealed. In November, Superior Court Justice Nola Garton decided no evidence was available to prove the victim — a sex-trade worker who also helped people prepare tax returns — had not agreed to the sexual contact.

In her decision, Garton said consent could be inferred from, among other things, that the suspect might have gone to the apartment for sexual services in response to a magazine advertisement. There was no sign of forced entry into the home. 

"Simply put, she found there was no evidence to bridge or link the act of violence to the sexual act," the Appeal Court said. 

As a result, Garton ordered Blake to stand trial on second-degree murder, prompting the prosecution to appeal.

The only issue on appeal was whether any evidence existed that a sexual assault had in fact occurred. Under the Criminal Code, when someone is killed during a sexual assault, a first-degree murder charge is automatic.

In reviewing Garton's decision, the Appeal Court said it was not up to her to reweigh the evidence presented at the preliminary inquiry but could interfere only if the judge made a jurisdictional error — such as committing an accused to trial when an essential element of the offence was unsupported by the evidence.

"That does not entail the reviewing judge asking whether she would have arrived at a different result," the Appeal Court said. "A preliminary inquiry judge's determination is therefore entitled to the greatest deference."

The Appeal Court determined that the judge at the preliminary inquiry did not exceed his jurisdiction because some evidence existed that the sexual encounter between accused and victim had not been consensual.

As a result, the court said, Garton had gone too far and set aside her decision.

Colin Perkel, The Canadian Press