BURSTFew North Okanagan criminal trials in recent memory have captured the attention of the public more than the case of Vitali Stefanski.
On June 26, a judge and jury found the 49-year-old guilty of fatally stabbing his ex-wife and mother of his two children, Tatjana Stefanski, after he’d pushed her into his sports car outside her Lumby home and drove away with her on April 13, 2024.
A sprawling month-long trial received widespread media and public attention earlier this year, and saw Vitali take the stand to offer a murky account of what he claimed happened to Tatjana, replete with evasions and contradictions, which the jury ultimately found unconvincing judging by its swift guilty verdict.
Having been found guilty as charged of second-degree murder, Vitali now faces life in prison. It will be up to Justice Brad Smith to determine his parole eligibility at sentencing, which is scheduled for Nov. 12 and 13.
Among observers of the case, one question has seemed to loom large: Why was Vitali charged with second-degree murder instead of first-degree?
The different murder charges come with different ramifications, after all. First and second-degree murder convictions both come with a mandatory sentence of life imprisonment in Canada, however, parole eligibility can differ significantly between the two. Those convicted of first-degree murder have to serve at least 25 years before they can apply for full parole. For second-degree, they must serve between 10 and 25 years, with the exact number to be decided by the sentencing judge.
Jason Gaudreault, Tatjana’s partner, was vocal about his belief that Vitali should have been charged with first-degree murder, and advocated for his charge to be upgraded in the months and years leading up to the trial.
So, why wasn’t Vitali Stefanski charged with first-degree murder?
It’s a question that can’t be definitively answered — but there are rules, principles and conventions in the legal system surrounding charge approval that are worth explaining in light of that question.
The Morning Star spoke with a local criminal defence lawyer with nearly two decades of previous experience as a prosecutor, as well as the BC Prosecution Service, to explore the factors that influence which murder charge is pursued when a killing goes to the courts.
Neither the lawyer nor the Prosecution Service could speak directly to the Vitali Stefanski case. As such, their comments only reflect charge assessment and approval tendencies in B.C. in general.
Homicide 101
There are several different types of homicide, the legal term used when a person causes the death of a human being.
Murder is defined in the Criminal Code as a culpable homicide where a person means to cause the death of another person, or means to cause bodily harm knowing it is likely to cause death.
For a murder to be considered first-degree, it must be established that it was planned and deliberate. Damienne Darby, communications counsel with the BC Prosecution Service, explained there are other pathways as well, such as when the murder is contracted, when it occurs during the course of certain other offences such as sexual assault, kidnapping or criminal harassment, or when the victim is an on-duty police officer or a prison employee.
Second-degree murder is defined in the Code simply as any murder that is not a first-degree murder — in other words, a deliberate killing but without evidence of planning. Further down the list of serious offences, manslaughter is simply any culpable homicide that is not murder or infanticide.
Police officers don’t lay charges in B.C.; that’s up to Crown counsel. When the time comes for Crown counsel to lay a murder charge, there are a number of considerations at play. Chief among them, said Darby, is this: in order to approve a charge, Crown counsel must be satisfied that there is a substantial likelihood of conviction based on the evidence gathered and submitted by the police.
“A substantial likelihood of conviction exists when there is a strong, solid case of substance on all elements of the offence to put before the court,” Darby said.
The ‘substantial likelihood’ threshold takes into account the presumption of innocence as well as the Crown’s burden of proof, wherein the Crown must prove all elements of an offence beyond a reasonable doubt and disprove possible defences beyond a reasonable doubt.
It’s a high bar to clear when considering what it can take to prove the intent and planning aspects of first-degree murder. And a lot depends on what evidence police officers are able to gather.
“The evidence gathered by the police must support that there is a substantial likelihood of conviction considering all elements to be proven in order for the Crown to approve the charge,” Darby highlighted.
“The Crown cannot charge based on a hope that the accused takes the stand and makes admissions of guilt.”
‘The spirit of the law’
Glenn Verdurmen is a criminal defence lawyer based in Salmon Arm with more than 35 years experience. He started dealing with murder charges with the late Paul Danyliu of Coldstream and has dealt with homicide cases ranging from manslaughter to first-degree.
In criminal matters such as homicides, the charge approval stage imports a high standard of proof, Verdurmen told The Morning Star.
“You have to have a reasonable prospect of convicting a person of the charges,” he said. “That really goes to that very high standard of proof beyond reasonable doubt.”
It’s a much higher burden of proof than the balance of probabilities standard seen in civil courts.
But in B.C., if first-degree murder isn’t established at trial, a conviction of second-degree can still be achieved. The same goes with lesser homicide charges, as a manslaughter conviction can be made in cases where second-degree was sought but not proven. In light of this, some wonder why Crown counsel doesn’t lay first-degree charges more often, knowing that a second-degree murder conviction can still be an alternative outcome.
Verdurmen says while it doesn’t appear to be stipulated in any official Crown directive or code of conduct, this simply isn’t in accordance with the conventions and principles of the B.C. justice system. He mentioned there’s much talk these days about “the art of the deal,” but opined that the provincial court system isn’t transactional when it comes to laying charges.
“It’s this principle that charges should not be laid that there’s not a reasonable prospect of proving,” he said. “I just think it’s the spirit of the law, and sort of a spirit of fairness.”
It is not, in Verdurmen’s opinion, the purview of the Crown to attempt to get a second-degree conviction by charging first-degree and having the accused plead out to the lesser charge.
“I think it comes from a place of principle and ethics and fairness overall,” Verdurmen added. “Is it really fair to someone who has their own liberty at stake if you think, well, maybe I’ll lay the highest possible charge and I’ll get what I want out of it?”
The evidence at hand, unseen by the public until gradually revealed at trial, is another variable to consider.
In the case of Vitali Stefanski, the Crown was able to prove beyond a reasonable doubt all of the elements of the offence that were needed to found a conviction for second-degree murder.
As for whether the Crown could have proved the elements required to establish a first-degree murder conviction, “we’re never going to know,” Verdurmen said.
“There may be a very strong reason somewhere in the Crown’s notes and the police investigation that makes that something that couldn’t be pursued,” he added. “Obviously, there was satisfaction that the mens rea or mental intent of the second-degree murder was there, and it was proven beyond reasonable doubt. That doesn’t mean necessarily that if they could have proven this they could have proven (first-degree). One does not follow the other.”
Verdurmen acknowledged that some degree of “gatekeeping” takes place at the Crown offices, as whether a person is charged with first or second-degree murder does come down to human decision-making. But he said in his career, he’s never felt that cases are being unduly undercharged at a systemic level.
And overall, if a case could go either way, it’s better to undercharge than to overcharge, Verdurmen asserted.
That might not be an opinion shared by most of the public. However, Verdurmen said it’s important to consider how vital the integrity of the court system is, and how necessary it is to separate public opinion from the process.
“You don’t want the desire for punishment to overwhelm or really have that much to do with (the justice system),” he said. “Your sights aren’t supposed to be on what kind of punishment we can get for this person.”
Instead, he said the first question at trial has to be, can all of the elements of the offence be proven?
Without that ethic, due process can erode in a hurry — and Verdurmen imparted that due process is something to be cherished in any legal system.