As testimony in Philip Butler’s trial wrapped up Friday, the charges against him dropped from three to two.
Crown prosecutor Alanna Dwyer said she had no issue with defence lawyer Tim O’Brien’s request for an acquittal on a charge of breaking and entering with the intention to commit a crime, on the grounds that there wasn’t enough evidence to suggest Butler was guilty.
Whether or not he committed a crime in the home after having been invited inside is still a matter for the court.
Dwyer says there is evidence to suggest Butler seriously attacked a man, Carl Scott, in the C.B.S. apartment of two mutual friends over a $90 drug debt.
O’Brien says there’s not, and even if Butler had been there, there’s no proof he had a part in the beating.
Earlier in the week, Scott testified he had been visiting friends in their apartment on April 30 of last year, and had been sitting in their living room when he heard Butler, Mike Royle and a man he didn’t know enter the kitchen behind him. He owed Butler $90 for cocaine, he said, and he heard Butler ask where his money was.
Scott said Butler, Royle — who was also charged in connection with the incident — and the other man came into the living room and he and Butler argued over the money, which he didn’t have. He said the argument moved into the kitchen before Royle and the unidentified man forced him outside into the stairwell.
Scott said the men beat him as his two friends yelled for them to stop, leaving him with a broken hand, multiple facial fractures and a laceration on his cheek that required stitches. He told the court he wasn’t sure if all three men had attacked him or not. They gave up and left when they saw he was bleeding, he said.
DNA on a cigarette butt found on the kitchen floor proved to be a match for Butler. He was charged months after the assault and was at that time already in prison, having been charged with murdering his older brother, George, in May. Police had gone to Butler’s C.B.S. home on May 21 in response to a call, and had found George dead inside. Butler was arrested at the scene and has been in custody ever since, as the murder case makes its way through the courts.
At trial this week, O’Brien implied the unidentified man involved in the attack on Scott could have been George, and he questioned genetics expert Melanie Green of the RCMP’s national crime lab, on the possibility of non-twin siblings sharing the same DNA profile. Green said it was highly unlikely but not impossible in theory.
The couple who lived in the apartment where Scott was attacked had been subpoenaed to testify on Wednesday, but called ahead to say they wouldn’t be coming. Judge Mike Madden issued warrants for their arrest and they each took the stand Friday. One testified she couldn’t remember anything from the night in question; the other said Butler had not been in the apartment at all that night, but they were friends and he had been there in the past.
In her closing submissions, Dwyer urged Madden to convict Butler, saying the DNA evidence and Scott’s testimony are enough to prove him guilty.
“Even if Mr. Butler didn’t participate in (the attack), he was a party to the offence,” she said. “The Crown’s submission is that Mr. Butler was at the house that night to collect money and to assault Mr. Scott if that money was not collected. Even if he was not involved, the assault was at his request. There really is no other reason for it.”
O’Brien pointed to issues with Scott’s testimony, including his inability to give details about what Butler had been wearing, anything else he had said, how they knew each other and whether or not he had participated in the attack. Some of Scott’s testimony seemed to be intentionally misleading, O’Brien said.
“The presence of the cigarette butt isn’t evidence that Mr. Butler was at the house that night,” O’Brien said. “Even if the court accepts he was there, just because he was present doesn’t mean he was liable.”
Madden will deliver his verdict March 5.
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Twitter: @tara_bradbury
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