'A violent, unpredictable struggle': Closing arguments conclude in Windsor Ont. murder trial

WARNING: Contains graphic content

Frederick Leon has pleaded not guilty to one charge of second-degree murder in the death of Jovan Burgher, 30.

He died in hospital after being involved in a fight with Leon and co-accused Prince Charles on May 18, 2021, at a home on McEwan Avenue.

Closing arguments started Wednesday morning with defence lawyer Morrie Luft and concluded late in the afternoon by Assistant Crown Attorney Iain Skelton.

Was it self-defence?

“Remember, this isn’t a tea party. It’s a violent, unpredictable struggle to disarm an individual who has already used a firearm in an attempt to kill Mr. Leon,” Luft said.

In his own words, Leon admitted on the stand that he was involved in a fight with Burgher, but only in self-defence.

The jury learned the Brampton man was illegally in Windsor at the time of the incident, awaiting trial for drug trafficking.

Leon told the jury as soon as he entered the kitchen of the McEwan Avenue home, Burgher pointed a gun at his face and fired. The shot missed, but Leon told the jury his ears were ringing.

Luft wants the jury to consider Leon’s actions were one of self-defence as he tried to “wrestle” the gun out of Burgher’s hands in a fight that ultimately ended outside.

“You should have doubt as to whether Mr. Leon caused Mr. Burgher’s death,” he said.

The defence position is that Leon was “not a significant contributing cause” of Burgher’s death.

Co-accused more culpable

Co-accused Prince Charles, according to the defence, arrived at the home to see his cousin (Leon) struggling for a gun, so he ran to help.

“He (Charles) knocks Mr. Burgher to the ground, disarming him of the firearm,” Luft said. “Mr. Burgher is on the ground. Mr. Charles then strikes Mr. Burgher at least four times, causing the blood staining on the window.”

Luft says both men leave the scene at this point, while Burgher struggled to get back into the house and ultimately fell in the backyard.

Luft reminded the jury Burgher suffered “hemorrhagic shock” because of a serious head injury. He died five days later in hospital of “multi organ failure,” according to forensic pathologist Dr. Michael Shkrum.

The defence further argued if Leon was actively involved in assaulting Burgher, he would have had more blood on his body, which would have transferred to the car he used to drive away.

A forensic search of that vehicle only discovered two small blood droplets.

The Crown argued at trial, according to Luft, a lack of injuries to Burgher’s knuckles “means this was a one-sided fight.”

“It’s our submission Mr. Burgher was not using his knuckles to fight because he was using a gun,” Luft said. “If Mr. Burgher was disarmed early, as the Crown is going to suggest to you, wouldn’t we expect to see some injuries to his knuckles as he would have been using his hands to fight?”

“Unreliable” eyewitnesses

Luft spent a significant portion of his closing in dissecting the evidence of eyewitnesses, all of whom he referred to as “unreliable” for many reasons.

Not only did the eye witness accounts change over time, Luft asked the jury to consider at least three of them admitted in court they discussed the “traumatic event” they witnessed amongst themselves.

Another witness told the court he made assumptions about what happened, in the days and weeks after the incident.

“His (the witness) tendency to change his answer from question to question, a lack of effort he made to give a proper account are all signs of a gravely unreliable witness, boarding on dishonesty,” Luft said.

Finally, one witness told the jury he saw Burgher being stabbed by either Leon or Charles.

According to the autopsy, Burgher was not stabbed at all.

Or was it murder?

Assistant Crown Attorney Iain Skelton conceded the incident started as self-defence after Burgher aimed and shot a gun in Leon’s direction in the kitchen.

“Mr. Burgher was not blameless,” Skelton told the jury. “His actions were extremely dangerous and would have been worthy of criminal sanction.”

However, Skelton believes the situation changed once the fight moved outside and there Leon showed a “wanton disregard” for Burgher’s life.

"By the time the parties reached the porch stairs, Mr. Leon had possession of the gun. Once the gun had changed hands, Mr. Leon was no longer acting in self-defence,” Skelton argued. “He'd become the aggressor.”

Leon testified to being “terrified” during the seven-minute long fight with Burgher.

Skelton reminded the jury Leon never called for help even though the fight was in daylight, in a residential neighbourhood where others would likely have heard a cry for help.

The jury has heard a lot of evidence about blood evidence at the scene - particularly outside, against the concrete foundation - where the Crown believes Burgher sustained the most serious blows.

A forensic identification expert told the jury a significant pool of blood was discovered, indicative of Burgher being in the same place for a prolonged period of time.

But Leon told the jury Burgher falling against the concrete foundation, letting go of the gun, and them leaving the scene was only a few seconds.

Skelton asked the jury to use common sense; how could a large pool of blood get there if Burgher was only incapacitated for a brief period of time?

The autopsy showed Burgher lost 45 to 55 per cent of the blood in his body and ultimately died of complications from hemorrhagic shock.

In an effort to rehabilitate the eyewitness accounts, Skelton reminded the jury none of them knew the accused or the victim and all were faced with a “traumatic event” that was startling, not to mention it happened more than three years ago.

Skelton also told the jury there was a very big difference between colluding against an accused, and talking to each other in the moments after the crime.

The jury was permitted to go home Wednesday night. They will receive their legal instructions – known as the jury charge – Thursday morning by Justice Brian Dube before being sequestered until they reach a unanimous verdict.