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Judge rules masked shooter's companion not guilty of attempted murder

But he is guilty of aggravated assault and several other charges
A Sault Ste, Marie Police Service cruiser sits between two Wellington Street East homes in this Thursday, Oct. 23, 2014 file photo. Michael Purvis/SooToday

A judge has found Michael Bjornaa not guilty of attempted murder for the part he played in a shooting that occurred nearly three years ago in what was described to the court as Sault Ste. Marie's violent drug subculture.

Superior Court Justice Ian McMillan also acquitted him last week on a charge of using a firearm while committing the indictable offence of unlawfully being in a dwelling.

However, he convicted Bjornaa of other counts stemming from the Oct. 22, 2014 incident where his co-accused shot the victim a dozen times with a handgun at a Wellington Street East residence.

These offences included aggravated assault, discharge of a firearm with intent, unlawfully entering a dwelling to commit an indictable offence, administering a noxious substance (pepper spray) and breach of a weapons' prohibition.

During a four-day trial in May, McMillan heard Bjornaa was with Daved Nadon when he fired numerous shots at Jayme Carlson (Bellerose), inflicting 12 wounds, mainly to his abdomen and pelvic region.

Nadon pleaded guilty last year to attempted murder and seven other related offences. He is serving a 10-year penitentiary sentence.

Carlson was prosecutor Dana Peterson's key witness, and McMillan noted in his 10-page decision that he was mindful that the individuals he heard testimony from were "the product of the illicit drug culture."

But he decided, not withstanding "legitimate concerns" expressed by defence lawyer Don Orazietti, he found Carlson's evidence to be "generally credible" and his testimony responsive and unguarded.

"He readily acknowledged that he was in part blameworthy for the course of events leading up to the shooting, including his criminal acts," the judge said.

"He viewed this unfortunate event to have had a positive result in turning his miscreant lifestyle around."

McMillan said it is clear from the evidence, and with both counsel agreeing at the beginning of the trial, that with two possible exceptions, the accused was not the principal or perpetrator in the acts and his jeopardy, if any, would be limited to that as a party.

"I am not persuaded beyond a reasonable doubt that Bjornaa did or failed to do anything for the purpose of aiding Nadon to shoot Bellerose (Carlson) or that he encouraged Nadon to shoot him."

It was neither "coincidence or happenstance" that Nadon (armed with a handgun) and Bjornaa (with the pepper spray) went to the residence, the judge said.

The only reasonable inference is that the pair were there to impart physical retribution on Carlson, to "tune up" the man they believed had stolen drugs from Nadon's mother Bernie Nadon.

Bjornaa was with Nadon outside the doorway of Carlson's bedroom and engaged him in conversation while Nadon remained out of his line of sight, McMillan said, calling this evidence Bjornaa was assisting his co-accused. 

Two offences were committed — Nadon shot and wounded Carlson and Bjornaa attempted to pepper spray him. 

The judge said there was no direct evidence that Bjornaa knew, or ought to have known, in advance, that Nadon was armed with a handgun nor that he would probably shoot Carlson.

There was "no evidence before me to establish beyond a reasonable doubt that Bjornaa formed a specific intent to kill Bellerose (Carlson)," McMillan said when he found Bjornaa not guilty of attempted murder.

He concluded Bjornaa is guilty, as a party, of wounding Carlson, and convicted him of aggravated assault.

When he found Bjornaa guilty of discharging a firearm with intent, McMillan said the accused was aware that while standing next to Nadon, who was wearing a skeleton mask and holding a handgun, that Nadon intended to use the firearm and cause injury.

Bjornaa was convicted because he had a common intention with Nadon to harm Carlson.

He also was found guilty of breaching his firearm prohibition because he was guilty, as a party, of firearm-related offences.

Bjornaa was jointly in possession of Nadon's gun when Nadon began firing it, McMillan said.

Bjornaa will return to court Aug. 23.

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