This week’s top three summaries: R v Wise, 2022 ONCA 586: s.8 #warrant grounds, R v Murphy, 2022 ONCA 615: HIV and #consent, and R v Singh, 2022 ONCA 584: constructive 1st deg #murder.
This week’s top case deals with reasonable grounds necessary for a search warrant per s.8 of the Charter. For great general reference on the law of search and seizure, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Search and Seizure
By David Schermbrucker, Randy Schwartz, Mabel Lai, & Nader Hasan
R v Wise, 2022 ONCA 586
[August 15, 2022] Charter s.8 – Warrants – Within the Realm of Possibility is not Reasonable Grounds [Reasons by J. George J.A. with G.R. Strathy C.J.O. and S. Coroza J.A. concurring]
AUTHOR’S NOTE: In a case with some circumstantial evidence suggesting animus to the deceased, contact with his possessions sometime after his death, a bullet hole in his garage and unidentified remains of blood on his truck the police ran into evidence they thought supported a suspicion that the accused in this case was a serial killer. To get a search warrant they leaned on expert evidence of serial killers keeping souvenirs from their kills. The expert opined within the ITO that “It is within the realm of possibility that [the respondent] still possess[ed] personal items that belong to COLLISON, or other alleged victims”. At trial, the judge found there was no reasonable grounds established within this ITO and excluded evidence obtained by the search. The Court of Appeal upheld this decision. This case provides a good example of the kind of language used by police to try to get a warrant that in reality signals their “grounds” are nothing more than suspicion.
[1] The respondent is alleged to have murdered Raymond Collison (“Collison”) at some point between 2009 and 2014. He was initially charged with first degree murder, but ultimately stood trial for second degree murder. A jury found him not guilty. The Crown now appeals, raising these three grounds: 1) the trial judge’s inquiry into discharging a juror breached the secrecy of the jury’s deliberations and necessitated a mistrial; 2) the application judge erred in her analysis under s. 8 of the Canadian Charter of Rights and Freedoms and by excluding evidence under s. 24(2) of the Charter; and 3) the application judge erred by excluding evidence under the hearsay rule….
[3] For the reasons that follow, I would dismiss the appeal.
BACKGROUND
[4] The respondent and Collison lived in the same rural community. In 2009 Collison went missing. Five years later his skeletal remains were located in a culvert close to the respondent’s residence. Collison had been shot once in the back of the head, and four times in the back. During the police investigation it was discovered that the respondent harboured negative feelings toward Collison which led to the respondent quickly emerging as the primary suspect. Evidence of animus included the respondent telling a friend that he did not want Collison “around anymore”; that Collison was a “pest”; and that he was “sick and tired” of Collison and his drinking. Also, shortly before his disappearance, Collison, while visiting the respondent’s landlady, stated to a friend that the respondent (who was in their view and operating a riding lawn mower) “told him ‘he didn’t want him to come around anymore’”.
[5] The Crown’s case was entirely circumstantial. The physical evidence implicating the respondent included the following:
i) A “Dayco Top Cog” automotive belt, threaded through a metal shackle, was found with Collison’s remains. This same type of belt was found in the respondent’s garage, and had not been manufactured in Canada for over twenty years.
ii) The respondent’s landlady owned a car on which this belt could be used.
iii) During a search of the respondent’s garage, a police officer observed a bullet hole in the wall at the height of the officer’s chest. While there was insufficient DNA for identification, there were chemical indications of blood along the same wall as the bullet hole.
iv) Police located the truck the respondent had been driving at the time of Collison’s disappearance, in which there were chemical indications of blood, including on the bumper and tailgate. The tailgate stains were confirmed to be human blood.
[6] At trial, the Crown also relied on the respondent’s post-offence conduct, including the following:
i) When Collison went missing, the respondent began making jokes and spreading rumours about him. For instance, he told people that Collison had been seen, alive and well, in various locations.
ii) The respondent changed his truck’s licence plates, and then sold it shortly thereafter (even though he had just purchased it four months prior).
iii) The respondent took and sold Collison’s trailer as well as a truck that had been in Collison’s possession.
iv) The respondent was untruthful to the police during their investigation. For example, he claimed to not know Collison, which was untrue. He told the police that he had burned Collison’s trailer which, of course, was untrue as he had taken possession of and sold it.
DECISIONS BELOW
Pretrial Applications
a. Pretrial Ruling on the ss. 8 and 24(2) Charter Application
[8] In October 2014 the police obtained, and executed, a general warrant that authorized a covert entry into the respondent’s residence. Nothing was seized but several items were photographed, including what was described as a composition book with pages removed. Approximately two years later, after the respondent was arrested, the police obtained a search warrant which led to the seizure of the composition book as well as a weekly planner. A forensic examination of the book determined that a two-page map with circled X’s had been ripped out. The police theory was that this map revealed the location of Collison’s remains, as well as the locations of other suspicious deaths and known homicides.
[9] The application judge found that the 2014 general warrant, and subsequently obtained 2016 search warrant, should not have issued, and that, therefore, the police violated the respondent’s rights under s. 8 of the Charter. She found that “the ITO did not contain sufficient credible and reliable evidence to permit an issuing justice to authorize the warrant”….
B) Did the application judge err in finding a s. 8 Charter violation? If not, did the application judge err by excluding the evidence pursuant to s. 24(2)?
Section 8
[34] The application judge held that the 2014 ITO did not disclose reasonable grounds to believe that information about the murder would be found at the respondent’s residence. She found that some grounds specified in the warrant relied on dated information and that others were either open to competing inferences or did not rise above reasonable grounds to suspect. She held further that the 2014 ITO was deficient in establishing that the affiant had a subjective belief that the items he described would be located at the respondent’s residence. The 2016 ITO included information from the 2014 ITO, as well as information obtained from the execution of the 2014 general warrant. The 2016 ITO also included additional information, including the discovery of blood in the respondent’s truck and the bullet hole and blood in his garage. However, the application judge held that once the information obtained from the 2014 general warrant was excised, there were insufficient grounds to issue the 2016 search warrant, as none of the additional information was cited by the affiant as augmenting the grounds to believe that the items sought would be at the respondent’s residence.
[35] The Crown submits that whether the warrants in this case could have issued is a question of law for which there can be only one right answer, and that the application judge got it wrong….
[36] I disagree. It was evident that there were gaps in the information available to the police, which the 2016 affiant attempted to fill by including the expert opinion of forensic psychiatrist Dr. Collins, who was asked to provide an opinion on whether the respondent would still be in possession of “souvenirs” belonging to Collison. Dr. Collins submitted that if the respondent was responsible for the murder of Collison, then he “would be regarded as a serial killer.” Dr. Collins opined that, “It is within the realm of possibility that [the respondent] still possess[ed] personal items that belong to COLLISON, or other alleged victims”, in addition to news items, journals or books relating to the crimes or serial killers. The 2016 ITO, and success of the warrant application, clearly hinged on this evidence, which was premised on: 1) the respondent being a serial killer; and 2) the probability that a serial killer would keep “souvenirs” of his murders. The conclusion the affiant was attempting to have the issuing justice draw – that the respondent was likely to have kept evidence of Collison’s murder (and of other murders) – depended on both of these being established. The Crown argues that several other factors supplemented the expert’s opinion, such that the 2016 ITO, taken and read as a whole, established a credibly-based probability that evidence of Collison’s murder would be found at the respondent’s home. This included the fact that the respondent took Collison’s truck and trailer and lied to the police about it; displayed an interest in Collison’s disappearance; and was fascinated by the habits of serial killers, in the 1980s.
[37] However, the 2016 ITO did not give rise to reasonable and probable grounds to believe that the respondent was guilty of any other murder, or that serial killers would probably keep “souvenirs” of their murders. When one considers what the expert was asked to provide an opinion on – whether a suspect in the disappearance and death of Collison would still be in possession of some of Collison’s items – all the expert could say is that it was “within the realm of possibility”. The additional factors relied on by the Crown do not give rise to reasonable and probable grounds to believe that the respondent kept “souvenirs” of Collison’s murder, given that the evidence indicated only that he had a recent copy of a local newspaper, which, as the application judge recognized, was not unusual, and that the respondent sold Collison’s truck and trailer.
[38] …Absent an error of law, a misapprehension of evidence, or a failure to consider relevant evidence, an appellate court should decline to interfere with a reviewing judge’s decision: R. v. Sadikov, 2014 ONCA 72, 305 C.C.C. (3d) 421, at para. 89.
[39] I see no basis to interfere with the application judge’s decision on the s. 8 Charter application.
Section 24(2)
[40] In the alternative, the Crown argues that the trial judge committed reversible errors in her assessment of the first Grant factor – the seriousness of the state’s Charter-infringing conduct – and that the map should not have been excluded. The Crown submits that the trial judge failed to follow the approach mandated by this court in R. v. Rocha, 2012 ONCA 707, 112 O.R. (3d) 761, which held that unless a warrant was obtained through “false or deliberately misleading information”; the drafting of the ITO “subverted the warrant process”; or the ITO was otherwise misleading, the warrant process “tells in favour of admitting the evidence”….
[41] An application judge’s decision to exclude evidence under s. 24(2) is entitled to deference. In the absence of an error of law, a misapprehension of evidence, a failure to consider a relevant factor, or an unreasonable finding, this court should not interfere: R. v. Muddei, 2021 ONCA 200, 155 O.R. (3d) 271, at para. 74. In this case, the application judge noted that the breach was rooted in the insufficiency of the ITO; cited this court’s guidance in Rocha that trial judges should determine whether the ITO is misleading and, if it is, to situate it on the spectrum of conduct; and she considered where to place the breach on that spectrum. The application judge held that the breach was neither the product of a drafting error, nor a decision made quickly in light of public safety issues. Given “the global deficiency in the grounds set out in the ITO”, the police did not act in good faith, and the state conduct was serious. The application judge did not misapply Rocha and her findings were well supported by the record. The application judge found that the ITO was poorly organized and strewn with errors, and contained expert opinion that relied on a police assertion that the applicant kept souvenirs in the past, without including evidence to support that assertion. In addition, the police “souvenir” theory was contradicted by the fact that a search warrant was executed on the respondent’s home in 1987 – after he, on the Crown’s theory, murdered other people – which “turned up nothing of evidentiary value”. I therefore see no reason to interfere with the application judge’s conclusion.
[42] Further, to succeed on appeal, the Crown must establish that any error had a material bearing on the acquittal: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609, at para. 14. Put another way, the Crown must satisfy this court, with a reasonable degree of certainty, that the outcome may well have been affected by the error: Graveline, at para. 15, citing R. v. Morin, [1988] 2 S.C.R. 345, at p. 374….
…The parties on appeal agree that trial counsel discussed how the map might be presented to the jury, and that if the map was admitted, the trial Crown would have sought to call evidence to identify the “X” marking at the location proximate to Collison’s body, but likely would not have sought to lead evidence identifying the other “X” markings. That being the case, the respondent argues that any error in excluding the map would not be material to the verdict. The respondent characterizes the issue in this way at para. 83 of his factum:
Here, the two-page “map” includes 54 circled “X” markings, overlaid on what is arguably a map of the area around the Respondent’s home. One of the X’s arguably corresponds with the area in which Collison’s remains were discovered…. But absent evidence about the meaning of the other 53 markings, it is difficult to see how the jury could have legitimately used this evidence to draw any meaningful inferences about the Respondent’s guilt. Collison’s remains were found close to the Respondent’s home, and there are numerous “X” marks all around this area. Since the jury would have been precluded from inferring that this was a map marking various crime scenes, it is difficult to conceive what they could have legitimately understood the single relevant “X” to mean. At its highest, this was another wisp of ambiguous circumstantial evidence in an already weak circumstantial case. It’s likely impact is, at best, unclear.
[43] I agree. As such, there is no merit to this ground of appeal, and I would accordingly reject it.
CONCLUSION
[48] For these reasons, I would dismiss the appeal.
R v Murphy, 2022 ONCA 615
[August 29, 2022] Consent and HIV Status – Near Zero Viral Load and No Condom Use [Reasons by J. Copeland J.A. with Doherty and L. Favreau J.A. concurring]
AUTHOR’S NOTE: With the release of R v Kirkpatrick, 2022 SCC 33 it seemed that nearly anything that was not consented to during the act of sex could be used to invalidate consent otherwise expressed and given. This decision cracks to door back open a touch. Reversing a 2013 conviction on the basis of advances in science about the transmissibility of HIV without condom use with low viral load, the ONCA confirmed in this decision that not all aspects of sexual acts have to be known to both parties for consent to be valid. No doubt, this debate will continue.
OVERVIEW
[1] The appellant was convicted of one count of aggravated sexual assault in 2013. The conviction arose from a single incident of vaginal intercourse with the complainant in 2011. The basis for the conviction was that the complainant’s consent to the sexual act was vitiated because the appellant did not disclose her human immunodeficiency virus (“HIV”)-positive status and a condom was not used. The trial judge accepted the complainant’s evidence that he would not have consented to the sexual intercourse if he had known that the appellant was HIV- positive.
[2] At trial, there was an agreed statement of facts in relation to the appellant’s treatment for HIV and her viral load over time. The agreed facts included that the appellant had been on antiretroviral treatment (“ART”) since 2001. Her ART regime was modified in 2005 and at that time her viral load was brought down to undetectable. At dates before and after the sexual contact with the complainant, including very close in time to the sexual contact, testing showed that the appellant’s viral load was undetectable. There was also expert evidence in relation to the appellant’s viral load. The trial judge found that at the time of the sexual intercourse with the complainant the appellant’s viral load was undetectable and she was on ART.
[3] Based on the expert evidence before him, which was based on the state of the science at that time and the decision in R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, the trial judge found that consent was vitiated by fraud because the appellant did not disclose her HIV-positive status and a condom was not used. In the circumstances, he found that there was a realistic possibility of HIV transmission from vaginal intercourse.
[4] The science in relation to HIV transmission has evolved since the appellant’s conviction and since the decision in Mabior….
[5] The appellant asks this court to admit fresh expert evidence showing that the risk of HIV transmission is effectively zero when a person is on ART and their viral load is undetectable, and thus that there was no realistic possibility of transmission of HIV from the appellant engaging in sexual intercourse with the complainant. The appellant submits that if the fresh evidence is admitted, the findings of the trial judge that she had an undetectable viral load and was on ART at the time of the sexual contact compel the conclusion that there was no realistic possibility of transmission of HIV to the complainant at the time they had sexual intercourse. If that proposition is accepted, consent was not vitiated by non- disclosure of her HIV-positive status, and she should be acquitted.
[6] The respondent consents to the admission of the fresh evidence as it relates to the appellant’s circumstances, and joins in the request that the court allow the appeal, set aside the conviction, and enter an acquittal.
[7] However, there is one issue on which the parties disagree. The appellant asks the court to make a broader statement about circumstances in which the “realistic possibility of transmission” threshold for disclosure of HIV status would be negated, which would go beyond the particular scientific and factual circumstances in the appellant’s case and beyond what is necessary for the purpose of deciding this appeal.
Admission of the fresh evidence and its application to the facts of this case
[11] The central holdings in Mabior are relevant to the admission of the fresh evidence in this appeal. In Mabior, the Supreme Court retained the analysis of fraud vitiating consent from R. v. Cuerrier, [1998] 2 S.C.R. 371, that there must be a deception and a risk of deprivation; however, the court clarified what is required for there to be a sufficient risk of deprivation to vitiate consent in the context of HIV non-disclosure. Three aspects of the decision in Mabior are relevant to this appeal.
[13] …in an effort to provide further clarity on the implementation of the “realistic possibility of transmission” threshold, the court held that the presence of two factors will negate a realistic possibility of HIV transmission: (i) the accused’s viral load at the time of the sexual relations was “low”; and (ii) a condom was used:
Mabior at paras. 94-95; N.G. at paras. 65-66.
[17] The fresh evidence establishes that developments in the science in relation to HIV transmission since Mabior undermine the trial judge’s conclusion that the act of vaginal intercourse between the appellant and the complainant that constituted the offence posed a realistic possibility of transmission of HIV.
[22] I agree with the parties that the fresh evidence meets the Palmer criteria for admissibility of fresh evidence: R. v. Palmer, [1980] 1 S.C.R. 759 at p. 775; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401 at paras. 202-206, 216-217.
Should the court address the application of the realistic possibility of transmission standard to facts other than those directly in issue in this case?
[31] In my view, it would not be appropriate in this case for the court to make a broader holding about circumstances which would negate a realistic possibility of HIV transmission. My reasons for declining to do so are based on: (i) institutional concerns arising from the fact that this issue comes before the court in this appeal by way of a fresh evidence application; and (ii) concerns related to the factual record of the fresh evidence in this case. As I explain in more detail below, my concerns about the fresh evidence record in this case relate to whether it is sufficient to draw conclusions about the risk of transmission from repeated sexual contacts, and whether it supports a broader statement about risk of transmission without the qualification of a period of stability at a suppressed viral load.
(i) Institutional concerns
[35] In addition to a trial court being better suited to develop a record to consider the application of the realistic possibility of transmission standard to other circumstances, a decision by a trial court would be subject to broad appellate review by this court. The requirement that leave to appeal to the Supreme Court be obtained in order to appeal from this court, and the practical limits on the number of appeals heard by the Supreme Court, counsel in favour of not going beyond the facts of this case. This is particularly so given my concerns about aspects of the fresh evidence record in this case as it relates to circumstances beyond facts of the appellant’s case. I turn now to those concerns.
[39] My conclusion that the court should not establish in this case a new common law scientific threshold for when a realistic possibility of HIV transmission is negated is based on a combination of the limits of the fresh evidence record before the court and the appropriateness of making a more general statement in the context of a fresh evidence application as opposed to a full record developed at trial.
[40] This decision should not be read as holding that the appellant’s circumstances – on ART with an undetectable viral load, for an extended period of time, and engaging in a single act of intercourse – are the only circumstances in which it would be open to a trial court to find that there was no realistic possibility of HIV transmission where a condom was not used. In particular, this is not a holding that the only circumstance in which consent will not be vitiated in the absence of disclosure or condom use is where a person’s viral load is undetectable….
DISPOSITION OF THE APPEAL
[41] The fresh evidence is admitted. The appeal is allowed. The conviction is set aside and an acquittal entered.
R v Singh, 2022 ONCA 584
[August 15, 2022] Constructive First Degree Murder – Confinement [Reasons by David Brown J.A. with E. E. Gillese and P. Lauwers JJ.A concurring]
AUTHOR’S NOTE: This case deals with the often troublesome aspect of murder cases where the Crown argues for constructive first degree murder. Essentially, the mens rea of the alternative listed offence replaces the need for planning and deliberation. In this case the ONCA dealt with the need for connection between the offence of confinement and the murder. Here, the accused chased a witness and confined them in another residence after the acts leading to the death of two people. This was found to be an erroneous extension of the principles. At core, the replacement of planning and deliberation can only occur where the act of murder is linked to the domination (ie. the confinement) by either arising from it. Where another distinct confinement occurs after the act of murder, that link does not exist to elevate the original murder to first degree murder.
I. OVERVIEW
[1] On the evening of January 21, 2014, the appellant, Iqbal Singh, stabbed his wife, Anita Summan, and her business partner, Gurcharan Doal, with a large knife in the kitchen of their residence in Brampton, Ontario (the “Residence”). Singh then went down to the basement of the house, where he attempted to enter a bedroom in which a young relative of Doal, Mayank Sandhu, had locked himself. Sandhu had previously witnessed the attacks on Anita and Doal in the kitchen.[1]
[2] Singh testified at trial. He admitted to stabbing his wife and Doal. The main issues at trial were: (i) whether the killing of his wife amounted to first degree murder, either because Singh caused her death “while committing or attempting to commit” the offence of forcible confinement of Sandhu, under s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46, or because the murder was planned and deliberate under s. 231(2) of the Criminal Code; and (ii) whether provocation was available as a defence.
[3] The trial judge ruled that there was no air of reality to the partial defence of provocation: R. v. Singh, 2016 ONSC 3739 (the “Provocation Reasons”). The trial judge also dismissed Singh’s application for a directed verdict on the first degree murder count, holding that there was evidence of planning and deliberation for the jury to consider under s. 231(2)…
[4] The jury found Singh guilty on all five counts on the indictment:
[8] For the reasons I will set out below, I conclude the trial judge did not err in leaving first degree murder based on planning and deliberation for the jury to consider and in not leaving the partial defence of provocation for the jury. However, I conclude, with respect, that the trial judge erred in leaving first degree murder based on constructive murder under s. 231(5)(e) for the jury. Since it is impossible to know which of the two paths to first degree murder the jurors might have followed (planning and deliberation or constructive murder), I would direct a new trial on Count 1, that Singh committed the first degree murder of his wife, Anita Summan.
C. THE EVENTS ON THE NIGHT OF JANUARY 21, 2014
[23] On the evening of January 21, 2014, Singh was at the Residence with Anita and Sonali. The evidence at trial given by Singh, Sonali, Doal, Sandhu, and Puneet Sharma, who was also renting a room in the Residence basement, about what occurred is generally consistent regarding the sequence of events, but differs with respect to the amount of time that elapsed between them. Accordingly, I shall provide brief summaries of each of their evidence.
Singh’s evidence
[29] Singh remained in the living room and rested on the couch.
[30] Approximately five minutes later, Singh got up from the couch, picked up his dishes, and made his way toward the kitchen. He testified that Doal and Anita had been in the kitchen for about 15 minutes before he walked in. Singh stated that, when he got to the door between the office/bedroom and the kitchen, he saw Doal and Anita standing side by side in front of the island, watching something on Doal’s phone. Singh testified that he saw his wife attempt to move away from Doal, who had his right arm around Anita’s waist and was grabbing her buttock. Anita moved her right hip a “little bit to the side” away from Doal, and Doal moved his fingers, repositioning his hand more to the right side of Anita’s right hip, pulling her back toward him. Singh demonstrated these movements multiple times for the court.
[31] According to Singh, Doal was holding up a phone in front of them in his left hand, as if he was showing Anita something on his phone. Singh testified:
When I got to that office door … that enters the kitchen, I saw that Doal’s hand was placed on my wife’s buttocks. I noticed his fingers moving like this. My wife tried to move to the side from him, but by doing his hand like this he moved her closer to him again.
From there I started getting angry. I placed my dishes into the sink and I got my eyes on the knife in the next sink there. I picked up the knife from there. I … turned my face back towards Gurcharan Doal, that “sister fucker, what are you doing?” My wife suddenly moved forward towards me. She said, “No, Sodhi,4 no.” But I was very angry at the time. I placed the hand like this in the front towards my wife. In the second hand I was holding the knife like this.
[32] Singh stated that his intention in grabbing the knife was to threaten Doal and scare him out of the house, not to kill him. He described moving his wife out of the way with “full force”5 and then proceeding to stab Doal in the stomach. In crossexamination, the Crown asked Singh the following:
Q. Well, … what caused you to become angry?
A. The hand … that he had kept on my wife here that’s why I got angry.
Q. And … what does it mean when someone puts their hand to pull them close so they can see something on a phone?
A. He called her his sister. In our culture, no brother would put his hand here on his sister. Absolutely not. If a brother is hugging her – his sister, he would put his hand on the shoulder here. And nor does anybody hug from the front. If it’s the elder brother, he would put his hand over the head and … show her affection. So from that I got angry. He’s calling her sister and what is he doing.
Q. Well, let’s imagine that he’s actually pulling her close and saying – look at this.
A. No, nobody pulls a sister grabbing from there.
[33] Singh went on to describe a brief physical altercation with Doal:
Q. What happened after … you stabbed Mr. Doal?
A. He took the arm away … from my neck. I was really out of breath. It took about a minute, a minute and a half to catch my breath. I heard the sound of my wife from behind. She was saying, “Sodhi, what are you doing? Have you gone mad?” I turned towards her. I said to her, “Why did you not slap this sister fucker when he was touching you in an improper manner?”
Q. And … where’s Mr. Doal at this point?
A. I don’t know. When I said to my wife, why did you not slap [him] when he was touching you in an improper … manner, at the same time, my thinking went that where did he go.
[34] Singh testified that, after losing track of Doal, he walked into the living room and saw that the front door was wide open. Singh went out the door onto the driveway of the house and saw that Doal’s van was still parked out front, but Doal was not inside.
[35] Singh decided to check the basement of the Residence. He went to the basement door on the side of the house and entered. Once inside, Singh heard “panic voices” coming from one of the rooms occupied by the basement tenants. Singh approached the door and yelled, “[S]end him out”, after which the voices got “faster”. Singh then kicked the door “forcefully” and also stabbed the door with the kitchen knife twice. The knife penetrated the door both times.
[36] Singh stated that he heard the occupants in the basement room speaking with 911. At that point, he felt that Doal was not actually in the room, so he disposed of the knife in the adjacent hallway closet and went back up to the main floor. Once upstairs, he saw Anita sitting on the floor in the foyer with Sonali next to her. Singh picked up his jacket and his keys, and then left the house.
[37] Singh went to his nephew’s apartment and stayed there that night. In the morning, Singh learned that Anita had died, Doal had been injured, and the police were looking for him. He asked his nephew to drive him to the police station, where he turned himself in.
Sonali’s evidence
[41] About half an hour after going upstairs, Sonali heard a thud and a scream; she got out of bed and went downstairs. She saw Doal in the doorway to the family room, drenched in blood and moaning. Anita was standing bent over by the front hall closet. Sonali thought her mother was having a heart attack and went to the kitchen to call 911.
[42] Sonali could hear sounds coming from the basement of “[s]omeone being chased” and then banging on a door. She called 911 at 10:03 p.m.
Doal’s evidence
[47] Doal testified that he was driving Sandhu home to the Residence when Anita phoned Sandhu and invited him over to eat pasta.
[48] Doal and Sandhu arrived at the Residence around 9:50 p.m. Sandhu went around to the side door to the basement. Before Doal drove away from the Residence, Anita called Doal and invited him in to discuss business matters. Doal parked his car and entered the Residence through the front door.
[49] When Doal got to the kitchen, Sandhu was already sitting at the table. Doal was standing beside the door and Anita was beside the stove.
[50] While Doal was still standing there, Singh came running into the kitchen from the office/bedroom. According to Doal, as soon as Singh got there, he started stabbing Anita, who screamed. Doal saw a 14-inch knife in Singh’s hand. Doal did not see where the knife came from but testified that Singh “may have had it on him before.” In cross-examination, it was put to Doal that he did not see Singh enter the kitchen with the knife. Doal clarified, “So the speed that he came, he was quick and it was just two steps and when he was striking, that’s when I saw it. This may have been his planning from before.”
[51] Doal said that, after stabbing Anita, Singh came for him at speed. Doal moved back and Singh moved toward him. Singh’s first stab was to Doal’s abdomen. Doal became dizzy and disoriented. He did not remember the rest of the night, or anything else, until he woke up in the hospital from a coma five days later. He did not remember how he suffered additional wounds.
[52] In cross-examination, it was suggested to Doal that he was not standing near the doorway but instead was “standing right in front of the door between the office bedroom and the kitchen” with his arm around Anita’s waist. Doal responded, “How can you say that? I have proof of her being a sister.” When defence counsel again suggested that Doal had his arm around Anita’s waist, Doal replied, “You are lying. … How can you say those things to me, things that aren’t true? … How can you ask me that? You can’t ask me – can you do that to your sister?”
[53] When he left the hospital, Doal gave an audio-recorded statement to the police. He told the police that he did not actually see Singh stab Anita. However, at trial, he denied saying that to the police despite the statement having been recorded.
Sandhu’s evidence
[56] As Sandhu was eating, Singh came into the kitchen “normally” through the office/bedroom door. Sandhu went back to his food and looked up about five minutes later when he heard Anita scream. Singh was holding a knife that was 10 to 12 inches long, and he was looking toward Anita like he was “in the action”, about to stab somebody.
[58] Singh then immediately moved toward Doal. Sandhu started to run. The last thing he saw in the kitchen was Doal trying to save himself by putting his arms together in front of his chest and Singh was in front of Doal about to stab him.
[61] The two then went into Sharma’s bedroom. Sandhu locked the door, held his body against it, and kept two hands on the doorknob to hold the door closed. He was terrified. Sandhu thought Singh would come after him and stab him because he was “the only witness left”. He told Sharma to call 911.
[62] As Sandhu was telling Sharma to call 911, which he thought was five to eight minutes after they went into the blue bedroom, he heard “[r]eally bad”, aggressive banging on the bedroom door. Sandhu said the person was banging and yelling, “Come out”. As he was holding the door, Sandhu saw 2.5 or 3 inches of the blade of a knife come through the door twice. At some point he took over the phone and started speaking to the 911 operator. The banging stopped while he was on the phone.
[63] Sandhu and Sharma stayed in the bedroom until the police arrived. As per an Agreed Statement of Fact, their 911 call started at 10:04 p.m. and ended at 10:09 p.m.
Sharma’s evidence
[65] Sandhu came into Sharma’s bedroom, they locked the door, and Sandhu held it closed. Sandhu told Sharma to call 911. About 10 to 15 seconds later, Sharma heard pounding on the door. A male voice said something like, “[S]end the guy out.” Sharma called 911, Sandhu spoke to the operator, and then a knife came through the door. The pounding stopped but they stayed in the room until the police came.
V. CONSTRUCTIVE FIRST DEGREE MURDER: s. 231(5)(e)
A. THE ISSUE STATED
[108] The final ground of appeal arises from the trial judge’s dismissal of the directed verdict application regarding constructive first degree murder. At trial, Singh argued there was no basis to leave with the jury a path to a first degree murder conviction under s. 231(5)(e) of the Criminal Code, which provides:
231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: …
(e) section 279 (kidnapping and forcible confinement)[.]
[109] Singh argued there was no temporal or causal connection between the killing of Anita and the confinement of Sandhu that could make them part of a single transaction sufficient to satisfy the “while committing” requirement of s. 231(5)(e) for first degree murder.
[110] The trial judge disagreed. Drawing on some Supreme Court and provincial appellate decisions, she stated:
As the defence have acknowledged, quite properly in my view, that an unlawful confinement can occur following the act of killing, and two different victims can be involved, I will not address the issue further.26 As long as there is some evidence from which the jury can reasonably infer that the killing of Anita Summan and the confinement of Mayank Sandhu were “linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction”, then
…the directed verdict application must fail on this front as well[.][27]
[111] The trial judge ruled that such evidence was present in the record.
[112] As to a temporal connection, the trial judge’s review of the evidence of the movements of Singh and Sandhu following the attack on Anita led her to conclude that the jury could infer that: (i) Singh knew Sandhu was in the kitchen when he wounded Anita mortally; (ii) blood on the front walkway, moving in the direction Sandhu would have taken when he left the house, indicated that Singh went after Sandhu immediately after stabbing Doal; (iii) blood in the basement suggested Singh pursued Sandhu; and (iv) the evidence of Sharma and the timing of the 911 call by Sonali placed Singh in the basement within a very short time after the stabbing of Anita. In the trial judge’s view, this body of evidence could provide some evidence of a single transaction where the events were temporally connected.
[113] As to any evidence supportive of a causal connection between the enumerated offence and killing, the trial judge stated:
As for being causally connected, at a minimum, the jury could arrive upon reasonable inferences that Mr. Singh was at the door, confining Mr. Sandhu and yelling at him to come out, because he wanted to kill the person who he thought was the last surviving witness to his murder of Anita Summan. This is a direct causal link back to the murder.[28]
[114] On appeal, Singh renews his submission that the evidence did not permit the conclusion that there was some evidence from which a jury could find that the killing of Anita and the unlawful confinement of Sandhu constituted a single transaction….
B. THE SUPREME COURT JURISPRUDENCE
[117] The interpretation of s. 231(5)(e)’s language that “murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit” one of the enumerated offences has largely been shaped by seven decisions of the Supreme Court: R. v. Paré, [1987] 2 S.C.R. 618; R. v. Arkell, [1990] 2 S.C.R. 695; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804; R. v. Pritchard, 2008 SCC 59 [2008] 3 S.C.R. 195; R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R 309; and the court’s recent decision in R. v. Sundman, 2022 SCC 31.[30]
Summary
[139] Given the Supreme Court’s approach to interpreting s. 231(5), it is not surprising that the cases in which the court has found that the relationship between the acts of the enumerated offence and the murder satisfy the statutory language of s. 231(5) have involved circumstances where the commission of the enumerated offence – the act of illegal domination – has preceded or continued during the act of murder. As acknowledged by the parties to this appeal, what is absent from the Supreme Court’s jurisprudence is the application of s. 231(5) to a situation where the accused murdered a victim before engaging in the acts which constitute the enumerated offence against another.
[140] In view of the absence of any such Supreme Court authority, I propose to review the provincial appellate jurisprudence to see whether it provides support for the trial judge’s interpretation and application of s. 231(5) to circumstances where the murder of one victim was committed before the accused committed or attempted to commit an enumerated offence against another victim.
C. THE PROVINCIAL APPELLATE JURISPRUDENCE
Summary
[151] As this court recognized in Niemi, there is a potential tension in in sexual assault constructive murder cases because murder requires the death of the victim while sexual assault requires a live victim. In Niemi, this court observed that tension had spawned something of a “modest controversy” in the Westergard/Richer body of cases about whether a first degree murder conviction can occur where the sexualized conduct commences after the victim has died or where there is uncertainty on that point: Niemi, at paras. 41, 66. In Niemi, this court attempted to resolve that controversy by describing avenues to a first degree murder conviction under s. 231(5) in which the sexualized conduct occurs after death that are consistent with the organizing principle identified by Paré and its progeny, as well as the causal connection required by the single transaction principle.
[152] In Niemi, this court did not understand the single transaction principle to hold that s. 231(5)(b) was always met where the accused committed a murder followed by sexual acts: at para. 72. Nor did the court suggest that the analysis found in the Westergard/Richer type of cases had any application outside of situations where uncertainty existed about the relative timing of the enumerated offence of sexual assault and the murder. Indeed, in Mullings, this court specifically declined to opine on whether such an analysis could apply to cases in which the enumerated offence was unlawful confinement: at para. 102.
D. APPLICATION TO THE PRESENT CASE
[154] The trial judge’s error lies in her application of the causal connection dimension of the single transaction principle.[38] She wrote that, “[w]hile the underlying policy rationale for constructive first degree murder is often articulated as being when a murder is committed by someone who is already abusing his or her power by dominating another, this does not have to be case” (emphasis added), citing the Westergard/Richer line of cases and the obiter comments of this court in Mullings. [39]
[155] Section 231(5) states that “murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence” enumerated in ss. 231(5)(a)-(f). While the enumerated offence and murder need not occur simultaneously in order to meet the “while committing” requirement, since Paré the Supreme Court has consistently interpreted “while committing” against: (i) the backdrop of an organizing principle that the enumerated offences are all crimes that involve the illegal domination of the victim, and (ii) as requiring the demonstration of a causal connection between the enumerated offence and the murder in the sense that “the offender’s reason or motivation for the killing arises from, or is linked to, the offender’s unlawful domination of a victim”: Sundman, at para. 34 (italics in original; underlining added).
[156] The jurisprudence has overwhelmingly treated the required causal connection for the single transaction principle as one in which the act of committing or attempting to commit the enumerated offence prompts a further criminal act that culminates in the murder – the “reason or motivation for the killing” (emphasis in original), in Sundman’s language, at para. 34 – or, in a small number of cases, such as Russell, where the murder was committed to facilitate the crime of domination. However, the trial judge misapplied the “single transaction” principle by reversing the causal connection between the two acts, contrary to the requirements of s. 231(5)’s “while committing” language and the weight of the jurisprudence.
[157] By dismissing Singh’s application for a directed verdict in respect of constructive murder, the trial judge, in effect, afforded the Crown the opportunity to use Singh’s act of causing Anita’s death before pursuing Sandhu as satisfying the causal connection requirement of s. 231(5)’s single transaction principle….
[158] With respect, this analysis reversed the causal connection required by the “while committing” language of s. 231(5).[41] The Supreme Court’s jurisprudence on s. 231(5) usually makes available the more serious classification of a murder as first degree murder where the act of committing or attempting to commit the enumerated offence plays a role in or prompts the act that causes the death of a person…
…While a murder that facilitates a crime of domination may attract the classification of first degree murder – as in the multiple victim circumstances of Russell, where the murder took place after the ongoing crime of domination had begun and, arguably, was still continuing – the sequence of events in the present appeal do not resemble those in Russell. Here, the offender admittedly caused a death and then pursued another person.42 Consequently, the trial judge’s reversal of the connective relationship between the enumerated offence and the murder would not satisfy the jurisprudence’s requirement of demonstrating that the offender’s reason or motivation for the killing arises from, or is linked to, the offender’s unlawful domination of a victim: see Sundman, at para. 34.
[159] The facts of the present case do not resemble the circumstances in the Westergard/Richer body of case law where uncertainty existed as to the precise timing of the murder relative to the enumerated offence. Here, on any view of the evidence, Singh’s act of causing Anita’s death had been completed before he moved out of the kitchen and into other parts of the house and, ultimately, ended up in the basement banging on the door behind which Sandhu was hiding.
[160] Nor are the circumstances of the present case analogous to the situation in Russell. True, in both cases the victims of the enumerated offence and murder were different. But in Russell, the murder of the tenant in the basement took place after the unlawful confinement of the other victim in her bedroom was underway. In Russell, a causal connection was found under s. 231(5) as the murder of the tenant was committed to facilitate the ongoing crime of domination by eliminating the tenant as a potential witness to the crime: see Sundman, at para. 34. Here, the death of the first victim was caused before Singh embarked upon his acts that had the effect of unlawfully confining Sandhu.
[161] The murder of Anita and the unlawful confinement of Sandhu occurred within a few minutes of each other. There was evidence that could satisfy the single transaction’s temporal connection between the two criminal acts. However, there was no evidence that the relationship between the two criminal acts could satisfy the causal connection aspect of a single transaction. That is because the evidence showed that Singh’s reason or motivation for killing Anita did not arise from, and was not linked to, his later unlawful domination and confinement of Sandhu: see Sundman, at para. 34; Paré, at pp. 633-34. Nor was there any suggestion in the evidence that Singh’s pursuit and unlawful confinement of Sandhu contributed to Anita’s death by preventing her from receiving medical aid that could have saved her life. 43 The trial judge therefore erred in leaving for the jury’s consideration a pathway to conviction for first degree murder through s. 231(5)(e).
VI. DISPOSITION
[163] Given my conclusion that the trial judge erred in leaving for the jury a pathway to conviction on Count 1 by way of constructive first degree murder under s. 231(5)(e) of the Criminal Code, I would set aside the conviction for the first degree murder of Anita Sunnam. Both Singh and the Crown agree that in such a circumstance a new trial should be ordered on the charge of the first degree murder of Anita Sunnam. Accordingly, I would order a new trial on that charge.
Search and Seizure
By David Schermbrucker, Randy Schwartz, Mabel Lai, & Nader Hasan
