WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:
539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY
(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry
(a) may, if application therefor is made by the prosecutor, and
(b) shall, if application therefor is made by any of the accused,
make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,
(c) he or she is discharged, or
(d) if he or she is ordered to stand trial, the trial is ended.
(3) FAILURE TO COMPLY WITH ORDER
Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Information #: 15-75009793
Parties
Between:
Her Majesty the Queen
— and —
Curtis Dawkins
Before the Court
Justice: M. Wong
Counsel for the Crown: L. MacNaughton and M. Mungovan
Counsel for the Accused: O. Wigderson and C. Moore
Hearing Dates and Decision
Heard on: October 24, 25, 26, 28; November 2, 4, 2016
Crown's Written Submissions on Committal received: November 25, 2016
Defence Written Submission received: December 19, 2016
Oral Submissions Heard: February 8, 2017
Reasons for Judgment released: March 8, 2017
Judgment
Introduction
1Curtis Dawkins is charged with second-degree murder in the stabbing death of Jamie Foster on August 3, 2015. The preliminary hearing began on October 24, 2016 with the crown calling 15 witnesses. After the crown closed its case on November 4, 2016, I asked counsel if committal was in issue: the prosecutors indicated they were seeking committal on second degree murder only; and defence counsel agreed committal was no longer in issue. Because the evidence was finished ahead of schedule, the matter was adjourned to allow the defence team time to consider whether they wanted to hear from one or two more police witnesses.
2However, on November 8, 2016, crown counsel advised in writing they had reconsidered their position and were now seeking committal on first-degree murder pursuant to section 231(5)(e) of the Code.
Position of the Parties
3The crown now submits there is sufficient evidence upon which a properly instructed jury, acting reasonably, could find Ms. Dawkins unlawfully confined Mr. Foster in his bedroom during the events of August 3, 2015. The crown argues the forcible confinement was sufficiently temporally and causally connected to Mr. Foster's murder to justify committal on constructive first degree murder.
4Ms. Mungovan, for the crown, stated she is not asking the Court to draw any inferences from the evidence, in particular the testimony of Detective Todd Carefoot, the bloodstain pattern analyst, that Ms. Dawkins inflicted further injury to the victim inside the bedroom. The crown submits the actus and mens rea of forcible confinement can be found in Ms. Dawkins' actions outside the bedroom and is part of the continuous act culminating in the victim's death.
5Mr. Wigderson, for the defence submits Ms. Dawkins cannot be ordered to stand trial for constructive first-degree murder for four alternative reasons: (a) there is no evidence Mr. Foster was coercively restrained or directed contrary to his wishes; (b) there is no evidence Mr. Foster was confined for a significant period of time; (c) there is no evidence Ms. Dawkins intended to unlawfully confine Mr. Foster; and (d) the alleged act of unlawful confinement occurred after the act that caused death.
Summary of the Evidence
6On August 3, 2015, Curtis Dawkins and the victim, Jamie Foster, spoke by cell phone at approximately 1 AM. Ms. Dawkins, who is a self-identified transsexual male prostitute, knew Mr. Foster as an acquaintance and sometime sexual partner. The two met and took a taxi to Mr. Foster's apartment at 135 Rose Avenue.
7At 1:41 AM, Ms. Dawkins called 911 reporting that Mr. Foster had stabbed her in the face and in turn, Ms. Dawkins said she took the knife and stabbed him back. Police found Ms. Dawkins in the parking lot carrying three knives, she had blood on her face, and she was arrested without incident.
8Police also found Mr. Foster alive on the second floor of the building, but bleeding profusely. He was soaked in blood, naked and afraid, and he eventually died while the officer attempted chest compressions. According to forensic pathologist, Dr. Michael Pollenan, the cause of death was from exsanguination from principally three stab wounds: a deep perforating stab wound to Mr. Foster's left upper arm; a 3.5 cm vertical stab wound to his left groin; and a deep 3 cm stab wound on the back of his left thigh. In addition, Mr. Foster suffered a superficial stab wound on the left arm; a stab wound on his left shin, a nonfatal stab wound on his left lower forehead, just above the eyebrow nearest to the nose; nine defensive sharp force injuries to his hands, which Dr. Pollenan was certain were defensive injuries; a series of linear abrasions on his left upper arm and several on his left leg; shallow puncture marks on his right upper abdomen, left chest, left leg and upper left arm; and other injuries described as small abrasions to his neck, arms, hands, legs and feet.
9In her statement to police, Ms. Dawkins advised the police of the following: once back at Mr. Foster's apartment, they kissed and had some fun, and everything was going well until she tried to leave. Ms. Dawkins said "Jay" did not want her to go and he threw her back on the bed. She got up, and they began to wrestle because he did not want her to leave. Ms. Dawkins said she began to gather her things in the living room and Jay went to the kitchen. Suddenly, Ms. Dawkins said Jay returned. He said "you're not going nowhere", and stabbed Ms. Dawkins in the face with a kitchen steak knife. She began bleeding and was in disbelief. Ms. Dawkins said Jay fell onto the couch and he went to stab her again. Ms. Dawkins described grabbing his wrist and taking the knife. Ms. Dawkins told police she then stabbed him "like four or five times" and (later revising it to "three to five times") in his mid-section, while he was sitting on the couch. Ms. Dawkins told police she did not intend to kill him. Mr. Foster then ran into his bedroom and closed the door.
10Ms. Dawkins told police beginning at page 35 of the transcript marked as Exhibit 16 C the following:
Curtis Dawkins: Um, I was pissed. Like, I was really, really, really mad and like, he had picked himself up and went into the room and locked, and close the door.
Det. Sgt. Ryan: what room?
C.D.: his bedroom. And then like, I was just so mad at him. I can't believe like, he just stabbed me. Like, I can't -- like, you know, like, we were gettin' so close like, and I mean like, on a personal level, like just to say like he, he would turn out like that. Like, just as I explained the story about, or you know, like an ex that I just kind of like dealt with and, he comes around and does like, the whole ship sink like – and worse, but like the same type of shebang to me, you know what I am saying? And my, I was just pissed. I smashed the TV.
Det. Sgt. Ryan: how did you do that?
C.D.: I knocked it on the floor and I stepped on it.
Det.: and where is Jay at this point?
C.D.: in the room.
Det: and where's the knife?
C.D.: with me in the living room.
Det.: do you still have it….
C.D.: No
Det.: ….on you?
C.D.: No.
Det.: did you drop, drop…?
C.D.: no. I took all my things. After that night, I went into the bathroom and I looked down the….. 'ause he wouldn't open the door.
Det.: which door?
C.D.: the bedroom door.
Det.: is that where he was?
C.D.: Yeah
Det.: Okay.
C.D. and then um, I lift off the shower curtain and I pried open the door. And that's when he said call 911.
(discussion about how Ms. Dawkins pulled the shower rod off to use to get into the bedroom)
Continuing on page 36, line 31:
Det.: so how, how does that help you by pulling off the shower curtain?
C.D.: to get in the bedroom
Det.: to get in the bedroom?
C.D.: Mm 'hm.
Det.: how does that help you get in the bedroom?
C.D.; because something was blocking the top of like, 'because I could open a little bit, but I had to put the thing to like, open it.
Det.: so, you're talking about using the rod to…
C.D.: pry open the door.
Det.: …. Pry open the bedroom. Did you pry open the bedroom?
C.D.: Yeah
Det.: and when you get into the bedroom where is Jay?
C.D.: laying on the floor.
Det.: what did you do then?
C.D.: I started yelling. I took out all the knives and, and got mad. I said, "I can't believe you did this." And then I took the knife and I just stabbed the bed. I just stabbed the bed and I was like, 'cause he looked okay. 'Cause at first like it was more of my blood that was really leaking onto him.
Det.: Mm 'hm
C.D. I didn't realize the severity of like, his things. And then like, I was just like, "you like to play with knives too much, you like to play with knives too much". And then just started like, stabbing up his bed and stuff. He was like "leave…" like…
Det.: did you stab him again when he was in the bedroom?
C.D.: No, no.
Det.: did you, did you hit him or assault him at all while he was in the bedroom?
C.D.: No
Det.: and where was he in the bedroom?
C.D.: he was laying down on the floor.
Det.: was he asking for help?
C.D.: Yeah.
Det.: what was he saying?
C.D.: he said, "call the police for me". Like, "call, call the ambulance, call the ambulance". And I thought, "I should leave your ass there", but I didn't.
Det.: did you call them?
C.D.: Yeah.
Det.: whose phone did you use?
C.D.: His
Det.: and where were you in his apartment when you called 911?
C.D.: I was by the front door and then he got up and he started walking down the hall butt naked.
Det.: Hallway of the apartment or his apartment?
C.D.: His apartment
Det.: Where were you when he was walking in the hallway?
C.D.: Um, I was still by the, the door at that point.
Det.: So, he walked past you and out the door?
C.D. Yeah.
Det.: Where was he going?
C.D.: I don't….
Det.: Did you try to help him?
C.D.: No. Well, once I was – like, what's the password for the phone. Will you give it to me? Then I clicked the emergency thing. Un, at that point like, I went outside because I seen him like, on the second floor 'cause he was on the third floor and I've seen him like down on the second floor.
Det.: How did you, how did you see him on the second floor?
C.D.: He was laying down.
Det.: And why were you on the second floor?
C.D.: Well, I seen him through the door. I wasn't on the second floor. I was like, going through the way we came up to come inside.
Det.: So, when you left his apartment to leave, you went down the stairs, you said?
C.D.: Mm 'hm.
Det.: And when you went down the stairs, where was he, where was Jay?
C.D.: He was inside. Like, he opened the door to like, the floor, the second door and then he walked in,
11Some of what Ms. Dawkins told to Detective Sgt. Ryan was confirmed by the physical evidence. For example, photographs and the evidence gathered by Detective Todd Carefoot, the bloodstain pattern analyst, revealed a significant quantity of blood in the living room and front hallway of the apartment including the nearby kitchen and bathroom. A television set and other furniture in the living room was also badly damaged. There was also a bloody footwear impression on the outer side of the bedroom door – consistent with other shoe print impressions found in the apartment, and which a jury could find was Ms. Dawkins trying to kick in the door. The bathroom shower rod had also been removed.
12Inside the bedroom behind the door, in particular, there again was a substantial quantity of blood on the floor, on the back of the door, and on the walls. There was also a bloody footprint and a knife sheath on top of the bed.
13The evidence also establishes the victim, Mr. Foster left his apartment and survived long enough to travel along the third floor hallway calling for help, down to the second floor via the stairwell, and partially down that hallway. At the same time, Ms. Dawkins approached the witness Maria Reyes' husband on the 3rd floor asking for the address of the building. Ms. Dawkins called 911 and she made her way outside of the apartment building where she waited for police in the parking lot, where she was arrested. P.C. Matthew Miller found a blood trail in the stairwell and on the 2nd floor landing, and through a small window in the door leading to the 2nd floor he first saw Mr. Foster, badly injured, but still alive.
The Law
14The law relating to committal for trial at the preliminary inquiry stage is clear: a preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict (U.S.A. v. Sheppard (1976) 1976 CanLII 8 (SCC), 30 C.C.C. (2d) 424). Where the case for the Crown is by way of direct evidence, the judge's task is straightforward. If there is conflict in the evidence, the case must still proceed to trial. However, where the Crown's case is circumstantial, the court must engage in a limited weighing of the whole of the evidence, including the defence evidence, to determine whether a reasonable jury properly instructed could return a verdict of guilty. The preliminary inquiry judge does not engage in drawing factual inferences or in assessing credibility. The judge only asks whether the evidence, if believed, could reasonably support an inference of guilt (R. v. Arcuri (2001) 2001 SCC 54 (CanLII), 157 C.C.C. (3d) 21 S.C.C).
15Where more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered. A preliminary inquiry judge who fails to respect these constraints acts in excess of his or her jurisdiction. (R.v Sazant, 2004 SCC 77 (CanLII), [2004] 3 S.C.R.635, 2004 S.C.C. 777 at para. 18 (S.C.C.))
16"Where the circumstantial evidence amounts to at least a "scintilla" of evidence on each of the elements of first degree murder…" the preliminary inquiry judge ought to commit accordingly (R. v Mathisen [2004] O.J. No. 2731 at para. 2 (Ont.C.A.))
17The elements of constructive first degree murder as it relates to forcible confinement is discussed in R. v. Bottineau [2007] O.J. No. 1495 (Ont.Sup.Ct.) Justice Watt beginning at para. 31:
31. "Planning and deliberation is not always essential for murder to be classified as first-degree murder... Under s. 231(5) murder is first-degree where a person causes the death of another while committing or attempting to commit a listed offence that involves domination of another. One of the listed offences is unlawful confinement.
32. Unlawful confinement is an offence under s. 279(2) of the Criminal Code. It involves the confinement of one by another without lawful authority. It does not require proof of any specific or ulterior mental element beyond the extent to deprive another of freedom of movement. See R.v. B(S.J.), 2002 ABCA 143 (CanLII), 166 C.C.C. (3d) 537, 552 (Alta.C.A) per Berger, J.A.
33. The unlawful confinement offence of s. 279(2) of the Criminal Code does not require the total physical restraint of the victim. What is required is a physical restraint, contrary to the wishes of the person restraint, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move about from one place to another. See, R.v. Gratton (1985), 18 C.C.C. (3d) 462, 473 (Ont. C.A.) per Cory, J.A. The confinement may, but does not have to include the application of bindings or restraints. See, R.v. Gratton, above, at p. 473 per Cory,J.A.
34. Nothing in s. 279(2), either in express terms or by necessary implication, sets any limits on the time during which restraint of the victim must continue before the external circumstances of the offence are proven. There would seem no reason in principle to do so, provided the evidence demonstrates the required degree of restraint.
35. Unlawful confinement is a predicate offence or underlying crime in constructive first-degree murder under s. 231(5) (e) of the Criminal Code. Unlawful confinement is an offence of domination, hence a murder committed in the same sequence of events is more morally blameworthy than a murder committed otherwise. If in the course of a continuous sequence of events, an accused commits the crime of unlawful confinement and chooses to exploit his or her position of dominance over the victim as a result of the confinement to murder the victim, then the accused has committed first-degree murder under s. 231(5) (e). The purpose of the confinement is of no moment to the determination of liability. See, R.v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 157 C.C.C. (3d) 129, 163 (Ont.C.A.) per Doherty, J.A.
36. The essential element in constructive first-degree murder arising out of the predicate offence of unlawful confinement were described by Cory, J. in R.v. Harbottle (1993), 1993 CanLII 71 (SCC), 84 C.C.C. (3d) 1, 14 (S.C.C.) in these terms:
Therefore, an accused may be found guilty of first-degree murder pursuant to section 214(5) (now s. 231(5) (e)) if the crown has established beyond a reasonable doubt that:
(i) the accused was guilty of the underlying crime of domination or of attempting to commit that crime;
(ii) the accused was guilty of the murder of the victim;
(iii) the accused participated in the murder in such a manner that he was a substantial cause of death of the victim;
(iv) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim, and
(v) the crimes of domination and murder were part of the same transaction, that is to say, the death was caused while committing the offence of domination as part of the same series of events. (my emphasis)
48. The mental or fault element in unlawful confinement consists of an intention to engage in the conduct that compromises the external circumstances of the offence. The person or persons charged must intend to restrict the victim's freedom to move about from one place to another, contrary to the victim's wishes. The prosecution may invoke the common sense inference of intention from conduct to establish this essential element. The offence of unlawful confinement is a crime of general intent. (See R.v. B.(S.J.) (2002), 2002 ABCA 143 (CanLII), 166 C.C.C. (3d) 537, 552 (Alta.CA) per Berger, J.A.
Analysis
18In applying the Harbottle, supra, analysis I have no difficulty finding a properly instructed jury could find some evidence on the first four of the five elements of the test.
i) First, is there some evidence that the accused is guilty of the underlying crime of domination or attempting to commit the crime?
19The authorities establish that the actus reus for forcible confinement is established, if for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement within s. 279(2) (See R.v. Pritchard 2008 SCC 59 (CanLII), [2008] 3 S.C.R. 195 (S.C.C.) at para. 24)
20Without an extensive review of the evidence, I am satisfied a properly instructed jury could easily find Mr. Foster escaped to his bedroom, attempting to barricade himself inside contrary to his own choosing, but rather by necessity to escape from Ms. Dawkins. A jury could find, at the same time, Ms. Dawkins was on the other side of the door: enraged because she had been stabbed, damaging and smashing the television set and other furniture. Ms. Dawkins also had, at minimum, access to the knife, and Mr. Foster did not. Ms. Dawkins went further kicking at the bedroom door and using the shower rod to pry open the door.
21In R.v. Johnstone [2010] O.J. No. 2949 (Ont.Sup.Ct.) the victim similarly sought refuge, in that case, in a bathroom. At paragraph 21, the Court addressed the issue of whether the victim's apparent decision to do so can constitute unlawful confinement attributable to the aggressor. The court held that the circumstances in that case allowed for the conclusion that the victim's decision to seek refuge in a locked bathroom was a direct consequence of the aggressor's acts, who left the victim momentarily only to return to re-engage the attack. The Court held in that moment the aggressor could be seen to have taken advantage of the situation created by his conduct in pursuing the attack in circumstances where the victim was confined as a result of his actions.
22By her own admission, Ms. Dawkins was not satisfied that Mr. Foster had escaped to his bedroom. Ms. Dawkins did not leave the apartment. Rather, Ms. Dawkins used some creativity, took active steps and applied force to re-enter the bedroom, where at minimum, Ms. Dawkins berated the victim and damaged the bed. I am satisfied it is open to a jury to find while Ms. Dawkins may not have initially intended to confine Mr. Foster in his bedroom, the jury may be satisfied that Ms. Dawkins' subsequent acts including breaking into the room where the victim had sought refuge, crystallized the actus and her mens rea thereby committing the offence of forcible confinement.
23The crown also submits a jury could find Mr. Foster was confined for a significant period of time. Ms. Dawkins told police detectives that the argument began at 1:28 am, because she wanted to leave and she noticed the time. The 911 call was made at 1:41 am. Defence counsel argues it is impossible to determine how long during those 23 minutes Mr. Foster was in his bedroom: as such, Mr. Wigderson argues it is not possible to determine whether Mr. Foster was confined in his bedroom for a significant period of time. The crown argues, and I agree with Ms. Mungovan, that a properly instructed jury will consider all of the evidence and it is open to them to reasonably infer that it took a significant period of time for Ms. Dawkins to do all the acts she described to police. As well according to Ms. Dawkins in her statement to police, she saw Mr. Foster's blood seeping under the door. I agree it would be open for a jury to reasonably infer that Mr. Foster was confined to his room for a significant period of time based on the substantial pooling and seepage of his blood.
24For these reasons, I am satisfied the crown has established some evidence that Ms. Dawkins could be found guilty of the underlying crime of domination or of attempting to commit the crime.
ii) Secondly, whether there is some evidence that the accused is guilty of murder of the victim
25The defence was prepared to concede committal on second degree murder.
26Mr. Wigderson also does not dispute there is some evidence on the next two prongs of the Harbottle test, namely:
iii) Thirdly, whether there is some evidence Ms. Dawkins' actions were a substantial cause of Mr. Foster's death
27The pathology evidence establishes Mr. Foster died from his stab wounds.
iv) Fourthly, where there was no intervening act of another which resulted in Ms. Dawkins no longer being substantially connect to Mr. Foster's death.
28No one other than Ms. Dawkins stabbed the victim nor was there any other intervening act, which contributed to his death.
29Which, therefore, leaves the last area of consideration:
v) Whether the crime of domination and murder were part of the same transaction, i.e. the death was caused while committing the offence of domination as part of the same series of events.
30Section 231(5)(e) of the Code requires two discrete criminal acts, a killing that amounts to murder and confinement that is unlawful. It is the occurrence of the two criminal acts in the course of the same transaction or series of events that justifies the added punishment imposed for first-degree murder. (R.v. Kimberley, supra)
31Further, the policy decision of Parliament to classify these murders as first degree murders accords with the broader objectives of a sentencing scheme. The elevation of murder while committing a forcible confinement to first degree reflects a societal denunciation of those offenders who choose to exploit their position of dominance and power to the point of murder (see R.v. Luxton (1990), 1990 CanLII 83 (SCC), 58 C.C.C. (3d) 449 (S.C.C.) at para. 11) and R.v. Johnston [2014] O.J. No. 3121 (Ont.C.A.) at para.47).
32The temporal-causal connection is established where the unlawful confinement creates a "continuing illegal domination of the victim" that gives continuity to the sequence of events culminating in the murder. (R.v. Pare 1987 CanLII 1 (SCC), [1987] S.C.R. 618, 38 C.C.C. (3d) 97 (S.C.C.), at p.108)
33Ms. Mungovan clearly outlined the case for the crown both in her written submissions and oral argument. In particular, Ms. Mungovan directed the court to not consider paragraphs 20 and 84(d) of the crown's written submissions whereby initially the crown had asked the Court to consider Mr. Foster's injuries, which included defensive wounds to his hands; as well evidence that may have shown Ms. Dawkins perpetrated further acts of violence against Mr. Foster in the bedroom until the victim took the opportunity or was able to escape. In her oral submissions, Ms. Mungovan elaborated stating that it was not necessary for the Court to find that Ms. Dawkins inflicted further injury to the victim inside the bedroom because the Crown relied on the evidence outside the bedroom as being sufficient both temporally and causally to have the Court commit Ms. Dawkins on first degree murder. When the Court asked whether I should consider the lengthy testimony of Detective Todd Carefoot, the bloodstain pattern analyst, Ms. Mungovan said the crown was not relying on the witness' evidence.
34It is on this basis that Mr. Wigderson argued for the defence that there is no temporal nexus between the act of unlawful confinement and Mr. Foster's death. Defence submits the evidence establishes only one reasonable inference: that Mr. Foster's confinement occurred after he was stabbed. The defence argued the case at bar is distinguishable from the cases provided by the crown supporting her argument for committal on first degree where in every case, the victim was first confined, then killed. Here the evidence is incontrovertible, the defence argues that Mr. Foster left not only the bedroom, but the apartment and made his way down the hallway to the 2nd floor via the stairwell; and that Ms. Dawkins was close enough in proximity that she would have seen him leave or, at least knew Mr. Foster had left the apartment, yet she did nothing to stop him. Defence counsel makes these submissions acknowledging, as he should, that the ability of the victim to escape does not diminish or negate the act of forcible confinement.
35The crown frames their submission arguing that the "murderous act" or actus reus was Ms. Dawkins stabbing Mr. Foster in the living room, who retreated to his bedroom and was unlawfully confined. Subsequently, Ms. Dawkins then smashed the furniture and forcibly entered the bedroom. However, the crown does not ask the Court to rely on any of the testimony from Detective Carefoot, the bloodstain pattern expert, nor does the Crown ask the Court to draw any reasonable inference that there were further acts of physical violence to Mr. Foster inside the bedroom. Rather the crown submits a properly instructed jury could find the two criminal acts, namely, the stabbing in the living room and the forcible confinement of the victim in his bedroom, were committed in the course of the same transaction or series of events.
36The Crown relies on R. v. Westergard 2004 CanLII 16356 (ON CA), [2004] O.J. No. 1500 (Ont.C.A.) for the proposition that when the required linkage between the two crimes exist, the order in which they were committed is of no consequence. In Westergard, the Court held an overly refined or technical approach to s. 231(5) of the Code should be avoided. In that case, the evidence was that the female victim was viciously beaten and strangled to death in her home. In addition, she had been sexually assaulted. One of the issues on appeal was whether the crown was required to establish that the sexual assault was committed first, then the murder. After a review of the law, the Court of Appeal held that what was important is not the order of the commission of the offences, but the linkage between the two crimes. In Westergard, no defence evidence was called and the trial judge found there was no air of reality to the appellant's position that the victim was sexually violated in a separate transaction unrelated to her murder. The Court adopted the "single transaction" approach from earlier decisions and held the Crown merely needed to show the act causing death and the acts constituting the underlying offence, in that case the sexual assault, all formed part of one continuous sequence of events forming a single transaction (See also R.v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518; leave to appeal to S.C.C. refused October 10, 1985; and R.v. Pare, supra.)
37In this case, I do not find there is any evidence a properly instructed jury could find that in the course of the continuous sequence of events, Ms. Dawkins chose to exploit her position of dominance over Mr. Foster which, as a result of the confinement, caused the death of the victim. The evidence upon which the Crown relies on for committal on first-degree murder is that the "murderous act" was Ms. Dawkins stabbing Mr. Foster in the living room, which was quickly followed by the victim attempting to barricade himself in his bedroom and being forcibly confined. However, based on the way the Crown has framed their argument, I am not satisfied there is any evidence that a properly instructed jury could find Ms. Dawkins took advantage of her position of domination or abused her power over Mr. Foster, for example, by inflicting further injury to him. Rather, the evidence shows Mr. Foster managed to leave the bedroom and his apartment with Ms. Dawkins in very close proximity and the defendant did, in fact, call 911.
38Assuming as I must that the policy behind the constructive murder section of the Code is that where a murder is committed by someone already abusing their power by illegally dominating another, then that murder should be treated as an exceptionally serious crime and, hence, Parliament has chosen to treat these murders as first degree – based on way the Crown has framed their argument, I do not find even a scintilla of evidence to support this theory.
Conclusion
39For these reasons, I find the crown's application to have Ms. Dawkins committed to stand trial on first degree murder must fail.
40Curtis Dawkins will be committed to stand trial on second degree murder, as charged.
Released: March 8, 2017
Justice M. Wong