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make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,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
Date: 2017-08-31
Court File No.: Toronto Region – College Park
Information #17-75003668
Parties
Between:
Her Majesty the Queen
— AND —
Mathew Moreira, Patrick Smith and William Cummins
Before the Court
Before: Justice M. Wong
Heard on: August 1-4, 8, 9, 15, 16, and 22, 2017
Reasons for Judgment released on: August 31, 2017
Counsel
B. Richards and M. Cole — counsel for the Crown
C. Hicks — counsel for the accused Mathew Moreira
C. Morris — counsel for the accused Patrick Smith
S. King — counsel for the accused William Cummins
Judgment
Wong, J.:
Introduction
[1] Mathew Moreira, Patrick Smith and William Cummins are charged jointly with first degree murder in the beating death of Zaher (Zack) Nourredine and the robbery of Mitchell Conery. Identification has been conceded for the purposes of the preliminary hearing. As well, all defence counsel agree that in applying the Sheppard test, there is sufficient evidence for the Court to commit their clients on manslaughter and robbery. In the alternative, Mr. King counsel for William Cummins submits there may be sufficient evidence for a committal on second degree murder and robbery. However, the defence lawyers are united in opposing a committal on first degree murder.
[2] The crown relies on Criminal Code section 229(a)(ii) for a committal on murder and on section 231(5)(e) for a committal on first degree murder. On the latter issue, the crown argues that it should be left to a jury to decide whether Mr. Noureddine was subject to an unlawful confinement that was distinct from the murderous act; or in the alternative, that as in the Supreme Court of Canada decision of R. v. Russell, a jury should be allowed to consider whether Mr. Conery was forcibly confined in what has been referred to as a "multiple victim scenario" in constructive murder cases.
Summary of the Evidence
a) Mitchell Conery
[4] On December 29, 2015, Zack Nourredine (age 25) and his co-worker Mitchell Conery (age 22) met their boss and his girlfriend for drinks after work. They each consumed two drinks and left around midnight. Mr. Conery's car was parked on a street called Lola Road, just off of Yonge Street and south of Eglinton in Toronto. Mr. Conery said he offered to drive Mr. Nourredine home because otherwise he was going to take the subway. Both were wearing business attire. In particular, Mr. Nourredine was known for his elegant dress, hard work ethic, his success and leadership in the company.
[5] Across the street was St. Louis' Bar and Grill. At midnight, the bar was still open and a few patrons were outside smoking cigarettes and socializing.
[6] As Messrs. Nourredine and Conery were walking to the car, Mr. Conery said three males emerged from the alleyway. He testified he had never seen the men before and he expected the three men would simply pass them and keep going. That did not happen. According to Mr. Conery, the first male punched him in his blind spot on the left side of the head, with sufficient force that his glasses flew off and he fell immediately to the ground. He described this male as 6'2' or 6'3" tall, 220 lbs., wearing a grey pullover hoodie. Mr. Conery said as he was getting punched, he saw a second male punch Mr. Nourredine in the head. At this point, Mr. Conery said he was in the middle of the roadway and Mr. Nourredine was closer to the sidewalk, approximately a car's width apart.
[7] Mr. Conery said as he saw Mr. Nourredine getting hit, he thought about getting up. However, suddenly someone stomped on his head. He covered his head and decided to stay down. In his words, "I thought it was probably better to stay down. Any motion to get up would escalate any kind of assault or violence".
[8] Mr. Conery said he was lying on his side facing Mr. Nourredine, but admittedly without his glasses the images were blurred. Mr. Conery believes Zack was on his knees, his arms held outright by the two assailants so that Zack could not fight back. One of the men (referred to by the witness as the "1st man") was the same individual who had sucker punched him said Mr. Conery (6'2 or 6'3 wearing a grey sweatshirt). Conery said Mr. Nourredine was "restrained" in describing and demonstrating their positions. He said the two men were hanging on to Zack's arms and pulling them back, which allowed them to kick and punch him. Mr. Conery also said he was quite certain the "2nd guy" was wearing Timbs, in other words Timberland boots, which he said were khaki colour.
[9] There was another person: a 3rd male, who Mr. Conery said had come over to where he was laying and who stood over him. He described this male as slightly smaller than the other two men, approximately 5'8" tall. This person said, "This is why you don't talk shit. Give me your wallet and it's all over". Mr. Conery said earlier the 1st male, who sucker punched him had also said variations of "you don't talk shit". Mr. Conery had no idea what the men were referring to because they were complete strangers and no words were exchanged before he had been hit. He opined the accusations were self-serving and said for the benefit of others, who may have been watching.
[10] Mr. Conery told this 3rd male that he did not have a wallet. Mr. Conery said if he had a wallet, he "most definitely" would have given it to him.
[11] When asked to describe the punches and kicks to his friend, Mr. Conery said it was difficult to say. "Most definitely" the men were hitting Mr. Norredine in his head, but he was unable to say if they were using their hands and/or their feet. He tried to estimate the number of blows, "more than five. Five to 10 if he were to give an exact range or more". "Definitely overboard" was Mr. Conery's overall assessment.
[12] Mr. Conery said when he could not give him the 3rd male a wallet, the assault continued on Zack. Mr. Nourredine pleaded with his attackers to show some humanity. He begged them to stop, but could not recall Zack's exact words. His tone of voice was "one of struggle", he was trying to defend himself but could not.
[13] According to Mr. Conery, the attack ended when two bystanders from the St. Louis' bar came over. Mr. Conery said the three assailants took off back down the alleyway. He saw his friend Zack get to his feet. Mr. Conery said he felt "hugely relieved" thinking that Zack would be fine, that the nightmare had ended. He assumed they would gather themselves and be on their way. Mr. Nourredine came closer to him towards the roadway, but then collapsed. Mr. Conery said Mr. Nourredine's eyes were puffed up, his breathing was spaced out and he was gasping for air. Mr. Conery said he tried to comfort his friend: he said encouraging positive things while waiting for police and ambulance because he knew others had called 911. Police arrived within minutes. Zack Nourredine was revived on scene, transported to hospital, but later died. The cause of death was complications from blunt force trauma to his head and neck.
b) Other Witnesses at St. Louis Bar
[14] Alejaandra Mihic and her then boyfriend Michael Bruton were smoking outside of St. Louis' bar when Ms. Mihic heard a loud voice say, "Do you have a fucking problem, man?" She turned around and noticed two separate groups: three in one, and two in the other. There seemed to be some sort of conflict and there was yelling and cursing. Ms. Mihic described two men "attacking…quite brutally" one man. At first, the attackers used just their fists, but when the man was on the ground, Ms. Mihic said the two men were "kicking him in the face" and perhaps his upper body. In her words, "there seemed to be no stopping", "they didn't seem to hold back even though he seemed defenseless", "they were kicking him in the face". She did not watch too long because it was "appalling". Ms. Mihic said she went inside to tell the manager to call 911. When she came out, the "victim" was on his back struggling to breath. She knew police and ambulance were on their way. Ms. Mihic was only able to provide vague descriptions of the attackers: "between the ages of 20 to 30", the men were "not black", they wore darker coloured clothing, and she believed they wore "boots, heavier work/winter boots".
[15] Michael Bruton first noticed five people across the street. Mr. Bruton said his first impression when he saw punches being thrown was that it was a group of drunken friends. When asked to describe the force of the punches, Mr. Bruton said "probably the most amount one could give". His opinion of the situation changed when one male was knocked to the ground: he was on all fours and three men were beating on him. Mr. Bruton said there were "multiple kicks" including kicks to the man's face. When asked to describe the force of the kicks, he said they were "ones like attempting to inflict damage" using the top of the foot. He saw that one of the group "kneed" the same person in the face. When asked again to describe the force of the knee to the face, Mr. Bruton said "quite a bit". To the best of his recollection, Mr. Bruton believed it was different people that kicked and kneed the victim, who Mr. Bruton said was "helpless".
[16] As for the 5th person, which a jury can reasonably infer was Mitchell Conery, Mr. Bruton said he was hit, immediately fell to the ground and stayed on the ground. He said once this "guy" was down, then the same assailant approached the other victim. Now all three men beat and kicked the other man. Mr. Bruton said at the start, he did not hear any words being exchanged.
[17] Mr. Bruton said the altercation happened quickly "perhaps a minute or two". He said that when he and the others approached the group, the three men ran down the alleyway. He went to Mr. Nourredine, put his hand reassuringly on his back, and asked him if he was alright. Mr. Nourredine stood up, took about two steps, but fell over striking his head on the roadway.
[18] Mr. Bruton was unable to give a detailed description of the three men. He remembered some wearing darker coloured sweatshirts or jackets. The group were "younger guys in their 20s" based on their style of clothing. Some of the men were his height, which was 6 feet, and some were shorter. He could not recall their footwear.
[19] Lastly, the crown called Alexander Boake, who was also standing outside of St. Louis'. Mr. Boake said he watched a car, an Impala, drive along Lola Road and park in the alleyway across from the bar. He said he paid attention because he wondered whether he would recognize the people in the car. He saw three men get out and start walking towards St. Louis'. He heard someone say, "Don't talk shit", at which point a fight broke out. Mr. Boake said someone was on the ground getting kicked in the head multiple times. The kicks were "definitely hard", "aggressive" and the witness described them as "violent". The person receiving the blows got up, when someone put him in a headlock "for a few seconds" and another person kneed him in the face. Mr. Boake said this was "sort of the last blow". The three walked off and then he and others walked over from St. Louis'. He too saw Mr. Nourredine struggle to his feet, then take a few steps and collapse.
[20] He described the incident from beginning to end as lasting 10 to 15 seconds.
[21] Mr. Boake recalled it was a 2-on-1 type fight and not a 3-on-1. Mr. Boake described the three men who came out from the alleyway. One was wearing dark clothing, one was wearing a black hat (in cross examination, a New Era cap), another wore a Michelin puffy type winter vest. He could not tell the persons' skin colour.
c) Cause of Death – Pathologist Dr. Cunningham
[22] Dr. Kristopher Cunningham, Forensic Pathologist, submitted a report and testified that Mr. Noureddine's death was the result of complications from blunt impact head and neck trauma. In the post mortem photographs, Mr. Noureddine suffered extensive injury around his right ear to both the upper and lower part of the ear as well below and behind the ear on the upper part of the neck near the base of the skull. Not visible to the eye, Mr. Noureddine also suffered deep hemorrhaging within the soft tissues and muscles to the back of his neck.
[23] The cause of Mr. Noureddine's death was a direct blunt impact to the back of the right side of his neck which resulted in fractures to the 1st cervical (C1) spinal vertebra in the region called the right transverse process. As a result of the fractures, the right vertebral artery was torn, causing bleeding into the subarachnoid space around the brain. Bleeding and hemorrhaging around the brain stem, Dr. Cunningham said results in a person losing consciousness. The evidence of witnesses seeing Mr. Noureddine stand up, take a few steps and then collapse is consistent with his medical findings. The damage to the brain caused by the subarachnoid hemorrhage is sudden, the heart stops, the person goes into cardiac arrest and ultimately it leads to brain death.
[24] It was not possible for Dr. Cunningham to ascertain if the blunt impact to the back of the right side of the neck was caused by a punch or a kick or by some other inflicted mechanism. For example, a blow to the head can cause the person's head to snap to the opposite side, which can tear the vertebral artery on the inside. The blood collects around the brain stem which can cause sudden death, or the person can lose consciousness immediately or after a few minutes. The individual either dies, or is resuscitated and dies later on. Dr. Cunningham testified that a fracture to the C1 vertebrae could not be caused by a simple fall even by striking a hard surface such as a roadway where the expected injury would be lower in the spinal column (the exception being children under age of 5). Dr. Cunningham described the force required to cause a fracture to the C1 vertebrae as "low energy". As he put it, it is a "well placed" injury with the C1 vertebrae tucked up in the skull and that he learned through his forensic pathology training this was a "hot spot" as counsel put it or, in other words, a potentially lethal area should the transverse process fracture and tear an artery.
[25] He was also unable to ascertain if Mr. Nourredine's injury was caused by the application of a single impact or overlapping multiple impacts. The sequence of the impacts to his head and neck also could not be ascertained. Nor was it possible to determine if the blunt impact to the back of the right side of the neck was caused by a punch, a kick, a knee, a stomp, or by some other inflicted mechanism. Dr. Cunningham could not determine Mr. Nourredine's body position when he suffered any of his injuries.
[26] Mr. Nourredine also had an injury to his left cheek, which Dr. Cunningham said was a discontinuous patterned contusion. In other words, it was an injury caused by contact with a textured surface for example, a heavily patterned footwear. As well, he had bruises to the inside of his mouth. All of Mr. Nourredine's injuries were to his face, head and neck area. There were no injuries to his hands, knees or his body. He was otherwise, a healthy 25 year old man, he was 5'11' tall and was of average weight.
d) Other Evidence
[27] Police released a news bulletin asking if anyone who may have seen or heard anything around midnight on December 29, 2015 to contact them. Defne Boyacigil and her friend, Celso Insuaste were sitting in a parking lot of an apartment building at 100 Merton Street and they watched the comings-and-goings of three men, who parked an Impala beside them. The two vehicles left the parking lot at the same time. The witnesses testified they happened to follow the Impala as it drove along Merton, turned right on Yonge Street and then turn down an alleyway around the corner from St. Louis' bar. Upon hearing of the news bulletin, the couple went to police and told them what they saw.
[28] Police obtained security surveillance video from 100 Merton Street. For the most part the quality of the video is excellent. The videos taken from different areas of the apartment building from various angles and at different times commenced at 6:32 pm, in the underground parking lot. The videos in summary record three men, which defence counsel for the purposes of the preliminary hearing, agree shows the defendants Mathew Moreira, Patrick Smith and William Cummins. The videos show all three defendants moving in and around 100 Merton Street up to 12:07 am, where two of the suspects Messrs. Smith and Cummins are in the building's front lobby. It is the crown's position that it is open to a jury to find that Mr. Moreira was outside waiting in the Impala, which was parked beside the witnesses Boyacigil and Insuaste. Both vehicles then left 100 Merton.
[29] Mr. Nourredine and Mr. Conery left the restaurant near midnight and were attacked shortly after.
[30] The next video from 100 Merton is from 2:08 am, when the silver/grey Impala returned to the underground parking lot.
[31] The crown submits a jury could find the male wearing a dark toque, whose face is clearly visible at times on the video, was Mathew Moreira. The crown submits Mr. Moreira appears on the video at approximately 11:27 pm on December 29th wearing brown or tan coloured work boots. He is still wearing the boots when he re-appears in the video at 2:10 am. By 2:40 am, the crown submits the video shows Mr. Moreira has changed from wearing brown construction boots into blue running shoes.
[32] The crown has also presented evidence that Mr. Patrick Smith Sr. was a tenant at 100 Merton Street, but was out of the country on December 29 and 30, 2015.
[33] Police also set up undercover surveillance with Patrick Smith as the target. On January 8, 2016, police followed Mr. Smith as he drove an Impala and met William Cummins at an address in Scarborough. The two men changed the license plates of the Impala.
[34] On January 11, 2016, police set up surveillance on William Cummins. There is evidence that Mr. Cummins picked up Mr. Moreira, and they went to Fairview Mall. Undercover officers also took photos of Mr. Moreira and Mr. Cummins as they entered an elevator in a residential apartment building. In the photos, Mr. Moreira is seen wearing tan coloured work boots. His face is visible and again a jury may find that Mr. Moreira is the same person in the December 29 and 30th videos taken from 100 Merton wearing in fact tan/brown workboots, and they will see him in court. For the limited purposes of the preliminary hearing, it was agreed Mr. Moreira was arrested on March 22, 2016, wearing brown/tan coloured construction boots, which were seized and photographed.
[35] In the meantime, police received a judicial authorization on February 25, 2016, for an elaborate undercover operation whereby police befriended Patrick Smith while he was in custody and on subsequent dates met with him, and recorded their conversations. In court the officers identified only by their pseudonyms G, K, M and N, all described the various roles they played leading to Patrick Smith admitting his role in the beating of Mr. Nourredine and Mr. Conery. Mr. Smith's counsel emphasizes his client's utterances are the only direct evidence of mental intention, where he said the following to Officer G:
Smith: "so I left that's the facts and then that's all that really is, is that we went out, we were drinking right, my boy was hot headed that night we ended up fucking…these guys ended up saying shit...and we just ended up beating them too hard. Didn't know nothing about it even at that night, that night we ended going out to a different bar right…had a couple of drink there fucking toughed it around with different guys (unintelligible) at a different bar right…so we didn't know anything about it until the next morning my boy called me, he's like you, he's like "check the news" and then from that point I was just like "yo cut off…." [1]"
[36] All three defendants were originally charged with second degree murder and robbery. The charge of first degree murder was laid October 18, 2016.
The Issues and The Law
a) The Test for Committal
[37] A preliminary inquiry judge must determine whether there is sufficient evidence to permit a properly instructed jury, acting reasonably, to convict. [2] 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. [3]
[38] Where 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. [4]
[39] "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 [5]
b) Murder and Manslaughter
[40] Section 229(a)(i) of the Code provides that culpable homicide is murder where the person who caused the death of a human being, meant to cause his death; and section 229(a)(ii) provides culpable homicide is murder where the person meant to cause bodily harm that he knew was likely to cause death and was reckless whether or not death ensued. The crown relies on section 229(a)(ii) for a committal of all three defendants for murder. Defence counsel submits there is insufficient evidence to meet the Sheppard test; in other words, counsel argue there is no evidence or reasonable inference a properly instructed jury could draw that the defendants had the subjective knowledge that the bodily harm was of such a nature that Mr. Nourredine's death was likely.
[41] There is no direct evidence of either Mr. Moreira or Mr. Cummins' intention and so the Court must draw reasonable inferences from the evidence it does have. In Mr. Smith's case, he told undercover officer G that he did not intend to kill Mr. Nourredine but rather it was a robbery and he and the others went too far. However, as it applies to all three defendants, the Court has to consider whether their mental intention can be inferred from the circumstantial evidence including the degree of force used, the nature and extent of the injuries inflicted as well as any other evidence that assists in inferring the intent of the accused at the time of the commission of the offence. [6]
[42] For the following reasons, I am satisfied that there is evidence that the nature of the attack in particular, that the perpetrators deliberately targeted Mr. Nourredine's head, that a jury properly instructed could find that they meant to cause him bodily harm of a kind likely to result in his death and were reckless whether or not he died.
[43] The following cases support this finding:
[44] In R. v. Pittman [7], the Ontario Court of Appeal ordered a new trial after a finding of guilty of first degree murder finding the trial judge's instructions to the jury were inadequate. In Pittman the accused and the victim were friends. Pittman had come by the victim's home a couple of times looking for money. Witnesses said he appeared "stoned". On the third occasion, the appellant pushed open the door, grabbed the victim by the throat and threw her to the floor. The accused then ransacked the home and fled. The cause of the victim's death was "asphyxiation by blunt force trauma". The pathologist testified the amount of pressure needed to decrease the flow of fresh blood necessary for life was "a minimum degree". There were no signs of classic strangulation which may include marks or injuries to the decedent's neck or other indicia. The victim also had medical issues so the amount of force needed to cause asphyxiation was "much less" than had she been healthy. The accused testified and admitted he caused the victim's death, but that he did not intend to kill her or cause her serious injury that he knew was likely to result in her death.
[45] Mr. Hicks for Mr. Moreira submits the case of Pittman, supra can be distinguished from the facts before this Court. In Pittman, the victim died from strangulation. Counsel argues it is common knowledge that breathing is essential to life, which is why a person squeezing someone else's neck would know that death is likely. In this case, Mr. Hicks argues kicking and punching albeit to a person's head, death would not be foreseeable.
[46] In Olubowale [8], the Court of Appeal refused an order of certiorari against a committal for trial on murder. The appellant was a bouncer, who was also a trained Olympic boxer. He was a foot taller and weighed twice that of the victim. The victim had been hurling racist epithets at Mr. Olubowale, who then struck the victim three times in the head and he fell to the sidewalk each time. On the last and fatal blow, the victim struck his head on the concrete and died. The blows were described as "precise", "powerful", "full force" and "very strong". The medical evidence revealed the cause of death was the victim's head striking the pavement as opposed to the blows themselves. The preliminary hearing judge found that it was at least reckless for the appellant to strike a smaller man on a sidewalk, where he would probably fall and might hit his head, and die. The Court of Appeal concluded although the evidence was weak, it could also support an inference that the appellant knew his actions were likely to cause death.
[47] In R. v. Litthemane [9], Justice Harris of this Court, committed the accused to trial on second degree murder. Two groups of men started fighting. The appellant struck three men with a baseball bat (also kicks to the head): One of the men died of severe blunt force trauma to his head while the other two victims survived but had serious and permanent injuries. As Justice Harris noted at para. 47, there was no direct evidence of the accused's mental intention. As in the case before this Court, Littheman was essentially a circumstantial case.
The question is -- can the intention to commit murder under s.229 (a)(ii) be inferred from the actions of the accused on the usual assumption that individuals intend the natural consequences of their actions? In other words, is there some circumstantial evidence that the defendants intended to commit bodily harm knowing that it was likely to cause death and being reckless as to whether or not death ensued? The defence argues that there is no evidence of the requisite mental state that would meet the test for committal in U.S.A. v. Sheppard. It is argued there was no evidentiary basis for finding either defendant had the requisite foresight of the likelihood of death from bodily harm caused by the assault in which they participated (or were a party to), particularly where there was no direct evidence either defendant had any contact with Mr. La. (See R. v. Cooper)
In the absence of direct evidence, is there a reasonable inference available on the basis of circumstantial evidence that either defendant intended to kill or to cause bodily harm that he knew was likely to cause death and is reckless whether death ensues or not? The case authorities hold that in considering whether that mental state can be inferred from the circumstantial evidence in the case, the court may consider all relevant evidence including the degree of force used, the nature and extent of the injuries inflicted as well as any other evidence that assists in inferring the intent of the accused at the time of the commission of the offence (See R. v. Pittman).
[48] In Iuliano [10], the preliminary hearing judge committed on manslaughter and discharged the respondent on second degree murder. In granting the crown's application for certiorari, the reviewing Court held the preliminary inquiry judge lost jurisdiction by failing to consider the inferences that a reasonable jury properly instructed could make based on all of the evidence. In that case, the accused's friend deliberately pushed the victim into Iuliano, setting him up for a confrontation with Iuliano. The accused punched the victim, who fell to the ground. When the victim tried to get up, Iuliano kicked him in the head "with great force". Iuliano then walked away "indifferent to the consequences".
[49] Based on the facts in Iuliano, which I find are far less serious than the evidence before me, the Superior Court held that on the whole of the evidence, there ought to have been a committal on second degree murder.
[50] The crown also submits the decision in R. v. Manasseri [11], where the Ontario Court of Appeal upheld the Crown's successful certiorari application concluding that the preliminary hearing judge exceeded his jurisdiction by weighing the conflicting evidence and the possible inferences that could be drawn from the evidence. The victim was assaulted twice within a short period of time. The first assault took place "upstairs" in a bar, where the defendant, who was taller and heavier than the victim, smashed the victim's head between 10-20 times in rapid succession on the bar. Witnesses said the victim was dazed and injured, but conscious. The victim managed to walk downstairs escorted by the bouncer and he called a friend on his cell phone. While downstairs, someone punched him, and he died. The cause of death was a head injury consistent with blunt force impact to his head. The pathologist's first opinion was the victim would have died from the first assault, even if had not suffered a second assault. During cross examination, defence counsel pointed out to the pathologist that the victim had performed many tasks including using his cell phone, walking unaided down the stairs and so on. Based on that evidence, the doctor reversed her initial opinion that the majority of the brain damage was done "upstairs"; instead she opined the secondary blow was more likely the cause of the victim's death. The preliminary inquiry judge concluded at para. 23 that the totality of the pathologist's evidence did not provide a basis upon which a reasonable trier of fact could find that the accused's assault "upstairs" caused the victim's death. At para. 34, the Court of Appeal held the judge exceeded the limited authority under s. 548(1) of the Code, by failing to consider evidence relevant to the nature of the first assault and by weighing the conflicting evidence, committed a jurisdictional error.
[51] The last case, I will refer to is the decision of Justice Lipson of this Court in R. v. Landell [12]. The crown submits some of facts in Landell are similar to the case before this Court. The victim was beaten to death by the accused likely over a dispute relating to Landell's girlfriend. The post-mortem examination revealed the cause of death was blunt force trauma associated with alcohol intoxication (unlike this case, the decedent was extremely intoxicated with a blood alcohol level of 430 mg/100 mls of blood). What is similar the crown submits is almost all of the victim's injuries were confined to his neck and head regions; there was no evidence of any injury including abrasions to the victim's hands or feet; no evidence of any defensive wounds or offensive wounds; most of the injuries were described as "moderate force" blows with the exception being a fracture to the frontal skull bone which would have required a "tremendous force". The pathologist testified that the fracture could have been caused if the decedent had been lying close to the ground and someone stomped or punched the back of his head causing his forehead to hit the ground. The brain would have swelled, blocking the blood supply and cessation of the body's vital organs. In that case, defence counsel relied on the doctor's opinion that most of the head injuries required blows of "moderate force". Counsel in Landell argued there were several scenarios in relation to how the major injury, the frontal skull fracture, could have occurred and that the cause of this injury, whether by punch, kick or stomp could not be identified with any degree of certainty. There was also no evidence that the frontal skull fracture alone was the cause of death. Defence counsel submitted while an inference could be drawn that Landell would "possibly foresee a danger of death" when he repeatedly struck the victim in the head, there was no evidence permitting an inference that he foresaw a likelihood of death.
[52] In committing the accused to stand trial on second degree murder, Justice Lipson at para. 44 of his decision considered many factors. I will incorporate the same reasoning in my findings momentarily.
[53] Counsel Mr. King for Mr. Cummins submits at para. 75 of his factum that there is an utter lack of circumstantial evidence to support murder, but concedes there are reasonable inferences for a committal on manslaughter. He notes the parties had no previous history, no prior animus, no motive for murder, and no weapons were used. As well, the assault albeit violent was relatively brief and Mr. Conery was left uninjured. Mr. Morris on behalf of Mr. Smith adds to that list that on the 100 Merton street videos, his client wore running shoes.
[54] Additionally Mr. King notes Dr. Cunningham's finding that the fatal injury to Mr. Nourredine was a fracture to the transverse process, which is tucked under the C1 vertebrae. Dr. Cunningham testified that prior to his medical studies, he was unaware that the transverse process was so vulnerable to injury. Counsel submits there is no reasonable inference that can be drawn that Mr. Cummins and his co-accused, who have no medical background, knew that bodily harm to that area behind his right ear would be fatal.
[55] As previously stated, this Court may consider all relevant evidence including the degree of force used, the nature and extent of the injuries as well as any other evidence that assists in inferring the intent of the accused at the time of the commission of the offence. This includes the following:
i) The number of blows:
[56] This was not a case of a single, isolated punch. The witnesses described what they saw:
- Mr. Conery: "definitely overboard", "…more than 5. Five to 10…or more"
- Ms. Mihic: "they didn't hold back", "shocking", "two men attacking…quite brutally" one, "they didn't seem to hold back even though he seemed defenseless", she could not watch too long because it was "appalling"
- Mr. Bruton: "the most amount of force one could give", "quite a bit" of force used to knee the victim in the face, they were "attempting to inflict damage"
- Mr. Boake: "definitely hard", "aggressive", "violent"
ii) Location of the blows:
[57] They were aiming for his head:
- Mr. Conery: "most definitely" they were hitting him in the head
- Ms. Mihic: at first the attackers used just their fists, but when the man was on the ground, two men were "kicking him in the face" and perhaps his upper body.
- Mr. Bruton: when the victim was on all fours on the ground, three men were beating on him and there were multiple kicks including to the man's face. One of the group "kneed" him in the face.
- Mr. Boake: someone was on the ground and that person was getting kicked in the head multiple times. The kicks were "definitely hard" and "aggressive". After the person got up, someone put him in a headlock and another person kneed him in the face.
- Dr. Cunningham testified all of Zack Nourredine's injuries were to his head, neck and face.
iii) The brain is a vital organ:
[58] To simplify and paraphrase Dr. Cunningham's testimony the brain at its most fundamental tells your heart to beat, your lungs when to breath and it allows us to remain conscious. I find it should be left for a jury to decide if it is common knowledge that the brain is a vital organ in the body or whether it is reasonable that one does not have to be a medical student to know that the brain is essential for life. Defence counsel asked Dr. Cunningham many questions about research in the United Kingdom where CCTV cameras capture bar fights where a person dies (or does not die) after being punched in the face. However, this is not a case of one blow to the back of Mr. Nourredine's right ear. According to the doctor, that injury could have been caused by one impact or overlapping impacts. In this case, all of the eye witnesses testified that were multiple blows delivered, most if not all of them deliberately targeting Mr. Nourredine's face and head.
iv) Outnumbered and overpowered the victim:
[59] Some witnesses testified that two people were beating Mr. Nourredine although Mr. Bruton believes all three men were directly involved in beating and kicking him. In either scenario, the victim was outnumbered and defenseless. None of the eye witnesses even suggested Mr. Nourredine fought back nor was he ever in a position to offer any resistance. He was no match for the angry group of strangers, who the jury may find deliberately targeted him and Mr. Conery.
v) Work boots:
[60] Counsel properly point out there is no allegation of weapons being involved, for example, as in Littheman, supra, where a baseball bat was used. However according to Ms. Mihic, the attackers were kicking Mr. Nourredine in the face and one of the attackers wore "boots, heavier work/winter boots". Mr. Conery said one of the attackers wore "Timbs". I find it should be left for a jury to consider whether kicking someone in the face while wearing reinforced toed work boots, in certain circumstances, is comparable to striking someone with a baseball bat.
vi) How the attack stopped:
[61] According to Messrs. Conery and Bruton the attack stopped only after by-standers walked over. Mr. Boake testified that after Mr. Nourredine was placed in the headlock and kneed in the face, the three assailants walked off. It is unclear from Mr. Boake's testimony whether the three men left the scene before or after the group from St. Louis' approached. A jury may reasonably infer that the beating would have continued but for the intervention by others, which may assist them in inferring the defendants' intent at the time of the commission of the offence.
[62] In summary, the totality of circumstantial evidence, in my view, satisfies the Sheppard test that the defendants intended to cause bodily harm of such a grave and serious nature that each knew was likely to result in the death of the victim, but were reckless as to whether or not death ensued.
Party to the offence:
[63] Mr. Hicks argues there is no evidence Mr. Moreira was a party to murder and asks the Court to accept those witnesses' evidence, who said that only two males attacked Mr. Nourredine. Mr. Conery, who was closest to what was happening, testified that the shortest of the three males stood over him while his friend was being attacked. In court, I agree Mr. Moreira appears shorter than his co-accused.
[64] However, according to Mr. Bruton all three men were beating, punching and kicking the victim. As well, Mr. Conery described that the 2nd person attacking Mr. Noureddine wearing khaki coloured "Timbs" boots. Ms. Mihic similarly said one of the people kicking the victim in the face wore tan coloured work/winter boots. The jury will see the 100 Merton video, and they may conclude that it Mr. Moreira is the male with the black toque, dark jacket wearing brown work boots prior to the attack; but after the incident, Mr. Moreira changed into sneakers. Later, Mr. Moreira is photographed by undercover officers in the elevator with Mr. Cummins. Mr. Moreira is seen wearing brown/tan work boots, and when he is arrested he wore similar footwear.
[65] I am satisfied on the whole of the evidence that a jury properly instructed could find that Mr. Moreira was a principal in the beating that lead to the death of Mr. Nourredine so the issue of parties does not need to be addressed.
Exculpatory evidence of Mr. Smith:
[66] Mr. Smith told undercover officer G that he neither knew of nor expected Mr. Nourredine's death when he left the scene. It was not until the next morning when he was told to "watch the news" that he learned of the death. Counsel submits this is some evidence of an absence of subjective foresight of a likelihood of death resulting from Mr. Smith's participation in the assault and robbery.
[67] As previously stated, it is not open to a preliminary inquiry judge to assess the quality, credibility and reliability of the evidence. [13] Mr. Smith's statement to the undercover officer, if admissible against him at his trial, is some evidence the jury may consider and they might accept it, reject it or find it falls somewhere in between. But that is the function of the jury, not mine.
[68] In summary, based on all the evidence, I am satisfied that is open for a properly instructed jury acting reasonably to find that each defendant intended to cause bodily harm (subjective intent) and each knew that the bodily harm was of such a nature that it was likely to result in death (subjective knowledge), and were reckless whether death ensued or not.
c) First Degree Murder
[69] 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 enumerated offences under section 231(5) of the Code of which subparagraph (e) lists forcible confinement. [14]
[70] In the course of a continuous sequence of events an accused commits the crime of unlawful confinement and chooses to exploit the position of dominance over the victim resulting from that confinement to murder the victim, then the accused has committed first degree murder as defined in s. 231(5). The purpose of the confinement is not relevant. [15] The classification of murder as first degree when committed in the course of a forcible confinement reflects the increased moral blameworthiness of the offender who kills while taking advantage of an illegal domination over the victim. [16]
[71] 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 [17] 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)
[72] The crown submits there are two avenues to a committal on first degree murder: first, the crown argues there is some evidence that Mr. Nourredine was unlawfully confined when his assailants held his arms and prevented him from fleeing. The crown submits the holding of the victim's arms constitutes an unlawful confinement, which was "separate and distinct" from the murderous act. Additionally, the crown submits there is some evidence that after Mr. Nourredine was on the ground and thus free from his attackers, he was put in a headlock and kneed in the face. The crown argues the headlock was a second "separate and distinct" act, which is temporally and causally linked to the murder, but not so intertwined that it was indivisible from the murder itself. [18]
[73] In the alternative, the crown submits the Supreme Court in Russell, applies. The Russell, the Court considered the multiple person scenario, whereby the accused murdered one person in connection with the domination of the other. The Court found that as long as there are two distinct acts as part of the same transaction, it is immaterial that the victim of the killing and the victim of the enumerated offence are not the same".
[74] Defence counsel all submit that the assault on Mr. Nourredine and any alleged confinement was not a distinct act separate of the assault and robbery. In other words, counsel argue that there is no evidence a reasonable jury properly instructed could find that either Mr. Nourredine or Mr. Conery were forcibly confined in a manner that was not co-extensive with, inherent in, or amounting to distinct criminal acts separate from the actions which caused Mr. Nourredine's death.
[75] As for Russell scenario, Mr. Hicks on behalf of Mr. Moreira argues Mr. Conery was never confined. Mr. Hicks submits the male, who placed his foot against Conery did so merely to gain his attention to a demand for his wallet. Similarly, Mr. King for Mr. Cummins argues Mr. Conery's alleged confinement was "trivial" and indistinguishable from the assault and robbery at large. Mr. Morris for Mr. Smith submits the cases of R. v. Johnstone [19] and R. v. Martin [20], which I will review momentarily.
[76] For the following reasons, I agree with defence counsel: there is an absence of any evidence that a properly instructed jury could find that Mr. Nourredine was confined either prior to be beaten or while in the midst of being kicked and punched including being placed in a headlock, which was not subsumed in the act of killing him.
[77] However, I accept the crown's submission that there is some evidence that Mr. Conery was unlawfully confined; that this was a separate and distinct act from Mr. Nourredine being murdered; and that the two distinct acts were part of the same transaction. For the following reasons, the defendants will be committed to stand trial on first degree murder.
i) Single Victim:
[78] The crown submits the cases including Pritchard, supra; and Kimberley, supra. In Pritchard, the victim was forced at gunpoint to disclose the location of some hidden drugs and then she was shot. In Kimberley, the young doctor was dragged in an underground parking lot to an area where she was subsequently beaten to death. In both cases, the victims were confined in one location then forced to move to another place where they were then killed. Here, the facts are very different although I appreciate the cases stand for general propositions of law that I have considered.
[79] In Sandhu [21], the victim was surrounded by a large group of men, who beat him to death. At trial, the accused brought a motion for a directed verdict citing no evidence of unlawful confinement. The Court held that surrounding the victim was not a distinct act from the murder itself and granted the application.
[80] The Crown acknowledges that the facts in Sandhu may have some similarities to the present case (although they submit there was no evidence of the victim's arms being grabbed or being put in a headlock). However, the crowns argue that Sandhu has been distinguished in cases such as in R. v. White [22].
[81] In White, he and his co-accused planned to rob the victim. They followed him to a catwalk. Witnesses saw the victim being chased by the defendants, one of whom (not White) caught up to him and grabbed him in a bear hug. The accused White caught up and stabbed him in the chest. White, who was 18 years old, was convicted of first degree murder and appealed, his lawyers arguing that the reasoning in Sandhu applied, and that the bear hug was co-extensive with the killing and could not constitute a distinct act. The Court of Appeal disagreed and found the bear hug was a "patently distinct act" noting three reasons: first, the distinct act requirement demands only that the confinement be distinct and independent from the act of killing. Secondly, the victim had been grabbed and restrained for about 2 to 3 seconds prior to the stabbing. The grabbing and the bear hug prevented the victim from making good his escape. Thirdly, the Court of Appeal held that although the grabbing facilitated the stabbing, those acts were independent of, rather than part of, the stabbing.
[82] The crown submits Justice Di Zio's decision in Nisula [23]. In that case, the victim died after being beaten and then stabbed. However, there were no eye witnesses to the actual incident. The Court drew reasonable inferences that based on the location of where the beating took place (a small confined area) and evidence that the interaction took between 10 to 20 minutes, the crown's theory taken at its highest – that the victim was cornered, he was not free to leave, his attackers demanded from him information about a 3d party and then he was beaten and stabbed – justified a committal on first degree murder.
[83] In the case before me, the Court does not have to infer what happened to Mr. Nourredine. Eye witnesses have painted a disturbing and tragic picture. The entire incident happened quickly. According to Mr. Conery, the entire incident may have lasted between 10 to 30 seconds. Ms. Mihic saw some but not all of what was happening across the street. She went inside to tell the manager to call 911 and the incident had ended by the time she returned. Michael Bruton said the altercation happened quickly, a minute or two. Mr. Boake said from beginning to end, the incident took 10 to 15 seconds.
[84] Various witnesses described Mr. Nourredine being held by his arms, which allowed the attackers to exploit their position of dominance over him and certainly rendered the victim defenseless. However, none of the eyewitnesses described any point the attack stopping; nor Mr. Nourredine ever being able to free himself and flee only to be caught and beaten again. The attack was steady and relentless. The witnesses all describe the incident happening very quickly. Section 231(5)(e) of the Code requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. As noted by the Court in Kimberley, had the appellants and struck and killed the victim as she left the elevator and then took her purse, there would be no basis upon which the appellants could be convicted of first-degree murder under s. 231(5)(e). On that example, the Court said that the act of confinement and the act of killing were one and the same. [24]
[85] The crown further submitted a jury should be left to consider Alexander Boake's testimony that Mr. Nourredine after being kicked in the head multiple times, tried to stand up, but then someone put him in a headlock and another person kneed him in the face. The crown submits the headlock is a separate and distinct act from the blows and kicks. According to Mr. Boake, the headlock was "not long, a few seconds". I did not take Mr. Boake's evidence to be that Mr. Nourredine was placed in a headlock "for a few seconds" and then was kneed in the face. Rather when read as a whole, Mr. Boake's testimony was that Mr. Nourredine struggled to get up, but then someone put him a headlock, he was kneed in the face, fell back down and then the attackers left. Mr. Boake testified the entire incident from beginning to end took "10-15 seconds".
[86] In Pritchard [25], Justice Binnie noted that if the act of confinement is consumed in the very act of killing, then s. 231(5)(e) is not made out. In this case, I find there is an absence of evidence that the defendants murdered Mr. Nourredine while committing the separate act of forcible confinement either by holding his arms or by putting him in a headlock. Had Mr. Nourredine escaped even for a few seconds, and then was chased and beaten again, then a committal on first degree constructive murder ought to be left to the jury. I appreciate the distinction seems artificial, but that is the law.
ii) Multiple Victims
[87] The crown submits the Court can apply the reasoning in Russell, supra, and commit the defendants on constructive first degree murder based on section 231(5)(e), where the victim of the murder and the victim of the enumerated offence are not the same. The Crown submits the Court could find some evidence that Mitchell Conery was unlawfully confined, which was a distinct act from the murder of Mr. Nourredine but part of the same transaction.
[88] In Russell, the appellant was sexually assaulting victim #1, when he left her tied up, he went downstairs and murdered the basement tenant, victim #2. The preliminary inquiry judge found the appellant could be committed to trial on first degree murder finding that nothing in the language of the Code or earlier decisions such as R. v. Pare [26] limited the victim of the enumerated crime must the same as the victim of the murder. On certiorari to the Ontario Superior Court, the justice quashed the committal for first degree murder and substituted a committal on second degree murder, on the theory that s. 231(5)(e) requires the victim of the two separate and distinct acts be the same person. The Court of Appeal restore the committal on first degree murder, noting that even if the preliminary hearing judge erred in finding that s. 231(5)(e) could apply to two separate victims, the error constituted an error within the jurisdiction of the prelim judge, and accordingly not reviewable on certiorari. The Supreme Court of Canada settled the issue in Russell, applying common sense statutory interpretation finding that the words in question should be considered in the context in which they were used, and read in a manner consistent with the purpose of the provision and the intention of the legislature. [27] The Court held that the language of s. 231(5) is clear. The provision does not state that the victim of the murder and the victim of the enumerated offence must be one and the same. It requires only that the accused have killed "while committing or attempting to commit" one of the enumerated offences.
[89] Defence counsel agree that Russell is good and applicable law.
a) Was Mitchell Conery confined:
[90] The Supreme Court in R. v. Luxton [28] at para. 11 noted that to commit the underlying offence of forcible confinement in the context of (now) s. 231(5)(e), the offender must use "physical restraint, contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another".
[91] Counsel for Mr. Moreira argues Mr. Conery was never confined and the actions of the 3rd male were limited to him placing his foot against Conery only to gain his attention for surrendering his wallet. Any threat of violence was not of significant duration nor did it surpass what would be inherent in any act of robbery. Mr. King for Mr. Cummins argues that Mr. Conery's alleged confinement was trivial and indistinguishable from the assault and the robbery at large.
[92] To review his evidence briefly, Mr. Conery said he was knocked to the ground after being suckered punch. He saw the other men hitting Mr. Nourredine. He raised his head and thought about getting up, but then someone "stomped on his head". He covered his head bracing, as he said for another blow – he drew up his knees and he decided to stay down to avoid escalating the situation. The attacker then switched places with a 3d male, who Mr. Conery in cross examination said stood over him, and applied "a slight amount of force" with his foot. He said it was not a "forceful blow" compared to the previous two blows. Mr. Conery took it that the person wanted to get his attention "so I would look at him". He could not produce a wallet, so the assault on his friend continued.
[93] Firstly, I am confident a properly instructed jury would disagree that what happened to Mr. Conery was "trivial". The man was suckered punched with sufficient force that his glasses flew off and he was knocked to the ground. It should be left for a jury to possibly infer that the kick to Mr. Conery's head was to reinforce the message that he stay on the ground, out of the way as it were. He covered his head, curled up his legs and tried not to escalate the situation. He was not free to move. He was not lying there voluntarily. Based on the whole of his evidence, I am satisfied a properly instructed jury could find Mr. Conery was forcibly confined.
[94] Secondly, I am satisfied the unlawful confinement went beyond the transitory restraint inherent in the violence to commit a robbery. [29] For example, if the facts were different and had Mr. Conery been knocked to the ground and he was held while the person searched him looking for a wallet then, perhaps, in those circumstances the confinement could be considered inherent in the violence necessary for the robbery. However, on these facts, I find it is open for the jury to find that the defendants' restraint of Mr. Conery was not "transitory" or incidental to the robbery.
[95] As well, the crown notes in their factum at para. 88, the relevant question is not whether the confinement was distinct from the robbery, but whether the confinement was distinct from the killing. [30]
[96] Lastly, I am satisfied based on a review of Mr. Conery's timeline, he was restricted of liberty for a significant period of time. The cases have held that there is no minimum time required. As Justice Durno noted in R. v. Mullings [31], there are no fixed times, i.e. "no lines drawn in the sand", that determines how long is "significant". Every case must be examined on its particular facts and circumstances. In White, supra [32], after being chased down the catwalk, one accused caught up and held the victim for "two to three seconds" before another accused stabbed him to death. Here Mr. Conery, while lying on the ground described the events taking between 10 to 30 seconds. But for the time it took to be sucker punched and knocked to the ground, it is open to a jury to find that for the remainder of the time, Mr. Conery was on the ground, subject to actual physical and threats of violence.
b) Were there two discrete criminal acts:
[97] While the nature of the confinement must be temporally and causally linked to murder it must not be so intertwined that it is indivisible from the murder itself. A confinement which is inherent in the very act of killing cannot be relied on to impose liability under s.231(5)(e). There must be some component of forcible confinement, however, brief that is separate and distinct from the exact moment of murder itself. [33]
[98] Mr. Morris on behalf of Mr. Smith provides the Court with two cases. In Johnstone, the Court at para. 47 cited Luxton [34] and Pritchard [35] that the confinement cannot be "co-extensive with or consumed in the killing". Counsel cautions this Court that I must find the confinement was not limited to what was 'integral to' the particular act of killing, disclosed by the evidence. [36] The facts in that case were such that the Court of Appeal noted at para. 59 that it could not be seriously disputed that unlawful confinement occurred during the same transaction as the murder. Johnstone was a case involving the same victim who was forcibly confined and then killed.
[99] In Martin, there were two victims. The decedent and a 3d party arrived to find the accused standing in the kitchen. There was an argument and the 3d party was struck on the head, she fell down the stairs, and landed at the bottom face down. The decedent fell on top of her and the accused beat him to death, while the 3d party was pinned beneath him. I agree with the Crown that the facts in Martin, were very unusual. The preliminary hearing judge committed on second degree murder, the Superior Court judge found Martin ought to have been committed to trial on first degree; wherein the Court of Appeal allowed the defence application for certiorari and restored the preliminary hearing judge's committal on second degree murder as opposed to first degree murder.
[100] In this case, the two victims were subjected to different acts of violence by different or possibly overlapping assailants:
Mitchell Conery:
- Punched and knocked to the ground
- Kicked in the head
- Curled up to protect his head, knees tucked in
- 3d assailant nudged him and told him "Don't talk shit", and demanded he hand over his wallet.
- The victim continued to lay on the ground with the 3d assailant standing over top of him. Mr. Conery watched Mr. Nourredine being punched and kicked, begging his attackers to stop until such time as people from across the street came over and the three defendants left the scene.
Zaher Nourredine:
- Mr. Conery said at first one attacker punched Mr. Nourredine in the head with his fist.
- Mr. Conery said Mr. Nourredine was on his knees, two assailants were holding his arms to his sides, slightly behind his body, and they were kicking and punching him in the head.
- Other witnesses described seeing Mr. Nourredine being kicked violently in the face. Some (or one of the attackers) wore "Timbs", "work/winter boots" on his feet.
- Mr. Boake saw someone put Mr. Nourredine in a headlock and another person knee him in the face.
- The defendants left the scene after the knee in the face according to Mr. Boake.
[101] Based on this summary, it is clear that there were two discrete criminal acts. I find Mr. Conery's forcible confinement was not inherent in Mr. Nourredine's murder.
c) Were the two criminal acts in the course of the same transaction:
[102] While some counsel argued Conery's confinement was so intertwined with Mr. Nourredine's death that there were not two discrete acts; other counsel argued there is no evidence that his confinement related to the murderous act. No temporal or causal connection exists they say. In particular, Mr. King for Mr. Cummins argues Mr. Nourredine's death was not caused in any sense by Mr. Conery's confinement.
[103] The law does not add the extra burden on the Crown to establish that had Mr. Conery been free to leave, i.e., not confined, he would have intervened and possibly prevented Mr. Nourredine's death. In Russell, the deceased was downstairs in the basement when the accused bludgeoned him to death. There was no evidence that the deceased even knew the second victim was being sexually assaulted upstairs; no evidence that had he known, he would have intervened.
[104] That being said, in this case there is evidence that the defendants acting in concert, took advantage of their position of intimidation and actual physical domination by standing over Mr. Conery; thereby effectively eliminating any possibility of him rendering any kind of assistance. It is for this reason, I am satisfied this is one of those cases where the Courts have held that crimes of domination are particularly blameworthy and deserving of a more severe penalty.
[105] Subsection 231(5) states that first degree murder is committed where a person causes the death of a person while committing or attempting to commit an offence under, in this case subparagraph (e) forcible confinement. This requires the killing to be closely connected, temporally and causally, with an enumerated offence.
[106] For the reasons stated, I find the two distinct acts occurred simultaneously and within close proximity to one another, resulting in an unchallengeable finding that the two acts were connected in time. As well, according to Mr. Conery, his confinement and the continued beating of Mr. Nourredine was contingent on him handing over a wallet. When he could not meet the demands of his attacker, Mr. Nourredine's beating continued and, a jury could find, the severity of his beating escalated. By their own words and their actions, the defendants connected the two actions of Mr. Conery's confinement and Mr. Nourredine's killing.
[107] Lastly, there is no dispute that the defendants' participation was a substantial cause of the death of the victim. There was also no intervening act of another which resulted in the defendants no longer being substantially connected to Mr. Nourredine's death.
Conclusions
[108] For these reasons, I am satisfied the evidence has met the Sheppard test, and the defendants are ordered to stand trial on the charges of first degree murder relating to the death of and Zaher Nourredine and robbery in respect of Mitchell Conery.
Released: August 31, 2017
Justice M. Wong