Court of Appeal for Ontario
Date: 2017-09-18
Docket: C57406
Judges: Doherty, MacFarland and Paciocco JJ.A.
Between
Her Majesty the Queen Respondent
and
Roy Andrew Niemi Appellant
Counsel
David E. Harris, for the appellant
Randy Schwartz and Jeffrey Pearson, for the respondent
Heard
May 10, 2017
On Appeal
On appeal from the conviction entered on January 11, 2013 by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a jury.
Decision
Paciocco J.A.:
A. Overview
[1] On August 19, 2006, the partially clad body of Alyssa Watson was discovered in the bushes along a trail that followed a decommissioned railway line in Orillia, Ontario. She had been strangled to death with a ligature. Roy Andrew Niemi, the last person known to have been with Ms. Watson, was ultimately charged with her killing. After a jury trial, he was convicted of first degree murder. He appeals that conviction.
[2] Mr. Niemi's grounds of appeal revolve around three general issues: (1) the admission of inculpatory statements made by him during a "Mr. Big" operation [1] ; (2) the admission into evidence of recordings captured during the Mr. Big operation pursuant to a "one party consent wiretap" authorization; and (3) the "first degree murder" finding and the accompanying jury directions. I would not allow any of these grounds of appeal.
[3] First, the Mr. Big statements would have gained admission even if the trial judge had the benefit of the standards subsequently developed in R. v Hart, 2014 SCC 52. The details provided by Mr. Niemi interlinked so closely with the unpublished details of the killing that the probative value of his confessions overwhelmed the risk of prejudice in presenting those confessions to the jury. Nor were the statements secured in abuse of process. Mr. Niemi was not particularly vulnerable and the methods used to provoke the confessions were not abusive.
[4] Second, the trial judge was entitled to find that the wiretap authorization, a renewal of an earlier order, was not issued without reasonable grounds to believe it would produce evidence, as Mr. Niemi contends. Experience from the first wiretap showed that Mr. Niemi was likely to talk about Ms. Watson's killing. His financial circumstances had also worsened modestly since the first wiretap authorization, increasing the probability that the Mr. Big inducements would bear fruit in encouraging inculpatory statements that could then be recorded. This provided the trial judge with a sufficient basis to defer to the decision of the issuing judge on whether reasonable grounds existed.
[5] Third, the first degree murder conviction is unassailable. There was ample evidence to permit a jury to infer that the entire attack was sexually motivated or sexual in nature, making the killing "first degree murder" pursuant to s. 231(5)(b).
[6] Nor was the jury misdirected. In context, the suggestion to the jury that "the principal assault and the strangulation of Ms. Watson was a sexual assault" was nothing more than a direction to the jury that on the evidence it could choose to find that the entire attack was sexual, satisfying the "while committing" requirement of s. 231(5)(b). Moreover, when the issues that were realistically before the jury are considered, a functional basis for understanding the "while committing" requirement was provided to the jury.
[7] I would therefore dismiss Mr. Niemi's appeal.
B. The Material Facts
[8] On August 1, 2006, Alyssa Watson met up with Mr. Niemi at about 9:30 p.m. Her body was discovered the next morning. Ms. Watson had suffered blunt force injuries to her head, but the cause of her death was ligature strangulation.
[9] When discovered, Ms. Watson's body was partially unclad. Her sweatshirt had been cut open from the neck down, and her bra had been cut down the middle. Her pants had been removed and draped over her legs, and her underwear was hanging from one knee when she was found. Her shoes were placed neatly beside her.
[10] Dr. Toby Rose, a forensic pathologist, testified that it appeared from the pattern of soil marks and abrasions on her body that Ms. Watson had been dragged, and that her pants were removed after she was dragged.
[11] Ms. Watson's body was mutilated. Her throat was slashed and she had two large incised wounds – one down the middle of her torso and one under her left breast. Dr. Rose testified that the cuts were made post-mortem.
[12] There was no evidence of injury to her vagina or anus, and no semen was found on her or at the crime scene.
[13] Mr. Niemi soon became the prime suspect in Ms. Watson's killing, as he was the last person known to have been in her presence. Claims he made about his precise movements when he was with Ms. Watson were not borne out by security video footage.
[14] The police investigation into Ms. Watson's death soon stalled. A two-stage Mr. Big operation was initiated with Mr. Niemi as the target. The first stage of the operation began when an undercover operative – dubbed "Sonny" by the trial judge – befriended Mr. Niemi at an Adult Learning Centre course in Orillia, and began to involve Mr. Niemi in a feigned criminal organization. Efforts to obtain a confession from Mr. Niemi by holding out membership in return for a confession continued for two and a half months and included frequent meetings and an orchestrated traffic stop intended to provoke discussion of the Watson killing. When it failed to produce an incriminating admission, the Mr. Big operation was abandoned but was renewed a year later by undercover operatives that the trial judge called "Michael," and "Vito," purported associates of "Sonny."
[15] Ultimately, during the second stage of this operation, in November and December 2008, Mr. Niemi made a series of statements to the Mr. Big operatives admitting to and describing the killing. Claims made by Mr. Niemi in those statements were hauntingly accurate regarding unpublicized details surrounding the killing.
[16] His first confession was on November 25, 2008. He described hitting Ms. Watson with a whiskey bottle but it did not knock her out. He then strangled her, ultimately using her purse strap in doing so. He said that he received $10,000 from someone to kill her because she had stolen two kilograms of cocaine.
[17] The following day, the appellant took the undercover officer to the crime scene and showed him where Ms. Watson had been killed, although he provided no further details of the murder.
[18] On December 4, 2008, Mr. Niemi provided a Mr. Big operative with a written statement, which he claimed he wrote when he returned to the crime scene on his own:
I hit her from behind with a wisky bottle Nothing happened so I choked her with my Right arm the I used a purse strap then tryed to brake her neck then I cut her sweater at the V-point down a bit, then I took them off sweater + pants then I cut her throat right to left then I cut her left tit right to left then I cut her down the stomic then I pulled her into the right side of the trail and coverd her with her clothing then I Left.
[19] On December 5, 2008, Mr. Niemi provided further details of the crime and re-enacted the killing. He described the location and position of Ms. Watson's body, and the violence used – specifically, that he had struck her in the head, strangled her using her purse strap, and cut her throat, left breast and stomach. This time Mr. Niemi described the depth and nature of the incisions. He also detailed how he cut her sweater and he lay her pants on top of her legs.
[20] With respect to the order in which events occurred, Mr. Niemi said he "finished the job" by strangling Ms. Watson with her purse strap before cutting her sweater off. He demonstrated the cutting of the sweater as occurring immediately after the strangulation while Ms. Watson was still in the same position she had been in when the strangulation began. Contrary to the opinion of Dr. Rose, Mr. Niemi described removing Ms. Watson's pants before she was dragged.
[21] Mr. Niemi consistently denied that the killing was sexual. He said that he removed her clothes and cut Ms. Watson to mislead the police into thinking the killing was sexual.
[22] Mr. Niemi was arrested later that day and was charged with first degree murder. He was convicted on January 11, 2013.
C. Did the Trial Judge Err in Admitting the Mr. Big Statements?
[23] In ruling that the Mr. Big statements were admissible, the trial judge did not have the benefit of the decision in Hart. Hart altered the law in important ways. First, the onus on the admissibility question has been reversed and now rests with the Crown: Hart, at paras. 10, 89. Second, the former focus on whether the subject is in the "functional control of the state" has been pushed aside in favour of a more dedicated focus on the balance between the probative value or reliability of the evidence, and the prejudice entailed in admitting harmful character evidence: Hart, at para. 10. Third, the abuse of process standard used to address problematic police behaviour has been "reinvigorated" to impose more exacting standards of admission: Hart, at paras. 11, 111-118.
[24] To be clear, "although the precise test for determining the admissibility of Mr. Big confessions has changed, the issues [or factors relevant for consideration] have not": Hart, at para. 128.
[25] Mr. Niemi raises two grounds of appeal relating to the admission of the Mr. Big statements, arising out of the change in law.
[26] First, Mr. Niemi argues that the statements he made to Mr. Big operatives do not meet the current context specific probative value versus prejudicial effect formulation required by Hart, which applies on appeal even though the trial judge did not have the advantage of that decision during the trial.
[27] Second, Mr. Niemi contends that his statements were secured by "abuse of process", according to the standards enunciated in Hart, and should not have been admitted.
[28] I would reject both grounds of appeal. Even though the trial judge naturally applied the law as it was understood to be at the time, the facts found by the trial judge on the relevant factors for consideration show that he would not have been wrong in admitting Mr. Niemi's Mr. Big statements, even under current standards.
[29] With respect to the probative value and prejudice evaluation, as Mr. Niemi's counsel candidly acknowledged during oral submissions, the confirming details contained in Mr. Niemi's admission present an imposing case that the confessions were probative. His statements to Mr. Big operatives contain a raft of unpublicized and impressive detail, stamping them as reliable in spite of the non-coercive inducements that were used to encourage Mr. Niemi to admit the crime. When this is combined with the trial judge's reasonable findings that Mr. Niemi is "not a pushover" but a self-assured and street smart individual who was not dependent on the income of the fictitious criminal organization or emotionally bonded to its operatives, the probative value of the statements is impressive.
[30] To be sure, the narrative required to unfold the statements in evidence disclosed a good deal of prejudicial information. Still, in this case, the probative value of the evidence easily outweighs its prejudice.
[31] Nor would the reinvigorated abuse of process standard require exclusion of the Mr. Big statements under the current law. On the evidence, the trial judge properly characterized this Mr. Big operation as "exemplary" and "excellent police work". Admitting these statements would neither damage the integrity of the administration of justice nor compromise the fairness of Mr. Niemi's trial.
[32] No error of law occurred in admitting the Mr. Big statements.
D. Did the Trial Judge Err in Not Quashing The One-Party Consent Wiretap Authorization?
[33] Mr. Niemi acknowledges that there were adequate grounds for issuing the initial one-party consent wiretap order pursuant to s. 184.2 of the Criminal Code, used to record conversations in the first stage of the Mr. Big operation. He contends, however, that since no new information implicating Mr. Niemi had surfaced, there were no reasonable grounds to believe that another one-party consent wiretap would obtain evidence. He argues that the subsequent wiretap order used in the second stage of the Mr. Big operation should therefore not have issued, and that the trial judge erred by not quashing it.
[34] I disagree. The trial judge was not called upon to decide whether he would have granted the authorization. His task was to decide whether the issuing judge could reasonably have done so: R v Araujo, 2000 SCC 65. In this case, there was an evidentiary basis that entitled the issuing justice to find there to be reasonable grounds supporting this second authorization.
[35] The grounds that supported the initial order were still in place, and while no decisively incriminating admissions were secured from Mr. Niemi when the first order was in force, Mr. Niemi did speak frequently about Ms. Watson's murder, demonstrating a readiness to discuss the subject. At the end of the first stage of the operation, he said that he may have committed the murder and blocked it out of his memory. This comment, along with his willingness to discuss the murder, could fairly be taken as increasing the prospect he would say more, including offering incriminating information.
[36] Mr. Niemi had also lost his babysitting job. While this changed his financial situation only marginally for the worse, an issuing justice could take this job loss as a factor increasing the prospect that Mr. Niemi would succumb to the financial incentives he had been resisting.
[37] This Court owes deference to the trial judge's review of the wiretap authorization. Mr. Niemi has not demonstrated any errors of law, or misapprehension of evidence, or failure to consider relevant evidence by the trial judge. There is therefore no basis for this court to intervene: R. v. Sadikov, 2014 ONCA 72, at para. 89.
E. Were there Errors Relating to The First Degree Murder Conviction?
[38] Mr. Niemi was convicted of first degree murder on the footing that he murdered Ms. Watson "while committing or attempting to commit an offence under… section 271 (sexual assault)": Criminal Code, s. 231(5)(b). He raises four grounds of appeal from this finding. Specifically, he argues (1) that the jury verdict was unreasonable, (2) that the trial judge erred by instructing the jury that strangulation could itself be found to be a sexual assault, (3) that the trial judge failed to provide a proper "single transaction" instruction relating to when a murder occurs "while committing" a sexual assault, within the meaning of s. 231(5)(b), and (4) that the trial judge misdirected the jury by failing to review the evidence relating to the "while committing" issue.
[39] These four grounds overlap and are fed largely by Mr. Niemi's contention that the evidence shows that Ms. Watson died before Mr. Niemi committed the acts relied upon by the Crown to prove a sexual assault. As a result, he contends that there was no causal connection between the murder and the sexual acts, as the law requires, and this should have featured in the jury direction. He also disputes that he has properly been proved to have sexually assaulted Ms. Watson at all, given that the sexualized activity did not commence until after Ms. Watson was dead, and that it is impossible in law to commit a sexual assault against a dead person.
[40] Mr. Niemi's contentions raise questions about the reach of liability under s. 231(5)(b). Specifically, the questions relate to the operation of the section when the victim's death precedes the acts said to constitute the sexual assault. There are essentially two questions:
- Can one commit a sexual assault on a dead person?
- If death precedes the sexual assault, when, if ever, can it be said that the death was caused while committing a sexual assault?
(1) The Relevant Law
a. The Need for a Sexual Assault
[41] Section 231(5)(b) of the Criminal Code applies to persons who commit murder while committing or attempting to commit a sexual assault. I will return to the significance of the inclusion of the offence of attempting to commit sexual assault in s. 231(5)(b), but for the moment will focus on the completed offence of sexual assault as the basis for liability under s. 231(5)(b). If a first degree murder charge under s. 231(5) is based on the alleged commission of the completed crime of sexual assault, a conviction on first degree murder is possible only if the accused committed murder as defined in s. 229(a) and committed a sexual assault. A potential tension arises in that the crime of murder requires the death of the victim, while the crime of sexual assault requires a live victim.
[42] The former proposition, that a murder requires the death of the victim, is obvious. The latter proposition, that the crime of sexual assault requires a live victim, can be readily demonstrated.
[43] A sexual assault is, first and foremost, an assault. There must be an intentional application of force to the person of the victim [2] without the victim's consent: Criminal Code, s. 265(a). Inferentially, the crime of assault requires that the victim be alive at the time of the relevant touching, and capable of withholding consent.
[44] Moreover, an assault becomes sexual if it is "committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated": R. v. Chase, at p. 302. It is difficult to speak meaningfully in such possessive terms about the victim's sexual integrity if the victim is dead.
[45] The proposition that a sexual assault cannot be committed against a deceased person imposes challenges for the Crown's general proposition that the order of the crimes – the murder and the sexual assault – is immaterial under s. 231(5)(b). To overcome this challenge the Crown suggested in oral argument that sexual assault has a different meaning for the purposes of s. 231(5)(b) than it does for the offence of sexual assault under s. 271 of the Criminal Code. I do not agree. This argument would be difficult enough if s. 231(5)(b) simply used the phrase "sexual assault". However, the section refers specifically to s. 271. All of the elements of a s. 271 sexual assault, or an attempted assault, must therefore be present before a first degree murder conviction under s. 231(5)(b) is appropriate. Indeed, according to basic principles, the elements of an offence must all be present at the same time: R. v. Williams, 2003 SCC 41, at para. 35; R. v. Cooper, at p. 157. Just as a sexual assault under s. 271 cannot be initiated against a person who is dead, a first degree murder premised on the offence of sexual assault cannot occur under s. 231(5) if the sexual assault begins after the victim has died.
[46] It follows that the Crown's blunt position that the order of the murder and sexual assault do not matter requires refinement.
[47] Meanwhile, although he softened his position in argument, in his factum Mr. Niemi took the position that since a victim must be alive to be sexually assaulted, "if the [sexual] acts are committed after the murder, there is no underlying sexual assault and no continuing domination", and hence no first degree murder under s. 231(5)(b). This proposition, as he ultimately recognized, is also too blunt.
[48] In my view, there are two distinct avenues to a first degree murder conviction under s. 231(5)(b) in cases in which the sexualized conduct occurs after death. First, those acts, although post-mortem, may amount to an attempted sexual assault on the deceased victim. Second, on the facts, the jury may conclude that the sexual assault was underway before the victim died even though the overtly sexual acts occurred after death.
b. Attempted Sexual Assault
[49] Under s. 231(5)(b) an attempted sexual assault will suffice as the underlying offence. It is entirely possible to attempt to commit a sexual assault with a corpse, since under s. 24(1) of the Criminal Code, the impossibility of actually committing an attempted offence is no answer.
[50] To be guilty of an attempted sexual assault, the accused must intend to commit the offence of sexual assault, and must engage in an act that goes beyond preparation and is not too remote from the consummation of the crime: Criminal Code, s. 24. If this happens, s. 231(5)(b) can lead to a first degree murder conviction, even if the victim expires before the sexual activity commences.
[51] This avenue to a first degree murder conviction is available to the Crown, in my view, where an accused person believes a deceased victim to be alive, or is not certain whether the victim is alive when the sexual activity is initiated. If they know the victim may be alive but nevertheless proceed with the sexual activity, they are attempting a sexual assault.
[52] The claim that the mens rea for attempted sexual assault can be met where an accused person is not certain whether the victim is alive when the sexual activity is initiated does not incorporate notions of recklessness into the law of attempt, contrary to the leading authority of R. v. Ancio. The accused person in such a case is not simply intending to take an unjustified risk that a prohibited consequence may occur. They are intending to sexually degrade their victim, dead or alive. Since they are intending to sexually violate their victim even if alive, they have the requisite mens rea for a sexual assault, which will suffice for an attempted sexual assault if the victim happens to be dead. The precise time of death of the victim is therefore moot for the purposes of s. 231(5)(b) in such a case. Accused persons that intend to sexually violate their victim, dead or alive, will either have sexually assaulted their victim or they will have attempted to do so.
c. Sexual Assaults Underway when Death Occurs
[53] The easiest example of an appropriate s. 231(5)(b) first degree murder conviction based on the actual offence of sexual assault where the sexualized conduct commences after death, arises where the accused person initiates the violence that causes death for the purpose of facilitating sexual domination.
[54] This position is sometimes explained by focusing on the policy implications so powerfully put by Fraser C.J.A. in R. v. Richer, aff'd, at para 13, in words that found favour in this court in R. v. Westergard, at para. 33:
I have difficulty with the proposition that a murderer intent on silencing his victim or rendering her compliant for sexual activity should be able to argue that murder in these circumstances is not first degree murder simply because his victim died by his hand before he could complete, or for that matter, begin the sexual assault.
[55] As sound as this policy is, the legal reason why sexually motivated murders qualify as first degree murder is that where physical force is undertaken for the purpose of facilitating sexual activity, the assault is sexual from the outset.
[56] This proposition finds support in R. v. Alderton. Mr. Alderton physically attacked the victim in her bed and attempted to bind her hands, but she managed to flee before his physical touching became overtly sexual. On appeal he protested his sexual assault conviction, but Martin J.A. upheld it, saying, at p. 263, "[W]e are all satisfied that [sexual assault] includes an assault with the intention of having sexual intercourse with the victim without her consent, or an assault made upon the victim for a sexual purpose."
[57] It follows, as Steel J.A. said in R. v. Muchikekwanape, 2002 MBCA 78, at para. 89, that " pre-death violence perpetrated to subdue a victim for the purpose of perpetrating a sexual assault is in itself a sexual assault." Even though the sexualized activity does not commence until after death, the sexual assault commences before death, providing the basis for a first degree murder conviction under s. 231(5)(b).
[58] In practical terms, the fact that an assault perpetrated for the purpose of facilitating sexual activity can ground a first degree murder conviction under s. 231(5)(b), even where the objectively sexualized assaultive acts have yet to begin, does nothing to extend the reach of s. 231(5)(b). This is because a first degree murder conviction under s. 231(5)(b) can be based on an attempted sexual assault, and anyone who uses violence for the purpose of perpetrating a sexual assault has gone beyond preparation and is committing an attempted sexual assault. Still, it is important in understanding the technical scope of s. 231(5)(b), and those authorities that rest first degree murder convictions on sexual assault findings where sexualized conduct occurs after death, to appreciate when the completed offence can provide a path to conviction.
[59] The instant point, of course, is that where the victim dies at the hands of the accused before the accused commences the sexualized conduct that he intended all along, the fact that it is impossible to sexually assault a corpse will not prevent a s. 231(5)(b) first degree murder conviction. The victim may be dead when the sexualized conduct occurs, but they were alive when the sexual assault commenced.
[60] Sensibly, the law does not require discrete proof that, before the violence ensued, the accused person had an intention to sexually violate their victim. Where the two crimes – murder and sexual assault – are so "inextricably intertwined that they form a single continuous transaction", to use the phrase offered by Steel J.A. in Muchikekwanape, at para. 77, the entire attack takes on the character of a sexualized murder and will ground a first degree murder finding under s. 231(5)(b). In effect, the close link between the events exposes, circumstantially, that the murder is a sexual killing. Since the entire single transaction is a sexual killing, a sexual assault is necessarily occurring when the murder happens, even if the victim has expired by the time the objectively sexualized conduct begins.
[61] This outcome is made possible by the interpretation that has been given to the "while committing" requirement found in s. 231(5). That component of s. 231(5) has been authoritatively interpreted in R. v. Paré, in the context of s. 231(5)(b). Even though the most natural reading of s. 231(5) suggests that both offences must occur simultaneously, this is not what the law requires. The two offences can occur sequentially, so long as they are properly characterized as parts of the same transaction or event.
[62] In coming to this decision in Paré, Wilson J. noted that sexual assault is only one of the underlying offences that can satisfy s. 231(5)(b). Other offences include hijacking, kidnapping and unlawful confinement. What these offences have in common is that they each involve the illegal domination of the victim by the accused. Justice Wilson used this feature to identify an "organizing principle" that would support a purposive and sensible interpretation of the "while committing" requirement, at p. 633:
This principle is that where a murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime. Parliament has chosen to treat these murders as murders in the first degree.
[63] To achieve this organizing principle, the Supreme Court adopted the "single transaction" test recognized by Martin J.A. in R. v. Stevens: Paré, at p. 632. If the underlying offence and the killing "all form part of one continuous sequence of events forming a single transaction" then the "while committing" requirement is satisfied: Paré, at p. 632, citing Stevens, at p. 541. Accordingly, Wilson J. explained, at para. 629:
[T]he words "while committing" do not require an exact coincidence of the murder with the underlying offence. Rather, they require a close temporal and causative link between the two.
[64] In R. v. Pritchard, 2008 SCC 59, at para. 35, Binnie J., writing for the court, paid regard to the underlying philosophy of s. 231(5) when providing guidance on how the temporal and causative link is to be applied:
The temporal-causal connection is established where the [underlying offence] creates a "continuing illegal domination of the victim" that provides the accused with a position of power which he or she chooses to exploit to murder the victim.
[65] It was therefore settled after Paré that the "single transaction" test can be met where the actus reus of the underlying offence is either ongoing or completed when the murder occurs. Mr. Paré had finished sexually assaulting his seven-year old victim when he decided he had to kill the boy to escape detection. The sexual assault and the killing where linked temporally and casually, since the two acts occurred close in time and the sexual assault gave rise to the killing: Paré, at p. 634.
[66] There has been modest controversy, however, about whether this can work in reverse. Can a first degree murder conviction occur where the sexualized conduct commences after the victim has died? The case most commonly cited in opposition to that possibility is R. v. Quesnel. [3] This case has been offered to support the proposition that if the sexualized conduct commences after the victim has died, s. 231(5) is not available. Yet as the illustration of the sexually motivated killing demonstrates, there are s. 231(5)(b) cases where the murderous act can precede the sexualized acts. I therefore agree with the court in R. v. Squires, 2005 NLCA 51, at para. 57, that "[i]t would be incorrect in law to instruct the jury on the basis that death of the victim before commission of the acts said to constitute the sexual assault precludes application of s. 231(5)(b)" (citations omitted).
[67] The prevailing body of law commonly interprets s. 231(5)(b) as supporting first degree murder convictions in cases where death precedes the sexual activity, provided the sexual assault and murder are part of one continuous sequence of events forming a single transaction: R. v. Mullings, 2014 ONCA 895, at para. 102; Westergard, at paras. 31-35; R. v. Ganton. [4] Other similar authorities include Richer, Muchikekwanape, Squires, R. v. Fliss, 2000 BCCA 347, and R. v. Plewes, 2000 BCCA 278, aff'd 2002 SCC 16.
[68] If the two crimes are so "inextricably intertwined that they form a single, continuous transaction", the requisite connections called for under the "while committing" requirement exist: Muchikekwanape, at para. 77. The "temporal connection" is obvious and the required "causal connection" is generally supplied by the fact that death was caused during what can fairly be seen, in all of the circumstances, as a single transaction, to wit, a sexual killing.
[69] Where the murder and sexual assault are sufficiently intertwined to constitute a single transaction, the underlying principle of s. 231(5)(b) is also clearly honoured. As Fraser C.J.A. put it in Richer, at para. 14:
[W]hen the required linkage is found to exist, it is the two crimes – sexual assault and murder – committed together, regardless of the order, which represents the ultimate exploitation of the position of power over a victim.
[70] In saying this I understand that, in the factual context of Pritchard, Binnie J. referred, at para. 35, to a "'continuing illegal domination of the victim' that provides the accused with a position of power which he or she chooses to exploit to murder the victim." This formula does appear to connote that the domination from the underlying crime must distinctly come first in time. Justice Binnie was not adjudicating a case where the order of crimes was an issue, however, and cannot fairly be taken to be directing that there is a mandated sequence for the forms of domination that occur within the "continuing illegal domination of the victim" he describes.
[71] In R. v. Russell, 2001 SCC 53, at para. 42, another case were the order of crimes was not in issue, McLachlin C.J., articulated the rational in more flexible terms:
The essence of the reasoning [in Paré] was that s. 231(5)(b) reflects Parliament's determination that murders committed in connection with crimes of domination are particularly blameworthy and deserving of more severe punishment. In many cases, such murders will be committed as the culmination of the accused's domination of the victim of the enumerated offence. This was the case in Paré, Arkell and Luxton. In other cases, however, the accused will have murdered one person in connection with the domination of another. I cannot conclude that Wilson J.'s judgment in Paré or Lamer C.J.'s judgments in Arkell or Luxton foreclose the application of s. 231(5)(b) in such cases.
[72] In spite of the language that is occasionally used, I do not understand the single transaction decisions to hold that s. 231(5)(b) is always met where the accused commits a murder followed by sexual acts. As has been recognized in this very body of law, if the sexual activity follows a murder in the absence of the requisite temporal and causal connection between the murder and the sexual activity, an indignity to a human body will have occurred rather than a sexual assault, and a s. 231(5)(b) conviction cannot follow: Richer, at para. 9, 10; Muchikekwanape, at paras. 77, 88. As a result, if there is a reasonable doubt about whether the sexualized activity was a new initiative arising after death, s. 231(5)(b) will not apply.
[73] Unqualified statements found in this body of case law that are capable of suggesting that it does not matter the order in which the two offences occur should therefore not be read to mean that the order of offences never matters. These passages, understood in context, simply communicate that where the killing and sexual activity are so inextricably intertwined that they form a single continuous transaction, the order does not matter.
[74] With this foundation, the two questions that Mr. Niemi's contentions raise about the reach of liability under s. 231(5)(b) can be answered.
[75] In response to the first question, "Can one commit a sexual assault on a dead person," the answer is "no." One cannot commit a sexual assault on a dead person.
[76] In response to the second question, "If death precedes the sexual assault, when, if ever, can it be said that the death was caused while the accused was committing a sexual assault?", the answer is more nuanced. If the actions prior to the victim's death do not amount to a sexual assault as defined in s. 271 the answer is "never."
[77] The more elaborate answer, the one of significance in this case, is that a sexual assault has been committed (although not necessarily completed) when an accused uses force against a victim with the intention of committing sexualized misconduct even if the overtly sexualized conduct has yet to commence. It follows that even if the victim dies from that force before the sexualized misconduct begins, death will have been caused by the accused while the accused was committing a sexual assault. Such a finding will be appropriate where the murder and sexually assault are so inextricably intertwined that they form a single continuous transaction.
(2) Was the First Degree Murder Verdict Unreasonable?
[78] Mr. Niemi does not contest the reasonableness of the murder finding. His contention is that the evidence failed to demonstrate a sexual assault because all of the acts the Crown relied on to prove sexual assault occurred after Ms. Watson was dead, making a first degree murder conviction inappropriate. Specifically, Mr. Niemi claimed to have cut Ms. Watson's sweater and bra after he strangled her. As well, forensic evidence was that the cuts to Ms. Watson's body, including the cut circling the bottom of her left breast, were inflicted after her heart had stopped beating. In spite of his admission in his written statement that he removed her pants before pulling Ms. Watson "to the right side of the trail", Mr. Niemi urges that dirt and abrasions on the body suggest that her pants and her underwear were not removed until after she was dragged from the path where Mr. Niemi described the attack as occurring.
[79] As well, Mr. Niemi denied the killing of Ms. Watson was a "sex crime", and explained that these post-mortem acts were only meant to throw the police off.
[80] For the reasons already explained, Mr. Niemi's base objection that the fact that these violations occurred post-mortem precludes a first degree murder finding under s. 231(5)(b) misses the mark. The material question is whether there was evidence that would enable a finding that Mr. Niemi sexually assaulted, or attempted to sexually assault, Ms. Watson (as opposed to doing an indignity to her body), during the single transaction in which the murder occurred.
[81] I will address this ground of appeal, however, by engaging Mr. Niemi's claim that the evidence is incapable of enabling a reasonable jury to conclude that a sexual assault occurred.
[82] First, it is helpful to put aside the statements made by Mr. Niemi in which he denies a sex crime and a sexual purpose. Mr. Niemi's denials that this was a sex crime are not determinative. An objective test is used to identify whether an assault violated the sexual integrity of the victim. The base issue is whether, in all of the circumstances, a reasonable observer would conclude that there is a sexual or carnal context to the intentional acts committed by Mr. Niemi, not how Mr. Niemi would characterize them: Chase, at p. 302; R. v. Taylor, 1985 ABCA 51, at p. 269. While the presence of a sexual intent can inform this objective determination, if the assault by its nature interferes with the sexual integrity of the victim it will be a sexual assault regardless of the intent or purpose of the offender: R. v. V.(K.B.). [5]
[83] Similarly, Mr. Niemi's claim that he engaged in the sexual acts to throw off investigators does not assist his case. This harms it. He is acknowledging that he meant to do acts that would make others conclude objectively that the assault had a sexual or carnal context. This does not assist his claim that it is not objectively reasonable to find that the murder did not have a sexual or carnal context.
[84] Indeed, objectively, Mr. Niemi's acts were sufficient to constitute a sexual assault. Ms. Watson's sweater and bra were cut open, exposing her breasts. One of her breasts was traced along the bottom in an apparent sexual mutilation. Her underwear was removed, exposing her sexual organs. Without question, subject to the significance, if any, of the post-mortem nature of some or all of these acts, there was compelling evidence that there was a carnal or sexual content to this horrific assault.
[85] What then of the forensic evidence that the cuts to her body were inflicted and her clothing removed after Ms. Watson's heart stopped? It is important to bear in mind when considering this evidence that Mr. Niemi demonstrated the attack by showing that immediately after the ligature strangulation, while Ms. Watson was still in the same position she was in when he embarked upon the attack, he immediately set to work cutting her sweater and her bra open. Given the unbroken sequence in which the murder and the sexually significant activity took place, it was open to a reasonable jury to infer that, from the outset of the attack, Mr. Niemi intended to sexually violate Ms. Watson to throw off the investigation. This would be enough to warrant a s. 231(5)(b) first degree murder finding.
[86] It was also open to the jury to reject Mr. Niemi's assertion that his sexual misconduct was a ruse, and to find that he was engaging in a sexual killing from the outset. The jury was entitled to treat his sexual acts, falling at the heels of the strangulation, as circumstantial evidence of why the attack occurred.
[87] Although authority is not needed for the point because it is nothing more than an application of basic circumstantial evidence reasoning, Twaddle J.A. recognized in his concurring reasons in Muchikekwanape at para. 104, that "[i]ndecent interference with a victim's dead body may be a circumstance from which an inference can be drawn that the purpose of the assault which caused the death was sexual." Given the quick succession of the ultimately fatal violence and the sexual acts, that inference was open to the jury here.
[88] As well, a first degree murder finding based on an attempted sexual assault would also have been reasonable. This is not a case where a victim of murderous violence is obviously dead when the sexualized misconduct begins, and the jury was not required to treat Mr. Niemi's claim that he had "finished the job" of killing Ms. Watson by strangling her as credible evidence that he "knew" she was dead immediately after the strangulation ceased. Even if Ms. Watson happened to be dead when the sexualized conduct began, given the immediacy of the transition from murderous violence to sexualized misconduct, it was open to the jury to infer from Mr. Niemi's admitted conduct that he intended to engage in his sexualized conduct, whether Ms. Watson was dead or alive.
[89] This ground of appeal therefore fails.
(3) Did the Trial Judge Err by Instructing the Jury that Strangulation Could Itself Be Found to Be a Sexual Assault?
[90] During the course of his charge, the trial judge instructed the jury that "one possible inference that you may make is that the principal assault and strangulation of Ms. Watson was a sexual assault." Mr. Niemi argues that there was no evidence to demonstrate that the strangulation itself had a sexual component to it, and this instruction would be understood by the jury to mean that strangulation is a sexual assault, which is wrong in law.
[91] I disagree. The trial judge prefaced this comment by noting that, if the jury accepted Mr. Niemi's statements, the jury could find that the removal and cutting of Ms. Watson's clothing occurred in close proximity to the strangulation. The entire impugned passage that followed this description of the material evidence stated: "Based on all of these acts, and the manner in which they occurred, one possible inference that you may make is that the principal assault and strangulation of Ms. Watson was a sexual assault." Read in context, the trial judge was simply inviting the jury to consider the very inference that I have found to have been open to the jury. This was not an error. I would not accept this ground of appeal.
(4) Was the "While Committing" Direction Inadequate?
[92] The material part of the trial judge's charge that grounds this basis for appeal is as follows. I have emphasized the portions that have attracted complaint:
In order for Mr. Niemi to be guilty of first degree murder Crown counsel must also prove beyond a reasonable doubt that Mr. Niemi murdered Alyssa Watson while he was committing, or attempting to commit, the offence of sexual assault.
This does not mean that the murder and the sexual assault, or attempt to commit sexual assault, have to happen at exactly the same moment. The acts constituting the sexual assault or the attempted sexual assault, may have been committed before the act that caused Ms. Watson's death, or afterwards. But the murder and the sexual assault, or attempt to commit sexual assault, must be closely connected to one another, in the sense that they must be part of the same series of acts. They must both be part of a single ongoing transaction. A single, ongoing transaction is a sequence of events or course of conduct that is interrelated or linear, ongoing and connected throughout in time.
To answer this question you have to consider the entire course of Mr. Niemi's conduct. Look at the whole series of events. The evidence may show that the murder and the sexual assault, or attempt to commit sexual assault were all part of a continuous series of events that was really a single ongoing transaction. On the other hand, the evidence may indicate otherwise. [Emphasis added.]
[93] I will begin by observing that this charge contains everything said on the "while committing" element in David Watt's Watt's Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 719, and the Canadian Judicial Council – National Judicial Institute's Model Jury Instructions (online: https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/).
[94] The trial judge's charge, however, did go farther than these model charges. Mr. Niemi's complaints about the legal content of the charge are primarily with what was added. He also contends, relying in part on the model instruction in Gerry Ferguson and Michael R. Dambrot, CRIMJI: Canadian Criminal Jury Instructions, loose-leaf, 4th ed. (Vancouver: Continuing Legal Education Society of British Columbia, 2014), at para. 6.42-20, that other legally correct detail should have been added in the particular circumstances of his case.
[95] First, Mr. Niemi contends that the direction, "[t]he acts constituting the sexual assault or the attempted sexual assault, may have been committed before the act that caused Ms. Watson's death, or afterwards," is wrong in law. He says that if the acts are committed after the murder, there is no underlying sexual assault and no continuing domination.
[96] As explained above, Mr. Niemi's view of the law is incorrect. It is not the case that the sexual activity must necessarily precede death for s. 231(5)(b) to operate. It is not a misdirection to point out that a s. 231(5)(b) conviction can occur where death comes first.
[97] Mr. Niemi's second and more multi-faceted complaint about the jury direction is that, regardless of what will ordinarily suffice, his case called for a more complete description of the law. Although he did not use this term, his position at trial was that, if the jury linked him to the crime, his sexual misconduct was simply a "post-script" to a killing that had already happened, and his post-mortem violation of the victim could amount in law to nothing more than an indignity to a body. Accordingly, on the particular facts of his case, he urges that a direction to the effect that it does not matter whether the murder occurred before or after death was misleading.
[98] Moreover, while there may be no need to deal expressly with the "causal connection" requirement in cases where it is self-evident that there is a causal connection (as in cases where the sexual acts precede or coincide with the murder), Mr. Niemi's contention is that there was no causal connection in this case. The trial judge was therefore obliged to tell the jury about the causal connection requirement so they could evaluate his defence to the first degree murder classification, and so the jury would appreciate that s. 231(5)(b) is aimed at murders made more heinous because they occur during the unlawful domination of another. He says that it was critical to bring this home to the jury in his case because he did not sexually dominate Ms. Watson, as she was dead before the sexual misconduct arose.
[99] Mr. Niemi argues that, to make matters worse, the trial judge's explanation of the "while committing" requirement would have left the jury with the impression that nothing more than a temporal connection is needed. He submits that the use of the phrase "connected through time," in the following sentence would invite this understanding:
A single, ongoing transaction is a sequence of events or course of conduct that is interrelated or linear, ongoing and connected throughout in time.
[100] I will begin with this last point. In my view, while it could have been clearer, even in isolation this passage does not import that a link in time is sufficient to meet the "while committing" requirement. Its inclusion of the phrase, a "sequence of events or course of conduct that is interrelated," suggests that more than a temporal connection is required.
[101] As always, the charge must be read as a whole. It is worth mentioning that this charge included the standard description of the "single event" concept found in model jury charges, language that was no doubt selected because it communicates effectively that more than a temporal connection is required for the murder and underlying offence to be linked.
[102] As well, immediately after describing the law the trial judge outlined the Crown position and the defence position. In each case the focus was not on time, but on whether the acts were linked. The Crown position was essentially that the entire sequence of events – the strangulation and the sexual assault – were part of the same transaction either because the attack was part of an overall assault that was sexual in nature, or, alternatively, because the attack became sexual when Mr. Niemi removed Ms. Watson's clothes and cut her body. The defence position was that the sexual misconduct, "[e]ven though not separated by a great deal of time," was not linked to the killing but rather "a diversion, carried out after the murder as a distinct series of acts."
[103] I appreciate that at this juncture, the trial judge was describing submissions and not directing the jury on the law per se. Still, the jury would understand that the trial judge would not trouble them with pointless arguments. They would have appreciated that since those arguments highlight both the causal and temporal connections, more than a temporal connection is required.
[104] When the charge is read as a whole, it is evident that the jury would not have been misled by the impugned passage into thinking that only a temporal connection is needed.
[105] Mr. Niemi's remaining complaints respecting the legal content of the charge stand or fall together. I refer, of course, to his claims that the trial judge was required to (1) make the causal connection requirement explicit, (2) communicate that the underlying principle at stake is that a murder is particularly heinous when someone who is already being dominated is killed, and (3) refrain from misleading the jury into thinking that the sequence of death and sexual activity are unimportant. These three complaints each depend upon the integrity of the defence theory that the sexual activity was a post-mortem post-script to a murder that had already occurred. On the evidence in this case, however, this theory lacks integrity.
[106] There was not, in my view, a realistic foundation in the evidence for the contention that Mr. Niemi did no more than an indignity to Ms. Watson's body. I say this because the Mr. Big confession was punctuated by Mr. Niemi's physical demonstration of the sequence of events when Ms. Watson was killed. In his demonstration, he depicted an unbroken transition from strangulation to sexual interference. He showed how immediately after strangling Ms. Watson with her own purse strap, he set about cutting her clothing without pause or interruption. Her posture had not even changed. In my view, there is simply no air of reality to the prospect that Mr. Niemi may have instantaneously decided to sexually violate his victim in the fleeting instant between ending the strangulation and beginning to cut her sweater. Simply put, while legally a temporal link alone is not enough to satisfy the "while committing" test, in this case, an immediacy between fatal violence and sexual interference makes manifest that the murder and sexualized conduct occurred during the same transaction, a sexualized killing. Since Ms. Watson died in a sexual killing, the necessary causal link is inevitable. Had the trial judge said more about the "while committing" requirement and the facts of this case, it would not have been helpful to Mr. Niemi.
[107] In saying this, I am mindful of the evidence that the incisions to Ms. Watson's body occurred after her heart stopped, and that her pants may have been removed after she was dragged. These acts were not the beginning of the sexual interference. The cutting of Ms. Watson's clothing was, and this act followed seamlessly on the immediate heels of the act of strangulation.
[108] Once again, I have also borne in mind Mr. Niemi's claim that he began the task of making the killing of Ms. Watson look like a sexual assault after he had "finished the job" of strangling her to death. He may have finished the acts he needed to bring about death, but this does not provide a basis for doubting that the sexual misconduct was part of the same transaction as the strangulation.
[109] Ultimately, the only realistic scenario available on the evidence was that Mr. Niemi strangled Ms. Watson and intentionally interfered with her sexual dignity in one single transaction. Functionally, there was no need for the trial judge to burden the jury with a detailed legal back-story about rules and principles that could not apply. In my view, the jury direction on the "while committing" issue was adequate.
(5) Did the Trial Judge Err by Not Relating the Evidence to the "While Committing" Requirement?
[110] Finally, Mr. Niemi submits that the trial judge committed a non-direction amounting to a misdirection by not relating the evidence to the "while committing" issue. Once again, I disagree. Given that the defence theory that Mr. Niemi did no more than interfere with a corpse was not realistically on the table, the trial judge adequately linked the evidence to the issue.
F. Conclusion
[111] For all of the reasons, Mr. Niemi's appeal is dismissed.
Released: September 18, 2017
David M. Paciocco J.A.
"I agree. Doherty J.A."
"I agree. J. MacFarland J.A."
Footnotes
[1] A Mr. Big operation, in its classic form, involves recruiting a suspect into a fictitious criminal organization and then holding out the benefits linked to membership if the suspect admits to the crime being investigated.
[2] There are cases where an assault can occur without the actual application of force, through attempted or threatened force, but those circumstances, outlined in Criminal Code, s. 265(1)(b), are not before us.
[3] In Richer, Harradence J.A., dissenting, took a similar view of the law. Justice Twaddle returned to this theme in his concurring reasons in Muchikekwanape, where he made his view clear that a s. 231(5)(b) conviction cannot arise where acts of sexual interference follow death.
[4] Mullings is not a sexual assault case. This issue was dealt with in the unlawful confinement context to illustrate the general proposition that s. 231(5)(b) can apply where death precedes the underlying offence.
[5] The trial judge's charge to the jury, that they should acquit Mr. Niemi if they believe his statement that this was not a sex crime, was unduly generous to Mr. Niemi.