Court File and Parties
COURT FILE NO.: CR15-814 DATE: 20160512
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN NJ Bridge and Keeley Holmes for the Crown
- and -
IQBAL SINGH Brad Burgess and Lakhwinder Singh Sandhu for the accused
HEARD: May 9, 2016
DIRECTED VERDICT RULING
FAIRBURN J.
Overview
[1] Iqbal Singh faces a 5 count indictment: (1) first degree murder of Anita Summan; (2) attempted murder of Gurcharan Doal; (3) aggravated assault of Gurcharan Doal; (4) attempted murder of Mayank Sandhu; and (5) unlawful confinement of Mayank Sandhu. The trial commenced on April 18, 2016. As the Crown neared the end of its case, Mr. Singh filed an application for a directed verdict of acquittal on two counts: Count 1 involving the first degree murder of Anita Summan; and Count 5 involving the unlawful confinement of Mayank Sandhu.
[2] There is evidence that supports the following contextual facts. On January 21, 2014, Anita Summan, Gurcharan Doal and Mayank Sandhu were in the kitchen of Ms. Summan’s home. Mr. Singh entered the kitchen and, without warning, stabbed Ms. Summan twice in the stomach with a large kitchen knife. He then stabbed Mr. Doal with the same knife.
[3] Mayank Sandhu ran to the basement of the home and, with another man, locked himself in a bedroom. The accused came to the basement and banged at the door, yelling for Mr. Sandhu to come out. Mr. Singh pierced the locked door with the knife he used to stab Ms. Summan and Mr. Doal. Mr. Sandhu successfully remained behind the door. Mr. Singh eventually went back upstairs and, according to Ms. Summan’s daughter Sonali, who was on the phone with 911, he took his jacket from the bannister, put on his shoes, and walked out of the house.
[4] Ms. Summan suffered two deep penetrating stab wounds and died on route to the hospital. Mr. Doal was stabbed multiple times, but survived the attack. He received emergency surgery and came out of a coma a number of days later.
[5] The Crown says that Mr. Sandhu was unlawfully confined in the basement bedroom. Mr. Singh disagrees. He says that there is no evidence upon which a properly instructed jury, acting reasonably, could find him guilty of the unlawful confinement of Mayank Sandhu. As such, he asks for a directed verdict of acquittal on count 5.
[6] The Crown says that Mr. Singh committed the first degree murder of Anita Summan and that there are two paths upon which the jury could arrive upon this verdict: (1) planning and deliberation; and (2) constructive first degree murder in the course of the unlawful confinement of Mayank Sandhu. While Mr. Singh agrees that there is evidence upon which a properly instructed jury, acting reasonably, could find him guilty of second degree murder, he says that there is no evidence of planning and deliberation or unlawful confinement.
[7] In the alternative, Mr. Singh argues that if there is evidence of an unlawful confinement, sufficient to leave count 5 with the jury, there is still an insufficient temporal and causal connection between the killing and confinement to permit a jury to find that the distinct criminal acts were part of a single transaction. As such, he says that I must direct a verdict of acquittal on the first degree murder.
[8] On May 11, 2016, I dismissed the application for directed verdicts on counts 1 and 5 with written reasons to follow. These are the reasons.
Directed Verdict of Acquittal: Test to be Applied
[9] The standard to be applied on a directed verdict application is the same test applied to committal following a preliminary inquiry. The question is whether there is any evidence upon which a properly instructed jury, acting reasonably, could return a verdict of guilty: R. v. Arcuri, [2001] 2 S.C.R. 828, at para. 21; United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080; R. v. Monteleone, [1987] 2 S.C.R. 154, at p. 160. There must be evidence, direct or circumstantial, that is capable of proving each element of the offence.
[10] As McLachlin C.J. noted in Arcuri, where the Crown relies upon circumstantial evidence to prove an element of an offence, the judge’s task involves a “limited weighing” of the evidence. This requires a determination as to whether the evidence is reasonably capable of supporting the inferences that the Crown will ask the jury to draw: Arcuri, at para. 23; R. v. Pannu, 2015 ONCA 677, 127 O.R. (3d) 545, at para. 159, leave to appeal ref’d [2015] S.C.C.A. No. 478, [2015] S.C.C.A. 498.
[11] The very nature of circumstantial evidence is that it will often furnish more than one inference. Some inferences may point toward guilt and others against. On a directed verdict application, the judge is not to draw an inference or ask whether she or he would draw the inferences suggested by either party. Where the evidence supporting an essential element of the offence is “entirely circumstantial”, the trial judge’s task is simply to determine whether the evidence is “reasonably capable of supporting the inference” about the essential element: Pannu, at para. 159. If the evidence, considered as a whole, could reasonably support an inference of guilt, then a directed verdict motion must fail: Pannu, at para. 160.
The Law Related to Murder
[12] To prove murder in this case, the Crown must prove beyond a reasonable doubt that: (1) the accused caused the death of Ms. Summan, s. 222(1) of the Criminal Code; (2) that he did so by means of an unlawful act, s. 222(5)(a); and (3) that he did so with the state of mind for murder, s. 229(a)(i) and (ii). In this case, the state of mind for murder is either the intent to kill or the intent to cause bodily harm that he knew was likely to cause death and being reckless whether death ensued. It is not disputed that there is evidence addressing each of these elements of murder.
[13] Murder is either first or second degree murder: s. 231(1). All murder that is not first degree murder is second degree murder: s. 231(7). There are numerous statutory ways in which to commit first degree murder. They are enumerated within ss. 231(2)-(6.2) of the Criminal Code. In this case, the Crown relies upon two forms of first degree murder: (1) planned and deliberate first degree murder, s. 231(2); and (2) constructive first degree murder arising from an unlawful confinement of Mayank Sandhu, s. 231(5)(e).
[14] I will review the law pertaining to constructive first degree murder and planning and deliberation later in my reasons. For now it is important to recall that first degree murder is not a different substantive offence than second degree murder. The law makes space for first degree murder simply to recognize that there are some forms of murder that are more serious than others. As Cory J. recognized in R. v. Harbottle, [1993] 3 S.C.R. 306, at p. 323, “[f]irst degree murder is an aggravated form of murder and not a distinct substantive offence”. For this reason, first degree murder is often referred to as a “sentencing provision”, meant to reflect the increased level of moral blameworthiness that attaches to the offender’s conduct: R. v. Mullings, 2014 ONCA 895, 319 C.C.C. (3d) 1, at para. 97, leave to appeal ref’d [2015] S.C.C.A. No. 253; Harbottle, at p. 323; R. v. Kimberley (2001), 56 O.R. (3d) 18 (C.A.), at para. 104, leave to appeal ref’d [2002] S.C.C.A. No. 29; R. v. Pritchard, [2008] 3 S.C.R. 195, at para. 19; R. v. Nygaard, [1989] 2 S.C.R. 1074, at p. 1084; R. v. Droste, [1984] 1 S.C.R. 208, at pp. 220-22.
The Facts
[15] The jury has heard over 30 witnesses testify. While all of their evidence is important and will be reviewed in the Charge, particularly as it relates to certain elements of the alleged offences, for purposes of this application, and bearing in mind the issues in dispute, I will review only those factual matters necessary to resolve these issues.
Anita Summan’s Relationship to Mr. Singh
[16] Anita Summan’s husband died in 2004 when her daughter, Sonali Summan, was about 12 years of age. [1] Sonali testified that following her father’s death, her mother ran the family trucking business. She recalls that the accused was a driver in the company. He would come and go from the house. When he was driving for the trucking company he lived in the basement of the family home. Sonali acknowledged in cross-examination that it was also possible that he lived in a guest room on the second floor of the home.
[17] Mr. Singh helped with regular chores around the Summan home, like cutting the grass, shovelling snow and fixing things. Puneet Sharma, a tenant who lived in the basement, recalls seeing Mr. Singh fix things on a few occasions.
[18] Sonali testified in-chief that she did not know that Mr. Singh and her mother were married. Her mother never spoke to her about this fact. In cross-examination she testified that when she was 16 or 17 years of age her mother told her that Sodhi was leaving the house. She testified that she only saw the marriage licence after her mother died. The licence is dated December 29, 2007. Sonali also acknowledged that she told the police, after the events leading to this trial, that her mother was married to Mr. Singh, but that they had separated. She admitted that she has never liked Mr. Singh.
[19] Following her brother’s death in April 2013, Anita and Sonali attended at his home in Michigan. Sonali testified that Mr. Singh assisted when she and her mother were away. He took calls and directed people to her phone.
[20] On December 22, 2013, Anita went to India to participate in rituals surrounding her son’s death. She returned on January 8, 2014. Sonali testified that her grandmother moved into the home while her mother was away in India. Mr. Singh was also there but she did not know why.
[21] Mayank Sandhu is the nephew of Gurcharan Doal, Anita Summan’s business partner. Mr. Sandhu rented a room in the Summan basement. Mr. Sandhu was upstairs one evening when Anita was in India. Sonali testified that Mr. Singh came downstairs and “screamed” at Mr. Sandhu, saying: “Why are you up so late? Why are you upstairs? It’s after nine and if I ever see you upstairs again I’ll cut you into pieces.” Mr. Sandhu recounted a similar event, although he did not testify that Mr. Singh said anything about cutting him into pieces.
[22] Sonali testified that the next morning she told Mr. Singh to get out of the house and he left. She did not see him again until January 21, 2014, the night her mother was killed.
Alleged Assault of Anita Summan
[23] On January 9, 2013, the police attended at Anita Summan’s home. She had injuries to her elbow and head. Mr. Singh was arrested for assault. Two days later he was released on a recognizance of bail and required to live with his surety. He was not to communicate with Anita Summan or attend within 100 metres of her home.
[24] On the day of trial, November 8, 2013, Anita Summan did not attend court. The matter was resolved in a peace bond that included conditions that Mr. Singh not communicate with Anita except with prior written revocable consent to be filed in advance with Cst. Forgette. The officer testified that he never received written revocable consent from Anita.
Mr. Singh’s Immigration Status
[25] Sonali testified that she understood Mr. Singh to be a “refugee”. She used to hear her mother and Mr. Singh discussing his immigration status and once heard him say to her mother, “you don’t care about my status and if I get deported it really wouldn’t matter much to you.” Although she was not sure, Sonali thought that this comment was made closer to the end of 2013 and before her mother departed to India on December 22nd.
[26] Faruq Matadar is an enforcement officer for the Canadian Border Services Agency. He testified about Mr. Singh’s contact with the CBSA. Mr. Singh entered the country without travel documents in August 2003. He applied for refugee status, which was denied in 2004. He was ordered deported in July 2004. He made multiple applications for landing on both humanitarian and compassionate grounds, as well as on spousal sponsorship grounds. His first spousal sponsorship application was made in January 2007.
[27] Mr. Matadar testified that a spouse can decide to sponsor an applicant, in which case the spouse files an application along with the person seeking status. The first spousal sponsorship application was denied two years after it was made. Another spousal sponsorship application was filed four months later on April 16, 2009. It was refused, again almost two years later, the decision being rendered on March 22, 2011. Mr. Singh sought leave to appeal that decision. The leave application was dismissed on August 30, 2011. He filed another spousal sponsorship application for landing on May 24, 2011. It was denied on March 27, 2012.
[28] During this period of time, Mr. Singh was also filing applications for landing on humanitarian and compassionate grounds. These applications were also being denied and he was seeking leave to the Federal Court to review the refusals. The leave applications were also being dismissed.
[29] After the dismissal of the spousal sponsorship application on March 27, 2012, Mr. Singh did not file another application based on spousal support. Nor did he ever appeal from the March 27, 2012 refusal to grant him landing. This is in contrast to his applications for landing based on humanitarian and compassionate grounds. He sought leave to review the refusals. The most recent leave application was dismissed on March 11, 2013. On November 14, 2013 he again filed on humanitarian and compassionate grounds.
[30] On November 13, 2012, Mr. Singh attended at the CBSA for a “pre-removal” meeting. Anita Summan and his nephew attended at the interview, after which he was placed on conditions including that he was required to report in person to the CBSA once a month. He was also required to let the CBSA know about any change of address and advise the CBSA if he was charged with an offence. There is no indication that Mr. Singh ever reported his January 9, 2013 assault charge to the CBSA. Nor does it appear that he reported to the CBSA that he was under a recognizance and required to live away from Anita Summan’s home, 179 Kingknoll Drive in Brampton. Without prior written revocable consent, the peace bond also required his absence from the Summan home. This is the location he was required to remain under the conditions imposed by the CBSA.
The Events of January 21, 2014
[31] Sonali testified that after her brother died, her mother opened a women’s clothing store. She set it up inside of Gurcharan Doal’s store. Anita addressed Mr. Doal as “brother”.
[32] Sonali testified that on January 21, 2014 her mother changed the lock on the front door of their home because the previous one was jamming. While Mr. Singh may have assisted in this task, she had no specific recollection of this occurring.
[33] Sonali and her mother worked at the store that day. They returned home around 8:00 p.m. Her mother unlocked the front door to the home and, upon entering, Sonali saw Mr. Singh sitting in the living room. She asked her mother why Mr. Singh was there and her mother responded that he would leave. Her mother did not seem concerned about his presence.
[34] Anita made pasta for dinner and Sonali ate in the family room. Anita joined her. After dinner, Sonali, her mother and the accused discussed the keys to the new lock. Mr. Singh asked Anita for the original key to the house. Sonali inquired “why”, but her question was not answered.
[35] She eventually went up to bed and read for about 15 minutes before hearing the doorbell ring around 10:00 p.m. She knew that Mr. Doal was coming over that night for what she thought was going to be a business meeting with her mother. Sonali also thought that Mr. Doal and her mother were going to discuss women’s clothing that Anita had ordered for the women in Mr. Doal’s family.
[36] Mayank Sandhu testified that he arrived with Mr. Doal, but entered the house through the side door that went down into his basement apartment. He dropped his things and then came upstairs because Anita had invited him for pasta. Mr. Sandhu saw Mr. Singh sitting in the living room. He got his pasta and sat at the kitchen table. Mr. Doal was standing in the eat-in area of the kitchen. Anita was standing closer to the stove in the southern part of the kitchen.
[37] Mr. Doal testified that after he dropped his nephew off, he received a call from Anita, asking him to come in and discuss identification she needed to pick up some clothing. He testified that he entered the house through the front door at around 9:50 p.m. He went into the kitchen.
[38] Mr. Doal said that he did not make it much further than the doorway to the kitchen when Mr. Singh entered the kitchen from the other doorway to the kitchen, closer to where Anita was at the south end. According to Mr. Doal, Mr. Singh came “hurriedly”. He testified that Mr. Singh “came running” into the kitchen and toward where Anita was standing. He was moving “very fast” and “as soon as he got” to Anita he started stabbing her. Upon entry to the kitchen, Mr. Singh only had to take two to three steps before he was stabbing Anita. Mr. Doal did not see where the knife came from. He said that Mr. Singh may have had it with him from before. Mr. Doal testified that Mr. Singh came in with “such a speed” and Anita screamed. Mr. Doal did not hear Mr. Singh say anything. After he stabbed Anita, Mr. Singh then turned and came toward Mr. Doal, also at a great speed. He was first stabbed in the kidney.
[39] Mr. Sandhu testified that he saw Mr. Singh walk into the kitchen “normally”. Mr. Sandhu continued speaking on the phone and eating. He then heard Anita scream. Mr. Singh’s back was to the sink and Anita was facing him. He stabbed her with a large knife, about 10-12 inches in length. It was five minutes or less between when Mr. Singh walked into the kitchen and Anita was stabbed.
[40] Things then happened quickly. They were chaotic and Mr. Sandhu was scared. He testified that his uncle started moving toward the door of the kitchen and Mr. Singh went after him with the knife. The last thing he saw was his uncle putting his arms together on his chest and Mr. Singh about to stab him. Mr. Sandhu ran out the front door of the house and then back in the side door, down the stairs, and into the basement apartment area. He said he went back in because he wanted to help the students (renters) in the basement and explain what had happened.
[41] He testified that he and a man, Puneet Sharma, locked themselves in Mr. Sharma’s bedroom. Mr. Sandhu was also holding the door shut with his hands and feet. He demonstrated his posture in the witness stand.
[42] Then a pounding started at the door. The banging was loud and the man on the other side was saying in Punjabi that he should come out. It was “really bad banging”. The knife penetrated through the door two times. Mr. Sandhu described about two and a half to three inches of the knife coming through the door. Photographs of the areas where the knife blade penetrated the door were filed as exhibits.
[43] Mr. Sharma called 911. Eventually the banging stopped and the police arrived. Mr. Sandhu testified that he was in the bedroom with Mr. Sharma for about 5-8 minutes before the banging started. He was there for about 10-15 minutes between when the banging stopped and the police attended.
[44] Puneet Sharma also testified. He said that the house was typically quiet, and so it struck him as unusual when he heard what sounded like a big fight break out upstairs. A few minutes after he heard the noises upstairs, he said that he looked out of his door and a man came running and said “open the door”. The man entered the bedroom and they locked the door. Then someone came and was pounding on the door yelling, “let him out” or “send the guy out”. He said it three to four times. He was pounding hard on the door and Mr. Sharma testified that he was terrified. The man was yelling in Punjabi.
[45] Mr. Sharma testified that it was only 10-15 seconds from the time that the man ran into his room, to the time that he heard the pounding on the door. The pounding was still happening when he called 911. He could see the knife come through the door. The man was outside of the door for about 50 seconds to one minute. Eventually things went quiet and the man left. They did not leave the room until the police arrived.
[46] Sonali testified that she heard a loud thud. A couple of minutes later she heard a scream. She came downstairs and saw her mother in the foyer by the front door and Mr. Doal bleeding by the family room door. She attended to her mother and called 911.
[47] She could hear running and banging coming from the basement. She went into the basement to see where the noise was coming from and to see where Mayank Sandhu had gone. She continued to hear the banging while she was in the basement but did not go to the area where Mr. Sandhu and Mr. Sharma were locked behind the door. She testified that she also went to the kitchen to look for a knife she had seen in the sink before she went to bed. She could not see the knife.
[48] While she was with her mother in the front foyer, waiting for the first responders to arrive, Mr. Singh came up from the basement, took his coat from the bannister in the front hallway, put on his shoes that were at the front door and left the house. He was moving at a “normal” pace and looked “normal”.
[49] Her mother told her three things: (1) call the police; (2) tell the police that Sodhi did it; and (3) get him deported.
[50] A knife was found in a basement closet. It had blood and white paint chips on it. The paint could not be excluded as the same paint as that on the bedroom door that was penetrated by a knife. The knife also had blood on it. Mr. Doal could not be excluded as a contributor of the blood. The random match probability between Mr. Doal and the blood found on the knife was 1 in 36 quadrillion. Anita Summan could not be excluded as a donor of other blood on the knife, although the random match probability was only 1 in 910.
Time Line
[51] The 911 call made by Sonali Summan was received at 10:03:53 p.m. and lasted for about seven minutes. The call lasted until the first officer arrived on scene. The first officers on scene testified that they arrived at 10:09 p.m.
[52] The 911 call made by Puneet Sharma was received at 10:04:30 p.m. [2] It lasted for about five minutes.
Friction Ridge Identification and Blood Stain Pattern
[53] Det. Rob Hofstetter was qualified on consent as an expert in the area of friction ridge identification and bloodstain patterning. He was qualified to give opinion evidence in these areas.
[54] Det. Hofstetter found a drop of blood that Mr. Doal could not be excluded as the contributor of, on the walkway out front of the home. The blood drop suggests movement away from the home. The officer also found blood on the door leading from the outer stairs to the basement into the apartment area. That door also had Mr. Singh’s index finger and palm print on it. This was the door that was used by Mr. Sandhu to access the basement after the stabbings occurred.
Unlawful Confinement
The Positions of Counsel
[55] Mr. Burgess argues that there is no evidence upon which the jury could find that Mr. Sandhu was unlawfully confined as there is no evidence that he locked himself in the bedroom as a result of the accused’s coercion. He made it safely out the front door of the house and no one forced him to go to the basement. He chose to be in the basement bedroom, both before and after the pounding on the door. He was not directed there or forced to attend at that location.
[56] Ms. Bridge argues that Mr. Sandhu was unlawfully confined from the time that the stabbing started in the kitchen. Mr. Singh’s stabbing of Anita and subsequent movement toward Mr. Doal was an act of domination as it relates to Mr. Sandhu. Ms. Bridge says that there is evidence from which the jury could infer that Mr. Sandhu was chased out the front door of the home, down the front steps and around into the basement. The chase was an attempt to unlawfully confine him. The unlawful confinement simply crystalized at the bedroom door when, the Crown argues, Mr. Sandhu was prevented from moving about according to his own inclination and desire.
The Law Related to Unlawful Confinement
[57] While this offence is sometimes referred to as “forcible confinement”, this descriptor is not accurate since under s. 279(2) of the Criminal Code, the word “forcibly” only qualifies the word “seizes”: “Every one who, without lawful authority, confines, imprisons or forcibly seizes another person ...”. The word “forcibly” does not add anything to the elements of an unlawful confinement: Pritchard, at para. 25.
[58] The actus reus of an unlawful confinement involves a person being “coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire” for a “significant period of time”: Pritchard, at para. 24; Mullings, at para. 96; R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para. 46; R. v. White, 2014 ONCA 64, 305 C.C.C. (3d) 449, at para. 51, leave to appeal ref’d [2014] S.C.C.A. No. 500; R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), at pp. 473-75, leave to appeal to S.C.C. ref’d, [1985] S.C.C.A. No. 118; R. v. K.M., 2016 ONCA 347, at para. 18.
[59] While the subject of an unlawful confinement needs to be restrained, this need not be done through the application of physical force or touching. While this is one way in which to commit the actus reus of the offence, it is not the only way. A person may also be coercively restrained by subjecting them to “threats, intimidation or the imposition of fear”: R. v. Kematch, 2010 MBCA 18, 251 Man.R. (2d) 191, at para. 55. As Monnin J.A. held in Kematch, at para. 55: “Preventing a person from leaving a place by threatening him with a gun if he moves, is an example of a person being physically restrained by non-physical, psychological means.”
[60] As for the mens rea of an unlawful confinement, it is a general intent offence: R. v. Bottineau, [2007] O.J. No. 1495 (S.C.), at para. 48. The Crown need only establish that the accused intended to deprive the victim of freedom of movement: K.M., at para. 18; R. v. S.J.B., 2002 ABCA 143, 312 A.R. 313, at para. 41. No specific or ulterior intent is required: R. v. E.B., [2006] O.J. No. 1864 (S.C.), at paras. 122-24, aff’d 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal ref’d [2011] S.C.C.A. No. 455.
Determination of the Issue on Unlawful Confinement
[61] The Crown says that the jury could infer that Mr. Singh’s stabbings of Anita and Mr. Doal were acts of domination toward Mr. Sandhu and that these acts were a step beyond mere preparation for purposes of an attempt. Once Mr. Singh started pursuing Mr. Sandhu into the basement, according to the Crown theory, he was acting in furtherance of his attempt to confine.
[62] With respect, I do not accept these submissions. The mens rea for an attempt is the intention to commit the completed offence: R. v. Ancio, [1984] 1 S.C.R. 225; United States v. Dynar, [1997] 2 S.C.R. 462. I can find no facts upon which a properly instructed jury, acting reasonably, could infer that Mr. Singh’s intent in pursuing Mr. Sandhu was to deprive him of his freedom of movement. While the facts support an inference that he intended to catch up to him for other reasons, there is no evidence that in the kitchen, or on route to the basement, he was intending to deprive him of the ability to freely move about.
[63] The Crown’s argument rests on what is said to be an application of the principles derived from White. White is a first degree murder appeal where it was suggested that the trial judge erred by leaving the jury to consider both an attempted and completed unlawful confinement for purposes of constructive first degree murder. Importantly, White and others formed a plan to rob the victim. They approached him in a catwalk. A short while later the victim was seen running from the catwalk, closely pursued by another man. He was captured and placed in a bear hug. A few seconds later he was stabbed.
[64] Justice Simmons concluded that there was evidence of both an attempted unlawful confinement that started in the catwalk and concluded with an actual unlawful confinement when the victim was placed in the bear hug. While the Crown likens the chase in this case to the chase in White, they are fundamentally different scenarios. The difference turns on the fact that in White there was evidence that the potential confinement in the catwalk and subsequent chase was to achieve a robbery. If the robbery was to happen, the victim would have to be subjected to some form of coercive restraint. As the Court concluded, the evidence supporting an attempted and actual unlawful confinement was clear – the intent to do so from the outset was clear.
[65] This case is dissimilar. There is no evidence supporting an inference that Mr. Singh set out to confine Mr. Sandhu. To the contrary, the inferences available on the evidence in this case are that Mr. Singh was chasing Mr. Sandhu, not to coercively restrain him against his will, but to kill him. Indeed, the Crown’s own theory accords with this inference, as reflected in the attempted murder charge in relation to Mayank Sandhu.
[66] I can find no evidence to support the inference that, as Mr. Singh pursued Mr. Sandhu into the basement, he intended to deprive him of freedom of movement, as opposed to kill him. While the evidence of pursuit is relevant as it relates to the issue of whether the actual unlawful confinement of Mr. Sandhu was part of a single transaction for purposes of constructive first degree murder, it is not something that supports a theory that there was an attempted unlawful confinement of Mr. Sandhu in the kitchen or while Mr. Singh was in pursuit.
[67] As for an actual unlawful confinement, I find that there is evidence from which a properly instructed jury, acting reasonably, could find that the essential elements have been met. While the facts in this case are somewhat different than the usual unlawful confinement scenario, the inferences that arise from them support the essential elements.
[68] It is correct to observe that Mr. Sandhu ran into the basement bedroom and was not directed there by Mr. Singh. It is also correct to say that he stayed there until the police arrived. The point is, though, that a jury could find that he did not have a meaningful choice in the matter. He was, for all intents and purposes, coercively restrained and in fear for his life.
[69] While there is evidence upon which a jury could find that Mr. Singh was beseeching him to come out, the offer was at the end of a knife that had already been used to stab two people.
[70] This is a general intent offence and the jury only has to find that the accused intended to deprive Mr. Sandhu of his freedom of movement. It does not matter whether Mr. Singh’s ultimate goal was to kill Mr. Sandhu or something else. What matters is whether, while pounding on the door, and sticking the knife through the door, he intended to deprive Mr. Sandhu of a choice to move about. The verbal direction to come out, combined with all of the circumstances of the interaction, provide ample evidence of any unlawful confinement.
[71] I find Rouleau J.A.’s comments in R. v. Johnstone, 2014 ONCA 504, 313 C.C.C. (3d) 34, of significant assistance in this regard. In that case, there was circumstantial evidence to suggest that prior to her death, the soon-to-be deceased was left alone in a washroom. There was evidence that she locked the door and leaned against it.
[72] The accused was convicted on the basis of constructive first degree murder arising out of an unlawful confinement. The appellant argued that the victim had locked the bathroom door and he was simply attempting to “un-restrain her” by breaking the door down. The Court of Appeal rejected this submission, noting that the only reasonable inference from the evidence was that the appellant’s attempts to “un-restrain” the victim were to get access to her to kill her. He was not attempting to open the door to set her free.
[73] Moreover, there is evidence upon which a jury acting reasonably could find that Mr. Singh intended to and did deprive Mr. Sandhu of his freedom of movement. He was yelling at the door for Mr. Sandhu to come out. He was pounding on the door. He was sticking a knife – a weapon he had already used to stab others – through the door. By staying at the door and doing what he was doing, in the circumstances he was doing it, there is evidence upon which a jury could reasonably infer that he intended to deprive Mr. Sandhu of movement and did deprive Mr. Sandhu of movement.
[74] The directed verdict application on count 5 is dismissed.
First Degree Murder: Planning and Deliberation
The Positions of Counsel
[75] Mr. Burgess argues that there is no evidence upon which a jury could convict Mr. Singh of first degree murder based on planning and deliberation. He rejects the suggestion that there is any evidence upon which to support the Crown’s theory that Mr. Singh was upset with Anita Summan because she was not supporting his application for immigration status in Canada. At most, he says that there is weak circumstantial evidence that rests on the absence of a spousal application in the fall of 2013. Mr. Burgess says that there is an evidentiary gap between the absence of an application and a finding that Anita Summan did not wish to assist Mr. Singh in his pursuit of immigration status.
[76] Ms. Bridge says that there is evidence of planning and deliberation upon which a properly instructed jury, acting reasonably, could find that this element of the offence has been proven beyond a reasonable doubt.
The Law on Planning and Deliberation
[77] Planning and deliberation has been offered a very specific meaning in the jurisprudence. In 1961, Justice Gale gave a jury instruction that has been universally adopted as the classic definition of planning and deliberation: R. v. Widdifield, Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152, at p. 153; Nygaard, at p. 1084.
[78] The words planned and deliberate must be read conjunctively. According to Gale J.’s instruction in Widdifield, a planned murder is one that occurs as a result of a “calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed”. The plan does not have to be complicated and, in fact, can be quite simple. As for timing, the time involved in making the plan is a factor for consideration but not dispositive of the analysis. It is important to keep in mind that a planned murder may happen “immediately” upon being hatched or “can wait an appreciable time to do”: see Widdifield, at p. 153; R. v. Reynolds (1978), 44 C.C.C. (2d) 129 (Ont. C.A.).
[79] The word “deliberate” means "considered," "not impulsive," "slow in deciding," and "cautious". The accused must take the time to weigh the advantages and disadvantages of his intended action: R. v. Aalders, [1993] 3 S.C.R. 482, at pp. 502-4; R. v. Stiers, 2010 ONCA 382, 255 C.C.C. (3d) 99, at paras. 65-66, leave to appeal ref’d [2011] S.C.C.A. No. 150. The decision to murder does not have to be the result of rational or normal thinking. What is important, is that it is not the result of a “sudden impulse”: R. v. Kirkby (1985), 21 C.C.C. (3d) 31 (Ont. C.A.), at pp. 66-7, leave to appeal ref’d [1986] 2 S.C.R. vii.
Determination of the Issue on Planning and Deliberation
[80] While the circumstantial evidence of planning and deliberation is far from strong, keeping within my jurisdiction on a directed verdict application, I find that there is sufficient evidence upon which a jury could find planning and deliberation.
[81] There is some evidence of animus and motive in this case. As O’Connor J.A. (as he then was) held in R. v. F.(D.S.) (1999), 43 O.R. (3d) 609 (C.A.), at para. 23: “It is well established that evidence of motive is admissible to prove the doing of an act as well as the intent with which the act is done.” See also: R. v. Jackson (1980), 57 C.C.C. (2d) 154 (Ont. C.A.) at p. 167. In addition to intent and identity, evidence of motive or animus can be probative on the issue of planning and deliberation: R. v. Riley, [2009] O.J. No. 1374 (S.C.), at paras. 98-99; Bottineau, at para. 28.
[82] In this case, there is some circumstantial evidence from which the jury could infer that Mr. Singh held an animus toward Anita Summan and motive to do her harm. The evidence includes:
- He is alleged to have assaulted her in January 2013. An officer noticed injuries on her at that time. While this single assault allegation, standing alone, would be probative of little, it has to be considered against the whole of the evidence, including the impact that the allegation may have had on Mr. Singh’s immigration status.
- Mr. Singh made multiple applications to obtain landed status. From the evidence led on this point, the jury could infer that Mr. Singh was actively and persistently taking steps to stay within Canada. The jury could infer from these steps that he would be displeased with anything that may interfere with his chances of success.
- There is evidence that the immigration authorities were closing in on Mr. Singh. While there were no travel documents in place on January 21, 2014 that could have permitted his expulsion from Canada, Mr. Singh was on conditions that required him to attend once a month and sign-in with the CBSA. He did this on January 21, 2014. The jury could find that this would have been a fresh reminder of his immigration troubles.
- While he had filed a new application for landing on humanitarian and compassionate grounds, for the first time since 2007, it was not accompanied by a spousal application.
- While Mr. Singh was on a peace bond requiring that he not communicate with Anita Summan, she could have provided written revocable consent to the police so that they could have “officially” communicated. Presumably, if she had done this, then she could have supported another spousal application. She did not file this consent with the authorities. The jury could infer that her failure to do so is some evidence that she refused to help him, consistent with Sonali’s evidence that Mr. Singh had expressed his view that she did not care about what happened to his immigration status.
- The jury could also infer that the fact of the criminal assault charge created a significant risk to Mr. Singh’s immigration status. He was required to report any change in address and any criminal charges. While the evidence suggests he did not do so, the risk that the CBSA would find out was real. Anita’s failure to file written revocable consent to allow them to communicate was potentially a problem for him when it came to the CBSA authorities. After all, he had signed a release form with the CBSA saying that he lived at Anita’s address.
[83] This body of circumstantial evidence could give rise to the inference that Mr. Singh was upset with Anita Summan. The jury could infer that he saw her as a barrier to his successful pursuit of immigration status. It is some evidence upon which the jury could infer that he planned and deliberated upon her murder.
[84] I find that there are other facts that also support this inference.
[85] Mr. Singh was sitting in the living room at the time that Anita and Sonali arrived home. The only evidence of an interaction between them pertained to Mr. Singh wanting the original key to the new lock. Sonali testified that the discussion occurred in the kitchen after she had completed her dinner. On the evidence, the jury could infer that Sonali had already put her plate into the sink and seen a knife (the knife that was later missing from the sink area).
[86] Sonali testified that she questioned why Mr. Singh needed a key. This may have upset Mr. Singh. The evidence suggests that he left the kitchen at some point, returned to the living room and again sat by himself.
[87] The jury could infer that Mr. Singh was upset about Sonali’s attitude toward him and the key to the home. The jury could infer that he retrieved the knife following this discussion and before Sonali went to bed.
[88] The jury could also infer that aside from being upset about Sonali’s attitude, Mr. Singh was upset that Anita was not helping him with his immigration status. Indeed, the jury could infer that the assault charge and peace bond – and the lack of prior written revocable consent – put him at risk in terms of his immigration status. The jury could infer that he was upset by all of this and took time in the living room to plan and deliberate upon killing Anita.
[89] The evidence shows that the next time Mr. Singh was seen, it was by Mr. Sandhu. He was still seated in the living room by himself, with his back to the kitchen door closest to the stove and sink area where Anita was stabbed.
[90] There were two eyewitnesses to Anita’s stabbing. While Mr. Doal and Mr. Sandhu’s evidence differed in some important ways, neither was able to give any explanation for why the stabbing took place. While Mr. Sandhu was somewhat distracted before the stabbing, he said that he noticed nothing unusual occur between when Mr. Singh entered the kitchen and when he stabbed Anita Summan. As for Mr. Doal, he said he had just arrived and barely got into the kitchen when Mr. Singh came quickly in and stabbed Ms. Summan and then him.
[91] Mr. Doal testified that he had barely arrived in the kitchen when Mr. Singh came quickly in and stabbed Anita Summan. Mr. Doal did not see Mr. Singh get a knife. Rather, he took a few steps and stabbed Anita. The jury could infer from Mr. Doal’s evidence that Mr. Singh already had a knife in his hand when he entered the kitchen. The jury could infer that he had the knife while he was sitting in the living room, with his back to the door of the kitchen, waiting for his moment to stab Anita. This inference could further support evidence of planning and deliberation.
[92] Of course, I recognize that Mr. Doal’s evidence stands in stark contrast to the evidence of Mr. Sandhu who testified that Mr. Singh was in the kitchen for as much as five minutes before the stabbing took place. If Mr. Sandhu is right, while still completely inexplicable, Mr. Singh may have obtained the knife from the sink where Sonali testified she had seen a knife. He could have done this just prior to the stabbing. It will be for the jury to determine the facts based on all of the evidence. It would be an error to conduct this type of exercise on a directed verdict application. The fact is that there is some evidence upon which a properly instructed jury, acting judicially, could find that Mr. Singh committed a planned and deliberate first degree murder.
Constructive First Degree Murder: Unlawful Confinement
Positions of Counsel
[93] I have already concluded that there is evidence upon which the jury could find Mr. Singh unlawfully confined Mr. Sandhu. As such, for purposes of the directed verdict application as it relates to constructive first degree murder, I will focus on the alternative defence position. Mr. Burgess argues that there is no temporal or causal connection between the killing and confinement, such that they are capable of forming a single transaction sufficient to justify a finding of first degree murder. In other words, even if Mr. Sandhu was unlawfully confined by Mr. Singh, the confinement was not sufficiently temporally and causally connected to the murder to justify a finding of first degree murder.
[94] Ms. Bridge acknowledges the requirement for a single transaction and the importance of a temporal and causal connection between the killing and the act of unlawful confinement. She argues that the evidence supports this connection.
The Law of Constructive First Degree Murder: Unlawful Confinement
[95] Section 231(5)(e) makes murder first degree murder when “death is caused … while committing or attempting to commit an offence under … section 279 (kidnapping and forcible confinement)” of the Criminal Code.
[96] The law in respect to constructive first degree murder has evolved significantly over the last few decades. Until R. v. Paré, [1987] 2 S.C.R. 618, there was some dispute as to whether the underlying act had to occur simultaneously with the murder. Paré resolved this debate. Wilson J. determined that precluding a conviction on first degree murder, simply because an accused sits and contemplates his next steps for a couple of minutes, would invite arbitrary and irrational distinctions into the law: Paré, at p. 631.
[97] To avoid such results, the Court drew heavily upon Martin J.A.’s analysis in R. v. Stevens (1984), 11 C.C.C. (3d) 518 (Ont. C.A.): “where the act causing death and the acts constituting the [underlying offence] all form part of one continuous sequence of events forming a single transaction”, then death is caused “while committing” an offence for purposes of constructive first degree murder. What is required is a “close temporal and causative link between the two”: Paré, at p. 629.
[98] While Paré was a sexual assault case, the test was re applied in Pritchard, at para. 33. Justice Binnie reinforced the idea that there need not be an exact coincidence in the timing between the murder and predicate offence. What is required is a “close temporal and causative link” between the two. He concluded that second degree murder would become first degree murder where the murder and underlying offence “are linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction” (at para. 35).
[99] This test has been repeatedly applied, including in R. v. Russell, [2001] 2 S.C.R. 804, where McLachlin C.J. held at para. 43:
In my view the appellant states the organizing principle of s. 231(5) too narrowly. The provision reflects Parliament's determination that murders committed in connection with crimes of domination are particularly blameworthy and deserving of more severe punishment. "[W]hile committing or attempting to commit" requires the killing to be closely connected, temporally and causally, with an enumerated offence.
[100] Ultimately, it was determined in Russell that for purposes of constructive first degree murder, the victim of the unlawful confinement and the victim of the murder could be different people: Russell, at para. 43. In the context of an unlawful confinement, as long as there are two distinct criminal acts, in the sense that the act of confinement is not “inherent” in the act of killing (see Kimberley, at para. 108) then a close temporal and causal connection between the two can exist even where one person is confined and the other is killed: Russell, at para. 46. Where there exists a close temporal and causal connection between the two acts, they will form part of a single transaction: Russell, at para. 38; R. v. Westergard (2004), 70 O.R. (3d) 382 (C.A.), at para. 20, leave to appeal ref’d [2004] S.C.C.A. 521; Mullings, at para. 102; Johnstone, at para. 41; R. v. Muchikekwanape, 2002 MBCA 78, 166 Man.R. (2d) 81, at para. 91; Parris, at paras. 51-52.
[101] While the underlying policy rationale for constructive first degree murder is often articulated as being when a murder is committed by someone who is already abusing his or her power by dominating another, this does not have to be case. As the Ontario Court of Appeal has recognized in Westergard, for purposes of constructive first degree murder, the underlying offence does not have to be committed before the act of killing or even death: Westergard, at paras. 31-34. Indeed, taking an approach that focusses too heavily on the exact moment of the underlying offence, relative to the killing, could serve to “obscure the essence of the rationale for Parliament’s decision to classify a murder committed during a sexual assault as first degree”: R. v. Richer (1993), 82 C.C.C. (3d) 385 (Alta. C.A.), at p. 394, aff’d R. v. Richer, [1994] 2 S.C.R. 486; Westergard, at paras. 33-34.
[102] In Mullings, Strathy C.J.O. again reinforced the view that “there is nothing in the jurisprudence that states the predicate offence under s. 231(5) must precede the mortal wound”: at para. 102. Although he noted that it was not necessary in Mullings to decide whether this proposition holds true where the underlying offence is unlawful confinement, he made the following important observation at para. 102:
[W]hen applying s. 231(5) for any predicate offence, courts should avoid a formalistic and technical analysis of the precise sequence of the killing and the predicate offence where they are closely intertwined. What matters is that the act of the killing and the predicate offence, while distinct offences, remain part of the same transaction.
[103] As the defence have acknowledged, quite properly in my view, that an unlawful confinement can occur following the act of killing, and two different victims can be involved, I will not address the issue further. As long as there is some evidence from which the jury can reasonably infer that the killing of Anita Summan and the confinement of Mayank Sandhu were “linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction”, then the directed verdict application must fail on this front as well: Pritchard, at para. 35.
Determination of the Issue on Unlawful Confinement
[104] I find that there is evidence upon which a properly instructed jury, acting reasonably, could find a temporal and causal connection between the killing of Anita Summan and the confinement of Mr. Sandhu and that it was part of a single transaction.
[105] Mr. Sandhu was in the kitchen and an eyewitness to the stabbing of Anita Summan. The jury could easily infer that Mr. Singh knew Mr. Sandhu was in the kitchen when he entered and applied the mortal wounds to Anita. It all happened very fast.
[106] Mr. Sandhu ran out the front door of the home and back through the side door of the basement. Blood on the front walkway, moving in the direction that Mr. Sandhu would have taken, constitutes some evidence upon which the jury could find that Mr. Singh went after Mr. Sandhu immediately after stabbing Mr. Doal. Mr. Doal could not be excluded as the contributor of the blood on the front walkway. The jury could infer that Mr. Singh was carrying the freshly blood soaked knife.
[107] There was also blood on the basement door that Mr. Sandhu would have entered through. The jury could infer that Mr. Singh went through that same door and left blood behind. The jury could infer that he was in pursuit of Mr. Sandhu, which would explain how the blood got there. Mr. Singh’s finger and palm print are also on that door, another piece of circumstantial evidence suggesting that he followed Mr. Sandhu into the basement.
[108] While Mr. Sandhu put the gap in time between when he got into the room and when the pounding started at over five minutes, Mr. Sharma said it was a matter of 15 seconds. Of course, it will be up to the jury to determine what they accept as reliable and credible evidence in this case. If they were to reject Mr. Sandhu’s evidence on this point, and accept Mr. Sharma’s evidence, it would place Mr. Singh at the basement bedroom door within a very short time.
[109] While it is not my task to resolve the conflict in timing in the evidence, and I specifically decline to do so, I note that the 911 calls will be of some assistance to the jury in determining a time-line. Sonali’s call was received just prior to 10:04 p.m. During that call she mentions to the 911 operator that Mr. Singh left the house. She gave viva voce evidence about how he came to the front foyer, took his jacket and shoes and left. This was after Sonali had heard the pounding coming from the basement. Her mother was still alive and breathing when she testified that Mr. Singh came up from the basement, using interior stairs, took his coat, put on his shoes that would have been very close to where Anita lay prone and dying, and left the home. This could also form some evidence of a single transaction where the events were temporally connected.
[110] As for being causally connected, at a minimum, the jury could arrive upon reasonable inferences that Mr. Singh was at the door, confining Mr. Sandhu and yelling at him to come out, because he wanted to kill the person who he thought was the last surviving witness to his murder of Anita Summan. This is a direct causal link back to the murder.
[111] I find that there is evidence upon which a properly instructed jury, acting reasonably, could find that the murder and underlying offence are linked together both causally and temporally and were committed in the course of a single transaction.
Conclusion
[112] The application for directed verdicts is dismissed.
[113] I wish to thank counsel for their helpful materials and arguments.
Fairburn J.
Released: May 12, 2016
COURT FILE NO.: CR15-814 DATE: 20160512 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN – and – IQBAL SINGH DIRECTED VERDICT RULING Fairburn J. Released: May 12, 2016
[1] As the deceased and her daughter share the same last name, to avoid confusion, I will refer to them by their first names.
[2] These times are taken from the viva voce evidence and not from the admissions filed on May 11, 2016, after I gave my oral ruling in this matter.