COURT FILE NO.: CR-16-50000631-0000 DATE: 20200330 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – CURTIS MURRAY and COREY MURRAY Defendants
Counsel: Michael Wilson and Michael Coristine, for the Crown David Parry, for Curtis Murray Adam Boni and Alexander Morris, for Corey Murray
HEARD: February 14, 2020
MOLLOY J.
REASONS FOR DECISION #7
(Gardiner Hearing)
Introduction
[1] Curtis Murray and Corey Murray are brothers. They were jointly charged with first degree murder in connection with the death of 17-year-old Trevor Seraphine on March 21, 2015. On December 7, 2019, after a three-month trial, an 11-member jury convicted them both of second degree murder. The mandatory sentence for second degree murder is life imprisonment, with a minimum period of parole ineligibility of 10 years, up to a maximum of 25 years. It will be my task to fix the period of parole ineligibility for each offender. The jury made recommendations spanning the range, which I will take into account along with other factors.
[2] The members of the jury could have reached the verdict of second degree murder by more than one route, and it is possible that the jurors were not unanimous on the route taken, even though unanimous on the ultimate verdict. One of the routes to second degree murder involved a higher degree of moral blameworthiness than the other, which could be an aggravating factor on sentencing. Also, one of the brothers might have had a higher degree of responsibility than the other. Again, this is a factor that could affect sentencing. Accordingly, I agreed that it would be appropriate for me to make those factual determinations prior to hearing sentencing submissions from counsel.
[3] All counsel agreed that I should make my findings based on the evidence at trial, without the need of any further evidence. I heard submissions from counsel on February 14, 2020, and reserved my decision. Having reflected on the matter, I have concluded as follows:
(1) Curtis Murray was the leader of the two, with his brother Corey being a willing and active participant, but more of a follower than an instigator;
(2) The murder was planned and deliberate, rather than an impulsive act, stopping just short of the level of intent required for first degree murder.
[4] My reasons for these conclusions are set out below.
The Standard to be Applied
[5] All counsel agree on the legal principles I am required to apply in making these factual determinations.
[6] I am bound by the jury verdict and required to “accept as proven all facts, express or implied, that are essential to the jury’s verdict.” [1]
[7] Where the jury verdict is ambiguous with respect to the underlying factual findings, I must not attempt to follow what I believe to have been the logical reasoning process of the jury. Rather, I must come to my own conclusions based on the evidence. [2] In doing so, I am not required to choose the factual determination most favourable to the accused. [3]
[8] Any factual findings I make must not be inconsistent with the jury’s verdict. [4]
[9] Where, as here, the Crown seeks factual findings that would be aggravating factors on sentencing, I am required to be satisfied beyond a reasonable doubt as to those facts. [5]
Factual Background
[10] Trevor Seraphine was murdered at approximately 2:00 a.m. in the lobby of the apartment building at 44 Willowridge Road on March 21, 2015. The murder was captured on video by the building’s security cameras. Trevor was attacked by two assailants. One had a gun and the other had a knife. It is a necessary implication of the jury verdict that the gunman was Curtis Murray and the man with the knife was Corey Murray.
[11] Trevor Seraphine had been visiting a friend at another building in the Willowridge complex earlier that night and was on his way to visit another friend at 44 Willowridge. As he approached the front entrance to the building, Curtis and Corey Murray were coming down the side of the building and rounding the corner. Curtis was in front and Corey was following him a short distance behind. When Curtis got to the corner of the building (where the front walkway to the building was visible) he started to run, firing several shots at Trevor Seraphine. Trevor ran into the vestibule of the building, but could not get past the first set of doors. While Trevor was trapped and cowering in the vestibule area, Curtis shot at him again at close range, wounding him once. That was the only gunshot that hit Trevor, but it did not kill him. Immediately after the shooting, Corey Murray, who was close on the heels of his brother, stabbed Trevor twice, including the fatal wound piercing his heart. Both brothers immediately fled in the same direction from which they had come, got into a waiting car, and sped away.
[12] Immediately prior to the murder, the Murray brothers had taken steps to disguise their appearance. They wore their hoodies up and partially covered their faces. Corey wore his hoodie inside out and was wearing different pants from those he was seen wearing only a few minutes earlier. Both attempted to cover up their distinctively marked running shoes. Some aspects of these attempts to disguise their faces and clothing were more successful than others. However, it is apparent from the jury verdicts that the jury was able to identify both of them, notwithstanding their attempts to hide their distinguishing features.
[13] Looking at the evidence independently, I also have no doubt in my mind that it was Curtis Murray who shot Trevor Seraphine and Corey Murray who stabbed him in the heart.
Evidence of Motive
[14] The Crown presented evidence at trial about a series of incidents showing a developing level of animosity between Curtis Murray and a group of men associated with the apartment buildings around Willowridge and the adjacent Richgrove complex. I will refer to this somewhat amorphous group as “the Champagnie group,” because their apparent leader was a man named Raushan Champagnie. It was the theory of the Crown that these incidents supported an inference that the Murray brothers were motivated to seek revenge against the Champagnie group and that the murder of Trevor Seraphine flowed directly from that motive.
[15] The existence of such a motive would be consistent with the jury verdict. However, it is not a necessary implication from the jury verdict that the members of the jury accepted any or all of this evidence or that the jury found these incidents gave rise to a motive for the murder. It is therefore open to me to make my own findings as to whether there was a motive. For reasons I will develop below, my own independent assessment of the evidence convinces me beyond a reasonable doubt that this murder was a direct consequence of the Murray brothers’ decision to exact revenge against the Champagnie group.
[16] There was obviously some history between Curtis Murray and the Champagnie group prior to March 18, 2015, but the first incident about which there was any evidence at trial occurred on that day.
[17] Samelia Wiltshire was Curtis Murray’s girlfriend. They had been dating for some time and in October, 2014, moved in together at Apartment 711 at 7 Richgrove Drive. Their live-in relationship was short-lived. Although the lease was in Ms. Wiltshire’s name, she moved out in January, citing as reasons her somewhat rocky relationship with Curtis due to his sleeping with other women and her displeasure that the apartment had become something of a “frat house” with Curtis’ friends (including his brother Corey) dropping by frequently. Whatever the reason for her change of residence, Ms. Wiltshire continued to have a close relationship with Curtis Murray and she visited the apartment frequently, often staying overnight there with Curtis.
[18] I found Ms. Wiltshire to be an honest witness. Her memory of events was not always perfect as to details, but the essence of her evidence was highly reliable. Many of the details she provided were corroborated by video surveillance evidence from 7 Richgrove Drive and by cellphone records. There were no significant inconsistencies in her testimony. She did not always give evidence favourable to the Crown and at times indicated that she simply could not identify an individual shown on video, even though it was later apparent that this was Corey Murray. I found her evidence to be even-handed – she was neither antagonistic to, nor sympathetic to, either side. When first interviewed by the police, Ms. Wiltshire clearly lied to them as to the identity of the two individuals in a photograph shown to her. She knew those men to be Curtis and Corey Murray but told the police that she knew one of the men only by the nickname Jungz (which was Corey Murray’s nickname) and that she did not know the other man (although she knew it was Curtis Murray). The next day, at the behest of Curtis Murray, she again lied to the police, telling them that she had been wrong when she identified one of the men as Jungz and that in fact she did not know either man. Ms. Wiltshire was forthright about the lies she initially told to the police. Notwithstanding these earlier examples of dishonesty, I am fully satisfied that by the time of trial, and throughout her evidence, she was doing her best to tell the truth to the best of her recollection. Her evidence is corroborated by the evidence of others, the surveillance videos, and other tangible evidence (such as cellphone records).
[19] Samelia Wiltshire testified that on the evening of March 18, 2015, she and Curtis Murray drove in Curtis’ car to a Hasty Market near their apartment. She said that she waited in the car while Curtis went into the store, intending to buy a cigar. I accept her evidence as to what then happened between Curtis Murray and members of the Champagnie group. Raushan Champagnie was in the plaza, accompanied by a group of men. Champagnie approached Curtis Murray and took a swing at him, whereupon Curtis ran into the nearby Metro grocery store. Fearing for her own safety, Ms. Wiltshire left the car and ran into the Hasty Market. Raushan Champagnie followed her into the store and asked her if Curtis Murray was her boyfriend. Champagnie said something about this being “his town” or “his city”. While this conversation was going on, members of Mr. Champagnie’s group rummaged through Curtis Murray’s car, stealing his belongings, including shoes, sunglasses and a watch. They then drove off in three cars, one of which was a red Mazda driven by a Somalian man known to Ms. Wiltshire as a resident of 7 Richgrove. She said there were 10-15 men in the group, that they were in their teens or early twenties and a few of them were Somalis. She had seen Champagnie before in the community, but did not know him. He was distinctive in appearance, being heavy-set in contrast to others in the group.
[20] Ms. Wiltshire testified that she and Curtis returned to 7 Richgrove after the Hasty Market incident, arriving at some point between about 7:00 and 8:00 p.m. The next incident we know about occurred that same night (March 18th) between 10:00 p.m. and midnight, and was witnessed by Fabion Townsend, a resident of 7 Richgrove, who watched it from his bedroom window. He saw a red Mazda driving back and forth in the parking lot as two men, whom he identified as Curtis and Corey Murray, banged on the roof and shouted things he could not distinguish. He said this went on for 10 or 15 minutes until the Mazda drove away. Mr. Townsend is a completely independent witness with no motive to lie. He knew Curtis Murray and Corey Murray because he lived on the same floor as Curtis Murray’s apartment and saw both men in the building on many occasions. Although it was dark at the time he made these observations, there was lighting in the parking lot. I am satisfied that his identification is reliable. He gave his statement to the police before seeing any video surveillance confirming his recollection and without knowing anything about the prior incident at the Hasty Market or the involvement of the red Mazda driven by the Somalian man who lived at 7 Richgrove.
[21] At some point after Mr. Townsend saw the Mazda in the parking lot on the night of March 18 and the daylight morning hours of March 19, somebody damaged the tires of the red Mazda as it sat in its parking spot outside 7 Richgrove. On the morning of March 19, it was put on a flatbed truck and towed away. I am satisfied beyond a reasonable doubt that it was Curtis Murray who did that, while his brother Corey stood watch at the back door of 7 Richgrove.
[22] There is video footage of two men coming down the back staircase at 7 Richgrove at 1:24 a.m. on March 19. Both men were taking care to avoid being identified by the security cameras in the stairwell. Samelia Wiltshire identified the man in the lead as Curtis Murray, based on her familiarity with him and the way he walked, as well as the clothing he was wearing. Based on her evidence and comparing the clothing this man was wearing and what Curtis was wearing at other times in close proximity to this time, I am fully satisfied that this man was Curtis Murray. I am convinced beyond a reasonable doubt that the other man was Corey Murray, based on the whole of the evidence at trial and in particular his clothing, including the inside out hoodie he was wearing. That hoodie is identical to the hoodie worn by Corey Murray at the time of the murder. After coming down the staircase, Curtis went outside into the parking lot, while Corey stood by the door keeping a lookout. It is clear from the surreptitious nature of their movements that they are involved in some kind of illegal activity. On other occasions, they walked quite freely about the building, including on this staircase, without trying to hide their identity.
[23] At 10:37 a.m. on March 19, there was another altercation in the parking lot of 7 Richgrove. Again, Fabion Townsend was a witness and had a clear view of the incident. Some of this angry confrontation can be seen on video surveillance footage. Before even seeing any of this footage, Fabion Townsend told police that this involved one of the Murray brothers and the driver of the red Mazda. He then saw both brothers walk into the building. Video surveillance footage confirms that those two men are Curtis and Corey Murray.
[24] In my view, it is a rational inference from this chain of events that the illegal activity undertaken by Curtis in the parking lot at 1:24 a.m. on March 19 was vandalizing the tires of the red Mazda. Further, in light of all the surrounding circumstances, there is no other rational conclusion as to what Curtis Murray was doing. I find this incident to be another example of the escalating tensions between Curtis Murray and the Champagnie group, and an example of Corey Murray helping out his brother in a retaliatory act.
[25] Samelia Wiltshire was at work during the day on March 19, 2015. She testified that, according to her recollection, she returned to 7 Richgrove at between 6:00 and 7:00 p.m. She said that she parked in her usual spot and was about to go into the building when she noticed the red Mazda arriving. She immediately was fearful and got back into her car and locked the doors. The red Mazda sped up and parked directly behind her car, blocking her in. She testified that the Somalian guy who owned the car was driving and the same heavy-set man she had seen at the Hasty Market (Raushan Champagnie) was in the front passenger seat. A third man, who she described as being dark-skinned and tall, got out of the Mazda tapped on her window, and asked where her boyfriend was. Ms. Wiltshire did not answer him. She started to reverse her car as if she was going to hit the Mazda, which then moved, enabling her to manoeuvre her way out of the parking spot and drive away. She said she was frightened by this incident and immediately called Curtis on her cell phone to warn him. Video surveillance corroborates that this incident occurred as described by Ms. Wiltshire at 6:57 p.m. on March 19, 2015 and that she phoned Curtis Murray at 6:59 p.m. and had a conversation with him.
[26] Given the threatening nature of the conduct and the fact that it was reported to Curtis by a frightened Ms. Wiltshire, I consider this to be another incident fueling the dispute and Curtis Murray’s motivation for revenge.
[27] Later that night, March 19, at about 10:00 p.m., Raushan Champagnie and two of his associates entered Curtis Murray’s apartment at 7 Richgrove. They stole numerous personal items belonging to Curtis Murray, such as clothing and dozens of pairs of limited edition running shoes worth hundreds of dollars each, as well as a television set. Video surveillance cameras at 7 Richgrove confirm that Raushan Champagnie and others of his group carried out the theft. In addition to the theft, the robbers trashed the apartment, gratuitously slashing the furniture and walls. It is clear that Curtis Murray knew about this by at least midnight or so, as he was the one who told Ms. Wiltshire about it.
[28] On the afternoon of March 20, 2015, Champagnie and his associates transported the clothing and shoes they had stolen from Curtis Murray to 44 Willowridge Road, where they set up a yard sale in the lobby, which they referred to as a “Block Friday Sale.” They put up notices indicating that the sale would run from Friday March 20 to Monday March 23. One of those notices was on the glass door between the vestibule area of 44 Willowridge and the elevator lobby where the sale was held. Throughout the afternoon and evening of March 20, the Champagnie group proceeded to sell items of clothing and shoes belonging to Curtis Murray to multiple people passing through the lobby of the building.
[29] At 1:17 a.m. on March 21, 2015, Curtis Murray and Corey Murray entered the vestibule of 44 Willowridge. Curtis spoke briefly to a few young men in the lobby. He then tore the “Block Friday” flyer off the door leading into the lobby and he and Corey returned to the car that had driven them there. The car drove straight back to 7 Richgrove. Curtis and Corey Murray got out of the car, entered the building, and went up the south stairwell. The driver of the car waited for them outside. The brothers came back down the stairs at 1:45 a.m. and got back into the waiting car. They were wearing the same clothing as before, but carrying backpacks, and Curtis was carrying a pair of light coloured pants over one arm. It was a disputed fact at trial that the clothing item was pants (as contended by the Crown) or some other article of clothing (as asserted by the defence). I am satisfied on the evidence, particularly the video footage itself, that Curtis was wearing a pair of pants, and that Corey was wearing those pants at the time of the murder.
[30] My own view from the video footage outside the apartment is that both Corey and Curtis Murray got into the car. I also consider this to be implicit in the jury verdict finding both men guilty of second degree murder. After leaving 7 Richgrove, the car drove back to Willowridge, parking on Willowridge at the east side of 44 Willowridge, where it was stationary for about 8 minutes. At 1:55 a.m. the car headed north. At 1:57 a.m., Curtis and Corey Murray were at the east side of the building and can be seen heading towards the front of the building on the surveillance video footage. Trevor Seraphine was murdered at approximately 2:00 in the same vestibule where Curtis Murray tore off the Block Friday flyer just 43 minutes earlier.
Factual Findings Sought by the Crown on Sentencing
[31] All counsel agreed at trial that the two assailants who attacked Trevor Seraphine were, at a minimum, guilty of second degree murder. I so instructed the jury stating (at paras. 3 and 4, pp. 126-127 of the jury charge):
Having determined identity, you are now asked if there is a level of intent for murder. You may conclude, as a matter of common sense, that if a sane and sober person does something that has predictable consequences, that person usually intends or means to cause those consequences. But that is simply one way for you to determine a person’s actual state of mind, what he actually meant to do. It is a conclusion that you may only reach, however, after considering all the evidence. It is not a conclusion you must reach. It is for you to say whether you will reach that conclusion in this case. That said, there is no real issue in this case as to whether the perpetrators of this killing, as shown on the video, committed murder. Given what is shown on the video, there can be no other conclusion consistent with the law. This is, however, a matter for you to decide and I will therefore explain the law to you so that you understand why I have said, and counsel have not disputed, that, at a minimum, this was second degree murder.
In this case, one of the assailants chased Trevor Seraphine and shot at him six times at close range. I would suggest to you that the only reasonable inference from that conduct is that the shooter either intended to kill Mr. Seraphine, or meant to injure him, knowing he would likely die, and was reckless as to whether he died or not. Likewise, the other assailant stabbed Trevor Seraphine twice, once in the upper back area and once in the front chest piercing his heart, as a result of which he died. Again, I would suggest to you that the only rational conclusion from the nature of these wounds is that the person who inflicted them either intended to kill Mr. Seraphine, or meant to injure him, knowing he would likely die, and was reckless as to whether he died or not. I note as well that both assailants fled the scene leaving Trevor Seraphine bleeding on the sidewalk, which you may consider to be another indication that they were reckless as to whether or not he died. As a matter of law, it does not matter whether the killers knew or did not know who Mr. Seraphine was, nor does it matter whether they mistakenly thought he was someone else. Therefore, regardless of whether it is possible that the killers thought Mr. Seraphine was someone else, the level of intent required for second degree murder is established.
[Emphasis added.]
[32] Accordingly, there were two central issues for the jury to decide: (1) whether Curtis and/or Corey Murray were either of the assailants; and (2) if so, whether they were guilty of first degree murder, as opposed to second degree murder.
[33] Clearly, the jury determined that the two assailants were Curtis and Corey Murray. It is also clear from the verdict, in light of the video evidence, that the man with the gun was Curtis Murray and that the man with the knife was Corey Murray.
[34] The Crown urged the jury to convict both accused of first degree murder. The Crown’s theory was that the murder was a planned and deliberate response to seek vengeance for the actions of the Champagnie group by taking the life of someone associated to the apartment building at 44 Willowridge. The Crown argued that the Murray brothers put this plan into effect by arming and disguising themselves, entering the property surreptitiously, and then killing the first person they came across associated with the building. Clearly, this theory was rejected by the jury.
[35] The defence submitted to the jury that they could not possibly be satisfied beyond a reasonable doubt that either of the assailants were Curtis or Corey Murray. Clearly, this theory was also rejected by the jury.
[36] The question that now arises at the sentencing stage is the level of intent of each accused and what their respective roles were in this crime.
[37] I instructed the jury that, assuming they were satisfied as to the identities of the perpetrators, there were two possible routes by which they could find second degree murder:
(i) where there was planning and deliberation to kill one of the men involved in the Champagnie group actions, and then Trevor Seraphine was killed as a result, based on a mistaken impression that he was a member of the group; or,
(ii) where the Murray brothers set out to commit some kind of retaliatory act, but the killing of Trevor Seraphine was an impulsive act when they saw him headed towards the building.
[38] In addition to these two alternate routes to second degree murder, the jury was instructed that they could convict both accused if: (1) they found they acted jointly in planning and carrying out the killing; or (2) if they found each accused was a principal party; or (3) if they found one was a principal and the other aided him in that offence.
[39] There is a higher degree of moral blameworthiness associated with the first route to second degree murder stated above. I am therefore tasked with determining whether there was planning and deliberation in this murder, as opposed to it being an impulsive act.
[40] Further, the respective roles of the two brothers may be relevant in sentencing. For example, if one brother acted as a principal and the other merely aided in carrying out the offence, a lesser sentence might be appropriate for the aider. Further, even if they are both principals in the murder, if one brother was the primary mover and the other more of a follower, different sentences might be appropriate.
[41] These then are the two questions I must determine with respect to the factual aspects of the murder itself: (1) the nature and extent of any planning and deliberation involved; and (2) the relative degrees of responsibility of each brother.
Factual Analysis: Planning and Premeditation
[42] There is no evidence that Trevor Seraphine was known to either Curtis or Corey Murray. Even if they did know him, they could not have known that he would be walking towards the entrance of 44 Willowridge at the precise time they arrived there, disguised and armed. It is impossible on the evidence, particularly with respect to the movements of these three people, that this was a deliberate targeted killing of the individual known to the killers to be Trevor Seraphine. I see three possibilities: (1) the Murray brothers planned to kill someone associated with Willowridge and killed Trevor Seraphine because they believed he was associated with that building; (2) the Murray brothers killed Trevor Seraphine because they were mistaken as to his identity; or (3) the Murray brothers impulsively attacked and killed Trevor Seraphine just because he was there and without regard to who he was.
[43] The first option was the theory of the Crown at trial. The Crown theory was that Curtis and Cory Murray planned and deliberated to kill someone associated with 44 Willowridge, disguised and armed themselves with that purpose in mind, and then killed the first person they saw heading into the building. This would clearly be first degree murder. Since the jury did not convict either of the accused of first degree murder, that theory must be dismissed from my analysis because I am not permitted to reach a conclusion inconsistent with the jury’s verdict of second degree murder.
[44] The second and third options were both given to the jury as possible routes to second degree murder.
[45] The defence supported the third option, both at trial and before me on sentencing. They submit that, based on the steps taken by the offenders to conceal their identities, it can be inferred that they had planned on some sort of criminal activity. However, they argue that there is no evidence that the brothers planned or deliberated to take a life. On behalf of Corey Murray it is also argued that he merely followed after his brother Curtis, that it was Curtis who initiated the attack on Trevor Seraphine, and that Corey’s decision to stab Trevor Seraphine was an impulsive one.
[46] I find on the evidence of Ms. Wiltshire and Mr. Townsend, as well as the videotape surveillance evidence, that there was an escalating conflict between Curtis Murray and the Champagnie group and that Corey was actively involved in providing physical backup and support to Curtis in connection with it. In my view, it is clear on the evidence that both Curtis and Corey Murray were motivated to retaliate against members of the Champagnie group, and had already taken some steps to do so in the former of vandalizing the red Mazda in the parking lot at approximately 1:24 a.m. on March 19, 2015.
[47] The theft of Curtis Murray’s belongings and the gratuitous vandalization of his apartment occurred at approximately 10:00 p.m. on March 19, 2015. Given what had been going on over the preceding days, it is a reasonable conclusion that Curtis Murray would have suspected the Champagnie group of committing the break-in. This is confirmed by the testimony of Samelia Wiltshire, who I find to be credible and reliable on this point.
[48] Shortly before 1:00 a.m. on March 21, 2015, a car with distinctive features began to drive around the Richgrove and Willowridge complexes. It was dark and the colour cannot be seen clearly, although it appears to be a shade of gray. The licence plate number cannot be read. However, given the timing of this driving, as compared to the test drive over the same route by D.S. Price, I am satisfied that this is the same car going around and around a circuit that included driving by 10 Willowridge and 44 Willowridge, then back through Richgrove, then back again to Willowridge and so on. From the timing and distinctive features of the car when it can be seen (e.g. colour, four doors, five-spoke rims, the shorter and angular cut of the back trunk area, the location of the brake lights, and the location of the emblem on the front grill), I have no hesitation concluding that this was the same car driving around and around the area for a period of about 20 minutes. Ultimately, the car stopped in front of 44 Willowridge at 1:17 a.m. and Curtis and Corey Murray got out. They went into the lobby of 44 Willowridge, took the flyer off the door, got back in the car, and immediately headed to 7 Richgrove to Curtis Murray’s apartment, arriving at 1:23 a.m. They were not carrying anything when they went into the building. They came out at 1:45 a.m. carrying backpacks, and got back into the same car, which drove off towards Willowridge.
[49] I conclude from the video surveillance tapes that the car stopped on Willowridge in the area of the east side of 44 Willowridge. It was stationary for a period of approximately eight minutes. A brief light can be seen coming on and going off, consistent with the door having been opened as people were exiting. The car then drove away for a short distance with its headlights off, clearly part of a clandestine purpose.
[50] Curtis and Corey Murray emerged along the east side of the building within seconds of the car moving on. They had taken steps to disguise themselves. Corey was wearing a scarf tied around the lower half of his face. He was wearing his hoodie inside out, with the hood up. He had changed the pants he was wearing earlier, and was now wearing a lighter coloured pair of pants similar in colour to the item Curtis Murray was carrying over his arm as he was coming down the 7 Richgrove south stairwell at 1:45 a.m. I have no difficulty concluding that Curtis Murray was carrying pants, as can be seen from the belt loops when the video is scrutinized carefully. Curtis also changed his pants, switching to a pair of pants with distinctive markings down the legs and at the pockets. He was wearing that same pair of pants on January 30, 2015 when captured on video surveillance from The Bay where he had been “shopping.” Both men had taken steps to cover up their distinctive running shoes, although the cloths Curtis had tied over his shoes came loose during the attack and his shoes became clearly visible. It is clear the Murray brothers were aware of surveillance cameras and were intent on hiding their identities. Their manner of approach (surreptitiously along the side of the building and disguised) stands in sharp contrast to the open manner in which they walked up to the front entrance just 45 minutes earlier.
[51] The only rational inference from this conduct is that they had formulated some type of plan to undertake a criminal act as a result of having found the flyer about the Block Friday sale in the lobby of 44 Willowridge. Immediately after finding it, they returned home, gathered together their disguises, and then returned to the scene ready to carry out some kind of criminal act in retaliation. It is possible that they also armed themselves upon returning to the apartment, but it is also possible that they were already armed before they got to the apartment. Their weapons were concealed as they were walking along the side of 44 Willowridge, and they could also have been concealed as they were walking and driving about in the community earlier that same night.
[52] I agree with defence counsel that there is no direct evidence as to the specific nature of the criminal action they planned to carry out. However, this is often the case in murder trials. People intent on murder do not typically broadcast that intent before carrying out the crime. However, what is in a person’s mind can sometimes be inferred from their actions. In this case, Curtis and Corey Murray were walking in a determined but calm manner along the east side of the building, jumping a low fence, and heading towards the front entrance area. Curtis was in front, and Corey was following a few feet behind. At that time, Trevor Seraphine was heading across the road from 10 Willowridge and going up the walkway approaching the entrance to 44 Willowridge. The video surveillance evidence shows that as soon as Curtis Murray rounded the corner such that Trevor Seraphine was in view, he broke into a run and started shooting at him. There was no hesitation by Curtis before he started running and firing, and no consultation between him and Corey before he undertook this action. I take from this that the action was planned.
[53] Corey Murray’s reaction is equally telling. He was a few feet behind Curtis and he started running after his brother immediately when Curtis started running. Again, there was no hesitation. By the time they reached the front door, a short distance away, the two brothers were right next to each other. Corey opened the door while Curtis continued to fire at a cowering Trevor Seraphine. Although shot a number of times, Trevor Seraphine was not fatally wounded and was still on his feet. Corey Murray then finished him off by stabbing him twice, once in the upper back and once in the front chest, piercing his heart. Again, he did so without any hesitation.
[54] From the fluidity of the movements of both brothers, their lack of hesitation at any point, and the fact that they did not consult each other at the scene about what was happening or what either of them should do, I conclude that their actions in killing Trevor Seraphine were part of a plan, previously conceived, to kill somebody. Given the preparations involved and the length of time between when those plans were hatched and when they were put into effect, it is clear to me that this killing was the consequence of a thought-out plan rather than an impulsive act. I am satisfied beyond a reasonable doubt that this killing was both planned and deliberate.
[55] Typically, a conclusion that the killing was both planned and deliberate would result in a conviction for first degree murder. I raised this issue with counsel during the course of submissions as to the content of the jury charge. Crown counsel’s theory of the case was that the Murray brothers planned and deliberated to kill the first person they came across associated with 44 Willowridge. The first person they saw was Trevor Seraphine, and they killed him immediately upon seeing him. The Crown’s position was that this scenario would constitute first degree murder. I agree.
[56] However, the Crown also took the position that if the Murray brothers planned to kill someone connected to the Champagnie group, the killing of Trevor Seraphine would only be second degree murder, as there is no evidence that he was part of that group, nor was there any evidence of a specific member of that group for whom Trevor Seraphine might have been mistaken. I was not prepared to leave first degree murder with the jury over the objections of all counsel, not only of defence counsel, but also the Crown. Accordingly, I instructed the jury as follows (at pp. 133-135):
[14] As a question of law, planning and deliberation to kill any one of a class or category of persons, followed by killing a person in that category, would constitute first degree murder. If you find that Curtis and Corey Murray formulated the plan suggested by the Crown and that they then killed Trevor Seraphine in carrying out that plan, this would be first degree murder. In these circumstances, the fact that Trevor Seraphine had very little actual connection to 44 Willowridge does not matter. He was attacked as he approached the building and while in the lobby attempting to enter. Even if the Murray brothers were mistaken as to his being a tenant or having a more substantial connection to the building, his connection is sufficient to have made him the target of their planned and deliberate murder.
[15] However, motive is not an essential element of the offence of murder, nor do you have to accept the motive suggested by the Crown, nor the Crown’s theory of the nature of the planning and deliberation leading up to the murder. It is open to you to come to other conclusions, provided they are supported by the evidence.
[16] You may consider, for example, that if there was planning and deliberation by Curtis and Corey Murray to take a life in retaliation, that plan could have been to kill someone who was part of the group of men involved in this ongoing harassment and threatening behaviour. To constitute first degree murder, there must be planning and deliberation to kill a person or one of a group of persons, and then killing somebody within the group of persons who are the planned targets. To put it another way, the person actually killed must be the subject of the planning and deliberation in order to constitute first degree murder. In this case, if the planned targets are any known associates of Raushan Champagnie, or any one of the men involved, for example, in the Hasty Market incident, the killing of Trevor Seraphine does not fall within the plan. That is because there is no evidence that Trevor Seraphine fell within that targeted group. Mistaken identity cannot be used here as there is no person that can be identified as the individual the killers thought Trevor Seraphine to be, and no evidence to suggest he resembled any of the members of the group, except in the most superficial or vague way. If a person sets out with a specific intention to kill person A, but for whatever reason impulsively changes that plan and kills Person B, that would be second degree murder, not first degree murder. The level of intent required for first degree murder would not have been established.
[17] Thus: (a) if you are satisfied beyond a reasonable doubt that there was planning and deliberation to kill a person connected to 44 Willowridge Road, and Trevor Seraphine was killed as part of that plan, that would be first degree murder; (b) if you are satisfied beyond a reasonable doubt that there was planning and deliberation to kill one of the men involved in the various hostile actions against Curtis Murray, and Trevor Seraphine was then killed, that would be second degree murder; (c) if you find that killing Trevor Seraphine was an impulsive act, or if you have a reasonable doubt as to the existence of planning or deliberation, that would be second degree murder.
[Emphasis added.]
[57] As I have already stated, I find that the Murray brothers planned and deliberated to take a life, headed for 44 Willowridge with the intention of carrying out their plan, and then killed Trevor Seraphine. The real question here is who was the target of that planned killing. It could not have been Trevor Seraphine as there was no evidence the brothers knew him, much less that he would be at 44 Willowridge. The two possible targets are: (1) any person associated with 44 Willowridge (as contended by the Crown); or (2) any person associated with the Champagnie group. In either case, Trevor Seraphine was not actually a member of the targeted group.
[58] The seminal case on transferred intent in a murder trial is the Supreme Court of Canada decision in R. v. Droste, 1984 SCC 68. [6] In that case, the accused had planned and deliberated over a period of time to kill his wife. He intended to set fire to his car with his wife trapped inside it. He did some preparation by dousing the backseat of the car with gasoline. While driving in the car with his wife and two children, he started a fire and was attempting to render his wife unconscious by hitting her in the head with a screwdriver. Things did not go according to plan. His wife got out of the car and pulled him out of the car. Tragically, both parents were unable to get the two children out of the backseat, and they both died. Mr. Droste was convicted of first degree murder for killing his two children, on the theory that he planned and deliberated to kill his wife and, in the course of executing that plan, killed the two children, even though killing the children had not been part of his plan. The Supreme Court of Canada upheld those convictions, stating as follows:
It is clear, then, that first degree murder and second degree murder are not different offences. The substantive offence is murder. The characterization of murder as being in the first degree or in the second degree is for sentencing purposes only. There is no question of transferring the intent to cause a s. 212(b) offence to the actus reus of first degree murder, nor is it a case of transferring the intent to commit first degree murder upon victim A to the actus reus of committing murder against victim B. I repeat, the substantive offence involved is murder under s. 212(b). The mens rea for that offence is intending the death or grievous bodily harm likely to cause death, to person A. The actus reus for this offence is causing the death of person B. Once these elements have been established, an accused is guilty of murder. Section 214(2) specifies one of several situations in which murder is murder in the first degree, namely, where “it” is planned and deliberate. The “it” refers to murder, committed in any of the relevant ways specified by the Code, including s. 212(b). This means that the element of planning and deliberation must be related to the specific mens rea of the applicable section, which in the present case is, as I have just mentioned, intending to cause death to person A. There may be some mental states specified in ss. 212 or 213 which are incompatible with planning and deliberation, but this mens rea is not one of them. [7]
[59] The Supreme Court concluded by stating:
In the result, whether one approaches the question on an analysis of the relationship of s. 214(2) to the substantive offence in s. 212(b), or on the basis of the underlying policy rationale of s. 214(2), or, even if it were relevant, on the basis of transferred intent, one arrives at precisely the same conclusion: planning and deliberation with relation to the killing of a specific person makes the offence first degree murder when in the course of carrying out the plan the accused in fact kills someone else. [8]
[60] In R. v. Ching, 2019 ONCA 619, [9] the Ontario Court of Appeal referred to Droste but distinguished it in the circumstances of that case. Mr. Ching had a history of mental health problems and was in the midst of a turbulent breakdown of his marriage. His wife sought refuge in the home of her uncle. Mr. Ching headed to that home, intent on killing his wife. However, the uncle would not permit Mr. Ching to see his wife, whereupon Mr. Ching attacked the uncle with the knife and hatchet he had brought for the purpose of killing his wife. The uncle subsequently died of these injuries. The trial judge instructed the jury, in accordance with the concluding paragraph in Droste cited above, that if they found Mr. Ching had planned and deliberated to kill his wife and in the course of executing that plan killed her uncle, that would be first degree murder of the uncle. The jury convicted Mr. Ching of first degree murder. On appeal, the Court of Appeal substituted a verdict of guilty of second degree murder. The Court of Appeal reasoned that the concluding paragraph of the decision in Droste must be read in context and what the Court was really saying was that “when in the course of caring out the plan, he caused the death of the victim by accident or mistake.” [10] Mr. Droste planned and deliberated to kill his wife and in the course of carrying out that plan accidentally killed the children. Here, Mr. Ching had not started to execute his plan to kill his wife. He was unable to get to her. In this situation, he attacked the uncle. This was murder, but had not been thought out in advance, and he was therefore guilty only of second degree murder.
[61] In the course of its reasoning in Ching, the Court of Appeal referred to an earlier Court of Appeal decision in R. v. Kluke (1987), 22 O.A.C. 107 (C.A.). [11] That case involved a planned and deliberate murder involving a member of a class or group of persons, and is therefore directly relevant to the case before me. The accused in Kluke planned in a deliberate way to kill any homosexual he found in a park. The Court of Appeal reasoned that the “planned victims were…a class of persons” and that “[t]he murderer need not therefore know the specific victim, only that the victim was in the class he set out to kill.” [12]
[62] In my opinion, it follows from the combined reasoning in Droste, Ching, and Kluke, that where there is planning and deliberation to kill a member of a particular class of persons, and in the course of executing that plan, the murderers mistakenly kill a person who was not a member of that class, but whom they believed to be a member, the murder is first degree murder. In the trial before me, there was general consensus from all counsel that this was a correct proposition of law. Hence, my instruction to the jury as referred to above, which I reproduce here again for the sake of convenience:
As a question of law, planning and deliberation to kill any one of a class or category of persons, followed by killing a person in that category, would constitute first degree murder. If you find that Curtis and Corey Murray formulated the plan suggested by the Crown and that they then killed Trevor Seraphine in carrying out that plan, this would be first degree murder. In these circumstances, the fact that Trevor Seraphine had very little actual connection to 44 Willowridge does not matter. He was attacked as he approached the building and while in the lobby attempting to enter. Even if the Murray brothers were mistaken as to his being a tenant or having a more substantial connection to the building, his connection is sufficient to have made him the target of their planned and deliberate murder.
[Emphasis added.]
[63] Clearly the jury rejected this scenario of an intent to kill any person associated with 44 Willowridge, as indeed would I. During the course of the pre-charge conference I raised my concerns about the logic of that scenario. Having made a plan to kill the first person they saw connected to the building, would the Murray brothers have attacked and killed a mother with a newborn baby in her arms? A young child? Somebody in their eighties or nineties? Killing a person such as one of these, even though a resident of 44 Willowridge, would not seem to me to have been part of a group the Murray brothers wanted to kill.
[64] Based on the evidence at trial, I find that the only logical inference from the evidence is that the Murray brothers set out to exact revenge against the Champagnie group by killing one of their associates. It is also my opinion that they killed Trevor Seraphine because they mistakenly believed him to be one of that group. Samelia Wiltshire testified that the group that attacked them at the Hasty Market included a number of youths who looked to be of Somalian origin. Trevor Seraphine was 17 years old. He was Somalian. He was headed for the entrance of 44 Willowridge at 2:00 a.m., the location of the Block Friday sale. It was dark and he was wearing a hooded winter jacket. He was attacked within seconds of Curtis Murray seeing him. I have no doubt whatsoever that Curtis and Corey Murray believed that Trevor Seraphine was an associate of the Champagnie group and that is why they killed him.
[65] The awkward position this puts me in is that on my own view of the law this would constitute first degree murder. However, acquiescing to the views of all counsel, that is not a possibility I left to the jury. If any member of the jury had come to the same conclusion on the facts as I have done, he or she would have rendered a verdict of second degree murder. I was not prepared to put the accused to the jeopardy of a conviction for first degree murder where this was not sought by the Crown.
[66] Thus, for purposes of sentencing, I will treat this case as one in which the facts are as I have found them and where this does not constitute sufficient planning and deliberation constitute first degree murder. In other words, having headed to 44 Willowridge Road for the purposes of killing a member of the Champagnie group as planned, the Murray brothers instead killed the first random person they saw. This is second degree murder, in the same manner as was contemplated by the Court of Appeal in Ching. However, in terms of moral blameworthiness it is very close to first degree murder, and not a sudden, impulsive decision to take a life.
[67] I have considered the cases referred to by the defence (R. v. Bobyk, 1981 ABCA 169 [13] and R. v. Rueger, 1984 ONCA 3531 [14]) and find them to be inapplicable on their facts. The Alberta Court of Appeal set aside the trial judge’s verdict of first degree murder in Bobyk on the basis that there was no reliable evidence to support his conclusion of planning and deliberation. The deceased woman had voluntarily entered the accused’s car. They drove into the country and the car stopped beside a field. The deceased and the accused entered the field, where the deceased was killed with a single shot from a handgun carried by the accused. The Court of Appeal held that there was no basis for the trial judge to conclude that the accused formed and deliberated on a plan to kill the deceased at some point during the drive to the countryside, as opposed to impulsively while they were in the field. This case bears no resemblance to the one before me. The accused in this case deliberated and planned over the course of 45 minutes, decided to kill a member of a group, and then killed Trevor Seraphine. I do not find this case to be of assistance in determining the nature of the planning and deliberation.
[68] Likewise, in Rueger, an Ontario Court of Appeal decision which referred to and applied Bobyk, the Court of Appeal found the jury verdict of first degree murder to be unreasonable and substituted a verdict of second degree murder. The accused was intoxicated. The deceased was a young woman completely unknown to the accused. She was driving towards her parents’ home at about 7:00 p.m. on Christmas Eve. He followed her car for some 25 miles on a country highway, repeatedly ramming it and finally forcing it off the road and into a ditch. The young woman fled from her car, pursued into a field by the accused. He stuck a buck knife into her neck, causing her death. Neither her clothing nor her jewellery were disturbed. In these circumstances, the Court of Appeal found no evidence of planning or deliberation to murder at any point along this process. This is to be contrasted with the case before me where the Murray brothers had a motive to murder, spent a period of time hatching their plan, disguised themselves, and headed out with weapons intent upon seeking revenge against the Champagnie group.
Factual Analysis: Degree of Individual Responsibility of the Two Accused
[69] Based on the evidence at trial, I find both Curtis and Corey Murray planned and deliberated to commit murder and the death of Trevor Seraphine resulted. They acted in concert both in planning and executing the murder. They are both fully responsible. However, it was Curtis Murray who had the dispute against the Champagnie group. He was the one targeted at the Hasty Market, and by the theft and destruction of his property. When members of the Champagnie group spoke to Samelia Wiltshire, it was Curtis Murray they were trying to find. Likewise, it was Curtis who went into the parking lot and vandalized the red Mazda belonging to one of the Champagnie group.
[70] It is also obvious from watching the various video clips that Curtis was the one in charge. He was almost invariably the one in the lead. He started the pursuit of Trevor Seraphine, firing at him six times. Corey Murray was the one who administered the fatal wound, but this was after he had been shot. Although Corey was a ready and willing partner for his brother, I see him as more of a follower and Curtis as more of an instigator.
Conclusions
[71] To summarize, I find that the Murray brothers planned and deliberated to retaliate against the Champagnie group by killing one of its members. Instead, they killed Trevor Seraphine. This is an aggravating factor on sentencing. I am satisfied of this factor beyond a reasonable doubt. I accept that if the doctrine of mistaken identity does not elevate this case to first degree murder, there is an element of impulsivity involved in the decision to kill Trevor Seraphine rather than a member of the Champagnie group. Therefore, I must not treat this situation as equivalent to a conviction for first degree murder. That said, the range of conduct that constitutes second degree murder is vast, and on that continuum, this case falls very close to first degree murder.
[72] Although fully responsible for Trevor Seraphine’s death and an active partner with his brother, I consider Corey Murray to have been more of a follower, with his brother Curtis Murray being the main instigator and leader. This is a mitigating factor which somewhat reduces the moral culpability of Corey Murray. I need only be satisfied of this fact on a balance of probabilities. I would not have reached this conclusion if I was required to be satisfied beyond a reasonable doubt.
MOLLOY J. Released: March 30, 2020
Footnotes
[1] Criminal Code, s. 724(2)(a) [2] R. v. Ferguson, 2008 SCC 6, 2008 SCC 86, [2008] 1 S.C.R. 96 at paras. 18 and 21 [3] R. v. Roncaioli, 2011 ONCA 378 [4] R. v. Ferguson, supra Note 2 at para. 21 [5] R. v. Gardiner, 1982 SCC 30, [1982] 2 S.C.R. 368 [6] R. v. Droste, 1984 SCC 68, [1984] 1 S.C.R. 208, 6 D.L.R. (4th) 607, 10 C.C.C. (3d) 404. [7] Ibid, at pp. 221-222 [8] Ibid, p. 223. [9] R. v. Ching, 2019 ONCA 619. [10] Ibid, paras 26-27. [11] R. v. Kluke (1987), 22 O.A.C. 107 (C.A.). [12] R. v. Ching, supra Note 9. at para. 37. [13] R. v. Bobyk, 1981 ABCA 169, [1981] A.J. No. 829, 34 A.R. 309 (Alta. C.A.). [14] R. v. Rueger, 1984 ONCA 3531, [1984] O.J. No. 186, 17 C.C.C. (3d) 347 (Ont. C.A.).