Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20230623 DOCKET: C68641

Lauwers, Pardu and Benotto JJ.A.

BETWEEN

His Majesty the King Respondent

and

William Cummins Appellant

Counsel: Dirk Derstine, for the appellant Michael Fawcett, for the respondent

Heard: June 16, 2023

On appeal from the conviction entered on November 8, 2019, by Justice Robert A. Clark of the Superior Court of Justice.

Reasons for Decision

[1] The appellant was convicted of first-degree murder in connection with the beating death of Zaher Noureddine and the unlawful confinement of Mitchell Conery. He seeks to have the conviction overturned because of the trial judge’s mid-trial ruling concerning his cross-examination. If that ground of appeal is not successful, he seeks to have his first-degree murder conviction reduced to second degree. The first-degree murder conviction arose from the application of the constructive murder provisions in s. 231(5) of the Criminal Code.

The death of Mr. Noureddine

[2] In late December 2015, Messrs. Noureddine and Conery left a bar in midtown Toronto to walk to their nearby car. They encountered the appellant and his two friends Matthew Moreira and Patrick Smith. Out of nowhere, the appellant punched Mr. Conery in the head and Mr. Smith stomped on his head. The appellant then began beating Mr. Noureddine. One of the others joined in the pummeling of Mr. Noureddine. Mr. Noureddine was put in a headlock by one of the three. He fell to the ground, without fighting back, while the vicious attack continued. The appellant kicked Mr. Noureddine repeatedly in the head, “like a soccer ball”. Meanwhile, Mr. Moreira stood over Mr. Conery with his knee on his back and pressed on his leg. He was confined on the ground and unable to get up or help his friend.

[3] When the appellant and his friends left, Mr. Noureddine tried unsuccessfully to stand. He fell back down, suffered a seizure, and died from head and neck blunt force injury and resulting complications. The security video from the appellant’s apartment building shows that he and the other two reenacted the attack in the elevator shortly thereafter.

The mid-trial ruling relating to the appellant’s cross-examination

[4] The appellant, Mr. Moreira and Mr. Smith were initially tried jointly before Forestell J. The appellant testified, admitted his involvement in the attack and claimed he was intoxicated. During cross-examination the Crown put video-clips to him that had not been entered as exhibits during the Crown’s case. Forestell J. determined that the Crown had attempted to split its case and declared a mistrial.

[5] The second trial commenced within weeks. However, the appellant fired his counsel, and his case was severed from the co-accused.

[6] The appellant’s third trial proceeded. After the Crown’s case was completed, the appellant asked the trial judge to prohibit the Crown from referring to the cross-examination in the first trial. The trial judge ruled that the Crown could make use of the appellant’s testimony and dismissed the application. The trial judge’s ruling made it clear that he did not agree with Forestell J.’s decision to declare a mistrial and referred to s. 653.1 of the Criminal Code, which provides:

In the case of a mistrial, unless the court is satisfied that it would not be in the interests of justice, rulings relating to the disclosure or admissibility of evidence or the Canadian Charter of Rights and Freedoms that were made during the trial are binding on the parties in any new trial if the rulings are made — or could have been made — before the stage at which the evidence on the merits is presented.

[7] The appellant submits that the trial judge erred because the evidence in question only came about as the result of the Crown’s misconduct. He argues that the ruling by Forestell J. was binding on the trial judge by virtue of “judicial comity” and that s. 653.1 was not engaged. He submits that this error so affected the trial that the appeal should be allowed, and a new trial ordered.

[8] We do not accept these submissions.

[9] Judicial comity might suggest that the trial judge should not have indicated disagreement with the mistrial ruling. However, the decision about use of the transcript was a discretionary decision to be made by the trial judge. The trial judge explained his reasons at para. 22 of his ruling:

In deciding whether or not to testify, Mr. Cummins was in a position to know the case he would have to meet, including the potential of being confronted with what he said at his first trial, if what he said in this trial were to differ. If he were to have testified in a manner inconsistent with something he earlier said, it would not have been unfair, in my view, to permit the Crown to confront the applicant with his earlier testimony. I say that bearing in mind that the Supreme Court of Canada has made plain that “[a]ccused persons who testify at their first trial and then volunteer inconsistent testimony at the re-trial on the same charge are in no need of protection ‘from being indirectly compelled to incriminate themselves’ in any relevant sense of the word and s. 13 protection should not be available to them.” [Citations omitted]

[10] The evidence did not come about because of the Crown’s misconduct. The misconduct identified by Forestell J. was case splitting. Although the video clips had been disclosed by the Crown in the usual way, they had not formed part of the Crown’s case. The trial judge determined that the proper remedy was a mistrial. We agree that s. 653.1 is not engaged. The ruling of Forestell J. did not concern disclosure, admissibility, or a Charter ruling. The appropriate use of the transcript was not at issue. But, even if s. 653.1 did apply, the opening words of the section provide “unless the court is satisfied that it would not be in the interests of justice.”

[11] We see no reason to interfere with the trial judge’s discretionary decision to allow the cross-examination.

Constructive murder

[12] It was acknowledged at trial that the appellant caused the death of Mr. Noureddine. The theory of the Crown was that the appellant caused Mr. Noureddine’s death and was also a party to the unlawful confinement of Conery as part of the same transaction, which elevates the murder to first-degree pursuant to s. 231(5) I of the Criminal Code.

[13] In R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 35, the Supreme Court held that the constructive murder provision should be interpreted as follows:

The jurisprudence therefore establishes that second degree murder will be elevated to first degree murder where the murder and the predicate offence (in this case unlawful confinement) are linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction. The temporal-causal connection is established where the unlawful confinement creates a “continuing illegal domination of the victim” that provides the accused with a position of power which he or she chooses to exploit to murder the victim. If this is established the fact that along the way other offences are committed is no bar to the application of s. 231(5). [Citations omitted]

[14] The elements of s. 231(5)I were set out by this court in R. v. McGregor, 2019 ONCA 307, 145 O.R. (3d) 641, at para. 60:

The essential elements of constructive first degree murder under s. 231(5) are five:

(i) that the accused committed or attempted to commit a listed underlying crime; (ii) that the accused murdered the victim; (iii) that the accused participated in the murder in such a manner that he was a substantial cause of the victim’s death; (iv) that no intervening act by somebody else resulted in the accused no longer being substantially connected to the victim’s death; and (v) that the underlying crime and the murder were part of the same transaction.

[15] The Crown submitted that when the appellant murdered Mr. Noureddine, he was a party to the illegal act of confining Mr. Conery. Therefore, he was also committing or attempting to commit the offence of unlawful confinement. The unlawful confinement and the murder were part of the same transaction.

[16] The appellant raises three issues with respect to s. 231 (5).

[17] First, he submits that the situation lacked the heightened moral responsibility for the Crown to resort to s. 231(5) €. When there are multiple persons committing the unlawful confinement and murder, constructive murder is not appropriate.

[18] We do not accept this ground of appeal. There was evidence on which the jury could conclude that the appellant was acting in concert with the other two who confined Mr. Conery such that he could not assist Mr. Noureddine. Nor do we agree with the appellant that the fact that there was more than one perpetrator suggests that the moral culpability for constructive murder has not been met. We conclude that the moral culpability of a group attack may be higher.

[19] Second, the appellant submits that constructive murder should not have been left with the jury at all because there was no evidence that the appellant participated in the unlawful confinement.

[20] We do not agree.

[21] The trial judge instructed the jury as follows:

Although [defence counsel] disputes that Mr. Conery was sucker-punched in the manner Mr. Conery described, there is no dispute between the parties that Mr. Cummins punched Mr. Conery, knocking him to the ground. After that, it would appear on the evidence that Mr. Cummins did not himself do any physical act to directly confine or restrain Mr. Conery. Therefore, to conclude that Mr. Cummins unlawfully confined Mr. Conery, or attempted to do so, you must be satisfied (i) that Mr. Cummins knew that what he was doing by way of assaulting Mr. Noureddine was creating a state of fear in Mr. Conery (i.e. that he, Mr. Conery, could not move as he pleased lest he provoke further violence against himself or Mr. Noureddine); and (ii) that Mr. Cummins intended to provoke such a state of fear in Mr. Conery (or intended to aid and/or abet someone else to do so). If you were satisfied beyond a reasonable doubt of both of those things, then Mr. Cummins would be a party to the offence of unlawful confinement.

[22] There was evidence of the appellant’s participation in the unlawful confinement.

[23] The appellant’s third submission relates to the judge’s charge to the jury. The appellant submits that the “same transaction” test is only met by demonstrating that the two offences are casually and temporally connected.

[24] When instructing on the requirements for the “single transaction”, the trial judge followed the model charge set out by Watt J.A: see David Watt, Watt’s Manual of Criminal Jury Instructions, 2023 (Toronto: Thomson Reuters, 2023), at p. 760. However, when instructing the jury on whether the appellant committed or attempted to commit unlawful confinement, the trial judge said that the unlawful confinement need not be causally connected to the murder. At para. 226 of the jury charge, the trial judge said:

What the Crown must prove in this case is that Mr. Cummins committed the murder as part of the same transaction in which, either as a principal or secondary party, he committed an unlawful confinement. But the unlawful confinement, in this case of Mr. Conery, need not have any causal connection to the murder of Mr. Noureddine. [Emphasis added]

[25] It is this last sentence that may have misled the jury. While we acknowledge that the “causal connection” required for the two offences to be part of a “single transaction” is different from factual or legal causation, these intricacies would not be clear – without further explanation – to the jury: see R. v. Sundman, 2022 SCC 31, 471 D.L.R. (4th) 191, at paras. 33-34, and R. v. Singh, 2022 ONCA 584, at paras. 154-156. The jurisprudence makes it clear that a finding that the killing and the unlawful confinement were part of the same transaction is synonymous with a finding that “there was a causal and temporal connection” between them. (Pritchard.)

[26] We therefore allow the appeal in part, substitute a conviction for second degree murder, as the parties have agreed, in the event that this ground of appeal was successful and remit the matter back to the trial court for a determination of the appropriate period of parole eligibility.

“P. Lauwers J.A.”

“G. Pardu J.A.”

“M.L Benotto J.A.”