Ruling on Committal at a Preliminary Hearing

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Somlack Litthemane and John Pham

Before: Justice Peter Harris

Ruling Released: October 9, 2015

Counsel:

• Ms. B. Richards, Ms. K. Beale for the Crown
• Mr. J. Hershberg, Ms. K. Lau-Po-Hung for Somlack Litthemane
• Mr. C. Barry, Ms. S. Izakelian for John Pham

(NOTWITHSTANDING THE ORDER MADE HEREIN RESTRICTING PUBLICATION PURSUANT TO SECTION 539(1) OF THE CRIMINAL CODE, THIS RULING MAY BE REPRODUCED FOR JUDICIAL PROCEEDINGS AND/OR PUBLISHED BY ANY LEGAL/JUDICIAL REPORTING SERVICE FOR EDUCATIONAL PURPOSES)

Harris, J.:

Background

[1] This is a preliminary inquiry in which the Crown seeks committal on the following charges:

Somlack Litthemane and John Pham are charged that: (1) on the 30th day of September, 2013 they did commit second degree murder to the person of Danny La contrary to section 235(1) of the Criminal Code; and (2) on the 30th day of September, 2013, they did attempt to murder Ngoc Duy Nguyen by hitting him with a baseball bat contrary to s. 239(1) of the Criminal Code; and (3) on the 30th day of September, 2013, they did, in committing an assault on Kirk Smellie, wound, maim, disfigure or endanger the life of the said Kirk Smellie, and thereby commit an aggravated assault, contrary to s. 268(2) of the Criminal Code.

[2] Additionally, at the conclusion of the hearing, Crown counsel advised that they were seeking committal of the two defendants on the charge of first degree murder pursuant to s. 548(a) as an indictable offence in respect to the same transaction.

The Evidence

[3] A brief sketch of the evidence will suffice at this point. The theory of the Crown is that the defendants were associated with a group of young men in their twenties who were involved in a fracas outside the Union nightclub in Toronto in the early morning hours of September 30, 2013. Approximately a half hour later (at about 3:30 am) this group of six males congregated in front of Sang's Restaurant on Spadina Avenue. At or about the same time, there was another group of about 3 young men in the vicinity, also in their twenties, Ngoc Duy Nguyen, Kirk Smellie and Anthony Sumner and this smaller group was sitting in or standing just outside Nguyen's Range Rover which was parked about three car lengths north of Sang's on the same side of Spadina Ave., (next to the east sidewalk) and some members of this group had been involved in the skirmish at the nightclub as well. The two groups were then about three car lengths apart on or near the east sidewalk of Spadina Avenue.

[4] By all accounts, the two groups were on different sides of the conflict at the nightclub and were still agitated about it. Based on evidence from the Sang's security video, and some direct identification evidence, the larger group in front of Sang's was composed of the defendants, John Pham, Somlack Litthemane and about four others. Suddenly, this group began to move quickly north from Sang's in the direction of the other group. Almost immediately, people in front of the restaurant began staring transfixed at some action taking place on the sidewalk to the north of the restaurant. There is little doubt that a skirmish was in progress in which Ngoc Duy Nguyen, standing alone on the sidewalk, was greatly outnumbered. His friend, Danny La, came out of the restaurant and observed that Nguyen was taking a beating and he intervened.

[5] Meanwhile Kirk Smellie, produced a baseball bat from the back of the Range Rover and attempted to use it against Nguyen's assailants but he was quickly stripped of the bat and he was struck in the head with it resulting in serious head injuries. Anthony Sumner tried to assist but he was knocked down after moving some distance away and he subsequently fled north on Spadina Ave. The baseball bat, now in the hands of the attacking group, was then deployed against Danny La by hitting him on the head with it so forcibly he was knocked off his feet and fell in such a way that he struck his head on a gas pipe at the front of the store a few feet away. The attack on Nguyen and La continued ― involving the bat and the use of feet (head kicks described by one witness as "stomping") even though they were both unconscious at this point. Shortly thereafter, the assailants left in a silver car just before the police arrived on scene. Danny La suffered such severe blunt force trauma to the right side of his head that he subsequently succumbed to his injuries and died on October 20, 2015. Ngoc Duy Nguyen sustained severe and irreversible brain injuries as a result of this beating.

The Issues

[6] There are three issues to be decided that correspond to the three charges before the court:

(1) Is there an evidentiary basis for the committal of either or both defendants on first degree murder through the combined effect of s. 21(b),(c) and/ or s. 21(2) and s. 231(5)(e) (forcible confinement) of the Criminal Code in respect to the fatal injuries sustained by Danny La?

(2) Is there an evidentiary basis for the committal of either or both defendants on the charge of attempt murder in respect to the injuries sustained by Ngoc Duy Nguyen?

(3) Is there an evidentiary basis for the committal of either or both defendants on the charge of aggravated assault in respect to the injuries sustained by Kirk Smellie?

The Court's Function at a Preliminary Inquiry

[7] The evidence heard at this preliminary inquiry will be considered factual in view of the impermissibility of any weighing of evidence adduced at this hearing except to the extent permitted where the evidence is circumstantial: R. v. Arcuri, 2001 SCC 54, 157 C.C.C. (3d) 21.

[8] Most of the evidence adduced at this hearing is circumstantial as a result of a stunning inability on the part of witnesses to recall any more than vague impressions and blurred glimpses of reality. As was stated in Arcuri, supra, at para. 23:

The judge's task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence -- that is, those elements as to which the Crown has not advanced direct evidence -- may reasonably be inferred from the circumstantial evidence. Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established -- that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt's Manual of Criminal Evidence, supra, at par. 9.01 (circumstantial evidence is "any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact. It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue"); McCormick on Evidence, supra, at pp. 641-42 ("[c]ircumstantial evidence ... may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion"). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, could reasonably support an inference of guilt.

[9] The more problematic issue at a preliminary inquiry is: Where there are reasonably competing inferences to be drawn from a body of evidence, how does a preliminary inquiry judge navigate these inconsistencies? The answer is found in R. v. Sazant, 2004 SCC 77, 208 C.C.C. (3d) 205 where the Court ruled that as a preliminary hearing jurist, I must make the inferences most favourable to the Crown, even though a jury might decide otherwise.

[10] A second equally thorny issue involves the question of whether a piece of evidence, duly weighed to the extent permitted by Arcuri, supra, is reasonably capable of supporting the inferences that the Crown asks the court to draw. In other words how does one determine the reasonableness of the inferences to be drawn from circumstantial evidence? It is critical to the preliminary process that the court does not attempt to reconcile contradictions or competing inferences. Equally, it is important to avoid the drawing of inferences from equivocal and ambiguous evidence which can only lead the court down a blind alley of speculation and conjecture. The proper approach was summarized in R. v. Coke, [1996] O.J. No. 808 (Gen. Div.) at paras. 10, 11:

10 Not infrequently, it is submitted by an applicant seeking to quash a committal order that other explanations or inferences, inconsistent with guilt, but equally consistent with innocence, can be rallied to counter the theory submitted by the Crown. This approach risks usurpation of the jury function. Such submissions are, at times, divorced from the context of the whole of the evidentiary record. The extent of weighing evidence for the justice is directed to the presence of any evidence not the reconciliation of contradictions or competing inferences.

11 It is not a legitimate exercise of judicial discretion for a preliminary inquiry justice to ignore the incriminatory probative value of an item or chain of related items of evidence simply because an equally permissible inference accords with an innocent interpretation. Certainly, where the evidence in question is equivocal, in the sense of ambiguous and uncertain and conjectural in nature, the probative force is of such diminished significance as to be valueless.

[11] As there are no bright lines in the jurisprudence to follow to as to what is a reasonable inference of guilt from circumstantial evidence (as opposed to a speculative one), a jurist must cast about for assistance. In R. v. Munoz, 86 O.R. (3d) 134 Ducharme J. provided some helpful guidance:

[23] While the jurisprudence is replete with references to the drawing of "reasonable inferences", there is comparatively little discussion about the process involved in drawing inferences from accepted facts. It must be emphasized that this does not involve deductive reasoning which, assuming the premises are accepted, necessarily results in a valid conclusion. This is because the conclusion is inherent in the relationship between the premises. Rather, the process of inference drawing involves inductive reasoning which derives conclusions based on the uniformity of prior human experience. The conclusion is not inherent in the offered evidence, or premises, but flows from an interpretation of that evidence derived from experience. Consequently, an inductive conclusion necessarily lacks the same degree of inescapable validity as a deductive conclusion. Therefore, if the premises, or the primary facts, are accepted, the inductive conclusion follows with some degree of probability, but not of necessity. Also, unlike deductive reasoning, inductive reasoning is ampliative as it gives more information than what was contained in the premises themselves.

[12] The Court in Munoz went on to quote with approval the formulation in Tose v. First Pennsylvania Bank, 648 F.2d 879 (3rd Cir., 1981) as being the correct method of distinguishing between a probative inference and a speculative one and adopted the reasonable and logical probability test:

[30] It is difficult, if not impossible, to define with any precision a bright line distinction between the drawing of reasonable inferences and mere speculation. However, in this regard I would adopt the language of Aldisert J. in Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879 (3rd Cir., 1981), cert. denied 454 U.S. 893, 102 S. Ct. 390 (1981), at p. 895:

The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated, "the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 319 U.S. 372, 395, 63 S. Ct. 1077, 1089, 87 L. Ed. 1458 (1943).

[13] Since Munoz was a form of appellate review (an application in the nature of certiorari) of an order to stand trial made in the Ontario Court, the decision carries some precedential authority. Consequently, if the inference proposed to be drawn from evidence amounts to a reasonably and logically probable conclusion, then it will be adopted in this analysis. "The requirement of reasonable or logical probability is meant to underscore the notion that the drawing of inferences is not a process of subjective imagination, but rather is one of rational explication. Supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference": R. v. Munoz at para. 31.

The Relevant Provisions of the Criminal Code

[14] The relevant provisions of the Criminal Code in this case include section 222 (which defines culpable homicide), Section 229 (which defines murder) and section 231 (which defines first degree murder). The other relevant provisions include the party provisions under section 21 and 22 of the Criminal Code.

Section 222(5) of the Criminal Code states:

[15] A person commits culpable homicide when he causes the death of a human being,

(a) By means of an unlawful act

(b) By criminal negligence

(c) By causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

(d) By wilfully frightening that human being, in the case of a child or sick person.

[16] If it has been established that the homicide is culpable homicide, the court must then consider whether there is some evidence of murder. According to section 229(a) of the Criminal Code:

Culpable homicide is murder a) where the person who causes the death of a human being,

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

[17] If it has been established that there is some evidence a murder has been committed, the court must consider section 231 of the Criminal Code to determine if the murder should be classified as first or second degree murder. At the conclusion of the evidence, the Crown advised they were seeking committal on first degree murder pursuant to section 231(5) of the Criminal Code. Section 231(5) of the Criminal Code states as follows:

Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections;

….. (e) section 279 (kidnapping and forcible confinement).

[18] Consequently, in order to commit either of the defendants to stand trial on a charge of first degree murder, I must find some evidence of the following:

(a) That either of the defendants unlawfully caused Danny La's death;

(b) That either of the defendants had the state of mind necessary for murder;

(c) That either of the defendants were committing the offence of forcible confinement during the murder.

[19] Danny La's fatal injuries were sustained in the context of being attacked by a number of individuals. On all the evidence before the court, it is unknown who delivered the fatal blow or blows. The court must therefore consider the party provisions of the criminal code. Section 21 states:

21(1) every one is a party to an offence who

(a) Actually commits it:

(b) Does or omits to do anything for the purpose of aiding any person to commit it; or

(c) Abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and anyone of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

Analysis

(a) Who were involved in the attack on Ngoc Duy Nguyen, Danny La and Kirk Smellie?

[20] An evidence overview might be described as follows: according to the identification evidence, there was a Pham/Litthemane (P/L) group and a Nguyen group in the area of Sang's restaurant, the Nguyen group being about three car lengths to the north of the restaurant, the P/L group slightly south of Sang's. That there was an animus between them was clear but aside from some type of conflict at the nightclub a short while before, the reasons for the entire dispute remain a mystery.

[21] The Nguyen group arrived at Sang's Restaurant first at about 3:22 a.m. based on the digital timeline on the restaurant's security video (ref. Exhibit 11). This was just a few blocks from the nightclub they all had attended. Mr. Nguyen entered Sang's with about six friends, including three other males. He then left at 3:28 a.m., stood talking with friends in front of the restaurant and using his cellphone. While Mr. Nguyen stood outside Sang's he appeared agitated and was unwilling to speak with his girlfriend Michelle Do when she approached. He seemed distracted by information he was receiving by cellphone. According to Michelle Do, his face was more 'pissed off' [when he was at Sang's compared to earlier that night] … he wouldn't tell me what was going on." Then at 3:30 Mr. Nguyen and two of the three males he was with when he arrived, Mr. Sumner and Mr. Smellie, walked northbound on Spadina." From all accounts, Mr. Nguyen stood outside his vehicle while Mr. Smellie and Mr. Sumner sat inside the Range Rover. "They were talking trying to figure out what happened at the club…who are they etc." ― according to Jannifer Phounesana. There was no doubt the Nguyen group was expecting trouble. They were calling for a friend "G" to join them.

[22] The P/L group was equally animated. They arrived at Sang's at 3:31 am and stood in a group on the sidewalk in front of the restaurant. Then, Mr. Litthemane entered Sang's looked around for about 6 seconds and came back outside waving his hands. John Pham was using his cellphone. The P/L group moved south a short distance and then at 3:32:17, John Pham and Somlack Litthemane proceeded northbound on the sidewalk in the direction of the Nguyen group followed by four others. Mr. Pham was wearing a beige short sleeve shirt and had a large tattoo on his right bicep and forearm (ref. Exhibit 7). Mr. Litthemane had long hair on top of his head slicked back into a ponytail, the sides of his head were cut short and he had a large tattoo on his right bicep (ref. Exhibit 7). In a screen capture from the security video outside Sang's (ref. Exhibit 7) Mr. Pham is seen leading the group northbound on Spadina Ave. Mr. Litthemane is close behind followed by four others. Shortly thereafter, a few passersby stand in front of Sang's staring transfixed at the violence taking place a few doors to the north. About 30 seconds later at 3:32:44, Danny La is seen leaving the restaurant and heading into the fray.

[23] According to the Sang's video, Jannifer Phounesana and Michelle Do were present to the north of Sang's where the attack occurred. Ms. Phounesana testified she went back to the restaurant to tell Elizabeth Do and Cam that "we had to go." That was at about 3:33 am. After the attacking group scattered, Ms. Phounesana said she ran back to the restaurant and said: "call an ambulance." That was about 3:34:04 am based on the timing of her last entry into Sang's. If her evidence is any guide, the attack took place between 3:32:20 and 3:34:04 am – a period of less than two minutes. She said the group "took off" in a silver car and a black car. There was clear evidence that the 6 members of the P/L group advanced on the Nguyen group moving with purpose but without weapons. It should be noted that Michelle and Elizabeth Do both testified the 'fight' took less than one minute and while watching the video, Michelle Do said the fight broke out at 3:32:50 when she saw her friend "Jan run in." If Ms. Phounesana was indeed calling for an ambulance at the restaurant at 3:34:04, the attack could well have taken a minute more or less.

[24] The next question is whether John Pham and Somlack Litthemane were both part of the brutal attack on Mr. Nguyen, Mr. La and Mr. Smellie on Sept 30, 2013. In fact, counsel for Mr. Litthemane conceded an attack on Mr. Nguyen but not on Mr. La or Mr. Smellie. Counsel for Mr. Pham take the position there is no evidence upon which Mr. Pham could be committed for trial on any of the charges.

(b) Evidence of Mr. Litthemane's involvement

[25] The Crown argued that there was direct evidence that Mr. Litthemane was involved in the attack. The Crown relied primarily on the testimony of Michelle Do, Elizabeth Do, Jannifer Phounesana and the circumstantial DNA and video/screen capture evidence to support this position. (Mr. Smellie and Mr. Sumner were problematic witnesses who for reasons known only to themselves, had limited recall of what transpired on Spadina Ave.)

Jannifer Phounesana

[26] Jennifer Phounesana described in her testimony how Mr. Nguyen and friends found themselves in a skirmish in the alley outside the club in which they were "getting beat up" until the police broke it up. Later she says she is at the restaurant when Mr. Nguyen ("Duy") went outside for a cigarette and she and Michelle Do joined him. Then they walked north to his car and he stood outside while his friends sat in the car and they discussed what happened at the club and "who were they?" (the persons who had roughed them up). Then she said a "bunch of guys" walked over "to where we were standing" and one said: "Why you fuck up my boy?" The group was Asian, male and in their mid-20s." "Then one ran around Duy to the back of him and pushed him and a fight broke out." "Everybody was just everywhere." She gave evidence that the next thing was that "Duy was on the floor and Michelle was covering him." Asked why, she said "he was knocked out."

[27] Then Ms. Phounesana said she tried to stop one of the two guys who had been kicking "Duy" in the head and he turned and punched her in the side of the face. She described him as an Asian with a "short ponytail" and his hair was short and slicked-back." She said she ran into the restaurant and came out and Danny La "was trying to help get Duy in the car." (Kirk Smellie had taken a bat from the Range Rover and tried to use it to protect Mr. Nguyen but it was stripped from him and used to strike him (Mr. Smellie) in the face. The bat was now in the possession of the attacking group. "Danny bent over Duy and someone hit him in the head with a baseball bat. Danny fell back and hit the gas meter. The guy kept hitting Danny and then turned and hit Duy with the bat." "Both were passed out and were getting hit with the bat." She stated that "Danny was unconscious as soon as he was hit. He was then hit a couple more times." She said the group of 10 males scattered and she went to call an ambulance. They left in a silver car and a black car. In cross-examination Ms. Phounesana testified that the person who punched her was a different person from the one who was using the bat. She saw only one person using the bat.

Michelle Do

[28] Michelle Do gave evidence that she went outside Sang's restaurant with "Jannifer" to have a cigarette and "Duy was talking to his friends." His face looked "more pissed off" at Sang's. "He wouldn't tell me what was going on." Duy walked to the car with Kirk and Biggie [Smellie and Sumner]." "Then four or five came from Sang's "rushing towards us" and "they were beating him [Duy] and kicking him on the floor." "Then Danny came to help him and he got beaten and kicked. They just kept kicking Danny and Duy. They were on the floor." She described the attacking group as "young Asian males, around [age] twenty five." "A few had white T-shirts on.." She testified that both "Danny and Duy were getting by the bat on their heads." "When they were getting hit they were unconscious, not moving." There was one bat but she saw two people using it, "switching it back and forth." She said she saw Danny get "hit in the head with the bat, then he landed on the pipe in the wall and they kept hitting him and his eyes rolled back." In cross-examination she said "there was more than five people hitting and kicking Danny on the floor." Asked if the guy with the bat had a white T-shirt, she said "I think so."

Elizabeth Do

[29] Elizabeth Do testified that Jannifer ran into Sang's restaurant saying "a fight had broken out and she wanted to leave." She went outside and described the 'fight': "there was Danny and Duy and about 6 – 8 guys, they were Asian, some had tattoos….and there was a guy with a ponytail." The bat was being passed around the group of 6 – 8 Asian males… "and they were hitting Duy and Danny." She stated "Duy and Danny were on the floor when they were getting hit with the bat. " Duy lost consciousness first and was bleeding from the head. Then they were attacking him after he lost consciousness." In cross-examination she agreed she told police that she saw a bunch of Asian guys come out of a silver car. She thought it was an SUV, a bigger car. She recalled seeing the one with the ponytail earlier that night at the club. She did not recall the ponytail guy with respect to the bat. She agreed she could not say who had the bat.

Kirk Smellie and Anthony Sumner

[30] Kirk Smellie and Anthony Sumner had very little to offer by way of evidence. They did confirm they were both sitting in the Range Rover just before the attack began, and Mr. Smellie was using the GPS in the vehicle to explain to "G" how to get to Sang's restaurant. Mr. Smellie testified that Mr. Sumner came out of the vehicle, asking Mr. Smellie for something in the trunk relating to a weapon. Mr. Smellie said he looked out and saw a group of 7 – 10 males surrounding Danny and Duy. "Danny and Duy were in the middle of the circle, back to back, fighting." Mr. Smellie testified he went to the trunk and grabbed the baseball bat to assist his friends. He tried to hit someone with it and the male grabbed the bat and hit him (Smellie) in the eye with it. Mr. Smellie testified his right leg was injured and his left eye sustained an injury that he was told could have cost him his sight in the right eye (but did not, fortunately). The medical record disclosed a minor fracture in the area of his eye.

Kimberly Sharp, Forensic Biologist, C.F.S.

[31] Ms. Sharp testified that after examining bodily substances and conducting an analysis she was able to establish that: (see Exhibits 13 – 17)

(a) Danny La was the likely contributor of DNA (the odds of it being from a different person being astronomical) from blood found on a floor mat on the floor in front of the rear seat in John Pham's 2003 Infinity, a silver coloured vehicle.

(b) Following a search of Mr. Litthemane's residence, shoes were found that tested positive for DNA from blood. On the top of the left shoe at the buckle, there was DNA from blood the likely source for which was Danny La to a very high mathematical probability. On the top, the right front side and the underside of the right shoe, there were three findings of DNA from blood, the likely source for which was Ngoc Duy Nguyen, to a very high mathematical probability.

[32] In concluding this section of the analysis, I am mindful that if there is some direct evidence that Mr. Litthemane was involved in any of the offences before the court, no matter how weak that evidence is or no matter how much it contradicts any of the other evidence, I cannot weigh the evidence and must commit the accused to stand trial on those offences supported by some direct evidence. The direct evidence of Mr. Litthemane's involvement is found in Jannifer Phounesana's evidence where she describes his assault on Ngoc Duy Nguyen.

[33] The circumstantial evidence that implicates Mr. Litthemane is the DNA blood evidence from both Ngoc Nguyen and Danny La on his shoes and the restaurant video (Exhibit 11) which depicts him arriving at Sang's at 3:31:31 with Pham and anther Asian male. Mr. Litthemane enters Sang's and about 6 seconds later comes back out and throws his hand in the air and has words with Pham who is on his cellphone. Then he throws both hands in the air as it readying for a fight. Pham continues on the phone as they move south and off camera. As if summoned by cellphone, two Asian males come out of Sang's and join four others on the street, two of whom are known to be Pham and Litthemane. Then at 3:32:25, with Pham leading, Litthemane walks quickly behind Pham as they (all six are moving together) walk quickly forward to attack Ngoc Duy Nguyen who is standing alone outside his vehicle.

(c) Evidence of Mr. Pham's involvement

[34] The issue at this stage of the analysis is whether there is any evidence that Mr. Pham was a party or principal actor in the attack on Mr. Nguyen, Mr. La or Mr. Smellie. First, there is evidence that Litthemane was directly involved in that attack on Nguyen. Pham and Litthemane were together all evening at the night club and left together and they were together in front of Sang's. They were both arrested together in a store in Hamilton on October 4th about five days later. The inference to be drawn is they tended to travel together and do things together.

[35] Second, Mr. Pham's silver Infinity (a sedan type vehicle) was found to have blood DNA from Danny La on the rear floor mat. Elizabeth Do said they came in a silver car (may have been an SUV) Jannifer Phounesana said they left in two cars, one of which was silver. A reasonable inference is that Pham drove some or all of his group to the scene and after they scattered he drove them away from the scene.

[36] Third, Elizabeth Do, in describing the suspects in the assault, testified that some had tattoos. Pham and Litthemane were notably wearing arm tattoos in the video screen capture photo (Exhibit 7). She gave evidence that the bat was being passed around the group of 6 – 8 Asian males… "and they were hitting Duy and Danny." Michelle Do gave evidence that "there was more than five people hitting and kicking Danny on the floor." Based on the number of young men in the attacking group in the Sang's video, (a total of six) one could infer that Mr. Pham was one of the six to eight Asian males who were passing the bat around and hitting Danny and Duy (ref. Elizabeth Do) and one of the more than five people hitting and kicking Danny on the floor (ref. Michelle Do).

[37] Fourth, a careful perusal of the restaurant video (Ex. 11) shows Pham to be the member of the suspect group who is calling the signals. As they arrive at Sang's he is on his cellphone. Then two Asian males come out of the restaurant and immediately Pham is leading the group north, running and pointing at the target while half turning to be sure the others are with him. We know from other evidence that the group of six then descended on the hapless Mr. Nguyen who was then standing at the driver's door of his vehicle. About 30 seconds later, Mr. La arrived to help his friend Mr. Nguyen who was then being beaten by the group. On the basis of the foregoing noteworthy pieces of evidence, a reasonable inference (employing the Munoz formulation ― reasonable probability) follows that Mr. Pham either participated in the attack alongside his close friend Mr. Litthemane or at the very least he was surely a participant in mobilizing and directing the group towards the target of their animus, Mr. Nguyen.

[38] I am mindful of the oft-quoted legal principles as to what constitutes some evidence of participation, aiding or abetting. According to R. v. Dunlop, [1979] S.C.J. No. 75 something more than presence alone is required to establish party liability: (see page 7)

Mere presence at the scene of a crime is not sufficient to ground culpability. Something more is needed; encouragement of the principal offender, an act which facilitates the commission of the offence, such as keeping watch on enticing the victim away, or an act which tends to prevent or hinder interference with accomplishment of the criminal act, such as preventing the intended victim from escaping or being ready to assist the prime culprit. …

[39] If it were not for the Sang's restaurant video, and the evidence from the Do sisters that numerically would include Mr. Pham as a participant, I would have to agree with the defence submission that there is really no evidence of Mr. Pham's involvement other than ferrying the attack group to and from the scene. I agree with the Crown that there is some evidence, albeit not a lot of evidence, that a properly instructed jury, acting reasonably could rely on to draw the inference that Mr. Pham's involvement seconds before the attack was as a prime mover and organizer pointing and summoning the group to go after the identified target and on a simple numerical basis was a participant in the attack according to the Do sisters. The reasonable inference is that Mr. Pham was not just present at the scene but was a co-participant in the attack on Mr. Nguyen and Mr. La. I am also mindful that certain kinds of demeanor evidence can be very dangerous to rely on. However, it speaks volumes that as soon as a critical mass of six were assembled on the sidewalk on front of Sang's, he led the move towards the targeted individual(s) turning and pointing while running. That is a picture of a participant rather than a passive observer.

B. Is there some evidence in respect to either defendant upon which there could be a committal on a charge of culpable homicide ― manslaughter?

[40] Both Mr. Pham and Mr. Litthemane took the position that there was no evidence that they were involved in the acts that caused Mr. La's death. Mr. Litthemane concedes that an aggravated assault on Mr. Nguyen would be a reasonable inference from the evidence adduced. Both defendants argue there is no evidence that either was involved in the attack on Mr. Smellie.

[41] The Crown argues that there was ample evidence that both defendants were involved in an attack with four other persons that eventually absorbed Mr. La in the violence and that the attack caused Mr. La's death and that death was objectively foreseeable.

[42] While there is no evidence as to which of the numerous blows to Mr. La each accused person personally inflicted, the Crown's position is that both defendants were acting in concert with the other four unknown assailants and on the basis of established legal principles, the Crown need not connect an individual defendant to any particular blow. It is the Crown's position that both defendants attacked Mr. Nguyen, Mr. La and Mr. Smellie in concert and therefore they were all parties to the assault and all equally culpable in Mr. La's death.

[43] The case authorities are clear that manslaughter could be made out by the evidence that Mr. La's death was caused by the commission of the unlawful act of an assault where serious bodily harm is foreseeable. According to R. v. Jackson, [1993] 4 S.C.R. 573 and R. v. Creighton, [1993] 3 S.C.R. 3, an accused commits manslaughter only where he is a principal or a party to an unlawful act where there was an objective forseeability of serious bodily harm to the victim of the assault. In other words, foreseeability of death is not necessary.

[44] I am aware that there is no evidence in the case at bar that Mr. Pham or Mr. Litthemane used a bat or struck Mr. La in the head with a bat or feet or any other mechanism aside from a deduction one can make about their involvement from the known size of the attacking group and Elizabeth Do's statement: "the bat was being passed around the group of 6 – 8 Asian males… "and they were hitting Duy and Danny." The law, however, does not require more than assaultive conduct to be a party to manslaughter. The Ontario Court of Appeal in R. v. Mariani, 2007 ONCA 329, [2007] O.J. No. 1715, held that in order to aid and abet a manslaughter the jury must find: " (i) that the person alleged to have been a party was present at the scene of the assault or was close to the victim when he was being kicked, (ii) that the presence or the conduct had the effect of aiding or encouraging the perpetrators to commit the offence, and (iii) that the person alleged to have been a party must have intended to aid or encourage the assault".

[45] In my view, the reasonable inference can be made from the evidence that Mr. Litthemane was actively involved in the initial attack on Mr. Nguyen, that this attack was a joint initiative of the six persons initially involved and that Mr. Pham's presence at the attack with the others was as a participant or to encourage the other assailants. Mr. La arrived on scene to protect his friend Mr. Nguyen and then became the target of the attack as he bent over his friend. All of this assaultive conduct was objectively likely to cause serious bodily harm. Mr. La died as a result of the beating.

[46] On the basis of all this evidence, I find that there is some evidence that Mr. Pham and Mr. Litthemane were parties the beating of Mr. Nguyen and anyone coming to his rescue and that given the attack was six on two, there was objective foresight of bodily harm that is sufficient to meet the test for committal to stand trial for manslaughter. Both defendants were present and involved as a party or participant for the attack on Mr. Nguyen, both were still present for the attack on Mr. La, both left when all of the assailants scattered and Mr. Pham drove some away in his silver car. In my view there was some evidence that both were parties in respect to a charge of manslaughter in relation to the death of Mr. La.

C. Is there some evidence in respect to either defendant upon which there could be a committal on a charge of Second Degree Murder?

[47] In the case at bar there is no direct evidence that either of the defendants intended to kill Mr. La or intended to commit bodily harm that they knew was likely to cause death. This is essentially a circumstantial case. The question is ― can the intention to commit murder under s.229(a)(ii) be inferred from the actions of the accused on the usual assumption that individuals intend the natural consequences of their actions? In other words, is there some circumstantial evidence that the defendants intended to commit bodily harm knowing that it was likely to cause death and being reckless as to whether or not death ensued? The defence argues that there is no evidence of the requisite mental state that would meet the test for committal in U.S.A. v. Sheppard, [1977] 2 S.C.R. 1067. It is argued there was no evidentiary basis for finding either defendant had the requisite foresight of the likelihood of death from bodily harm caused by the assault in which they participated (or were a party to), particularly where there was no direct evidence either defendant had any contact with Mr. La. (See R. v. Cooper, [1993] 1 S.C.R. 146).

[48] In the absence of direct evidence, is there a reasonable inference available on the basis of circumstantial evidence that either defendant intended to kill or to cause bodily harm that he knew was likely to cause death and is reckless whether death ensues or not? The case authorities hold that in considering whether that mental state can be inferred from the circumstantial evidence in the case, the court may consider all relevant evidence including the degree of force used, the nature and extent of the injuries inflicted as well as any other evidence that assists in inferring the intent of the accused at the time of the commission of the offence (See R. v. Pittman, [2011] O.J. No. 826 (Ont.C.A.)).

[49] First, in terms of the degree of force used and the nature and extent of the injuries inflicted there is the direct evidence that Mr. Litthemane personally attacked Mr. Nguyen and actively assaulted him while he was lying on the ground. I rely on the following pieces of evidence:

(a) Ms. Phounasana describes how Michelle Do had been trying to cover 'Duy' up when he was lying on the 'floor' because he was unconscious. She testified that she tried to stop one of the two guys who had been kicking "Duy" in the head and he turned and punched her in the side of the face. She described him as an Asian with a "short ponytail" and his hair was short and slicked-back." That description closely matched the image of Mr. Litthemane that one can observe in the restaurant security video and the screen capture image in exhibit 7. In my view, Ms. Phounesana was saying Mr. Litthemane was one of two guys who was kicking 'Duy' in the head until he became unconscious. Elizabeth Do was asked: "who was in the fight?" and she stated there were "Danny and Duy and 6 – 8 Asian guys, some had tattoos and there was a guy with a pony tail.

(b) Mr. Litthemane had blood DNA from Danny La and Ngoc Duy Nguyen on his shoes and that supports an inference he was very close to the action on the sidewalk where these victims were injured and left unconscious and bleeding.

[50] This circumstantial and direct evidence above supports the inference that Mr. Litthemane was an active participant in the initial part of the attack on the street and that he with another male, kicked Mr. Nguyen in the head until he became unconscious. This was a violent, aggressive application of force to a vulnerable person who had already been knocked down and it continued until he was unconscious. The conclusion I draw is that there is a reasonable inference that based on the anger that can be observed in his actions in front of Sang's, the severe degree of force employed against Mr. Nguyen, and the fact he was found to have blood on his shoes from both Mr. La and Mr. Nguyen, Mr. Litthemane meant to cause bodily harm that he knew was likely to cause death, and was reckless whether death ensued or not. It matters not that there is no evidence he had any contact with Mr. La. The degree of force used, the nature and extent of the injuries inflicted indicate that death (of someone) was a real likelihood assuming as I do that Mr. Litthemane intended the natural and likely consequences of his actions.

[51] In support of that inference, I have also considered the evidence from Mr. Smellie that those attacking 'Duy and Danny' "stomped" on them while they were on the ground. Moreover, there is nothing in the pathology report that limits the injury to Danny La to having been struck by a baseball bat. Some of the injury sustained by Mr. La could have been the result of being stomped on; there is no way of knowing exactly what the mechanism was that constituted blunt force trauma.

[52] The beatings started with Mr. Nguyen receiving punches and kicks to the head until he passed out. Then the attackers acquired a bat. Soon after, Danny La arrived and tried to assist his friend Mr. Nguyen. Mr. La was attacked with the bat and there is evidence he continued to be attacked while unconscious (Phounesana: "Both were passed out and were getting hit with the bat"; Michelle Do: "When they were getting hit they were unconscious, not moving.") This was all part of a continuous sequence of events which ultimately resulted in serious, permanent injuries to Ngoc Duy Nguyen and fatal injuries to Danny La. While the requisite mental state for second degree murder was not likely present at the outset, there is a reasonable inference based on the extreme level of violence inflicted, that the intention surfaced during the course of the attack.

[53] There are two themes that can be discerned from case authorities. First, when co-perpetrators engage in an assault that turns deadly, the Crown need not prove which of the attackers struck the fatal blow. In paragraphs 34 to 39 above, I concluded Mr. Pham was a participant in the attack and not simply a passive observer. In paragraphs 33 and 49 to 51, I concluded that Mr. Litthemane was an active participant in the attack. As long as they are both participants, the theory of joint liability as co-principals applies. The British Columbia Court of Appeal in R. v. Rojas, 2006 BCCA 193, described the facts from Bew v. The Queen, [1956] S.C.R. 124, a case in which a jury inferred joint participation in the crime by the accused and his companion, Cathro, despite the fact that only one of them could have strangled the victim:

[47] The case is the same when the precise role played by each party is unclear on the evidence. In Bew v. The Queen, [1956] S.C.R. 124, two men, Bew and Cathro, were seen to enter a corner store operated by the victim. About five minutes later the two men were spotted running from the store, one carrying a box later found to contain money. The victim was found dead at the back of the store. His voice box was fractured. He had died of strangulation. Thus, on the evidence it was unclear which of the two had struck the fatal blow. In describing how a jury might find both Bew and Cathro liable for the death, Mr. Justice Locke said this at p. 127:

There was evidence in the present matter from which a jury might properly draw the inference that the appellant and Cathro had meant to inflict grievous bodily injury to Ah Wing and had aided and abetted each other for the purpose of facilitating the commission of the offence of robbery and that his death had resulted. If the jury chose to draw this inference, the offence was murder as defined by s. 260 [as it then stood], whether they or either of them meant that death should ensue or knew that death was likely to ensue. In such circumstances, it would be a matter of indifference which of the two struck the fatal blow or inflicted the fatal injury, since each would be liable in law for the act of the other. (See also R. v. Ball, 2011 BCCA 11, 267 C.C.C. (3d) 532, a case in which the Court notes that where a victim was swarmed, it did not matter if each attacker actually assaulted the victim, all attackers would be held liable for the ultimate death; as well, where evidence of concerted action in the commission of the offence exists, it is open to the Court to convict all of the accused either as principals or as aiders or abettors pursuant to s. 21(1), even though the extent of the individual participation in the violence is unclear: R. v. Wood, 51 C.C.C. (3d) 201 at 220; see also R. v. Suzack, 141 C.C.C. (3d) 449 at para. 152.

[54] Second, the jurisprudence would suggest that in cases in which an assault takes place on the street where a victim could fall and hit their head and death results, the presence or absence of an intention to cause bodily harm that the participants knew was likely to cause death is usually a question that should be left to a jury. In R. v. Olubowale, [2001] O.J. No. 961 (Ont.C.A.), the Court of Appeal upheld a committal to stand trial for murder where the accused only hit the victim a few times and the blows were not of sufficient force to cause death on their own. The Court affirmed the committal to stand trial, concluding that:

[9] The Crown's case at its highest came to this: The appellant was a foot higher and almost twice the weight of the victim. He was a trained Olympic boxer. They were on a concrete sidewalk and the first two blows knocked the victim onto the sidewalk. The appellant had all that knowledge and was angry when he struck the third blow or kick to the head. The blows were described by witnesses as "precise", "powerful", "full force", "very strong". The medical evidence is that the evidence of damage makes it unlikely the blows alone could be the cause of death.

These facts support a finding that it was at least reckless for the appellant to strike a smaller man on a sidewalk where he will probably fall and might hit his head on the concrete and might die as a result. This evidence, although weak, could also support an inference that the appellant knew his actions were likely to cause death. At this stage in the proceedings, this court cannot weigh the evidence. The inference that the appellant had the requisite knowledge is weak, but it cannot be said that there is not a scintilla of evidence to support it.

[55] In the case at bar, the participants in the assault, Mr. Pham and Mr. Litthemane could each be said to have been at least reckless, as a party or as a principal, in the use of sufficient force such that there is a reasonable inference that a victim might get struck on the head and might die as a result. To paraphrase Olubowale, supra, this evidence, although weak, could also support an inference that the two defendants knew their actions were likely to cause death.

[56] A preliminary inquiry justice is not permitted commit on what the court might consider the most reasonable fact scenario. Except to the limited degree permitted in R. v. Arcuri, supra, I am not permitted to weigh the evidence. Given the state of the law and the evidence presented at the preliminary inquiry, it would be open to a jury to conclude that the vicious nature of the assault, the blows delivered when victims were unconscious, the unbalanced nature of the attack (initially six on one) and the actions of leaving an unconscious Mr. La bleeding on the sidewalk, that there was an intention to cause bodily harm that the defendants knew was likely to cause death and were reckless to whether or not death ensued. In other words, I find there is some evidence that Mr. Pham and Mr. Litthemane had the intention to cause bodily harm to in the attack knowing that it was likely to cause death and were reckless as to whether death ensued. As noted above, it is not a required element of the charge of second degree murder in respect to a group assault of this nature that it need be proven that either defendant struck Danny La in any particular way so long as there is some evidence of joint participation.

[57] In my view there was some evidence upon which, both defendants, either as principals or as aiders or abettors pursuant to s. 21(1), should be committed for trial in respect to a charge of second degree murder in relation to the death of Mr. La.

C. Is there some evidence in respect to either defendant upon which there could be a committal on the charge of First Degree Murder?

[58] The final question for discussion is: is there some evidence that either of the accused before the court committed the offence of first degree murder? I find that there is no evidence that they committed the offence of first degree murder.

[59] On the Crown's theory of liability, first degree murder is available by way of constructive first degree as defined by section 231(5)(e) of the Criminal Code on the basis of forcible confinement that preceded the violence that led to the fatality in this case. Section 231(5) of the Criminal Code provides for an increased penalty for murders committed in circumstances considered particularly morally aggravated. According to the case authorities, in order for murder to be elevated to first degree murder pursuant to section 231(5)(e) of the Criminal Code there must be some evidence that one or both defendants committed the crime of unlawful confinement of Mr. La and then chose to exploit that position of dominance over him, resulting from the confinement, to murder Mr. La. (See R. v. Johnson, [2002] O.J. No. 2365).

[60] The Crown argued that there was evidence that Mr. La was forcibly confined prior to and during the murder, relying on the following testimony: Kirk Smellie gave evidence that he looked out and saw a group of 7 – 10 males surrounding Danny and Duy. "Danny and Duy were in the middle of the circle, back to back, fighting." As well, it could be said that there is some evidence that Mr. La was rendered unconscious before he was struck again with the bat. In other words, the attack was completed when he was so dominated that he was effectively incapacitated, which state of confinement was exploited to murder him. Michelle Do stated that both "Danny and Duy were getting by the bat on their heads." "When they were getting hit they were unconscious, not moving." Jannifer Phounesana gave evidence that: "The guy kept hitting Danny and then turned and hit Duy with the bat." "Both were passed out and were getting hit with the bat." She stated that "Danny was unconscious as soon as he was hit. He was then hit a couple more times."

[61] While some may argue that this state of unconsciousness is somewhat analogous to the facts in R. v. Kimberly, [2001] O.J. No. 3603, in which the victim was rendered unconscious before being moved elsewhere to complete the attack, I disagree. The case at bar is not like R. v. Kimberley in which a victim was attacked, dragged to another location and then subjected to a further attack that caused death. As will be discussed below the test to be applied for proof of forcible confinement requires evidence of distinct and separate acts of confinement and murder over a substantial period of time. A review of the law of constructive murder follows.

Constructive first degree murder based on unlawful confinement under the Criminal Code s. 231(5)(e)

[62] The Ontario Court of Appeal in R. v. Parris, 2013 ONCA 515 held that:

[44] First, to establish first degree murder under s. 231(5)(e), the Crown must prove each of five essential elements beyond a reasonable doubt:

i. that the accused unlawfully confined or attempted to unlawfully confine the victim or another person;

ii. that the accused murdered the victim;

iii. that the accused participated in the murder of the victim in such a way that the accused was a substantial cause of the victim's death;

iv. that no intervening act of somebody else resulted in the accused no longer being substantially connected to the victim's death; and,

v. that the crimes of unlawful confinement, whether completed or attempted, and murder were part of the same transaction, in that the victim's death was caused while the accused was confining or attempting to unlawfully confine the victim or another as part of the same series of events.

[63] In order for a committal for trial on the basis of constructive first degree murder, the actions of an aider or abettor must form "an essential, substantial and integral part of the killing of the victim": R. v. Harbottle, [1993] 3 S.C.R. 306, at p. 325.

[64] In Parris the Court of Appeal provided the following instruction:

46 Second, the predicate offence requirement under s. 231(5)(e) involves the offence of unlawful confinement or the preliminary crime of attempted unlawful confinement. Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another: R. v. Luxton, [1990] 2 S.C.R. 711, at p. 723. The authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her own inclination and desire, the victim has been unlawfully confined: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. [Emphasis added]

53 To satisfy s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts, that is to say, the act of confinement and the act of killing must not be one and the same: Pritchard, at para. 27; Kimberley, at para. 108; and R. v. Johnson, 166 C.C.C. (3d) 44, at para. 39. The "same transaction" requirement may be met even where the person killed and the person confined are not the same, provided the killing is closely connected, temporally and causally, with an enumerated offence: Russell, at para. 43. [Emphasis added]

54 Finally, where two or more persons are alleged to be involved in a murder that is said to warrant classification as first degree murder under s. 231(5)(e), proof of their liability will depend on the manner of their participation, whether as co-perpetrators or s. 21 parties: Ferrari, at para. 54. The trial judge's instructions should set out the findings the jury would have to make to render the participant liable to conviction of first degree murder: Ferrari, at para. 98; and R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148, at paras. 82-84

[65] In R. v. Kimberley, [2001] O.J. No. 3603 the Court of Appeal outlined the difference between confinement in the very act of killing and liability under s. 231(5)(e):

[108] While I would reject the contention that unlawful confinements in the course of a robbery cannot provide the basis for liability under s. 231(5)(e), I do accept that a confinement which is inherent in the very act of killing could not be relied on to impose liability under s. 231(5)(e). This is not because there is no confinement, but because s. 231(5)(e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. It is the occurrence of the two criminal acts in the course of the same transaction or series of events that justifies the added punishment imposed for first-degree murder. Thus, for example, if, with the requisite intent for murder, the appellants had struck and killed Dr. Warrick as she left the elevator and then took her purse, there would be no basis upon which the appellants could be convicted of first-degree murder under s. 231(5)(e). On this example, the act of confinement and the act of killing are one and the same. Where, however, there is a confinement and then in the course of the same series of events, the victim is murdered while under the unlawful domination of the killer, the rationale underlying s. 231(5)(e) is fully engaged. There is not only a murder, but there is a murder of a person under the domination of the attacker. [Emphasis added].

[66] There are a number of features of s. 231(5)(e) to bear in mind in applying the law to a particular fact situation:

(1) Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another: R. v. Luxton, [1990] 2 S.C.R. 711, at p. 723

(2) The authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her own inclination and desire, the victim has been unlawfully confined: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24. [Emphasis added]

(3) The confinement and the murder cannot both be part of the same criminal act. To satisfy s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts, that is to say, the act of confinement and the act of killing must not be one and the same: Pritchard, at para. 27; and Kimberley, at para. 108. [Emphasis added]

[67] The essential features of forcible confinement are that the unlawful confinement and the murder must be distinct acts: "'the distinct act' requirement demands only that the confinement be distinct and independent from the act of killing" and further that the confinement had to extend for a "significant" period of time ("an unlawful restriction on liberty for some period of time") to engage s. 231(5)(e).

Applying the Law to the Facts of This Case

[68] The Crown's theory is the following: whether or not the two defendants Pham and Litthemane initiated the violence, they participated in this vicious attack on Nguyen and La either as co-perpetrators, by joining in kicking the downed men in the head and striking them in the head with a baseball bat, or by supporting or encouraging their colleagues' violent conduct by surrounding the two victims in a ring of control and confinement. Either way, it is argued that the defendants, are participants or parties to an act of forcible confinement that resulted in the fatal injuries sustained by the victim in this case and those acts form the basis for a committal for trial on constructive first degree murder.

A Review of the Evidence

Analysis

[69] First, the above summary of the testimony in this case is illustrative of a very brief attack that consisted of a continuous, dynamic, brutal assault that involved the surrounding of the victims and the use of force by means of punches, foot strikes and a baseball bat. Any perception of two discrete acts over a significant period of time is an artificial construct and an imaginary gloss on the evidence that was heard in this case. It was one event that took a minute or two at most. By all accounts, it started when Ngoc Duy Nguyen, standing at the door of his vehicle, was set upon by the group of about six others. In my view there is no factual basis for a reasonable inference in respect to the essential elements of constructive first degree murder on all of the circumstantial and direct evidence adduced at this hearing. In other words, there is not 'some evidence upon which a reasonable jury, properly instructed, could find either defendant guilty' of constructive first degree murder through the combined effect of s. 21 of the Criminal Code and s. 235(5)(e) of the Criminal Code.

[70] If I am incorrect in this determination, it would seem to me that all participants, aiders and abettors, in every group attack resulting in a fatality would face criminal liability for constructive first degree murder. If Parliament had intended that all should face life imprisonment without parole for twenty five years no matter what degree of momentary confinement, it would have expressly made that clear in the statute. It is only the morally aggravated conduct (in the form of a distinct, protracted act of forcible confinement [or other criminal act] leading to a fatality) that attracts society's strongest condemnation and the most severe sentence that the Criminal Code provides. Momentary encirclement or holding during a dynamic attack in which kicks and punches are thrown would represent far too minimal a level of confinement to qualify as the requisite element for constructive first degree murder, in my view. As well, momentary unconsciousness as blows are struck in rapid succession would not establish the requisite degree of forcible confinement. The evidence simply does not rise to the level of 'distinct acts' over 'a substantial period of time.' This point is well illustrated in the following decision by Trafford J. in R. v. Sandhu, [2005] O.J. No. 5845 (Ont.S.C.):

21 Looking at the evidence as a whole, in my view there is no evidence in this case of two discrete acts. The evidence does establish resistance by the deceased to the attack. He was surrounded by a group of people. However, the surrounding of the deceased and the brutal attack leading to his death all occurred within approximately thirty to forty-five seconds. The surrounding of the deceased and the brutal attack on him were, on the evidence, one and the same. The evidence of the planning of the attack and the efficiency with which it was carried out in the circumstances of this case does not amount to a prima facie case of a discrete act of confinement and a complementing discrete act of killing, as mandated by R. v. Kimberley, supra. Moreover, the evidence of the sequence of the events is imprecise. It varies significantly from one witness to another. This is not a case where a victim was attacked, dragged to another location and then subjected to a further attack that caused death, such as in R. v. Kimberley, supra. This was a continuous assault from the beginning to the end of the thirty to forty-five second interval that, in some respects, included the surrounding of the deceased. The Crown is not alleging a confinement prior to the assault, I am unable to find an articulable basis for a finding of the discrete acts, as opposed to a planned intention to kill Mr. Malik that was deliberately carried out in a rapid, efficient and collaborative manner. This case may be one where there is an "... iota of evidence ..." as described in R. v. Paul, supra, but, as a matter of law, there is an absence of evidence fit for the consideration of the jury under s. 231(5) of the Code.

[71] When I consider the evidence as a whole, I can only conclude that there is no evidence that Mr. La was forcibly confined and I would not commit either defendant to stand trial on the charge of first degree murder.

The Attempt Murder Charge

[72] On the evidence, I cannot conclude that the evidence supports an inference of an intent to kill Mr. Nuguyen. There had been a skirmish about a half hour before at a club and when the six members of the Pham/Litthemane group had gathered together in front of Sang's and they moved on Nguyen within 20 seconds. Feelings were running high and there no time for planning. There were no weapons employed in the initial attack. The inference I draw is that this was a rapid impulse group dynamic fueled by anger and the intent was to strike at some perceived threat, but there was no evidence of an intent to kill. In R. v. Ancio, [1984] 1 S.C.R. 225 the Supreme Court held that the mens rea for attempted murder is the specific intent to kill and a mental state falling short of that level, while it might lead to conviction for other offences, cannot lead to a conviction for an attempt. Consequently, I would not commit the defendants on the charge of attempt murder.

[73] On the basis of the evidence and inferences drawn as noted above, I would commit both defendants for trial on the charge of aggravated assault in respect to the assault on Mr. Nguyen ― that being an offence made out on these facts, if it is not otherwise an included offence of attempt murder. (In fact counsel for Mr. Litthemane concedes committal on this charge). There is little doubt that both defendants would have objectively forseen bodily harm. As Cory J. held in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3:

This sets forth a part of the mens rea of the offence of aggravated assault as far as the perpetrator is concerned. (It is clear that in addition to the consequences of the assault referred to in this passage there is that of the endangering of life). The full mens rea is the mens rea for the offence of assault and objective foreseeability of bodily harm.

The Aggravated Assault Charge in Relation to Kirk Smellie

[74] In my view, the defendants should be committed for trial on a charge of aggravated assault in respect to the continuing group assault that led to Mr. Smellie being struck on the head with the bat. It is trite law that a n assault that causes any hurt or injury that is not transient or trifling in nature and interferes with the complainant's health or comfort will meet the definition of bodily harm. That may be the more appropriate charge on the evidence, because Mr. Smellie's injuries involved some degree of bodily harm and not much more. Nevertheless, the law requires that I commit for trial where there is some evidence that would meet the definition of an aggravated assault. In order for an assault to meet the definition of an aggravated assault, the injury must be any sort of injury that wounds, maims, disfigures or endangers the life of another. 'Maim' means to injure a person to the extent they are less able to fight: R. v. Schultz, 133 C.C.C. 174. As noted above the mental element is nothing more that objective foresight of bodily harm. After the bat was used on his head, Mr. Smellie was out of commission in terms of further involvement and the person wielding the bat would have forseen bodily harm. Consequently, the defendants will be committed for trial on the charge of aggravated assault.

Conclusion

[75] On the basis of the foregoing reasons, I would commit Mr. Pham and Mr. Litthemane to stand trial on the charge of second degree murder in respect to the death of Danny La. I would commit Mr. Pham and Mr. Litthemane to stand trial on the charge of aggravated assault in respect to the assault committed on Ngoc Duy Nguyen and the resulting injuries he sustained. Finally I would commit Mr. Pham and Mr. Litthemane to stand trial on the charge of aggravated assault in respect to the assault committed on Kirk Smellie and the resulting injuries he sustained.

P. Harris J.

Released: October 9, 2015