WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 517(1) and 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. Order restricting publication of evidence taken at preliminary inquiry.—(1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry

(a) may, if application therefor is made by the prosecutor, and

(b) shall, if application therefor is made by any of the accused,

make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused,

(c) he or she is discharged, or

(d) if he or she is ordered to stand trial, the trial is ended.

(3) Failure to comply with order.— Every one who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Lee, 2019 ONCJ 183

DATE: 2019·03·26

COURT FILE No.: Toronto 4817 998 17 75005870-01;-02

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TYRELLE COSMUS LEE AND STEVEN MACISAAC

Before Justice Howard Borenstein

Heard on February 4, 5, 6, 7, 8, 11, 13, 14, 19, 20, 21, 22, 25, 28 and March 1, 2019

Reasons for Judgment released on March 26, 2019

Ms. Anna Tenhouse .............................................................................. counsel for the Crown

Ms. Lisa Jacek ....................................................................................... counsel for the Crown

Mr. Scott Reid ................................................. counsel for the accused Tyrelle Cosmus Lee

Ms. Tonya Kent ............................................... counsel for the accused Tyrelle Cosmus Lee

Ms. Renée Gregor .............................................. counsel for the accused Steven MacIsaac

BORENSTEIN, J.:

[1] Isaiah Witt was only 15 years old.

[2] On October 7, 2017, he and friends went to the Stan Wadlow Park in Toronto. There was to be a party, or jam, for 14- and 15-year-olds.

[3] Fifteen-year-old K.D., who is separately charged with this murder as a youth, brought three older friends to the party: Steven MacIsaac, Tyrelle Lee and Dwight Francis. They were older, between 19 and 21. Within minutes of everyone arriving at the park, K.D. said something to his older friends who then went over and angrily confronted the younger group, including Isaiah Witt.

[4] The older boys were aggressive and threatening. Isaiah asked what was going on in an attempt to calm things down. The older group turned their attention to Isaiah. Within a matter of seconds, Lee and MacIsaac pulled out knives. Isaiah tried further to calm things down and back away. He was pursued. He either tripped or was pulled to the ground and suffered one stab wound to the chest which punctured his heart. He collapsed. Got back up and collapsed again. Tragically, he died later that night in the hospital.

[5] Steven MacIsaac and Tyrelle Lee are both charged with first-degree murder.

[6] Throughout the evidence, witnesses were often referring to a white male which a jury could find to be MacIsaac. Francis and Lee are both black men. A jury could find that the black male referred to by the witnesses as involved in this attack was Lee.

[7] Mr. Lee concedes there is evidence which would justify his committal to trial on second-degree murder, not first-degree murder. Mr. MacIsaac concedes he should be committed to trial for manslaughter.

[8] Given those positions, these reasons will focus solely on whether Lee should be committed to stand trial on first- or second-degree murder, and whether MacIsaac should be committed to trial on manslaughter or murder and, if murder, whether first- or second-degree murder.

[9] There were many young eye witnesses to these events who testified, including K.D. There are conflicts in what they saw, which is understandable given the brevity and mayhem and darkness. There are credibility and reliability issues as well. As all counsel know, credibility assessments are for the jury to determine. Further, I am not considering any defence evidence which may be led at trial.

[10] Bearing in mind the focussed nature of this preliminary hearing, there is evidence from which a reasonable jury, properly instructed, could find the following:

1. On the evening of October 7, 2017, students from grades 9 and 10 attended Stan Wadlow Park for a party.

2. The witnesses got to the park around 8 pm.

3. Prior to the party, MacIsaac, Lee, Francis and K.D. were at the Main Street Subway Station waiting for a bus to take them to the park.

4. K.D. was 14 years old at the time. The three others were older, around 19 to 21.

5. Zion Hume and his friends were also at the Main Subway station waiting for the bus.

6. There was little interaction between these two groups at Main Station except Zion Hume spoke to K.D. K.D.’s alleged utterances to Zion are not admissible against either accused in this hearing. However, Zion testified that K.D. walked over to Tyrelle Lee and removed a dirty gold or brass switchblade from Lee’s pocket and showed it to Zion before returning it to Lee. The bus arrived and all went to the park.

7. A gold switchblade was found under a bush along the route Lee, MacIsaac, Francis and K.D. fled along after Isaiah Witt was stabbed. That knife had the DNA profile of both Lee and Isaiah Witt.

8. Upon arrival at the park, Lee, MacIsaac, Francis and K.D. went to one area and were drinking rum and beer.

9. Most of the young people, including Isaiah were congregating near the swing set.

10. Shortly after they all arrived, K.D. said something to Lee which caused Lee, MacIsaac and Francis to aggressively confront the group of young people, including Isaiah Witt.

11. There is conflicting evidence about whether K.D. told Lee that the young people were “talking shit” about the older group, or said they would rob or stab the older group.

12. Whatever K.D. said, his comments motivated Lee and the others to confront the group of young people. Further, while there is evidence that MacIsaac was on his phone a short distance away when K.D. is spoke to Lee, the evidence called is that after K.D. made those comments, Lee and Francis and MacIsaac immediately confronted the younger group.

13. Lee, MacIsaac and Francis approached the young group, aggressively accusing them of “talking shit” about the older group. There is some evidence that they were yelling. Some witnesses attributed those comments to Lee, some to MacIsaac and some all three adults.

14. The younger boys denied “talking shit” about the three.

15. There is evidence MacIsaac then swung a plastic rum bottle hitting Kaleb Larter.

16. Isaiah Witt stepped in and tried to calm things down and said: What’s going on?

17. The three adults then turned their attention to Isaiah asking him if he was “talking shit” about them. Isaiah told them he didn’t do anything.

18. There are various accounts about what happened next. There is evidence that one or both Lee and MacIsaac began threatening to stab or kill Isaiah and that both Lee and MacIsaac pulled out knives. While some witnesses have one or the other or all three making these threats, the threats were loud enough for everyone to hear.

19. Kaleb heard one of the three say, “I’ll fucking stab you right now.” Though he could not say who said that. Dyzen heard MacIsaac say, “You are going to get poked.” Brajan saw MacIsaac pull out a knife and sheath from his side bag and say, “We don’t care, we will stab you right now.” Eric saw Lee pull out a knife and say, “Do you think I’m playing?” Another witness heard the males say, “We will kill you right now and we will kill you where you stand.” And, “Are you dumb, what are you trying to do?”

20. Isaiah tried to back up toward the hill behind him. He was telling the adults to “chill”, “relax” and “put the knife away”. He said, “I don’t want any trouble. We don’t even know who you are.”

21. What happened next is the subject of conflicting accounts, including whether it was Lee or MacIsaac who actually stabbed Isaiah. Most of the evidence has Isaiah running up the hill, toward the community centre, when he either fell or was tackled at which point he was stabbed by either MacIsaac or Lee. As soon as he was stabbed, Lee, MacIsaac, Francis and K.D. fled the park. There was 22-25 seconds from the time he ran to the hill until the time the accused fled.

22. Brajan testified that Isaiah ran toward the hill. Lee and MacIsaac called him a pussy. Lee pulled him to the ground by his knapsack and MacIsaac leaned over and stabbed Isaiah.

23. K.D. testified that Lee and MacIsaac threw Isaiah to the ground and Lee jumped on him, and looked like he punched him and heard Isaiah yell, “Ow”.

24. Michael, who was further away than the other witnesses, did not hear the initial confrontation or see a knife. He saw the two approach Isaiah quickly, and try to take his bag pushing him on the hill. The three adults circled him in a “C” shape. Two reached into their pockets. The entire episode took about ten seconds.

25. Dyzen saw Isaiah get a couple of feet on the hill when he was pushed on the hill and tackled, at which point MacIsaac leaned over and stabbed him.

26. Kaleb Larter said Isaiah was chased up the hill when he tripped and was surrounded by the three men, when one stabbed him.

27. Zion saw Isaiah back up and then run up the hill, chased by the accused who threw him to the ground by his backpack, which they may have been trying to take. As Isaiah got up, he may have turned around. Lee thrust a knife at Isaiah from a 90-degree angle from his own body.

28. Zoe saw Isaiah back up and try to run up the hill when MacIsaac turned toward him with a knife. The others were not near MacIsaac and Isaiah.

29. Eric saw Lee swinging a knife. Darcie saw Lee make thrusting movements toward Isaiah.

30. After the stabbing, some of Isaiah’s friends came to help and called 911. City workers were nearby and they came to try to help. EMS and police arrived and Isaiah was taken to the hospital. Sadly, we all know the unimaginable outcome.

31. Lee, MacIsaac, Francis and K.D. all immediately fled the park, right after the confrontation and one stab wound inflicted. They ran toward Cosburn and Holborne.

32. While running, it became clear that MacIsaac was stabbed in the buttock and was bleeding. MacIsaac was shirtless.

33. K.D. heard MacIsaac tell Lee he stabbed him, and Lee said he was sorry.

34. Police officers saw the four and detained them. MacIsaac was taken to the same hospital as Isaiah.

35. A side bag worn by MacIsaac and the orange knife and sheath were hidden under bushes in front of two homes on Holborne Avenue. A homeowner saw a white male, who was shirtless, place something under one of those bushes.

36. The gold knife was hidden under a stone on Woodbine Avenue. Lee is seen on video around that area.

37. A DNA swab was taken from Lee’s hands. It matches the DNA profile found on the side bag and on the gold knife. Isaiah’s blood and DNA were also found on the gold knife

That is a brief overview of the findings a jury could make sufficient for these reasons.

[11] Lee, MacIsaac and K.D. have all been charged with second-degree murder.

[12] The charges have been upgraded to first-degree murder. K.D. will be tried separately, as a young person.

Positions of Crown and Defence

[13] The Crown submits that a jury could reasonably find that either Lee or MacIsaac stabbed Isaiah Witt, or that they acted together as parties. The Crown further submits that a jury could infer a murderous intention (intention to kill or intention to cause bodily harm knowing death was likely) amounting to murder. The Crown submits that they should be committed to trial on first-degree murder because a jury could find that the murder was planned and deliberate, or was committed in the course of a forcible confinement.

[14] Lee acknowledges that a jury could reasonably infer a murderous intent but submits there is no evidence or available inference that it was planned and deliberate, or committed during the commission of a forcible confinement. Accordingly, Lee submits he should be committed to trial on second-degree murder.

[15] MacIsaac submits that he should be committed to trial on manslaughter, as a jury could not reasonably find a murderous intent. In the alternative, he submits he should be committed to trial on second-degree murder.

Role of Justice at a Preliminary Hearing

[16] The role of a Justice at a preliminary hearing is well known. An accused shall be committed to trial if, on a consideration of all the evidence, there is sufficient evidence to put the accused on trial for the offence charged, or any other indictable offence in respect of the same transaction. He shall be discharged if, no sufficient case has been made to put the accused on trial for the offence charged or any other indictable offence in respect of the same transaction.

[17] At this point, I take the Crown’s case at its highest. Any reference to the jury finding something to have occurred should be understood to mean only that a jury properly instructed may reasonably find that fact to have occurred, based on the evidence or reasonable inferences flowing from the evidence. I am not considering whether a jury would make those findings or draw those inferences. A preliminary inquiry is not the forum to weigh competing inferences, or to assess the quality and reliability of the evidence.

[18] It is important to differentiate between reasonable inferences that flow from the evidence and speculation. Reasonable inferences are inferences that may be drawn from primary facts. Speculation and conjecture is impermissible. The decisions in R. v. Munoz, 2006 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.), and R. v. Dadshani, [2006] O.J. 1857 (Ont. SC), are helpful this regard.

[19] I also take guidance from the comments of Justice Hill in R. v. Pinnock, [2007] O.J. No. 1599 (S.C.J.), where he reviews the role of a Justice at a preliminary hearing.

[20] To the extent that there is circumstantial evidence in this case, I can weigh the evidence in the limited manner prescribed by Arcuri solely to determine whether on the whole of the evidence, the evidence is capable of reasonably supporting the inferences sought by the Crown. I am not determining whether those inferences will or should be drawn.

[21] Ultimately the question to be answered is whether, based on the evidence and reasonable inferences that flow from the evidence, a reasonable jury, properly instructed, could convict these accused of first- or second-degree murder. It is conceded that they could be convicted of manslaughter.

[22] As the Crown writes in its factum, referring to R. v. Sazant, 2004 SCC 2, [2004] S.C.J. No. 4:

“Critically, the preliminary hearing is not meant to determine the accused’s guilt or innocence. That determination is made at trial. The preliminary inquiry serves a screening purpose, and is not meant to provide a forum for litigating the merits of the case against the accused”.

[23] However, as MacIsaac points out in his submissions, quoting Estey, J. in R. v. Skogman, 1984 22 (SCC), 1984, 13 C.C.C. (3d) 161 (at 171):

…The purpose of a preliminary hearing is to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.

[24] And again, in Tapaquon, 1993 52 (SCC), 1993, 87 C.C.C. (3d) 1 at para. 37:

The inquiry provides the accused with an opportunity to avoid the indignity of being placed on trial where there is simply insufficient evidence to justify the holding of a trial at all.

Decision

[25] In my view, a jury could find MacIsaac and Lee guilty of second-degree murder but not first-degree murder. I make this finding for the following reasons.

[26] First, a jury could find this killing was done with the murderous intent. Lee concedes this point but MacIsaac does not. I find that murder is an available inference based on several factors, each on its own could reasonably support that finding.

The location of the knife wound

[27] Whoever stabbed Isaiah, stabbed him in the chest. The knife penetrated his heart and caused his death. As Lee acknowledges in his factum, “The evidence of the nature of the wound (being in a vulnerable and vital location of the deceased’s body) is evidence of intent.” I agree with that submission. It is some evidence of intent.

[28] There is direct evidence Lee stabbed Isiah. There is also direct evidence it was MacIsaac. It will be for the jury to evaluate the credibility and reliability of the witnesses and determine which evidence they rely upon. It may be, the jury will be unable to resolve the issue in light of all the evidence. But the credibility and reliability of the witnesses is for the jury.

The threats that preceded the stabbing

[29] Next, there is the evidence of the utterances made just prior to the stabbing. Witnesses heard loud threats to kill or stab or poke Isiah when Lee and MacIsaac pulled out knives, just prior to Isiah being chased or tackled and then stabbed. The threat to kill was made before the chase and stabbing. A jury could find that the comments are some evidence of the intention of the person who uttered them and were adopted by the other given the subsequent actions. They reflect a joint intention. As MacIsaac acknowledged in submissions, if a jury could reasonably conclude that MacIsaac himself uttered or adopted the threats to kill. That, combined with his acknowledgment of committal on manslaughter would result in committal for murder. Some attributed some of the threats specifically to Lee. Some to MacIsaac. And some to all three, but could not say which of the three said it.

Parties

[30] Finally, the evidence is capable of supporting a finding that Lee and MacIsaac acted as parties in all senses of s. 21. I will address this portion of my reasons on the basis that Lee stabbed Isaiah and MacIsaac’s liability is as a party.

[31] Section 21(1) provides that every one is a party to an offence if they: (a) actually commit the offence or; (b) does or omit to do something for the purpose of aiding any person to commit the offence or; (c) if they abet or encourage the offence.

[32] It is well settled that assisting or encouraging a principal to commit a crime requires more than having the effect of assisting or encouraging. The actions must be done for the purpose of aiding or encouraging the principal to commit murder. A reasonable jury properly instructed, may (not must) conclude that MacIsaac pulling out his knife, while aggressive threats are being made to kill Isaiah and making his own threats, before chasing Isaiah with Lee and either knocking him down or standing by him as he falls while Lee stabs him is conduct that both encouraged and aided Lee in stabbing Isaiah. Having found that a jury could find a murderous intent on behalf of the stabber, a jury could well find the words and actions of the other, presumably MacIsaac, were done for the purpose of aiding and encouraging the murder.

First-Degree

Planned and Deliberate

[33] The Crown submits that a jury could reasonably infer that when Isaiah intervened to try to calm things down, Lee and MacIsaac hatched a plan to kill him, probably because he stood up to them.

[34] The Crown submits that the threats uttered by Lee and MacIsaac when they confronted Isaiah are evidence of their plan. The brandishing of knives demonstrated their mutual assent to the plan, and the act of chasing or pushing Isiah is evidence of their deliberation in executing their plan which culminated in the stabbing. Finally, the act of discarding their knives was the completion of the plan. I note that, on any view of the evidence, this entire incident lasted likely under a minute. Michael P. thought it lasted 10 seconds.

[35] The Crown points out that a plan can be very simple yet still be a plan and that, any uncertainty about whether a jury could reasonably find this to be planned and deliberate should be resolved in the Crown’s favour.

[36] The defence submits that the evidence does not lead to a reasonable inference that there was a plan much less deliberation.

[37] For committal to trial for constructive murder on the basis of it being planned and deliberate, a reasonable jury must be able to find that there was a plan to kill (or cause bodily harm knowing that death was likely) that was deliberated upon. They are two separate requirements, both of which must be met. If there is some evidence upon which a reasonable jury could find that both conditions exist, then Lee and MacIsaac will be committed to trial on first degree murder. As Archibald, J. noted in Newman, 2010 ONSC 6009, 2010 CarswellOnt 8258, para 38:

The elements of planning and deliberation, while both essential to first-degree murder, are also separate. Thus, there can only be an order to stand trial for first- degree murder if the threshold test is met for both planning and deliberation, independently: R. v. More, 1963 79 (SCC), [1963] S.C.R. 522 (S.C.C.); R. v. Stevens (1984), 1984 3481 (ON CA), 11 C.C.C. (3d) 518 (Ont. C.A.), at 538 -39.

Plan has a meaning beyond intent.

[38] A jury would be told that a planned murder is one that was committed as a result of a scheme or plan that had been previously formulated. The murder is the implementation of the plan. A murder committed on a sudden impulse without prior consideration, even with an intention to kill, is not a planned murder. (See Watt’s Manual of Criminal Jury Instructions, 2nd ed. P.691.)

[39] Likewise, a jury would be instructed that deliberate means considered, not impulsive, carefully thought out, not hasty or rash, slow in deciding, cautious. (See Watt supra.)

[40] In my view, as tragic as this killing is, and while there is a basis to find that it was intentional, there is no basis to find that it was planned or that it was deliberated upon. While a plan may be simple, it is important not to conflate an intention to kill with a plan.

[41] There are several trial judgments of Justice Watt (as he then was) when he was sitting as a trial judge that are instructive.

[42] In R. v. Ayotte, Justice Watt outlined the necessary elements of planning and deliberation as follows:

For there to be a planned and deliberate murder, there must be evidence that the murder was the result of a scheme or design that the accused had previously formulated or designed. The murder must be the implementation of that scheme or design. A murder committed on sudden impulse, without prior consideration, however intentional, is not a planned and deliberate murder. [emphasis added]

R. v. Ayotte, [1998] O.J. No. 4700 (Gen. Div.) at paras. 63 – 64.

[43] R. v. Fatima (2006), 2006 63701 (ON SC), 42 C.R. (6th) 239 at para. 65:

“The planning and deliberation must precede the commencement of the conduct that causes death. See, for example, R. v. Reynolds (1978), 1978 1269 (ON CA), 44 C.C.C. (2d) 129 (Ont. C.A.); and R. v. Smith (1979), 1979 2233 (SK CA), 51 C.C.C (2d) 381 (Sask. C.A.).”

[44] In the oft quoted case of R. v. Widdifield (1963-4), 6 Crim L.Q. 152, 153-4, Justice Gale, then a trial judge, instructed the jury as follows:

What is meant by the expression "planned and deliberate"? Again, gentlemen, let me repeat that it is a question of fact for you to decide whether there was that here and, secondly, that expression should be given its ordinary, natural meaning. It certainly does not include a killing which is perpetrated in hot blood without any premeditation, all of a sudden without consideration, upon impulse, or on the spur of the moment. Killing as a result of any of those things would not be a planned and deliberate killing.

I think that in the Code "planned" is to be assigned, I think, its natural meaning of a calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course, to say that the plan need be a complicated one. It may be a very simple one, and the simpler it is perhaps the easier it is to formulate.

The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act. One can carefully prepare a plan and immediately it is prepared set out to do the planned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word "deliberate" is concerned, I think that the Code means that it should also carry its natural meaning of "considered", "not impulsive", "slow in deciding", "cautious", implying that the accused must take time to weigh the advantages and disadvantages of his intend action. That is what, as it seems to me, "deliberate means".

[45] In my view, there is simply no evidence from which a reasonable jury could infer a plan to kill or related mental state much less deliberation. The Crown’s position parses out a quick, tragic single event into artificial parts beyond which they are reasonably capable of bearing. It conflates intention with planning and ignores deliberation. The Crown’s position has the plan hatched during the threats and the deliberation during the chase. The fact that there was an opportunity for them to stop is evidence of intent, not evidence of a plan or deliberation.

[46] Likewise, the discarding of their knives in bushes as they ran does not assist in determining the level of culpability and is not evidence of any prior plan. There is no basis for committal on first-degree murder on the basis of planning and deliberation.

Forcible Confinement

[47] In my view, a reasonable jury properly instructed could not reasonably find sufficient evidence of forcible confinement distinct from the confinement that momentarily occurred during the stabbing and which is necessary to elevate this charge from second- to first-degree murder.

[48] This entire incident took about one minute, or less. It began with aggressive threats to a group of young people and then the focus turned to Isaiah when he tried to calm things down. Once the knives came out, Isiah ran up the hill. There are conflicting accounts of what specifically then occurred; Isaiah either ran and was chased, tackled by Lee and stabbed by Lee; ran, was chased, tackled by Lee and stabbed by MacIsaac; ran and turned around and was stabbed, or ran or was pushed and tripped and was then stabbed; one witnessed described Isiah either fall or tackled when Lee jumped on top of him and seemed to punch but, in reality, stabbed him.

[49] Whichever version the jury is able to accept, there is no basis to find that there was the separate or distinct offence of forcible confinement or attempted forcible confinement. This is not because there was no confinement at the moment Isaiah was stabbed, but because any confinement that occurred was instantaneous and momentary and inextricably linked and integral to the stabbing. The video reveals that only 20 to 25 seconds passed from the time Isaiah began to run until the accused fled the scene.

[50] For murder to be elevated to first-degree murder based on forcible confinement, the forcible confinement or attempted forcible confinement must be a distinct crime from the act of murder.

[51] The Crown relies heavily upon R. v. White, 2014 ONCA 64, 305 C.C.C. (3d) 449.

[52] In White, the 16-year-old victim was wearing earphones when he walked by four men, including White and Johnson. The four decided to rob him. The victim was walking through a catwalk that was two metres wide and fenced on both sides connecting the sub-division where the four men were. The catwalk lead to an adjacent street and bus stop. There were only two entrances or exits to the catwalk. Once one entered the catwalk, they either had to continue to the other side or return through the entrance he or she entered.

[53] The victim entered the catwalk. The four followed and the jury could reasonably infer they did so to rob the victim in the catwalk. A witness saw the victim run out of the catwalk. He then saw Johnson catch up with the victim, grab him from behind and held him tightly in a bear hug from behind for 2 to 3 seconds until White appeared and stabbed the victim in the chest, killing him.

[54] A motion for a directed verdict in relation to constructive first-degree murder was dismissed by the trial judge, as he held that the jury could reasonably find an unlawful confinement or attempted unlawful confinement.

[55] The Court of Appeal agreed, holding that there were three routes to unlawful confinement or attempted unlawful confinement in this case that were sufficient to elevate the murder to first-degree:

1. The evidence permitted a reasonable inference that the four attempted to stop the victim in the catwalk to rob him but when he refused to turn over his property, they produced knives to try to compel his compliance. When he fled, they chased him intending to catch him before he got to the open street and confine him in the catwalk to rob him. That was one basis for unlawful confinement or attempted unlawful confinement;

2. Whatever interaction occurred in the catwalk was followed by a chase and the bear hug. Those factors also permitted a reasonable inference of an intention to restrain or exercise control over the victim; and

3. The bear hug itself was held to be a discrete act of confinement which was not integral to the killing though it facilitated the killing.

[56] That case is materially distinguishable from this case. In all three scenarios, there was evidence which permitted a reasonable jury to infer a discrete unlawful confinement or attempted unlawful confinement separate from the murder.

[57] In R. v. Kimberley et al, Doherty, J.A, writing for the Ontario Court of Appeal distinguished between confinement that is part of a murder and a murder that occurs during a unlawful confinement:

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.

R. v. Kimberley et al, 2001 24120 (ON CA), [2001] O.J. No. 3603.

[58] In R. v. Pritchard, 2008 SCC 59, [2008] S.C.J. No. 61 (SCC), the Supreme Court explained the meaning of distinct act (at paragraphs 26-27):

Even a confinement which satisfies s. 279(2) will not trigger s. 23 l(5)(e) if it is consumed in the very act of killing. In order to trigger s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts: R. v. Kimberley (2001), 2001 24120 (ON CA), 157 C.C.C. (3d) 129 (Ont. C.A.), per Doherty J.A., at para. 108. Thus, the issue under s. 231(5)(e) is not whether there was confinement independent of the act of robbery but whether there was unlawful confinement distinct and independent from the act of killing. If, as counsel for the appellant aptly put it, "the murder and the confinement are co-extensive, then you cannot convict of first degree".

[59] In Sandhu, [2005] O.J. No. 8306, 70 W.C.B. (2d) 795 (S.C.J.), Trafford, J allowed a directed verdict in relation to the forcible confinement basis for first-degree murder. While each case is fact specific, the Court found the surrounding of the deceased and the brutal attack, which took place within approximately 30 to 45 seconds, were one and the same event. As Trafford, J noted:

The unlawful confinement must be more than is inherent in the act of killing. See R. c. Simon (2001), 2001 11996 (QC CA), 154 C.C.C. (3d) 562 (Que. C.A.) and R. v. Kimberley (2001), 2001 24120 (ON CA), 157 C.C.C. (3d) 129 (Ont. C.A.) at para. 108.

And further:

There must be evidence of two discrete acts, one of confinement and one of killing, to establish liability under s. 231(5) of the Code. See R. v. Kimberley, supra, at para. 108.

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.

Those comments apply equally to this case.

[60] Smith, 2015 ONCA 83, is another example illustrating a discrete confinement, which justified elevating a murder from second- to first-degree. During a robbery of a store, the accused grabbed the store clerk in a “sleeper hold,” dragged her to a downstairs area, and strangled and beat her to death. The Court held that the elevation of murder to first-degree murder where a killing occurs in the course of a forcible confinement, requires that the confinement be a distinct act from the killing. It was open to the jury to find that putting the deceased in a “sleeper hold” and dragging her downstairs was a distinct confinement and not part of a single act of killing her.

[61] In this case, at its highest, Lee and MacIsaac, with murderous intent, chased and tackled Isaiah to stab him. The stabbing was synonymous with the tackle. There was no discrete, separate forcible confinement. As in Sandhu, any confinement that momentarily occurred during the tackle was inherent in the killing that took place. To repeat what Justice Doherty wrote in Kimberley:

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.

[62] In conclusion, this killing is a tragedy of enormous consequence. It caused the senseless loss of a young man who was only 15 years old and had his whole life in front of him. He leaves a grieving mother whose pain has been on display every day during this hearing. The two accused will be committed to stand trial on charges of second-degree murder.

Released: March 26, 2019

Signed: “Justice Borenstein”