ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 339/13
DATE: 2014-06-09

B E T W E E N:

Her Majesty the Queen

Mark Poland, for the Crown

• and -

Marlon Nurse and Darryl Plummer

Enzo Battigaglia, Counsel for Mr. Nurse

Margaret Bojanowska and Kate Oja, Counsel for Mr. Plummer

ENDORSEMENT

PUBLICATION BAN:

Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Coroza J.:

[1] This endorsement deals with a number of issues that were discussed at the pre-charge hearing conference held on June 6, 2014. In the interests of the orderly progress of the trial, especially since it is a jury trial, I will provide brief rulings on the issues raised by the parties.

[2] Mr. Nurse and Mr. Plummer are being tried by a jury on a charge of first-degree murder. The deceased, Devinder Kumar, was Mr. Nurse’s landlord.

[3] Mr. Kumar was found lying on the side of The Gore Road in the Town of Caledon, on November 10, 2011. He was stabbed at least 29 times in the neck, back and torso. He died of his stab wounds.

[4] Mr. Kumar was still alive when police officers and paramedics arrived on scene. He was in an area adjacent to a house that he rented out to Mr. Nurse. Mr. Nurse was present at the scene and initially treated as a material witness. Mr. Nurse was wearing coveralls. Mr. Plummer emerged from the bush area on The Gore Road about 300 meters south of Mr. Kumar’s body and was arrested at gunpoint.

[5] A knife was found in a creek behind the area of the houses. The knife has Mr. Kumar’s DNA and Mr. Plummer’s DNA.

[6] Anthony Payne, a truck driver, testified that while he was driving on The Gore Road around the time of the murder, he saw Mr. Kumar lying on the shoulder of the road with two males “hovering” around him. He then saw these two men run into the bush. One of the men was wearing coveralls.

[7] The Crown’s case on first-degree murder rests primarily on the theory that Mr. Kumar’s murder was a planned and deliberate killing. The Crown relies on a series of BBM chats between the accused outlining a scheme to rob and murder Mr. Kumar.

[8] In addition to planning and deliberation, the Crown argues that there are two other viable paths to first-degree murder in this case. The Crown submits that it is also open for the jury to convict of first-degree murder based on the following provisions of the Criminal Code:

i) Section 231(3) deemed planning and deliberation by committing a murder pursuant to an arrangement under which “anything of value” (in this case Mr. Kumar’s Range Rover SUV) is promised by one person (Mr. Nurse) to another (Mr. Plummer) as consideration for that person’s causing or assisting to cause the death of another; and

ii) Section 231(5)(e) - constructive first-degree murder by coupling the intent to kill with the commission or attempted commission of a forcible confinement (“constructive first-degree”).

[9] There is evidence that Mr. Kumar's eyeglasses were lying on top of some trim that was on the floor of Mr. Nurse’s garage. An application to exclude this evidence brought by Mr. Battigaglia was dismissed by me on June 5, 2014.

[10] Cst. Barnstaple, a forensic identification officer, testified that when he entered the garage, he noticed that there were pieces of trim on the floor and that one of the arms of the eyeglasses was actually caught between pieces of trim. He took photographs of the glasses in this state and those photographs have been shown to the jury.

[11] Cst. Barnstaple testified that these glasses were seized. Monica Kumar (the deceased’s wife) has identified eyeglasses that were seized by the police as belonging to Mr. Kumar.

[12] Cst. Barnstaple testified that it appeared that a struggle had taken place in the garage. He also testified that there was a slide mark of dust on the floor of the garage but that it was so faint that he could not take a photograph of this mark. He agreed with the suggestion put to him by the defence that there was no blood or any other obvious signs of a struggle in the garage.

[13] The Centre of Forensic Sciences (CFS) has examined the glasses and found no blood. While Mr. Kumar was lying on the road, the witnesses at the scene have all referred to the fact that there was a large amount of blood on or around Mr. Kumar.

[14] When Cst. Barnstaple arrived at the scene, Mr. Kumar had been transferred to an ambulance. Cst. Barnstaple took photographs of Mr. Kumar in the ambulance and it is obvious that Mr. Kumar had a significant amount of blood on his face and no glasses.

[15] With the assistance of an expert on coded language in relation to firearms, the jury has been shown the BBM messages between the two accused. It is open for the jury to find that the initial plan was to obtain loaded firearms to commit the robbery and murder but was changed to the use of knives when the accused could not acquire a loaded firearm.

Issue 1: Should Constructive First be left with the Jury?

[16] In order to obtain a conviction for first-degree murder based on liability proscribed by s. 231(5)(e) of the Criminal Code, the Crown must prove that:

(1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime[^1];

(2) the accused was guilty of the murder of the victim;

(3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim;

(4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and

(5) the crimes of domination and murder were part of the same transaction, that is to say, the death was caused while committing the offence.

[17] The Crown is not required to establish that the unlawful confinement occurred for the entire time the parties were together, or that there was total physical restraint.

[18] However, in order for this theory of liability to be a viable theory, in constructive first-degree cases, there is a requirement of a distinct act. In this case, the Crown must show that there was an unlawful confinement (or attempt) beyond that inherent in the act of killing[^2].

[19] An unlawful confinement means the use of physical restraint contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another[^3].

[20] Since a higher degree of legal causation is required for the additional stigma of first-degree murder, the accused must play an “essential substantial and integral part of the killing of the victim[^4]”. This requires that the accused play a “very active” role in the killing, “usually a physical role” or an “enhanced or more demanding degree of participation in the killing than a requirement of causation”[^5].

(Sections continue exactly as provided…)

Cor oza J.

DATE: June 9, 2014

Footnotes

[^1]: In this case forcible confinement.
[^2]: See R. v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.).
[^3]: R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.).
[^4]: See R. v. Harbottle, [1993] 3 S.C.R. 306.
[^5]: R. v. Parris, 2013 ONCA 515.