ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. Hall, 2015 ONSC 3276
COURT FILE NO.: 4052/13
DATE: 2015/05/22
B E T W E E N:
Her Majesty the Queen
Graeme Leach and Andrew Brown, for the Crown
- and -
Jeremy Hall
Dirk Derstine and
Stephanie DiGiuseppe,
for the Accused
Accused
HEARD: May 20 & 21, 2015
THE HONOURABLE JUSTICE J. R. HENDERSON
DECISION ON MOTION FOR DIRECTED VERDICT
Introduction
[1] The accused brings this motion at the end of the Crown’s case for a directed verdict of acquittal on this offence, and on the included offence of manslaughter.
[2] Jeremy Hall (“Hall”) is charged with the second degree murder of Kelvin Sawa (“Sawa”). At the relevant time Hall and Sawa were both inmates who were incarcerated in the maximum security area known as 2-Wing at the Niagara Detention Centre (“NDC”). It is alleged that Hall caused Sawa, by threats or fear of violence, to cause his own death by hanging himself with a noose in his cell on 2-Wing.
[3] The charge against Hall is pursuant to a rarely used section of the Criminal Code of Canada, namely s.222(5)(c), which reads as follows:
222.(5) A person commits culpable homicide when he causes the death of a human being,
(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death, …
[4] The other relevant sections of the Criminal Code of Canada in this case are the following:
- 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;
And:
- Culpable homicide that is not murder or infanticide is manslaughter.
[5] I accept that manslaughter is an included offence in this proceeding. If the Crown proves beyond a reasonable doubt the elements of the offence as set out in s.222(5)(c), then the offence of manslaughter has been proved. If, in addition, the Crown proves the intention element as set out in s.229(a)(i) or (ii), the offence of second degree murder has been proved.
[6] It is the defence position that there is not sufficient evidence before the court upon which a reasonable jury properly instructed could convict the accused of either manslaughter or second degree murder. Therefore, defence counsel requests a directed verdict of acquittal.
[7] The Crown submits that there is sufficient evidence on all elements of the offences, and that the accused’s motion should be dismissed. I note that the Crown relies on both direct evidence and on inferences that the Crown suggests should be drawn from the circumstantial evidence presented in this case.
[8] There is a further complication in this case because of the fact that there is very little jurisprudence regarding s.222(5)(c). Consequently, the Crown and defence counsel disagree as to the basic elements of the offence.
[9] Accordingly, I will analyze this motion for a directed verdict in the following manner: (1) I will determine the elements of the offence pursuant to the provisions of s.222(5)(c) and s.229(a)(i) and (ii); (2) I will review the test for a directed verdict of acquittal; and (3) I will analyze the evidence that is before the court and determine if it is sufficient for the case to go to the jury.
The Elements of the Offence
[10] I start my analysis of the elements of the offence by dealing with the elements of manslaughter (i.e. culpable homicide that is not murder) as described in s.222(5)(c).
[11] The first element of the offence is that the deceased Sawa did “anything that causes his death”. In the present case there is evidence that one of the inmates had braided torn strips of bed sheets together to form a rope; that Hall tied the rope into a noose; and that the noose was delivered to Sawa’s cell on 2-Wing. There is further evidence that Sawa used that noose to hang himself from a metal bedframe while Sawa was locked in his cell.
[12] Thus, there is a strong evidentiary foundation to prove that Sawa committed suicide, and thereby caused his own death. Therefore, for the rest of this analysis I will replace the phrase “do anything that causes his death” with the phrase “commit suicide”.
[13] The next element of the offence is that there must be “threats or fear of violence”. I note that “deception” is not alleged in this case. Neither “threats” nor “fear of violence” is defined in this section of the Criminal Code of Canada. I further note that making a threat and fearing violence are two entirely different concepts. The first, making a threat, considers the offence from the accused’s perspective, and the second, fearing violence, considers the offence from the victim’s perspective.
[14] Regarding the “threat” I find that in order for a threat to be a criminal offence, there must be some unlawfulness or moral culpability to the threat. A benign threat or a threat to do something lawful cannot be a criminal offence. Thus, there must be both an actus reus and a mens rea element to making a threat.
[15] In defining the elements of making a threat I am prepared to use the caselaw regarding threats as developed under the criminal harassment and the uttering threats sections of the Criminal Code. In particular I rely upon the decision of R. v. Benjamin, 2010 ONSC 5799.
[16] Therefore, I find that in order to prove a threat under s.222(5)(c), the Crown must prove, (1) that Hall did something by words, gesture, or conduct to communicate his intention to cause physical harm or death to Sawa, and (2) that Hall did so with the intention that it intimidate, coerce, or frighten Sawa. I acknowledge that a threat may be nonverbal, and that it must be considered objectively in the circumstances in which the threat was made.
[17] Regarding the phrase “fear of violence”, again there must be both an actus reus and a mens rea element. Furthermore, there is an additional aspect to “fear of violence” as that phrase certainly contemplates a reaction by the victim, Sawa in this case, to the conduct of the accused.
[18] Accordingly, I find that in order for the Crown to prove “fear of violence” the Crown must prove:
(1) That Hall did something by words, gesture, or conduct to cause Sawa to fear for his safety, and
(2) That Hall did so with the intention of causing Sawa to fear for his safety, and
(3) What Hall did caused Sawa subjectively to fear for his safety, and that a reasonable person in the position of Sawa would objectively fear for his safety.
[19] The next element of the offence is causation. In that regard there are two causal connections described in s.222(5)(c). The first causal connection that the Crown must establish is that Sawa did something that causes his death. As I indicated earlier, there is a strong evidentiary foundation on this point in this case, and therefore I do not intend to deal with it any further in this decision.
[20] The second causal connection that the Crown must prove will arise only after the Crown has established a threat or fear of violence as aforementioned. In this case, in order to prove causation the Crown must prove that the threat or fear of violence caused Sawa to commit suicide.
[21] There are two components to causation; factual causation and legal causation. See the cases of R. v. Nette (2001), 2001 SCC 78, 158 C.C.C. (3d) 486, at paras. 43-73, R. v. J.S.R., 2008 ONCA 544 at paras. 13-17, and R. v. Maybin, 2012 SCC 24, [2012] 2 S.C.R. 30 at paras. 13-29.
[22] Pursuant to the first component, factual causation, in the context of the present case, the Crown must prove that “but for” Hall’s threat or fear of violence Sawa would not have committed suicide.
[23] If the Crown is able to prove factual causation, then the Crown must also prove the second component, legal causation. I accept that the best way to express the second component in the current state of the law, in the context of the present case, is that the Crown must prove that Hall’s threat or fear of violence was a significant contributing cause of Sawa committing suicide. See Nette at para 71, Maybin at para. 28, and J.S.R. at para. 18.
[24] Furthermore, regarding causation, in the present case defence counsel raises the issue of an intervening act or acts. Counsel submits that whatever threat was made by Hall or whatever fear was instilled in Sawa by Hall, Hall’s interaction with Sawa was minimal for a period of close to 60 minutes prior to Sawa hanging himself. Rather, the accused submits that there were several other inmates who were assaulting and tormenting Sawa over the final hour of his life, and that the acts of those inmates broke the chain of causation that might otherwise connect Hall’s acts with Sawa’s death.
[25] In the Maybin case at para. 23 Karakatsanis J. adopted a statement made by Cromwell J.A. in the case of R. v. Tower, 2008 NSCA 3, at para. 25, as follows:
The law recognizes that other causes may intervene to break the chain of causation between the accused’s acts and the death. This is the concept of an intervening cause, that some new event or events result in the accused’s actions not being a significant contributing cause of death.
[26] Further, in the Maybin case at para. 30 Karakatsanis J. wrote:
An intervening act that is reasonably foreseeable will usually not break or rupture the chain of causation so as to relieve the offender of legal responsibility for the unintended result. This approach posits that an accused who undertakes a dangerous act, and in so doing contributes to a death, should bear the risk that other foreseeable … acts may intervene and contribute to that death.
[27] Accordingly, I find that in the present case the Crown must prove beyond a reasonable doubt that there was a chain of causation, both factually and legally, from Hall’s threat or fear of violence, as those terms are defined above, to Sawa’s suicide, and that chain is not broken by an independent intervening act that would render Hall’s contribution to the chain something less than a significant contributing cause. In the alternative, if there was an independent intervening act, the Crown must prove that the alleged intervening act was reasonably foreseeable by Hall at the time of the initial act (i.e. the threat or fear of violence) that started the chain of causation.
[28] In summary, the elements of the manslaughter offence alleged in this case are as follows:
(1) That Sawa did something that caused his own death,
(2) That Hall made a threat as defined above, or in the alternative that Hall did something that created a fear of violence in Sawa as defined above, and
(3) That the threat or fear of violence caused Sawa to commit suicide.
[29] If the Crown proves the aforementioned elements and also proves the following element:
(4) That Hall intended to cause Sawa’s death, or intended to cause Sawa bodily harm that he knows is likely to cause Sawa’s death and is reckless whether death ensues or not,
then the offence proved is that of second degree murder.
The Test for a Directed Verdict
[30] The test on a motion for a directed verdict of acquittal is the same test set out in the case of United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067. That test can be stated by the following question: Is there any evidence before the court upon which a reasonable jury properly instructed could convict the accused? If not, the jury should be directed to acquit the accused. See R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679 at para. 2.
[31] I accept that on a motion for a directed verdict, the trial judge should take the Crown’s case at its highest, without making any findings with respect to credibility or reliability of the witnesses. Further, the trial judge should consider logical inferences that may be drawn from the evidence provided those inferences do not amount to speculation.
[32] In the case of R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, the Supreme Court of Canada considered how a court should apply this test in a case in which the Crown asks a jury to draw an inference or inferences from circumstantial evidence.
[33] In the Arcuri case McLachlin C.J. wrote at para. 23 the following:
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 … 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.
[34] Also, in Arcuri, McLachlin C.J. wrote the following at para. 30:
In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Rather, the judge’s task is to determine whether, if the Crown’s evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Thus, this task of “limited weighing” never requires consideration of the inherent reliability of the evidence itself. It should be regarded, instead, as an assessment of the reasonableness of the inferences to be drawn from the circumstantial evidence.
Analysis of the Evidence
[35] This court has heard evidence from three Correctional Officers from NDC and five of the inmates who were present on 2-Wing at the relevant time. In addition, this court has viewed the video recordings from two surveillance cameras on 2-Wing. Those cameras recorded the events that occurred in the common area of 2-Wing known as the range, but the cameras did not record events that occurred in the cells, washrooms, or day rooms on 2-Wing.
[36] From these sources, I find that there is direct evidence which, if believed, would establish the following facts:
There were 33 inmates on 2-Wing who were housed in 12 cells. A locked door separated each of the cells from the range. The cell doors were periodically briefly unlocked so that an inmate could either be locked in the cell or on the range.
Hall was either the dominant inmate, or one of a small group of inmates who dominated 2-Wing. Hall, along with a few other inmates, made the rules and “ran the range”.
Inmates who were facing charges of sexual offences were looked down upon by the other inmates on 2-Wing. If it was discovered that an inmate was charged with a sexual offence, it was probable that one of the inmates who ran the range would beat him up.
At about 1:09 p.m. on August 15, 2011, Inmate Boland was informed by a correctional officer who was doing his rounds on 2-Wing that Sawa was facing charges of sexual assault and sexual interference on a minor.
By 1:10 p.m. Boland had told Hall about Sawa’s charges, and by 1:15 p.m. Hall had entered the washroom where Sawa was taking a shower and beat up Sawa.
Hall exited the washroom after approximately 35 seconds, and returned to the common area of the range where he bragged about beating up Sawa. Hall said that he “lit him up” and that he “might have broken some ribs”.
At approximately 1:18 p.m. Sawa exited the washroom and sat at a table on the range. He appeared to be injured. Other inmates testified that his face looked like popcorn and that he looked like a beaten dog.
By 1:17 p.m. Hall had left the range and entered the TV day room, out of the view of the surveillance cameras. He remained in that TV day room until approximately 1:33 p.m. when he came onto the range for about a minute and then returned to the TV day room.
During the brief time Hall was on the range Hall was described as being upset or angry because no one had told him that Sawa was HIV positive.
Within a few minutes after Sawa was assaulted in the washroom, word quickly spread among all the inmates that Sawa was facing bad charges.
Between approximately 1:20 p.m. and 1:40 p.m. Sawa sat helplessly on the range while the rest of the inmates circled him like sharks. Several inmates spat upon him. Others threw things at him. One inmate, Inmate Owl, forced him to eat a deodorant stick. During this time Hall was not participating, and was in the TV day room.
By approximately 1:29 p.m. Inmate Bisson had obtained information that the victim of Sawa’s sexual assault was a 14 year old boy. Bisson ensured that the rest of the inmates were aware of that information.
At approximately 1:40 p.m. the correctional officers came onto the range to do the rounds and open the cells. Hall came out of the TV day room, walked up to Sawa, and motioned Sawa to go into his cell. Hall followed Sawa to his cell. Thereafter, Sawa was locked into Cell #10 with Inmate O’Leary. Hall returned to the TV day room.
While Sawa was inside the cell, several inmates on the range grabbed at Sawa through the bars of Cell #10 and banged his head forcefully against the bars. During the same period of time Inmate Rose and Inmate Coelho, among others, prompted O’Leary to punch and kick Sawa inside the cell.
At approximately 1:46 p.m. Rose went into the TV day room. In the day room at that time were Inmates Hall, Rose, Owl, Earle, and possibly Coelho or Cedeno.
Inside the TV day room Hall was using a rope to work out. In the presence of the other inmates in the TV day room, Hall made the rope into a noose. Hall said that somebody should take it to Sawa, and Rose put out his hand. Hall gave the noose to Rose. At 2:02 p.m. Rose took the noose to the door of Cell #10, and put it into Sawa’s cell through the meal hatch.
Then, Rose returned to the TV day room and told the group of inmates what he had done, and they all laughed. Hall went into the games room day room and told the inmates in that room that Sawa was going to “string up”.
On the range, several inmates encouraged Sawa to hang himself. Ultimately, on his second attempt Sawa hanged himself with the noose from the metal bedframe.
When Inmate Bisson suggested that he should get help from the guards, Hall told Bisson, “Leave it. Let him hang”.
At approximately 2:14 p.m., Bisson banged on the windows to alert the guards to the problem, and the guards entered 2-Wing where they found Sawa hanging in Cell #10.
[37] The most difficult part of this motion for the Crown is to show that there is sufficient evidence upon which a jury could find that Hall made a threat or did something that created a fear of violence.
[38] Regarding the threat, there is no evidence that Hall said anything at all to Sawa on that day, let alone uttered threatening words. The Crown submits that the act of sending a noose to Sawa’s cell is a gesture that constitutes a threat. The Crown submits that the delivery of the noose in the context of this case should be interpreted as a symbolic threat of death or harm. Being presented with a noose, according to the Crown, is a symbol similar to finding a horse’s head in one’s bed, or a burning cross on one’s lawn.
[39] In my view a finding that the delivery of the noose is a threat would require a favourable inference from the jury, but it is an inference that I find is within the scope of what is reasonable. In fact, a jury of 12 citizens from different walks of life may be in the best position to determine whether the delivery of the noose is a threat in and of itself.
[40] Defence counsel also took the position that even if the noose were a threat, it was Rose, not Hall, who delivered the noose. In that respect, I find that there is sufficient evidence for a jury to find that Hall made the noose for the purpose of threatening Sawa, and Hall gave it to Rose for delivery. Therefore, I find that there is sufficient evidence from which a jury could find that Hall made a threat.
[41] Regarding the fear of violence, I find that there is ample evidence to find that Sawa feared for his own safety. His last words, according to O’Leary, were, “I’d rather hang myself than get beat everyday”. There is also ample evidence to find that objectively Sawa had reason to fear for his safety. The issue is whether Hall did something that caused Sawa to feel this way.
[42] The Crown submits that the events of that afternoon between approximately 1:10 p.m. and 2:15 p.m. should be considered as a single ongoing event. Hall did not participate in all aspects of that event, but it is submitted that all of the participants fed off of each other and Hall contributed significantly to the torment of Sawa. In particular, the Crown says that Hall’s assault on Sawa in the shower, his bragging thereafter, and the delivery of the noose all served to escalate tension and incite the inmates.
[43] The position of defence counsel is that none of Hall’s conduct could be interpreted as conduct that would instill a fear of violence in Sawa. With respect, the defence position is strong only if each of Hall’s actions is considered in isolation. That in my view would not be appropriate. If one of the elements of the offence is the creation of fear of violence, the accused’s conduct must be considered in the context of all of the other circumstances.
[44] I therefore find that it is open for the jury to find that the events of that afternoon constitute one single event of torment of Sawa. It is also open for the jury to find that Hall contributed to that single event. If that is the case, the element of fear of violence is likely proved, but the issue then becomes whether Hall’s conduct was a significant contributing cause of the fear of violence that led to Sawa’s death.
[45] Regarding causation, I accept the principle that causation, both factual and legal, is an issue that is usually best decided by a jury. In that respect I rely upon the J.S.R. case at para. 34. That principle is certainly applicable in the present case. Sawa was harassed and tormented, in part by Hall and in part by other inmates. A jury is well-equipped to decide whether or not Hall’s conduct was a significant contributing cause.
[46] In my view, the same approach should be taken with respect to determining intention. Intention is rarely proved by direct evidence. In fact a jury is usually instructed that it can determine the intention of an accused by considering what the accused did or did not do, and what the accused said or did not say. In the present case Hall’s intention is a matter for the jury to decide.
[47] Lastly, the Crown wishes to advance a theory that Hall committed this offence by aiding and abetting Rose. The only possible way in which Hall could have aided or abetted Rose is if Rose had developed the plan to deliver the noose to Sawa, and Hall had aided Rose by making the noose and giving it to him. In my view there is simply no evidence to that effect.
[48] If there had been a plan to threaten Sawa by delivering a noose, the evidence is that Hall, not Rose, was the principal in the plan, and that Rose assisted Hall. This fact is made very clear by Rose’s testimony that as he left the day room with the noose Hall told him to watch out for the cameras.
[49] Accordingly, I find that there is no evidence upon which a reasonable jury properly instructed could find that Hall aided and abetted Rose. That theory cannot go to the jury.
[50] In conclusion, the motion for a directed verdict of acquittal is dismissed. The case against Hall for second degree murder and manslaughter will go to the jury. The theory of aiding and abetting will not.
Henderson J.
Released: May 22, 2015
CITATION: R. v. Hall, 2015 ONSC 3276
COURT FILE NO.: 4052/13
DATE: 2015/05/22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
- and –
Jeremy Hall
Accused
DIRECTED VERDICT
Henderson J.
Released: May 22, 2015