PRE-CHARGE CONFERENCE RULINGS

WITH RESPECT TO CONSTRUCTIVE FIRST DEGREE MURDER AND VETROVEC WARNING

COURT FILE NO.: 14-4348 DATE: 2016-07-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN -and- DELLEN MILLARD Accused -and- MARK SMICH Accused

COUNSEL: A. Leitch, C. Fraser and B. Moodie, for the Crown R. Pillay and N. Sachak on behalf of D. Millard T. Dungey and J. Trehearne on behalf of M. Smich

HEARD: May 27 & June 3, 2016

A. J. Goodman J.:

Introduction:

[1] During the course of the multi-day pre-charge conference, several oral rulings were rendered with respect to inclusions, exclusions or modifications to the final charge to the jury.

[2] Two such rulings included the Crown’s request to include a route of liability under s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46, and Mr. Smich’s request to charge the jury with respect to certain witnesses in accordance with the principles in Vetrovec v. The Queen, [1982] 1 S.C.R. 811. Both requests were denied with written reasons to follow. These are my Reasons.

Constructive First Degree Murder s. 231(5)(e)

Issue:

[3] Is constructive murder pursuant to s. 231(5)(e) of the Code available to the jury for their consideration as a route of liability for first degree murder in this case?

Positions of the Parties:

[4] At the outset of the pre-charge conference, I informed Crown counsel that I was disinclined to advance the route of liability per s. 231(5)(e) of the Code. The Crown asserts that while there is no direct evidence on point, reasonable inferences can be drawn from the evidence permitting the jury to conclude that an unlawful confinement occurred that gives rise to a route of liability for first degree murder pursuant to s. 231(5)(e) of the Code.

[5] Both Mr. Millard and Mr. Smich disagree with the Crown’s assertions. They submit that there is no evidence to support an unlawful confinement that would permit the jury to conclude or consider that constructive first degree murder has been made out.

Legal Principles:

[6] The authorities establish that if for any significant period of time a person was coercively restrained or directed contrary to his/her wishes, so that s/he could not move about according to his/her own inclination and desire, there is unlawful confinement.

[7] In R. v. Gratton, 1985 CarswellOnt 1386 (C.A.), at paras. 29-30, Cory J.A. (as he then was), accepted the following definition of unlawful confinement except for the word “total”, which he stated should be deleted:

Without attempting to define the interpretative limits of the term, I have concluded that a total 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, is required in order to constitute forcible or unlawful confinement. Such confinement need not be by way of physical application of bindings. [1]

[8] The offence of forcible confinement involves physical restraint on the movement of a person against his wishes, which prevents him from moving from one place to another. The mental element required is the intent to forcibly confine which can be inferred from all of the accused’s actions. If the victim accepts of his own volition a restriction on his liberty of movement, this is not a state of forcible confinement within the meaning of the Criminal Code: Tremblay, at para. 18.

[9] The Ontario Superior Court of Justice followed the Tremblay ratio in R. v. S(ML), 2014 ONSC 5157, at paras. 101 and 103:

On all of the evidence relating to this count that I have accepted I cannot find that Ms. C. was in any way forcibly made to enter Mr. S.’s car. As I have already indicated, I am persuaded by the evidence, that Ms. C. that evening entered Mr. S.’s car by mistake but nonetheless, voluntarily.

However, as was pointed out in the case of R. c. Tremblay, supra, a period of initial liberty, depending on the circumstances of the case, can develop into a situation of unlawful confinement.

[10] In R. v. Mullings, 2014 ONCA 895, 2014 CarswellOnt 17831, the appellant was convicted of first degree murder. The appellant tried to steal the victim’s car from the driveway. The victim tried to stop the appellant and a struggle ensued. The two men ended up in the victim’s garage, where the appellant shot the victim. The Ontario Court of Appeal, dismissing the appeal, rejected the appellant’s argument that a conviction under s. 231(5)(e) was unreasonable.

[11] In R. v. Smith, 2015 ONCA 831, 2015 CarswellOnt 18192, the appellant was convicted of first degree murder. The appellant planned to rob a store. In the course of the robbery, the appellant dragged the store clerk to the store’s basement, where the appellant strangled and beat her to death. The Ontario Court of Appeal found it was open to the jury to conclude that dragging the victim down to the store’s basement amounted to an unlawful confinement.

[12] In R. v. Browne, the accused was charged with first degree murder but applied to have the charges reduced to second degree murder. The evidence on the application was that the accused’s associate had just sold drugs to the victim while in the car the victim was driving. The accused and his associate tried to steal back the drugs from the victim and blocked him from leaving the vehicle. In the course of this the accused and the associate beat the victim to death. The Ontario Superior Court judge dismissed the accused’s application.

[13] In R. v. Beauregard, 2013 ONCJ 440, 2013 CarswellOnt 19067, the two co-accused were committed to stand trial for first degree murder. The accused Freeman and Beauregard were at a friend’s apartment with the victim, who was Freeman’s girlfriend and Beauregard’s friend. Freeman, Beauregard and the victim left the apartment and got into Freeman’s car. There was evidence that the co-accused and victim drove to a desolate area. The co-accused were trying to elicit information from the victim about a robbery, and they held the accused at gunpoint in an effort to obtain that information. The victim was found dead of a gunshot wound.

[14] A discussion of unlawful confinement in the context of s. 231(5)(e) of the Code cannot be left without reference to the leading case of R. v. Pritchard, [2008] 3 S.C.R. 195. The appellant and an associate, Wall, planned for months to rob marijuana from a drug dealer’s farm. During the course of the robbery the drug dealer’s wife was killed. There was evidence the appellant planned to use a gun in the course of the robbery to secure cooperation. Further there was evidence the victim cooperated in disclosing the location of the marijuana stash and transporting the marijuana to the robbers’ car.

[15] In dismissing the appeal, at paras. 21 and 22, the Supreme Court of Canada held:

Conduct amounting to a violation of s. 279(2) (unlawful confinement) is one of the “aggravating circumstances” enumerated in s. 231(5). Robbery (s. 343) is not. … The appellant argues that “[t]he confinement inherent in any robbery is often minimal and is intended only to overcome potential resistance to theft. The definition of confinement requiring a degree of forcible restraint or domination beyond what is incidental to any robbery is preferable”, he says, “because it requires the trier of fact to consider the degree and nature of the confinement during a robbery to decide whether the robber actually confined the victim for a purpose other than facilitating theft. …”

If the appellant’s argument is correct an accused would be better off having forcibly confined, robbed and killed his victim than if he had just forcibly confined and killed her. Such an outcome would defeat rather than promote Parliament’s intention because it would treat a criminal wrong additional to those listed in s. 231(5) as mitigating its effect.

[16] The Supreme Court of Canada found that a person could be convicted of first degree murder under s. 231(5)(e) even if the confinement (and subsequent death) occurred during the course of a robbery. The Supreme Court found that the relevant question was not whether the confinement was distinct from the robbery, but whether the confinement was distinct and independent from the killing: at para. 27. Further, proof of robbery does not by itself trigger s. 231(5)(e), but nor does proof of robbery bar or alter s. 231(5)(e)’s application: para. 28. Therefore, second degree murder will be elevated to first degree murder where the murder and the unlawful confinement are linked causally and temporally rendering the entire course of conduct one transaction: para. 35. Various provincial appeal courts have consistently applied and followed Pritchard: See R. c. Grey, 2010 QCCA 1776, 2010 CarswelQue 15563; R. v. Parris, 2013 ONCA 515, 2013 CarswellOnt 11065; R. v. White, 2014 ONCA 64, 2014 CarswellOnt 742; R. v. Johnstone, 2014 ONCA 504; R. v. A. (M.A.), 2014 ABCA 52, 2014 CarswellAlta 160.

[17] Of note, the case of R. v. Menard, 2009 BCCA 462, 2009 CarswellBC 2889; provides a useful interpretation of Pritchard. The decision establishes, or clarifies, a person cannot be convicted of first degree murder under s. 231(5)(e) when the act of killing subsumes the confinement. In Menard, the British Columbia Court of Appeal stated at para. 24:

Kimberley and Pritchard establish, in essence, two requirements for unlawful confinement as an underlying offence: (1) that the distinct act of confinement and the distinct act of killing must be sufficiently close in time to be part of the “same transaction or series of events” but (2) that they cannot be so closely connected that they are coextensive, that the confinement is consumed in the killing, that they are one and the same. It is essential that both requirements be met to meet s. 231(5)(e).

[18] The British Columbia Court of Appeal ordered a new trial because they were “unable to see any evidence on which a properly instructed jury could reasonably find two distinct and independent acts, such that one could properly be labeled a confinement and the other a killing”: at para. 28. In that case the appellant went to the victim’s house to purchase crack cocaine. The evidence is that there was an altercation during the drug purchase and that this altercation resulted in the victim’s death. The cause of death was strangulation by ligature.

[19] Although not at issue on the appeal, the Ontario Court of Appeal in Parris, at para. 53, agreed with the principle that the confinement and the killing must be distinct acts to be guilty under s. 231(5)(e):

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. J. (J.) (2002), 166 C.C.C. (3d) 44 (Ont. C.A.), 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.

[20] In White, a jury convicted the accused of first degree murder. White and three friends saw another person (the victim) walking down the street. White and his friends decided to rob the victim. They followed the victim. They chased the victim and caught him. One of the friends wrapped the victim in a bear hug, and then White stabbed him twice. The victim died from the stab wounds. The Crown alleged that prior to the stabbing, White and his friends had caught the victim and tried to rob him. In this altercation, White sliced the victim’s finger. The victim escaped from this altercation, but was then apprehended again soon after when the fatal wounds were inflicted.

[21] Among other grounds in the appeal, White argued the trial judge erred in leaving with the jury unlawful confinement as basis for finding first degree murder and also erred in his instruction to the jury on that issue. The Court of Appeal dismissed the appeal, and in quoting Watt J.A. from Parris, at paras. 51-53; noting that in “the ‘same transaction’ requirement, … 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”.: at para. 54.

Analysis:

[22] As I read Pritchard and its progeny, the cases stand at least – in part – for the proposition that it is unnecessary to instruct a jury that they must distinguish between the offences of robbery and unlawful confinement when deciding a charge of constructive first degree murder arising from an unlawful confinement alleged to have occurred during a robbery-murder or attempted robbery-murder. Rather, the issues to be determined under s. 231(5)(e) are: i) whether an actual or attempted unlawful confinement took place; and ii) if it did, whether it was distinct from the killing.” See Johnstone; R. v. Tomlinson.

[23] Although the predicate offence – unlawful confinement – must be distinct from the killing, the murder and unlawful confinement still must be linked together, both temporarily and causally, in circumstances that make the entire course of conduct a single transaction: Pritchard, at para. 35. The essential temporal-causal connection requirement is established where the unlawful confinement creates a “continuing illegal domination of the victim” that provides an accused with a position of power that he or she chooses to exploit to murder the victim: Pritchard, at para. 35.”

[24] Although every robbery involves an element of violence or threatened violence, the level of violence does not always occasion confinement of the significant duration required to satisfy the test. The authorities provide that not all robberies involve domination of the victim. Thus, not all robbery-murders will satisfy s. 231(5)(e).

[25] As stated, even a confinement which satisfies s. 279(2) will not trigger s. 231(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), 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 the jury is satisfied that the murder was committed in the course of that confinement such that the series of events may be characterized as a “single transaction” the requirements of s. 231(5)(e) are met.”

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

[27] The phrase “any significant period of time” appears in connection with the description of the unlawful confinement component of s. 231(5)(e) in paragraph 24 of Pritchard. When read together with other portions of the same judgment, it seems clear that “significant” is used synonymously with confinement not limited to what was integral to the particular act of killing. Neither R. v. Harbottle, [1993] 3 S.C.R. 306, nor Pritchard requires the inclusion of “significant” or its functional equivalent for the purpose of jury instructions under s. 231(5)(e). Indeed, to some it may seem anomalous to include such wording when the predicate offence requirement can be satisfied by the preliminary crime of attempted unlawful confinement where no actual confinement would occur.

[28] Therefore, it seems to me that as a starting premise, a person who initially voluntarily enters a motor vehicle is not unlawfully confined because a person who consents to defacto confinement is not unlawfully confined.

[29] The Crown submits that various inferences can be drawn that Mr. Bosma was unlawfully confined on the evidence leading up to the test drive along with all of the evidence following the parties’ departure from the Bosma residence that can arouse the application of s. 231(5)(e) of the Code. With respect, I must disagree.

[30] To address this question, it is important to consider whether or not there was any fraud on the accused’s part that vitiates Mr. Bosma’s consent, or whether Mr. Bosma initially consented to confinement but, due to a change in circumstances, is subsequently unlawfully confined.

[31] While the Crown submits that there was subterfuge and deceit on behalf of one or both accused to lure or cajole Mr. Bosma into the truck for the test drive with ulterior objectives, I am persuaded that this argument is based on supposition and the evidence falls short on establishing this point.

[32] Indeed, suspicions may have been raised, however, the evidence in this case demonstrates that Mr. Bosma voluntarily and willingly entered into his truck in order to conduct a test drive with the two accused. There is no air of reality to any other evidence to suggest otherwise.

[33] There is no doubt that a person who is seated in a moving truck is factually constrained from leaving the vehicle. However, in my opinion, that is not the legal test. Not every killing in the course of operating a moving motor vehicle invokes s. 231(5)(e) of the Code, without something more to summons the criteria required to raise the classification of the murder to first degree. Clearly Parliament did not intend to suggest that any killing occurring within or in the course of operating a motor vehicle per se, can be construed as constructive first degree murder.

[34] Clearly, the subsequent events that occurred inside the Dodge pickup truck are for the most part unknown or unascertained, even at this late stage of trial. While all of the parties have their various theories and propositions to advance to the jury, the only direct evidence on this fundamental issue comes from Mr. Smich, who categorically denied that he was present in the pickup truck at the time leading up to and at the moment of the killing. Mr. Smich did not acknowledge any confinement, or suggestion of physical, emotional or psychological restraint preyed upon the deceased at any time while in his presence. There is no direct or circumstantial evidence of what actually occurred in the moments leading up to the killing of Mr. Bosma in the pickup truck, nor does the evidence provide for an air of reality supporting reasonable inferences of a unlawful confinement in law, based on the principles arising from the jurisprudence.

[35] While the Crown is free to advance a theory based on the evidence at trial, the suggestion that there was some trepidation about Mr. Bosma being lured into the truck at the moment of his entry that can give rise to a subsequent act of unlawful confinement as distinct from the actual killing itself is unascertained and is merely conjecture. There is no air of reality to permit the Crown to advance that route of liability for first degree murder.

Conclusion:

[36] The Crown’s application to have the jury consider constructive murder as a route of liability to first degree pursuant to s. 231(5)(e) of the Code and the jurisprudence does not arise with the evidence adduced in this case. The application is denied.

Vetrovec Warning

Issue:

[37] Is a Vetrovec warning with regards to certain Crown witnesses required in this case?

Positions of the Parties:

[38] Mr. Smich urges the Court to provide a Vetrovec warning with respect to certain enumerated Crown witnesses, including; Ms. Noudga, Mr. Daly, Mr. Michalski, Mr. Hagerman, Ms. Meneses and Mr. Schlatman.

[39] Mr. Smich submits that these witnesses, to varying degrees, admitting lying to the police, withheld information, provided internally and externally inconsistent testimony and their evidence is wholly untrustworthy. All of these considerations mandate that that the jury be informed about the dangers in accepting their testimony without confirmatory evidence.

[40] The Crown and Mr. Millard both oppose any Vetrovec warning be included in the charge and submit that the cautions raised in the draft charge are sufficient in balancing the interests of all parties.

Analysis:

[41] The witness’s credibility and the importance of the evidence to the Crown’s case are the two main factors to consider when deciding when to give a Vetrovec warning.

[42] Although generally a trial judge’s decision whether to give a Vetrovec caution is a matter of discretion, rather than a duty, and is generally owed significant deference by appellate courts, in some circumstances a Vetrovec caution will be mandatory. Whether a Vetrovec warning is mandatory depends on two factors: ‘the witness’s credibility, and the importance of the witness’s testimony to the Crown’s case: R. v. Moffitt, 2015 ONCA 412, at para. 75 (leave to appeal refused, 2016 CarswellOnt 3757 (S.C.C.); R. v. Carroll, 2014 ONCA 2, at para. 61, R. v. Brooks, [2000] 1 S.C.R. 237 at para. 2.

[43] In R. v. Khela, [2009] 1 S.C.R. 104, at paras. 35-36 and 28, the Supreme Court of Canada endorsed the statement in R. v. Brooks, (2000), 141 C.C.C. (3d) 32 (S.C.C.), that credibility of the witness and the importance of the witness to the Crown’s case are the key considerations in deciding if a Vetrovec warning should be given. No category of witness is exempt from being subject to a Vetrovec caution. At para. 31, the Supreme Court stated:

This Court, in Vetrovec, changed the law in relation to unsavoury witness warnings in two important ways. First, the Court held that trial judges, rather than attempting to “pigeonhole” witnesses as “accomplices”, ought instead to consider all of the factors that might impair their credibility and decide on that basis whether a special instruction is necessary.

[44] Clearly, I have discretion whether to give the Vetrovec warning and as to the nature and extent of the warning. After all, the jurisprudence endorses the fact that, as trial judge, I am an eyewitness to the testimony of the witness and the “temperature” of the trial proceedings: Carroll, at para. 60. As such, it falls to me to decide whether the charge is to be given at all: R. v. Bevan and Griffith (1993), [1993] 2 S.C.R. 599, 82 C.C.C. (3d) 310, at 326-27 (S.C.C.); R. v. Armstrong (2003), 179 C.C.C. (3d) 37 (Ont. C.A.), leave to appeal dismissed, [2003] S.C.C.A. No. 554 (S.C.C.)

[45] I observe that a Vetrovec warning is not made mandatory simply because the complainant’s evidence was essential to the Crown’s case: R. v. Boone, 2016 ONCA 227, at para. 52. Even the prior perjury of an essential Crown witness has been held not to mandate a Vetrovec warning: R. v. Landry (2003), 2003 NSCA 44, 174 C.C.C. (3d) 326 (N.S. C.A.).

[46] Vetrovec warnings are not restricted to cases of traditional “unsavoury witnesses”. As observed by the Manitoba Court of Appeal in R. v. Fatunmbi, 2014 MBCA 53, 310 C.C.C. (3d) 93, at paras. 36 and 39, (leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 366):

[I]nconsistencies in a witness’s evidence may attract a cautionary warning even if the witness does not fit the traditional definition of an unsavoury witness, but a warning is not required in every case where there are inconsistencies. If that were the case, almost every witness would attract a warning, as defence counsel can usually find some inconsistencies in a witness’s evidence, especially if the witness has given one or more police statements and then testified in an earlier preliminary inquiry or other proceeding.

[47] I am mindful that I must consider not only the degree to which credibility or trustworthiness of a witness’ testimony is a concern, but also the nature of the particular credibility problems and whether lay members of the jury are adequately equipped to assess the witness’s credibility. According to Carroll, at para. 78, “[t]he rationale that underpins a Vetrovec caution originates in the concern that, for certain types of witnesses, lay members of the jury simply lack the critical experience to adequately gauge the credibility of these types of witnesses and the reliability of their evidence”.

[48] None of the impugned witnesses fall under the traditional unsavoury character class of witness. That said, I am reminded that this does not foreclose the application of a Vetrovec warning in the appropriate circumstances.

[49] While there may be internal and external inconsistencies, mendacity and other factors reflecting a particular specified witness’ veracity in this case, along with the other concerns raised by Ms. Trehearne regarding the various witnesses’ misstatements made in the past or latent bias; in my opinion, there is no reason to think that this jury would not be capable of taking these considerations into account given my overall instructions on credibility and reliability of evidence as well as the position of the defence in that respect.

[50] In my overall assessment, I am not persuaded that a Vetrovec warning is required or mandated by the witnesses’ evidence including the complaint about their level of untrustworthiness raised by Ms. Trehearne. While a Vetrovec warning may be mandatory if the concern over the credibility of the witness and the importance of the evidence are great, in my opinion, there is no such requirement here with these specific Crown witnesses.

[51] Moreover, it is settled law that a jury need not be specifically told in the charge that it would be “dangerous” to rely on the unconfirmed evidence of the witness. Words in the context of the charge taken as a whole that convey the dangerousness and the need for caution will suffice: R. v. Brown (2005), 196 C.C.C. (3d) 140, at 144 (Ont. C.A.), R. v. Chenier and Farley (2006), 205 C.C.C. (3d) 333, at 347-9 (Ont. C.A.).

[52] I am of the view that the overall tenor of my charge along with the specific instructions or cautions to the jury in respect of certain witness’ testimony, as provided to the parties in my draft charge, are equal to the task of addressing the concerns raised by Mr. Smich.

Other issue:

[53] In cases such as we have here, involving co-accused and cut-throat defences, whereby one accused chooses to testify while the other was disinclined to do so, it is conceded that one co-accused is not entitled to a full Vetrovec warning respecting the other co-accused. However, Mr. Pillay, on behalf of Mr. Millard requests a caution to the jury with regards to Mr. Smich’s testimony as it pertained to his client.

[54] In R. v. Pollock, [2004] O.J. No. 2652 (C.A.), the Ontario Court of Appeal provided some direction to trial judges in this type of situation whereby the jurist should indicate that the position of accused A is that accused B is disreputable and unworthy of belief insofar as B implicates A. At paras. 163-166, the Ontario Court of Appeal stated:

… Pollock submits that the trial judge erred in refusing to give a Vetrovec warning in relation to Morrisson’s evidence insofar as it implicated Pollock in the offences …

… Pollock submits that he was therefore entitled to a Vetrovec warning at least in respect of that part of Morrisson’s evidence implicating him in crimes.

… to give the jury a full Vetrovec warning, including a warning that it was dangerous to act on Morrisson’s evidence insofar as it implicated Pollock, would tip the [fair trial] balance to far against Morrisson

On the other hand, Pollock was entitled to have his position fairly put to the jury that Morrisson was a thoroughly unreliable witness whose evidence should therefore not be relied upon.

[55] Accordingly, the jury will be so advised with respect to Mr. Smich’s testimony as it tends to implicate Mr. Millard only where it arises in support of the prosecution’s case against Mr. Millard.

Conclusion:

[56] Mr. Smich’s request to charge the jury with the Vetrovec cautions with regards to certain specific enumerated witnesses is denied.

A. J. GOODMAN, J.

Released: July 20, 2016

COURT FILE NO.: 14-4348 DATE: 2016-07-20

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN -and- DELLEN MILLARD MARK SMICH

PRE-CHARGE CONFERENCE RULINGS WITH RESPECT TO CONSTRUCTIVE FIRST DEFREE MURDER, AND VETROVEC WARNING

A. J. GOODMAN, J.

Released: July 20, 2016

Footnote:

[1] This definition has also been quoted with approval in R. c. Tremblay, 1997 CarswellQue 4689 (C.A.), at paras. 12-14, and R. v. Niedermier, 2005 BCCA 15, at paras. 44-45.