CITATION: R. v. Richards, 2017 ONSC 7104
COURT FILE NO.: CR-17-30000102-00M0
DATE: 20171205
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
RUPERT RICHARDS
Danielle Carbonneau, for the Crown
Paul Genua and Najma Jamaldin, for Rupert Richards
HEARD: November 24, 2017
A non-publication and non-broadcast order in this proceeding has been issued under the Criminal Code of Canada, section 539
M. DAMBROT J.:
BACKGROUND
[1] Rupert Richards is charged with the first degree murder of Surinder Parmar. He was ordered to stand trial by Downes J. on March 16, 2017 at the conclusion of a preliminary hearing. His trial is scheduled to commence in January 2018. Richards brings this application to quash the order to stand trial for first degree murder and to substitute an order that he stand trial for second degree murder.
THE EVIDENCE
[2] On November 19, 1990, the victim was working the night shift as an attendant at a Penny gas station in Toronto. At around midnight, he was stabbed to death with a knife in the service station washroom. At 1:10 a.m. on November 20, he was found lying dead on the floor in the washroom with his legs against the door.
[3] The washroom was a tiny, single use washroom where one would typically enter and lock the door. The dimensions were between six feet by six feet and six feet by eight feet. The single door opened inwards.
[4] When the deceased was found, there was a significant amount of his blood on the floor, walls and toilet. A piece of a broken tooth belonging to the deceased was on the floor, suggesting that he was subjected to violence in addition to being stabbed. The deceased suffered repeated stab wounds, consistent with the person who stabbed him having an intention to kill. The applicant’s bloody fingerprint was found on the wall, providing some evidence that he stabbed the deceased.
[5] In addition, there was urine in the toilet, the deceased’s pants were up and his zipper and belt were undone, suggesting that he had been urinating before he was killed. His wallet was in the sink with the water running. No money was found in it, or on his person. A loonie was found on the floor, covered in blood. All of this suggests he was robbed.
[6] The victim’s shirt was hiked up, his right-hand side pocket was turned out and there was no sign of blood on the lining. It could be inferred from this evidence that the robbery preceded the stabbing.
THE PRELIMINARY HEARING
[7] The sole issue at the preliminary hearing was whether there was evidence upon which a reasonable jury, properly instructed, could find that the accused committed first degree murder by causing the deceased’s death while forcibly confining him in the washroom in accordance with s. 231(5)(e) of the Criminal Code. In carefully crafted reasons, Downes J. concluded that there was.
[8] Downes J. was alive to the limitation that the requisite forcible confinement had to be other than the confinement inherent in the act of killing, or, in other words, to be part of one continuous sequence of events forming a single transaction establishing not only the killing but also the discrete criminal offence of unlawful confinement. (See R. v. Kimberley and Clancey (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18, at para. 108, leave to appeal to S.C.C. refused, [2002] S.C.C.A. No. 29.)
[9] Downes J. concluded, at para. 43 of his reasons:
In summary, the evidence would permit a reasonable jury to find the following:
(1) Mr. Parmar was in the washroom, a very small and private space. The door was closed. He was urinating.
(2) Mr. Richards entered the washroom and confronted Mr. Parmar.
(3) At that moment, Mr. Richards’ conduct amounted to an act that, “coercively restrained or directed” Mr. Parmar contrary to his wishes, so that he could not move about according to his own inclination and desire. That amounted to a discrete unlawful confinement, however brief it might have been.
(4) Mr. Richards proceeded to rob Mr. Parmar, before stabbing him to death.
(5) All of this happened in the course of a single transaction.
[10] Based on this, Downes J. stated, at para 44:
I am satisfied that there is evidence from which a jury could reasonably conclude that what occurred inside the washroom was a continuous sequence of events forming a single transaction, and that in the course of those events Mr. Parmar was forcibly confined, either at the moment Mr. Richards entered the washroom and did not leave, or in the course of a robbery that preceded his killing. On either of those scenarios, a reasonable jury, properly instructed, could find Mr. Richards guilty of first degree murder. [Emphasis added.]
THE STANDARD OF REVIEW
[11] In Skogman v. R., 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 104, Estey J. stated, for the majority:
The courts of this country have, since the judgment in Martin, supra, generally adopted the rule that a committal of an accused at a preliminary, in the absence of evidence on an essential ingredient in a charge, is a reviewable jurisdictional error. … “No evidence” on an essential element of the charge against the accused cannot amount to “sufficient evidence” under s. 475. In my view, this is the state of the law in this country on this issue.
[12] The limited scope of review of an order to stand trial was discussed more recently in R. v. Martin, 2001 CanLII 4971 (ON CA), [2001] O.J. No. 4158 (C.A.). The court stated, at para. 3:
[T]he test to be applied by a preliminary inquiry judge in determining whether the evidence is sufficient for the purpose of a committal for trial is whether there is any evidence upon which a properly instructed jury, acting reasonably, could find guilt. It is well settled that where there is a scintilla of evidence upon which the preliminary inquiry judge could conclude that the test is satisfied, a reviewing court should not intervene to quash the committal. See also R. v. Russell, 2001 SCC 53 (S.C.C.), where the Supreme Court of Canada reaffirmed the limited scope of review on certiorari to review committals for trial and reiterated that a preliminary inquiry judge’s determination of the sufficiency of evidence is entitled to the greatest deference. It is only if there is no evidence on an element of the offence that a reviewing court can vacate the committal. [Subsequent emphasis added.]
[13] As a result, I am only entitled to interfere with the order that Mr. Richards stand trial for first degree murder if there is no evidence on the record that Mr. Richards caused the deceased’s death while forcibly confining him in the washroom, and that the forcible confinement was other than the confinement inherent in the act of killing, and was part of one continuous sequence of events forming a single transaction establishing not only the killing but also the discrete criminal offence of unlawful confinement.
ANALYSIS
[14] The applicant does not dispute the conclusion of the preliminary hearing judge that the evidence would permit a reasonable jury to find that:
(1) Mr. Parmar was in the washroom, a very small and private space. The door was closed. He was urinating;
(2) Mr. Richards entered the washroom and confronted Mr. Parmar;
(3) At that moment, Mr. Parmar could not move about according to his own inclination and desire;
(4) Mr. Richards proceeded to rob Mr. Parmar, before stabbing him to death; and
(5) All of this happened in the course of a single transaction.
[15] He only argues that none of this is evidence upon which a reasonable jury, properly instructed, could find that Mr. Parmar was forcibly confined, either at the moment Mr. Richards entered the washroom and did not leave, or in the course of a robbery that preceded his killing. He makes this argument primarily on the basis of the decision of the Court of Appeal in R. v. Larcenaire (1987), 1987 CanLII 6803 (ON CA), 34 C.C.C. (3d) 548 (Ont. C.A.).
[16] In Larcenaire, on an appeal from a conviction for first degree murder, the Court of Appeal concluded that the conviction was unreasonable, set it aside and substituted a conviction for second degree murder. The deceased in Larcenaire was stabbed to death in the storage area of a convenience store located at the back of the store. The dimensions of the storage area are not mentioned in the judgment, but it was clearly not as confined a space as the washroom here. We do know that the stab wounds were inflicted about seven feet from a walk-in freezer in the northeast corner of the storage area, and that the freezer was 27 feet from a washroom in the southeast corner of the storage area. A corridor along the east wall of the storage area connected the washroom and the area where the deceased was stabbed. In addition, there was evidence that suggested that the offender entered the store intending to commit a robbery. Video footage showed the offender and the deceased going through the door leading from the front of the store to the storage area together. The offender told the police that he used the washroom in the storage area, and when he came out, he and the deceased had an altercation outside of the washroom during which he stabbed the deceased.
[17] The Crown’s theory in Larcenaire was that the offender placed a knife to the deceased’s neck near the washroom, marched him down the corridor and killed him near the north end of the corridor. The court concluded that this theory depended on speculation and conjecture. There was simply no evidence to support it. If the jury rejected the offender’s statement, they were, in the court’s words, “left with nothing more than a brutal killing that occurred in a confined space during the commission of a robbery” (p. 552).
[18] The applicant argues that Larcenaire establishes a rule of law that the fact that a killing takes place in a confined space during the commission of a robbery means the killing cannot be characterized as first degree murder by application of s. 231(5)(e), and that that rule governs here. I do not agree with the applicant’s interpretation of Larcenaire, and I fail to see how that decision assists the applicant, for the following reasons.
[19] First, the Court of Appeal set aside a conviction for first degree murder in Larcenaire on the basis that the verdict was unreasonable. However, I can only set aside the order that the applicant stand trial for first degree murder if there is a complete absence of evidence to support it. This is a much more onerous test, which I conclude has not been met.
[20] Second, every case turns on its own facts. In my view the Court of Appeal in Larcenaire quite clearly did not intend to create a rule of law that a brutal killing in a confined space in the course of robbery can never amount to first degree murder. When faced with an argument similar to the one made here in Kimberley and Clancey, Doherty J.A. stated, for the court, at para. 100:
As I read R. v. Larcenaire, supra, however, it turned entirely on the adequacy of the evidence adduced by the Crown to support its claim that the victim was unlawfully confined in the course of the events that culminated in his death. Martin J.A. accepted that a robbery victim who was forced at knifepoint from the front of a store to the back of the store would be unlawfully confined for the purposes of s. 231(5). He held, however, that the Crown’s contention that this victim was so confined rested on “speculation and conjecture”. Martin J.A. observed that the evidence showed no more than a killing “in a confined space during the robbery”.
[21] What is more, if the applicant’s interpretation of Larcenaire were correct, then it would necessarily overrule the earlier decision of the Court of Appeal in R. v. Dollan and Newstead (1982), 1982 CanLII 2006 (ON CA), 65 C.C.C. (2d) 240 (Ont. C.A.), leave to appeal refused, [1982] 1 S.C.R. vii (note). In Dollan and Newstead, the court rejected an argument that where the only unlawful confinement committed or attempted at the time of a murder is simply incidental to the commission of a robbery, first degree murder by causing the deceased’s death while forcibly confining the deceased pursuant to s. 231(5) of the Criminal Code is not established. Zuber J.A. stated, at para. 12:
With respect, I agree with these words of McFarlane J.A. [in R. v. Gourgon (1979), 1979 CanLII 4436 (BC CA), 19 C.R. (3d) 272 (B.C.C.A.)]. It is of no consequence that the unlawful confinement may be incidental to the commission of some other crime as long as there has been an unlawful confinement contrary to s. 247 [now s. 279] of the Criminal Code. The jury was correctly instructed on this issue, and on this point the appellant Dollan must fail.
[22] Returning to para. 100 of Kimberley and Clancey, Doherty J.A. also stated:
The appellants submitted that R. v. Larcenaire … had overtaken R. v. Dollan and Newstead, supra. … Martin J.A. made no reference to R. v. Dollan and Newstead, supra. I cannot think that he meant to overrule or modify that authority without making any reference to it.
[23] Finally, on this point, I note that in R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, the Supreme Court specifically agreed with the logic of Gourgon, Dollan and Kimberley and Clancey on this issue and rejected the argument that confinement inflicted for the purpose of or ancillary to the commission of another offence not enumerated in s. 231(5), such as robbery, is excluded from consideration under s. 231(5).
[24] The applicant also relies on R. v. Strong (1990), 1990 ABCA 327, 60 C.C.C. (3d) 516 (Alta. C.A.), at p. 527, where it was held that “the transitory restraint inherent in the violence or threatened violence of every robbery” could not constitute an unlawful confinement for the purposes of the constructive first degree murder provisions of the Criminal Code. To conclude otherwise, the court said, “would be to put robbery in the list of offences in s. 214(5) [now 231(5)] without expressly mentioning it.” Strong was followed in several decisions of the Quebec Court of Appeal. The applicant says that the restraint in this case was no more than transitory.
[25] In my view, even if Strong was correctly decided, it does not assist the applicant here. The evidence is open to an inference that the applicant restrained the deceased in a manner that exceeds the transitory restraint inherent in the violence in every robbery. Entering a small room armed with a knife, blocking any possibility of escape by the person in that room through the only door, and then robbing that person is not the transitory restraint that the court was referring to in Strong.
[26] In any event, this statement in Strong is not the law. In Kimberley and Clancey, Doherty J.A. specifically rejected the approach taken in Strong. He said the following about Strong, at paras. 102-05:
[102] R. v. Strong, supra, makes no reference to R. v. Gourgon, supra, or R. v. Dollan and Newstead, supra. I would not be inclined to abandon a considered decision of this court in favour of a decision of another provincial appellate court that does not address this court’s decision. More to the point, however, I do not agree with the reasoning in R. v. Strong, supra.
[103] R. v. Strong, supra, reads a limitation into the plain language of s. 231(5)(e) which is not there. Under the analysis in R. v. Strong, supra, some but not all unlawful confinements will provide a basis for categorizing murder as first degree murder. The section itself, however, contains no such limitation. It speaks of offences against s. 279. Unlawful confinement is one of the offences created by that section. There is nothing in s. 231(5)(e) which suggests that unlawful confinements that are incidental to or in furtherance of other crimes are not encompassed by the section.
[104] I also cannot agree that the absence of any reference to robbery in s. 231(5) necessitates an interpretation of s. 231(5)(e) that excludes unlawful confinements committed in the course of a robbery. Robbery is a crime against both the person and property rights of the person. The organizing principle of s. 231(5) is the recognition that murders committed in the course of the unlawful domination of the victim are particularly blameworthy, and those who commit such murders are deserving of the greater punishment imposed for first degree murder: R. v. Luxton, supra, at pp. 458-59. To the extent that the crime of robbery addresses property rights, its inclusion in s. 231(5) would be inconsistent with the underlying rationale of that section. However, to the extent that a particular robbery involves a crime of domination enumerated in s. 231(5), I see no reason why the murder which occurs in the course of that robbery becomes less blameworthy because the crime of domination was motivated by, furthered, or was otherwise incidental to a robbery.
[105] R. v. Luxton, supra, involved a murder committed in the course of a robbery. The accused hailed a cab in the downtown area and had the driver take him into the country where he robbed and murdered the driver. The judgment of the Supreme Court of Canada in R. v. Luxton, supra, was directed at the constitutionality of s. 231(5) and not the meaning of unlawful confinement. The majority decision of Lamer C.J.C., however, impliedly rejects the contention that unlawful confinements committed in the course of a robbery cannot support a conviction under s. 231(5)(e).
[27] Finally, in Pritchard, at paras. 21-28, the Supreme Court rejected the theory that seemed to arise from Strong that the presence of robbery has an immunizing effect on liability for first degree murder under s. 231(5)(e). Binnie J. made clear that there is no requirement that there be evidence of unlawful confinement independent of the robbery for s. 231(5) to be invoked. Such an approach would result in accused persons being better off if they confined, robbed and killed their victims than if they just confined and killed them. As he put it in para. 27, “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” [emphasis in original].
[28] Binnie J. further explained that since not all robberies involve domination of the victim, then not all robberies will satisfy s. 231(5)(e). Although every robbery involves an element of violence or threatened violence, the level of violence does not always occasion confinement of the duration required to satisfy s. 279(2), sometimes described as “confinement for any significant time.”
[29] The applicant argues that even if he cannot benefit from what was said about transitory restraint in Strong, nonetheless the order that he stand trial for first degree murder should be quashed because there is no evidence here that he confined the deceased for any significant time. Of course, confinement for any significant time need not be very long. For example, in R. v. White, 2014 ONCA 64, 314 O.A.C. 229, a two to three second bear hug was found to be sufficient. What matters is if the duration is long enough to involve domination of the victim, or preclude the victim from moving about according to his or her own inclination. As Durno J. stated at para. 39 in R. v. Mullings, [2005] O.J. No. 2962, which was cited with approval in Pritchard:
I am persuaded that the unlawful confinement must be for a significant period of time, albeit not a substantial period of time as submitted by the applicant at times in the oral submissions. There is overwhelming support for this conclusion: R. v. Gratton, R. v. Patterson (2003) 2003 CanLII 30300 (ON CA), 64 O.R. (3d) 275 (Ont. C.A.); R. v. Hill [2004] O.J. No. 604 (Ont. C.A.) (QL); R. v. Bisson [2004] O.J. No. 59 (Ont. C.A.) (S.C.J.) (QL); R. v. Tremblay (1997), 1997 CanLII 10526 (QC CA), 117 C.C.C. (3d) 86 (Que. C.A.).
[30] He continued, at para. 40:
How long is “significant” cannot be determined by drawing a line in the sand. In R. v. Frank [2000] M.J. No. 528, the Manitoba Court of Appeal held there was no necessity that there be evidence of a sustained confinement over an extended period of time. Rather, confinement for any period of time is unlawful confinement.
[31] Subsequently, any ambiguity in the meaning of “significant” in this context was laid to rest by Watt J.A. in R. v. Parris, 2013 ONCA 515, 309 O.A.C. 289. He stated, at para. 61:
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 Harbottle 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.
[32] In this case, there is at least some evidence that the applicant confined the deceased ancillary to a robbery for a period of time beyond what was integral to the particular act of killing, and that the robbery was distinct and independent from the act of killing, though part of a single transaction. A jury may properly infer from the evidence that: when the applicant entered the washroom and confronted the deceased, his actions prevented the deceased from moving about according to his own inclination and desire, thereby unlawfully confining him; the applicant proceeded to rob the confined deceased; and the applicant then murdered the deceased. If these findings are made, it would be open to the jury to find the applicant guilty of first degree murder.
DISPOSITION
[33] This application is dismissed.
M. DAMBROT J.
RELEASED: December 5, 2017
CITATION: R. v. Richards, 2017 ONSC 7104
COURT FILE NO.: CR-17-30000102-00M0
DATE: 20171205
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
RUPERT RICHARDS
REASONS FOR JUDGMENT
M. DAMBROT J.
RELEASED: December 5, 2017