CITATION: R. v. Trudeau, 2017 ONSC 981

COURT FILE NO.: CR 15-0016-00BR

DATE: 2017-03-20

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Tammy Trudeau Applicant

Ms. Athanas, for the Crown

Ms. Santerre, for the Applicant

HEARD in Gore Bay: February 8, 2017

BAN ON PUBLICATION PURSUANT TO S. 517 OF THE cRIMINAL cODE OF CANADA

DECISION ON CERTIORARI APPLICATION

DEL FRATE J.:

[1] The applicant Tammy Trudeau brings this application seeking to quash her committal to stand trial on first degree murder made by Justice Glaude on September 26, 2016.

Background

[2] At approximately 7:00 a.m. on May 17, 2015, an altercation involving four individuals took place on Andrew Crescent in the village of Wikwemikong. It was witnessed by Tanya Osawanamiki and Cheyenne Kitchkake.

[3] The fight involved the victim, Percy Simon (“Percy”), and the three accused, Travis Wemigwans (“Travis”), Byron Kagige (“Byron”) and Tammy Trudeau (“Tammy”).

[4] Initially, Percy and Travis were arguing with each other. At one point Travis, who was holding a beer bottle, tried unsuccessfully to hit Percy. Percy retaliated, hitting Travis, and the beer bottle fell to the ground and broke. At this time, Byron and Tammy were standing approximately two feet behind Travis.

[5] Travis tried again to hit Percy but missed. He then grabbed Percy by the shirt. Percy started pummeling Travis to the point that he rendered him unconscious.

[6] Byron became involved and he tried to kick Percy but missed. Percy tried to strike Byron but missed. When Percy fully connected, Byron was knocked unconscious as well.

[7] Percy walked away from the scene, towards a ditch near the road. When he reached the ditch he saw that Tammy was coming towards him. Percy then grabbed some rocks and threw them in the direction of Byron and Travis. As he was leaving Percy yelled “I just want to go home leave me alone please. I want to go home.”

[8] Tammy followed Percy. When she caught up to him, she attempted to strike him, but missed. She grabbed Percy by his coat and held on to him. Percy was able to remove his coat, which fell to the ground. Percy again tried to leave the area, stopping when he reached the corner to pick up a rock. Tammy ran towards him, tripped Percy causing him to fall on his back.

[9] While Percy was on the ground, Byron ran over and did a “full mount” on him, which meant he was sitting on Percy. Byron then started hitting Percy in the head. Tammy then joined the fray, leaped with both feet in the air and stomped on Percy’s head. His head bounced like a basketball. She continued to kick him several more times. During this time Byron was holding Percy down.

[10] Travis then approached Percy and Byron and pulled a knife out of his underwear. He started stabbing Percy, connecting numerous times. All the while, Byron was holding Percy to the ground and Tammy was “standing there.” Tammy did not say anything and took no further action in the assault.

[11] One of the stab wounds to the left arm, led to the exsanguination of Percy. According to Dr. Queen the exsanguination was the cause of death and none of the blows to his head or face would have caused his death.

[12] On these facts, Glaude J. committed all three accused on first-degree murder. He found that Tammy had incapacitated the deceased when she tripped him, thus permitting Byron and Travis to continue assaulting him. He also found that there was a causal and temporal connection between her actions and the eventual stabbing of Percy. He concluded that “the continued confinement of the deceased, effectively prevented him from trying to go home and presented the accused [Travis] with the opportunity, although unbeknownst to the other accused at the time, to retrieve the knife and end Mr. Simon’s life.”

Position of the applicant

[13] The applicant submits that certiorari allows review where the preliminary hearing judge acted in excess of their statutory jurisdiction: see R. v. Russell, 2001 SCC 53, [2001] 2. S.C.R. 804, at paras. 19-20.

[14] The applicant submits that Glaude J. exceeded his jurisdiction in finding that Tammy’s actions constituted “some evidence” on which a properly instructed jury could make a finding of guilt on first degree murder. The applicant relies on Russell, for the proposition that “no evidence” on an essential element of the offense cannot amount to “sufficient evidence” to commit an accused to trial, as required by to s. 548 of the Criminal Code of Canada, R.S.C. 1985, c. C-46: see para. 21.

[15] The applicant further submits that Glaude J. erred in drawing reasonable inferences on the evidence led at the preliminary. She relies the decision of Fuerst J. in R. v. Brown, 2012 ONSC 6565, which states at para. 18:

Where there are competing inferences to be drawn from circumstantial evidence, the preliminary inquiry judge does not choose among them. Only the inferences that favour the Crown are to be considered: R. v. Sazant, 2004 SCC 77. As long as there is available a reasonable inference in favour of the Crown, then the preliminary inquiry judge must draw it, regardless of its strength: R. v. Sheardown, 2010 ONSC 4235. However, “[s]uch inferences cannot be based on speculation, no matter how seemingly reasonable. If the committal of an accused on an inference or inferences that cannot be reasonably drawn from the evidence then the accused must be discharged as there would be an absence of evidence on an essential element” of the offence: Sheardown at para. 19.

[16] The applicant further submits that although the Crown sought a committal on the theory of constructive first degree murder based on the element of the forcible confinement, there was no evidence led by the Crown to prove each of the essential elements of such a theory.

[17] According to the applicant, forcible confinement involves the passage of time. Glaude J. inferred that Travis regained consciousness, proceeded into the kitchen to obtain a knife, and then returned to the scene of the altercation to inflict the fatal stabbings. This evidence was directly contradicted by the independent witness Kitchkake, who stated that Travis came to the fatal scene directly from where he had been knocked unconscious, which was close to where the altercation was taking place. It also disregarded the evidence of two independent witnesses who testified that the event happened “very fast.”

[18] This contradictory evidence should have been considered to determine if there was a sufficient passage of time to establish that forcible confinement. As such, Glaude J. misinterpreted the law on forcible confinement as enunciated by the Supreme Court of Canada in R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, and in particular para. 27, which states:

“even a confinement which satisfies section 279(2) will not trigger this section 231(5)(e) if it is consumed in the very act of killing. In order to trigger section 231(5)(e), the confinement and the murder must constitute distinct criminal act… Thus the issue under section 235(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.”

[19] If Glaude J. were to come to such conclusions, then his reasons ought to have outlined the evidence on which he relied and the application of that evidence to the law.

Position of the respondent

[20] The respondent submits that Glaude J. made no error in his committal since there was sufficient evidence on which reasonable inferences could be made that the applicant was a party to the unlawful confinement of Percy Simon prior to his murder.

[21] The respondent submits that the actions of the applicant by tripping the deceased, causing his confinement, stomping on his head, and doing nothing while the co-accuseds were continuing to assault and eventually fatally stab the deceased, could prove the essential elements of s. 229. The applicant was likely to know that such actions could cause death and she was reckless as to whether death occurred or not.

[22] The respondent also states that although Tammy may not have stabbed the deceased, she would have been a party to the offense pursuant to s. 21(1)(b) and (c) of the Criminal Code: see Dunlop and Sylvester v. The Queen, 1979 CanLII 20 (SCC), [1979] 2 S.C.R. 881, R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] 3 S.C.R. 74, and R. v. White, 2014 ONCA 64.

The law and discussion

Liability for first degree murder

[23] The respondent’s theory is based pursuant to s. 231(5)(e) of the Criminal Code, which states:

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first-degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offense under one of the following sections:

(e) section 279 (kidnapping and forcible confinement)

[24] To succeed under this section, the respondent must prove that the accused played an active role (usually a physical role) in the killing in order for their conduct to be regarded as a “substantial and integral cause” of the deceased’s death even though the conduct of another person is the effective cause of the death: see R. v. Harbottle, 1993 CanLII 71 (SCC), [1993] 3 S.C.R. 306. In Harbottle, one accused held the victim while the other accused strangled her.

[25] Unlawful confinement involves restraining a person against their wishes thereby resulting in a deprivation of liberty: see R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, at p. 723, and Pritchard, at para. 24. Furthermore, unlawful confinement may establish liability for a first degree murder either by involving the offense of unlawful confinement or the preliminary crime of attempted unlawful confinement: see R. v. White, 2014 ONCA 64, at paras. 49, 52, and 53.

[26] The respondent wishes me to accept the reasoning of White as outlined in paras. 22-25 of its factum. I recite those paragraphs:

22. The Court of Appeal for Ontario sets out the necessary nexus required between the murder and the predicate offence – that being unlawful confinement – as follows:

“…the murder and the predicate offence – unlawful confinement – 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 of requirement is established where the unlawful confinement creates a “continuing illegal domination of the victim” that provides an accused with the position of power that he or she chooses to exploit to murder the victim: Pritchard, at para. 35.” [emphasis added]

R. v. White, supra at para. 55

23. It is also important that the confinement be distinct and independent from the act of killing. A significant period of time is not required.

R. v. White, supra at paras. 57-59

24. It is with this legal framework in mind that the trial judge concluded as follows on the directed verdict application:

The trial judge ruled that the bear hug was a discrete criminal act from the killing that could support a finding of first degree murder. He pointed out that Akila [the deceased] was “running for his life, caught from behind, immobilized and essentially rendered defenceless.” He noted Pollock’s evidence that Akila’s arms were being held tightly when he was stabbed. Considered in the context, the two to three seconds that elapsed between the grabbing and the stabbing was long enough for the jury to conclude that a discrete criminal act had occurred. It was the trial judge’s view, two or three second was long enough for White “to realize that he was stabbing a person who was being dominated and was defenceless” and it was also long enough for Johnson to realize “he was dominating a person who was about to be stabbed” [emphasis added]

R. v. White, supra at paras. 91-97, 101-106

25. The Court of Appeal for Ontario agreed with the trial judge’s ruling and indicated that on the particular facts of the case, the evidence was that four young men had pursued and eventually captured Akila, which supported the elements of, at the very least, an attempted unlawful confinement. While being chased, Akila could only run down a catwalk, which was two metres wide and fenced on both sides. After Akila was pursued, Johnson caught up with him, grabbed him in a bear hug, and continued to restrain him even as he struggled to break free. The two or three seconds bear hug prior to the stabbing was the culmination of the pursuit of Akila. This prevented him from making his escaped. Based on all of the evidence, the Court found that there was evidence of unlawful confinement.

R. v. White, supra at paras. 91-97, 101-106.

[27] I accept the principles Simmons J.A. set out in White, with respect to establishing the requisite nexus between the murder and the predicate offence. What must be considered in this case is that this was not a planned and deliberate murder. Accordingly, much of this reasoning would not apply.

Liability as a party to first degree murder

[28] For a secondary party to be liable under s. 21 of the Criminal Code for first degree murder under s. 231(5)(e) of the Criminal Code, the accused must have both the requisite state of mind (i.e., foresight of the murder) and sufficient participation in the underlying offense such that the accused’s conduct constituted a “substantial and integral cause of the victim’s death”: see R. v. Ferrari, 2012 ONCA 399.

[29] As well, for the respondent Crown to be successful in such a theory, it must prove that the co-accused aided and abetted the principal offender for the purpose of murdering the victim and only if she knew that the principal offender had planned to kill the victim. In other words, the co-accused must have:

1. the “objective knowledge” that the principal party intended to murder the deceased;
2. “intended to” (i.e., had the “subjective purpose”) and did in fact aid or abet the principal party in committing the murder; and
3. the “subjective knowledge” that the murder was planned and deliberate on the part of the principal party.

See R. v. McIntyre, 2012 ONCA 356, 95 C.R. (6th) 106, at para. 15.

Application to the facts

[30] At no time in his reasons does Glaude J. address the “objective knowledge and subjective purpose” that is required for a committal on first degree murder. Glaude J. may have inferred that such actions establish the requisite “objective knowledge and subjective purpose”. However, there is no evidence whatsoever on a very essential element of first degree murder on which he could base that inference.

[31] Additionally, the facts in White are radically different than the facts before me. The facts of this case show that, the applicant participated in the initial verbal altercations and attempted to strike the deceased. She remained at the scene after the co-accuseds intervened. She prevented the deceased from leaving by following him and tripping him, thus permitting Travis to confine him. Once Byron straddled the deceased, she proceeded to jump on the deceased’s head and kick him numerous times. It is undoubted that the tripping by Tammy and the mounting by Byron discreetly precedes the act of killing by stabbing imposed by Travis. However, when the final stabbings took place in the last minutes, she was “standing by” but she did nothing.

[32] This evidence discloses that the applicant had the intention of participating in an assault. Her actions intended to cause Percy serious bodily harm. While such actions could foreseeably result in death, there is no evidence whatsoever of the applicant having the knowledge that the co-accused was going to stab the deceased. In fact, when she saw the knife and the stabbing, her comment was one of shock and incredulity.

[33] Since the applicant’s conduct consisted of the tripping and assaulting the deceased, I conclude that there is no evidence of the “objective knowledge and subjective purpose” that is required for a committal on first degree murder.

[34] Furthermore, the applicant’s conduct does not make out the essential elements of forcible confinement. The applicant tripped and kicked the deceased, but it was a co-accused who sat on him. The applicant’s actions may have precipitated the forcible confinement, but I conclude that she was not involved in the unlawful confinement because she was “standing back” at the time.

[35] Having reached that conclusion, I must now consider the included offence of second degree murder:

Liability for first and second degree murder

[36] Section 231 of the Criminal Code sets out the classification of murder:

231 (1) Murder is first degree murder or second degree murder.

(7) All murder that is not first degree murder is second degree murder.

[37] It is important to note the distinction between second degree murder under s. 229(a) and constructive first degree murder under s. 231(5), because it impacts the application of the secondary party provisions. Sections 21(1)(b-c) and s. 21(2) of the Criminal Code state:

21(1) Everyone is a party to an offence who

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

[38] As stated above, the secondary party provisions only apply to a constructive first degree murder under s. 231(5) if the accused had the requisite objective knowledge and subjective intent and “death is caused by that person.” In other words, the accused must cause the victim’s death even if their actions are not the exclusive or even the predominant cause of death. On the other hand, the secondary party provisions apply to second degree murder without those additional requirements.

[39] From the actions of Byron and Travis, it was obvious that they intended to cause bodily harm and that such harm could likely cause death, whether such death ensued or not. As stated previously, Tammy did not have the “objective knowledge and subjective purpose” for first degree murder. However, observing the vicious conduct being inflicted by Byron and Travis on Percy, she should have known that bodily harm would ensue and that it could result in death. Her tripping the deceased and kicking him indicate that she participated in the fatal assault. Her continued non-innocent presence and inferred knowledge that her associate had a knife is capable of constituting the abetting of a second degree murder. Even though she was not an integral party to the ultimate stabbing she did participate pursuant to the secondary party provisions of s. 21(1)(b), s. 21(1)(c) and s. 21(2) of the Criminal Code.

Conclusion

[40] Tammy’s actions could permit an inference that the essential elements of second degree murder are present. In my view, this is the proper conclusion that ought to have been made. Accordingly, Glaude J. exceeded his jurisdiction in committing Tammy on first degree murder.

[41] In conclusion, the committal of first-degree murder is quashed and the applicant is committed to stand trial on the offence of second degree murder under s. 231 of the Criminal Code.

[42] Ordinarily, this committal order would be returned to the preliminary court judge so that the appropriate changes could be made. However, Glaude J. is presently absent from his judicial duties and there is no clear indication of when he will return. Accordingly, I revise the committal order and order that the accused Tammy Trudeau stand trial on the offence of second degree murder.

[43] Order to issue as per Reasons.

The Honourable Mr. Justice Robert G.S. Del Frate

Released: March 20, 2017

CITATION: R. v. Trudeau, 2017 ONSC 981 COURT FILE NO.: CR 15-0016-00BR DATE: 2017-03-20

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Tammy Trudeau Applicant

BAN ON PUBLICATION PURSUANT TO S. 517 OF the criminal code of canada

RULING ON CERTIORARI APPLICATION

Del Frate J.

Released: March 20, 2017