Court File and Parties

COURT FILE NO.: 17-5-354CR DATE: 20180522

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent

• and -

TRE ROBERTS-STEVENS Defendant/Applicant

COUNSEL: Rob Kenny and Jim Cruess, for the Crown Marcus Bornfreund and Norman Stanford, for the Defendant/Applicant

HEARD: May 17, 2018, at Toronto, Ontario

BEFORE: Michael G. Quigley J.

Reasons for Ruling: Re: Motion for Directed Verdict of Acquittal

[1] The accused, Tre Roberts-Stevens is charged with the second-degree murder of Daniel Lypka on April 14, 2016.

[2] In order for the jury to find the accused guilty of second-degree murder, Crown counsel must prove three essential elements beyond a reasonable doubt:

1. That Mr. Roberts-Stevens caused the death of Daniel Lypka;
2. That he caused Daniel Lypka’s death unlawfully; and
3. That Mr. Roberts-Stevens had the intent required for murder.

[3] It is only the third element of the offence that is the focus of this application.

[4] At the conclusion of the Crown's case, the accused made a motion for a directed verdict of acquittal. The motion related only to the issue of intent. The defence seeks a directed verdict of acquittal on second-degree murder, and that only the lesser offence of manslaughter be put to the jury.

The Test

[5] Where a motion for a directed verdict of acquittal is brought by the defence at the end of the Crown's case, I am required to rule before the trial continues, because the accused is entitled to know my ruling before making a decision whether or not to call evidence in defence. The motion is made at this time because the Crown’s evidence that is said to support the charge beyond a reasonable doubt is now complete.

[6] In United States of America v. Shepard[^1], the Supreme Court established the controlling test. It is the same test that is applied by a preliminary hearing judge in deciding whether to commit an accused for trial. It is:

Whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty. The "Justice" [is] required to commit an accused person for trial in any case in which there is admissible evidence which could, if it were believed, result in a conviction.

[7] A directed verdict may only be granted where there is an absence of evidence on some point that must be proven. Put affirmatively, R. v. Charemski[^2] instructs that the Crown must "produce some evidence of culpability for every essential definitional element of the crime for which the Crown has the evidential burden.”

[8] A motion for a directed verdict is only to be granted if the Crown has not done so, that is, if the Crown has failed to produce some evidence that addresses each of the elements of the offence and that can reasonably give rise to an inference of guilt.

[9] This follows because a lack of evidence relative to one essential element causes the question of the accused's guilt to become one that can be settled exclusively by legal determinations, not by questions of fact. The absence of evidence relative to an essential element of an offence is not a question of fact. It is a question of law.

[10] Importantly, the rule does not change where the Crown's case rests purely on circumstantial evidence, because in such a case, our law establishes that the jury can only find the accused guilty of the offence charged if there is no other rational explanation for the circumstantial evidence that is said to support the charge, other than that the accused committed the crime.

[11] However, where the evidence on the directed verdict motion is entirely or largely circumstantial, as it is here, if more than one inference is available from a particular fact or group of facts, the case law establishes that I am to rely upon the inferences that favour of the Crown at this mid-trial stage in determining whether or not to grant the motion. That is not the case if the matter goes to the jury, but on the directed verdict application, I must look to all of the evidence but also prefer the inferences that favour the Crown as the foundation for deciding whether the test is met.

[12] In R. v. Arcuri[^3], the Supreme Court was concerned with circumstances where the evidence on one element of the offence was entirely circumstantial, as is the element of intent in this case. In such a case, the Supreme Court instructed that the Justice should undertake a limited weighing of the evidence, including defence evidence if there is any, in order to determine whether a reasonable trier of fact could return a finding of guilt.

[13] That requires the judge to consider whether the circumstantial evidence, if believed, could support the inference that is sought in favour of the prosecution, and whether the jury could consider it to be reliable or credible. If so, then the accused is to be committed for trial. If not, he is not. In the context of this motion for a directed verdict, if so, then the question must go to the jury. If not, the application for a directed verdict of acquittal must be granted.

[14] It is an exercise of determining whether the evidence, such as it is, if believed, could support the inferences sought by the Crown in favour of the charge and leave a reasonable jury in a position where they could, properly instructed, convict the accused of the offence charged.

[15] Stated another way, the judge is to decide whether "if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt" from that evidence: see Arcuri, above, at para. 30.

[16] Given that the focus of this application is solely on one element of the offence, the question of the intent of the accused, Mr. Roberts-Stevens, in this context that question can be paraphrased as “[W]ould it be reasonable for a properly instructed jury to infer intent” from that circumstantial evidence?

Analysis

[17] The applicant’s argument is essentially twofold: (i) that the evidence of whether Mr. Tre Roberts-Stevens had the intent to murder Daniel Lypka is entirely a matter of circumstantial evidence, and (ii) that there is no evidence of what happened in the parking lot behind 32 Vanevery Street in the minute and a half from when Matt Morris walked away and Daniel Lypka drove in the driveway with his lights off until the gunshot was heard, and then a further two minutes passed before Paul Dixon came to his window of his first floor apartment overlooking the crime scene.

[18] Defence counsel argues that my focus should be on the elements of intent found in paragraph 239(1)(b) of the Code and the alleged absence of evidence in this case on either of those two components: intent to cause bodily harm and knowledge of potentially lethal consequences.

[19] I note that that the defence took that approach to the question even though the indictment reflects that the alleged crime here is not under that subsection, but rather s. 239(1)(a). However, he did so based on an argument that the intention to cause bodily harm and knowledge or recklessness that death may ensue, is subsumed within the meaning of “intent” writ large in s. 239(1)(a), and thus is the minimum threshold that must be met for the requisite mental element to be present.

[20] The two components under s. 239(1)(b) are first, the intent to cause bodily harm, and second the knowledge that the harm intended to be caused is likely to cause death. Framed this way, the question becomes could the jury find beyond a reasonable doubt that the accused had both intent to cause bodily harm to the deceased, and the knowledge that his actions would likely cause the death of the victim?

[21] Plainly, there is no direct evidence in this case of either “intent” or “knowledge”. The only evidence in this case relative to those issues is circumstantial evidence. Thus, the question becomes what inferences can reasonably be drawn and be available to the jury from the evidence at the scene and the whole of the evidence and the facts that evidence establishes? In the submission of defence counsel, there is simply not enough known to satisfy the requirement of intent in order to permit a charge of murder to be put to the jury. While there is evidence of post-offence conduct by the accused, I accept that it does not form part of the consideration on the directed verdict application, because it does not permit the jury to reason to murder rather than manslaughter.

[22] In considering the evidence that has been presented at this trial over six weeks, counsel for the defence acknowledges that there are at least sixteen (16) inferences that properly arise from the evidence present at the scene of the crime, and a further ten (10) inferences that can properly be derived from the evidence of all that transpired leading up to the date of the crime.

[23] Looking first at the inferences that can be derived from the crime scene, defence counsel enumerates them as follows:

1. Daniel Lypka was driving around with Matt Morris in his mother’s black Toyota Yaris in the hours before his death;
2. He was looking for the red Honda Civic;
3. He believed in the red Honda Civic to be in Tre Roberts-Stevens’ possession;
4. Daniel Lypka was upset;
5. He had Matt Morris arrived on the street in front of 32 Vanevery;
6. Matt Morris walked down the driveway and saw the red Honda Civic in the back parking lot with the engine running;
7. Daniel Lypka wanted to go in to retrieve his car himself, and he sent Matt Morris home;
8. Daniel Lypka had his folding knife attached to his belt;
9. That knife was found on the ground at the scene of the crime and was closed;
10. Daniel Lypka drove in the driveway to the back parking lot of 32 Vanevery with the headlights of the Yaris turned off;
11. It is a reasonable inference that Tre Roberts-Stevens was in the parking lot of 32 Vanevery when Daniel Lypka arrived there and that he was in possession of a firearm or shotgun;
12. Matt Morris heard of blast 1 1/2 minutes later;
13. The blast woke up Paul Dixon who took two minutes to get up out of bed to look through his back window to view the scene;
14. Within a couple of minutes Paul Dixon had had an exchange with Tre Roberts-Stevens who Dixon testified appeared nervous and scared. He said he was not too sure but he thought he had shot someone. Dixon said the accused asked him to call 911 and said “I don't want this guy to die;”
15. It is an available inference that Tre Roberts-Stevens did not provide any other assistance to Daniel Lypka; and finally,
16. Daniel Lypka had cocaine and alcohol in his body at the time of his death.

[24] On the basis of these inferences, defence counsel conceded that it is a reasonable inference that Tre Roberts-Stevens was in possession of an illegal firearm that caused Daniel Lypka's death, and thus that it is reasonable to infer that a properly instructed jury could find the accused guilty of “unlawful act manslaughter”.

[25] However, the defence contends that there is a lack of evidence of what happened in the brief period between the time Daniel Lypka drove into the parking lot and the time he was shot. As such, in counsel’s submission, the jury would have to speculate in order to conclude that the accused had the requisite intent and knowledge to make out a charge of second-degree murder at that time. In the defence submission, that period is a critical 1 1/2 minute inferential gap, although they contend that I can consider Paul Dixon's evidence about what Tre Roberts-Stevens said to him after the shooting, in relation to the absence of intent.

[26] There are also the inferences acknowledged by Counsel for the defence relating to the period of time leading up to April 14, 2016. Those inferences are conceded as follows:

1. Daniel Lypka had been friends for a long time and had a relationship;
2. They dealt drugs together;
3. After dating Alix Chaulk for two months, she ended the relationship with Daniel Lypka on or about Christmas Day of 2015;
4. Tre Roberts-Stevens commence the relationship with Alix Chaulk;
5. Daniel Lypka was upset with Tre Roberts-Stevens. He was enraged and took it upon himself to report the accused to the Belleville police. It is reasonable to infer that Mr. Roberts-Stevens knew that it was Daniel Lypka who had provided that information;
6. Daniel Lypka informed on Alix Chaulk, telling her mother that she was using drugs;
7. This gave rise to a confrontation between Tre Roberts-Stevens and Alix Chaulk, on the one hand, and Daniel Lypka on the other, in front of Ms. Semshysyns’ house;
8. Tre Roberts-Stevens vand Daniel Lypka were estranged for two months;
9. They then revived their relationship; but
10. In the period after the relationship revived, Daniel Lypka continuously pursued Mr. Roberts-Stevens to be paid back the money that he believed he was owed and to have his vehicle returned to him, which is conduct that the jury could infer was upsetting or inflammatory to Mr. Roberts-Stevens.

[27] These inferences provide some insight into the relationship between the accused and the deceased but, in defence counsel’s view, they do not inform the question of whether Mr. Roberts-Stevens had the requisite criminal intent and knowledge at the time that Daniel Lypka was shot. These inferences allegedly do nothing to bridge the 1 1/2 minute gap.

[28] Defence counsel noted that no evidence had been adduced that Mr. Roberts-Stevens was actually expecting Daniel Lypka to arrive in that parking lot that evening. While I accept that as true, I also took it from his submission that that was also an absence of fact, which the defence was contending supported an absence of intent to cause bodily harm and knowledge that death could result.

[29] As an example of the inferential gap that is claimed to prevent inferences of intention and knowledge from being reasonably capable of being drawn here, defence counsel referred to the decision of Ducharme J. in R. v. Munoz[^4] at paragraphs 23-31. He makes particular reference to paragraphs 29-31, equating this claimed inferential gap to the absence of linkage that Doherty J.A. refers to in United States of America v. Huynh, 2005 CanLII 34563 (ON CA), [2005] O.J. No. 4074 (C.A.).

[30] That case involved an appeal of the committal for extradition of an individual on charges of conspiracy and money laundering relating to the designated offence of trafficking in a controlled substance. The material relied on in support of the extradition justified the inference that the appellant had conspired with others to covertly transfer very large amounts of cash from the United States to Canada by concealing the money in a secret compartment fashioned in the gas tank of his vehicle. There was no direct evidence as to the source of the cash, but the Crown argued that it could be reasonably inferred that the cash was the proceeds of trafficking in a controlled substance based on: (a) the amount of cash involved; (b) the frequency with which cash was being transferred from the United States to Canada; (c) the manner of concealment of the cash suggesting a level of sophistication and a commercial operation; (d) the coded conversations of participants and their obvious concerns about surveillance; and (e) the anticipated evidence of a DEA officer that the modus operandi was consistent with the activities of drug dealers.

[31] Doherty J.A. rejected the Crown's contention. While allowing that the material identified permitted the inference that the cash was the proceeds of some illicit activity, one of which might have been drug trafficking, there was no evidence to bridge the gap between the inference that the cash was the proceeds of illicit activity and the further inference that the illicit activity was trafficking in a controlled substance. The United States had not offered any evidence as to the source of the funds. As such, he concluded that there was nothing in the material that would reasonably permit a trier of fact to infer that the cash was the proceeds of drug trafficking and not some other illicit activity.

[32] In other words, in circumstances where the designated extradition offence was trafficking in a controlled substance, but where none of the inferences advanced by the Crown to support the connection of the funds to illegal drug trafficking had an evidential foundation based on drug trafficking that was the essential element of the designated offence, as compared to some other illicit activity, it could not be reasoned that dealing in drugs was the source of those funds. This was the case even though the available inferences did support the conclusion that the cash was the product of some kind of illegal activity. In my view, however, this is very different from the inferential gap that defence counsel claims is present here.

[33] Defence counsel concluded his submissions on this directed verdict motion with the contention that the evidential gap present in the parking lot behind 32 Vanevery St. during the minute and 1/2 that transpires from the moment when Daniel Lypka drives in the driveway until the shot is fired means there is no evidence from which the inference can reasonably be drawn that Mr. Roberts-Stevens had the requisite criminal intent to cause bodily harm, and knowledge that death was likely to result at the time that Daniel Lypka was shot.

[34] Defence counsel continued that the fact that Daniel Lypka’s fatal wound was a shot that he claims was below the waist refutes an inference of knowledge of lethal consequences because, in his submission, shooting a person in the thigh would not be likely to cause death, and that knowledge has to exist at the time the shot was fired. He claims that knowledge cannot be inferred because the evidence of the pathologist establishes that the trajectory of the shot was slightly downward when it hit Mr. Lypka's body in his upper thigh, only two or 3 inches below his beltline.

[35] However, the problem with this latter contention relative to knowledge, is that it does not address the evidence which is actually present and known, and the inferences that can reasonably be drawn from that evidence, when combined with the other evidence, relative to the issue of intent and knowledge. It ignores not only the conceded inference that Tre Roberts-Stevens was in possession of an illegal firearm that caused Daniel Lypka's death, but more importantly fails to address the inferences that arise in favour of the Crown from the established fact that that the fatal wound was caused by a .12 gauge shotgun blast to the deceased’s lower midsection, only a few inches to the left of his genital area, two to three inches below his beltline, and fired from a distance of less than a foot away.

[36] Ducharme J. observes at para. 30 of Munoz that it is difficult, if not impossible, to define with any precision a bright line distinction between the drawing of reasonable inferences and mere speculation. However, I agree with that learned judge that the language of Aldisert J. in Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879 (U.S. C.A. 3rd Cir. 1981), 895, cert. denied, 454 U.S. 893 (U.S. Sup. Ct. 1981), at 895 comes as close as one could hope to get to the root of permissible inference drawing, as distinct from speculation:

The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncracies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts. As the Supreme Court has stated, "the essential requirement is that mere speculation be not allowed to do duty for probative facts after making due allowance for all reasonably possible inferences favoring the party whose case is attacked." Galloway v. United States, 319 U.S. 372, 395, 63 S. Ct. 1077, 1089, 87 L. Ed. 1458 (1943). (my emphasis)

[37] In my view, there is a logical probability that the ultimate fact of serious bodily injury with death being a potential result does follow from the preceding stated narrative and evidence of the nature of the gunshot would, its location, and the distance from which it was fired.

[38] The availability of that inference, in turn, brings me to the Crown’s submissions in its argument that the application for a directed verdict should be dismissed and that the question of murder should go to the jury. Crown counsel relies principally on the decision of the Supreme Court of Canada in R. v. Walle[^5], and the recent decision of our Court of Appeal in R. v. Kelly.[^6]

[39] Looking at Kelly first, it simply points out the error that a judge can fall into on an application for a directed verdict. After describing the judge’s task based on the rules established in Arcuri and other cases, Justice Doherty continued at para. 20 as follows:

20 The trial judge erred in approaching his task by asking what inferences could be drawn on the assumption that the jury accepted Mr. Cousins' evidence as accurate. He should have asked whether having regard to all of the evidence, including Mr. Cousins' evidence, there was a legal basis upon which a reasonable jury could find the respondent guilty of manslaughter. This analysis required a consideration of the possibilities that the jury, having regard to the blood in the back seat of the Civic, would not accept Mr. Cousins' evidence as accurate, or that despite Mr. Cousins' evidence, would conclude that the respondent was guilty of manslaughter.

[40] In this case, it seems equally possible that the jury in this can conclude, and it is conceded, that the applicant could be found guilty of manslaughter, but further, having regard to the evidence relating to the gunshot wound itself and the nature of the ammunition loaded in the firearm that he possessed, could find that those circumstances lead on their own to an inference and conclusion of intent.

[41] That conclusion is open to the jury, having regard to the decision in Walle, which bears considerable similarity to this case. In that case, the accused shot the victim in the chest with a .22 calibre rifle held at close range, about five feet away, killing him. The victim was the owner of a bar from which the accused had been ejected earlier that evening. The accused was charged with second-degree murder. At trial, he testified that his finger pulled the trigger, but that he did not mean for the gun to go off and did not want to shoot anyone. The trial judge rejected the accused's evidence that there was a miscommunication between his brain and his finger, such that he did not mean to pull the trigger (the "unintentional discharge theory"), as not credible.

[42] Considering the salient features of the evidence that could have impacted on the accused's awareness of the consequences of his actions, and applying the "common sense inference" that a sane and sober person intends the reasonable and probable consequences of his acts to the facts before him, the trial judge found that the accused had the requisite intent for second-degree murder and convicted him. The Court of Appeal of Alberta and the Supreme Court of Canada both dismissed the accused's appeals from his conviction.

[43] Importantly, at the Supreme Court, Moldaver J. addressed concerns that were raised by the Criminal Lawyers Association of Ontario who intervened on the case, about the use of the “common sense inference” and its impact on jurors. However, he rejected their contention that the “sane and sober” person “common sense instruction” should never be given to jurors where there is an air of reality to a defence contention that impairment contributed to an accused’s actions.

[44] The CLAO position, he observed, was contrary to the Court’s decision in R. v. Daley, 2007 SCC 53. He noted as well that Bastarache J. in R. v. Seymour, 1996 CanLII 201 (SCC), had reinforced the use of the “common sense inference”, while also emphasizing the importance of linking it to evidence of intoxication. Bastarache J. stated in part as follows:

It seems to me that it will be necessary to instruct the jury on the common sense inference in most cases, for it assists the jury in understanding how they are to conclude whether or not there was the necessary intent: see Seymour, at para. 19. So long as the members of the jury are instructed that they are not bound to draw this inference, particularly in light of the evidence of intoxication ... I find nothing objectionable about instructions on the common sense inference. (Moldaver J.’s emphasis)

[45] Moldaver J. continued at paras. 62-64:

62 In the face of this Court's recent pronouncement in Daley, I see no reason — and the CLA has provided none — for instituting the black and white "thou shalt never" rule the CLA is advocating for jury instructions in cases where the accused might be impaired.

63 In my view, instructing a jury on the common sense inference serves a useful purpose. It provides the jury with a marker against which to measure the rather amorphous concept of intent. A proper instruction also sounds a cautionary note. The jurors are admonished that the inference is permissive, not presumptive, and that before acting on it, they must carefully consider the evidence that points away from it. That is important. Left to its own devices, a jury might too readily turn to common sense for an answer, especially in cases like the present one, where common sense might suggest that anyone who fires a gun into a person's chest at close range would surely be aware of the consequences.

64 That said, I do not mean to suggest that the common sense inference instruction should be tied to a rigid formula. Thus, by way of example, while trial judges may choose to refer to the "sane and sober" person when instructing a jury on the common sense inference, they need not do so. A simple instruction along the lines that "a person usually knows what the predictable consequences of his or her actions are, and means to bring them about", would suffice. (See Canadian Judicial Council, Model Jury Instructions (2012) (online), at Homicide, Offence 229.a, at para. 6.)[^7]

[46] Here, the question is whether the common sense inference, to paraphrase Moldaver J. in the circumstances of this case, might suggest that anyone who fires a shotgun into a person's upper thigh at very close range of only a foot away would surely be aware of the potentially lethal consequences. If it does, on the basis of the evidence that is known, then the inference of intent is reasonably made out based on that evidence. Put differently, there would be an evidential foundation present which could support the inference of intent on the part of the accused.

[47] There may be other reasonable inferences raised by that body of evidence, but they do not enter into the calculus on a directed verdict motion. They only come into play in the jury’s final deliberations whether the offence is proven beyond a reasonable doubt. On this application, it is only the favourable inference from the Crown’s perspective that must be evaluated to ensure it has support in the evidence.

[48] The evidence advanced by the Crown as support for the reasonable inference of culpable intent on the part of the accused consists of a number of elements:

1. It is plain on the evidence that there has been animus between the accused and the deceased. The evidence establishes that they have been in conflict on a number of occasions from late 2015 until April 14, 2016;
2. Only one day before the shooting occurs in the parking lot behind 32 Vanevery St., Daniel Lypka is continuously and persistently sending text messages to Mr. Roberts-Stevens demanding that he be repaid the money that he is owed and that the accused return his car. Mr. Roberts-Stevens responds "keep bugging me and watch what I do";
3. Daniel Lypka nevertheless continues; he keeps sending those messages, actually has phone calls with the accused on the night of his death, and he goes out in his mother's car with Matt Morris looking for the vehicle;
4. The evidence shows that earlier, on April 1, the accused is talking to “AJ” in order to obtain shotgun shells that he needs and wants quickly, raising the inference that the accused intends to use those shells;
5. Defence counsel concedes that it is a reasonable inference that Tre Roberts-Stevens was in possession of an illegal firearm that caused Daniel Lypka's death, and thus that it is reasonable to infer that a properly instructed jury could find him guilty of “unlawful act manslaughter”, that is of having caused Daniel Lypka’s death unlawfully;
6. The evidence shows that the shotgun shells obtained by the accused contain the larger buckshot pellets, not birdshot. The firearms expert, Ms. Plath, testified that if you are hunting for “bigger game”, you want bigger pellets. Given that the shotgun is in his possession and is loaded with shells that he obtained, it permits the inference to be drawn that Mr. Roberts-Stevens knew that the shotgun he possesses is loaded with potentially lethal ammunition; and finally,
7. The evidence of Paul Dixon confirms that Mr. Roberts-Stevens tells him that he thinks he just shot someone and to call 911.

[49] The evidence clearly permits the inference that Mr. Roberts-Stevens not only fired a shotgun at Daniel Lypka at very close range, but also that the firearm is aimed just a couple inches below his beltline, at the bottom of his torso, where the legs join the torso. The shot is not aimed at a foot or a hand. It is aimed more or less at one side of Mr. Lypka’s core.

[50] In summary, Crown counsel argues that the application of the common sense inference in Walle to this evidentiary foundation raises a reasonable inference that Tre Roberts-Stevens had the requisite intent to murder Daniel Lypka. I agree.

[51] It may not be known what happened in the minute and a half that is unaccounted for, and it may be that there are other inferences that are raised by the existing evidence, though none was pointed out to me, or that will arise should the defence decide to call evidence, and that may point in a direction other than one of intentional murder, but at this stage of the proceedings, that it not known and that is not the test.

[52] At its core, the evidence that favours the Crowns position is that the fatal shot was fired at very close range from a powerful firearm containing potentially lethal ammunition, at the bottom of Mr. Lypka’s torso. Moreover, there is no evidence here that Mr. Roberts-Stevens had been drinking before the shooting occurred.

[53] Against those circumstances, and the other Crown favoured facts that are present here as enumerated above, and the logical and common sense inference that a sane and sober person intends the logical consequences of their actions, I find that there is a reasonable and solid evidentiary foundation for the inference (i) that Tre Roberts-Stevens intended to cause bodily harm to Daniel Lypka, (ii) that he knew that the harm he intended to cause was likely to cause death, and (iii) that he therefore had the intent required for murder.

[54] The directed verdict application is dismissed. Both second degree murder and manslaughter will be put to the jury to decide.

Michael G. Quigley J.

Released: May 22, 2018

[^1]: [1977] 2 S.C.R.167. [^2]: [1988] 1 S.C.R. 679 at para. 3 [^3]: 2001 SCC 54, [2001] 2 S.C.R. 828. [^4]: R. v. Munoz, 2006 CanLII 3269 (ON SC), [2006] O.J. No. 446 (S.C.J.), 205 C.C.C. (3d) 70. [^5]: R. v. Walle, 2012 SCC 41, 2012, [2012] 2 S.C.R. 438, 284 C.C.C. (3d) 153. [^6]: 2017 ONCA 920, [2017] O.J. No. 6203 (C.A.). [^7]: R. v. Walle, above.