R. v. Robas, 2018 ONSC 3745

COURT FILE NO.: CR-17-302

DATE: 2018 06 14

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HER MAJESTY THE QUEEN v. DURU VASILE ROBAS

BEFORE: COROZA J.

COUNSEL: Brian McGuire and Jennifer Goulin, for the Crown

Simon King and Justin Yuen, for the Accused

HEARD: May 22 to June 13, 2018

ENDORSEMENT (FORCIBLE CONFINEMENT MURDER)

1On January 21, 2016, Mr. Sebastiano Sinisi was found lying in the rear of his car, shot in the neck. Based on witnesses and surveillance video evidence, Mr. Sinisi was shot in his car, which was parked in his office’s parking lot, sometime around 6:45 p.m.

2Duru Vasile Robas was charged with the first degree murder of Mr. Sinisi. Mr. Robas admits he shot Mr. Sinisi but claims it was an accident.

3On June 6, 2018, a final draft charge was provided to counsel. A pre-charge conference was held on June 8, 2018, where I received helpful and comprehensive submissions by the parties.

4A number of issues were raised by the parties during the pre-charge conference. Each counsel was permitted to make oral submissions on the draft charge and I have also received written submissions. The written submissions have been filed and form part of the record for any potential reviewing court.

5This endorsement will deal with the Crown’s argument that it is open on the evidence to leave with the jury a route of liability for first degree murder under s. 231(5)(e) of the Criminal Code, R.S.C., 1985, c. C-46 (forcible confinement murder).

6After the pre-charge conference, I advised counsel that I would be leaving forcible confinement murder with the jury as a route to first degree murder. I promised I would provide further written reasons. These are those reasons.

The Law

7Section 231(5)(e) of the Criminal Code elevates any murder where the death is caused while forcibly confining the victim to first degree murder. The cases all hold that there must be confinement for "a significant period of time". There is, however, no minimum period of time during which the confinement must continue. What is a "significant period of time" depends on the circumstances of the case. Further, the act of killing must be separate and distinct from the unlawful confinement (see: R. v. Smith, 2015 ONCA 831, 344 O.A.C. 22, at para. 11).

Crown Position

8The Crown relies on the Ontario Court of Appeal’s decisions in R. v. White 2014 ONCA 64, 305 C.C.C. (3d) 449; R. v. Mullings, 2014 ONCA 895, 319 C.C.C. (3d) 1; and R. v. Kimberley (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.). The Crown also relies on the Supreme Court of Canada’s decision in R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195.

9The Crown argues that there is evidence that the jury could rely on to find that Mr. Robas was already dominating and confining Mr. Sinisi at gunpoint before he shot him. The Crown position is that the jury could find that Mr. Robas forced Mr. Sinisi out of the front of his car at gun point, forced him in the rear seat of the car to lay down in the position in which he was found, and then shot him in the neck at close range.

Defence Position

10Mr. King is opposed to leaving this route of liability with the jury. Counsel argues that it is not open to the jury on this evidence to find that Mr. Sinisi was forcibly confined in the manner suggested by the Crown. Mr. King argues the Crown’s position is a theory without an evidentiary foundation.

Analysis

11If I am satisfied that there is an air of reality to the Crown’s theory, I should leave this route of liability with the jury (see: R. v. Patel, 2017 ONCA 702, 356 C.C.C. (3d) 187, at para. 43).

12The Crown acknowledges there is no direct evidence that demonstrates Mr. Sinisi’s killing happened in the way it was suggested. This route requires the jury to infer from primary facts that have been established in the evidence, in the context of the rest of the evidence, that Mr. Sinisi was forced out his vehicle, placed in the rear of his car, and then killed.

13I agree that on this scenario, forcing Mr. Sinisi out of his car and into the back seat are distinct and separate acts from the act of murder. I also agree that they are part of the same transaction.

14Mr. Robas testified before this jury. His evidence is that when he initially confronted Mr. Sinisi, he was seated in the front seat of his car. He has testified that after the initial confrontation, he went back to his own car to retrieve a shotgun and, when he returned, Mr. Sinisi went to the back seat of his car on his own. He found him there when he returned. As he was checking to see if the gun’s safety was on it went off and killed Mr. Sinisi. The gun trigger and safety are in the same area of the shotgun.

15The Crown argues that the jury would be free to reject all or part of Mr. Robas’ testimony and reasonably infer that Mr. Sinisi did not assume the position of lying down in the back seat of his own free will, but was forced at gunpoint into that position.

16There are a number of primary facts that the jury may accept. The evidence includes the following:

(i) The drivers’ side (front and rear) doors were open when Mr. Sinisi was discovered lying in the back seat of his car.

(ii) The keys were in the ignition of the car when it was photographed by Cst. Fraser, who was one of the first officers on the scene.

(iii) According to Cst. Fraser, the car had not been running because there was still snow on the hood of the car.

(iv) Det. Hofstetter, a blood stain analyst, concluded that Mr. Sinisi had been shot either when he was lying face down on the rear middle seat of the car or his head was just above the seat.

(v) Dr. McAuliffe testified that the fragments found in Mr. Sinisi’s gunshot wound suggested the shot was fired at close range. He testified that Mr. Sinisi’s face had the presence of “stippling” (i.e. the presence of unburned gunpowder on his face), suggesting that the gun’s muzzle was very close to Mr. Sinisi when it was fired.

(vi) Dr. McAuliffe testified that there were no defensive wounds on Mr. Sinisi’s body.

(vii) Det. Hofstetter testified that there was white buffer material consistent with shot shell particulate present on the inside of Mr. Sinisi’s car. The buffer material was not found on the outside of the car. This material was located in the rear of the car and also on Mr. Sinisi’s clothing.

(viii) Mr. Robas testified that Mr. Sinisi was seated in the front seat of the car when he confronted him.

(ix) Mr. Robas brought a shotgun with him to confront Mr. Sinisi.

17The evidence that I have set out in the paragraph above is not controversial and is not disputed. Moreover, the jury can also accept some of Mr. Robas’ evidence in light of these undisputed, primary facts.

18The question is whether there is an air of reality – i.e. whether a properly instructed jury acting reasonably could infer from these primary facts, considered in the context of the evidence – to the Crown theory that Mr. Robas forced Mr. Sinisi out of the front of his car by gunpoint and placed him in the rear seat of the car where he then killed Mr. Sinisi by shooting him.

19The evidence, suggests that Mr. Robas was angry because he was owed a significant amount of money by Mr. Sinisi. There is also evidence that he was trying to locate him for many months leading up to January 21. Indeed, Mr. Robas testified that he was trying to find Mr. Sinisi to locate property. There is also evidence that before the shooting, Mr. Robas was desperate and suicidal. Moreover, Mr. Robas acknowledges that three days before the shooting, he drove by Mr. Sinisi’s office where he made two passes in the office parking lot without stopping. These additional, contextual facts provide a basis upon which the jury may infer that Mr. Robas was angry enough at Mr. Sinisi that he would exert pressure on him by way of forcibly confining him. In other words, there is an inference available that Mr. Robas intended to, and indeed carried on to, forcibly confine Mr. Sinisi. This inference is consistent with the primary facts that I have set out above.

20I am very mindful that in applying the air of reality test I cannot consider issues of credibility and reliability, weigh evidence substantively, make findings of fact, or draw determinate factual inferences: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at paras. 86-87.

21Based on the primary facts, considered in the context of the rest of the evidence, the jury could reasonably infer the following:

a) Mr. Sinisi left work at around 6:43 p.m. There is surveillance video evidence that shows him exiting the Hybrid Logistics building at around this time.

b) Mr. Robas confronted Mr. Sinisi when he was seated in the front seat of his car with the keys in the ignition. Mr. Sinisi was about to start the car.

c) Mr. Robas was armed with a shotgun when he confronted Mr. Sinisi.

d) Mr. Robas knew the shotgun was loaded.

e) Mr. Robas forced him out of the car so that Mr. Sinisi could not drive off.

f) Mr. Sinisi got out of his front seat and was then moved to the back seat of the car. He did not voluntarily assume the position of lying down on the back seat before he was shot.

g) Mr. Sinisi was shot around 6:45 p.m., according to the witnesses who heard the shots in the parking lot.

h) Mr. Sinisi was shot lying face down in the rear seat of his car.

i) Mr. Sinisi was shot on the left side of his neck at very close range with the muzzle of the gun being no more than 5 feet from the point of impact when it was fired.

j) Mr. Sinisi did not have any defensive wounds and did not struggle. This is because he was being held at gunpoint.

22These inferences are available on the primary facts outlined above. In other words, the primary facts provide a basis upon which the jury may reasonably infer that Mr. Sinisi was forcibly confined by Mr. Robas and then shot and killed by Mr. Robas at close range.

23If the jury were to accept this version of events, then forcibly moving Mr. Sinisi from the front seat of the car to the rear seat of the car is of sufficient duration to sustain a finding of a discrete act separate from the murder.

24I acknowledge that it is also open for the jury to find that the forcible confinement followed by the shooting itself appears to have happened quickly. Although forcible confinement must be for a “significant period of time” before this route of liability can be left with the jury, there is no set time limit as to when a “period of time” is significant. As Durno J. has noted one cannot determine whether a period of time is “significant” by “drawing a line in the sand” (see: R. v. Mullings, [2005] O.J. No. 2962 (S.C.), at para. 40).

25In R. v. White, the Court of Appeal found that a grabbing of the victim and placing him in a bear hug lasting no more than 2 to 3 seconds prior to the stabbing were independent of, rather than part of, the stabbing. In these circumstances, the Court of Appeal found that the bear hug and the killing were patently distinct criminal acts.

26It is my view that it is open to the jury to find that Mr. Sinisi was forcibly confined for a significant period of time. Being moved from the front seat to the back seat of a car at gun point can constitute a significant period of time. Of course, it will be for the jury to decide, ultimately, whether the forcible confinement lasted for a significant period of time in this case. I simply acknowledge that that conclusion is open to the jury on this evidence.

Conclusion

27When I examine the totality of the evidence in the case at bar, I have concluded that forcible confinement murder under s. 231(5)(e) of the Criminal Code is a route of liability that should be left with the jury.

28It is for the jury to determine whether, on the evidence in this case, there was a confinement, whether a confinement lasted for a significant period of time, and whether the shooting constituted a separate criminal act. The jury will be told that if they believe that the forcible confinement and the murder are in essence one and the same act/occurrence, the underlying domination enabling or facilitating the murder has not been proved and that s. 231(5)(e) of the Criminal Code does not apply. As such, the jury would have to find Mr. Robas not guilty of first degree murder under this route (i.e. forcible confinement). The same result would flow from a determination that there was not a confinement or that the confinement did not last for a “significant period of time.”

Coroza J.