REASONS FOR JUDGMENT on directed verdict application

[1] Mr. Marshall was charged with first-degree murder in the death of Stella Tetsos. At the close of the Crown’s case the defence moved for a directed verdict of acquittal on first-degree murder. On December 6, 2019 the jury subsequently convicted Mr. Marshall of second degree murder.

[2] On November 27, 2019 I granted the defence application. I stated:

Mr. Marshall is charged with first-degree murder in the death of Stella Tetsos. Some time between November 9, 2015 and November 11, 2015 Mr. Marshall broke into Ms. Tetsos’s home and killed her. The defence applies for a directed verdict of acquittal. The Crown’s case is that the jury can reach a verdict of first-degree murder either on the basis of planning and deliberation or on the basis of forcible confinement or attempted forcible confinement. The defence argues that the jury should be left with second-degree murder or manslaughter as possible verdicts.

The issue is whether there is some evidence upon which the jury could find Mr. Marshall guilty of first-degree murder. After considering the evidence, I find that there is no evidence upon which the jury could find Mr. Marshall guilty of first-degree murder on the basis of planning and deliberation. I also find that there is no evidence upon which the jury could find Mr. Marshall guilty of first-degree murder on the basis of forcible confinement.

I will release full reasons in due course. In the meantime, my ruling is that the jury will be left with verdicts of second-degree murder and manslaughter.

[3] Briefly, there is simply no evidence of planning and deliberation in this case. There is some evidence upon which the jury could find that Mr. Marshall intended to forcibly confine Ms. Tetsos. The Crown’s case on first-degree murder, however, fails in this way: there is no evidence that there was a discrete act of forcible confinement (or an attempt at forcible confinement) that was part of the same series of events as the homicide.

[4] What follows are my reasons for granting the application.

BACKGROUND

[5] Stella Tetsos was 82 years old in November 2015. She had Alzheimer’s Disease, although it seems that she and her family did not know it. The symptoms associated with that tragic disease had not yet manifested. She also had Type II diabetes but was otherwise in good health. She was reasonably mobile. She gardened, she walked throughout her neighbourhood to run errands, and she lived alone. Her husband had passed away several years earlier. She had been retired from a job at a meat-packing plant for 10 years. She had assistance from family members and a personal support worker but otherwise managed for herself. She had a son and a daughter, and grandchildren. People who knew her described her as active, engaging, and independent. She lived at 68 Elfreda Blvd. in Scarborough. That was the house where she had raised her family.

[6] Sinbad Marshall was in the area of 68 Elfreda on November 9, 2015. Someone resembling Mr. Marshall was caught on the surveillance cameras on a Beer Store near 68 Elfreda twice that evening. At 9:27 p.m. he was walking away from 68 Elfreda. At 9:42 p.m. he was walking towards 68 Elfreda. The house was just across the street from the Beer Store. He broke a basement window and jimmied it open. He then entered the house.

[7] The evidence tells some, but not all, of what happened in the house that night. Ms. Tetsos was found in the basement on November 11, 2015, at about 4:30 in the afternoon, almost two days later. First responders found her warm to the touch, or at least not cold. Rigor mortis had not yet set in. The first responders tried to resuscitate her. They were unsuccessful. It was obvious that she had been beaten to death. Indeed, the pathologist found that the cause of death was blunt force trauma to the head and torso. The blows caused a flail chest. That meant that the rib cage and sternum collapsed. That collapse caused hemorrhaging, and, ultimately, death. The neuropathologist testified that the blows to the head were not enough to kill Ms. Tetsos.

[8] The police found no forensic evidence linking Mr. Marshall’s assault on Ms. Tetsos to anywhere except the basement recreation room. There was no blood or sign of a struggle in the stairwell leading to the basement. Ms. Tetsos’s bedroom was ransacked and the bed moved. There was, however, no blood or other biological evidence indicating that she was attacked there.

[9] There is no doubt that Mr. Marshall was responsible for the beating and death of Ms. Tetsos. Mr. Marshall also ransacked the house. He stole several items belonging to Ms. Tetsos. Those items included rings, a cross with chains, and a gold coin. When the police arrested him he was in possession of those things. While he was in the house he drank as many as three cans of pop. He did not leave any fingerprints, but, helpfully for the investigators, he left his DNA on at least one pop can. He probably left his DNA on another. The investigators also found shoe impressions consistent with the shoes he was wearing when he was arrested.

[10] There are two other pieces of evidence of note. A length of blue clothesline normally hung on a peg in the laundry room, near a garden hose. The clothesline was found in the recreation room, near Ms. Tetsos’s body. A police officer observed the clothesline over her neck, although there were no ligature marks or other signs she had been tied up.

[11] The other piece of evidence concerned the telephones. There were four telephones in the house. One was a landline phone hanging on the kitchen wall. Someone cut the line to the phone. That person also cut the handset. The handset was found, cut, on the floor. Someone took the other three telephones – all portable phones – and left the cradles. The portable phones were never found (Mr. Marshall subsequently testified that he cut the landline and threw the portable phones in a dumpster).

ANALYSIS

[12] My role on this directed verdict application is to determine whether there was any evidence upon which the jury could return a verdict of first-degree murder: R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21. I am to determine whether the evidence was rationally capable of supporting the inferences that the Crown suggests the jury should draw: R. v. Charemski, 1998 CanLII 819 (SCC), [1998] 1 S.C.R. 679, at para. 33. As the Court of Appeal stated in R. v. Masterson, 2008 ONCA 481, at para. 6, I must take the Crown’s case at its highest. If there are competing inferences from the evidence, I must resolve those inferences in favour of the Crown. It is up to the jury to determine which inference to draw, not me. There must be some evidence on each of the elements of the offence of first-degree murder. I will return to these in a moment.

[13] The scheme of the Criminal Code classifies homicide as culpable or non-culpable: s. 222(2). A person commits homicide where he or she directly or indirectly causes someone’s death: s. 222(1). A homicide is culpable homicide where he or she causes death by an unlawful act: s. 222(5)(a).

[14] Culpable homicide is murder, manslaughter, or infanticide: s. 222(4). Section 229 of the Criminal Code defines murder. The relevant portions state:

Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

[15] Murder is second-degree murder unless there is an aggravating factor that makes it first-degree murder. In this case, the Crown argues that there are two routes to criminal liability for first-degree murder: planning and deliberation (s. 231(2) of the Criminal Code) or constructive murder. Constructive murder occurs where the accused causes death “while committing or attempting to commit” another offence. The offences are set out in s. 231(5) of the Criminal Code. In this case the other offence is forcible confinement: s. 279(2) of the Criminal Code.

[16] Either evidence of planning and deliberation, or evidence of forcible confinement will do to elevate this murder to first-degree murder. There must be some evidence on one or the other, or both. The other offence must be committed while committing the murder. The two offences, however, must be discrete acts: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at paras. 26-27.

[17] I must answer three questions to resolve this application: first, is there some evidence of planning and deliberation by Mr. Marshall? Second, is there evidence that Mr. Marshall forcibly confined or attempted to forcibly confine Ms. Tetsos? And third, is there evidence that Mr. Marshall forcibly confined or attempted to forcibly confine Ms. Tetsos in the course of committing murder?

(a) Is there some evidence of planning and deliberation by Mr. Marshall?

[18] The Canadian Judicial Council’s model jury instructions, which are widely used, set out the elements of the offence for planned and deliberate first-degree murder. The Crown must prove:

i. that the accused committed an unlawful act;

ii. that the accused’s unlawful act caused the victim’s death;

iii. that the accused had the intent required for murder; and

iv. that the accused’s murder of the victim was both planned and deliberate.

[19] The defence does not contest that there is evidence on the first three elements.

[20] The Crown’s theory is that Mr. Marshall developed a plan to kill Ms. Tetsos after breaking into 68 Elfreda. The Crown concedes that there is no evidence of planning and deliberation prior to the break-in. The Crown theorizes that Mr. Marshall realized that there was someone in the house. He then decided to force that person to the basement in order to confine and kill her there. The Crown notes that surveillance camera footage from the Beer Store suggests that Mr. Marshall was walking towards 68 Elfreda at 9:42 p.m. on November 9. Cell tower evidence from Wind Mobile suggests he was in the vicinity of 68 Elfreda between 9:15 p.m. on November 9 and 12:20 a.m. on November 10. Mr. Marshall entered through the basement window.

[21] The Crown argues that there is evidence that Mr. Marshall encountered Ms. Tetsos in her bedroom. There is evidence that it was after Ms. Tetsos’s usual bedtime. She was in her pyjamas. She did not have her dentures in her mouth. She was wearing socks, not slippers. The Crown suggests that she did not hear the breaking of the window because she has hearing difficulties. There was evidence that she frequently did not hear the doorbell or knocking. Mr. Marshall forced her to the basement or threatened her if she did not go to the basement. He administered an extensive beating to Ms. Tetsos. At some point he cut the phone line and disposed of the portable phones. He ransacked the house and took the time to drink three cans of pop.

[22] On the Crown’s theory, the jury could find that Mr. Marshall administered two beatings. There were signs of healing in some of the injuries. That meant that Mr. Marshall may have administered a beating and then left to do some ransacking and thieving and drinking of pop. He then may have come back to Ms. Tetsos and administered a further beating. As Crown counsel put it in their written submissions:

If the jury were to find, based on the evidence of Dr. Lal, that there were two assaults, separated in enough time that allowed the injuries suffered in the first assault to show signs of healing not present in the injuries suffered in the second, then the jury could also find that enough time passed between the two assaults for [Mr. Marshall] to form a plan to kill Ms. Tetsos, or to inflict bodily harm to her he knew would likely cause her death and was reckless as to whether death would ensue, and deliberate on that plan prior to the second assault. The plan could be a simple one – having already assaulted Ms. Tetsos, and realizing she was a witness to his break and enter, [Mr. Marshall] devised a plan to return to her and kill her, removing her as a witness.

[23] Alternatively, the Crown theorizes that Ms. Tetsos and Mr. Marshall encountered each other in the basement. Mr. Marshall killed her there.

[24] I respectfully disagree that there is some evidence upon which the jury could convict Mr. Marshall of first-degree murder based on planning and deliberation. A conviction would require speculation to bridge the “inferential gap” between the evidence and the inference.

[25] In R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, Lamer C.J.C., at para. 26, approved the description of “planning and deliberation” that the trial judge gave to the jury:

He defined something that is "planned" as something that is arranged beforehand on the basis of a "design" or "scheme". He defined something that is "deliberate" as something that is "considered" and "carefully thought out" rather than "hasty", "rash", or "impulsive". He said, "[a] person commits deliberate murder when he or she thinks about the consequences", i.e., when he or she contemplates the advantages and disadvantages of committing the murder.

[26] Planned and deliberate are not the same thing. Planned generally means “arranged beforehand”: R. v. More, 1963 CanLII 79 (SCC), [1963] S.C.R. 522, at p. 529. The Court, at p. 534, adopted the definition of deliberate from the Oxford English Dictionary as "not hasty in decision", "slow in deciding" and "intentional".

[27] There must be some evidence upon which the jury could find that the murder was “arranged beforehand” or that it was the product of a “calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed”. There must also be some evidence upon which the jury could find that the murder was “deliberate”, as it was “‘considered,’ ‘not impulsive’ ... implying that” Mr. Marshall took time to “weigh the advantages and disadvantages of his intended action”: R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503, at para. 34., per Doherty J.A. The plan need not be complicated, or sophisticated, or even well thought-out. It could be a very bad plan, or a very crude plan, as long as it is a plan.

[28] There is clearly no direct evidence of planning and deliberation. The evidence the Crown relies on is entirely circumstantial. I must therefore conduct a limited weighing of the evidence to determine if the jury could reasonably draw the inferences sought by the Crown: R. v. Arcuri, at para. 23.

[29] The Crown theory of two separate assaults relies on something called a neutrophil. Neutrophils are a type of white blood cell. Neutrophils migrate to injuries within the body. Neutrophils assist in the healing process. The presence of neutrophils indicates that some healing had taken place. Dr. Lal, the forensic pathologist, took samples from 9 injured areas on Ms. Tetsos’s body. She examined the samples using a microscope. She found neutrophils in three of the nine samples. That meant that three of the nine injuries she sampled had started the healing process. That meant that those three injuries had occurred before the other six injuries she sampled. Dr. Lal could not say how long before.

[30] I agree that the jury could find that Mr. Marshall planned to break in and steal things. I agree that the jury could find that Mr. Marshall administered beatings to Ms. Tetsos separated by an unknown period of time. I disagree that the jury could infer from this evidence that the murder was planned and deliberate. A planned and deliberate break-in is not the same thing as a planned and deliberate murder committed in the course of that break-in.

[31] In additional to the neutrophil evidence, there is no evidence tying the beating to any room in the house other than the basement recreation room. Ms. Tetsos’s body was lying in the recreation room. She was on her side. She was close to the south wall, which was closest to the laundry room. Her blood was found in the recreation room, near her body. There was no other blood or other biological evidence of an assault anywhere else in the house. There is no evidence she was dragged or forcibly taken into the basement recreation room. There is no evidence that she crawled there. The presence of mere passage of time – and it is unknown how much time passed between assaults, if there were two assaults – is not circumstantial evidence of planning. It is circumstantial evidence of two beatings, or at least injuries inflicted at different times – separated by minutes or even hours. The jury would be speculating that Mr. Marshall planned and deliberated on a second beating to finish off Ms. Tetsos after beating her a first time.

[32] The Crown relies on three other pieces of evidence to support the alternate theory, that Mr. Marshall found Ms. Tetsos in her bedroom and dragged or forced her down to the basement. The first piece of evidence is a hoop earring found in Ms. Tetsos’s bed. Mr. Marshall was in possession of its pair when he was arrested. The second is that Ms. Tetsos has hearing difficulties. She was unlikely to have heard Mr. Marshall break into the basement. The third is the state of the bedroom.

[33] It is quite implausible (and nobody has suggested it) that Mr. Marshall gingerly removed one earring from Ms. Tetsos and the other simply fell out into the bed. There is simply no evidence how it is that one earring came to be in the bed and one with Mr. Marshall. If the inference that the Crown urged was that Mr. Marshall took one earring out of the jewellery box while ransacking the bedroom and simply missed the other, that would be much more plausible; I would not, however, call it a competing inference. I do not think that the presence of the earring is circumstantial evidence that they encountered each other in Ms. Tetsos’s bedroom and then Mr. Marshall forced her into the basement. That conclusion would ultimately be speculative because the inferential gap is simply too wide. The presence of the earring is not evidence capable of giving rise to the inference the Crown seeks: that the murder was planned and deliberate.

[34] The Crown also relies on evidence that Ms. Tetsos did not hear well. The evidence is unclear as to the state of her hearing. There is no evidence she required hearing aids. It is one thing that she could not hear a doorbell when she was in small bedroom where she usually watched television. It is quite another that she could not hear a window break at night when all was quiet and she was lying in bed.

[35] Finally, the ransacking of the bedroom is certainly evidence that Mr. Marshall was there and looked for things to steal. The sheets were removed from the bed and the bed was moved. There was no evidence, however, of blood in the bedroom, or tearing of Ms. Tetsos’s ear, or any other forensic evidence to suggest some kind of violent encounter beyond the ransacking. None of Ms. Tetsos’s clothing was torn, and she was wearing pyjamas. I understand that the sheets being removed from the bed is an important part of the Crown’s case: the Crown theorizes that the sheets were torn from the bed when Ms. Tetsos was initially forced to the basement.

[36] The Crown’s case on planning and deliberation is, of course, circumstantial. Almost all cases of planning and deliberation are circumstantial; other than terrorists, most killers do not record a video or a manifesto explaining the plan. In a circumstantial case it is the totality of the circumstances that allow the jury to weigh whether an inference is available. There is an absence of the kind of evidence that would bridge the gap from speculation to available inference: there was no sign that Ms. Tetsos was forcibly taken to the basement – there are no marks on the stairwell walls, no blood on the stairs or handrails, no foot impressions, no scuff marks. The bruising on her arm, according to Dr. Lal, was larger than a hand grip. To suggest that Ms. Tetsos did not hear the window break and therefore remained in bed is speculative. There is simply no evidence that is what happened. There is actually more evidence that Ms. Tetsos went downstairs to investigate noises in the basement – and that is not a competing inference. Ms. Tetsos was found in the basement, and there is no evidence that Mr. Marshall forced her to go there.

[37] The time between beatings (if that is what happened) also does not, in my view, provide evidence that Mr. Marshall encountered Ms. Tetsos with a calculated scheme to finish her off after an initial assault.

[38] An inference is a possibility – or even a plausibility – supported by evidence. A mere possibility – or plausibility – without more does not support an inference. Thus, it is possible that the break-in and murder happened along the lines suggested by the Crown. It is also, I suppose, theoretically possible that a second burglar arrived, saw the open side door, and went into the basement and administered a second beating. There is no actual evidence that either thing happened.

[39] I therefore find that there is no evidence upon which the jury could return a verdict of first-degree murder based on planning and deliberation.

(b) Is there some evidence that Mr. Marshall forcibly confined or attempted to forcibly confine Ms. Tetsos?

[40] The Canadian Judicial Council’s model jury instructions set out the elements of the offence of constructive murder based on forcible confinement. The Crown must prove:

i. that the accused committed an unlawful act;

ii. that the accused’s unlawful act caused the victim’s death;

iii. that the accused had the intent required for murder;

iv. that the accused committed, or attempted to commit, the offence of forcible confinement;

v. that the forcible confinement, or attempt to commit forcible confinement, and the murder of the victim were part of the same series of events; and,

vi. that the accused actively participated in the killing.

[41] Again, the defence does not contest that there is evidence on all elements except the fourth and fifth. The sixth does not apply because this is not a situation of party liability.

[42] The Ontario Court of Appeal described the elements of constructive murder this way in R. v. Parris, 2013 ONCA 515, 300 C.C.C. (3d) 41, at para. 45, per Watt J.A.:

For discussion purposes, the essential elements of constructive first degree murder under s. 231(5)(e) may be summarized as the

i. predicate offence;

ii. murder;

iii. substantial cause;

iv. no intervening act; and

v. same transaction

requirements.

[43] Section 279(2) of the Criminal Code sets out the offence of forcible confinement, the predicate offence here:

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence …

[44] Justice Watt, in his specimen jury instructions (also widely used) sets out the elements of the offence of forcible confinement, the predicate offence:

i. the accused intentionally confined the victim; and,

ii. the confinement was without lawful authority.

[45] Mr. Marshall obviously had no authority to confine Ms. Tetsos.

[46] The Crown argues that the jury could infer that Mr. Marshall and Ms. Tetsos first encountered each other in Ms. Tetsos’s bedroom. Mr. Marshall forced or coerced her into the basement. That would satisfy the requirement of a forcible seizure. I have already rejected that theory.

[47] The Crown further argues that even if Mr. Marshall did not force Ms. Tetsos to the basement, there is evidence that he confined her there. Once she was in the basement, Mr. Marshall assaulted her without fear that she could get away or call for help. He confined her to the basement recreation room while he ransacked the rest of the house. There is evidence that he drank two, and likely three, cans of pop and searched for valuables. That took time. The Crown also argues that it is an available inference that Mr. Marshall took the blue clothesline into the recreation room with the intention of using it to bind Ms. Tetsos. He disposed of the portable phones and cut the line to the phone in the kitchen to prevent Ms. Tetsos from calling for help. Thus, the Crown suggests that the jury could infer a continuing domination of Ms. Tetsos based on the clothesline in the basement, the cutting of the phone line, and the disappearance of the portable phones.

[48] I disagree. There is certainly evidence that Ms. Tetsos was disabled and unable to move freely as a result of the actions of Mr. Marshall. The jury could infer that she was unable to do so because she had been assaulted and rendered physically incapable of moving. In my view, however, the evidence does not support inferences that the Crown argues the jury could draw. The evidence of forcible confinement is entirely circumstantial. Again, on a directed verdict application, I must conduct a limited weighing of the evidence to determine if it is capable of bridging the inferential gap between that evidence and the inference sought by the Crown: R. v. Arcuri, at para. 23. The evidence is not.

[49] The jury would have to find that for a significant period of time Ms. Tetsos was “coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire”: R. v. Pritchard, at para. 24, per Binnie J. The victim must be physically constrained, contrary to her wishes; or the victim must have submitted unwillingly, thereby depriving her of the liberty to move from one place to another: R. v. Luxton, 1990 CanLII 83 (SCC), [1990] 2 S.C.R. 711, p. 723, per Lamer C.J.C. The confinement must be for a “significant” period of time: R. v. Parris, at para. 46.

[50] The evidence shows the following:

[51] Lou Tetsos is Ms. Tetsos’s son. He testified that there was a blue clothesline that normally hung on a notch in the laundry room above the garden hose. He also testified that there was a landline in the kitchen. He had purchased three portable phones so that Ms. Tetsos could answer the phone in order to open the door when he visited. The cradles were in their places. The portable phones were not located.

[52] Zuzanna Machura was Ms. Tetsos’s personal support worker. She went to Ms. Tetsos’s home on November 11, 2015, at about 4:15 in the afternoon. Ms. Tetsos did not answer the door or the phone. The side door was ajar. Ms. Machura looked gingerly around the ground floor. She was too frightened to go into the basement. She called Ms. Tetsos’s daughter, Evelyn Damianidis. Ms. Tetsos’s daughter called her husband, Christos Damianidis. Christos went into the basement. He found Ms. Tetsos there. Ms. Machura followed. She testified that there were black wires bunched in the corner of the basement. They were not touching her head.

[53] Mr. Damianidis testified that when he found Ms. Tetsos, the wire was touching her head. It was not around or on her neck. He and Ms. Machura rolled Ms. Tetsos on her back so that Ms. Machura could perform chest compressions in order to resuscitate her.

[54] P.C. Pece was the first police officer on scene. He testified that the clothesline was on Ms. Tetsos’s neck. That is how he found her.

[55] Photographs taken by forensic officers show the clothesline on Ms. Tetsos’s neck. The rest of the clothesline was bunched near Ms. Tetsos’s head. There was no evidence that there was blood on the clothesline. There were no ligature marks on Ms. Tetsos’s body. In other words, there is no evidence that the blue clothesline was used to tie up Ms. Tetsos. There was no blood anywhere else in the house indicating an assault. There was no forensic evidence showing Ms. Tetsos under Mr. Marshall’s physical or psychological control.

[56] I agree that the jury could infer that Mr. Marshall brought the clothesline into the recreation room with the intention of using it to confine her. He did not ransack the laundry room. The jury could infer that he went into that room merely to get the clothesline. Every crime has a conduct component and a fault component: R. v. Klundert (2004), 2004 CanLII 21268 (ON CA), 187 C.C.C. (3d) 417 (Ont. C.A.). The clothesline is evidence upon which the jury could find that Mr. Marshall satisfied the fault component of the crime of forcible confinement.

[57] The conduct component would be met if there were evidence that Mr. Marshall used the clothesline to bind her up or intended to bind her up. That evidence is lacking. The lack of ligature marks on any part of her body is not evidence that Mr. Marshall actually confined, imprisoned, or forcibly seized Ms. Tetsos. Even if the offence was not complete, that is not evidence of an attempt. I also think that the mere placement of the clothesline on Ms. Tetsos is not enough to infer that it was used to confine or attempt to confine her. The evidence of Dr. Ramsay makes it clear that Ms. Tetsos would likely have been unconscious or dazed after being struck on the head.

[58] Sean Redhead was an advanced care paramedic. He arrived after the primary care paramedics. He noted that Ms. Tetsos’s had two black eyes. Her eyes were so swollen that he could not open her eyelids to check her pupils. The swelling of her eyes and the evidence of Mr. Redhead makes it likely that Ms. Tetsos likely could not see much after being struck in the face. Dr. Lal’s evidence is clear that Ms. Tetsos’s back ribs were broken. When combined with a pattern mark from a possible shoe or weapon, there is no other possible inference than Ms. Tetsos was disabled and unable to move after being assaulted, falling to the floor, and being beaten or stomped on. Mr. Marshall was a 20-year-old man who conducted a vicious assault on a frail 82-year-old woman. It is plain that it would have taken little violence to incapacitate Ms. Tetsos. It is also plain that Mr. Marshall used overwhelming violence.

[59] There is no physical evidence that Mr. Marshall used the clothesline during the assault, to assist in the assault, or to prevent Ms. Tetsos from moving during the assault. Thus, there are two possible inferences that the jury could draw with regard to the clothesline: first, Mr. Marshall assaulted and disabled Ms. Tetsos and then went to get the clothesline to bind her, but saw that she was already incapacitated and so simply left it there. The second is that Mr. Marshall went to get the clothesline with the intent of binding her (either before or after the assault) and then assaulted her but without the assistance of the clothesline. Either way, there is no evidence that he bound her.

[60] I agree that the jury could infer that Mr. Marshall cut the phone line and handset in the kitchen. I agree that the jury could infer that Mr. Marshall disposed of the three portable phones. (As I have mentioned, Mr. Marshall subsequently testified that he cut the landline and threw the portable phones in a dumpster).

[61] The Crown relies on R. v. Bisson, [2004] O.J. No. 59 (S.C.). The Crown argues that the facts are similar to this case. Three individuals beat the victim to death in an apartment. The beating was prolonged and severe. The door was locked. There was a bloody and knotted bedsheet near the body. The telephone lines were cut. Justice Dawson found that there was no evidence that the bedsheet was actually used to bind the victim. He dealt with the cutting of the phone lines in this way:

The cutting of the telephone lines is significant. Clearly the cutting of the telephone lines demonstrates an intention on the part of the accused to cut the deceased off from the outside world. The common sense inference is that the person or persons cutting the phone lines wished to hamper the ability of the victim to obtain help. The act of cutting the phone lines is not direct evidence of an act of confinement. Rather it is an important circumstance that, taken together with the prolonged nature of the beating, is capable of supporting the inference of domination and confinement I have referred to. Unlike the evidence of the locked door, the cut telephone lines has an undeniably sinister connotation that tends to inform the inference drawing process. I note that evidence of the cutting or pulling out of telephone lines or of preventing someone from making or receiving telephone calls is often a feature of cases of unlawful confinement: at para. 30.

[62] In my view, the key fact that distinguishes Bisson from this case is the evidence of a prolonged beating over an extended period of time in two separate locations in the victim’s apartment. There is no such evidence here. There is no evidence that Ms. Tetsos was beaten in more than one location. There is no evidence that the beating was prolonged, horrible as it was. There is some evidence that there may have been separate assaults at different times. That is not enough to bridge the inferential gap.

[63] I confess that the evidence on forcible confinement is very close to the line. Even if I am wrong about that evidence, however, it does not assist on the discrete transaction aspect of constructive murder. I turn next to that issue.

(c) Is there evidence that Mr. Marshall forcibly confined or attempted to forcibly confine Ms. Tetsos in the course of committing murder?

[64] The Crown must show that there is some evidence that the forcible confinement and the murder were separate acts, but part of the same series of events. If the confinement is only incidental to the murder, or consumed in the very act of killing, then there is no constructive murder: R. v. Pritchard, at paras. 26-27.

[65] Justice Doherty explained this concept in R. v. Kimberly and Clancey (2001), 2001 CanLII 24120 (ON CA), 56 O.R. (3d) 18 (C.A.). In that case, the accused attacked the victim as she left an elevator in a parking garage. They knocked her unconscious. They dragged her through the garage, leaving a trail of blood. They then beat her to death and robbed her. Justice Doherty stated:

R. v. Luxton, supra, makes it clear that if in the course of a continuous sequence of events an accused commits the crime of unlawful confinement and chooses to exploit the position of dominance over the victim resulting from that confinement to murder the victim, then the accused has committed first degree murder as defined in s. 231(5)(e). The purpose of the confinement is not relevant.

While I would reject the contention that unlawful confinements in the course of a robbery cannot provide the basis for liability under s. 231(5)(e), I do accept that a confinement which is inherent in the very act of killing could not be relied on to impose liability under s. 231(5)(e). This is not because there is no confinement, but because s. 231(5)(e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. It is the occurrence of the two criminal acts in the course of the same transaction or series of events that justifies the added punishment imposed for first degree murder: at paras. 107-108.

[66] Justice Doherty went on to provide a distinction, on the facts, between second-degree murder and constructive first-degree murder based on forcible confinement:

Thus, for example, if, with the requisite intent for murder, the appellants had struck and killed Dr. Warrick as she left the elevator and then took her purse, there would be no basis upon which the appellants could be convicted of first degree murder under s. 231(5)(e). On this example, the act of confinement and the act of killing are one and the same. Where, however, there is a confinement and then in the course of the same series of events, the victim is murdered while under the unlawful domination of the killer, the rationale underlying s. 231(5)(e) is fully engaged. There is not only a murder, but there is a murder of a person under the domination of the attacker: at para. 108.

[67] It is that continuing domination over the victim that is the “organizing principle” of constructive murder: R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618, at p. 633, per Wilson J.; R. v. Arkell, 1990 CanLII 82 (SCC), [1990] 2 S.C.R. 695, at pp. 703-704, per Lamer C.J.C. It is the aggravating feature of a murder which makes it more morally blameworthy, and thus deserving of the 25-year parole ineligibility sentence.

[68] Thus, there must be evidence that if there was an unlawful confinement it was more than merely incidental to the killing; there must be evidence that Mr. Marshall was in a position of dominance over Ms. Tetsos resulting from the confinement; and there must be evidence that Mr. Marshall exploited that position of dominance in order to murder Ms. Tetsos.

[69] In my view, the Crown’s case fails this discrete transaction rule. There is no evidence upon which the jury could find that the confinement was more than incidental to the killing.

[70] I have already rejected the notion that there is some evidence that Mr. Marshall forced Ms. Tetsos to the basement.

[71] Ms. Tetsos was a healthy but frail 82-year-old woman. She was 5’2” tall and weighed 126 lbs. Mr. Marshall was a 20-year-old man. As I have already noted, the only possible inference is that Ms. Tetsos was immediately incapacitated and incapable of resisting after Mr. Marshall struck the first blow, given Dr. Ramsay’s evidence – even though the blows to her head were not solely responsible for her death.

[72] In my respectful view, this case is much closer to the alternate scenario that Justice Doherty described in R. v. Kimberly and Clancey. Recall that Justice Doherty said that if the assailants struck and killed Dr. Warrick as she left the elevator, took her purse, and left, that would be second-degree murder. Instead, the assailants beat her at the elevator, and exploiting their position of continuing dominance, dragged her away from the security cameras and continued their beating. That elevated the murder to first-degree murder.

[73] There is no evidence that Mr. Marshall used the clothesline to confine Ms. Tetsos and then exploited that position of dominance while killing her. To repeat, there were no ligature marks on Ms. Tetsos’s body, including on her neck. There is no evidence she was bound in any way.

[74] Of course, there does not need to be evidence that she was bound in order to find that she was confined, but there is no other evidence of confinement. I do not see any evidence upon which the jury could find that she was forcibly confined and then assaulted. I do not see how the jury could find that any confinement was more than incidental to the beating. I simply see no evidence of a continuing domination; I also see no evidence that Mr. Marshall exploited a position of dominance over Ms. Tetsos to beat her to death.

DISPOSITION

[75] The jury was directed to return a verdict of acquittal on first-degree murder. The jury only deliberated on second-degree murder or manslaughter. As I have mentioned, the jury ultimately returned a verdict of second degree murder.

[76] I wish to make one final point. I appreciate that it may be difficult for members of the public to understand how it is that a charge of first-degree murder can be reduced to second-degree murder in a case like this: the perpetrator was a healthy and fit young man who administered a severe beating to a frail 82-year-old woman. This is especially so when the beating was so brutal that it appears Ms. Tetsos had more than 90 individual injuries and almost all of her ribs were broken. It was not just a beating: it was a callous and cruel beating using extreme violence.

[77] It is a valid question. It is important that the public understands the answer so as to maintain confidence in the administration of justice. To those who are not educated in the sometimes-arcane subtleties of our criminal law, a severe beating of this nature appears like it should at least engage the possibility of a verdict of first-degree murder. First-degree murder certainly seems to imply a certain extra kind of moral blameworthiness – and indeed it does. In our law, however, it is only certain types of murder that become first-degree murder. Parliament has determined that where the crime of murder is committed in the course of illegally exploiting physical domination over another, it is first-degree murder. The extra parole ineligibility period expresses the moral blameworthiness of the crime: R. v. Luxton, at pp. 720-722. A judge, however, is the gatekeeper: I must make sure that the case only goes to the jury where there is evidence to support it. If I do not see the evidence of first-degree murder, it is my duty to ensure that the jury does not consider it, even if it is an unpopular decision.

[78] R. v. Kirkness, 1990 CanLII 57 (SCC), [1990] 3 S.C.R. 74, was another constructive murder case. Two people were charged with a horrible murder carried out during a sexual assault. One was acquitted. Justice Cory very wisely reminded us at p. 82 that anger and disgust at a particular crime, no matter how justifiable, are not a basis for a conviction. Principles of criminal law that are designed to achieve fairness are critical to the rule of law – and maintaining confidence in the rule of law:

The facts of this case are depressing and sordid in the extreme. Their simple recitation incites feelings of anger and utter revulsion. That sense of disgust is bound to strengthen the very natural tendency to closely associate the appellant with the perpetrator of this particularly despicable crime. The almost inevitable result is to think that the appellant must be guilty because of his association with Snowbird. Nevertheless, principles of criminal law and fairness require that the guilt or innocence of Kirkness be determined solely on the evidence which implicates him in the killing of the victim. Both the despicable and the personable are entitled to be judged guilty or innocent solely on the basis of the evidence relating to the crime with which they are charged.

R.F. Goldstein J.

Released: December 10, 2019

R. v. Marshall, 2019 ONSC 7082

Case Summary

REASONS FOR JUDGMENT on directed verdict application

BACKGROUND

ANALYSIS

(a) Is there some evidence of planning and deliberation by Mr. Marshall?

(b) Is there some evidence that Mr. Marshall forcibly confined or attempted to forcibly confine Ms. Tetsos?

(c) Is there evidence that Mr. Marshall forcibly confined or attempted to forcibly confine Ms. Tetsos in the course of committing murder?

DISPOSITION

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Issues

Statutory Provisions 6

Legal Tests 2

Legislation 5