COURT FILE NO.: CR-17-0675
DATE: 20211105
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
R. Alexander Cornelius and Paul Renwick for the Crown
- and -
MARK DOOKHRAM
Hans Cedro and Kendra Stanyon for the Defendant Dookhram
Heard October 29, 2021
By Videoconference
RULING RE: MANSLAUGHTER
D.E. HARRIS J.
[1] The accused is charged with first degree murder. The jury is in their fourth day of deliberations.
[2] During the pre-charge conference in this matter, the Crown requested that the lesser and included offence of manslaughter be put to the jury following R. v. Jackson 1993 CanLII 53 (SCC), [1993] 4 S.C.R. 573. The defence was opposed. These brief reasons explain why I did not put manslaughter to the jury. In my view, the basis advanced by the Crown had no air of reality to it.
[3] I do not intend to dwell on the evidence. It was summarized in the charge to the jury. The Crown alleges that the accused, Dookhram, performed several acts to assist in the planned and deliberate murder of the victim, Ms. Hsin. It was argued that he knew about and intended to assist the plot to kill Ms. Hsin. The Crown, in their summary of position included in the jury charge, wrote that Mr. Dookhram’s tasks which rendered him a party to the offence were:
Conduct surveillance and reconnaissance at Shipp Drive, Rean Drive and places traveled by Ms. Hsin – including Markham;
survey the underground garage at Shipp Drive – this included checking the security of the pedestrian doors and walking the area between the parkette and the pedestrian doors, to become familiar with the environment they would encounter;
Transport Mr. Ordonio to the staging area for the murder (Shipp Drive) and away from the eventual crime scene at 2 Robert Speck Parkway;
Receive $5000 in payment for his services.
[4] The Crown relied upon Jackson to light their path to manslaughter as advanced in the pre-charge submissions. Justice McLachlin, as she then was, wrote in that case:
21 … a person may be convicted of manslaughter who aids and abets another person in the offence of murder, where a reasonable person in all the circumstances would have appreciated that bodily harm was the foreseeable consequence of the dangerous act which was being undertaken.
[5] The dangerous act must be unlawful. That is a prerequisite to a manslaughter finding. In addition, a reasonable person must view bodily harm as a foreseeable consequence of the act: Jackson, para. 20.
[6] In this instance, the Crown postulated criminal harassment as the unlawful act. When asked, they specifically disclaimed reliance on the offence of robbery or on any other offence. Both Crown and defence also were against leaving second degree murder to the jury.
[7] In my view, there was insufficient evidence of criminal harassment available on this record to raise to the minimal threshold of an air of reality. The criminal harassment offence in Section 264 of the Criminal Code has several elements which include:
i. The accused must commit acts of harassment such as following the victim from place to place (2(a)) or watching and besetting a place where they reside or work (2(c));
ii. The accused must know that the victim is harassed or be reckless towards this element; and
iii. The victim must reasonably fear for their safety as a result of the harassing conduct: R. v. Krushel, (2000) 2000 CanLII 3780 (ON CA), 142 C.C.C. (3d) 1, 31 C.R. (5th) 295 (Ont.C.A.)
[8] The reason that the Crown reached for criminal harassment as the unlawful act in this instance is that Mr. Dookhram’s conduct conforms in many respects to that required by i. above. He was frequently driving his car in the vicinity of the victim’s two residences over a period of 4 days.
[9] But besides this aspect, the evidence does lend any support whatever for the criminal harassment offence. There was a total absence of evidence with respect to the essential elements in ii. and iii. These elements, in fact, run stubbornly counter to the Crown theory. According to the Crown, Mr. Dookhram’s surveillance of Ms. Hsin was meant to be surreptitious. She was not to know. And there was no evidence that she did know. Without knowing about the harassment, there could obviously be no reasonable fear for her safety either. The victim’s knowledge and fear for her safety are not supported by any trial record evidence.
[10] The total absence of evidence on these two essential elements of the predicate unlawful act offence has the effect of preventing criminal harassment from rising to an air of reality. That is why manslaughter was not a viable option in this case.
D.E. HARRIS J.
Released: November 5, 2021
COURT FILE NO.: CR-17-0675
DATE: 20211105
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
MARK DOOKHRAM
RULING
D.E. HARRIS J.
Released: November 5, 2021