This week’s top three summaries: R v Robertson, 2022 ONSC 5795: s.8 #ruse stop, R v JR, 2022 YKCA 9: #corroboration, and R v Favel, 2022 ABKB 727: #normative causation murder.
This week’s top case deals with a warrantless search issue. For great general reference on the law of search and seizure, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Search and Seizure
By David Schermbrucker, Randy Schwartz, Mabel Lai, & Nader Hasan
R v Robertson, 2022 ONSC 5795
[November 3, 2022] Charter s.8: Ruse Traffic Safety Stop for Search Purposes [Justice J. R. McCarthy]
AUTHOR’S NOTE: While the case turns on a s.9 violation (ie. the finding of the ruse), the real application for the defence occurs at the stage of undermining the search incident to arrest. This leads to the exclusion of all evidence seized from the vehicle. The interesting portion of this case is the succinct manner in which the judge shows how easily, with a proper analysis, police actions can demonstrate the falsity of their stated objective of a traffic stop. Here the stop was for an allegedly obscured front Ontario licence plate – yet upon stopping neither officer actually went to the front of the vehicle to inspect the plate. In fact, the prior knowledge that the occupant was a known drug dealer immediately put the spot light on the officers actions as they attempted to come up with excuses to stop the vehicle for what was actually a drug search from the beginning.
The Application
[1] This is an application under s. 24(2) of the Canadian Charter of Rights and Freedoms (“the Charter”) to exclude evidence which was seized from a vehicle being operated by the Applicant.
[2] The Applicant alleges breaches of sections 8, 9, 10(a) and 10(b) of the Charter.
[3] The evidence in question was controlled substances tested as 53.11 grams methamphetamine and 45 heroin pills (“the impugned evidence”)….
The Relevant Facts
[4] The court received evidence from the two investigating officers of the Barrie Police Force: Office Hayes (“Hayes”) and his partner Officer Knight (“Knight”).
[5] On February 7, 2020 the Applicant was detained by Barrie police at a traffic stop while operating a white Mitsubishi Lancer (“the vehicle”).
[6] At approximately 10:21am that morning, while involved in another matter, Hayes observed the vehicle approaching him. The officer noticed a male driver and a front seat passenger whom he recognized as Z.P., a known drug trafficker. Hayes recorded and ran the license plate number of the vehicle and discovered that it was registered to a female. Preoccupied with other matters, neither Hayes nor his partner were able to stop the vehicle to investigate.
[7] At approximately 10:45 am, however, the officers came upon the vehicle a short distance away. This time the unknown male was alone in the vehicle. Hayes testified that he could not see a front license plate; it was either covered with snow or not attached to the vehicle. The officers activated their lights and pulled the vehicle over. The purpose for the vehicle stop was to investigate the license plate and to determine whether the unknown male was a licensed driver. The vehicle stop was authorized under section 216(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the HTA”).
[8] Hayes approached the driver side of the vehicle while Knight remained behind it. Neither officer ever checked the front license plate to see if it was obscured or missing. The Applicant identified himself upon the officer’s request and stated that he did not have a driver’s license. A CPIC search then revealed that the Applicant was subject to a driving prohibition and a release order with a condition not to operate a motor vehicle.
[9] At 10:52am the Applicant was arrested, removed from the vehicle, searched, and taken to the police cruiser where he was provided rights to counsel at 10:56am.
[10] Knight looked in the vehicle and observed currency in the open driver door. He picked up the currency and then noticed a pencil case which he seized and searched, finding packaged controlled substances. Knight explained that he seized the currency incident to arrest because it is his policy to seize and collect anything of value. He continued the search of the vehicle for reasons of officer safety and under the common law authority. Knight was not certain whether the Applicant would be returning to the vehicle before being taken to the station or if he was going to be released on an undertaking. There remained the risk that the Applicant could access knives or small firearms if he returned to the vehicle. The search was limited to the immediate area of the driver’s seat which included the door, centre console and beneath the seat.
[11] Knight believed that he had authority to search the vehicle either incident to arrest for the prohibition charge or as an inventory search of an impounded vehicle. Officer Knight advised his partner about finding the drugs as soon as they were found.
The Applicant’s Position
[13] The Applicant contends that he was arbitrarily detained contrary to s. 9 of the Charter. The detention was not legitimate pursuant to the HTA. There was no legal basis for the traffic stop. It was a ruse. Therefore, any observations, information or evidence arising from that detention were in violation of the Charter protected rights.
Analysis
Section 9 – Arbitrary Detention
[24] In cases assessing the lawfulness of a roadside detention, the court must make a factual determination as to whether the officer had a road safety purpose in mind or whether the officer was using the HTA power as a ruse to conduct a criminal investigation: see R v Mayor, 2019 ONCA 578, 378 C.C.C. (3d) 453, at para. 10.
[25] I am persuaded that the two officers were not motivated to affect the vehicle stop by the fact that the front license plate on the subject vehicle was obscured or missing or out of concern that the unknown driver might not be licensed. I say this for the following reasons:
- Hayes apparently had no difficulty in reading the license plate on the vehicle at 10:21am when he first took notice of it. While he did not clarify whether he read the front plate or the back plate, I find that he would more than likely have read the front plate. The vehicle was approaching him from the front. Undoubtedly, he would have recalled that the front plate was missing or obscured had it been necessary for him to divert his attention to the back plate.
- That the front plate became so obscured by snow or ice, or that it suddenly went missing, in the 24 minutes between the officer’s first and second sighting of the vehicle is a proposition too fanciful to be entertained.
- If the weather conditions in Barrie were conducive to the accumulation of snow or ice on the Applicant’s front plate sufficient to obscure it from view, his could not realistically have been the only vehicle in the vicinity to be in that condition. I find it highly unlikely that the two officers would have felt it necessary to pull the vehicle over in such conditions especially when Hayes had been able to detect and record the plate number just minutes before.
- The fact that neither of the two officers took the time to walk the handful of steps to the front of the vehicle in the moments following the vehicle stop to investigate whether the plate was obscured or missing leads me to conclude that the entire license plate issue was simply a ruse. I find that the observation made of Z.P. in the vehicle moments before the traffic stop was the sole factor which created the police officer’s interest in the vehicle, and which motivated them to rely on the broad powers afforded by the HTA to pull the vehicle over to investigate a possible drug deal.
- I am left to question how, in a city the size of Barrie, two traffic officers could randomly come upon the very same vehicle in which they had spotted a known drug dealer 24 minutes before. The chances that they would are slim to the point of impossibly remote. I infer that spotting Z.P. in that vehicle prompted the officers to either follow or search for that vehicle in the context of a drug investigation
- I do not accept Hayes’ evidence that the fact that the plates were registered to a female raised a legitimate concern that the driver may not be licensed. This alone should not have raised police suspicion or served as the basis for a vehicle stop….
[26] I conclude that what was really happening on the morning of February 7, 2020, was an investigation, perhaps impromptu, but nonetheless real, into potential drug trafficking. Perhaps, it was an investigation which lacked sufficient evidence to support a warranted stop, seizure, and search of the vehicle. It nonetheless raised the tantalizing prospect of finding drugs if an HTA basis could be relied upon to stop a vehicle in which a known drug dealer had just been spotted.
[27] In light of my findings, I must agree with the Applicant that the police did not subjectively intend to investigate any concerns with the vehicle’s front plate or the license status of its operator. The police used their powers as a pretext to pursue a drug investigation. The detention of the Applicant under the HTA was therefore not lawful.
Sections 10(a) and (b)
[29] The arbitrary detention created a cascading effect.
[31] Given my conclusion above that the vehicle stop was essentially part of a drug investigation, the evidence makes it clear that the Applicant was not advised of this upon being pulled over. Instead, he was improperly detained and subjected to questions. There was an infringement of the Applicant’s rights under s. 10 (a).
[32] While police are not required to provide s. 10(b) rights to counsel at a routine HTA traffic stop, this was not the situation in the case at bar. There being no valid purpose for the traffic stop, it was incumbent upon the officers to provide rights to counsel in respect of the true reason for the detention: the Applicant was being investigated in a suspected drug deal involving Z.P….
Section 8 – Illegal search
[33] In my view, because the Applicant was unlawfully detained, it is impossible not to conclude that the search which followed was unreasonable. Indeed, had the detention not been imposed upon the Applicant, his vehicle would not have been searched. How can a search and seizure stemming from an unlawful act be reasonable? It cannot.
S. 24(2) and the Grant analysis
[38] On the first prong of the Grant test, I find the Charter breaches to be serious. Using an HTA offence as a pretext for a vehicle stop in the context of a drug investigation is clever, but disingenuous and dangerous. I have no means of determining whether the police use of the broad HTA powers as a pretext for investigating more serious offences is widespread or systemic. Counsel for the Applicant suggests that it is. I cannot conclude one way or the other.
[39] There is no doubt that police can easily employ the broad powers under the HTA to effect vehicle stops. That certainly serves a commendable objective: to ensure the safety of the public on roads and highways. But where those powers are employed to arbitrarily detain individuals who are not committing HTA offences, Charter rights are not just infringed, but eviscerated and in an almost callous fashion. This type of police conduct must be strongly discouraged.
[45] My findings that the HTA was used as a pretext together with the unwarranted nature and extent of the unlawful search combine to propel these breaches into the category of serious.
[47] On the second prong of the Grant analysis, I find that the Charter infringing conduct by police here had a profound impact on the Applicant’s Charter protected rights. The Applicant was detained arbitrarily and unlawfully. There was nothing about his driving or conduct that day which warranted a vehicle stop. The unauthorized detention led directly to the s. 10(a) breach because the Applicant was not made aware of the true reason and basis for being detained. This led to the Applicant both identifying and incriminating himself, resulting in his arrest. The police misuse of the broad powers in the HTA for the purposes of a drug investigation resulted in an unreasonable delay in the informational component of the rights to counsel for the true basis for detention. The arrest was followed by an unlawful search of the vehicle which uncovered the impugned evidence. The second prong of the Grant test weighs in favour of exclusion of the evidence.
[49] For the foregoing reasons the application is allowed.
[50] The impugned evidence shall be excluded at trial. The Crown is precluded from introducing or referring to any evidence found in the Applicant’s vehicle at or after 10:45am on February 7, 2020.
R v J.R. , 2022 YKCA 9
[October 27, 2022] Corroboration of a Vetrovec Witness [Reasons by Fitch J.A. with Abrioux and Horsman JJ.A. concurring]
AUTHOR’S NOTE: The definition of corroboration can shift with the purpose for which it is used. For example, in a Mr. Big admissibility context, corroborative evidence has a shifting technical meaning that is the subject of some inconsistency by the courts. However, in this case the corroboration was about what in effect became a Vetrovec witness (someone whose evidence cannot be relied upon without corroborative evidence). Here the YKCA found that the judge committed an error when she found that evidence of another witness corroborated a Vetrovec complainant when if failed to distinguish between the accused’s account and the complainant’s account. In other words, if both accounts are possible on the evidence of the “corroborative” witness, then their evidence is not corroborative in any sense of the word. The conviction was set aside and an acquittal entered on the count requiring corroboration.
FITCH J.A.:
I. Introduction
[1] This is an appeal from conviction on one count of assault simpliciter (Count 1) and one count of assault with a weapon (Count 3). The convictions were entered following a judge-alone trial in the Supreme Court of Yukon. Reasons for judgment are indexed as 2021 YKSC 27.
[3] The assault with a weapon occurred in 2004 when the complainant was about seven years old. The trial judge found that the appellant struck the complainant on his backside with an electrical cord when the complainant refused to stop playing with it.
[4] The common assault was committed in 2008 when the complainant was eleven years old. The trial judge found that the appellant grabbed the complainant and pinned him to his bed after the complainant did something to upset the appellant’s wife.
II. Background
[12] The assaults underlying both counts were found by the judge to have occurred when the appellant intervened in response to what he considered to be disobedient behaviour displayed by the complainant.
[14] In 2015, the complainant was found guilty of sexually assaulting and threatening two of his younger sisters between 2010 and 2014….
[15] At trial in the case at bar, the complainant admitted that he had sexually assaulted his younger sisters and lied about this on two occasions under oath. He agreed that by falsely attempting to blame the appellant for these serious offences, he knew he was putting his grandfather in jeopardy. He agreed that he did not care whether his grandfather ended up in trouble because of his false insinuations.
[16] The complainant’s allegations of abuse against his grandfather emerged after his conviction for sexual assault, in the midst of his parents’ divorce and ensuing custody battle.
[17] Against this background, the trial judge accepted that there was a “clear risk” in relying on the complainant’s testimony in the absence of confirmatory evidence. I understand this self-direction to be an acknowledgment by the trial judge that it would be unsafe to convict the appellant on the unconfirmed evidence of the complainant. She applied this self-direction in her reasons for judgment and acquitted where there was no evidence confirming the complainant’s account.
Count 1: Common Assault
[20] The complainant testified that the incident started when he refused to permit his grandmother to pray for him and pushed her hand off his shoulder. In response, the appellant came into his bedroom, slammed him against a wall, slapped him around, and pinned him on his bed. The complainant testified that he was screaming and crying during this incident.
[21] The appellant testified that he went into the complainant’s bedroom after being informed that the complainant had punched his grandmother—the appellant’s wife. He said he wanted to find out what had happened. When he admonished the complainant saying, “You must never hit your grandmother”, the complainant started swinging and kicking at him. He testified that he wrapped his arms around the complainant to restrain him and pinned him to the bed….
[22] The complainant’s sister, referred to by the judge as O.N., testified that she recalled an occasion in which the appellant was summoned to help discipline the complainant. As the complainant was being disciplined, she walked by the complainant’s open bedroom door and looked inside. She saw the appellant pinning the complainant to the bed and holding him down. The complainant was hollering. She continued to walk by the door as the children were not supposed to see their siblings being disciplined. This is the only portion of the incident she observed.
[24] The trial judge found that the description of the incident provided by the complainant’s sister did not correspond with the appellant’s claim that he was simply maintaining control over the complainant, waiting for him to calm down. The nature of the perceived inconsistency between the accounts given by the appellant and the complainant’s sister was not explained by the trial judge.
[25] The judge rejected the appellant’s evidence that he simply restrained the complainant to avoid being kicked and hit by him….
[26] With respect to certain details of the complainant’s account—that the appellant pushed him against the wall and slapped him—the judge found no confirmatory evidence and concluded that, “it would be unsafe to conclude beyond a reasonable doubt that the assault encompasses J.R. pushing [the complainant] twice on the wall and slapping him”.
[27] The judge found, however, that the complainant’s evidence the appellant pinned him to the bed was “corroborated” by evidence given by the complainant’s sister, O.N.:
[341] [The complainant’s] evidence that his grandfather pushed him and pinned him on the bed is corroborated by [his sister’s] evidence that she recalled an incident, when she was between the ages of seven and 10 years old, when [the complainant] had gotten into trouble, and sent to his room. As she wanted to know what was happening, she walked by [the complainant’s] bedroom and saw, in passing, that her grandfather had [him] pinned to his bed. According to [the sister’s] evidence her grandfather was leaning his weight on [the complainant], and holding him down. She stated that her grandfather was using more of his side to hold [the complainant] down. She added that she could hear [the complainant] struggling and screaming while this incident was happening.
[29] Importantly, the complainant’s sister did not see the beginning of the altercation and could not comment on how the incident unfolded or who was the aggressor. Both the complainant and the appellant testified that the incident ended with the appellant pinning the complainant to the bed. That is what the complainant’s sister saw. And that is all she saw. Respectfully, her evidence did not confirm the complainant’s account that the appellant entered the bedroom and aggressively assaulted him, nor did it undermine the appellant’s testimony that he committed defensive acts of restraint in response to the complainant’s assaultive behaviour.
[30] As the sister’s evidence did not “corroborate” the complainant’s version of events in a way that incriminated the appellant, the judge could not, following her self-direction, have reasonably concluded that the evidence established the appellant’s guilt on this count beyond a reasonable doubt. Respectfully, this flaw in the judge’s analysis explains the unreasonable verdict she reached on this count, and justifies the order I am proposing: see R. v. Biniaris, 2000 SCC 15 at para. 37.
[31] Regardless whether the reasonableness of the verdict in this case is viewed through the lens of the test set out in R. v. Yebes, [1987] 2 S.C.R. 168, 1987 CanLII 17—whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered—or the test set out in R. v. Beaudry, 2007 SCC 5— whether the verdict rests on a factual finding plainly contradicted by the evidence— the result is the same. The verdict is unreasonable, the conviction must be set aside, and, in the circumstances of this case, an acquittal entered.
Count 3: Assault with a Weapon
[35] The complainant was clear in in his evidence that he has no recollection of being struck by the appellant with an electrical cord.
[39] While it was open to the judge to convict the appellant on this count, the only path to this verdict was for her to disbelieve the exculpatory evidence of the appellant and the complainant, find that their versions of events did not raise a reasonable doubt, and conclude on the basis of the complainant’s sister’s evidence that the Crown had established the guilt of the appellant beyond a reasonable doubt.
[43] The judge accepted evidence given by the complainant’s sister that the appellant struck the complainant once on his bottom with an extension cord….
[44] What is missing from the judge’s analysis is any consideration of whether the complainant’s evidence gave rise to a reasonable doubt about the appellant’s guilt. I consider this error in principle to be manifest in the reasons for judgment. The judge proceeded on the basis that the only exculpatory evidence before her was sourced in the evidence given by the appellant. Her failure to consider whether exculpatory evidence from the complainant’s own mouth raised a reasonable doubt amounts to error in principle.
[45] I appreciate that reasons must be read as a whole. I acknowledge, in this regard, that the judge reproduced the relevant portions of W.(D.) in her reasons for judgment. The second prong of the W.(D.) inquiry begs consideration of whether evidence favourable to the accused, even if not accepted, gives rise to a reasonable doubt. But even if it could be said that the judge understood her task at the second stage of the inquiry to encompass evidence favourable to the defence given by the complainant, the reasons for judgment do not reflect an appreciation that, in the context of Count 3, she could not limit herself to acting only on those portions of the complainant’s evidence that were independently confirmed.
[48] While I would allow the appeal, I cannot say that no properly instructed trier of fact, acting judicially, could reasonably convict the appellant on this count given the evidence of the complainant’s sister. Accordingly, I would allow the appeal on this count, set aside the conviction and direct a new trial.
R v Favel, 2022 ABKB 727
[October 31, 2022] [Justice W.N. Renke]
AUTHOR’S NOTE: First Degree Murder causation requires evidence of normative causation. This means the actions of the accused have to “substantially” contribute to the death in order for the person to be held responsible for first degree murder. Here, the question was whether people who contributed by binding the victim sufficiently contributed to the strangulation death that occurred afterwards through the actions of one of them. In the circumstances of this case, the act of binding was not sufficient to even merit a jury hearing about the argument – the judge granted a directed verdict application by the defence.
I. Test
[4] The test for a directed verdict was not in dispute. The most recent exposition of the test is provided by Justice Martin in R v Kirkpatrick, 2022 SCC 33 at para 16:
[16] In determining whether to grant a no-evidence motion, the trial judge must ask “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty” (R. v. Arcuri, 2001 SCC 54, [2001] 2 S.C.R. 828, at para. 21, quoting United States of America v. Shephard, [1977] 2 S.C.R. 1067, at p. 1080; see also R. v. Monteleone, [1987] 2 S.C.R. 154, at pp. 160-61). The Crown must adduce some evidence of culpability for every essential definitional element of the crime (R. v. Charemski, [1998] 1 S.C.R. 679, at paras. 2-3). If there is any such admissible evidence, a directed verdict is not available (Monteleone, at pp. 160-61; R. v. Barros, 2011 SCC 51, [2011] 3 S.C.R. 368, at para. 48).
Justice Martin cited cases referred to by counsel in argument, including Charemski, Arcuri, and Shepard.
[5] The test is not whether the Crown simply has some evidence that supports the Crown’s theory of the case. Rather, as Justice McLachlin emphasized in Charemksi at para 20, the test is “whether the evidence is capable of supporting a verdict of guilt beyond a reasonable doubt. If it is not, the judge must direct an acquittal, since it would be impossible for a reasonable jury to convict legally on the evidence” (emphasis added, see also para 35).
[6] In Arcuri, Chief Justice McLachlin confirmed that:
- the test is the same whether the evidence is direct or circumstantial (para 22)
- the test is the same whether or not the Crown’s case contains exculpatory evidence (para 29 – “Thus, where the Crown has adduced direct evidence on all the elements of the offence, the preliminary inquiry judge must commit the accused to trial even if the defence proffers exculpatory evidence:” R v Sazant, 2004 SCC 77 at para 16)
- the trier of fact determines whether and how far the evidence is to be believed but the judge as trier of law does not assess credibility (paras 22, 23, 30 (Sazant at para 18))
- to the extent that the Crown relies on circumstantial evidence to prove an element of an offence, the judge must engage in a limited weighing of the evidence. The judge must determine whether the evidence is reasonably capable of supporting the inferences urged by the Crown (at para 23). Further, that limited weighing must be of the “whole of the evidence (i.e. including any defence evidence)” (para 29).
In Sazant, Chief Justice McLachlin confirmed at para 18 that if “more than one inference can be drawn from the evidence, only the inferences that favour the Crown are to be considered.”
C. Secondary Liability for First Degree Murder
4. Substantial Cause
[53] Respecting step (3), an accused is not guilty of first degree murder just because he or she was a party to Mr. Desjarlais’ murder, that is, just because he or she intentionally aided or abetted the killing with knowledge that the principal offender intended to kill Mr. Desjarlais. Justice Arbour commented in Nette at para 62 that “The degree of participation in the killing by a party whose liability for murder is based on aiding or abetting under s. 21(1)(b) or (c) of the Criminal Code … may, under the Harbottle formulation, be insufficient to permit a finding that the murder amounts to first degree under s. 231(5) ….” To attract the penal classification of first degree murder, the accused’s contributions or degree of participation must have been a “substantial” cause of Mr. Desjarlais’ death, in the sense that the contributions were an “essential, substantial, and integral part of the killing of the victim” or “sufficiently immediate, direct, and substantial to warrant the greater stigma and sentence attached to first degree murder:” Nette at paras 56, 62, 73; Harbottle at 324. The issue is whether the blameworthiness of the accused’s conduct warrants the increased penalty and stigma of first degree murder: Nette at para 64.
E. Sufficient Causal Contribution?
[149] I have reached the issue of sufficient causal contribution.
[150] One issue is whether I should consider this issue at all. Is this an issue that’s best left to the trier of fact? My hesitation, so far as I can discern, is founded on two reflections. First, the issue of whether there is a sufficient causal contribution is a normative decision as opposed to a factual decision. Second, the Supreme Court has confirmed in cases like Nette and Harbottle that in effect s. 231(5) is in the nature of a sentencing provision. In light of these reflections, perhaps the issue of sufficient causal contribution should not be considered by the trier of law in a directed verdict application.
[151] I have come to the conclusion that my misgivings are misplaced. The accuseds are entitled to a determination of whether a reasonably jury properly instructed could convict respecting the charges they face, first-degree murder. This is the charged offence. Therefore, a directed verdict application is available, in full. I am not entitled to walk away or try to avoid that decision.
[153] I therefore must consider the issue of whether the accuseds made a sufficient causal contribution to the death of Mr. Desjarlais.
[154] Another question then arises. Given that the determination of sufficient causal contribution is normative, given that the issue is whether a reasonable jury properly instructed could find a sufficient causal contribution, does it follow that just because the Crown has established that the accuseds are each parties to murder, that each has played a causal role in the death of Mr. Desjarlais that, by that very fact, means that there is evidence on which a reasonable jury properly instructed could convict for first-degree murder?
[155] In my view, an affirmative response would be incorrect. More is required than simply a contribution to the death, to the murder, to attract the application of s. 231(5). I’ll repeat a passage mentioned earlier. Justice Arbour commented in Nette at para 62 that “The degree of participation in the killing by a party whose liability for murder is based on aiding or abetting under s. 21(1)(b) or (c) of the Criminal Code … may, under the Harbottle formulation, be insufficient to permit a finding that the murder amounts to first degree under s. 231(5) ….”
[157] The question then concerns the test I must apply in making this determination. It is a rest relating to the blameworthiness of the conduct of the accuseds in the context of the killing. The question is whether their causal contribution is essential, substantial, an integral part of the murder; whether it is sufficiently immediate, direct, and substantial; whether the contribution is such as to warrant the stigma and sentence of first degree murder.
[158] I therefore turn to the consideration of whether the participation of each accused is a causal contribution sufficient to attract the application of s. 231(5).
[159] The physical contributions of the accuseds to Mr. Desjarlais’ death were, on their accounts, roughly similar. Each accused admitted binding Mr. Desjarlais’ feet or ankles. The result in each case was a contribution to the effectiveness of the choke and a reduction in Mr. Desjarlais’ ability to escape. Mr. Favel had the added contribution of abetting, of verbal encouragement.
[160] The accounts of the choking were roughly similar.
[161] Ms. Omeasoo left while Joe was still alive.
[162] Mr. Maygard-Olynyk described Mr. Desjarlais falling into unconsciousness, which he thought would mark the end of the attack on Mr. Desjarlais.
[163] Mr. Favel described Mr. Maygard-Olynyk choking Mr. Desjarlais until he went limp, and then Mr. Maygard-Olynyk renewed his attack.
[164] Does the blameworthiness of the accuseds’ contribution rise to the level of warranting a finding of guilt for first degree murder?
[165] In my opinion, what was essential to Mr. Desjarlais’ death, the most substantial factor, was Mr. Desjarlais being choked. The principal offender, the person who choked Mr. Desjarlais, was the dominant figure and played the dominant role in the death of Mr. Desjarlais.
[166] The principal offender carried on his attack, after Ms. Omeasoo left in her account, after Mr. Desjarlais had become unconscious in Mr. Maygard-Olynyk’s account, and after Mr. Desjarlais had gone limp in Mr. Favel’s account.
[167] On their accounts, each accused’s interventions were brief, although sufficient to pull them into a causal role in Mr. Desjarlais’ murder.
[168] The principal offender started the attack on Mr. Desjarlais, continued through the brief intervention of the other accuseds, and completed his killing.
[169] In my opinion, the Crown’s evidence does not support a reasonable conclusion that, given each accused’s account along with other admissible evidence, their contributions to the death of Mr. Desjarlais are sufficient to attract classification as first degree murder.
F. Conclusion
[170] I find that on the evidence, a reasonable jury, properly instructed, could not find the accuseds guilty of first degree murder, but could find the accuseds guilty of second degree murder.
[171] The directed verdict applications then are successful to the extent that the most serious offence reasonably available on the evidence against each accused is second degree murder.
Search and Seizure
By David Schermbrucker, Randy Schwartz, Mabel Lai, & Nader Hasan
