Updated: Dec 20, 2020
Facts and Procedural Background
On April 16, 2011, two masked assailants attempted an armed robbery of a poker tournament in a banquet hall in Brampton, Ontario. One of the assailants entered the hall and in demanding registration money from the tournament organizer, struck the organizer on the head with his handgun, discharging the gun into the ceiling. The organizer fell to the ground and wrestled the assailant for control of the gun. A tournament patron, Kearn Nedd, came to help the organizer and this resulted in the second assailant opening fire from the doors of the hall. One of the nine bullets discharged shot and killed the patron, Mr. Nedd. The two assailants fled in a waiting vehicle. A warranted search of the cellphone of one of the assailants, G.O. led to the discovery of the two appellants in this case, Marcus Alexis and Brian Funes in addition to other parties, namely Kmar Kelly, John Morrone, and Nirmalan Satkunananthan. Mr. Satkunananthan alleged that he brought the tournament to Mr. Fune’s attention, who then asked Mr. Satkunananthan to collect information from inside the tournament on the day of the event. Mr. Morrone, who eventually became a Crown witness, testified that he was approached by Mr. Funes to plan the robbery on his behalf, for which he recruited his associates G.O., Mr. Kelly and Mr. Alexis. Mr. Morrone told police that the two masked assailants were G.O. and Mr. Alexis, and that Mr. Alexis had confided in him that he was the assailant who opened fire in the banquet hall. Mr. Alexis and Mr. Funes were jointly tried before a jury where Mr. Alexis was convicted of first degree murder and Mr. Funes was convicted of manslaughter.
Alexis: Issues on Appeal
Mr. Alexis was charged with first degree murder. For their case, the Crown relied on planning and deliberation under s. 231(2) of the Criminal Code, RSC 1985, c C-46, and constructive murder under s. 231(5)e which is forcible confinement. Mr. Alexis argued that the trial judge:
1. erred in his instruction to the jury on forcible confinement as a basis for constructive first degree murder;
2. failed to relate the evidence at trial to the legal issues in his instructions to the jury; and
3. provided an unnecessarily complex jury instruction which may have led to other routes for liability not available on the evidence.
The appeal was dismissed.
Forcible Confinement Instruction
The trial judge’s instruction to the jury presented two routes through which a charge of first degree murder could be obtained. The first route was constructive murder and would require Mr. Alexis to have committed the murder “while committing” the offence of forcible confinement. The second route would be if the murder was found to have been a planned and deliberate killing. Mr. Alexis alleged that the trial judge did not state the complete charge with respect to constructive murder. He also argued that more was required in the circumstances of this case to communicate to the jury that a temporal link between the offences was not itself sufficient to establish constructive murder. The appellate judge disagreed and cited the case of R v Niemi, 2017 ONCA 720 where a substantially similar form of jury charge was accepted. The Appellate judge found that it would not be misleading to the jury to conclude that only a temporal link was required to establish constructive murder.
“While Committing” - The Causal Link
Section 231(5) of the Criminal Code deems culpable homicide to be first degree murder when “the death is caused […] while committing or attempting to commit” an enumerated offence, in this case, forcible confinement. The appellate judge acknowledged that the salient phrase “while committing” has received extensive judicial commentary and has been interpreted as imposing the requirement that the murder and the predicate offence be distinct, yet part of the “same series of events” (R v Kimberley  157 CCC (3d) 129 (ONCA), at para 108). The two offences must be linked and make the entire course of conduct a single transaction. In addition, a temporal link is not enough, there must also be a causal link (R v Pritchard, 2008 SCC 59 at para 35). That link can be established in various ways and the Appellate judge cited some examples such as: where one offence was committed to facilitate the other, where each offence was committed to facilitate some third offence or where the offences taken together form part of a single transaction. Mr. Alexis argued that the jury ought to have been told that it needed to find that the events were “interrelated.” In oral arguments, Mr. Alexis advanced that the jury ought to have been instructed that it had to find that the forcible confinement facilitated the murder. The appellate judge disagreed with both submissions as the instruction that the murder and confinement had to be closely connected through the same series of events and a single, ongoing transaction was correct. The appellate judge challenged the theory articulated by Mr. Alexis that the confinement had ended or been interrupted by the time of the murder, severing any causal link. The appellate judge did this through presenting several options for the jury to find a temporally and causally linked occurrence of a confinement such as evidence that all exits from the banquet hall had been chained shut.
Relating the Evidence to the Issues + The Unnecessarily Complex Charge
Mr. Alexis argued that the trial judge failed to review evidence and relate it to the issues in the case, specifically the judge’s failure to direct the jury’s attention to Mr. Morrone being a Vetrovec witness and that a careful review of Mr. Morrone’s evidence was required. A “Vetrovec” warning is required when considering the reliability of evidence from disreputable or unsavoury witnesses (R v Vetrovec,  1 SCR 811 at p 832). The appellate judge stated that the trial judge’s charge adequately conveyed to the jury the relationship between the evidence and the issues. The appellate judge was satisfied with the trial judge’s detailed Vetrovec warning in respect to Mr. Morrone and his careful review of Mr. Morrone’s evidence on cross-examination. It was open to the trial judge to structure the charge as he did, as established in R v Bouchard, 2013 ONCA 791 at para 40 and according to the Appellate judge, his approach did not reflect error. The ground of appeal that the charge was unnecessarily complex was not pursued at the hearing but would have anyway been rejected as the Appellate judge did not find the charge to be overly complex.
Funes: Issues on Appeal
Mr. Funes was not present at the robbery and was charged with manslaughter with a firearm under s. 236(a) of the Criminal Code. Mr. Funes argued that the trial judge:
1. erred by leaving party liability as an aider or abettor with the jury; and
2. failed to relate the law to the evidence in his instructions on ss. 21(1) and 21(2) which addressed whether Mr. Funes possessed the necessary mens rea.
The appeal was allowed, the conviction was set aside, and a new trial was ordered.
Instruction on Party Liability for Manslaughter + Prejudice
In the charge to the jury, the trial judge explained two bases on which Mr. Funes could be convicted of manslaughter. These were through “Unlawful Act” Manslaughter under s. 21(1) of the Criminal Code and “Common Unlawful Purpose” Manslaughter under s. 21(2) of the Criminal Code. The appellate judge agreed with Mr. Funes that “Common Unlawful Purpose” was not available on the evidence and should not have been left with the jury. Since it was impossible to know which route was taken in determining Mr. Funes’ guilty verdict, the conviction was set aside, and a new trial was ordered. In this case, the offence “actually committed” for the purposes of s. 21(1) was the unlawful killing of Mr. Nedd and the unlawful act which caused his death was the second assailant firing his firearm into the banquet hall. To be liable for manslaughter, Mr. Funes must have participated in this unlawful act as a principal, aider or abettor. At trial, both the Crown and the defence took the position that the robbery was the unlawful act which led the trial judge into error. The appellate judge cited R v Kelley, 2017 ONCA 920 at paras 25-26 to distinguish between Mr. Funes’ role in planning and executing the robbery, from the role of an aider in the homicide that occurred during the robbery. In addition, the level of mens rea required for a conviction for aiding in an offence under s. 21(1) is less than what is required for a conviction under s. 21(2). The latter section contains an additional requirement for the Crown to establish that the accused had objective foresight that his confederates would commit the secondary offence in the course of carrying out the common purpose. In this case, the trial judge told the jury that under s. 21(1), they had to find that Mr. Funes participated in planning or carrying out the robbery, that the robbery was “objectively dangerous” and that the robbery “caused” Mr. Nedd’s death – this was an easier route to conviction than s. 21(2). This error was sufficient to allow the appeal.
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