|
Criminal - Murder - First Degree. R. v. Nnane
In R. v. Nnane (Ont CA, 2024) the Ontario Court of Appeal dismissed a first degree murder appeal, here dwelling on issues of "planning and deliberation":The evidence was sufficient to establish that the murder was planned and deliberate
[56] The appellant submits that the evidence was incapable of establishing the requirements of planning and deliberation. As for planning, there was no evidence suggesting that he would have known the victims were at the LCBO. The shooting must have been a crime of opportunity following a chance encounter with the victims. There was little time to make a plan; shots were fired approximately four minutes after the appellant and Fountain had entered the LCBO.
[57] The appellant cites several cases in which this court has substituted convictions for second degree murder where there were relatively short periods of time leading up to a murder: R. v. Campbell, 2020 ONCA 221, 149 O.R. (3d) 675 (nine minutes); R. v. Hafizi, 2019 ONCA 2, 373 C.C.C. (3d) 264 (16 minutes); and R. v. Robinson, 2017 ONCA 645, 352 C.C.C. (3d) 503 (seconds or a few minutes). The appellant argues that, even if planning and deliberation was possible in the limited time available, the Crown failed to negate the other plausible inference that the shooting was spontaneous. There was no indication that a plan was in place. The shooter simply ran from the car, shot the victims, then returned to the car. The appellant argues that if the shooting had been planned, he and Fountain would have waited in the parking lot rather than walk into the LCBO where their presence be caught by the security cameras.
[58] The Crown argues that evidence of planning and deliberation is clear from the appellant’s actions caught on the security footage. The appellant picked his target once inside the LCBO and left the store immediately after doing so. He changed seats in the Fusion so that someone else would be driving and ready to leave as soon as the shooting was complete. The appellant did not commence the shooting until Fountain had also left the LCBO, so that both could get away quickly. The time between the appellant’s attendance at the LCBO and the shooting was relatively brief, but this was not a case in which the appellant was reacting to an unfolding event such as a fight or confrontation; the appellant initiated contact with Anzonola in the LCBO and implemented a plan to murder him.
[59] I accept the Crown’s submission.
[60] The cases cited by the appellant are decided on their unique facts. They are not authority for the proposition that any particular period of time is required to support a finding of planning and deliberation, or more generally that planning and deliberation is not possible in a relatively brief period of time.
[61] In Campbell, the first appellant was angry with the victim and the second appellant shot the victim when told to do so by the first appellant following a chance meeting. This court substituted a conviction for second degree murder because the evidence was equally consistent with an impulsive act.
[62] In Hafizi, the appellant, then 18 years old, killed the victim after he was ejected from a nightclub following an altercation with the victim and his friends. Armed with a knife, he ran towards the victim and stabbed him as he left the club. This court considered that the swiftness of the attack was indicative of an impulsive act and substituted a conviction for second degree murder as a result.
[63] In Robinson, the appellant, who had been drinking with the deceased, left the room and returned minutes later with a pipe that he used to hit the deceased in the head. Significantly, the appellant became upset when the victim fell to the ground following the assault; he searched for a pulse and insisted the victim could not be dead. He told his partner, present at the time of the attack, that he had not meant to hurt the victim, much less kill him. In these circumstances, this court concluded that the appellant’s conduct belied any inference that he had planned his attack knowing that he would kill the victim and that he deliberated upon his plan before executing it. The court entered an acquittal on the charge of first degree murder and ordered a trial on second degree murder as a result of errors in the instructions to the jury.
[64] The relatively brief periods of time involved in these cases were not determinative of the lack of planning and deliberation. Brief time periods may well support a finding that a killing was impulsive, but they do not require it. Planning and deliberation can occur in a brief period of time and a simple plan can be carried out quickly.
[65] The features of this case provide ample basis for the jury to have been satisfied beyond a reasonable doubt that the appellant was guilty of first degree murder. There is no evidentiary support for the conclusion that the appellant acted impulsively or spontaneously in shooting the victims. There was no prior incident at the LCBO precipitating any response from the appellant, let alone a deadly one.
[66] The facts of this case speak to a planned and deliberate execution, albeit one for which there is no apparent motive. The absence of motive is a cause for wonder, but it does not change the inherent nature of the appellant’s actions. In particular, it neither precludes nor undermines the conclusion that the killing was planned and deliberate. . R. v. Bush
In R. v. Bush (Ont CA, 2024) the Ontario Court of Appeal considers first degree murder, here involving forcible confinement:[41] Pursuant to s. 231(5)(e) of the Criminal Code, and irrespective of whether it is planned and deliberate, murder is first degree murder when the death is caused while committing forcible confinement. In this case, the evidence that the victims were killed while forcibly confined was overwhelming. Recall that, when found, all three victims had plastic bags affixed over their heads with twine tied around each of their necks, which was attached to their ankles. Forcible confinement occurs if, for any significant amount of time, a person is coercively restrained so that they cannot move according to their own desire: R. v. Sundman, 2022 SCC 31, 416 C.C.C. (3d) 371, at para. 21. In my view, the fact that the murders took place while all three victims were confined is irrefutable. And, unlike planning and deliberation, the trial judge provided a complete and legally correct instruction on unlawful confinement and murder.
[42] The evidence clearly established that all three victims were forcibly confined when they were killed. As such, there is no realistic possibility that a new trial would generate an outcome other than a conviction for first-degree murder.
|
