R. v. Beauregard, 2013 ONCJ 440

COURT FILE No.: 4811 998 12 12003964 01 02 DATE: August 9, 2013 Citation: R. v. Beauregard , 2013 ONCJ 440 ONTARIO COURT OF JUSTICE Old City Hall Toronto Region BETWEEN: HER MAJESTY THE QUEEN — AND — ROBERT BEAUREGARD and JONATHAN ASH Before Justice G.

Sparrow Reasons for Judgment on Committal Released on August 9, 2013 Warren Thompson …………………………….……..……………for the Crown Lisa Fineberg ………………………………….……..…………... for the Crown Robert Nuttall …………………………………………...for Robert Beauregard Edward Sapiano ……………………………………………….for Jonathan Ash Sparrow J : The Facts [ 1 ] The accused are charged with the first-degree murder of Leanne Freeman, on November 29, 2011.

The following facts are uncontested for the purpose of the preliminary hearing. [ 2 ] On November 29, 2011 at around 1:12 a.m., officers from the Toronto Police responded to an emergency call regarding a person lying in the roadway in the area of Unwin Avenue, near Leslie Street and Commissioners Avenue. [ 3 ] Wojciech Komorski, the person who placed the call to 911, had been driving eastbound along Unwin Avenue and saw a person lying in the middle of the road. He did not stop to offer assistance; rather he called police right away and suggested that this person may have been struck by a car.

He said he believed that the person was not breathing. He stayed in his car and continued along Unwin Avenue towards Leslie Street, where he met with police and told them where to find the body. [ 4 ] On consent, Detective Sergeant Brian Borg, the officer in charge provided a

summary of what happened next.

[ 5 ] He testified that the responding scout car officer located Freeman at around 1:16 a.m., lying in the middle of the road. They observed a heavy pooling of blood around her head. She was still breathing. As a result of the 911 call, police first treated this as a potential hit-and-run. Emergency Medical Services (EMS) arrived on the scene and transported her to the hospital. One officer made note of a gold chain around her neck; any clothing removed as a result of EMS assistance was placed on the side of the road and collected later.

No identification was found at the scene. [ 6 ] Freeman was pronounced dead at St. Michael’s Hospital. Police were informed that she had been shot. No identification was found on her person. [ 7 ] Later that morning, four shell casings, identified as .40 calibre Smith & Wesson ammunition, were found in the area. There were no bullet markings observed in the pavement. [ 8 ] The area where she was found was dark and desolate, the closest building being the Hearn Generating Station, located at 440 Unwin Avenue.

A security guard was positioned in its gatehouse, roughly 50-60 meters away from Unwin Avenue. [ 9 ] A witness who lived near the area testified that he heard 5 or 6 gun shots shortly before 1 a.m. – 3 rapid shots, a pause, and then 2 or 3 additional shots. A security guard at the generating station also testified that shortly after 1:00 a.m., he heard two to three shots, and a few more after a pause. [ 10 ] Dr. Michael Pollanen, a forensic pathologist who examined Freeman’s body, testified that the cause of death was a gunshot wound to the head and brain.

In total, Freeman sustained five gunshots wounds to her body. [ 11 ] Dr. Pollanen provided testimony that the gunshot wound to the head and brain was fired from an intermediate range, meaning within arm’s length; it was not a perforating shot, meaning it did not exit the body. Dr. Pollanen determined this by the “stipling” observed on Freeman’s face. Stipling refers to the fragments of unburnt gun powder ejected from the barrel of a firearm that have struck the skin. Dr.

Pollanen described this wound as rapidly incapacitating. [ 12 ] According to his evidence, the other wounds were not of a nature that would have immobilized her or have been fatal if medical attention was received in a timely manner. [ 13 ] Dr. Pollanen concluded that the fatal wound to the head and brain was the only wound that was shot from the front. The other bullets were either shot from the rear or could not be excluded as being shot from the rear. [ 14 ] Forensic examination determined that a male DNA profile was present under the fingernail clippings of Freeman.

The DNA was determined to be suitable for comparison, and was compared against the DNA databank. The male DNA profile was attributable to Jonathan Ash. [ 15 ] It was conceded for the purpose of the preliminary that the accused and Freeman had been travelling that night in a Mazda 6 rented and driven by Beauregard.

The car was ultimately found by police, and searched pursuant to warrant on December 5, 2011. [ 16 ] A report received from the Centre of Forensic Sciences identified the presence of two gunshot residue particles located on the interior panel of the driver’s side, rear passenger door. [ 17 ] A single gunshot residue particle was found on a glove located in the car, but no DNA testing of that glove was conducted.

Blood was not detected on the interior of the Mazda 6 or inside the trunk. [ 18 ] Detective Sergeant Borg testified during cross-examination that the forensic evidence “does not suggest” that she was shot in the car, although he did not rule out that possibility. [ 19 ] Counsel agree that the deceased, the accused and a few witnesses – Vladimir Spasovic, known as “Bear”, Shadi Girgis, and Janet Exconde, a girlfriend of Beauregard – were all part of a circle of heavy methamphetamine users. Their addictions were supported at least in part by thefts and break and enters.

The accused Ash sold stolen goods in exchange for drugs to many in the circle, including Bear. [ 20 ] The accused Beauregard had worked for his family’s business in Whitby, but also held himself out as a methamphetamine dealer. At the time of the shooting he was serving intermittent time, on weekdays, at the jail in Lindsay. Freeman and Beauregard had been involved in a turbulent intimate relationship for several weeks before the shooting; she and Ash had been friends for a somewhat longer period. [ 21 ] According to Bear, the two accused had developed a business relationship at an unspecified point in time.

He testified that he did not trust Beauregard, and his relationship with Ash became strained as a result. He also distanced himself from Freeman because of her relationship with Beauregard. [ 22 ] It was conceded for the purpose of the preliminary that Beauregard had stolen the weapon used to shoot Freeman – a .45 calibre Smith and Wesson handgun – from the home of a high school friend shortly before the murder.

The bullet fragments found in Freeman’s body and the cartridge casings found at the scene were examined by experts and found to have emanated from the stolen gun. [ 23 ] It was also conceded that Beauregard also stole a gold necklace from his friend. [ 24 ] Bear testified that on Sunday, November 27, Ash came to his hotel room in the Howard Johnson Motel at Highway 401 and Warden Avenue in Toronto to negotiate certain sales. Ash brought a grey case with the word “Ruger” moulded into the top. Bear opened the case and showed him a black handgun with three loaded clips.

[ 25 ] Bear said that he wanted to buy the gun for future sale; however Ash said it was not for sale. During the discussion Freeman arrived and yelled “where the fuck is John?” and “where is my toolie?” which is a slang term for “gun”. Bear was angry that she knew where they were and briefly checked out of the motel. [ 26 ] Shadi Girgis testified that the accused Beauregard has been a close friend since 2008, and supplied him with methamphetamine.

He also knew Freeman, who had recently introduced him to Ash. [ 27 ] He testified that on Monday, November 28 th Freeman arrived at his apartment crying and upset about an argument with an “ex”. She was wearing a gold necklace, conceded to be the necklace stolen by Beauregard. She took a shower, changed clothes and stayed throughout the day. [ 28 ] He stated that the accused Beauregard called in the afternoon about selling methamphetamine; when he heard that Freeman was there he spoke to her. Freeman said that she was not going to give “it” back, apparently referring to the gold necklace.

When Beauregard called again later he asked if she was wearing a necklace. He said that he would arrive at Girgis’ apartment in about 20 minutes. [ 29 ] He said that both accused arrived at his apartment at about 9:30 p.m. and left shortly after smoking some drugs. Girgis walked them to the parking lot; Freeman was angry, swearing and arguing with Beauregard. Beauregard, however was attempting to be polite, and asked her to get in the car. Freeman eventually threw her purse, backpack and gym bag in the car, and got in the back seat beside Ash. [ 30 ] Ms.

Valerie Savoie, an acquaintance and customer of Beauregard’s, testified that Beauregard sent Ash to her apartment to sell her methamphetamine on November 27 th ; Ash also sold her counterfeit phone cards. On the night of May 28 th , she called Beauregard and asked him to drive her from a hotel to her home at Queen’s Quay and Spadina in Toronto; he appeared with Ash and Freeman at 11:28 p.m. Ash was holding Freeman under the crook of his arm in the back seat, “cuddling”.

She got out at her apartment, and never saw any of them again. [ 31 ] Using the accused Beauregard’s cell phone number provided by several witnesses and related records, Detective Tam Bui gave a PowerPoint presentation showing where the cell phone was on the night of November 28 and morning of November 29, 2011. Again, for the purpose of the preliminary inquiry, defence counsel do not contest that the cell phone travelled from the area of Girgis’ residence south to the area of Savoie’s residence, then east towards the area of the murder, where it touched off a cellular tower at 12:49:08 a.m.

At 1:16:25 a.m., it touched off a tower further east near a store known as the Bulk Barn; then proceeded further east, [ 32 ] Janet Exconde, a girlfriend of the accused testified that the accused was supposed to pick her up at about 7 p.m. on November 28 th ; however, he contacted her from Girgis’ home at about 9:30 p.m., saying he was delayed. Between midnight and 1:00 a.m. he sent her messages, one saying that he was in the Cherry Beach area dropping off a friend.

At about 1:10 a.m., he sent her a text message saying that he had almost been shot. [ 33 ] At about 3:30 a.m. on November 29 th , the accused picked her up in the Mazda and went to the home of Shane Bastien, known as “Powder”. She said that he went in with a black duffel bag, and came out without it. They then went to a Howard Johnson where Beauregard and Ash had been staying; Exconde remained in the car with another friend who joined them briefly. Later that day, Exconde drove to the Lindsay jail with Beauregard and Ash.

Beauregard stayed to serve his outstanding sentence and she brought the car back to Toronto for her own use. As stated above, it was seized by police on December 5 th . [ 34 ] Bear testified that Ash and Exconde came to his house on the evening of November 29 th ; Ash had the same Ruger case which he had shown him two days before, but tried to sell him an old rifle instead. At about 7 p.m. someone called Bear and told him of Freeman’s death.

Ash told him that Beauregard had driven off with Freeman after dropping him off at Savoie’s home. [ 35 ] Eventually Bear, his drug supplier and Ash met up to try to settle a debt; Ash eventually gave him the empty Ruger case, containing only two clips. He said the gun was with Powder. Bear decided that he did not want any involvement with the gun as he thought it had been used to kill Freeman. [ 36 ] In testimony, Powder denied having or having had the gun.

It has never been located. [ 37 ] On November 30, 2011, two employees of the Bulk Barn on Kingston Road located Freeman’s three bags in a dumpster behind the store. After seeing a photo of Freeman in the newspaper, the manager realized that the identification in the bag matched the photo. She called police, who obtained video footage of two men putting items in the dumpster at 1:26 a.m. on November 29 th . Defence counsel conceded for the purpose of the preliminary that these two men are their clients. [ 38 ] The accused were both arrested approximately two weeks later, and provided statements.

Only Ash’s statement was led at trial. [ 39 ] In his first statement on December 14 th , Ash said that he was dropped off at Savoie’s apartment at about 9 p.m. by Beauregard. He was not present during the murder, but heard shots in the distance. He said that Beauregard and Freeman had been arguing. [ 40 ] Ash said that he spent the night on the Yonge Street subway, and ended up at Bear’s, where he found out about the murder. He said that he had never had an intimate relationship with Freeman, and only gave her a hug when he got out of the car at Savoie’s apartment.

He did not understand how his DNA could be under her nails. [ 41 ] In his second statement on December 15 th , Ash changed his story, saying that Beauregard drove off with Freeman, then came back to Savoie’s and picked him up. They then went to a Howard Johnson’s motel, where they had been staying. The next day he

went to the Lindsay jail with Beauregard and Exconde. Police initially charged him as an accessory after the fact, but later upgraded thecharge to first degree murder. [42] Ash also told police that Freeman was yelling and kicking the car outside Girgis’ apartment. He told her to stop and getin. [43] Alexander Sylvester, a jailhouse informant with a lengthy record in the United State and Canada, testified that he metBeauregard at the Don Jail in April 2012. Beauregard told him about the events that occurred just before and during the murder.

Hesaid he was told that after dropping off Savoie, all three drove to the Portlands, the desolate area where the murder occurred. Ash, whosold methamphetamine for Beauregard, had recently been robbed of $5000 and some drugs; they both believed Freeman set up therobbery. The two stopped the car; Beauregard held Freeman at gun point while Ash beat her to force her to provide the name of therobber. [44] He testified that Beauregard told him that when she would not identify the robber, the two decided to kill her. Beauregard shot her three times in the back seat; one bullet struck her face between the nose and lip.

Ash realized she was not dead andshot her three more times before throwing her out of the car. They dumped her body in the street, and threw her bags in a dumpster. [45] Sylvester also testified that Beauregard said Freeman was killed as a “payback” for setting up the robbery of Ash. [46] The Crown called Dr. Elida Kafarowski, a forensic biologist from the Centre of Forensic Sciences, to provide her expertopinion as to how Mr. Ash’s DNA might have been deposited under Freeman’s fingernails. [47] Dr. Kafarowski’s main duties are the examination of case materials involving blood, semen and saliva.

She conductscomparison analyses of DNA, interprets the results and evaluates their significance. Blood was also found under the nail, although notlinked to anyone. [48] Dr. Kafarowski testified that a high quantity of Ash’s DNA was obtained from Freeman’s left hand, under one or morefingernails. This DNA was also high quality, meaning a full profile was obtained. Blood was also found under the nail, although notlinked to anyone. [49] She testified that a high quantity of foreign DNA that is of high quality is suggestive of something other than normal,everyday activity.

The DNA obtained from under the fingernails could not have come from the transfer of skin cells during a hug orlight scratch. Instead, it is likely that the source of the DNA was blood, semen or saliva. [50] Dr. Kafarowski further testified that she would not expect to see the quantity and quality of the DNA present if Freemanhad recently taken a shower. As stated above, Girgis stated that she had last taken a shower at his apartment that afternoon, whichindicates that the DNA was transferred during the afternoon or evening of the murder.

Analysis [51] Both counsel concede that there is sufficient evidence of the offence of second degree murder to warrant committal oftheir respective clients. They both argue, however that there is insufficient evidence of planning and deliberation to warrant committalon the existing charge of first degree murder. [52] The mental element of first degree murder was described definitively by the Supreme Court of Canada in R.v. Nygaard[1989] 2 S.C.R. 0174 at paragraph 18: “…Murder is first degree murder when it is planned and deliberate.

It must be noted that this Court has stated on more than one occasion that s. 214 is purely a classification

section and it does not create aseparate substantive offence. See R. v. Farrant, (SCC), [1983] 1S.C.R. 124; Droste v. The Queen, (SCC), [1984] 1 S.C.R. 208. The designation of murder as being of the first or second degree is for purposes of sentencing only. What then is the meaning of planned and deliberate and can that classification be applied to the requisite intents set forth in s.212(a)(ii)? It has been held that “planned” means that the scheme was conceived and carefully thought out before it was carried out and “deliberate”means considered, not impulsive.

A classic instruction to a jury as to the meaning of “planned and deliberate” was given by Gale J., ashe then was, in R. v. Widdifield (1961), Ontario Supreme Court, unreported, as excerpted in 6 Crim. L.Q. 152, at p. 153: I think that in the Code “planned” is to be assigned, I think, its natural meaning of a calculated scheme or design which has beencarefully thought out, and the nature and consequences of which have been considered and weighed. But that does not mean, of course,to say that the plan need be a complicated one.

It may be a very simple one, and the simpler it is perhaps the easier it is to formulate. The important element, it seems to me, so far as time is concerned, is the time involved in developing the plan, not the time between thedevelopment of the plan and the doing of the act. One can carefully prepare a plan and immediately after it is prepared set out to do theplanned act, or, alternatively, you can wait an appreciable time to do it once it has been formed.

As far as the word “deliberate” is concerned, I think that the Code means that it should also carry its natural meaning of “considered,”“not impulsive,” “slow in deciding,” “cautious,” implying that the accused must take time to weight the advantages and disadvantages ofhis intended action.”

[53] The Crown presents a second theory – namely that Freeman was killed at the end of a period of forcible confinement. Under this theory, planning and deliberation is not required. Section 231(5)(

e) of the Code states:

(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of aperson when the death is caused by that person while committing or attempting to commit an offence under one of the followingsections: (

e) section 279 (kidnapping and forcible confinement); [54] In R. v. Pritchard 2003 S.C.R at paragraph 24, the Supreme Court of Canada delineated the requirements for a finding ofguilt pursuant to this

section at paragraph 35: “The jurisprudence therefore establishes that second degree murder will be elevated to first [page 213] degree murder where the murderand the predicate offence (in this case unlawful confinement) are linked together both causally and temporally in circumstances thatmake the entire course of conduct a single transaction (Paré).

The temporal-causal connection is established where the unlawfulconfinement creates a “continuing illegal domination of the victim” that provides the accused with a position of power which he or shechooses to exploit to murder the victim (Paré, at p.633 and Johnson, at para. 39).” [55] Both counsel argue that there is insufficient evidence of continuing confinement to support committal on this theory.

Beauregard [56] The Crown submits that the evidence of planning and deliberation by Beauregard should be analyzed by considering allof the evidence except that of Sylvester, and then by considering all of the evidence including that of Sylvester. Either way, there issufficient evidence of planning and deliberation to meet the test in R. v.

Sheppard 2002 SCC 26 , [2002] 1 S.C.R. 869. [57] In a nutshell, the Crown submits that there is evidence that the planning of a murder commenced when, according toGirgis, Beauregard called his home and discovered that Freeman was there and that she was wearing the gold necklace he had stolen. Asstated above, Girgis testified that Beauregard arrived within half an hour and politely persuaded her to get in the car despite her angryprotesting and swearing. Their relationship had been volatile.

He then drove her to a desolate location in the middle of the night whereshe was murdered – by him, as conceded for the purpose of the preliminary inquiry. Counsel submits that a properly instructed jurycould reasonably infer from all of these facts that Beauregard began planning and deliberating this murder when he called Girgis.

Hismotive was to get rid of someone who had become a source of trouble. [58] The Crown also argues that if the evidence of Sylvester is considered, a jury could reasonably find that planning anddeliberation occurred based on his testimony that Beauregard told him that they “decided” to kill her. [59] Counsel relies on decisions which provide that sufficient planning can take place in a very short time, as may haveoccurred here: see R. v. Weese 2010 ONSC 3589 , [2010] O.J. No. 2651. (Ont. Sup. Ct.) and R. v. McMartin (SCC), [1964] S.C.R. 484. The initial plan was to take her to an isolated location to beat her.

It escalated to one of murder as a“payback” for her refusal to cooperate. [60] Mr. Nuttall, for Beauregard, submits that absent Sylvester’s testimony, there is simply not enough evidence of planningand deliberation to convict. Even if Beauregard was angry with her, lured her into the car and drove her to a remote location where shewas shot, a reasonable inference of a plan to kill cannot be drawn. To do so would amount to conjecture, which is prohibited; see R.v.Hay 2009 ONCA 398 , [2009] O.J.

No. 1904 (O.C.A.). [61] He also submits that Sylvester’s testimony does not suggest sufficient planning and deliberation to merit committal;Beauregard’s reported statement that “they decided to kill” her provides no evidence that a plan was created, considered and deliberatedfor sufficient time to warrant a finding of planning and deliberation.

Furthermore, given Borg’s testimony that the evidence “does notsuggest” that she was shot in the car, Sylvester’s evidence must be ignored as it is patently untrue. [62] With respect to the Crown’s second argument based on confinement, he submits that there is insufficient evidence thatshe was confined when she was shot. Again, he relies on Beauregard’s testimony referred to above, and the “patently untrue” nature ofSylvester’s evidence. He submits that if she was shot outside the car, she was not confined. [63] Having considered Mr.

Nuttalls’ able arguments thoroughly, I find that although there are certain weaknesses in theCrown’s case, the test in R. v. Sheppard on both of its theories has been met. [64] In my view, I need not consider either basis for committal without including Sylvester’s testimony. Counsel submits thatit is untrue because of Borg’s evidence regarding whether the murder took place inside or outside the car; however, as noted above Borgdid not say definitively that the murder took place outside the car, only that the evidence “did not suggest it”.

There was gun residuefound inside the car, as described above. [65] Ultimately, Sylvester’s testimony was provided; it is direct in nature and is not subject to weighing at a preliminaryinquiry: see R. v. Arcuri 2001 SCC 54 , [2001] 2 S.C.R. 828. I cannot find that his testimony is “patently untrue”, as to do sowould involve the prohibited function of weighing the evidence. It indicates that Beauregard made a decision, along with Ash, to killFreeman when she would not provided information about the robbery.

[ 66 ] In my view, I need not decide if enough time passed between the decision referred to by Sylvester and the killing to warrant a finding that there is sufficient evidence of planning and deliberation for committal. The jury will consider all of the evidence, not just Sylvester’s description of the final moments.

This includes 1) the evidence of animus, including anger at Freeman’s refusal to return the necklace and to disclose information about the robbery; 2) evidence that he came to Girgis’ home and persuaded her to get in the car; 3) evidence that he drove her off to a desolate location with only Ash in the car; 4) evidence that the gun used to kill her was in the car; 5) evidence that she was shot squarely in the face within arm’s length and 6) Sylvester’s testimony that the killing was a “payback”. [ 67 ] Ultimately, a properly instructed jury could reasonably infer that before heading to the Portlands, Beauregard planned to assault Freeman to obtain information and to kill her if it was not given.

The ultimate decision to kill her flowed from the earlier planning and deliberation and was effectuated as a “payback”, or simply to get rid of her. It is true that the Crown need only demonstrate one reasonable inference; the above described finding is clearly one of them. As stated in R. v. Dwyer 2013 ONCA 368 (O.C.

A) at paragraph 4 : “Reasonable inferences are not necessarily likely or probable inferences. The inference that is most favourable to the Crown must be drawn at the preliminary inquiry stage. Difficult inferences to draw may still nonetheless be reasonable.” [ 68 ] With respect to the Crown’s second theory, in my view, on all of the evidence including Sylvester’s, a properly instructed jury could find that Beauregard killed Freeman as the culmination of a period of forcible confinement.

According to Sylvester, Beauregard told him that he shot her three times inside the car – clearly evidence of a continuing confinement which began when Beauregard persuaded her to get into the car at Girgis’ apartment. As stated above, I cannot find that Sylvester’s evidence is “patently untrue”. [ 69 ] Furthermore, even if a jury determined that the killing took place outside the car, it could find that the period of confinement continued until she was shot. According to Dr.

Pollanen the first bullet was shot within arm’s length of her face; even if she was outside the car, possibly trying to escape, a jury could reasonably find that she was still under Beauregard’s power and domination if he was pointing a gun in her face. Given this evidence of continuing domination and confinement, as described in Pritchard , supra, the Crown has clearly met the Sheppard test on its second theory.” [ 70 ] The accused Beauregard will therefore be committed for trial on the charge of first degree murder on the basis of the evidence supporting both theories. Ash [ 71 ] As stated above, Mr.

Sapiano, counsel for Ash concedes that there is sufficient evidence for his client to be committed for trial on a charge of second degree murder. He words the concession as follows: “From the above noted pieces of evidence, it is seen that Mr. Ash puts himself with the victim immediately before the shooting. He puts himself within earshot of the shooting scene at the time of the shooting. He puts himself with Mr. Beauregard both immediately before and immediately after the shooting. He is seen with the subject firearm just hours prior to the shooting.

The day after the shooting he is seen with the same box the homicide weapon had been in, and he was seen with one of the three original clips as well. His DNA is found beneath at least one finger nail on the left hand of the victim, suggesting “intimate” contact. The Bulk Barn surveillance video clearly shows TWO men dumping Ms. Freeman’s belongings about an hour after the shooting. The bullet wounds sustained by Ms. Freeman easily allow for an inference that the shooter intended to kill at the time of the shooting.

Taken collectively, a properly instructed jury, acting reasonably, could infer that, despite his denials, Mr. Ash was in fact present at the shooting scene when the shooting occurred, and that he was either the shooter or that he aided or abetted Mr. Beauregard in shooting and killing Ms. Freeman.” [ 72 ] He argues, however, that there is no evidence of planning and deliberation to kill by his client.

He correctly emphasizes that none of the testimony of Sylvester can be used against his client. [ 73 ] With respect to the Crown's second theory - namely that Ash participated in an unlawful confinement that ended with the murder - counsel reiterates Beauregard's argument that the murder was not connected to any confinement. Like Mr. Nuttall, Mr. Sapiano submits that the evidence shows that she was shot outside the car and was therefore not confined.

Furthermore, he argues that there is no evidence that his client was a party to any confinement in the car; in fact according to Savoie he was cuddling with her in the back seat. In addition he submits that unlike Beauregard, Ash exhibited no animus towards her. [ 74 ] Ultimately I need not decide the difficult question of whether there is sufficient evidence of planning and deliberation of murder on the part of Ash to meet the Sheppard test.

On all of the evidence, a properly instructed jury could reasonably find him guilty on the basis of the second theory - namely that he participated in the unlawful confinement which culminated in the murder. [ 75 ] As stated previously, there is no clear evidence that Freeman was not shot in the car - Borg only said that the evidence "suggested it". Gun shot residue was found inside the car. Blood could have been removed.

Furthermore, as stated above, a jury could reasonably find that she was still confined outside the car on the basis of evidence that she was shot in the face at arm's length. [ 76 ] With respect to Ash's alleged participation in the confinement, in my view a jury could reasonably find that he was a party to it. The following evidence could form the basis for such a finding:

(1) Ash's admission that he told her to stop kicking the car and get in, outside Girgis' apartment; (2) evidence that Ash stayed in the car with Beauregard and Freeman as they made their way to the desolate area where the body was

found; (3) evidence that he had the gun, or knew that the gun was in the car (primarily Bear's testimony about his control of the gun) throughout the drive and could be used to perpetuate confinement; (4) evidence from Dr.

Kafarowski that his DNA was under one or more of Freeman's fingernails, indicating more than casual contact between them; (5) evidence that there was blood, although not identified, under her fingernails, and (6) evidence that Freeman tracked down Ash in Bear's hotel room to claim the gun, "her toolie". [ 77 ] As submitted by the Crown, a jury could reasonably find that Ash participated in a murder which was committed during a period of ongoing confinement, inside and potentially outside the car.

It could be inferred that he struggled with her to facilitate the shooting by Beauregard, transferring DNA in the process; it could be inferred that he controlled her by pointing the gun at her at some point, even shooting it, or at least by trapping her so that Beauregard could do it. As stated above, counsel conceded that it could be inferred that he was the shooter. The jury could infer that the cuddling was either insignificant or an attempt to calm her in order to facilitate the confinement.

Although he did not have the reasons for animus that Beauregard did, she had interfered with his negotiations with Bear by bursting in and claiming the gun as her "toolie". [ 78 ] For the above reasons a reasonable inference could be drawn that Ash participated in a constructive murder as defined under Section 231(5)(

e) of the Code. As stated in Dwyer , supra, difficult inferences may be reasonable. [ 79 ] He will therefore be committed for trial on the charge of first degree murder on the basis of the continuing confinement theory. Released: August 9, 2013 Signed: Justice Geraldine N. Sparrow