R. v. Downey, 2019 NSSC 113

SUPREME COURT OF Nova Scotia Citation: R. v. Downey, 2019 NSSC 113 Date: 20190311 Docket: CRH 469488 Registry: Halifax Between: Her Majesty the Queen v. Shawntez Neco Downey and Daniel Romeo Downey Decision – Directed Verdict Motions Judge: The Honourable Justice Denise M. BoudreauHeard: March 8, 2019, in Halifax, Nova ScotiaCounsel: Cheryl Schurman and Erica Koresawa, for the Crown Eugene Tan, for the Defence (Shawntez Neco Downey) Quy Linh, for the Defence (Daniel Romeo Downey) By the Court: [1] Shawntez Downey and Daniel Downey stand trial in respect of a number of criminal charges.

Their trial commenced onFebruary 19, 2019, before a jury.

Following the close of the Crown’s case, both defendants have made motions for directed verdicts ofacquittal in respect of some of the charges. [2] Shawntez Downey moved for a directed verdict in relation to Count 1 on the Indictment (s. 235 CC; first degree murder ofTylor McInnis). [3] Daniel Downey moved for directed verdicts in relation to Count 2 (s. 279(2) CC; unlawful confinement of Liam Thompson),Count 3 (s. 279(1) CC; kidnapping of Liam Thompson), and Count 6 (s. 344 CC; robbery of Tylor McInnis). [4] I gave oral decisions as to these applications on March 11.

In relation to the application as to Count 1 made by ShawntezDowney, I dismissed his application for a directed verdict on the charge of murder; however, I granted his application for a directedverdict as to first degree murder. [5] As to the applications for directed verdict made by Daniel Downey in relation to Counts 2 and 3, those applications weredismissed. [6] As to the application for directed verdict made by Daniel Downey in relation to Count 6, that application was granted.

Adirected verdict of acquittal was entered on Count 6 (s. 344 CC; robbery of Tylor McInnis). [7] I indicated when giving these decisions that my fulsome and complete reasons would follow in writing at a later date. Whatfollows are those reasons. Test for Directed Verdict [8] The test for a directed verdict of acquittal is well known.

The Court must consider whether there is any evidence upon whicha reasonable jury, properly instructed, could convict the accused: 21 The question to be asked by a preliminary inquiry judge under s. 548(1) of the Criminal Code is the same as that asked by a trialjudge considering a defence motion for a directed verdict, namely, “whether or not there is any evidence upon which a reasonable juryproperly instructed could return a verdict of guilty”: Shephard, supra, at p. 1080; see also R. v. Monteleone, (SCC),[1987] 2 S.C.R. 154, at p. 160.

Under this test, a preliminary inquiry judge must commit the accused to trial “in any case in which thereis admissible evidence which could, if it were believed, result in a conviction”: Shephard, at p. 1080. 22 The test is the same whether the evidence is direct or circumstantial: see Mezzo v. The Queen, (SCC), [1986] 1S.C.R. 802, at pp. 842-43; Monteleone, supra, at p. 161. The nature of the judge’s task, however, varies according to the type of evidence

that the Crown has advanced. Where the Crown’s case is based entirely on direct evidence, the judge’s task is straightforward. By definition, the only conclusion that needs to be reached in such a case is whether the evidence is true: see Watt’s Manual of Criminal Evidence (1998), at §8.0 (“[d]irect evidence is evidence which, if believed, resolves a matter in issue”); McCormick on Evidence (5th ed. 1999), at p. 641; J. Sopinka, S. N. Lederman and A. W.

Bryant, The Law of Evidence in Canada (2nd ed. 1999), at §2.74 (direct evidence is witness testimony as to “the precise fact which is the subject of the issue on trial”). It is for the jury to say whether and how far the evidence is to be believed: see Shephard , supra , at pp. 1086-87. Thus if the judge determines that the Crown has presented direct evidence as to every element of the offence charged, the judge’s task is complete. If there is direct evidence as to every element of the offence, the accused must be committed to trial. ( R. v.

Arcuri , 2001 SCC 54 ) [ 9 ] In the case at bar, the evidence put forward by the Crown as to the guilt of the accused is, to a large extent, circumstantial. The Supreme Court in Arcuri made further comments about the task before a Court in such a case: 23 The judge’s task is somewhat more complicated where the Crown has not presented direct evidence as to every element of the offence. The question then becomes whether the remaining elements of the offence – that is, those elements as to which the Crown has not advanced direct evidence – may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requires the judge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gap between the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should be believed: see Watt’s Manual of Criminal Evidence , supra , at §9.01 (circumstantial evidence is “any item of evidence, testimonial or real, other than the testimony of an eyewitness to a material fact.

It is any fact from the existence of which the trier of fact may infer the existence of a fact in issue”); McCormick on Evidence , supra , at pp. 641-42 (“[c]ircumstantial evidence . . . may be testimonial, but even if the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge must therefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asks the jury to draw. This weighing, however, is limited.

The judge does not ask whether she herself would conclude that the accused is guilty. Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed , could reasonably support an inference of guilt. 24 The principles described above are well settled. [ 10 ] In other words, my task is to determine whether the inference that the Crown asks to draw in any particular case can reasonably be made.

If it can, I am not to weigh it as against any other possible inferences, or to choose which of the inferences I would make; that is a task for the trier of fact, in this case, the jury. Count 1 - Murder [ 11 ] The evidence presented by the Crown as to Count 1, charging first degree murder against Shawntez Downey, is circumstantial. The evidence largely came from witness Ronald Sock, an admitted participant in the events leading to/after the death of Tylor McInnis. [ 12 ] Mr. Sock testified, inter alia , that: 1.

He was with both accused during the evening of August 22, 2016, at their residence at 10/11 Alex Lane, North Preston, Nova Scotia. 2. He was of the understanding that Tylor McInnis was coming to that residence to exchange drugs for a gun with Shawntez Downey. He was further of the understanding that Shawntez Downey intended to rob Mr. McInnis. 3. Mr. McInnis attended at the residence, driven by Liam Thompson. Mr. Sock witnessed some of the interaction between Mr. McInnis and Mr. Shawntez Downey in the driveway of that residence. Mr. Shawntez Downey then struck Mr. McInnis with a handgun that was in his (Mr.

Downey’

s) possession. Mr. McInnis then ran away and was pursued by Shawntez Downey, Daniel Downey, and Nicco Smith. 4. Mr. Sock tied up Liam Thompson and he was placed in the back seat of his vehicle. Approximately one to one and a half hours later, Mr. Sock heard a gunshot. 5. Approximately 15 minutes after that, Daniel Downey returned and took Mr. Sock and Mr. Thompson to a nearby location, where Mr. Sock observed that Mr. McInnis was deceased. With the body of Mr. McInnis are Shawntez Downey, Nicco Smith, and another gentleman (“Little Jiggy”); Mr. Sock observed no weapons at that time. 6. Mr.

Sock was asked by Shawntez Downey and Nicco Smith to assist in placing the body of Tylor McInnis in the trunk of the car. Mr. Thompson was still tied up in the back seat. 7. Shawntez Downey drove the car, containing the body of Mr. McInnis, and Mr. Thompson, to a nearby cemetery. Mr. Sock was in a second vehicle, along with Daniel Downey, Nicco Smith, and “Little Jiggy”, that followed Mr. Downey to the cemetery. Mr. Shawntez Downey shot a firearm in the direction of Mr. Thompson. The car containing Mr. Thompson and the body of Mr.

McInnis was left there, and the others (including Shawntez Downey) returned to the Alex Lane residence. [ 13 ] I also note the evidence of the Medical Examiner, Dr. Mont, who testified that Tylor McInnis died as a result of a single gunshot injury. He testified that the fatal bullet first entered/exited Mr. McInnis’s chin area, then re-entered his torso and exited through his back. [ 14 ] The identity of the person who fired the shot that killed Mr. McInnis is an essential element of the offence of murdering Mr. McInnis. The Crown submits that it will ask the trier of fact to make the inference that because Mr.

Shawntez Downey was: (

a) the person who was intending to rob Tylor McInnis;

(

b) the only person (among the three who chased Mr. McInnis) who had a firearm in his possession; and (

c) the person (or one of them) who was directing the “cleanup” after Mr. McInnis was killed, including the drive to the cemetery, and the attempted “elimination” of witness Liam Thompson; that Shawntez Downey was, in fact, the person who shot Mr. McInnis and caused his death. [ 15 ] Counsel for Shawntez Downey submits that there is no evidence as to this essential element of identity. He points out that there is a significant gap in the evidence (an hour to an hour and a half), during which time we have no evidence of what occurred.

Counsel submits that this gap, combined with the fact that there is no eyewitness evidence as to the shooting of Mr. McInnis, means that it is not reasonable to infer that Shawntez Downey was the shooter. [ 16 ] While I take defence counsel’s point about the gap in time, I disagree with his conclusion. I find that there is enough circumstantial evidence to, at least, make that inference proposed by the Crown a reasonable one.

Certainly it is not the only conclusion that the jury can come to, but it will be for them to decide. [ 17 ] Secondly, counsel for Shawntez Downey has argued that the Crown has provided no evidence in support of the third element of murder; that is to say, the intent to kill. Quite frankly, I see little merit in that submission. [ 18 ] In my view, a jury could very reasonably make an inference of intent. As I previously indicated, the evidence of the medical examiner was to the effect that the bullet first entered Mr. McInnis’ chin area, then travelled through his chest, exiting through his back.

Surely it would be a perfectly reasonable inference to make that a person administering such a shot (essentially to the face of the victim) was intending to kill, or intending to cause bodily harm that could cause death, and was reckless as to whether death would ensue. [ 19 ] As a result, I dismiss the motion for directed verdict as to the charge of murder. [ 20 ] As to the murder being charged as a first degree murder, it is the position of the Crown that the facts of this matter support such a charge pursuant to the provisions of ss. 231(5) (

e) of the Criminal Code : 231(5) Irrespective of whether a murder is planned or deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections: … (

e) kidnapping and forcible confinement; ... [ 21 ] It is the position of the Crown that the evidence of Mr. Sock leads us to the inference that Mr. McInnis, at the time he was killed, was being confined. They point to the fact that Mr. McInnis would have either been, or subjectively felt, confined while in the driveway of 10/11 Alex Lane, and that his escape and the “chasing” effected by Mssrs. Downey, Downey, and Smith was an effort to continue the confinement.

At the very least, argues the Crown, it was an attempted confinement that continued when the accused chased the victim. [ 22 ] The Crown further notes the presence of a shell casing and bleach bottle (later found in reasonably close proximity to 10/11 Alex Lane) as evidence that Mr. McInnis was captured quickly following his escape and, therefore, his “confinement” would have continued until the time he was murdered. [ 23 ] The Crown has provided me with cases dealing with ss. 231(5) (e), notably R. v. Pritchard , 2008 SCC 59 and R. v.

White , 2014 ONCA 64 . [ 24 ] In the White case, four men had decided to rob a fifth person. A witness saw the victim running from the four men, and also saw one of them catch him, holding him from behind in a “bear hug”. As he struggled, Mr.

White ran up and stabbed the victim in the chest (two or three seconds later). [ 25 ] The Court (at para. 47) noted the following essential elements of first degree murder pursuant to ss. 231(5) (e): That the accused unlawfully confined or attempted to unlawfully confine the victim or another person; That the accused murdered the victim; That the accused participated in the murder of the victim in such a way that the accused was the substantial cause of the victim’s death; That no intervening act or somebody else resulted in the accused no longer being substantially connected to the victim’s death; and That the crimes of unlawful confinement, whether completed or attempted, and murder were part of the same transaction, in that the victim’s death was caused while the accused was confining or attempting to unlawfully confine the victim or another as part of the same series of events. [ 26 ] I will consider the case before me in light of these five essential elements. [ 27 ] As to the first element, in my view, it might be possible for a reasonably instructed jury to infer that the events in the driveway constituted a confinement of Tylor McInnis, or in the alternative, an attempted unlawful confinement.

[ 28 ] On the other hand, even if one were to conclude that the events in the driveway constituted a confinement, or an attempted unlawful confinement, one could not extrapolate from that to the time of the actual murder. The only evidence we have is that the gunshot (assuming that to have caused the death of Mr. McInnis) occurred between one to one and a half hours after the events in the driveway took place. The items of evidence located nearby, in my view, do not point to any logical inference in relation to timing.

One simply could not conclude, on the basis of those facts alone, that the confinement (or attempted confinement) of Mr. McInnis continued for all that time. While certainly it is possible, it is speculative at best. [ 29 ] As a result, it is my view that on the evidence before us, a reasonable jury, properly instructed, could not draw the inference that the Crown suggests, that Mr.

McInnis was shot while confined (or during an attempted confinement). [ 30 ] I therefore grant the motion for directed verdict of acquittal on the aggravated charge of first degree murder. [ 31 ] The charge of murder in the second degree will proceed and will be put to the jury.

Counts 2 and 3 - Confinement and Kidnapping [ 32 ] Daniel Downey submits that there is no evidence upon which a properly instructed jury could convict him of either unlawful confinement, or kidnapping, of Liam Thompson. [ 33 ] Kidnapping (ss. 279(1)) can be described as a movement or taking of a person from one place to another, in circumstances where the person is confined or imprisoned against the person’s will.

The offence of unlawful confinement is described in ss. 279(2), where a person “without lawful authority, confines, imprisons, or forcibly seizes another person”. [ 34 ] The evidence presented by the Crown, again from Ronald Sock, is to the effect that: 1. He told Liam Thompson to get out of his car and lie on the ground; 2. He later tied up Mr. Thompson with a dog leash; 3. He and Daniel Downey later took Mr. Thompson (still tied up) and placed him in the back seat of Mr. Thompson’s vehicle; 4. Daniel Downey drove the vehicle, containing Mr. Sock and the tied-up Mr.

Thompson, to another location two minutes away; and 5. Daniel Downey left and returned some minutes later, and again drove the vehicle containing Mr. Sock and Mr. Thompson to yet another location a very short distance away. [ 35 ] In my view, there is some evidence upon which a properly instructed jury could convict Daniel Downey of kidnapping and unlawful confinement. [ 36 ] I dismiss the applications for directed verdict in respect of Counts 2 and 3 of the Indictment.

Count 6 - Robbery [ 37 ] Daniel Downey submits that there is no evidence upon which a properly instructed jury could convict him of robbing Tylor McInnis. [ 38 ]

Section 343 of the Code provides: 343 Every one commits robbery who (

a) steals, and for the purpose of extorting whatever is stolen or to prevent or overcome resistance to the stealing, uses violence or threats of violence to a person or property; (

b) steals from any person and, at the time he steals or immediately before or immediately thereafter, wounds, beats, strikes, or uses any person violence to that person; (

c) assaults any person with intent to steal from him; or (

d) steals from any person while armed with an offensive weapon or imitation thereof. [ 39 ] There was no evidence put forward that Daniel Downey stole anything from Tylor McInnis at any time. The Crown made the submission that Daniel Downey’s liability for robbery rested in ss. 343(

c) noted above; that of assaulting a person “with intent to steal from him”. [ 40 ] As I indicated in my review of the evidence hereinabove, there was evidence from Ronald Sock that Shawntez Downey struck Tylor McInnis with a handgun. That is the only assault referenced in the evidence in relation to Mr. McInnis. [ 41 ] That event did not include Daniel Downey in any way. While Daniel Downey appears to have been present for the assault, there is no evidence that he aided, or abetted, or contributed to that event. Mere presence does not ground criminal liability. [ 42 ] According to Mr. Sock, after Mr.

McInnis was assaulted he ran away, and was pursued by Daniel Downey, Shawntez Downey, and Nicco Smith. By the time of the chase, the predicate offence noted in ss. 343(c) (the assault of Mr. McInnis) has already concluded, with no involvement by Daniel Downey.

[ 43 ] I therefore find that there is no evidence upon which a properly instructed jury could convict Daniel Downey of robbery. A directed verdict of acquittal will enter as to that charge, Count 6 on the Indictment. Boudreau J.