R. v. Whynder, 2019 NSSC 234

SUPREME COURT OF Nova Scotia Citation: R. v. Whynder , 2019 NSSC 234 Date: 20190724 Docket: CRH 470463 Registry: Halifax Between: Her Majesty the Queen v. Ricardo Jerrel Whynder Decision - Motion for Directed Verdict Judge: The Honourable Justice Denise Boudreau Heard: June 14, 2019, in Halifax, Nova Scotia Counsel: Rick Woodburn and Sean McCarroll, for the Crown Trevor McGuigan and Colin Coady, for the Defence By the Court: [ 1 ] Ricardo Whynder is charged with first degree murder. At the end of the prosecution’s case, defence counsel sought a directed verdict of acquittal. The Crown opposed the motion.

After a short (one day) adjournment, I dismissed the application for directed verdict, although I ordered that constructive first degree murder ( ss. 231(5) of the Criminal Code ) would not be put to the jury. The jury would only be instructed on first degree murder that was planned and deliberate. I indicated to counsel that my fulsome written reasons would follow in due course. These are those reasons. [ 2 ] While it is not my intention to canvass the entirety of the Crown’s evidence, a review of some of the more relevant evidence is necessary to provide a context for the motion.

For the purposes of this directed verdict motion, I will outline the Crown evidence as it was given. [ 3 ] Darlene Sudds testified that she is the mother of Matthew Sudds. He was 24 years old and lived with her in her apartment. She knew Mr. Whynder for about five years, as a friend of Matthew. On October 9, 2013, Matthew left a message for her to give $350 to Mr. Whynder. Mr Whynder came to her building on that date, and she met him in her lobby. She gave him $350 as instructed. She saw a black car parked outside the door, and said it was a black Charger. [ 4 ] On October 10, 2013, Ms.

Sudds came home from work, Matthew and his friend William Cohoon were at the apartment. Ms. Sudds went out to run errands. During her errands, Matthew contacted her and said he was going out. When she returned to her apartment, Matthew was gone and never returned. On October 11, in the morning, Matthew was still not home and did not contact her. She was worried as this was unusual. On October 12, Ms. Sudds began calling Matthew’s friends to see if they knew where he was. She called Ricardo Whynder. He said he did not know where Matthew was. He said he would check things out and give her a call back. [ 5 ] Ms.

Sudds testified that Mr. Whynder called her back about a half hour later and said, “Matthew is in trouble, there have been shootings in Dartmouth, I had to put him on a plane to Montreal to get him out of the city”, or words to that effect. Mr. Whynder said he was at the airport dropping off Matthew, and that Matthew said not to worry. Ms. Sudds felt this was strange, since she believed Matthew would have phoned her if he was in trouble.

[6] Wayne Nickerson, taxi driver, testified that he picked up Mr. Sudds at his mom’s house on October 10. Mr. Sudds was with afellow named Bobby, who Mr. Nickerson had never seen before. Mr. Sudds asked Mr. Nickerson to take them to the Burger Kingparking lot at Young Street / Kempt Road. The drive took ten minutes, and Mr. Sudds was using his phone during the drive. They pulledin and waited approximately ten to 15 minutes. Then a black car pulled in behind them. [7] Mr. Sudds got out of the taxi and said, “I’ll be back in ten or 15 minutes.” [8] Mr.

Nickerson testified that he looked over his right shoulder and saw Mr. Sudds get into the front passenger seat of the blackcar. Mr. Nickerson described that it appeared to him that Mr. Sudds was immediately pulled back in the seat. Then the door closed andthe car left. [9] Mr. Nickerson described having a bad feeling. Mr. Sudds did not return. Mr. Nickerson tried calling him and finally left theparking lot after about an hour and 10 minutes. [10] The phone records for both Mr. Sudds and Mr.

Whynder appear to show communication between their phones up to the time ofhis entry into this black vehicle; after which time Mr. Sudds’ phone no longer communicates. [11] Mr. Sudds was found on October 14, in a ditch area off the Africville Road in Halifax. He was deceased. [12] Police examined a black Dodge Charger, New Brunswick licence plate JGA 034, which appears to have been the vehicle thatMr. Sudds was picked up in. Mr. Whynder had been seen by various police officers on October 10 in that vehicle.

The vehicle was foundto have been rented by Jasmina Munroe-Last from October 8 at 11:30 a.m. to October 11 at 11:44 a.m. [13] Police searched the area where Mr. Sudds was found, and located one unspent bullet, still in its cartridge, and one spent shellcasing. By digging out the ground and sifting through the dirt, police also found a spent projectile (approximately below Mr. Sudds’head), along with another spent shell casing. [14] D/Cst.

JJ Wasson examined the black Dodge Charger and found fingerprints matching to Devlin Glasgow, on the door postbetween the front and rear seats of the vehicle, on the passenger side. He also found one stain in the back middle seat, at the area of aperson’s lower back. He swabbed this stain and sent it to the lab; it matched Matthew Sudds’ DNA. Another faint stain in the trunk cameback matched to multiple persons’ DNA, with one major component also being Mr. Sudds. [15] Dr. Marnie Wood was the medical examiner / pathologist who performed the autopsy on Matthew Sudds. She confirmed thatMr.

Sudds’ cause of death was a single gunshot to his head. Dr. Wood also described three other injuries she found on Mr.Sudds, ofwhich none had healed. First, a fairly deep laceration on his head, which she described as blunt force trauma. She also noted moregunshot wounds, one to his neck, with the entry at the front of neck, and exit at the back of neck; and another gunshot wound with itsentry outside of Mr. Sudds’ left arm, and exit at the chest / collarbone area. Dr. Wood testified that these last wounds could have beencaused by one bullet, or two, depending on how Mr.

Sudds’ arm was positioned during the events. [16] Dr. Wood could not tell what position Mr. Sudds was in when shot. She also could not say in which order the injuries occurred,that is, which of them was first or second or third. Dr. Wood could not provide the time of death of Mr. Sudds. [17] Through both video evidence and records from Air Canada, it was shown that Mr. Whynder and Devlin Glasgow left Halifaxon October 11, 2013, by airplane. They both flew to Toronto, Ontario, that evening. In Toronto, Mr. Glasgow flew on to Vancouver.

Mr.Whynder, despite having a ticket to continue on to Vancouver, disembarked and left the Toronto airport by taxi. [18] Officer John Mansveld testified that he saw Jasmina Munroe-Last with Ricardo Whynder on November 6, 2013. Phone recordsshow a number of text communications between Mr. Whynder and Ms. Munroe-Last on both October 8 and 11 (the dates of rental andreturn of the Dodge Charger vehicle) at the relevant times. [19] Dr. Nigel Hearns found gun shot residue in the black Dodge Charger. [20] On March 9, 2017, Mr. Whynder called the Nova Scotia unsolved major crime rewards call line.

During that call, he admittedbeing in the vehicle at the time Mr. Sudds was killed. When advised that a person “involved” in a homicide could not collect a reward,he questioned the meaning of the word “involved”. [21] Mr. Whynder was later arrested and gave a statement denying being in this car, and denied knowing either Matthew or DarleneSudds. He denied taking money from Darlene Sudds, and in fact denied having called the rewards line. [22] Sgt. Kurt Walsh testified that he spoke to Mr. Whynder during his arrest, since Mr. Whynder asked to speak to him. Sgt. Walshsaid that Mr.

Whynder told him, “I can give you the shooter for the Matthew Sudds homicide.” Sgt. Walsh further testified that he spoketo Mr. Whynder at the Vancouver airport, during their return to Halifax. He said that Mr. Whynder asked him, “Is Devlin Glasgow inHalifax?” Sgt. Walsh said, “No.” Ricardo Whynder asked, “Has Devlin Glasgow been arrested?” Sgt.

Walsh said, “No.” RicardoWhynder answered, “He will be on Wednesday.” Law [23] It is well known that the test to be applied upon an application for a directed verdict of acquittal is the same as that applied by apreliminary inquiry determining whether an accused should stand trial for an offence. It is the test formulated in United States ofAmerica v.

Shephard (1976), (SCC), 30 C.C.C. (2d) 424: that is, whether there is any evidence upon which a reasonableand properly instructed jury could convict. [24] The test remains the same in all cases; however, where the Crown’s case is largely or entirely circumstantial, the trial judgemust engage in some “limited weighing” of the evidence presented:

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 notadvanced direct evidence – may reasonably be inferred from the circumstantial evidence.

Answering this question inevitably requires thejudge to engage in a limited weighing of the evidence because, with circumstantial evidence, there is, by definition, an inferential gapbetween the evidence and the matter to be established – that is, an inferential gap beyond the question of whether the evidence should bebelieved: 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 theexistence of a fact in issue”) ; McCormick on Evidence, supra, at pp. 641-42 (“[c]ircumstantial evidence….may be testimonial, but evenif the circumstances depicted are accepted as true, additional reasoning is required to reach the desired conclusion”). The judge musttherefore weigh the evidence, in the sense of assessing whether it is reasonably capable of supporting the inferences that the Crown asksthe jury to draw. This weighing, however, is limited. The judge does not ask whether she herself would conclude that the accused isguilty.

Nor does the judge draw factual inferences or assess credibility. The judge asks only whether the evidence, if believed, couldreasonably support an inference of guilt. (R. v. Arcuri 2001 SCC 54 , [2001] 2 S.C.R. 828, at pp. 31-32) [25] In the present case, the majority of the Crown evidence was circumstantial.

In addition to that, some of the circumstantialevidence was in the form of after-the-fact conduct. [26] Defence counsel argued that the nature of the circumstantial evidence here, in particular the after-the-fact conduct, could notpossibly assist the trier of fact in assessing the level of culpability of the accused. In the defence’s view, the evidence could only go togeneral, or “baseline” culpability. In other words, the defence argued, even at its height the Crown evidence could only, perhaps, point tosome “involvement” or “participation”, on the part of the accused, in the death of Mr. Sudds.

It could not help determine his level ofinvolvement in the killing, i.e., first degree murder (planning and deliberation); second degree murder; manslaughter; or even assistanceafter-the-fact. [27] I disagree. In my view, there is evidence here that meets the United States of America v. Shephard, supra, and Arcuri, supra,tests. In my view, the whole of the evidence that has been presented by the Crown (as I have described hereinabove) could, if believed,reasonably support a finding of guilt in relation to first degree murder, either as a principal or as an aider or abettor to that murder.

I findthat the Crown evidence could lead a trier of fact to make certain inferences, not only as to Mr. Whynder’s involvement in this homicide,but as to his level of involvement. I find both the pre- and post-offence conduct of Mr. Whynder could be useful to the jury in thoserespects. For example: (

a) From the telephone records, a trier of fact could see that Mr. Whynder was repeatedly communicating by text with Ms.Munroe-Last at the times that she was renting and returning the black Dodge Charger, and could reasonably draw the inference that theywere making those arrangements together; (

b) Again from the telephone records, a trier of fact could see that Mr. Sudds was communicating with Mr. Whynder during thedrive by taxi to the Burker King parking lot, and could reasonably draw the inference that Mr. Whynder was the person Mr. Suddsintended to meet at that location; (

c) From the telephone call between Mr. Whynder and Ms. Sudds, a trier of fact could reasonably draw the inference that Mr.Whynder was attempting to divert attention from Mr. Sudds’ disappearance, and delay a search for him; (

d) From the fact that Mr. Whynder and Mr. Glasgow left Halifax on October 11, with plane tickets purchased by a third party, atrier of fact could reasonably draw the inference that Mr. Whynder was fleeing the province at the earliest possible opportunity. [28] There are other examples. These items of circumstantial evidence are relevant to not only general involvement, but potentially toMr. Whynder’s specific level of culpability. Obviously, there are other inferences that a trier of fact could draw; I am not suggesting thatmy examples are the only conclusions that could be drawn from the evidence.

My jury charge will clearly state that the jury cannotconvict Mr. Whynder unless they reject all other reasonable inferences that could be drawn. But in my view, the above inferences, aswell as others, are reasonable inferences that a jury could arrive at, that point to Mr. Whynder’s level of involvement. Consequently, itwill be for them to decide. [29] I want to, in particular, note that the Supreme Court has explicitly ruled that post offence conduct can, in appropriatecircumstances, be used to assess an accused’s level of culpability. R. v.

Calnen, 2019 SCC 6 is the most recent authority on the issue ofafter-the-fact conduct. The majority of the Supreme Court agreed with Justice Martin’s comments on the law of after-the-fact conduct: [119] Contrary to certain suggestions made in the courts below, there is no legal impediment to using after-the-fact conduct evidence indetermining the accused’s intent.

The jurisprudence of this Court is clear: after-the-fact conduct evidence may be relevant to the issue ofintent and may be used to distinguish between different levels of culpability… … [124] After-the-fact conduct evidence will not always or necessarily be equally consistent with two offences, and it is open to the trier offact to conclude that the conduct is more consistent with one offence than the other: see White (1998), at para. 27. The key is thereforedetermining what “equally explained by” or “equally consistent with” means.

This Court has never said that every time multiple possibleexplanations for conduct are proposed, they become “equally probable” and the evidence in question therefore loses relevance (becauseit does not make any fact more or less likely). The existence of alternative explanations for the accused’s conduct does not mean thatcertain evidence is no longer relevant. The overall conduct and context must be such that it is not possible to choose between theavailable inferences as a matter of common sense, experience and logic.

This is a composite standard in which the three considerationsinteract and one may take on greater significance in a particular case. For example, when hypothetically it could be one offence oranother, common sense and experience may support one inference over the other. Pure logic is not the only, or even primary,consideration.

Any threshold determination of relevance must also respect that it is normally the function of the trier of fact to determine what inference is accepted and the weight to be given to it, and “[f]or the trial judge to interfere in that process will in most casesconstitute a usurpation of the jury’s exclusive fact-finding role”: White (1998), at para. 27. (emphasis is mine)

[30] The Court points out that after-the-fact conduct cannot be viewed in isolation; it is to be assessed in the context of all of theother evidence before the trier of fact once the entirety of the case has been heard: [131] …First, this appeal does not require the Court to determine whether after-the-fact conduct evidence, alone, can be used to inferintent. This was not a case in which the only evidence adduced by the Crown was the contested after-the-fact conduct evidence. Therewas other evidence to be considered in this case.

Indeed, the above-cited paragraph itemizes some of the other evidence before the jury:texts to and from Ms. Jordan’s phone, Mr. Calnen’s statement to the police, and his re-enactment… … [133] The idea that the probative value of after-the-fact conduct may be assessed by reference to the record as a whole simply conveysthat whether in an inference is rational and reasonable must be assessed in context. It does not mean that no reasonable or rationalinference can be drawn from the after-the-fact conduct unless there is some other direct evidence that somehow supports or corroboratesit…. [31] In R. v.

Poitras (2002) (ON CA), 57 O.R. (3d) 538, the Ontario Court of Appeal agreed that the after-the-fact conduct (of dismembering the body and hiding it) was relevant to the issue of the murder being planned and deliberate: If as a matter of common sense and human experience, the after-the-fact conduct considered in combination with the rest of the evidenceis reasonable capable of supporting the inference that the murder was planned and deliberate, then the evidence is relevant to that issue.For example, evidence that the appellant dismembered the body and hid parts of the body in various locations could support theinference that the appellant did not want the body discovered and wanted people to think that Mr.

Blake had left for Timmons. Thiswould allow the appellant and Ms. Nelson to immediately assume cohabitation without attracting suspicion. If the jury drew thatinterference, it would go a long way toward finding that the murder was planned and deliberate. [32] And in R. v. Fatima (On. Sup. Ct. Jus.; 2006-08-24): [100] Evidence of post offence conduct by an accused may help to establish his or her level of culpability for an offence, not merely hisor per participation in the prior conduct.

The probative value of this species of circumstantial evidence is a function of the nature of theevidence, the issues in the case and the positions of the parties. See R. v. MacKinnon (1999) (ON CA), 132 C.C.C.(3d) 545 (Ont. C.A.), 552 per Doherty J.A. Sometimes, as common sense and human experience would teach, evidence of post offenceconduct may support an inference that an accused had a particular state of mind, for example, the state of mind required to make anunlawful killing murder. See, R. v. MacKinnon, above, at page 52 per Doherty J.A. See also R. v. Mach [1999] O.J.

No. 2639 (Ont.C.A.), para. [21]-[22]. [101] In this case, there is substantial evidence of post offence conduct by Kaneez Fatima, on her own and together with MuhammadKhan. To be more specific, there is evidence upon which the jury could find that Kaneez Fatima participated in: i. the disposal of the deceased’s limbs in Colonel Samuel Smith Park; ii. the change of residence from 135 8th Street to 169 Gracedale without notice to service providers; iii. the clean-up of the apartment at 135 8th Street; iv. the disposal of the winter clothing observed by Mary Smith at Colonel Samuel Smith Park.

And then there is the evidence of the false story Kaneez Fatima told to Heather Cartwright and Karen Sitarek to account for thedeceased’s absence from school. … [104] In the circumstances, there is evidence on the basis of which a reasonable jury properly instructed could infer that any participantin the conduct that caused the injuries that resulted in the deceased’s death intended to kill her, or at least to cause her bodily harm thatthe assailant knew was likely to cause her death and was reckless whether she died or not… [33] Defence counsel in the case at bar acknowledged that while after-the-fact conduct evidence can, in appropriate cases, be used todetermine level of culpability, in the present case it was his view that it could not. [34] Again, I disagree.

The after-the-fact conduct evidence here consists of: 1. the October 11 flight from Nova Scotia with Devlin Glasgow, with tickets purchased by a third party, Michelle Glasgow; 2. the telephone call with Darlene Sudds on October 12; 3. the rewards line call; 4. the denials to police. [35] The Crown’s theory is that Mr. Whynder was either a principal, or aider or abettor, in the killing of Matthew Sudds. It is alsothe Crown’s position that the unlawful killing of Matthew Sudds was planned and deliberate.

In my view, all of these instances of postoffence conduct are evidence from which a jury could make certain reasonable inferences as to Mr. Whynder’s level of involvement orlevel of culpability. I note that I am assessing the reasonableness of any inferences in light of the entirety of the evidence at trial, as I ambound to do, and as a jury would be bound to do.

[36] In my view, the after-the-fact evidence is relevant and could reasonably support inferences leading to an assessment of the levelof guilt of Mr. Whynder. In my further view, such assessment must be left to the trier of fact, to determine what inferences they willchoose to draw. [37] I find there is some evidence upon which a jury properly instructed could find Mr. Whynder guilty as charged. I dismiss theapplication for directed verdict made by defence.

Constructive First Degree Murder / Unlawful Confinement [38] During the hearing of this motion, the Crown also put forward the proposition that there is enough evidence here to supportcharging the jury on first degree murder pursuant to ss. 231(5) of the Criminal Code, i.e., murder that is committed in the course of anunlawful confinement. The Crown believes that a reasonable and properly instructed jury could convict Mr. Whynder of this alternateform of first degree murder based on the evidence we have heard, and that the jury should be instructed on this alternate form.

Thedefence disagrees. [39] Subsection 231(5)(

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

e) section 279 (kidnapping and forcible confinement) [40] In addition to the essential elements of murder generally, this particular form of murder requires that additional elements beproven: the commission of the offence of unlawful confinement or kidnapping; that the unlawful confinement or kidnapping and themurder be part of the same series of events; and that the accused be an active participant in the person’s death. [41] As to the element of “active participation”, I note the comments of Justice Watt in R. v.

Fatima, supra: [79] The circumstances of this case require careful scrutiny of two of the essential elements of constructive first degree murder describedby Cory J. in Harbottle. For ease of reference, the first element may be designated “participation”, and the second, “continuoustransaction”. [80] The participation requirement demands that an accused participate in the murder of the deceased in such a way that she or he is asubstantial cause of the victim’s death. See R. v.

Harbottle, above, at page 14 per Cory J. [81] This requirement has its origins in the statutory language “when the death is caused by that person” in section 231(5). The samelanguage appears in section 231(6), another instance of constructive first degree murder, but not in sections 231 (6.01), (6.1) or (6.2),which also classify murder as first degree murder on a constructive basis. [82] The standard of participation set by section 231(5) is more stringent than what is required for culpable homicide in general, andmore specifically, for both manslaughter and murder. [83] In R. v.

Nette, 2001 SCC 78 , [2001] 3 S.C.R. 488, Arbour J. preferred to characterize what the statutory language “whenthe death is caused by the person” in section 231(5) adds to what is required for murder as an issue of participation, not causation: I agree with the appellant that what Harbottle really stresses is not solely or even primarily a higher causation requirement to raise murderto first degree murder under s. 231(5) of the Code, but rather the increased degree of participation required before the accused may beconvicted of first degree murder under s. 231(5). [84] In R. v.

Nette, above, Arbour J. doubted whether liability for constructive first degree murder could be established on the basis ofaiding or abetting, or through proof of a common intention under section 21(2). She explained at p. 512 C.C.C.: Harbottle caused the victim’s death within the requirements of s. 231(5) of the Code because he was a co-principal in the murder. Thedegree of participation in killing by a party who liability for murder is based on the aiding and abetting under s. 21(1)(

b) or (

c) of theCriminal Code or common intention under s. 21(2) of the Code, may, under the Harbottle formulation, be insufficient to permit afinding that the murder amounts to first degree under s. 231(5), which requires the murder be committed “by that person” in the course ofcommitting the underlying offence. In the present case, the underlying offence was the unlawful confinement of Ms. Loski. Theunderlying offences listed in s. 231(5) of the Code all involve the unlawful domination of victims.

Where an accused exploits thisposition of power and commits murder, such an egregious crime warrants the increased stigma and sentence attached to first degreemurder: see Paré, supra. As explained by Cory J. in Harbottle, in order to raise culpability to first degree murder under s. 231(5),something more is required. The “something more” is not that the accused caused more the death of the victim.

What is required is thathis participation in the killing be sufficiently immediate, direct and substantial to warrant the great stigma and sentence attached to firstdegree murder. [42] Justice Watt goes on to say: [85] …As Arbour J. explained in Nette, above, at p. 513 C.C.C.: Such a high degree of blameworthiness would only be established where the actions of the accused were found to be “an essential,substantial and integral part of the killing of the victim” (Harbottle, at p. 324).

The terminology of “substantial cause” is used to indicatea higher degree of legal causation but it is a standard that only comes into play at the stage of deciding whether the accused’s degree ofblameworthiness warrants the increased penalty and stigma of first degree murder.

[86] The “substantial cause” standard expresses the requirement that there be an increased degree of participation in the killing, alongwith the requisite mens rea for murder before the murder can be classified as first degree murder. [87] The “substantial cause” standard requires a very active role, usually a physical role in the killing, by anyone whose liability theprosecutor seeks to establish under section 231(5). In Harbottle, above, Cory J, described the test of substantial cause under what is nowsection 231(5) as “restrictive”. He explained at page 13: In my view, an accused may only be convicted under the subsection if the Crown establishes that the accused has committed

an act orseries of acts which are of such a nature that they must be regarded as a substantial and integral cause of death…. … The substantial causation test requires that the accused play a very active role – usually a physical role – in the killing. Under 214(5), theactions of the accused must form an essential, substantial and integral part of the killing of the victim. [43] In my view, this element is missing from the Crown’s evidence. It is difficult to see how the evidence I have heard points to Mr.Whynder’s “active participation” in the actual killing of Matthew Sudds.

I agree with the caselaw that such would mean some sort ofphysical involvement, for example, that Mr. Whynder actually pulled the trigger, or held Mr. Sudds down, or some other suchinvolvement. [44] As to the remaining elements of this offence, I have additional concerns. Where is the evidence of the commission of theoffence of unlawful confinement or kidnapping? The only evidence comes from Mr. Nickerson who testified to that “pulling back” ofMr. Sudds into the seat of the black vehicle.

Even if I were to accept, in the context of the present motion, that this is “some” evidenceupon which a trier of fact could draw conclusions, my even greater concern is in respect of the next element: the unlawful confinementor kidnapping and the murder must be part of the same series of events. [45] I simply see nothing upon which a trier of fact could base this conclusion. We know nothing about what exactly happened afterMr. Sudds entered the black vehicle. We do not know when he died. Was he confined when he entered the car? How long did that last?Was he killed immediately, or hours later?

Under what circumstances? I simply do not see it as reasonable to say that the evidence beforeus could lead to any conclusion about any confinement and the murder being within the same series of events, or as a “continuoustransaction” as described in the caselaw: R. v. Harbottle, supra, R. v. Paré (SCC), [1987] 2 S.C.R. 618; R. v. Fatima,supra. [46] As a result, I will not be putting the option of constructive first degree murder to the jury. The jury will be instructed on firstdegree murder that is planned and deliberate only, as well as the included offences of second degree murder and manslaughter.

Boudreau, J.