) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 4

CITATION : R. v. Niemi, 2013 ONSC 4 COURT FILE NO.: 10-091 DATE: 20130102 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – ROY ANDREW NIEMI Defendant ) ) ) ) ) ) ) ) Raymond Williams and Julie Evans, for the Crown Richard Stern and Neil Riley, for the Defendant ) ) HEARD: December 13, 2012 RuLING ON NON-SUIT motion boswell j. Overview: [ 1 ] Mr.

Niemi is charged with first degree murder and offering an indignity to a dead human body. [1] He is alleged to have strangled a young woman to death in Orillia in the summer of 2006, and to have mutilated her body by slashing her neck and cutting her below her left breast and down her torso. [ 2 ] There is no dispute that the victim was murdered. The live issues are the identity of her killer and the classification of the murder as either first or second degree.

Following the completion of the Crown’s case, the Defendant moved for non-suit on the classification issue, asserting that there was an insufficient evidentiary basis to justify leaving first degree murder with the jury. I advised the parties orally on December 14, 2012 that the motion was dismissed, with reasons to follow. These are the reasons. The Basis for First Degree Murder: [ 3 ] In pursuing a conviction for first degree murder, the Crown relies s. 231(5) (

b) of the Criminal Code of Canada , which provides as follows:

(5) Irrespective of whether a murder is planned and 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: (

b) section 271 (sexual assault). [ 4 ] The Crown asserts that Mr. Niemi murdered the victim, Alyssa Watson, while committing or attempting to commit a sexual assault against her. [ 5 ] The Defendant asserts that section 231(5) does not apply in the circumstances of this case. He argues that the evidence adduced at trial leaves the jury with no choice but to conclude that Ms. Watson was dead at the time the acts said to support the charge of sexual assault were committed.

Counsel submits that a sexual assault cannot be committed against a person who is not alive and so, at its highest, this is a case of second degree murder. He urges the Court not to leave the matter of the classification of the murder, as either first degree or second degree, with the jury. The Issues: [ 6 ] Ultimately, there are two significant issues to be determined on this motion:

(

i) The importance of the timing of the acts said to constitute the sexual assault. More specifically, whether it is necessary, for purposes of s. 231(5) (

b) of the Criminal Code , that the murder victim be alive at the time the underlying offence of sexual assault is committed, or at least commenced; and, (ii) Whether there is, in any event, sufficient evidence in this instance to justify leaving the classification issue with the jury. The Evidence: [ 7 ] Ms. Watson met up with Mr. Niemi at about 9:30 p.m. on Friday August 18, 2006, at a convenience store in downtown Orillia. Her body was found the next morning by a local resident out walking her dogs.

She was laying about 5 metres off a path, formerly an old railway bed, adjacent to a popular bicycle and walking trail near Orillia’s waterfront. The cause of her death was determined to be ligature strangulation. [ 8 ] The condition of Ms. Watson’s body was remarkable. She was found lying on her back. Her shoes had been removed and were placed neatly by her feet. Her pants had been removed and her underwear was found hanging from one knee. Her pants were set out on top of her legs, with one pant leg covering each of her legs. Her sweatshirt had been cut down the V-neck and partially placed back on her.

Her bra had been cut down the middle. Her throat had been slashed and she had deep incised cuts below her left breast and down the middle of her torso. There was no evidence of injury to her vagina or anus. No semen was located on her body or on any other item collected at the crime scene and tested at the Centre of Forensic Sciences. [ 9 ] Mr. Niemi was interviewed by the police on August 21, 2006. He said that after he met Ms. Watson they proceeded to walk around downtown for some time. He said he left Ms. Watson in the company of two other men downtown at about 11:00 p.m.

He said she wanted to party and he wanted to go home to watch television. [ 10 ] There is no forensic evidence tying Mr. Niemi to the crime scene. The Crown’s case against him rests almost entirely on statements he made about the crime to undercover police officers during an undercover operation known as a Mr. Big play. The details of the undercover operation and the evidence generated by it are more fully explored in an earlier decision I rendered on the admissibility of that evidence, reported at 2012 ONSC 7148 . [ 11 ] Mr. Niemi described his role in the death of Ms.

Watson in a written note provided to the undercover officers in which he said: I hit her from behind with a wisky bottle nothing happened so I choked her with my right arm the I used the purse strap then tryed to brake her neck then I cut her sweater at the V-point down a bit, then I took them off sweater & pants then I cut her throat right to left then I cut her left tit right to left then I cut her down her stomic then I pulled her in to the right side of the trail and covered her with her clothing then I left. [ 12 ] Dr. Toby Rose is a forensic pathologist. She conducted an autopsy on Ms. Watson’s body. Dr.

Rose testified that, in her opinion, the cuts to Ms. Watson’s body were made post-mortem, based on their appearance and the lack of blood at the scene. There is no evidence consistent with a scenario where Ms. Watson was alive at the time she was cut. Dr. Rose also testified that it appeared that Ms. Watson had been dragged from the trail into the brush where her body was found. Debris, including dirt and leafy material, was found in her incised wounds. She had scrapes on her abdomen consistent with being dragged. She did not have the same markings on her lower body which suggested, in Dr.

Rose’s opinion, that her pants were removed after she was dragged into the bush. [ 13 ] The main evidence about what was done by Mr. Niemi and how it was done came from Mr. Niemi himself, in statements made to undercover officers. He repeatedly denied that he had sex with Ms. Watson on the night of her death. When asked if it was a “sex crime” he answered no. He said that he strangled Ms. Watson to death, then he cut her sweater at the V-neck, then removed her sweater and pants and cut her throat, breast and stomach. According to Mr. Niemi, he “finished off” Ms.

Watson before he took off her clothing and cut her body. He said there was no blood when he made the cuts. When asked by an undercover officer why he removed her clothes and cut Ms. Watson, he answered, essentially, that he did so as a diversion, to mislead the police. [ 14 ] Dona Novosky - Mr. Niemi’s landlady in August 2006 - testified that she saw him and spoke to him on August 20, 2006, the day after Ms. Watson’s body was discovered. She said Mr. Niemi told her that his friend had been murdered and that she had been sexually assaulted and strangled. He did not, of course, say that he sexually assaulted Ms.

Watson, only that she had been sexually assaulted and strangled. Positions of the Parties:

[15] Mr. Stern argued that in order to find Mr. Niemi guilty of first degree murder, on the basis of s. 231(5)(

b) of the CriminalCode, it will be necessary for the jury to find that Ms. Watson was alive when the acts done to her, and alleged to constitute the sexualassault, were committed. He relied, in support of this position, on the 1985 decision of the Court of Appeal for Ontario in R. v. Dobson,[1985] O.J. No. 32, where Martin J.A., in approving the trial judge’s instructions to the jury, said the following: The trial judge made it very clear that in order to find the appellant guilty of first degree murder under s. 212(

a) in combination with s.214(5) [now 231(5)], insofar as it related to indecent assault, it was necessary for the jury to find that the deceased was alive when theacts done to her and alleged to constitute indecent assaults were committed. [16] Two years after R. v. Dobson, the Supreme Court of Canada addressed s. 214(5) [now 231(5)] in the case of R. v. Paré, (SCC), [1987] 2 S.C.R. 618. In Paré the accused sexually assaulted a young boy. When the assault was complete the boyindicated that he was going to tell his mother about it. The accused thought about it for a moment, then killed the boy.

The issue in Paréwas whether the murder and underlying sexual assault had to occur simultaneously in order to fall within s. 231(5). The Court held thatthey did not. Wilson, J., writing for the Court, endorsed the “single transaction principle” as appropriate when analysing offencesadvanced under s. 231(5). In doing so, she followed an earlier decision of Martin J.A. in R. v. Stevens (ON CA),[1984] O.J.

No. 26 (C.A.) where he said, “where the act causing death and the acts constituting the rape, attempted rape, indecent assaultor an attempt to commit indecent assault, as the case may be, all form part of one continuous sequence of events forming a singletransaction”, the death was caused “while committing” an offence for the purposes of s. 231(5). [17] The Crown submits that Courts of Appeal across Canada have subsequently interpreted the single transaction principle, asarticulated in Paré, as being indifferent as to whether death occurred before or after the acts said to constitute a sexual assault werecommitted.

The controlling issue is whether the murder and sexual assault can be said to be part of one continuous transaction. TheCrown relies on the majority decisions in R. v. Ganton, [1992] S.J. No. 539 (Sask. C.A); R. v. Richer, (AB CA),[1993] A.J. No. 503 (Alta. C.A.); R. v. Plewes, 2000 BCCA 278 , [2000] B.C.J. No. 832 (B.C.C.A.); R. v Muchikekwanape,2002 MBCA 78 , [2002] M.J. No. 253 (Man. C.A.); R. v. Westergard, (ON CA), [2004] O.J. No 1500(C.A.); and R. v. Squires, 2005 NLCA 51 , [2005] N.J. No. 253 (N.L.C.A.) Discussion: (

i) The Timing of the Underlying Offence [18] As the Crown pointed out, there is a significant body of appellate authority, quite literally from coast to coast, that supportsthe finding that it is not necessary, in a case of constructive first degree murder under s. 231(5)(

b) of the Code, to establish that thesexual assault occurred prior to death. As Wakeling J.A. noted in R. v. Ganton, as above, at page 4, …It was not necessary to prove the precise time of death so as to be able to establish that the sexual assault occurred prior to death, it wasonly necessary to show that the sexual assault and death were part of a continuous sequence of events. [19] Mr. Stern conceded that the single transaction principle articulated by the Supreme Court in R. v. Paré is binding authority. He argued, however, that it has been misinterpreted by appellate courts since its release.

He focussed his argument on the organizingprinciple of s. 231(5) as discussed by Wilson, J. at paras. 32-33 of Paré, …The offences listed in s. 214(5) are all offences involving the unlawful domination of people by other people. Thus an organizingprinciple for s. 214(5) can be found. This principle is that where a murder is committed by someone already abusing his power byillegally dominating another, the murder should be treated as an exceptionally serious crime. Parliament has chosen to treat these murdersas murders in the first degree.

Refining then on the concept of the "single transaction" referred to by Martin J.A. in Stevens, supra, it is the continuing illegaldomination of the victim which gives continuity to the sequence of events culminating in the murder. The murder represents anexploitation of the position of power created by the underlying crime and makes the entire course of conduct a "single transaction". Thisapproach, in my view, best gives effect to the philosophy underlying s. 214(5). (emphasis mine). [20] Mr.

Stern argued that, properly interpreted, the single transaction principle requires that the murder be the ultimateexploitation of the illegal dominance created by the underlying offence. It is the culmination of a series of events initiated by theunderlying offence. It must require that the acts constituting the underlying offence, or attempt to commit the underlying offence,commence before the murder. There is an attractiveness to the argument, if Paré is read in its strictly literal sense. It finds support notonly in R. v. Dobson, as above, but also in the decision of Twaddle J.A. in R v.

Quesnel, (MB CA), [1991] M.J. No.64 (Man. C.A.), the dissent of Twaddle J.A. in R. v. Muchikekwanape, as above, and the dissent of Harradence J.A. in R. v. Richer, asabove. [21] In the case at bar, it is unclear whether there was a domination of the victim which culminated in the murder. Here, in Mr.Stern’s submission, based on Mr. Niemi’s statements to undercover officers, the acts constituting the “underlying crime” took place afterthe murder. In his submission, on the facts of this case, any acts of Mr. Niemi (assuming for the sake of this ruling that he killed Ms.Watson) committed after the death of Ms.

Watson can constitute, at best, an indignity offered to a dead body. [22] Borrowing the language of Harradence J.A. from R. v. Richer, as above, to bring the facts of this case within the reasoning ofParé, it would be necessary to convert an indignity of a sexual nature committed on a dead human body to an offence of sexual assault,and then construe a prior and not an “ensuing murder” as being the ultimate exploitation of power. (para. 38). [23] In my view, Mr. Stern’s position is best summed up in the following passage of Twaddle J.A., writing in dissent in R. v.Muchikekwanape, as above, at para. 101:

The "single transaction" concept approved in Paré does not, in my respectful opinion, work in reverse (i.e. where the killing occursbefore the sexual assault). This court said as much in R. v. Quesnel (1991), (MB CA), 71 Man. R. (2d) 1. There are,in my opinion, three reasons why this is so: (

i) If the sexual interference occurs after death, the perpetrator is guilty of the offence of interference with a dead human body (CriminalCode, s. 182(b)), but not sexual assault. (ii) The statutory test is whether the death was caused by a person "while committing or attempting to commit" a sexual assault.

Nomatter which interpretive approach I take (the literal, the contextual or the purposive), I cannot construe the words "while committing" asencompassing events which began after the victim's death. (iii) The rationale for the "single transaction" concept is missing if the death precedes the sexual interference. That rationale wasexplained by Wilson J. in Paré, in these terms (at p. 633): ... [I]t is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder.

Themurder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a"single transaction." This court explained why this rationale is missing where the killing first occurs when it said in Quesnel (at para. 24): ... [I]t is possible, even likely, in the present case that the acts which caused the death preceded the sexual assault. If that were so, itcannot be said that there was an illegal domination of the victim prior to the acts which caused her death.

There being no underlyingsexual assault, the murder cannot be said to be the culminating act of domination. [24] The difficulty with Mr. Stern’s very able argument is that it relies on the authority of R. v. Quesnel and two subsequentdissenting opinions in R. v. Muchikekwanape and R. v. Richer, as above. But the reasoning in Quesnel has been expressly rejected bythe Court of Appeal for Ontario in R. v. Westergard, as being too narrow and literal. In my view, this court is bound to following thedirection of the Ontario Court of Appeal in R. v.

Westergard, as above. [25] In Westergard, the accused was a carpet installer who had been performing work in the home of the deceased. The deceasedwas killed in her home. Her naked and badly beaten body was found on the upstairs bathroom floor, though the evidence supported afinding that she had been killed in the master bedroom then moved to the bathroom. A forensic pathologist testified that she had died asa result of strangulation associated with blunt force injury to her head. There was also a “branching kind of split in her anus”.

It was notclear whether sexually activity had occurred before or after the death of the victim. The Crown relied on s. 231(5) to support aclassification of the killing as first degree murder, asserting that the victim had been murdered while being sexually assaulted. The juryagreed with the Crown’s position and convicted the accused of first degree murder. [26] On appeal, the accused argued, amongst other things, that the trial judge erred by failing to instruct the jury that s. 231(5) ofthe Criminal Code did not apply if the sexual assault took place after the murder. The appeal was dismissed.

Writing for the Court,MacPherson J.A. reviewed the genesis of the single transaction principle and noted that R. v. Stevens and R. v. Paré, both as above, werecases where the aggravating offence was committed first and the murder followed. In Westergard, there was a possibility that thereverse was true, in other words, that the murder was committed first, followed by sexual activity. The accused/appellant relied on R. v.Quesnel, as above, in arguing that the underlying aggravating offence must be committed before death. The argument was rejected.

MacPherson held, at paras. 31-35: 31 … I do not agree with the decision in Quesnel. In my view, it is inconsistent with Paré and with several recent appellate decisions,including one from the Manitoba Court of Appeal, which I prefer. 32 Put succinctly, Quesnel articulates a view of s. 231(5) that is both too narrow and too artificial. In Paré, Wilson J. cautioned againstan overly refined or technical approach to s. 214(5) (now s. 231(5)) of the Code.

In that case, defence counsel contended that the words"while committing" in that provision meant that the aggravating offence (indecent assault) and the murder had to be committedsimultaneously. Justice Wilson rejected this argument and adopted the single transaction approach from Stevens. She said, at p. 107: A second difficulty with the exactly simultaneous approach is that it leads to distinctions that are arbitrary and irrational.

In the presentcase, had the respondent strangled his victim two minutes earlier than he did, his guilt of first degree murder would be beyond dispute.The exactly simultaneous approach would have us conclude that the two minutes he spent contemplating his next move had the effect ofreducing his offence to one of second degree murder. This would be a strange result. The crime is no less serious in the latter case than inthe former; indeed, if anything, the latter crime is more serious since it involves some element of deliberation. An

interpretation of s.214(5) that runs contrary to common sense is not to be adopted if a reasonable alternative is available. 33 In R. v. Richer (1993), (AB CA), 82 C.C.C. (3d) 385 at 394 (Alta. C.A.), Fraser C.J.A. made observationsquite similar to Wilson J.'s comments in Paré: Were it necessary to determine whether sexual activity with a murder victim following the moment of death could ever constitute firstdegree murder, I would be inclined to the view taken by the Saskatchewan Court of Appeal in R. v. Ganton (1992), (SK CA), 77 C.C.C. (3d) 259, 32 W.A.C. 126, 105 Sask. R. 126. Wakeling J.A. concluded that a murder in these circumstances couldfall within the parameters of s. 231(5)(

b) providing the Crown had established the necessary linkage between the two acts. I tend to sharehis view. That is because I have difficulty with the proposition that a murderer intent on silencing his victim or rendering her compliantfor sexual activity should be able to argue that murder in these circumstances is not first degree murder simply because his victim diedby his hand before he could complete, or for that matter, begin the sexual assault. This entire debate on whether the precise moment of the victim's death preceded or followed the precise moment of sexual assault is

highly artificial. This "chicken and egg" approach to which came first, the murder or the sexual assault, obscures the essence of therationale for Parliament's decision to classify a murder committed during a sexual assault as first degree. That rationale does not involvepunishing a person for committing two separate crimes in a specific order - first sexual assault, then murder - but rather punishing aperson because he has committed both in circumstances in which a temporal and causal connection exists between the two. What isimportant is not the order of commission but the linkage between the two crimes.

When the required linkage is found to exist, it is thetwo crimes - sexual assault and murder - committed together, regardless of the order, which represent the ultimate exploitation of theposition of power over a victim and arguably mandate a conviction for first degree murder. 34 I agree with Fraser C.J.A.'s analysis. I am also attracted to the comment of Steel J.A. in R. v. Muchikekwanape (2002), 2002MBCA 78 , 166 C.C.C. (3d) 144 at 172-73 (Man.

C.A.) - "The continuous transaction concept adopted by the Supreme Court inParé ... prevents the law from being brought into disrepute by requiring a debate of the precise second of the victim's death." 35 For these reasons, I conclude that the trial judge did not err by failing to instruct the jury that s. 231(5) of the Code did not apply ifthe sexual assault took place after the murder. His instruction on first degree murder was sound and in full compliance with the decisionof the Supreme Court of Canada in Paré. [27] In my view, MacPherson J.A. was quite clear in rejecting the reasoning in R v. Quesnel.

The law, as it presently stands,requires the jury to determine whether the acts said to constitute a sexual assault and the murder form part of a single transaction and notwhether the murder was committed before or after the sexual assault. [28] To the extent that the Defendant’s request for a non-suit rests on the assertion that Ms. Watson had to be alive when the actssaid to constitute the sexual assault were committed, I reject the request, relying on the reasoning in Westergard.

It remains to bedetermined whether there was sufficient evidence presented at trial to justify leaving constructive first degree murder with the jury. Forthe reasons set out below, I find that there was. (ii) The Sufficiency of the Evidentiary Record [29] The test to be applied on motions for directed verdicts is relatively straightforward. It was described by Mr. Justice McIntyrein R. v.

Monteleone, (SCC), [1987] 2 S.C.R. 154, at paragraph 8, as follows: Where there is before the court any admissible evidence, whether direct or circumstantial, which, if believed by a properly charged juryacting reasonably, would justify a conviction, the trial judge is not justified in directing a verdict of acquittal. It is not the function of thetrial judge to weigh the evidence, to test its quality or reliability once a determination of its admissibility has been made. It is not for thetrial judge to draw inferences of fact from the evidence before him.

These functions are for the trier of fact, the jury. [30] The test for a directed verdict is the same as the test applied by a preliminary inquiry judge when determining if there issufficient evidence upon which to commit an accused to trial. The test is the same whether the evidence adduced by the Crown is director circumstantial: see Mezzo v. The Queen, (SCC), [1986] 1 S.C.R. 802, at pp. 842-43. [31] Here, there is evidence that Ms. Watson’s clothes were removed and her breast cut.

It is not clear when her clothes wereremoved, though it does appear that she was cut after death, that she was dragged off the path after she was cut, and that her pants wereremoved after she was dragged off the path. [32] Apart from the pathologist’s opinion that the incised cuts to Ms. Watson’s body were made post-mortem, there is littleevidence, apart from Mr. Niemi’s own statements, about the sequence of events surrounding the death of Ms. Watson. According to Mr.Niemi, he strangled her to death, then removed her clothing and cut her body as a diversion. [33] As Steel J.A. held in R. v.

Muchikekwanape, as above, at para. 65, “forcibly removing someone’s clothing, leaving themnaked from the waist down, and/or intentionally cutting their genitals, in the absence of an explanation indicating otherwise, are actsviolating the sexual integrity of the person so attacked.” Mr.

Niemi has given an explanation for what he says he did, but of course it isopen to the jury to accept or reject some, all or none of what he said. [34] It is also open to the jury, in my view, given the close proximity in which all events apparently occurred, to find that theprincipal assault was a sexual assault and that the strangulation and death of Ms. Watson occurred during this principal sexual assault. [35] Even if the jury does not conclude that the principal assault was a sexual assault, on Mr.

Niemi’s version of events, thestrangulation, removal of clothing and cutting appeared to have occurred as a continuous, uninterrupted sequence. In the circumstances,it is open to the jury to find that they were all part of a single transaction. [36] In short, there is, in my view, sufficient evidence which, if believed by a properly charged jury acting reasonably, wouldjustify a conviction for first degree murder. It will be for the jury to sort out what inferences they draw from the evidence, whether theyare satisfied that the assault against Ms.

Watson took place in circumstances of a sexual nature and whether any such sexual assault waspart of a single transaction that included the murder. [37] In the result, the motion for a non-suit is dismissed. _____Boswell J_____________

Boswell J. Released: January 2, 2013.