Dirk Derstine, a partner at Derstine Penman Criminal Lawyers and counsel for the appellant, said “there had been a constant,” from his perspective, “expansion of what was necessary in order to ground constructive murder as a verdict open to the jury, so that it seemed like it was increasingly easy to find that anything which amounted to any form of deprivation of liberty would allow a verdict of first degree murder for constructive murder.”
He noted this “has been a gradual evolution” since R. v. Paré, [1987] 2 S.C.R. 618, “where the ‘while committing’ aspect of the whole thing has become increasingly diluted; it’s OK if you confine a different person than the person you kill, it’s OK if there’s no causal relationship between the two.”
Dirk Derstine, Derstine Penman Criminal Lawyers
In R. v. Singh, 2022 ONCA 584, the court heard that the appellant, Iqbal Singh, “stabbed his wife, Anita Summan, and her business partner, Gurcharan Doal, with a large knife in the kitchen of their residence in Brampton” in January 2014.
According to court documents, Doal’s cousin, Mayank Sandhu, lived in the basement of the Singh/Summan residence. After the stabbing, Singh “then went down to the basement of the house, where he attempted to enter a bedroom” where Sandhu had “locked himself.”
“Sandhu,” the court noted, “had previously witnessed the attacks on Anita and Doal in the kitchen.”
Singh testified at trial and “admitted to stabbing his wife and Doal.”
There were two main issues at trial: (i) whether the killing of Singh’s wife “amounted to first degree murder, either because Singh caused her death ‘while committing or attempting to commit’ the offence of forcible confinement of Sandhu, under s. 231(5)(e) of the Criminal Code,” or because “the murder was planned and deliberate under s. 231(2) of the Criminal Code;” and (ii) “whether provocation was available as a defence.”
The trial judge, Justice J. Michal Fairburn of the Superior Court of Justice, determined that “there was no air of reality to the partial defence of provocation” (Provocation Reasons) and dismissed Singh’s “application for a directed verdict on the first degree murder count, holding that there was evidence of planning and deliberation for the jury to consider under s. 231(2), and that a sufficient temporal and causal connection existed between the killing of Anita and the unlawful confinement of Sandhu to satisfy the requirements for constructive murder in s. 231(5)(e)” (Directed Verdict Reasons).
According to court documents, the jury “found Singh guilty on all five counts on the indictment.” Count 1 being the “first degree murder of his wife, Anita;” Counts 2 and 3 being the “attempted murder and aggravated assault of Doal;” and Counts 4 and 5 being the “attempted murder and unlawful confinement of Sandhu.”
Justice Fairburn convicted Singh on “the first degree murder count and the two attempted murder counts” but “stayed the convictions on the other two counts pursuant to Kienapple v. R., [1975] 1 S.C.R. 729.”
Justice Fairburn then imposed “a life sentence with no eligibility for parole for 25 years on the first degree murder conviction; a sentence of 10 years concurrent for the attempted murder of Doal; and a sentence of 8 years for the attempted murder of Sandhu, concurrent to the life sentence but consecutive to the 10-year sentence.”
Singh appealed his conviction for “the first degree murder of his wife” and sought a retrial.
He argued that Justice Fairburn erred: “(i) in failing to leave the partial defence of provocation for the jury when an air of reality existed for that defence; (ii) in leaving first degree murder based on planning and deliberation under s. 231(2) for the jury when there was no evidence of planning and deliberation; and (iii) in leaving first degree murder based on constructive murder under s. 231(5)(e) for the jury by inappropriately expanding the definition of ‘while committing’ in that section to include the committal of unlawful confinement of Sandhu after Singh killed his wife.”
On the first issue, Justice David Brown, writing for the Court of Appeal, did not accept the appellant’s submission that Justice Fairburn “misapprehended” Singh’s evidence about “what provoked his anger, as it is based on an unfair reading of the trial judge’s reasons.”
“When the reasons are read as a whole, it is crystal clear that the trial judge understood Singh was taking the position that Doal’s placement of his hand on Anita was the wrongful act or insult which provoked his anger,” Justice Brown explained, noting that Singh testified that his anger “stemmed from seeing Doal touch Anita in a location where a ‘brother’ should not touch a ‘sister,’ in accordance with his articulation of the social norms of behaviour in Punjabi culture.”
With regards to the “use of cultural factors in applying the objective branch of the test for provocation,” Singh argued that his evidence, “buttressed by Doal taking offence to questions put to him at trial that he had placed his arm around Anita, a ‘sister,’ combined to provide an evidentiary basis that Doal’s conduct transgressed specific behavioural expectations and would be regarded as a wrongful act or insult by an ordinary person who possessed Singh’s cultural background.”
Singh asserted Justice Fairburn “erred by not taking that unambiguous cultural evidence into account.”
However, Justice Brown disagreed, noting that in applying the legal principles Justice Fairburn “did not ignore the cultural factors raised by Singh and Doal in their testimonies.”
“Her reasons demonstrate she considered that evidence,” Justice Brown added, noting that he saw no “error in the trial judge refusing to leave the partial defence of provocation for the consideration of the jury.”
On the second issue, Singh argued that “none of the evidence adduced at trial could lead to an inference that the killing of Anita was ‘planned’ and ‘deliberate,’ ” asserting that Justice Fairburn “erred by relying on the circumstantial evidence of animus, and certain gaps in the evidence, to support the inference that Singh had planned and deliberated the murder.”
Singh also argued that Justice Fairburn “erred by conflating evidence of opportunity to kill his wife with evidence of planning and deliberation.”
“In his view, such evidence, or lack thereof, was only probative of intent but not of the elements of planning and deliberation,” the court explained.
“Ultimately,” Justice Brown wrote, “the task for the trial judge is to consider the evidence regarding the relevant factors and then determine whether there is any evidence from which a jury could reasonably infer that the appellant’s attack was the product ‘of a calculated scheme,’ arrived at after weighing ‘the nature and consequences’ of that scheme; and, having made the plan, the accused ‘deliberated,’ that is weighed the pros and cons of putting the plan into action.”
In Justice Brown’s view, Justice Fairburn “committed no error by including circumstantial evidence of animus, motive, and opportunity as part of her analysis.”
He also noted that the trial judge’s “consideration of the evidence went beyond that relating to animus, motive, or opportunity.”
“That formed only part of her analysis, which recognized that applying the test for a directed verdict required assessing the evidence as a whole. The trial judge considered ‘other facts’ that supported the inference that Anita’s killing was planned and deliberate,” he explained, further concluding that Justice Fairburn “did not err in dismissing the application for a directed verdict in respect of the issue of planned and deliberate first degree murder.”
On the final issue, Singh submitted that “the evidence did not permit the conclusion that there was some evidence from which a jury could find that the killing of Anita and the unlawful confinement of Sandhu constituted a single transaction” and that “these were two separate transactions that were not linked causally or temporally as the murder was completed prior to any possible unlawful confinement.”
The appellant argued the Justice Fairburn “improperly expanded the definition of ‘while committing’ in s. 231(5)(e) beyond the established scope of the term and, in so doing, fell into legal error.”
Justice Brown’s analysis included a summary of seven Supreme Court of Canada decisions: “R. v. Paré, [1987] 2 S.C.R. 618; R. v. Arkell, [1990] 2 S.C.R. 695; R. v. Luxton, [1990] 2 S.C.R. 711; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804; R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195; R. v. Magoon, 2018 SCC 14, [2018] 1 S.C.R 309; and the court’s recent decision in R. v. Sundman, 2022 SCC 31.”
“Given the Supreme Court’s approach to interpreting s. 231(5), it is not surprising that the cases in which the court has found that the relationship between the acts of the enumerated offence and the murder satisfy the statutory language of s. 231(5) have involved circumstances where the commission of the enumerated offence — the act of illegal domination — has preceded or continued during the act of murder,” he wrote, noting that the parties to the appeal acknowledged that “what is absent from the Supreme Court’s jurisprudence is the application of s. 231(5) to a situation where the accused murdered a victim before engaging in the acts which constitute the enumerated offence against another.”
Justice Brown therefore reviewed the “provincial appellate jurisprudence to see whether it provides support for the trial judge’s interpretation and application of s. 231(5) to circumstances where the murder of one victim was committed before the accused committed or attempted to commit an enumerated offence against another victim.”
He noted that in Justice Fairnburn’s “directed verdict ruling” she “quite properly cited the controlling interpretation of the words ‘while committing’ in s. 231(5) that was formulated in Paré and applied in subsequent Supreme Court cases.”
“However,” he added, “in my respectful view, the trial judge erred in her application of Paré’s single transaction/close temporal and causal link interpretative paradigm.”
Justice Fairburn’s “error” lay in her “application of the causal connection dimension of the single transaction principle,” he explained.
“By dismissing Singh’s application for a directed verdict in respect of constructive murder, the trial judge, in effect, afforded the Crown the opportunity to use Singh’s act of causing Anita’s death before pursuing Sandhu as satisfying the causal connection requirement of s. 231(5)’s single transaction principle,” Justice Brown added, noting that “this analysis reversed the causal connection required by the ‘while committing’ language of s. 231(5).”
“The trial judge instructed the jury that it was open to them to use the alternative avenues of planned and deliberate murder or constructive murder to convict Singh of first degree murder. Those alternative routes to conviction were set out in the decision tree provided to the jury. The trial judge also instructed the jury that they did not have to be unanimous on the route to first degree murder,” he explained, finding that “[I]n light of those instructions, it is possible that some jurors convicted Singh of first degree murder by using the erroneous pathway of constructive murder.”
“Consequently,” he added, “the trial judge’s error in leaving constructive murder for the jury’s consideration requires that Singh’s conviction for the first degree murder of Anita be set aside.”
In a decision released Aug. 15, Justice Brown, with Justices Eileen Gillese and Peter Lauwers in agreement, set aside “the conviction for the first degree murder of Anita Sunnam” and ordered a “new trial on that charge.”
The Ministry of the Attorney General, on behalf of the Crown, declined to comment on the decision.
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