



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Niemi, 2017 ONCA 720

DATE: 20170918

DOCKET: C57406

Doherty, MacFarland and Paciocco
    JJ.A
.

BETWEEN

Her Majesty the Queen

Respondent

and

Roy Andrew Niemi

Appellant

David E. Harris, for the appellant

Randy Schwartz and Jeffrey Pearson, for the respondent

Heard: May 10, 2017

On appeal from the conviction entered on January 11, 2013
    by Justice R. Cary Boswell of the Superior Court of Justice, sitting with a
    jury.

Paciocco J.A.:

A.

Overview

[1]

On August 19, 2006, the partially clad body of Alyssa Watson was discovered
    in the bushes along a trail that followed a decommissioned railway line in
    Orillia, Ontario. She had been strangled to death with a ligature. Roy Andrew
    Niemi, the last person known to have been with Ms. Watson, was ultimately charged
    with her killing. After a jury trial, he was convicted of first degree murder. He
    appeals that conviction.

[2]

Mr. Niemis grounds of appeal revolve around three general issues: (1)
    the admission of inculpatory statements made by him during a Mr. Big
    operation
[1]
;
    (2) the admission into evidence of recordings captured during the Mr. Big
    operation pursuant to a one party consent wiretap authorization; and (3) the
    first degree murder finding and the accompanying jury directions. I would not
    allow any of these grounds of appeal.

[3]

First, the Mr. Big statements would have gained admission even if the
    trial judge had the benefit of the standards subsequently developed in
R. v
    Hart
,

[2014] SCC 52, 2 S.C.R. 544. The details provided by Mr.
    Niemi interlinked so closely with the unpublished details of the killing that
    the probative value of his confessions overwhelmed the risk of prejudice in
    presenting those confessions to the jury. Nor were the statements secured in
    abuse of process. Mr. Niemi was not particularly vulnerable and the methods
    used to provoke the confessions were not abusive.

[4]

Second, the trial judge was entitled to find that the wiretap
    authorization, a renewal of an earlier order, was not issued without reasonable
    grounds to believe it would produce evidence, as Mr. Niemi contends. Experience
    from the first wiretap showed that Mr. Niemi was likely to talk about Ms.
    Watsons killing. His financial circumstances had also worsened modestly since
    the first wiretap authorization, increasing the probability that the Mr. Big
    inducements would bear fruit in encouraging inculpatory statements that could
    then be recorded. This provided the trial judge with a sufficient basis to
    defer to the decision of the issuing judge on whether reasonable grounds
    existed.

[5]

Third, the first degree murder conviction is unassailable. There was
    ample evidence to permit a jury to infer that the entire attack was sexually
    motivated or sexual in nature, making the killing first degree murder
    pursuant to s. 231(5)(b).

[6]

Nor was the jury misdirected. In context, the suggestion to the jury
    that the principal assault and the strangulation of Ms. Watson was a sexual
    assault was nothing more than a direction to the jury that on the evidence it
    could choose to find that the entire attack was sexual, satisfying the while
    committing requirement of s. 231(5)(b). Moreover, when the issues that were
    realistically before the jury are considered, a functional basis for
    understanding the while committing requirement was provided to the jury.

[7]

I would therefore dismiss Mr. Niemis appeal.

B.

The Material Facts

[8]

On August 1, 2006, Alyssa Watson met up with the Mr. Niemi at about 9:30
    p.m. Her body was discovered the next morning. Ms. Watson had suffered blunt
    force injuries to her head, but the cause of her death was ligature
    strangulation.

[9]

When discovered, Ms. Watsons body was partially unclad. Her sweatshirt
    had been cut open from the neck down, and her bra had been cut down the middle.
    Her pants had been removed and draped over her legs, and her underwear was
    hanging from one knee when she was found.  Her shoes were placed neatly beside
    her.

[10]

Dr. Toby Rose, a forensic pathologist, testified that it appeared from
    the pattern of soil marks and abrasions on her body that Ms. Watson had been
    dragged, and that her pants were removed after she was dragged.

[11]

Ms. Watsons body was mutilated. Her throat was slashed and she had two large
    incised wounds  one down the middle of her torso and one under her left
    breast. Dr. Rose testified that the cuts were made post-mortem.

[12]

There was no evidence of injury to her vagina or anus, and no semen was
    found on her or at the crime scene.

[13]

Mr. Niemi soon became the prime suspect in Ms. Watsons killing, as he
    was the last person known to have been in her presence. Claims he made about
    his precise movements when he was with Ms. Watson were not borne out by
    security video footage.

[14]

The police investigation into Ms. Watsons death soon stalled. A
    two-stage Mr. Big operation was initiated with Mr. Niemi as the target. The
    first stage of the operation began when an undercover operative  dubbed Sonny
    by the trial judge  befriended Mr. Niemi at an Adult Learning Centre course in
    Orillia, and began to involve Mr. Niemi in a feigned criminal organization.
    Efforts to obtain a confession from Mr. Niemi by holding out membership in return
    for a confession continued for two and a half months and included frequent
    meetings and an orchestrated traffic stop intended to provoke discussion of the
    Watson killing. When it failed to produce an incriminating admission, the Mr.
    Big operation was abandoned but was renewed a year later by undercover
    operatives that the trial judge called Michael, and Vito, purported
    associates of Sony.

[15]

Ultimately, during the second stage of this operation, in November and
    December 2008, Mr. Niemi made a series of statements to the Mr. Big operatives
    admitting to and describing the killing. Claims made by Mr. Niemi in those
    statements were hauntingly accurate regarding unpublicized details surrounding
    the killing.

[16]

His first confession was on November 25, 2008. He described hitting Ms.
    Watson with a whiskey bottle but it did not knock her out. He then strangled
    her, ultimately using her purse strap in doing so. He said that he received
    $10,000 from someone to kill her because she had stolen two kilograms of cocaine.

[17]

The following day, the appellant took the undercover officer to the
    crime scene and showed him where Ms. Watson had been killed, although he
    provided no further details of the murder.

[18]

On December 4, 2008, Mr. Niemi provided a Mr. Big operative with a written
    statement, which he claimed he wrote when he returned to the crime scene on his
    own:

I hit her from behind with a wisky bottle Nothing happened so I
    choked her with my Right arm the I used a 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 the stomic then I pulled her into the right
    side of the trail and coverd her with her clothing then I Left.

[19]

On December 5, 2008, Mr. Niemi provided further details of the crime and
    re-enacted the killing. He described the location and position of Ms. Watsons body,
    and the violence used  specifically, that he had struck her in the head, strangled
    her using her purse strap, and cut her throat, left breast and stomach. This
    time Mr. Niemi described the depth and nature of the incisions. He also
    detailed how he cut her sweater and he lay her pants on top of her legs.

[20]

With respect to the order in which events occurred, Mr. Niemi said he
    finished the job by strangling Ms. Watson with her purse strap before cutting
    her sweater off. He demonstrated the cutting of the sweater as occurring
    immediately after the strangulation while Ms. Watson was still in the same
    position she had been in when the strangulation began. Contrary to the opinion
    of Dr. Rose, Mr. Niemi described removing Ms. Watsons pants before she was
    dragged.

[21]

Mr. Niemi consistently denied that the killing was sexual. He said that
    he removed her clothes and cut Ms. Watson to mislead the police into thinking
    the killing was sexual.

[22]

Mr. Niemi was arrested later that day and was charged with first degree
    murder. He was convicted on January 11, 2013.

C.

Did the Trial Judge Err in Admitting the Mr. Big Statements?

[23]

In ruling that the Mr. Big statements were admissible, the trial judge
    did not have the benefit of the decision in
Hart
.
Hart
altered
    the law in important ways. First, the onus on the admissibility question has
    been reversed and now rests with the Crown:
Hart
, at paras. 10, 89.
    Second, the former focus on whether the subject is in the functional control
    of the state has been pushed aside in favour of a more dedicated focus on the
    balance between the probative value or reliability of the evidence, and the
    prejudice entailed in admitting harmful character evidence:
Hart
, at
    para. 10. Third, the abuse of process standard used to address problematic
    police behaviour has been reinvigorated to impose more exacting standards of
    admission:
Hart
, at paras. 11, 111-118.

[24]

To be clear, although the precise test for determining the
    admissibility of Mr. Big confessions has changed, the issues [or factors
    relevant for consideration] have not:
Hart
,

at para. 128.

[25]

Mr. Niemi raises two grounds of appeal relating to the admission of the
    Mr. Big statements, arising out of the change in law.

[26]

First, Mr. Niemi argues that the statements he made to Mr. Big
    operatives do not meet the current context specific probative value versus
    prejudicial effect formulation required by
Hart
, which applies on
    appeal even though the trial judge did not have the advantage of that decision
    during the trial.

[27]

Second, Mr. Niemi contends that his statements were secured by abuse
    of process, according to the standards enunciated in
Hart
, and should
    not have been admitted.

[28]

I would reject both grounds of appeal. Even though the trial judge
    naturally applied the law as it was understood to be at the time, the facts
    found by the trial judge on the relevant factors for consideration show that he
    would not have been wrong in admitting Mr. Niemis Mr. Big statements, even
    under current standards.

[29]

With respect to the probative value and prejudice evaluation, as Mr.
    Niemis counsel candidly acknowledged during oral submissions, the confirming
    details contained in Mr. Niemis admission present an imposing case that the
    confessions were probative. His statements to Mr. Big operatives contain a raft
    of unpublicized and impressive detail, stamping them as reliable in spite of
    the non-coercive inducements that were used to encourage Mr. Niemi to admit the
    crime. When this is combined with the trial judges reasonable findings that
    Mr. Niemi is not a pushover but a self-assured and street smart individual
    who was not dependent on the income of the fictitious criminal organization or
    emotionally bonded to its operatives, the probative value of the statements is
    impressive.

[30]

To be sure, the narrative required to unfold the statements in evidence
    disclosed a good deal of prejudicial information. Still, in this case, the
    probative value of the evidence easily outweighs its prejudice.

[31]

Nor would the reinvigorated abuse of process standard require exclusion
    of the Mr. Big statements under the current law. On the evidence, the trial judge
    properly characterized this Mr. Big operation as exemplary and excellent
    police work. Admitting these statements would neither damage the integrity of
    the administration of justice nor compromise the fairness of Mr. Niemis trial.

[32]

No error of law occurred in admitting the Mr. Big statements.

D.

Did the Trial judge err in Not Quashing The One-Party Consent Wiretap
    Authorization?

[33]

Mr. Niemi acknowledges that there were adequate grounds for issuing the
    initial one-party consent wiretap order pursuant to s. 184.2 of the
Criminal
    Code
, used to record conversations in the first stage of the Mr. Big
    operation. He contends, however, that since no new information implicating Mr.
    Niemi had surfaced, there were no reasonable grounds to believe that another
    one-party consent wiretap would obtain evidence. He argues that the subsequent
    wiretap order used in the second stage of the Mr. Big operation should
    therefore not have issued, and that the trial judge erred by not quashing it.

[34]

I disagree. The trial judge was not called upon to decide whether he
    would have granted the authorization. His task was to decide whether the
    issuing judge could reasonably have done so:
R v Araujo
, 2000 SCC 65,
    [2000] 2 S.C.R. 992. In this case, there was an evidentiary basis that entitled
    the issuing justice to find there to be reasonable grounds supporting this
    second authorization.

[35]

The grounds that supported the initial order were still in place, and
    while no decisively incriminating admissions were secured from Mr. Niemi when
    the first order was in force, Mr. Niemi did speak frequently about Ms. Watsons
    murder, demonstrating a readiness to discuss the subject. At the end of the
    first stage of the operation, he said that he may have committed the murder and
    blocked it out of his memory. This comment, along with his willingness to
    discuss the murder, could fairly be taken as increasing the prospect he would
    say more, including offering incriminating information.

[36]

Mr. Niemi had also lost his babysitting job. While this changed his
    financial situation only marginally for the worse, an issuing justice could
    take this job loss as a factor increasing the prospect that Mr. Niemi would
    succumb to the financial incentives he had been resisting.

[37]

This Court owes deference to the trial judges review of the wiretap
    authorization. Mr. Niemi has not demonstrated any errors of law, or
    misapprehension of evidence, or failure to consider relevant evidence by the
    trial judge. There is therefore no basis for this court to intervene:
R. v.
    Sadikov
, 2014 ONCA 72, 314 O.A.C. 357 at para. 89.

E.

Were there Errors Relating to The First Degree Murder Conviction?

[38]

Mr. Niemi was convicted of first degree murder on the footing that he
    murdered Ms. Watson while committing or attempting to commit an offence under
    section 271 (sexual assault):
Criminal Code
, s. 231(5)(b). He raises
    four grounds of appeal from this finding. Specifically, he argues (1) that the
    jury verdict was unreasonable, (2) that the trial judge erred by instructing
    the jury that strangulation could itself be found to be a sexual assault, (3)
    that the trial judge failed to provide a proper single transaction
    instruction relating to when a murder occurs while committing a sexual
    assault, within the meaning of s.321(5)(b), and (4) that the trial judge
    misdirected the jury by failing to review the evidence relating to the while
    committing issue.

[39]

These four grounds overlap and are fed largely by Mr. Niemis contention
    that the evidence shows that Ms. Watson died before Mr. Niemi committed the
    acts relied upon by the Crown to prove a sexual assault. As a result, he
    contends that there was no causal connection between the murder and the sexual
    acts, as the law requires, and this should have featured in the jury direction.
    He also disputes that he has properly been proved to have sexually assaulted
    Ms. Watson at all, given that the sexualized activity did not commence until
    after Ms. Watson was dead, and that it is impossible in law to commit a sexual
    assault against a dead person.

[40]

Mr. Niemis contentions raise questions about the reach of liability
    under s. 231(5)(b). Specifically, the questions relate to the operation of the
    section when the victims death precedes the acts said to constitute the sexual
    assault. There are essentially two questions:

·

Can one commit a sexual assault on a dead person?

·

If death precedes the sexual assault, when, if ever, can it be
    said that the death was caused while committing a sexual assault?

(1)

The Relevant Law

a.

The Need for a Sexual Assault

[41]

Section 231(5)(b) of the
Criminal Code
applies to persons who
    commit murder while committing or attempting to commit a sexual assault. I will
    return to the significance of the inclusion of the offence of attempting to
    commit sexual assault in s. 231(5)(b), but for the moment will focus on the
    completed offence of sexual assault as the basis for liability under
    s.231(5)(b). If a first degree murder charge under s.231(5) is based on the
    alleged commission of the completed crime of sexual assault, a conviction on
    first degree murder is possible only if the accused committed murder as defined
    in s. 229(a) and committed a sexual assault. A potential tension arises in that
    the crime of murder requires the death of the victim, while the crime of sexual
    assault requires a live victim.

[42]

The former proposition, that a murder requires the death of the victim,
    is obvious. The latter proposition, that the crime of sexual assault requires a
    live victim, can be readily demonstrated.

[43]

A sexual assault is, first and foremost, an assault. There must be an
    intentional application of force to the person of the victim
[2]
without the victims consent:
Criminal Code
, s. 265(a). Inferentially,
    the crime of assault requires that the victim be alive at the time of the
    relevant touching, and capable of withholding consent.

[44]

Moreover, an assault becomes sexual if it is committed in circumstances
    of a sexual nature, such that the sexual integrity of the victim is violated:
R.
    v. Chase
, [1987] 2 S.C.R. 293, at p. 302. It is difficult to speak
    meaningfully in such possessive terms about the victims sexual integrity if
    the victim is dead.

[45]

The proposition that a sexual assault cannot be committed against a
    deceased person imposes challenges for the Crowns general proposition that the
    order of the crimes  the murder and the sexual assault  is immaterial under
    s. 231(5)(b). To overcome this challenge the Crown suggested in oral argument
    that sexual assault has a different meaning for the purposes of s. 231(5)(b)
    than it does for the offence of sexual assault under s. 271 of the
Criminal
    Code
. I do not agree. This argument would be difficult enough if s.
    231(5)(b) simply used the phrase sexual assault. However, the section refers
    specifically to s. 271. All of the elements of a s. 271 sexual assault, or an
    attempted assault, must therefore be present before a first degree murder
    conviction under s. 231(5)(b) is appropriate. Indeed, according to basic
    principles, the elements of an offence must all be present at the same time:
R.
    v. Williams
, 2003 SCC 41, [2003] 2 S.C.R. 134, at para. 35;
R. v.
    Cooper
, [1993] 1 S.C.R. 146, at p. 157. Just as a sexual assault under s. 271
    cannot be initiated against a person who is dead, a first degree murder
    premised on the offence of sexual assault cannot occur under s. 231(5) if the
    sexual assault begins after the victim has died.

[46]

It follows that the Crowns blunt position that the order of the murder
    and sexual assault do not matter requires refinement.

[47]

Meanwhile, although he softened his position in argument, in his factum
    Mr. Niemi took the position that since a victim must be alive to be sexually
    assaulted, if the [sexual] acts are committed after the murder, there is no
    underlying sexual assault and no continuing domination, and hence no first
    degree murder under s. 231(5)(b). This proposition, as he ultimately
    recognized, is also too blunt.

[48]

In my view, there are two distinct avenues to a first degree murder
    conviction under s. 231(5)(b) in cases in which the sexualized conduct occurs
    after death. First, those acts, although post-mortem, may amount to an
    attempted sexual assault on the deceased victim. Second, on the facts, the jury
    may conclude that the sexual assault was underway before the victim died even
    though the overtly sexual acts occurred after death.

b.

Attempted Sexual Assault

[49]

Under s. 231(5)(b) an attempted sexual assault will suffice as the
    underlying offence. It is entirely possible to attempt to commit a sexual
    assault with a corpse, since under s. 24(1) of the
Criminal Code
, the
    impossibility of actually committing an attempted offence is no answer.

[50]

To be guilty of an attempted sexual assault, the accused must intend to
    commit the offence of sexual assault, and must engage in an act that goes
    beyond preparation and is not too remote from the consummation of the crime:
Criminal
    Code
, s. 24. If this happens, s. 231(5)(b) can lead to a first degree
    murder conviction, even if the victim expires before the sexual activity
    commences.

[51]

This avenue to a first degree murder conviction is available to the
    Crown, in my view, where an accused person believes a deceased victim to be
    alive, or is not certain whether the victim is alive when the sexual activity
    is initiated. If they know the victim may be alive but nevertheless proceed
    with the sexual activity, they are attempting a sexual assault.

[52]

The claim that the
mens rea
for attempted sexual assault can be
    met where an accused person is not certain whether the victim is alive when the
    sexual activity is initiated does not incorporate notions of recklessness into
    the law of attempt, contrary to the leading authority of
R. v. Ancio
,
    [1984] 1 S.C.R. 225. The accused person in such a case is not simply intending
    to take an unjustified risk that a prohibited consequence may occur. They are
    intending to sexually degrade their victim, dead or alive. Since they are
    intending to sexually violate their victim even if alive, they have the
    requisite
mens rea
for a sexual assault, which will suffice for an
    attempted sexual assault if the victim happens to be dead. The precise time of
    death of the victim is therefore moot for the purposes of s. 231(5)(b) in such
    a case. Accused persons that intend to sexually violate their victim, dead or
    alive, will either have sexually assaulted their victim or they will have
    attempted to do so.

c.

Sexual Assaults Underway when Death Occurs

[53]

The easiest example of an appropriate s. 231(5)(b) first degree murder
    conviction based on the actual offence of sexual assault where the sexualized
    conduct commences after death, arises where the accused person initiates the
    violence that causes death for the purpose of facilitating sexual domination.

[54]

This position is sometimes explained by focusing on the policy
    implications so powerfully put by Fraser C.J.A. in
R. v. Richer
(1993), 141 A.R. 116 (C.A.), at para 13, affd [1994] 2 S.C.R. 486
,
    in words that found favour in this court in
R. v. Westergard
(2004),
    70 O.R. (3d) 382 (C.A.), at para. 33, leave to appeal to S.C.C. refused, [2004]
    S.C.C.A. NO. 521:

I have difficulty with the proposition that a murderer intent
    on silencing his victim or rendering her compliant for sexual activity should
    be able to argue that murder in these circumstances is not first degree murder
    simply because his victim died by his hand before he could complete, or for
    that matter, begin the sexual assault.

[55]

As sound as this policy is, the legal reason why sexually motivated
    murders qualify as first degree murder is that where physical force is
    undertaken for the purpose of facilitating sexual activity, the assault is
    sexual from the outset.

[56]

This proposition finds support in
R. v. Alderton
(1985), 49
    O.R. (2d) 257 (Ont. C.A.). Mr. Alderton physically attacked the victim in her
    bed and attempted to bind her hands, but she managed to flee before his
    physical touching became overtly sexual. On appeal he protested his sexual
    assault conviction, but Martin J.A. upheld it, saying, at p.263, [W]e are all
    satisfied that [sexual assault] includes an assault with the intention of
    having sexual intercourse with the victim without her consent, or an assault
    made upon the victim for a sexual purpose.

[57]

It follows, as Steel J.A. said in
R. v. Muchikekwanape
, 2002
    MBCA 78, 166 Man. R. (2d) 81, at para. 89, that

pre-death violence
    perpetrated to subdue a victim for the purpose of perpetrating a sexual assault
    is in itself a sexual assault.  Even though the sexualized activity does not
    commence until after death, the sexual assault commences before death,
    providing the basis for a first degree murder conviction under s. 231 (5)(b).

[58]

In practical terms, the fact that an assault perpetrated for the purpose
    of facilitating sexual activity can ground a first degree murder conviction
    under s.231 (5)(b), even where the objectively sexualized assaultive acts have
    yet to begin, does nothing to extend the reach of s. 231 (5)(b). This is
    because a  first degree murder conviction under s.231 (5)(b) can be based on an
    attempted sexual assault, and anyone who uses violence for the purpose of
    perpetrating a sexual assault has gone beyond preparation and is committing an
    attempted sexual assault. Still, it is important in understanding the technical
    scope of s. 231(5)(b), and those authorities that rest first degree murder
    convictions on sexual assault findings where sexualized conduct occurs after
    death, to appreciate when the completed offence can provide a path to conviction.

[59]

The instant point, of course, is that where the victim dies at the hands
    of the accused before the accused commences the sexualized conduct that he
    intended all along, the fact that it is impossible to sexually assault a corpse
    will not prevent a s. 231(5)(b) first degree murder conviction. The victim may
    be dead when the sexualized conduct occurs, but they were alive when the sexual
    assault commenced.

[60]

Sensibly, the law does not require discrete proof that, before the
    violence ensued, the accused person had an intention to sexually violate their
    victim. Where the two crimes  murder and sexual assault  are so inextricably
    intertwined that they form a single continuous transaction, to use the phrase
    offered by Steel J.A. in
Muchikekwanape
, at para. 77, the entire
    attack takes on the character of a sexualized murder and will ground a first
    degree murder finding under s. 231(5)(b). In effect, the close link between the
    events exposes, circumstantially, that the murder is a sexual killing. Since the
    entire single transaction is a sexual killing, a sexual assault is necessarily
    occurring when the murder happens, even if the victim has expired by the time
    the objectively sexualized conduct begins.

[61]

This outcome is made possible by the interpretation that has been given
    to the while committing requirement found in s. 231(5). That component of s. 
    231(5) has been authoritatively interpreted in
R. v. Paré,
[1987] 2
    S.C.R. 618, in the context of s. 231(5)(b). Even though the most natural
    reading of s. 231(5) suggests that both offences must occur simultaneously,
    this is not what the law requires. The two offences can occur sequentially, so
    long as they are properly characterized as parts of the same transaction or
    event.

[62]


In coming to this decision in
Paré
, Wilson J. noted
    that sexual assault is only one of the underlying offences that can satisfy s.
    231(5)(b). Other offences include hijacking, kidnapping and unlawful
    confinement. What these offences have in common is that they each involve the
    illegal domination of the victim by the accused. Justice Wilson used this
    feature to identify an organizing principle that would support a purposive
    and sensible interpretation of the while committing requirement, at p. 633:

This principle is that where a murder is committed by someone
    already abusing his power by illegally dominating another, the murder should be
    treated as an exceptionally serious crime. Parliament has chosen to treat these
    murders as murders in the first degree.

[63]

To achieve this organizing principle, the Supreme Court adopted the
    single transaction test recognized by Martin J.A. in
R. v. Stevens
(1984),
    11 C.C.C. (3d) 518 (Ont. C.A.):
Paré
, at p. 632
.
If the
    underlying offence and the killing all form part of one continuous sequence of
    events forming a single transaction then the while committing requirement is
    satisfied:
Paré
, at p. 632, citing Stevens, at p. 541. Accordingly,
    Wilson J. explained, at para. 629:

[T]he words while committing do not require an exact
    coincidence of the murder with the underlying offence. Rather, they require a
    close temporal and causative link between the two.

[64]

In
R. v. Pritchard
, 2008 SCC 59,

[2008] 3 S.C.R. 195,
    at para. 35, Binnie J., writing for the court, paid regard to the underlying
    philosophy of s. 231(5) when providing guidance on how the temporal and
    causative link is to be applied:

The temporal-causal connection is established where the
    [underlying offence] creates a continuing illegal domination of the victim
    that provides the accused with a position of power which he or she chooses to
    exploit to murder the victim.

[65]

It was therefore settled after
Paré
that the single
    transaction test can be met where the
actus reus
of the underlying
    offence is either ongoing or completed when the murder occurs. Mr. Paré

had
    finished sexually assaulting his seven-year old victim when he decided he had
    to kill the boy to escape detection. The sexual assault and the killing where
    linked temporally and casually, since the two acts occurred close in time and
    the sexual assault gave rise to the killing:
Paré
, at p. 634.

[66]

There has been modest controversy, however, about whether this can work
    in reverse. Can a first degree murder conviction occur where the sexualized
    conduct commences after the victim has died? The case most commonly cited in
    opposition to that possibility is
R. v. Quesnel
(1991), 71 Man. R.
    (2d) 1 (C.A.).
[3]
This case has been offered to support the proposition that if the sexualized
    conduct commences after the victim has died, s. 231(5) is not available. Yet as
    the illustration of the sexually motivated killing demonstrates, there are s.
    231(5)(b) cases where the murderous act can precede the sexualized acts. I
    therefore agree with the court in
R. v. Squires
, 2005 NLCA 51,

249
    Nfld. & P.E.I.C. 14, at para. 57, leave to appeal to S.C.C. refused, [2005]
    S.C.C.A. No. 561, that [i]t would be incorrect in law to instruct the jury on
    the basis that death of the victim before commission of the acts said to
    constitute the sexual assault precludes application of s. 231(5)(b) (citations
    omitted).

[67]

The prevailing body of law commonly interprets s. 231(5)(b) as supporting
    first degree murder convictions in cases where death precedes the sexual
    activity, provided the sexual assault and murder are part of one continuous
    sequence of events forming a single transaction:
R. v. Mullings
, 2014
    ONCA 895, 319 C.C.C. (3d) 1, at para. 102, leave to appeal to S.C.C. refused,
    [2015] S.C.C.A. No. 253;
Westergard
, at paras. 31-35;
R. v. Ganton
(1992), 105 Sask. R. 126 (C.A.).
[4]
Other similar authorities include
Richer
,
Muchikekwanape
,
Squires
,
R. v. Fliss
, 2000 BCCA 347, 145 C.C.C. (3d) 353, and
R.
    v. Plewes
, 2000 BCCA 278, 137 B.C.A.C. 13, affd on other grounds, 2002
    SCC 16, [2002] 1 S.C.R. 535.

[68]

If the two crimes are so inextricably intertwined that they form a
    single, continuous transaction, the requisite connections called for under the
    while committing requirement exist:
Muchikekwanape
, at para. 77. The
    temporal connection is obvious and the required causal connection is
    generally supplied by the fact that death was caused during what can fairly be
    seen, in all of the circumstances, as a single transaction, to wit, a sexual
    killing.

[69]

Where the murder and sexual assault are sufficiently intertwined to
    constitute a single transaction, the underlying principle of s. 231(5)(b) is
    also clearly honoured. As Fraser C.J.A. put it in
Richer
, at para. 14:

[W]hen the required linkage is found to exist, it is the two
    crimes  sexual assault and murder  committed together, regardless of the
    order, which represents the ultimate exploitation of the position of power over
    a victim.

[70]

In saying this I understand that, in the factual context of
Pritchard
,

Binnie J. referred, at para. 35, to a continuing illegal domination of
    the victim that provides the accused with a position of power which he or she
    chooses to exploit to murder the victim. This formula does appear to connote
    that the domination from the underlying crime must distinctly come first in
    time. Justice Binnie was not adjudicating a case where the order of crimes was
    an issue, however, and cannot fairly be taken to be directing that there is a
    mandated sequence for the forms of domination that occur within the continuing
    illegal domination of the victim he describes.

[71]

In
R. v. Russell
, 2001 SCC 53, [2001] 2 S.C.R. 804, at para.
    42, another case were the order of crimes was not in issue, McLachlin C.J.,
    articulated the rational in more flexible terms:

The essence of the reasoning [in
Paré
] was that s.
    231(5)(b) reflects Parliaments determination that murders committed in
    connection with crimes of domination are particularly blameworthy and deserving
    of more severe punishment. In many cases, such murders will be committed as the
    culmination of the accuseds domination of the victim of the enumerated
    offence. This was the case in
Paré
,
Arkell
and
Luxton
.
    In other cases, however, the accused will have murdered one person in
    connection with the domination of another. I cannot conclude that Wilson J.'s
    judgment in
Paré
or Lamer C.J.'s judgments in
Arkell
or
Luxton
foreclose the application of s. 231(5)(b) in such cases.

[72]

In spite of the language that is occasionally used, I do not understand
    the single transaction decisions to hold that s. 231(5)(b) is always met where
    the accused commits a murder followed by sexual acts. As has been recognized in
    this very body of law, if the sexual activity follows a murder in the absence
    of the requisite temporal and causal connection between the murder and the
    sexual activity, an indignity to a human body will have occurred rather than a
    sexual assault, and a s. 231(5)(b) conviction cannot follow:
Richer
,
    at para. 9,10;
Muchikekwanape
,

at paras. 77, 88.  As a
    result, if there is a reasonable doubt about whether the sexualized activity
    was a new initiative arising after death, s. 231(5)(b) will not apply.

[73]

Unqualified statements found in this body of case law that are capable
    of suggesting that it does not matter the order in which the two offences occur
    should therefore not be read to mean that the order of offences never matters.
    These passages, understood in context, simply communicate that where the
    killing and sexual activity are so inextricably intertwined that they form a
    single continuous transaction, the order does not matter.

[74]

With this foundation, the two questions that Mr. Niemis contentions
    raise about the reach of liability under s. 231 (5)(b) can be answered.

[75]

In response to the first question, Can one commit a sexual assault on a
    dead person, the answer is no. One cannot commit a sexual assault on a dead
    person.

[76]

In response to the second question, If death precedes the sexual
    assault, when, if ever, can it be said that the death was caused while the
    accused was committing a sexual assault?, the answer is more nuanced. If the
    actions prior to the victims death do not amount to a sexual assault as
    defined in s. 271 the answer is never.

[77]

The more elaborate answer, the one of significance in this case, is that
    a sexual assault has been committed (although not necessarily completed) when
    an accused uses force against a victim with the intention of committing sexualized
    misconduct even if the overtly sexualized conduct has yet to commence. It
    follows that even if the victim dies from that force before the sexualized
    misconduct begins, death will have been caused by the accused while the accused
    was committing a sexual assault.  Such a finding will be appropriate where the
    murder and sexually assault are so inextricably intertwined that they form a
    single continuous transaction.

(2)

Was the First Degree Murder Verdict Unreasonable?

[78]

Mr. Niemi does not contest the reasonableness of the murder finding. His
    contention is that the evidence failed to demonstrate a sexual assault because all
    of the acts the Crown relied on to prove sexual assault occurred after Ms.
    Watson was dead, making a first degree murder conviction inappropriate. Specifically,
    Mr. Niemi claimed to have cut Ms. Watsons sweater and bra after he strangled
    her. As well, forensic evidence was that the cuts to Ms. Watsons body, including
    the cut circling the bottom of her left breast, were inflicted after her heart
    had stopped beating. In spite of his admission in his written statement that he
    removed her pants before pulling Ms. Watson to the right side of the trail,
    Mr. Niemi urges that dirt and abrasions on the body suggest that her pants and her
    underwear were not removed until after she was dragged from the path where Mr.
    Niemi described the attack as occurring.

[79]

As well, Mr. Niemi denied the killing of Ms. Watson was a sex crime,
    and explained that these post-mortem acts were only meant to throw the police
    off.

[80]

For the reasons already explained, Mr. Niemis base objection that the fact
    that these violations occurred post-mortem precludes a first degree murder
    finding under s. 231(5)(b) misses the mark. The material question is whether
    there was evidence that would enable a finding that Mr. Niemi sexually
    assaulted, or attempted to sexually assault, Ms. Watson (as opposed to doing an
    indignity to her body), during the single transaction in which the murder
    occurred.

[81]

I will address this ground of appeal, however, by engaging Mr. Niemis
    claim that the evidence is incapable of enabling a reasonable jury to conclude
    that a sexual assault occurred.

[82]

First, it is helpful to put aside the statements made by Mr. Niemi in
    which he denies a sex crime and a sexual purpose. Mr. Niemis denials that this
    was a sex crime are not determinative. An objective test is used to identify
    whether an assault violated the sexual integrity of the victim. The base issue
    is whether, in all of the circumstances, a reasonable observer would conclude
    that there is a sexual or carnal context to the intentional acts committed by
    Mr. Niemi, not how Mr. Niemi would characterize them:
Chase
, at p.
    302;
R. v. Taylor
, 1985 ABCA 51, 19 C.C.C. (3d) 156, at p. 269. While
    the presence of a sexual intent can inform this objective determination, if the
    assault by its nature interferes with the sexual integrity of the victim it
    will be a sexual assault regardless of the intent or purpose of the offender:
R.
    v. V.(K.B.)
, [1993] 2 S.C.R. 857.
[5]

[83]

Similarly, Mr. Niemis claim that he engaged in the sexual acts to throw
    off investigators does not assist his case. This harms it. He is acknowledging
    that he meant to do acts that would make others conclude objectively that the
    assault had a sexual or carnal context. This does not assist his claim that it
    is not objectively reasonable to find that the murder did not have a sexual or
    carnal context.

[84]

Indeed, objectively, Mr. Niemis acts were sufficient to constitute a
    sexual assault. Ms. Watsons sweater and bra were cut open, exposing her
    breasts. One of her breasts was traced along the bottom in an apparent sexual
    mutilation. Her underwear was removed, exposing her sexual organs. Without
    question, subject to the significance, if any, of the post-mortem nature of
    some or all of these acts, there was compelling evidence that there was a carnal
    or sexual content to this horrific assault.

[85]

What then of the forensic evidence that the cuts to her body were
    inflicted and her clothing removed after Ms. Watsons heart stopped? It is
    important to bear in mind when considering this evidence that Mr. Niemi
    demonstrated the attack by showing that immediately after the ligature
    strangulation, while Ms. Watson was still in the same position she was in when
    he embarked upon the attack, he immediately set to work cutting her sweater and
    her bra open. Given the unbroken sequence in which the murder and the sexually
    significant activity took place, it was open to a reasonable jury to infer
    that, from the outset of the attack, Mr. Niemi intended to sexually violate Ms.
    Niemi to throw off the investigation. This would be enough to warrant a s. 231(5)(b)
    first degree murder finding.

[86]

It was also open to the jury to reject Mr. Niemis assertion that his
    sexual misconduct was a ruse, and to find that he was engaging in a sexual
    killing from the outset. The jury was entitled to treat his sexual acts,
    falling at the heels of the strangulation, as circumstantial evidence of why
    the attack occurred.

[87]

Although authority is not needed for the point because it is nothing
    more than an application of basic circumstantial evidence reasoning, Twaddle
    J.A. recognized in his concurring reasons in
Muchikekwanape
at para.
    104, that [i]ndecent interference with a victims dead body may be a
    circumstance from which an inference can be drawn that the purpose of the
    assault which caused the death was sexual. Given the quick succession of the
    ultimately fatal violence and the sexual acts, that inference was open to the
    jury here.

[88]

As well, a first degree murder finding based on an attempted sexual
    assault would also have been reasonable. This is not a case where a victim of
    murderous violence is obviously dead when the sexualized misconduct begins, and
    the jury was not required to treat Mr. Niemis claim that he had finished the
    job of killing Ms. Niemi by strangling her as credible evidence that he knew
    she was dead immediately after the strangulation ceased. Even if Ms. Watson
    happened to be dead when the sexualized conduct began, given the immediacy of
    the transition from murderous violence to sexualized misconduct, it was open to
    the jury to infer from Mr. Niemis admitted conduct that he intended to engage
    in his sexualized conduct, whether Ms. Niemi was dead or alive.

[89]

This ground of appeal therefore fails.

(3)

Did the Trial Judge Err by Instructing the Jury that Strangulation Could
    Itself Be Found to Be a Sexual Assault?

[90]

During the course of his charge, the trial judge instructed the jury
    that one possible inference that you may make is that the principal assault
    and strangulation of Ms. Watson was a sexual assault. Mr. Niemi argues that
    there was no evidence to demonstrate that the strangulation itself had a sexual
    component to it, and this instruction would be understood by the jury to mean
    that strangulation is a sexual assault, which is wrong in law.

[91]

I disagree. The trial judge prefaced this comment by noting that, if the
    jury accepted Mr. Niemis statements, the jury could find that the removal and
    cutting of Ms. Watsons clothing occurred in close proximity to the
    strangulation. The entire impugned passage that followed this description of
    the material evidence stated: Based on all of these acts, and the manner in
    which they occurred, one possible inference that you may make is that the
    principal assault and strangulation of Ms. Watson was a sexual assault. Read
    in context, the trial judge was simply inviting the jury to consider the very
    inference that I have found to have been open to the jury. This was not an
    error. I would  not accept this ground of appeal.

(4)

Was the While Committing Direction Inadequate?

[92]

The material part of the trial judges charge that grounds this basis
    for appeal is as follows. I have emphasized the portions that have attracted
    complaint:

In order for Mr. Niemi to be guilty of first degree murder
    Crown counsel must also prove beyond a reasonable doubt that Mr. Niemi murdered
    Alyssa Watson
while
he was committing, or attempting to commit, the
    offence of sexual assault.

This does not mean that the murder and the sexual assault, or
    attempt to commit sexual assault, have to happen at exactly the same moment.
The acts constituting the sexual assault or the attempted
    sexual assault, may have been committed before the act that caused Ms. Watsons
    death, or afterwards. But the murder and the sexual assault, or attempt to
    commit sexual assault, must be closely connected to one another, in the sense
    that they must be part of the same series of acts. They must both be part of a
    single ongoing transaction. A single, ongoing transaction is a sequence of
    events or course of conduct that is interrelated or linear, ongoing and
    connected throughout in time.

To answer this question you have to consider the entire course
    of Mr. Niemis conduct. Look at the whole series of events. The evidence may
    show that the murder and the sexual assault, or attempt to commit sexual
    assault were all part of a continuous series of events that was really a single
    ongoing transaction. On the other hand, the evidence may indicate otherwise.
    [Emphasis added.]

[93]

I will begin by observing that this charge contains everything said on
    the while committing element in David Watts
Watts Manual of Criminal Jury
    Instructions
, 2nd ed. (Toronto: Carswell, 2015), at p. 719, and the Canadian
    Judicial Council  National Judicial Institutes
Model Jury Instructions
(online:
    https://www.nji-inm.ca/index.cfm/publications/model-jury-instructions/).

[94]

The trial judges charge, however, did go farther than these model
    charges. Mr. Niemis complaints about the legal content of the charge are
    primarily with what was added. He also contends, relying in part on the model
    instruction in Gerry Ferguson and Michael R. Dambrot,
CRIMJI: Canadian
    Criminal Jury Instructions
, loose-leaf, 4th ed. (Vancouver: Continuing
    Legal Education Society of British Columbia, 2014), at para. 6.42-20, that other
    legally correct detail should have been added in the particular circumstances
    of his case.

[95]

First, Mr. Niemi contends that the direction, [t]he acts constituting
    the sexual assault or the attempted sexual assault, may have been committed
    before the act that caused Ms. Watsons death, or afterwards, is wrong in law.
    He says that if the acts are committed after the murder, there is no underlying
    sexual assault and no continuing domination.

[96]

As explained above, Mr. Niemis view of the law is incorrect. It is not
    the case that the sexual activity must necessarily precede death for s. 231(5)(b)
    to operate. It is not a misdirection to point out that a s. 231(5)(b)
    conviction can occur where death comes first.

[97]

Mr. Niemis second and more multi-faceted complaint about the jury
    direction is that, regardless of what will ordinarily suffice, his case called
    for a more complete description of the law. Although he did not use this term,
    his position at trial was that, if the jury linked him to the crime, his sexual
    misconduct was simply a post-script to a killing that had already happened, and
    his post-mortem violation of the victim could amount in law to nothing more
    than an indignity to a body. Accordingly, on the particular facts of his case,
    he urges that a direction to the effect that it does not matter whether the
    murder occurred before or after death was misleading.

[98]

Moreover, while there may be no need to deal expressly with the causal
    connection requirement in cases where it is self-evident that there is a
    causal connection (as in cases where the sexual acts precede or coincide with
    the murder), Mr. Niemis contention is that there was no causal connection in
    this case. The trial judge was therefore obliged to tell the jury about the
    causal connection requirement so they could evaluate his defence to the first
    degree murder classification, and so the jury would appreciate that s. 231(5)(b)
    is aimed at murders made more heinous because they occur during the unlawful
    domination of another. He says that it was critical to bring this home to the
    jury in his case because he did not sexually dominate Ms. Watson, as she was
    dead before the sexual misconduct arose.

[99]

Mr. Niemi argues that, to make matters worse, the trial judges
    explanation of the while committing requirement would have left the jury with
    the impression that nothing more than a temporal connection is needed. He
    submits that the use of the phrase connected through time, in the following
    sentence would invite this understanding:

A single, ongoing transaction is a sequence of events or course
    of conduct that is interrelated or linear, ongoing and connected throughout in
    time.

[100]

I will begin
    with this last point. In my view, while it could have been clearer, even in
    isolation this passage does not import that a link in time is sufficient to
    meet the while committing requirement. Its inclusion of the phrase, a
    sequence of events or
course
    of conduct that is interrelated
, suggests that more than a
    temporal connection is required.

[101]

As always, the
    charge must be read as a whole. It is worth mentioning that this charge
    included the standard description of the single event concept found in model
    jury charges, language that was no doubt selected because it communicates
    effectively that more than a temporal connection is required for the murder and
    underlying offence to be linked.

[102]

As well,
    immediately after describing the law the trial judge outlined the Crown
    position and the defence position. In each case the focus was not on time, but
    on whether the acts were linked. The Crown position was essentially that the
    entire sequence of events  the strangulation and the sexual assault  were
    part of the same transaction either because the attack was part of an overall
    assault that was sexual in nature, or, alternatively, because the attack became
    sexual when Mr. Niemi removed Ms. Watsons clothes and cut her body. The
    defence position was that the sexual misconduct, [e]ven though not separated
    by a great deal of time, was not linked to the killing but rather a
    diversion, carried out after the murder as a distinct series of acts.

[103]

I appreciate
    that at this juncture, the trial judge was describing submissions and not
    directing the jury on the law
per se
. Still, the jury would understand
    that the trial judge would not trouble them with pointless arguments. They
    would have appreciated that since those arguments highlight both the causal and
    temporal connections, more than a temporal connection is required.

[104]

When the charge
    is read as a whole, it is evident that the jury would not have been misled by
    the impugned passage into thinking that only a temporal connection is needed.

[105]

Mr. Niemis
    remaining complaints respecting the legal content of the charge stand or fall
    together. I refer, of course, to his claims that the trial judge was required
    to (1) make the causal connection requirement explicit, (2) communicate that
    the underlying principle at stake is that a murder is particularly heinous when
    someone who is already being dominated is killed, and (3) refrain from
    misleading the jury into thinking that the sequence of death and sexual
    activity are unimportant. These three complaints each depend upon the integrity
    of the defence theory that the sexual activity was a post-mortem post-script to
    a murder that had already occurred. On the evidence in this case, however, this
    theory lacks integrity.

[106]

There was not,
    in my view, a realistic foundation in the evidence for the contention that Mr.
    Niemi did no more than an indignity to Ms. Watsons body. I say this because
    the Mr. Big confession was punctuated by Mr. Niemis physical demonstration of
    the sequence of events when Ms. Watson was killed. In his demonstration, he
    depicted an unbroken transition from strangulation to sexual interference. He
    showed how immediately after strangling Ms. Watson with her own purse strap, he
    set about cutting her clothing without pause or interruption. Her posture had
    not even changed. In my view, there is simply no air of reality to the prospect
    that Mr. Niemi may have instantaneously decided to sexually violate his victim
    in the fleeting instant between ending the strangulation and beginning to cut
    her sweater. Simply put, while legally a temporal link alone is not enough to
    satisfy the while committing test, in this case, an immediacy between fatal
    violence and sexual interference makes manifest that the murder and sexualized
    conduct occurred during the same transaction, a sexualized killing. Since Ms.
    Watson died in a sexual killing, the necessary causal link is inevitable. Had
    the trial judge said more about the while committing requirement and the
    facts of this case, it would not have been helpful to Mr. Niemi.

[107]

In saying this,
    I am mindful of the evidence that the incisions to Ms. Watsons body occurred
    after her heart stopped, and that her pants may have been removed after she was
    dragged. These acts were not the beginning of the sexual interference. The
    cutting of Ms. Watsons clothing was, and this act followed seamlessly on the
    immediate heels of the act of strangulation.

[108]

Once again, I
    have also borne in mind Mr. Niemis claim that he began the task of making the
    killing of Ms. Watson look like a sexual assault after he had finished the
    job of strangling her to death. He may have finished the acts he needed to
    bring about death, but this does not provide a basis for doubting that the sexual
    misconduct was part of the same transaction as the strangulation.

[109]

Ultimately, the
    only realistic scenario available on the evidence was that Mr. Niemi strangled Ms.
    Watson and intentionally interfered with her sexual dignity in one single transaction.
    Functionally, there was no need for the trial judge to burden the jury with a
    detailed legal back-story about rules and principles that could not apply. In
    my view, the jury direction on the while committing issue was adequate.

(5)

Did the Trial Judge Err by Not Relating the Evidence to the While
    Committing Requirement?

[110]

Finally, Mr.
    Niemi submits that the trial judge committed a non-direction amounting to a
    misdirection by not relating the evidence to the while committing issue. Once
    again, I disagree. Given that the defence theory that Mr. Niemi did no more
    than interfere with a corpse was not realistically on the table, the trial
    judge adequately linked the evidence to the issue.

F.

Conclusion

[111]

For all of the
    reasons, Mr. Niemis appeal is dismissed.

Released: DD SEP 18 2017

David M. Paciocco
    J.A.

I agree. Doherty
    J.A.

I agree. J.
    MacFarland J.A.





[1]
A Mr. Big operation, in its classic form, involves recruiting a suspect into a
    fictitious criminal organization and then holding out the benefits linked to
    membership if the suspect admits to the crime being investigated.



[2]

There are cases where an assault can occur without the actual
    application force, through attempted or threatened force, but those
    circumstances, outlined in
Criminal Code
, s. 265(1)(b), are not before
    us.



[3]

In
Richer
, Harradence J.A., dissenting, took a similar
    view of the law. Justice Twaddle returned to this theme in his concurring
    reasons in
Muchikekwanape
, where he made his view clear that a s.
    231(5)(b) conviction cannot arise where acts of sexual interference follow
    death.



[4]

Mullings
is not a sexual
    assault case. This issue was dealt with in the unlawful confinement context to
    illustrate the general proposition that s. 231(5)(b) can apply where death
    precedes the underlying offence.



[5]
The trial judges charge to the jury, that they should acquit Mr. Niemi if they
    believe his statement that this was not a sex crime, was unduly generous to Mr.
    Niemi.


