Bosma Murder Trial - Weekend Discussion #9

[palisadesk]

What is the max sentence CN could face for her charges?

Life in prison.

 

[mozzagirl]

Life in prison.

Oh wow! I had no idea it could be that long a sentence. Sorry this is a naive question but by "life in prison" that means 25 years before parole is considered, right? Just like the sentence for 1st degree murder?

 

[deugirtni]

But returning to the initial charge against DM of abduction and theft over $5000 that was then escalated to First degree Murder when evidence of the victim's body was recovered.......I was of the understanding that abduction resulting in death is First Degree Murder....and the proof is self evident---TB never returned home.

When DM was initially charged with abduction, it was because TB was missing, and DM was caught red-handed with his truck. There was no indication at that moment that TB had been murdered. So it is only logical that if DM had the man's truck, and the man was missing, that he was being held against his will. But when it was discovered that there were signs of blood spatter all over the interior and exterior of the truck, and a human bone inside DM's incinerator, the murder charge was laid. This is left to the learned lawyers and judges, but if TB was killed right away, I'm not sure that it goes without saying that he was abducted/confined, any more than any other murder constitutes a level of confinement? With every murder, there must be a degree of confinement, otherwise the victim would leave. There is an interesting, but intense paper written on this, from years ago.. located here at the link below. It is an older article from 1983, but it talks about the reasoning behind why the confinement aspect signifies a difference to the murder charge, and what its intent was when that was written into the law, and how the prosecution must be careful when using it, etc.

The Explosive Combination of Forcible Confinement and Constructive Murder: What Are Its Proper Confines?

 

[SnooperDuper]

OMG, that just kind of scared me. Why today? Why now? Now I'm all full of paranoia that something has happened to cause the 'end of trial', early! God I hope nothing horrible has happened to cause that!

It's just a sign that the trial is moving towards its end.

(Not a sign that the world is going to end )

 

[Sillybilly]

In Her Majesty the Queen v. Michael Bruce Newman, Newman appealed his conviction on first degree murder based on the forcible confinement component. The Court of Appeal sided with Newman, and substituted a conviction for second degree murder:

from:
http://www.scc-csc.ca/case-dossier/info/sum-som-eng.aspx?cas=36524

The trial judge convicted Mr. Newman of first degree murder on the basis that he caused the victim’s death while committing or attempting to commit the offence of forcible confinement, pursuant to s. 231(5)(e) of the Criminal Code. Mr. Newman appealed his conviction, arguing that the trial judge misapprehended certain evidence and that there was insufficient evidence to establish forcible confinement. The majority of the Court of Appeal agreed with Mr. Newman’s second ground and substituted a conviction for second degree murder. It was of the view that the confinement portion of the attack on the victim was coextensive with the acts that caused his death, rather than a separate act as required for a first degree murder conviction under s. 231(5)(e). Smith J.A., dissenting, would have dismissed the appeal.

<bbm>

 

[RandomName479]

It's just a sign that the trial is moving towards its end.

(Not a sign that the world is going to end )

Totally agree.....if you look at SC's Twitter for context, it was a response to questions regarding when/if reporters can publish what is going on with the jury out of the room. I would think she has been working on a story right from Day 1 and was merely mentioned it today in response to questions that arose because people want to know what was going on behind closed doors today. MOO

 

[hopingforjustice]

AP seems to think there are only 5 Crown witnesses left....while other MSM are saying around a dozen. She has also stated that both accused will be testifying.....which at this point in time she really has no way of knowing......I'd take her reporting with a grain of salt.....MOO

BBM

Perhaps they are both right...possibly only 5 new witnesses, but maybe a few recalls ie: some LE to discuss more evidence??

 

[billandrew]

According to this summary table, the common sentence for accessory after the fact is between 3 to 5 years. And apparently it is a rarely used charge in Canada.

 

[Webulls]

This is the weak link. It is not disputed that TB entered the truck willingly, and there are witnesses to this who have testified as much. It would require some additional evidence to prove forcible confinement. Such evidence might include one of the merry band of brigands testifying to being told by DM or MS that they were planning to steal a truck, tie up the driver and toss him out in a remote spot and make off with the goods. That would be abduction and forcible confinement. But the evidence so far doesn't show any apparent use of force to get Tim into the truck, and by your timeline (which I found brilliant BTW) the murder probably occurred within minutes so on the face of it "forcible confinement" does not seem to have occurred, although if it was in the plan and reported as such, that would be evidence of same. Also, did the vehicle have child safety locks so that the passenger side person could not get out? If forensic studies showed the truck with those still in place and turned on maybe that would be evidence (but I'm not sure about that).

Unless the forthcoming witnesses can provide some evidence of intent to confine the owner of the vehicle that will be a difficult thing to prove. Although premeditation, at least on DM's part, is more likely. We will have to wait for more testimony I think.

I guess the presence of TB's blood all over the interior, a spent bullet casing rolling around on the floor, and a shattered passenger side window suggest to you that TB was having a good ole time with DM and MS. Short of a videotape showing TB being murdered, what else do you need to see/hear?

 

[Sillybilly]

Here's the actual decision in the Newman case:

http://www.courts.gov.bc.ca/jdb-txt/CA/15/02/2015BCCA0237.htm

Note in the case of White:

In White, Mr. White and three other men decided to rob the victim. They followed him down a narrow catwalk. The victim began to run and the four men pursued him. One of the men caught up to the victim and restrained him in a bear hug. Within two to three seconds, as the victim struggled to free himself, Mr. White ran up and stabbed him.

[95] In her reasons for judgment, Madam Justice Simmons held that the bear hug was a distinct criminal act, independent of the stabbing

But in the case of Rozen:

[97] Returning to the case at bar, it is clear Mr. Rozen was killed during a prolonged and brutal struggle. By the time that struggle reached the front door of the apartment he had been shot and stabbed. There can be no doubt Mr. Newman attacked Mr. Rozen throughout the apartment for the purpose of killing him. That Mr. Newman, while continuing that attack at the front door, prevented Mr. Rozen from leaving the apartment cannot be said to constitute an independent act of confinement or attempted confinement. Put otherwise, what occurred at the front door was &#8220;consumed&#8221; in the overall act of killing.

[98] As the confinement aspect of the attack on Mr. Rozen was coextensive with the acts that caused his death, Mr. Newman is guilty of second degree murder, not first degree.

So, it's very complex and IMO will most likely come down to whether the forcible confinement and murder are seen as two independent acts (therefore first degree) or an overall act involved as part of the killing (therefore second degree).

PS: There will be a test at the end of today

 

[RandomName479]

So, it's very complex and IMO will most likely come down to whether the forcible confinement and murder are seen as two independent acts (therefore first degree) or an overall act involved as part of the killing (therefore second degree).

PS: There will be a test at the end of today

RSBM.....appreciate your insight.....but even if forcible confinement isn't found (your second scenario), could it still be considered first degree and not second degree if premeditation can be shown?

 

[Sillybilly]

RSBM.....appreciate your insight.....but even if forcible confinement isn't found (your second scenario), could it still be considered first degree and not second degree if premeditation can be shown?

Yes, if premeditation of murder (not just the premeditated theft of the truck)

 

[leafs_fan93]

I guess the presence of TB's blood all over the interior, a spent bullet casing rolling around on the floor, and a shattered passenger side window suggest to you that TB was having a good ole time with DM and MS. Short of a videotape showing TB being murdered, what else do you need to see/hear?

At the end of the day, it's up to the crown to prove it happened. We can all assume based on the blood/GSR/spent casing that he was forcibly confined, but if there are any other explanations for it, it creates reasonable doubt about what happened. Unless AM/MM/CN have any information that would prove force able confinement I'm not sure it can be proven without a reasonable doubt. Sucks, but it's the reality.

 

[RandomName479]

Yes, if premeditation of murder (not just the premeditated theft of the truck)

Besides actually having told someone that they planned to do this, in your opinion what would be required to show this? For example, do you think having the eliminator and/or bringing a gun would be enough to do this?

 

[Abitcountry]

No, that's not what it means. What it means is, IF someone is kidnapped/forcibly confined, and they die as a result (hit head on dashboard or ANY kind of accident), the perpetrators are guilty of first-degree murder even without any intention to kill. In such a case, nothing about intention, premeditation, etc. needs to be proven. Thus, IF the Crown can make a forcible confinement scenario stick, BOTH the accused are guilty of first degree murder no matter what their intentions were, who fired the gun, or anything else. Guilty, period.

But if the forcible confinement issue is not proven beyond a reasonable doubt, the Crown needs to demonstrate that the murder was "planned and deliberate" (the Criminal Code terms for first-degree murder). Bringing a gun along on a supposedly innocuous venture such as a test drive is indicative of planning to do harm, if not necessarily murder, but being in possession of the gun, DM (or MS) could have then made the decision to kill and acted upon it if, for example, TB threatened the success of the "mission" in some way. There is no doubt the gun was used, and likely from the driver's side, and since DB was left handed it couldn't have been an accident -- drawing and firing would take deliberate and careful maneuvering.

Proving forcible confinement makes things simpler, but isn't necessary for a conviction, certainly not for DM. MS may be a different matter. I don't foresee an acquittal, but possibly second-degree. However, the evidence is not all in. We shall see.

Great responses by the way....
I understand that some homicides are automatically considered first degree murder even if they were not intentional or planned as in the event of--the killing of a police officer.
First degree murder is also automatic if a killing occurs in the course of the following offences---
--hijacking
--sexual assault....sexual assault with a weapon .....aggravated sexual assault
--kidnapping (abduction)
--forcible confinement
--hostage taking
--terrorism
--criminal harrassment
--any offence committed on behalf of a criminal organization
All in addition to the familiar culpable homicide that is planned and deliberate where both must be demonstrated to be considered First degree murder.
In your response you have taken into consideration the "planned and deliberate" issue and also "the forcible confinement" issue....but what of "abduction".......When Sharlene Bosma first contacted the police when her husband did not return, the police began to search for him immediately. They did so from my understanding because TB had left his home in his truck with two strangers ......and police considered it to be an abduction because he did not return. Even the earliest charges against DM were for 'abduction and theft over $5000. That changed when a few days later remains were recovered and the charge was then escalated automatically to first degree murder. It is the language of that very first charge that keeps bringing me back to the issue of abduction. Abduction is unquestionably a factor in this case but there seems to have been no further mention of it once a first degree murder charge came to be. Have I missed something???? Just because it seems so obvious to me does not make it so.......and I still :dunno:

So this took so long to do that I just found your response as you posted 2 pages ago.....sorry:tomato:

( I get it that forcible confinement requires proof.....the proof is already obvious for abduction)

 

[Sillybilly]

Besides actually having told someone that they planned to do this, in your opinion what would be required to show this? For example, do you think having the eliminator and/or bringing a gun would be enough to do this?

IMO, it would be more related to bringing a loaded gun to test drive a truck rather than the purchase of the incinerator (based on timing in relation to the actual murder).

 

[leafs_fan93]

IMO, it would be more related to bringing a loaded gun to test drive a truck rather than the purchase of the incinerator (based on timing in relation to the actual murder).

Agreed, and to take it one step further, if the loaded gun went along on the test drive, we're both parties aware?

I keep coming back to why DM chose MS to go along, rather than some of his other "crew members". He's known the others longer, probably trusts them more. Did he choose MS because he's a little more like himself, and more likely to go along with a plan such as this, or did he choose him because he feels he would have an easier time pinning it on MS given his past, should things go south? For me it's the latter. Many reporters have noted that DM isn't smirking nearly as often anymore, and is becoming more subdued. I wonder if it's the fact that the evidence against DM seems so monsterous in comparison to that against MS, combined with the fact that MS clearly has the superior representation between the two. There was one day where BD painted MS in a negative light, and Tony Dungey made us forget all about it with his cross exam. MOO.

 

[Sillybilly]

Abduction is unquestionably a factor in this case but there seems to have been no further mention of it once a first degree murder charge came to be. Have I missed something???? Just because it seems so obvious to me does not make it so.......and I still :dunno:

So this took so long to do that I just found your response as you posted 2 pages ago.....sorry:tomato:

( I get it that forcible confinement requires proof.....the proof is already obvious for abduction)

<rsbm>

I think the fact that TB initially went willingly with the accused is why it doesn't constitute abduction. Remember Sgt. Kavanagh's words that Tim "entered that vehicle of his own free will, but he was not allowed to leave"

 

[MsSherlock]

We also don't know if MS was even in the truck when the shooting happened. So *if* it wasn't a known plan ahead of time, AND MS wasn't in the truck.... then what?

IMO, unless there's another eye witness, IMO, where and what MS was doing can only come from MS himself. If you look at the truck theft, murder and coverup as the whole planned crime, it really doesn't matter who did what. MS could have been following a mile behind in the Yukon when TB was shot- if it was part of the plan, they're both guilty as charged. I believe that's what the Crown is laying out for us with precision- a carefully planned crime from the beginning to the end. MOO

 

[JuneBug67]

Here's the actual decision in the Newman case:

http://www.courts.gov.bc.ca/jdb-txt/CA/15/02/2015BCCA0237.htm

Note in the case of White:



But in the case of Rozen:



So, it's very complex and IMO will most likely come down to whether the forcible confinement and murder are seen as two independent acts (therefore first degree) or an overall act involved as part of the killing (therefore second degree).

PS: There will be a test at the end of today

Beautifully and perhaps fortuitously this was again overturned by the Supreme Court of Canada in the early weeks of the Millard/Smich trial. Newman's conviction for first degree murder was reinstated on the grounds that the original judge did indeed have the power to conclude that the acts were independent based on the evidence he had. Defense counsel must have been watching and hoping for a different result.

“We are of the view that the appeal should be allowed. On the evidence, it was open to the trial judge to conclude that the act of forcible or unlawful confinement, which occurred when the respondent prevented the victim from escaping through the front door of the apartment, was distinct and independent,” the Supreme Court decision says. “The trial judge’s conviction for first degree murder is reinstated.”

http://vancouversun.com/news/staff-blogs/un-gangster-has-first-degree-murder-conviction-re-instated