General Discussion and Theories #3

[redheart]

http://www.ottawasun.com/2012/07/16/youth-charged-in-christmas-carjacking

Robbery investigators charged a 17-year-old boy Friday in relation to another investigation. He faces a slew of charges including robbery, forcible confinement, choking, break and enter, and theft under $5,000.

He appeared in court Saturday and remains in custody.

On Dec. 24, 2011, a lone female victim ran into two young men aboard an OC Transpo bus in Orléans. The victim returned to her parked vehicle at the Orléans Park & Ride and agreed to give a ride to the two suspects. At one point, she agreed to let one of them drive, police said.

According to police, the suspect seated in the back of the vehicle reached forward and began choking the woman. The other suspect pulled the car over on a rural stretch of Tenth Line Rd. and kicked her out.

As the suspects sped away in her car, the victim was able to flag down a passing motorist for help.

Certain aspects of this case sound familiar.

 

[redheart]

Alethea Dice, I would think that if DM and MS told Tim to get out of the vehicle, and if he refused and told them to get out, the minute that they did not and kept possession of Tim's vehicle and Tim himself, that would make it forcible confinement - "restricting his liberty" as in the above link.

Hopefully someone in the know can pipe in.

 

[Archangel7]

Do you mind me asking who you were referring to then? What other deceased or missing persons might the phone be found to be relevant to?



Sorry if I'm confused. Could you possibly have just meant that there may be an off chance that someone else that the phone may have contacted may now be missing or dead, but we just don't know about it yet? Or do you have someone specific in mind?

Obviously the burner phone was obtained for privacy at best, nefarious reasons at worst. Even if he loaned it out, knowledge and control = possession. So he could be culpable as the owner.

By now much of the numbers received and numbers called via that phone would be confirmed, the callers ID'd and questioned. That could be significant.

Early in an investigation there are a lot of unknown unknowns, then a lot of known unknowns. The phone may have answered questions that LE didn't even know about wrt this case or others(missing or deceased).

Obviously he needed a way to communicate without it being traced/tied to him by LE or by any authority.

Having the usual and customary evidence of a crime coupled with the burner phone call log and interviews, home computer files, emails, etc. would give LE a good idea of the big picture and may be reason to include Ms MacDonald's expertise on serial predators.

Cansleuther, I agree that the phone purchase date wrt WM or LB is likely irrelevant. However tracing the burner phone call log and interviewing the owner(s) wouldn't automatically be meaningless and sometimes things begin to tie together. I would guess that murderers have been caught in the past discussing the crime later on phones they didn't own when the murder took place.

 

[Archangel7]

Alethea Dice, I would think that if DM and MS told Tim to get out of the vehicle, and if he refused and told them to get out, the minute that they did not and kept possession of Tim's vehicle and Tim himself, that would make it forcible confinement - "restricting his liberty" as in the above link.

Hopefully someone in the know can pipe in.

The confined person is not required to "resist" for the charge to be valid especially if property is being stolen or threats made to the confined person.

The law is about the intent of the "controller", not so much the resistance of the "confinee."

Here is the wording and a link that states it EVEN if it is wiki......http://en.wikibooks.org/wiki/Canadian_Criminal_Law/Offences/Kidnapping_and_Unlawful_Confinement

Forcible confinement
(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Non-resistance
(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.
R.S., 1985, c. C-46, s. 279; R.S., 1985, c. 27 (1st Supp.), s. 39; 1995, c. 39, s. 147; 1997, c. 18, s. 14; 2008, c. 6, s. 30; 2009, c. 22, s. 12.

 

[robynhood]

...it is obvious ..but I feel the need to add to Archangel7 post above me...I know we are discussing confinement ...but let is not forget the evidence that lies in TB truck where it is believed by Le that the murder took place...JMO if it did take place in TB truck( as LE have made some reference too) ...Jmo that there would also be DNA evidence .I believe that is why the seats were burned! ...as we saw in Tori case evidence can still be found when the forensic team dig in to the scene ,,,( meaning farm where body was burned ) and again TB truck....they were able to id TB without a doubt...as his family was contacted that TB was found...we do not know how LE id his body but it was done !


It is my belief due to the time that has passed that the defense has been given some of this evidence...as mentioned in numerous threads on this website!...

again it is my belief that DM knows the tough road ahead of him....JMO I believe DM & MS know their goose is almost cooked( IMO) ..from the evidence I believe has been told..I shall say honestly this is just my Honest opinion and strange things happen when it gets to court...again I would love to hear more about their INNOCENE as DM lawyer said....: " there is a more to this story"..i think that was his words....may not be an exact parphrase but something along that line.....thanks robynhood.

 

[swedie]

Just a correction to this. The description of the tattoo did not come out on May 8th, the day that the trailer was moved.

The trailer was moved to MB's house on Wednesday, May 8th, when the hockey game was on, or on Thursday, May 9th, depending whose story you want to believe.

http://www.thestar.com/news/crime/2013/05/12/tim_bosmas_mom_makes_mothers_day_plea_for_his_safe_return.html

TB's cell phone was found on Thursday, May 9th.

http://www.thestar.com/news/gta/2013/05/10/tim_bosma_cellphone_recovered_as_police_family_hold_out_hope_for_hamilton_mans_return.html

The description of the tattoo wasn't released until Friday, May 10th, the same day that DM was arrested.

http://www.huffingtonpost.ca/2013/05/10/tim-bosma-missing-persons_n_3254021.html

Something gone wonky. AD's post underlined.
Just a correction to your correction above in red AD.The description of DM's tattoo came out actually May 9th. The same day it was announce TB's cell phone was found.

BBM
Thursday, May, 09, 2013 - 5:05:11 PM
Staff Sgt. Matt Kavanagh of the homicide unit told a press conference today the suspects test drove a similar Dodge Ram diesel pickup truck a day earlier in an industrial area in Toronto but left without harming the owner.
He said descriptions of the two men provided by the owner match those in the Bosma case, but provided some new details, including on a distinctive tattoo on one of the suspect’s wrists.

He said cell phone records don’t identify the suspect because he used a phony name on his contract.

http://www.hamiltonnews.com/communi...safe-return-of-much-loved-husband-and-father/

Some other thoughts posted by AD - Swedie's in green, AD's in blue. And Swedie's response in black.

They had no idea as to how long SB intended to wait for TB's return and figured TB and his truck would no longer be traceable in about an hour or so and knew LE would not be out looking with this short amount of time.

Why would they not think either would be traceable in an hour? Both were still traceable a week later.
Traceable as in DM and MS would have had Tim's truck hidden. HTH

Maybe TB was not open to meeting them anywhere else but his home...

If the purpose was the truck, and they didn't want to risk witnesses, why wouldn't they just move on to the next ad, like they did with the RBEG?
This doesn't make sense IMHO, RBEG was already a witness and DM and MS should have realized that. Could be they saw TB as being an easier target then RBEG (size) in taking his truck from him; two to one kwim. Obviously IMO they were not too concerned about witnesses or SB may not have been alive today. They believe they were invincible. If drugs were consumed by DM or MS, one never knows what the mind thinks under certain circumstances.

The incinerator was not noticeable by anyone other then someone who deliberately went looking for it way back there in the secluded bush.

The neighbours working in the next field found it easy enough. It had been moved, but I don't remember reading anything about them having to go searching for it.

Let's just say it wasn't obviously situated, in plan view on DM's property for anyone passing by to see. So a few people were aware the incinerator was there because they happened to be within the vicinity where it was. And IMHO yes it is a possibility the neighbour who took the picture went looking in the bush because just maybe he heard and saw something going on back there the night TB was murdered, prompting him to check it out.

None the less, I'm sure the perps were feeling the walls closing in around them and needed to cover their butts by hiding TB's truck in his trailer, in his mom's driveway until paranoia passed. They couldn't leave it in the hangar for fear of someone happening upon it even inside the trailer. If DM is intelligent, I'm sure he knew it wouldn't be long before LE started sniffing around and tracking him kwim.
JMO of course and HTH to clarify.

 

[swedie]

The confined person is not required to "resist" for the charge to be valid especially if property is being stolen or threats made to the confined person.

The law is about the intent of the "controller", not so much the resistance of the "confinee."

Here is the wording and a link that states it EVEN if it is wiki......http://en.wikibooks.org/wiki/Canadian_Criminal_Law/Offences/Kidnapping_and_Unlawful_Confinement

Forcible confinement
(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or
(b) an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
Non-resistance
(3) In proceedings under this section, the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.
R.S., 1985, c. C-46, s. 279; R.S., 1985, c. 27 (1st Supp.), s. 39; 1995, c. 39, s. 147; 1997, c. 18, s. 14; 2008, c. 6, s. 30; 2009, c. 22, s. 12.

Great posts AA. Yes if it's fact DM and/or MS were intending on stealing Tim's truck and they involved Tim in their crime, without Tim's knowledge at the onset, that constitutes forcible confinement. MOO.

 

[Sillybilly]

Great posts AA. Yes if it's fact DM and/or MS were intending on stealing Tim's truck and they involved Tim in their crime, without Tim's knowledge at the onset, that constitutes forcible confinement. MOO.

I recall either reading or through WS discussion from a couple of years ago (possibly Tori's case or the Russ Williams case), that the death during forcible confinement does not have to mean that the victim was physically restrained within a confining space at the time of the death (i.e. if Tim was outside the truck)

Somewhere on the internet (will try to find it again, but it's being elusive tonite) is a legal article that deals with distance of the victim from the location of the actual place of confinement, combined with duration/timespan between escape from the place of confinement and death. IOW, to the effect that, even if Tim was outside the truck when he was killed (whether intentionally or otherwise), it would still form part of the initial confinement. Also, even though Tim consented to leaving with the perps, the moment he expressed a wish not to be confined (i.e. okay, i'd like to leave now) is when the forcible confinement commenced.

 

[robynhood]

...Sillybilly..it is my belief that the link you are looking for was NOT on tori's case as I was there often as you KNow...Swede would be able to confirm my thoughts as you know we were all Very heavily involved in the tori case...JMO as it seems you have been doing a lot of work trying to find the above link you mention in your post #788.JMO again but I may be wrong ...as it was a long long case >>>tori;s....I hope this helps ya SB...hope you find what you are looking for here..robynhood.

 

[Sillybilly]

...Sillybilly..it is my belief that the link you are looking for was NOT on tori's case as I was there often as you KNow...Swede would be able to confirm my thoughts as you know we were all Very heavily involved in the tori case...JMO as it seems you have been doing a lot of work trying to find the above link you mention in your post #788.JMO again but I may be wrong ...as it was a long long case >>>tori;s....I hope this helps ya SB...hope you find what you are looking for here..robynhood.

Although I can't find the legal article I'm looking for, Tori's case is an example though. I doubt it would differ in Tim's case. Testimony was that Tori was ultimately killed outside the car, and McClintic pled to the forcible confinement component which resulted in the plea to 1st degree:

from:
http://www2.canada.com/story.html?id=3951478

The primary basis upon which McClintic accepted responsibility for first-degree murder was that the girl's murder took place during the commission of the offence of kidnapping and forcible confinement.

 

[swedie]

I recall either reading or through WS discussion from a couple of years ago (possibly Tori's case or the Russ Williams case), that the death during forcible confinement does not have to mean that the victim was physically restrained within a confining space at the time of the death (i.e. if Tim was outside the truck)

Somewhere on the internet (will try to find it again, but it's being elusive tonite) is a legal article that deals with distance of the victim from the location of the actual place of confinement, combined with duration/timespan between escape from the place of confinement and death. IOW, to the effect that, even if Tim was outside the truck when he was killed (whether intentionally or otherwise), it would still form part of the initial confinement. Also, even though Tim consented to leaving with the perps, the moment he expressed a wish not to be confined (i.e. okay, i'd like to leave now) is when the forcible confinement commenced.

Yes SB I vaguely remember something along those lines which you are recalling. IMO we know it's just common sense for the forcible confinement charges are in place. What matters more to me is the first degree murder charge. That carries a lengthier sentence and as we know here in Canada sentences are served concurrently when there is a murder charge attached to other charges. Of course all charges are important but if DM is guilty of murder, that IMHO is the charge I would love to see him charges with and found guilty of. MOO. Is this something similar to what you were looking for?

Proof of Offence

Elements of proof include:
Kidnapping (279(1))
identity of accused as culprit
time and date of the incident
jurisdiction of the incident
the accused moved or took a person from one place to another[1]
the victim did not consent
the accused had no lawful authority to do so
the accused intended to
confine or imprison the victim
cause the person to be sent in or out of the country
holding the person for ransom or service

Forcible Confinement (279(2))
identity of accused as culprit
time and date of the incident
jurisdiction of the incident
the accused restrained the victim
the restraint was contrary to the victim's wishes
the complainant did not consent to the confinement
the accused had no lawful authority to confine the complainant
the accused intended to confine the victim
the accused used force or threat of force
the sobriety of the parties

http://en.wikibooks.org/wiki/Canadian_Criminal_Law/Offences/Kidnapping_and_Unlawful_Confinement

 

[Sillybilly]

Yes SB I vaguely remember something along those lines which you are recalling. IMO we know it's just common sense for the forcible confinement charges are in place. What matters more to me is the first degree murder charge.

I'm going to disagree with you on that one, swedie. The MOST important charge the Crown has to prove is the forcible confinement felony in order to get the 1st degree murder charge to stick (unless they can prove premeditation). Maybe they can prove premeditation, but without either that or the forcible confinement, the only other felonies that would qualify a 1st degree murder charge are:

(summarized from the CCC at http://laws-lois.justice.gc.ca/eng/acts/C-46/section-231.html)

hijacking an aircraft, sexual assault sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, hostage taking

^^ none of which apply in this case. I'm guessing that a judge would instruct the jury that, if they can't find the defendants committed either forcible confinement OR premeditation, they could only find them guilty of 2nd degree (a la Robert Pickton, charged with 6 counts of 1st degree but found guilty of 6 counts of 2nd degree):

[ame="http://en.wikipedia.org/wiki/Robert_Pickton"]Robert Pickton - Wikipedia, the free encyclopedia[/ame]

On December 9, 2007, the jury returned a verdict that Pickton is not guilty on 6 counts of first-degree murder, but is guilty on 6 counts of second-degree murder

In Pickton's case however, the judge imposed the maximum sentence for the 2nd degree convictions which is equivalent to a sentence for 1st degree, 25 years with no parole eligibility for those 25 years.

 

[Alethea Dice]

I'm going to disagree with you on that one, swedie. The MOST important charge the Crown has to prove is the forcible confinement felony in order to get the 1st degree murder charge to stick (unless they can prove premeditation). Maybe they can prove premeditation, but without either that or the forcible confinement, the only other felonies that would qualify a 1st degree murder charge are:

(summarized from the CCC at http://laws-lois.justice.gc.ca/eng/acts/C-46/section-231.html)

hijacking an aircraft, sexual assault sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, hostage taking

^^ none of which apply in this case. I'm guessing that a judge would instruct the jury that, if they can't find the defendants committed either forcible confinement OR premeditation, they could only find them guilty of 2nd degree (a la Robert Pickton, charged with 6 counts of 1st degree but found guilty of 6 counts of 2nd degree):

Robert Pickton - Wikipedia, the free encyclopedia



In Pickton's case however, the judge imposed the maximum sentence for the 2nd degree convictions which is equivalent to a sentence for 1st degree, 25 years with no parole eligibility for those 25 years.

Exactly, sillybilly. That's the point I was making in my earlier post.

The theory presented was that they told TB to get out of the truck, he refused, a struggle ensued, and he was killed. Under that theory, I questioned whether the charge of forcible confinement would still apply. I understand that not resisting is not a defense, unless the accused could prove that the "failure to resist was not caused by threats, duress, force or exhibition of force".

http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec279_smooth

But in the theory being discussed, it was suggested that he DID resist and refused to leave. In the early reports, it was said that the forcible confinement charge was laid because he was not allowed to leave, and the first degree murder charge was based on the forcible confinement charge.

“He entered that vehicle of his own free will, but he was not allowed to leave, therefore forcible confinement is the proper charge,” Kavanagh said when asked about the charge.

The first-degree murder charge is based on the forcible confinement allegations, Kavanagh said. The charge, often used in planned and premeditated murders, is also used when someone is killed while they are being forcibly confined.

http://www2.macleans.ca/2013/05/15/first-degree-murder-charge-to-be-laid-in-test-drive-death-remains-badly-burned/

It was also reported that police believed he was killed shortly after he was abducted.

"This is now a homicide investigation," Kavanagh said.

"I believe Mr. Bosma died shortly after he was abducted."

http://www.thespec.com/news-story/2875368-it-s-murder-hamilton-police-hunting-two-other-suspects-in-bosma-killing/

So.... going on the same theory, if, for example, shortly after they left TB's home, they told him to get out of the truck, that they didn't want to hurt him but they were taking the truck, and he refused and fought for control and was killed, would it still be forcible confinement? If they cannot prove the forcible confinement, I don't believe the first degree murder charge would be applicable either.

JMO

 

[Alethea Dice]

I recall either reading or through WS discussion from a couple of years ago (possibly Tori's case or the Russ Williams case), that the death during forcible confinement does not have to mean that the victim was physically restrained within a confining space at the time of the death (i.e. if Tim was outside the truck)

Somewhere on the internet (will try to find it again, but it's being elusive tonite) is a legal article that deals with distance of the victim from the location of the actual place of confinement, combined with duration/timespan between escape from the place of confinement and death. IOW, to the effect that, even if Tim was outside the truck when he was killed (whether intentionally or otherwise), it would still form part of the initial confinement. Also, even though Tim consented to leaving with the perps, the moment he expressed a wish not to be confined (i.e. okay, i'd like to leave now) is when the forcible confinement commenced.

I think this might be what you were looking for, sillybilly. You had posted it early on in this forum.

[ame="http://www.websleuths.com/forums/showpost.php?p=9555893&postcount=1158"]http://www.websleuths.com/forums/showpost.php?p=9555893&postcount=1158[/ame]

 

[redheart]

Yeah, but in this imagined scenario, the minute that TB refused to just leave his own truck and as we know DM and/or MS didn't relinquish control of TB's vehicle, they were guilty of forcible confinement. Seems simple to me.

 

[Alethea Dice]

Yeah, but in this imagined scenario, the minute that TB refused to just leave his own truck and as we know DM and/or MS didn't relinquish control of TB's vehicle, they were guilty of forcible confinement. Seems simple to me.

Do you have a link that shows that? Because it's not that simple to me. They'd be guilty of stealing the truck, yes, but not of forcibly confining the owner. I know this is a ridiculous example, but that's like saying if I'm having a drink in my neighour's back yard, my neighbour tells me to leave and I refuse because she won't give me my wine glass back, then she's guilty of forcibly confining me. No, she's only guilty of stealing my glass. If we fight over it and she kills me, she may be guilty of second degree murder, but more than likely it would only be manslaughter.

JMO

 

[redheart]

Big difference between an item in your possession, and an item in your possession that also confines someone in it.

 

[Sillybilly]

from Regina v. Pritchard:
http://www.lexisnexis.ca/info/index.php?dynid=235&decision_id=686&rssid=5

HELD: Appeal dismissed. Murders committed while confining the victim were particularly blameworthy and deserving of more severe punishment. In virtue of s. 231(5) of the Criminal Code, a second degree murder will be elevated to first degree murder where the murder was causally and temporally linked to one of the predicate offences set out in that provision in circumstances that made the perpetrator's entire course of conduct a single transaction. Robbery, unlike unlawful confinement, was not a predicate offence under s. 231(5). Nonetheless, S was unlawfully confined before her death and her confinement was not limited to what was integral to the particular act of killing her. To find the accused guilty of first degree murder, the jury had to find that S's death was part of a continuing series of events constituting a single transaction that established both her death and the distinct offence of unlawful confinement. The word "forcible" used in s. 231(5)(e) added nothing to the elements of the offence of unlawful confinement. There was sufficient temporal and causal connection to make the events a single transaction.

<bbm>

 

[Sillybilly]

I think this might be what you were looking for, sillybilly. You had posted it early on in this forum.

http://www.websleuths.com/forums/showpost.php?p=9555893&postcount=1158

Did I say that?

LOL ... Thanks Alethea !! Seemed like a "couple of years ago"

 

[Sillybilly]

Here's a case (2011 trial of Mark Grant, accused of 1st degree in the 1984 murder of Candace Derksen; found guilty of 2nd degree by the jury) with an example of how a judge instructed the jury to arrive at a conviction of first degree as it relates to the forcible confinement aspect:

from:
http://blogs.canoe.ca/crimescene/justice/derksen-how-it-ended-as-second-degree-murder/

&#8220;Did Mark Grant abandon the hog-tied Candace Derksen in sub-zero temperatures?&#8221; If no, you must find him not guilty. If yes, move on to the next question.

&#8220;Did Mark Grant&#8217;s abandonment of Candace Derksen cause her death?&#8221; If no, you must find him not guilty. If yes, move on to the next question.

&#8220;Did Mark Grant have the state of mind to commit murder?&#8221; If no, you must find him not guilty of first degree murder, but guilty of manslaughter. If yes, move on to the next question.

&#8220;Did Mark Grant do something that was &#8216;essential, substantial and integral&#8217; to the killing of Candace Derksen?&#8221; If no, you must find him not guilty of first-degree murder, but guilty of second-degree murder. If yes, move on to the next question.

&#8220;Did Mark Grant commit an offence under sec. 235 CC (forcible confinement)?&#8221; If no, you must find him not guilty of first-degree murder, but guilty of second-degree murder. If yes, move on to the next question.

&#8220;Was the forcible confinement distinct and independent from the act of killing?&#8221; If no, you must find him not guilty of first degree murder, but guilty of second-degree murder. If yes, move on to the next question.

&#8220;Was the forcible confinement and murder of Candace Derksen part of the same series of events?&#8221; If no, you must find him not guilty of first-degree murder, but guilty of second-degree murder. If yes, Grant must be guilty of first-degree murder.