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CRIMINAL CODE OFFENCES - First degree murder - Forcible confinement

Friday, July 03, 2020 @ 5:54 AM  

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Appeal by the accused from conviction for first degree murder. The trial judge found the appellant murdered the victim while committing the offence of unlawful confinement. The victim was swarmed, beaten and stabbed to death in the alley of a nightclub. The trial judge accepted the evidence of a witness that the appellant was part of the attacking group. At trial the appellant argued he was not at the crime scene, and if he was, it was for seconds with limited involvement. The trial judge concluded that the confinement started when the appellant and his friends blocked the exit at the front of the nightclub and continued until the victim was pinned against the dumpster in the alley. The trial judge found that it was the appellant’s actions, both at the front and rear alley of the nightclub that prevented the victim from safely leaving the club to go home. The appellant argued that the trial judge erred in law in finding that the Crown had proven the mental element of the offence of unlawful confinement and that the confinement was of a sufficient nature or duration to constitute the actus reus of the offence. The appellant argued that the confinement and murder were not distinct acts.

HELD: Appeal dismissed. The predicate offence of unlawful confinement had been committed. The trial judge correctly articulated the legal principles of the offence of unlawful confinement. His findings were findings of mixed fact and law and established the actus reus of unlawful confinement. On the findings of the trial judge, the inference that the appellant intended to restrict the victim’s movements was available to the trial judge on the evidence. The trial judge stated and applied the correct legal principles regarding the requirement that confinement be continuous and be distinct from the act of killing. There was no basis to interfere. The trial judge’s application of the legal principles did not impermissibly expand the scope of s. 231(5) of the Criminal Code.

R. v. Gervais, [2020] A.J. No. 632, Alberta Court of Appeal, M.S. Paperny, B.K. O'Ferrall and E.A. Hughes JJ.A., June 1, 2020. Digest No. TLD-June292020010