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CRIMINAL CODE OFFENCES - Homicide - First degree murder - Procedure - Appeals

Friday, April 13, 2018 @ 1:44 PM  


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Appeals by Magoon and Jordan from a judgment of the Alberta Court of Appeal substituting their convictions for first degree murder to convictions for second degree murder. Magoon and Jordan were charged with first degree murder and convicted at trial of second degree murder of Jordan’s six-year-old daughter. In the trial judge’s view, the evidence established that both had repeatedly and intentionally assaulted the victim, each knowing that their actions were likely to cause her death. However, she was not satisfied that Magoon and Jordan had unlawfully confined the victim while inflicting the fatal injuries on her. Magoon and Jordan appealed from their second degree murder convictions and the Prosecution appealed from their first degree murder acquittals. The Court of Appeal dismissed the accused’s appeals but allowed the Prosecution’s appeals. It held that the trial judge applied an incorrect, unduly narrow test for unlawful confinement. Applying the proper test, the Court of Appeal concluded that Magoon and Jordan did unlawfully confine the victim in circumstances that rendered them liable for first degree murder under s. 231(5)(e) of the Criminal Code. Accordingly, the acquittals for first degree murder were set aside and guilty verdicts substituted.

HELD: Appeals dismissed. Under s. 691(2)(b) of the Criminal Code, an appellant had an appeal to the Supreme Court of Canada as of right, on any question of law relating to the offence for which he or she was acquitted at trial, and for which the court of appeal had entered a verdict of guilty. In contrast, under s. 691(1)(b), an appellant could appeal to the Supreme Court of Canada, with leave, on any question of law relating to the offence for which he or she was convicted at trial, where the court of appeal had affirmed the conviction. Accordingly, Magoon and Jordan had an appeal as of right on any question of law relating to the reversal of their first degree murder acquittals, and they could appeal with leave any other issues of law relating to their second degree murder convictions. Absent an appeal by the Prosecution from the first degree murder acquittal, the Court of Appeal could only order a new trial on the included offence of second degree murder. If the Prosecution was of the view that a new trial should be ordered on the offence originally charged, it had to appeal the acquittal. Such a requirement illustrated that, for appeal purposes, first degree murder and second degree murder were to be treated as two distinct offences. For these reasons, the Court of Appeal had jurisdiction to hear the Prosecution’s appeals from Magoon’s and Jordan’s first degree murder acquittals, despite the fact that Magoon and Jordan were convicted of second degree murder at trial. A finding of confinement did not require evidence of a child being physically bound or locked up; it could just as easily result from evidence of controlling conduct. Disciplining a child by restricting his or her ability to move about freely (by physical or psychological means), contrary to the child’s wishes, which exceeded the outer bounds of punishment that a parent or guardian could lawfully administer, constituted unlawful confinement. That was what occurred in this case. The unlawful confinement and the assaults leading to the victim’s death were part of the same single “transaction” of coercion and abuse. Accordingly, the Harbottle test was met in this case. Magoon and Jordan unlawfully confined the victim, and the unlawful confinement and murder were two distinct criminal acts that formed part of a single transaction. The Court of Appeal did not err in substituting verdicts of guilty for first degree murder.

R. v. Magoon, [2017] S.C.J. No. 101, Supreme Court of Canada, B. McLachlin C.J., R.S. Abella, M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté, R. Brown and M. Rowe JJ., November 27, 2017 (reasons delivered April 13, 2018). Digest No. TLD-April92018011SCC