APPEAL DISMISSED

R. v. Magoon, 2018 SCC 14 — Criminal law — First degree murder — Unlawful confinement

On appeal from a judgment of the Alberta Court of Appeal (2016 ABCA 412) substituting convictions for first degree murder to the convictions for second degree murder entered by Nation J. (2015 ABQB 351).

M, who was six years old, died after spending a weekend at the home of her father and stepmother, the two accused. During that period, M was burned, forced for hours to run up and down the stairs as a form of punishment, and severely beaten. She suffered damage to her internal organs, and a subdural hematoma and cerebral swelling caused by at least five serious blows to the head. The accused did not seek medical attention for M until she was in complete cardiac and respiratory failure. She did not survive.

The accused were charged with first degree murder and convicted of second degree murder at trial. They appealed from their second degree murder convictions and the Crown appealed from their first degree murder acquittals. The Court of Appeal dismissed the accused’s appeals, but allowed the Crown appeals. It held that the accused unlawfully confined M in circumstances that rendered them liable for first degree murder under s. 231(5) of the Criminal Code. It therefore set aside the acquittals for first degree murder and substituted verdicts of guilty.

The accused appealed to this Court as of right, under s. 691(2)(b) of the Criminal Code. The Crown moved to strike portions of the accused’s notices of appeal, on the basis that the accused did not have an appeal as of right regarding the grounds of appeal that called into question their convictions for second degree murder. The accused then filed applications for leave to appeal under s. 691(1)(b) with respect to the grounds that the Crown sought to strike. At the hearing of the appeals, the Crown’s motions to strike were allowed, the accused’s applications for leave to appeal were dismissed, and the accused’s appeals were dismissed, with reasons to follow.

Held (9-0):The appeals should be dismissed.

The accused did have an appeal as of right to this Court under s. 691(2)(b) of the Criminal Code on any question of law relating to the reversal of their first degree murder acquittals, but required leave to appeal under s. 691(1)(b) in order to raise grounds of appeal relating to their second degree murder convictions. The meaning of “any question of law” in s. 691(2)(b) is restricted to questions of law relating to the substituted verdicts of guilty for first degree murder. Sections 691(1) and 691(2) must be read and interpreted harmoniously: s. 691(1) applies where a conviction has been affirmed by the court of appeal, and s. 691(2) applies where an acquittal has been set aside by the court of appeal. Each provision confers different rights on an appellant, depending on the circumstances, and these parallel routes of appeal must be kept separate and distinct.

The Court of Appeal had jurisdiction to hear the Crown appeals from the first degree murder acquittals in the present case. For appeal purposes, first degree murder and second degree murder are treated as two distinct offences. Where an accused is charged with first degree murder but convicted of second degree murder, he or she has been acquitted of first degree murder. In such a case, the accused may appeal the conviction for second degree murder, and the Crown may appeal the acquittal of first degree murder under s. 676(1)(a) of the Criminal Code.

The Court of Appeal did not err in finding the accused guilty of first degree murder. The five elements of the applicable test set out in R. v. Harbottle, [1993] 3 S.C.R. 306, which are required for an accused to be convicted of first degree murder under s. 231(5) of the Criminal Code, were met in this case, including the first and fifth elements.

With respect to the first element, unlawful confinement under s. 279(2) of the Criminal Code was established: the accused confined M, and the confinement was unlawful. M was coercively restrained and directed contrary to her wishes, and the acts of discipline far exceeded any acceptable form of parenting. The legal standard for proving unlawful confinement is the same for children as for adults, but in the case of a parent‑child relationship, courts must keep in mind that children are inherently vulnerable and dependent, and routinely receive — and expect — directions from their parents. The Crown does not have to prove some special or extreme form of confinement in cases involving parents and their children. A finding of confinement does not require evidence of a child being physically bound or locked up; it can also result from evidence of controlling conduct. Although parents are lawfully entitled to restrict the liberty of their children in accordance with the best interests of the child, if a parent engages in abusive or harmful conduct toward his or her child that surpasses any acceptable form of parenting, the lawfulness of his or her authority to confine the child ceases. 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 exceeds the outer bounds of punishment that a parent or guardian could lawfully administer, constitutes unlawful confinement.

The fifth element of the test is also met: the unlawful confinement and murder of M were two distinct criminal acts that formed part of a single transaction. The unlawful confinement and the assaults leading to M’s death were part of the same single transaction of coercion and abuse, and the unlawful confinement persisted right up to the moment M lost consciousness. The unlawful confinement was not consumed in the act of killing: not all acts of violence against M were tied to the fatal blows, some of the assaults that met the causation standard for the murder were distinct from the acts of confinement, and the assaults against M were part, but not all, of what established the unlawful confinement, since the confinement also involved non‑physical acts of coercion.