John M. Gordon

In this criminal appeal, the Court considered challenges to the trial judge’s use of alibi and prior-vandalism evidence in upholding convictions for arson and mischief.

A majority dismissed the appeal substantially for the reasons of Willcock J.A. and declined to re-examine the governing jurisprudence in the circumstances.

The majority upheld the convictions, while one judge would have allowed the appeal based on the dissenting appellate reasons.

In this criminal appeal as of right, the Court considered whether the confinement element required for first degree murder under s. 231(5)(e) was made out where the accused blocked the victim from escaping before the killing.

The Court held that the trial judge was entitled to find that the forcible or unlawful confinement was distinct and independent from the act of killing.

The appellate intervention substituting second degree murder was therefore unwarranted.

The conviction for first degree murder was reinstated and the appeal was allowed.

The Court considered whether an intervening assault by a bar bouncer could sever legal causation after the appellants had already violently assaulted the victim, who later died.

It held that legal causation remains governed by whether the accused's dangerous unlawful acts were a significant contributing cause of death, and that foreseeability and independence are analytical tools, not standalone legal tests.

On the trial judge's factual findings, it was open to conclude the bouncer's conduct was a reasonably foreseeable response in an escalating bar fight and not sufficiently independent to break the causal chain.

The Court therefore upheld the result that the appellants could legally be found to have caused death and dismissed the appeal.