DATE: 2005-01-18

DOCKET: C38258, C38259 & C38260

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) – and – ERIC BIGRAS, SHAWN LACROIX AND SHAUN CULLEY

BEFORE:

ROSENBERG, FELDMAN and SHARPE JJ.A.

COUNSEL:

Ian D. Scott

for the appellant

Frank Addario and Vanora Simpson

for the respondents

HEARD:

January 10, 2005

E N D O R S E M E N T

[1] Following the release of our reasons allowing the Crown’s appeal against the directed verdicts of acquittal on first and second degree murder and directing a new trial on first degree murder, the court invited submissions as to whether or not the convictions for forcible confinement should also be set aside.

[2] The appellant Crown takes the position that as the respondents did not cross-appeal their convictions for forcible confinement, we have no jurisdiction to set aside those convictions. The respondents have now applied for an extension of time to file notices of appeal, but the Crown submits that the criteria for an extension cannot be met in the circumstances.

[3] The Crown further submits that, in any event, it would be premature to attempt to resolve the issue of the potential relevance of the forcible confinement convictions to the first-degree murder charge and that that issue should be left to the trial judge at the new trial.

[4] Ordinarily, the failure of the respondents to cross-appeal would be fatal to the suggestion that the guilty verdicts on forcible confinement should be set aside. However, in the unusual circumstances of this case, we have concluded that it would be in the interests of justice to set aside the convictions for forcible confinement and order a new trial on all counts pursuant to the powers conferred upon us by s. 686(8) of the Criminal Code.

[5] The forcible confinement count does not stand on it’s own. On the facts of this case, it is inextricably bound up with the charge of first-degree murder upon which we have ordered a new trial. The Crown relies upon 231(5)(e), and contends that the respondents are guilty of first-degree murder for causing the victims death while committing the offence of forcible confinement. In our view, in the words of s. 686(8), “justice requires” that there be a clean slate for the new trial on first-degree murder and that the convictions for forcible confinement must therefore also be set aside.

[6] We agree with the submission that the appellants’ fair trial rights on the count of first-degree murder would be impaired if the convictions for forcible confinement were allowed to stand. The appellants were entitled to know the jeopardy they faced when presenting their defence. At the first trial, important decisions, including whether or not to testify, were made on the basis of jeopardy for manslaughter and forcible confinement, not first-degree murder, as the directed verdict had erroneously taken that possible verdict away from the jury.

[7] The forcible confinement conviction would unduly complicate matters for the trial judge and could well confuse the jury. This provides further grounds for wiping the slate clean and directing a new trial on all counts.

[8] Accordingly, we set aside the convictions for forcible confinement and direct a new trial on all counts.

“M. Rosenberg J.A”

“K. Feldman J.A.”

“R.J. Sharpe J.A.”