R. v. Roy, 2012 ONCA 23

CITATION: R. v. Roy, 2012 ONCA 23

DATE: 20120112

DOCKET: C50317

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Doherty and Goudge JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sébastien Roy

Appellant

Michael Davies, for the appellant

Christine Tier, for the respondent

Heard and released orally: January 9, 2012

On appeal from the conviction entered by a jury, presided over by Justice Maranger of the Superior Court of Justice, dated November 10, 2006.

ENDORSEMENT

[1] This is a single issue appeal. The appellant was convicted of first degree murder on the basis that he murdered the victim while forcibly confining him contrary to s. 231(5) of the Criminal Code. On appeal, counsel for the appellant frankly concedes that the appellant was properly found to have murdered the victim, but submits that the finding of first degree murder based on s. 231(5) is unreasonable on the evidence. Counsel asks that this court substitute a conviction on the included charge of second degree murder.

[2] Counsel for the appellant submits that the evidence could not reasonably support a finding that the appellant’s act of killing the victim, probably by strangulation, was a discrete act from the act of confining the victim. Counsel correctly makes the legal point that s. 231(5) requires two discrete events – a killing of the victim and a confinement of the victim. A confinement that is inherent in the very act of killing cannot justify elevating second degree murder to first degree murder.

[3] We have reviewed the evidence and we are satisfied that there was ample evidence upon which a jury could draw the inferences necessary to support a finding of first degree murder.

[4] The inferences include the following. The jury could infer that at some point the appellant, who was alone with the victim in the victim’s apartment, confined the victim by tying his arms and ankles and by securing the victim to the wall of the apartment. The jury could also infer that the appellant placed several ligatures, including a cable, around the victim’s neck and that at least one of the cables around his neck was placed there after the victim’s wrists had been tied behind him. The jury could further infer that at some point after the appellant tied the victim’s wrists and ankles he beat the victim. The jury could infer that the beating went on for some time, involved blows with at least two different objects inflicted at two or more locations in the apartment. The jury could further infer that after the appellant had beaten the victim and while the victim was still bound and gagged and confined, the appellant strangled the helpless victim. In doing so, the appellant took advantage of the dominance he had gained over the victim through his confinement of the victim to kill the victim. That is exactly the kind of fact scenario that s. 231(5) is intended to capture.

[5] We readily accept that the inferences outlined above were not the only inferences that the jury might have drawn. There were other ways to look at the physical evidence presented in this case. The inferences described above were, however, in our view, reasonable inferences on the evidence and they provided a reasonable basis for the verdict derived at by the jury. That is as far as our power of review goes under s. 686(1)(a) of the Criminal Code.

[6] The appeal is dismissed.

“Winkler C.J.O.”

“Doherty J.A.”

“S.T. Goudge J.A.”