Court File and Parties

Court of Appeal for Ontario

Date: 2022-10-05 Docket: C64745

Before: Feldman, Zarnett and Copeland JJ.A.

Between:

His Majesty the King Respondent

and

Brian Riches Appellant

Counsel: Gabriel Gross-Stein, for the appellant Michael Fawcett, for the respondent

Heard: September 7, 2022

On appeal from the conviction entered on April 4, 2017 by Justice Gary W. Tranmer of the Superior Court of Justice, sitting with a jury.

Copeland J.A.:

Overview

[1] The appellant was convicted of first-degree murder in the death of Phong-Nien Chau. At the time of the Mr. Chau’s death, July 24, 1994, both he and the appellant were inmates at Joyceville Institution. Mr. Chau was found dead in his cell with the cord from a set of headphones and a necklace wrapped around his face. The cause of death was ligature strangulation.

[2] Police investigated at the time, but did not lay charges. In 2011, the police began a reinvestigation, which included new DNA testing. As a result of the reinvestigation, the appellant was charged with first-degree murder in relation to Mr. Chau’s death.

[3] The sole basis on which first-degree murder was left to the jury was constructive first-degree murder under s. 231(5) of the Criminal Code, R.S.C. 1985, c. C-46. The appellant was alleged to have committed murder while committing or attempting to commit the offence of unlawful confinement of the deceased.

[4] The appellant raises one ground of appeal. While he does not dispute that first-degree murder under s. 231(5) on the basis of unlawful confinement was properly left to the jury on the evidence at trial, he submits that the trial judge erred in failing to expressly instruct the jury, as part of the “same transaction” requirement under s. 231(5), that the alleged confinement must constitute a distinct criminal act from the killing. In other words, the act of the confinement and the act of the killing must not be one and the same act.

[5] The appellant argues that in the circumstances of this case, an express instruction on the requirement that the act of unlawful confinement be distinct from the act of killing was necessary because the cause of death was ligature strangulation, and the jury may well have concluded that the deceased was unlawfully confined by the act of strangulation itself.

[6] Further, the appellant submits that although the DNA evidence was probative, objective evidence that the appellant killed the deceased, the evidence supporting an unlawful confinement as a separate act from the killing depended almost entirely on the evidence of a very unsavoury witness, John Taylor, a former friend of the appellant who was also an inmate on the range at the time of death of the deceased.

[7] Finally, the appellant argues that in the absence of an explicit instruction to the jury that the Crown was required to prove beyond a reasonable doubt an act of confinement distinct from the act of killing, there is ambiguity in the instruction that created a risk the jury would find that the strangulation (the act of killing) constituted an unlawful confinement.

[8] The respondent accepts that for a finding of guilt of constructive first-degree murder based on unlawful confinement under s. 231(5), the Crown must prove an act of unlawful confinement that is distinct from the act of killing. The respondent acknowledges that it would have been preferable had the trial judge given an explicit instruction that the act of unlawful confinement must be distinct from the act of killing. However, the respondent submits that when the jury instructions are read as a whole, they were sufficient to convey to the jury that the acts that they were required to consider in order to decide whether the Crown had proven an unlawful confinement were acts distinct from the strangulation (which was the act of killing). Further, the sufficiency of the jury instructions is supported by the positions of the parties, which were clear to the jury throughout the trial, and the absence of any objection or request for a more specific instruction from defence counsel at trial (not Mr. Gross-Stein).

[9] I would dismiss the appeal. The instructions to the jury on the issue of constructive first-degree murder, and in particular, on the issue of unlawful confinement, were sufficient to convey to the jury that in order for the appellant to be found guilty of first-degree murder, they would have to find (among other elements) that he committed an act of unlawful confinement against the deceased that was distinct from the act of killing (but part of the same transaction). The instructions gave the jury a functional understanding of their task in the context of the evidence and issues in the trial.

Factual background

[10] An overview of the bodies of evidence at trial is sufficient for purposes of understanding the issue raised in this appeal.

[11] The Crown’s case was based on the following elements:

• Evidence about the finding of the deceased’s body. The deceased’s body was found in his cell with a blanket over him. Earbud headphones with a cord were located on the deceased’s bed. The deceased was wearing a necklace which was found above his chin and wrapped around his face. There was bloodstaining throughout the cell and on the deceased’s shirt. Another shirt with bloodstaining was found at the foot of the bed. A note was found in the deceased’s belongings after he died. It read, “You’re going to die. You no-good, stool-pigeon, goof”. The note was compared with the appellant’s handwriting, but the results were inconclusive.

• Expert biology evidence regarding results of DNA testing done during the reinvestigation. A DNA profile was developed of an individual whose DNA was present under the deceased’s fingernails, on the necklace, and on a bloodstain on the shirt he was wearing when he died. All of the individuals on the deceased’s range at Joyceville were excluded as the source for this profile except for the appellant. The appellant could not be excluded as the source for the DNA found on the deceased, with the random match probability ranging from 1 in 4,600 for the profile under the fingernails, 1 in 240 for the profile from the necklace, and between 1 in 41,000 and 1 in 110,000 for the profiles from the shirt. In relation to the DNA found under the deceased’s fingernails, the expert testified that casual physical contact would not leave enough DNA to generate a profile.

• The evidence of John Taylor. Mr. Taylor was the former best friend of the appellant. He had been housed on the same range as the appellant and the deceased in 1994. The respondent acknowledges that Taylor was an unsavoury witness. The trial judge cautioned the jury in accordance with R. v. Vetrovec, [1982] 1 S.C.R. 811. The appellant raises no issue in relation to that instruction. Taylor had given other statements inconsistent with his trial evidence, including previously identifying inmates other than the appellant as parties responsible for killing the deceased.

• The substance of Taylor’s evidence was that the appellant killed the deceased because the deceased had been informing on other inmates to prison authorities. Taylor testified that he saw the deceased and then the appellant exit the common room on the range. The appellant looked angry, and confronted the deceased. The appellant punched the deceased in the face. The deceased fell to the floor, and the appellant grabbed him by the shirt and dragged him into his cell. Taylor followed the appellant to the deceased’s cell. He saw the appellant over the deceased and still holding his shirt. According to Taylor, the appellant told him to get out and shut the door. Taylor testified that he pushed the door shut all the way, although he was unable to say whether it locked. Taylor then went to his own cell. A few minutes later, the appellant came to Taylor’s cell. The appellant was angry, and may have said something like, “Fuck this”. The appellant then returned to the deceased’s cell for a period of time. Approximately 10 minutes later, the appellant returned to Taylor’s cell. The appellant was still angry. This time the appellant said, “Fuck this. Fuck him. It’s over.” Taylor also testified that a few months later, he and the appellant were both moved to Bath Institution, where they shared a cell. Taylor testified that one day at Bath he asked the appellant, “Why?”, presumably referring the killing of the deceased. The appellant responded, “Because someone had to.”

• The evidence of Rebecca MacDougall. Ms MacDougall was the appellant’s wife. She met the appellant in 1998. They married in May 2001, and separated after less than a year. At the time of the trial, they were estranged – MacDougall had not seen the appellant since their separation in April 2002. She testified that she knew Taylor, who she believed was the appellant’s brother. She said that during the year she and the appellant were married, he told her that he and his brother were involved in a murder in an institution in Ontario. He said the victim was “a piece of shit”, and “had it coming.” He provided no other details. Detective Joel Blacklock, a member of the Ontario Provincial Police on the Joint-Forces Penitentiary Squad involved in the investigation testified that there were no murders other than that of the deceased at an Ontario institution where the appellant was incarcerated.

• Expert pathology evidence. The pathologist testified that the cause of the deceased’s death was ligature strangulation, by two different cords. There were two ligature marks on the deceased’s neck. The pathologist testified that the headphone cord and necklace found on the deceased were good matches for the injuries on the deceased’s neck. The deceased’s hyoid bone, right above the Adam’s apple, was fractured, likely by the ligature. The deceased also had other injuries apart from those associated with strangulation, including a swollen face, bruising on the scalp, and bruising on the lips and nose, caused by impacts to the head and mouth; circular marks on his torso, which the pathologist testified were caused by an object with a circular end being struck into the torso (consistent with the bottom of the deceased’s cane); a skull fracture, which could have been caused by a kick, by the head falling against or hitting a hard object, or being hit with a hard object; and a “gripping” injury on the deceased’s right flank that could have been caused by someone restraining the deceased.

[12] The Crown’s position at trial (maintained on appeal) was that in punching the deceased and knocking him down, dragging him to his cell, and asking Taylor to shut the door (just before killing the deceased), the appellant unlawfully confined the deceased, and so was guilty of constructive first-degree murder.

[13] The central issue at trial was identification. The appellant testified and denied involvement in the killing of the deceased. The defence vigorously challenged the credibility and reliability of Taylor in light of significant changes in his account over the years. The defence challenged the reliability of the evidence of MacDougall because of the passage of time and deficiencies in her memory. Additionally, the defence pointed to an altercation that the appellant testified that he had had with the deceased a day or two before the deceased died as an explanation for how the appellant’s DNA was on the clothing, necklace, and under the fingernails of the deceased.

Analysis

[14] I will not summarize all of the required elements of constructive first-degree murder under s. 231(5), as this appeal only raises one element. Where murder is alleged to be first degree on the basis of one of the offences of domination set out in s. 231(5) – here, unlawful confinement – the act of killing and the act of unlawful confinement must be part of the same transaction, but the alleged unlawful confinement must constitute a distinct act from the act of the killing. The act of confinement and the act of killing must not be one and the same act: R. v. Sundman, 2022 SCC 31, at para. 40; R. v. Pritchard, 2008 SCC 59, at para. 27; R. v. Kimberley, 2001 ONCA 24120, at para. 108; R. v. Parris, 2013 ONCA 515, at para. 53; R. v. Ally, 2022 ONCA 558, at paras. 80, 153. As noted above, there is no dispute between the parties about the law in relation to the distinct act requirement.

[15] In this case, although the central issue at trial was identification, there was a triable issue before the jury as to whether the murder was first or second-degree, in the event they were satisfied beyond a reasonable doubt that the appellant killed the deceased and that he had the intent for murder. Thus, the trial judge was required to correctly explain to the jury the requirements for first-degree murder: R. v. Maciel, 2007 ONCA 196, at paras. 90-97. In my view, he did so.

[16] It is common ground between the parties that the trial judge did not expressly instruct the jury that the unlawful confinement and the killing must constitute distinct criminal acts. The issue before this court on appeal is whether an express instruction to this effect was required, or whether the jury instructions, read as a whole, were sufficient to convey to the jury that the act of unlawful confinement must be distinct from the act causing death.

[17] Because the killing in this case was by strangulation, which itself could be said to include an aspect of confinement, it would have been preferable had the trial judge explicitly told the jury that the act or acts alleged to constitute the unlawful confinement had to be distinct from the act of killing: see Pritchard, at para. 27. This could have been accomplished in this trial in a few sentences in the “same transaction” instruction. For example, by instructing the jury:

• That although the act of unlawful confinement and the act of killing must be part of the same series of events, they must be distinct criminal acts.
• That on the evidence in this case, the unlawful confinement would have to be something distinct from the strangulation (the act of killing).
• And then drawing the jury’s attention to the distinct act(s) alleged as the unlawful confinement.

[18] Having said this, the issue before this court is not whether the jury instructions in this case could have been better. It is whether the instructions gave the jury a functional understanding of the issues they were required to decide. I am of the view that the instructions, read as a whole, did so. They made clear to the jury that the unlawful confinement that was alleged to be the basis for the first-degree murder charge was the punching, dragging to the cell, and shutting the cell door, which was a distinct act from the act alleged to be the killing (the strangulation).

[19] The Supreme Court of Canada has emphasized that trial judges have flexibility in crafting the language and structure of jury instructions. The reason for this flexibility is that the role of a trial judge requires them to “decant and simplify” the law and the evidence for the jury: R. v. Jacquard, [1997] 1 S.C.R. 314, at para. 13. Trial judges are not held to prescriptive formulas in how jury instructions are worded. In light of this discretion, on appeal, trial judges are not held to a standard of perfection in drafting jury charges. An appellate court must take a functional approach when reviewing a jury charge by examining the alleged errors in the context of the evidence, the entire charge, and the trial as a whole. What matters is whether the jury is given a functional understanding of its task and the issues it is required to decide: R. v. Goforth, 2022 SCC 25, at paras. 20-22; R. v. Daley, 2007 SCC 53, at paras. 30-31; Jacquard, at paras. 32-41, 62; R. v. Calnen, 2019 SCC 6, at paras. 8-9.

[20] In this case, the question is whether the jury instructions as a whole made clear to the jury that the act or acts of unlawful confinement required as an element of constructive first-degree murder under s. 231(5) must be distinct from the act of killing.

[21] As I explain below, four aspects of the jury instructions lead me to conclude that the instructions were sufficient to convey to the jury that they could only find the appellant guilty of first-degree murder if they found that he committed an act or acts of unlawful confinement of the deceased that were distinct from the act of killing the deceased. In particular, the instructions made clear that the unlawful confinement they were being asked to consider was the allegation that the appellant punched the deceased, knocking him to the ground, then dragged him to his cell, and kept him in the cell (prior to strangling him), which was a distinct act from the act alleged to have killed the deceased – the strangulation.

[22] First, the instructions on the unlawful confinement element focused the jury on the particular acts alleged to constitute the unlawful confinement, that is, the allegation that the appellant punched the deceased and then dragged him to his cell, and told Taylor to shut the cell door. Second, the context of the instructions as a whole supports the conclusion that the jury would have understood that the unlawful confinement element of first-degree murder required an act or acts of unlawful confinement that were distinct from the act of killing. Third, the context of how the issues were raised during the trial supports the conclusion that the jury would have understood that the unlawful confinement element that they were required to consider in the final instructions referred to an act distinct from the killing. Fourth, the absence of an objection by experienced trial counsel or request for a more specific instruction on the distinct act requirement supports the conclusion that the jury instruction was sufficient in the context of the evidence and the issues raised in this trial. I address each of these points in turn.

[23] In order to understand the four aspects of the jury instructions that lead me to conclude that it sufficiently conveyed the distinct act requirement to the jury, it is helpful to begin with the basic structure of the portion of the instructions that addressed the elements of the offence. The trial judge structured the final instruction on murder and constructive first-degree murder around five essential elements, following the elements in the model instruction on constructive first-degree murder in Watt’s Manual of Criminal Jury Instructions: David Watt, Watt’s Manual of Criminal Jury Instructions, 2nd ed. (Toronto: Carswell, 2015), at p. 715-716 (“Final 231-D: Constructive First Degree Murder”):

i. That the appellant caused the death of the deceased; ii. That the appellant caused the death of the deceased unlawfully; iii. That the appellant had the state of mind required for murder; iv. That the appellant committed unlawful confinement of the deceased, or was attempting to commit unlawful confinement of the deceased; and v. That the unlawful confinement or attempt to commit unlawful confinement and the murder of the deceased were part of the same series of events.

In the analysis below I refer to these elements as the first, second, third, fourth, and fifth elements of the instruction.

[24] I now turn to the four aspects of the jury charge which lead me to conclude that it was sufficient to give the jury a functional understanding of the distinct act requirement.

(i) The instruction on unlawful confinement focused the jury on the acts that were alleged to constitute the unlawful confinement

[25] The portion of the instructions which addressed the unlawful confinement requirement made clear to the jury that the unlawful confinement they were asked to consider was a distinct act from the killing. The fourth and fifth elements of the instruction are the most central to my conclusion that the trial judge did not err in his instructions on constructive first-degree murder.

[26] The jury instruction clearly conveyed to the jury that the acts that were alleged to constitute the unlawful confinement were the appellant allegedly dragging the deceased to his cell after punching him and knocking him down, and then telling Taylor to shut the cell door. After providing a definition of unlawful confinement (which I return to below), the trial judge reviewed the evidence relevant to the unlawful confinement element. This evidentiary review focused on the following aspects of the evidence:

• Evidence of Taylor and Ms Rose (a Correctional Manager at Joyceville Institution at the time of the events at issue) regarding steps inmates would take with their cell doors to allow the doors to shut tightly, but not lock.
• Taylor’s evidence that he saw the appellant punch the deceased in the hallway, that the deceased fell to the floor, and that the appellant then dragged the deceased to his cell.
• Taylor’s evidence that he followed the appellant to the deceased’s cell and saw the appellant standing over the deceased, still with a grip on his shirt, and that the appellant told Taylor to, “Get the fuck out. Shut the fucking door.”
• Taylor’s evidence that he pushed the door to the deceased’s cell, but did not know whether it closed completely.
• Taylor’s evidence that a short time later the appellant came to Taylor’s cell, and then returned to the deceased’s cell.
• Taylor’s evidence that 10 or 12 minutes later, the appellant came back to Taylor’s cell and, still angry, said, “Fuck this. Fuck him. It’s over. Fuck this. It’s done.”
• The evidence of the pathologist about bruising above the right armpit of the deceased and an abrasion on the right flank. The trial judge reviewed with the jury the pathologist’s opinion that the bruising above the right armpit was indicative of a gripping mark and could have been caused by someone dragging the deceased while he was unconscious but still alive or by someone restraining the deceased. The trial judge reviewed some other injuries, but notably, did not review the ligature strangulation injuries in this portion of the instructions.
• The evidence of Rose that there were no emergency buttons inside the cell for an inmate to summon help.
• The evidence of the chronology of the finding of the deceased’s body and the position his body was found in.

[27] This portion of the instruction made clear to the jury that the act (or acts) of unlawful confinement had to be distinct from the act of the killing in two ways. First, it focused the jury on the acts alleged to be the confinement (the appellant punching the deceased and knocking him down, then dragging him to the cell, and telling Taylor to shut the cell door). These acts were distinct from the act alleged to be the killing (ligature strangulation). Second, this portion of the instruction did not mention the strangulation as being part of the alleged unlawful confinement. These two aspects of the instruction made clear to the jury that the alleged unlawful confinement they were being asked to consider was a distinct act from the act of killing – in this case strangulation.

[28] The appellant argues that the definition of unlawful confinement that the trial judge provided at the start of this portion of the instructions may have misled the jury, because the definition was broad enough that it could encompass strangulation. The definition given by the trial judge was as follows:

To intentionally confine another person, is to coercively restrain that person, contrary to his wishes, thereby depriving that person of his liberty to move from one place to another. Confinement is an unlawful restriction on liberty for some period of time. It does not have to be in one particular place. [The appellant] must intend to restrict [the deceased’s] freedom to move about.

[29] The difficulty I see with the appellant’s argument in relation to the above definition of unlawful confinement is that it asks this court to look at one portion of the jury instruction in isolation. The definition of unlawful confinement just quoted did not stand in isolation in the jury instruction. Rather, it stood within the charge as a whole. In particular, it stood within the instruction on the unlawful confinement element that focused on the allegation that the appellant punched the deceased, knocking him down, and then dragged him to his cell, and told Taylor shut the cell door. It also stood within the structure of the whole instruction on murder and constructive first-degree murder, which clearly drew a distinction between the act causing death (the first and second element) and the unlawful confinement (the fourth and fifth elements). Read in the context of the whole of the jury instructions, I am not persuaded that there was any danger that the jury would have taken from the above definition of unlawful confinement that it was open to them to consider the act of strangulation as an unlawful confinement that could ground this element of constructive first-degree murder.

(ii) Reading the charge as a whole supports the distinction between the act of unlawful confinement element and the act of killing

[30] Reading the charge as a whole also supports the conclusion that the jury would have understood that the unlawful confinement element of first-degree murder required an act or acts of unlawful confinement that were distinct from the act of killing. At the outset of the instruction on the elements of murder and constructive first-degree murder, the trial judge outlined the first required element of the offence, the requirement that it be proven beyond a reasonable doubt that the appellant caused the death of the deceased. In this portion of the instructions, the trial judge focused on the act of strangulation as the alleged cause of death. In particular, the trial judge instructed the jury at the outset of the instruction on the first element as follows:

It is for the Crown to prove that [the appellant] caused the death of [the deceased] beyond a reasonable doubt.

In deciding whether the Crown has proven that [the appellant] caused [the deceased’s] death, you could approach your deliberations in two steps.

Firstly, you should decide what was the cause of [the deceased’s] death. It is for you to decide, but there is evidence from Dr. Milroy that the cause of [the deceased’s] death was compression of the neck that stopped blood-flow to his brain. Dr. Milroy’s report, Exhibit 41, states the cause of [the deceased’s] death was compression of the neck.

It is also for you to decide, but the evidence of Dr. Milroy was that the compression of the neck was caused by ligature strangulation.

The second step of this question is for you to decide whether [the appellant] strangled [the deceased]. To decide this question, you must consider all of the evidence.

The trial judge then reviewed the evidence in relation to the first element.

[31] Similarly, under the second element, whether the Crown had proven beyond a reasonable doubt that the appellant caused the deceased’s death “unlawfully”, the trial judge again focused the jury on the specific act of ligature strangulation as the act that caused death:

It is not always a crime to cause another person’s death. It is a crime however, to cause the death of another person by an unlawful act. The unlawful act must be one that any reasonable person in the circumstances would think would likely put another person at risk of some harm or injury that is more than brief, or minor, in nature.

It is for you to decide, but the lawyers agree, and so do I, that you will have no trouble concluding that the ligature strangulation of [the deceased] in the circumstances of this case, constitutes an unlawful act.

[32] The juxtaposition, when the charge is read as a whole, between the cause of death in the first and second elements focusing on the act of strangulation, and the unlawful confinement element under the fourth and fifth elements focussing on the allegation that the appellant punched the deceased, dragged him to his cell, and kept him there with the cell door closed, would have made clear to the jury that the unlawful confinement they were to consider had to be something distinct from the act of causing death by strangulation.

[33] This juxtaposition between the act of unlawful confinement and the act of the killing was further emphasized for the jury near the end of the fourth element of the instruction, where the trial judge told the jury:

If you are not satisfied beyond a reasonable doubt that [the appellant] committed unlawful confinement of [the deceased], you must find [the appellant] not guilty of first degree murder but guilty of second degree murder, your deliberations would be over at that point.

In the context of other aspects of the instructions that I have highlighted, this instruction further underlined that the unlawful confinement must be something different than the murder itself (the act of killing).

[34] Further, in the portions of the instruction where the trial judge explained that the unlawful confinement had to be contextually connected to the killing (the “same transaction” requirement), the trial judge repeatedly used the language of “the same series of events”. This was primarily in the fifth element of the instruction on murder and constructive first-degree murder, but also at the outset of the instruction on the elements of the offences before the jury. An example of the language used by the trial judge from the beginning of the portion of the instruction on the fifth element is as follows:

In order for [the appellant] to be guilty of first degree murder, Crown counsel must also prove beyond a reasonable doubt that [the appellant] murdered [the deceased] while he was committing, or attempting to commit, the offence of unlawful confinement as part of the same series of events.

This does not mean that the murder and the unlawful confinement, or attempt to unlawfully confine, have to happen at exactly the same moment. But it does mean that the murder and the unlawful confinement, or attempt to unlawfully confine, must be closely connected with one another in the sense that they must be part of the same series of events. They must both be part of a single ongoing transaction.

To answer this question, you have to consider the entire course of [the appellant’s] conduct. Look at the whole series of events in order to decide whether you are satisfied beyond a reasonable doubt that the murder and the unlawful confinement, or attempt to unlawfully confine, were part of a continuous series of events that was a single ongoing transaction. The evidence may show that the murder and the unlawful confinement, or attempt to unlawfully confine, were all part of a continuous series of events, or it may not. [Emphasis added.]

The trial judge then reviewed the evidence relevant to this issue.

[35] As I have noted above, the trial judge directed the jury to the evidence involving the allegation that the appellant punched the deceased, dragged him to his cell, and told Taylor to shut the door when he explained to the unlawful confinement element, and directed the jury to the evidence about the cause of death being strangulation when he explained the causing death element. In this context, the repeated references by the trial judge in the instructions to “the same series of events” would have underscored to the jury that although the unlawful confinement and the killing had to have a close contextual link, they had to be “a series of events”, and not one event.

(iii) The manner in which the issues were raised during the trial supports that the jury would have understood that the act of unlawful confinement must be distinct from the killing

[36] The context of how the issues were raised during the trial also supports that the jury would have understood that the unlawful confinement referred to an act distinct from the killing – in particular, that the unlawful confinement referred to the alleged punching of the deceased by the appellant, dragging him to his cell, and telling Taylor to shut the cell door, and that this was a separate alleged act than the act of killing which was strangulation.

[37] Decisions such as Jacquard are clear that the sufficiency of jury instructions must be considered within the context of the trial as a whole. In this case, the manner in which the case was argued to the jury by counsel would have underscored for the jury that the alleged unlawful confinement that they were being asked to consider as the route to first-degree murder was a distinct act from the strangulation which constituted the act of killing. Throughout the trial, Crown counsel advanced its case on the basis that that the appellant unlawfully confined the deceased by punching him, knocking him down, dragging him to his cell, and asking Taylor to shut the cell door, thereby confining the deceased in the cell. At no point did Crown counsel, defence counsel, or the trial judge suggest that the strangulation (which was the act of killing) could constitute unlawful confinement.

(iv) The extensive pre-charge conference and absence of objection at trial supports that the instructions fairly conveyed the issues

[38] In this trial, the trial judge and trial counsel engaged in an extensive pre-charge conference over four days and involving successive drafts of the final instructions to the jury. Experienced trial counsel for the appellant did not object to the aspect of the charge now raised on appeal or request a more specific instruction about the requirement that the unlawful confinement constitute a distinct act from the act of killing.

[39] Positions taken by trial counsel or failure to object are not dispositive. However, in this case, in light of the extensive pre-charge conference and the fact-specific manner in which the jury instructions addressed the unlawful confinement element, the absence of objection by trial counsel supports the conclusion that the instructions given to the jury were sufficient in the context of the evidence and issues raised at trial: R. v. Polimac, 2010 ONCA 346, at paras. 96-97.

Result

[40] I would dismiss the appeal.

Released: October 5, 2022 “K.F.” “J. Copeland J.A.” “I agree. K. Feldman J.A.” “I agree. B. Zarnett J.A”