



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Johnstone, 2014 ONCA 504

DATE: 20140630

DOCKET: C54136

Gillese, Rouleau and Pepall JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

George Lyle Johnstone

Appellant

Alan D. Gold, for the appellant

Elise Nakelsky and Sean Doyle, for the respondent

Heard: May 20, 2014

On appeal from the conviction entered on February 4, 2010
    by Justice Robert Pelletier of the Superior Court of Justice, sitting with a
    jury.

Rouleau J.A.:

Facts

[1]

The deceased, Mary Lou Wolfe, lived alone in Newington, Ontario. She was
    a health care worker, responsible for home care visits to clients. She had two
    children, Jamie and Erin. Erin was married to the appellant and lived nearby. She
    had a spare key for the deceaseds home which she kept hanging inside the door
    of the house she shared with the appellant.

[2]

On January 11, 2006, Ms. Wolfe was found dead in the bathroom of her
    home. She had been left lying face down covered in blood and completely naked
    except for her underwear which were partially rolled down. She had suffered
    multiple blows and stab wounds to her face, neck and body, and she had injuries
    consistent with strangulation. She died from a horrific neck wound, described
    by the forensic pathologist as an incomplete decapitation. Her head was left
    dangling by a five-inch piece of skin at the back of her neck.

[3]

Ms. Wolfe was found by her step-sister, Dolores Stubbs, who had entered
    Ms. Wolfes home to check on her after not seeing any activity in the home and
    after Ms. Wolfes employer had told Ms. Stubbs that she had been unexpectedly
    absent from work.

[4]

Physical and forensic evidence established that the attack originated in
    Ms. Wolfes bedroom while she was in bed.

[5]

She was severely assaulted there and then appears to have been dragged
    from her bed to the bathroom. The evidence suggested that Ms. Wolfes sweatshirt
    had been taken off after the stabbing had begun. Damage to the bathroom door
    confirmed that Ms. Wolfe had locked the door and taken refuge there. The marks
    on the inside of the door indicated that Ms. Wolfe had sat on the floor, leaning
    against the back of the door while bleeding profusely. A pattern of bloody boot
    prints revealed that her killer had twice travelled between the bedroom-bathroom
    area and the kitchen. The murder weapon was a steak knife, evidently taken from
    Ms. Wolfes cutlery drawer and found near her body. The blood-soaked blade was
    broken into several pieces, with one piece embedded in her bloody sweatshirt
    found near the body.

[6]

The appellants fingerprints were found on a serrated knife located on a
    kitchen chair and the appellants palm print was recovered from an otherwise
    clean stovetop. No other fingerprints were found at the scene and no other
    cutlery was out of place.

[7]

Blood on the kitchen stove and inside the cutlery drawer contained DNA
    belonging to both the appellant and Ms. Wolfe. The evidence led at trial indicated
    that the appellant had not been inside Ms. Wolfes house since the previous
    summer.

[8]

There was no sign of forced entry into Ms. Wolfes home. Only the
    bathroom door exhibited damage consistent with the application of force to the
    door from outside the bathroom.

[9]

The motive alleged by the Crown at trial was that the appellant was
    upset by Ms. Wolfes plans to help her daughter and daughters two children,
    Sara and Charlie, move away from the appellant because of the appellants generally
    disruptive behaviour. Sometime before the murder, during an argument with the
    appellant, Erin blurted out Ms. Wolfes plan. The appellant responded by
    telling Erin that she would never leave with his son.

[10]

On
    the night of January 9 and into the early morning hours of January 10, 2006,
    the appellant was out all night. He had consumed a large quantity of alcohol
    and was searching for cocaine. For several hours after midnight or so, his
    whereabouts were unaccounted for.

Evidence of post-offence conduct

[11]

The
    Crown led evidence of post-offence conduct, including evidence that the appellant
    showed up at his friends house around 5:30 a.m. on January 10 in need of a
    shower. He rushed into his friends bathroom, wearing only his boxer shorts,
    holding a pair of work boots and a shirt, and stated if anyone asks, I wasnt
    here.

[12]

The
    Crown also led evidence that in the days following Ms. Wolfes murder, the
    appellant exhibited somewhat suspicious conduct including: getting rid of his
    brand new work boots (explaining that oil had spilled into them); lying to his
    boss on the morning after the murder by claiming that he had been up all night
    with his child at the hospital; getting rid of or washing his clothes (explaining
    that he had spilled transmission fluid on them); and falsely claiming that his
    fingerprints might be on Ms. Wolfes body because he had been having a sexual
    relationship with her.

Evidence of other disreputable conduct

[13]

The
    Crown also brought an application seeking to adduce evidence of other
    disreputable conduct as relevant to the Crowns theory that the appellants
    motive for killing Ms. Wolfe was to prevent her from helping the appellants
    spouse and son move away.

[14]

The
    trial judge allowed the application in part. He determined that the Crown could
    lead evidence of the appellants alcohol and drug consumption, of his gambling
    habits, of his frequent absences from home, and of financial difficulties including
    evidence of Ms. Wolfe lending money to her daughter and the appellant and their
    being unable to pay it back, in part because of his alcohol and drug
    consumption.

[15]

The
    trial judge, however, would not allow the Crown to lead evidence of an incident
    in which the appellant damaged a China cabinet in anger or evidence of sexual
    relations the appellant was alleged to have had with a 14-year-old babysitter
    some five years before the murder.

[16]

The
    appellant did not testify and did not call a defence.

Issues

[17]

In
    his factum, the appellant raises four grounds of appeal. Prior to the hearing
    of the appeal, the appellant advised that he was not pursuing one of these
    grounds, namely the trial judges disallowance of his application to adduce evidence
    of an alternative suspect, Ron Deschambeault.

[18]

At
    the hearing of the appeal, the appellant relied on his factum in respect of two
    of the grounds: whether the trial judge erred in allowing evidence of other
    discreditable conduct and whether the trial judge erred in his instructions to
    the jury on the use they could make of the appellants post-offence conduct.

[19]

The
    appellants oral submissions focused on the final ground of appeal, whether the
    trial judges instructions on first degree murder were correct.

[20]

For
    the reasons that follow, I would dismiss the appeal.

Analysis

(1)

Did the trial judge err in allowing evidence of other discreditable
    conduct?

[21]

The
    appellant argues that the trial judge erred in allowing the Crown to lead
    evidence of the appellants substance abuse, gambling and financial
    difficulties. In his submission, that evidence was not admissible as it did not
    go directly to the appellants alleged motive for the killing. It was only
    relevant to the peripheral issue of Ms. Wolfes motive for wanting to assist
    her daughter and grandchildren to leave the appellant. Further, the evidence
    was unnecessary given that the appellant did not contest the claim that Ms.
    Wolfe planned to move the family away. However, the evidence of bad character
    led by the Crown was clearly prejudicial as it showed the appellant to be a
    generally bad person. As a result the appellant maintains that the evidence was
    not relevant and any probative value it may have had was outweighed by its
    prejudicial impact.

[22]

I
    disagree. Although evidence of other discreditable conduct is presumptively
    inadmissible, it may nonetheless be admitted if it satisfies two criteria: (1)
    it is relevant to one or more issues at trial; and (2) its probative value
    outweighs its prejudicial effect: see
R. v. Handy
, 2002 SCC 56, [2002]
    2 S.C.R. 908, at paras. 71, 150.

[23]

This
    was a circumstantial case in which the identity of the killer was contested.
    The appellant suggested that the true culprit was the deceaseds step-sister, Ms. Stubbs,
    on the basis that she had opportunity and motive. The appellants motive and
    the relative strength of that motive were, therefore, genuine issues for the
    jury. The evidence of discreditable conduct led at trial tended to prove that
    Ms. Wolfe did formulate a moving plan and that the appellant, having learned of
    it, would have been motivated to prevent it from being implemented.

[24]

Contrary
    to the appellants submission, there is no requirement of a direct connection
    between the evidence of discreditable conduct and the appellants motive to
    kill Ms. Wolfe. The evidence of the appellants prior misdeeds must simply be
    relevant to a live issue at trial:
Handy
, at para. 73. The evidence of
    his substance abuse, gambling and financial difficulties was probative as it
    provided support for the Crowns theory that the appellant would have taken
    seriously Ms. Wolfes plan to move her family away from him and therefore had a
    motive for killing Ms. Wolfe.

[25]

The
    risk of prejudice was very limited. The prior discreditable conduct was akin to
    the evidence the jury would hear in any event regarding the appellants conduct
    leading up to and after the murder. The risk of prejudice is further reduced by
    the fact that the evidence of other discreditable conduct goes to conduct far
    less serious than that for which the appellant stood charged.

[26]

Finally,
    the evidence was neither lengthy nor complicated and was not seriously
    challenged by the appellant.

[27]

Deference
    is due to a trial judges decision because the trial judge is in the best
    position to assess the significance of the evidence and the impact it may have
    on the jury. I see no basis to interfere.

[28]

The
    appellant then argues that the trial judges instructions were deficient in
    that they failed to include an explicit statement of the rationale for the
    rule [governing permissible and impermissible uses of evidence of other
    discreditable conduct] and the prohibited uses so that the jury properly
    understood this important rule.

[29]

I
    would not give effect to this submission. The trial judge properly instructed
    the jury both in a mid-trial instruction and in his final instructions on both
    the permitted and prohibited uses of this evidence. The appellant provides no
    authority for the proposition that the trial judge must provide an explicit
    statement of the rationale for the rule. As explained in
R. v. Samuels
, 2013 ONCA 551, 310 O.A.C. 175
, at para.
    48, the question is whether or not the instruction accomplished its purpose,
    not whether it follows a particular formula. Here the combined effect of the
    trial judges mid-trial and final instructions accomplished their purpose and
    nothing more was required.

(2)

Did the trial judge misdirect the jury on the use it could make of the
    appellants post-offence conduct?

[30]

The
    appellant argues that the trial judge misdirected the jury on the proper use of
    the evidence of post-offence conduct when, towards the end of his charge, he
    stated only that the evidence needs to be consistent with a guilty mind but
    failed to state that it must be inconsistent with any other explanation.

[31]

I
    would not give effect to this submission. In the portion of his charge dealing
    with post-offence conduct, the trial judge, at the outset, clearly explained
    the proper use of this evidence. He told the jury that they could not use that
    evidence to help them decide whether the appellant committed the offence unless
    they were able to reject any other innocent explanation for what [the
    appellant] may have done or said. He repeated this caution later in this
    portion of the charge telling the jury that after determining what was actually
    said or done, they should decide what weight you give that evidence in
    considering whether it is consistent with someone who committed the offence or
    not or what other innocent explanations there are.

[32]

The
    trial judge then went on to review the items of evidence of post-offence
    conduct and he concluded with a reminder that you must consider any other
    explanation for what he may have done or said. It is only if you decide that
    his conduct after the murder is consistent with the guilty conscience that you
    can use this evidence in helping you decide, together with all of the other
    evidence, whether the accused is guilty. It is this last portion of the charge
    on post-offence conduct that the appellant claims is deficient because it does
    not repeat the earlier caution that they must reject any other innocent
    explanation.

[33]

Read
    in context, the challenged wording was simply a reminder by the trial judge of the
    caution he gave at the outset of this portion of the instruction. It emphasized
    the fact that the appellants lifestyle was not on trial and that the jury
    could not infer from the bad character evidence that the appellant was more
    likely to have committed the offence. Read in its entirety, the charge makes
    clear that post-offence evidence was probative, if at all, only if the jury
    were able to reject any other innocent explanation. The final reminder not to
    infer guilt from the bad character evidence did not undermine the clear earlier
    statements.

(3)

Did the trial judge misdirect the jury on first degree murder?

[34]

In
    his factum and in oral submissions, the appellant argued that the trial judge
    committed several errors in instructing the jury as to what was needed to find
    the appellant guilty of first as opposed to second degree murder. The appellant
    alleges three separate misdirections in the instructions: (a) on unlawful
    confinement; (b) on sexual assault; and (c) as to what is necessary to elevate murder
    from second to first degree pursuant to s. 231(5) of the
Criminal Code
,
    R.S.C. 1985 c. C-46.

[35]

I
    will deal with each of these concerns in turn.

(a)

The instruction on unlawful confinement

[36]

The
    appellant does not take issue with the portion of the trial judges charge setting
    out the requirements for first degree murder pursuant to s. 231(5) where the
    murder is accompanied by the additional offence of unlawful confinement. In
    that portion of the charge the trial judge explained that the jury would have
    to conclude that Ms. Wolfes death was

part of a continuing series of events constituting a single
    transaction that establishes both her death and the distinct offence of
    unlawful confinement. The required connection is established if the unlawful
    confinement creates a continuing illegal domination of the victim that provides
    the accused with a position of power which he exploits in order to murder the
    victim.

Confinement that is inherent or necessarily accompanies the act
    of killing is not unlawful confinement which would render first degree murder.

[37]

The
    appellant argues, however, that the trial judge misdirected the jury when, in
    summarizing the Crowns position, he told the jury that:

[T]he Crown argues that the evidence established that the
    murder was first degree since, according to the Crown, the deceased found
    herself confined in the bathroom area as a direct consequence of the accuseds
    actions and that he exploited this position of domination in committing murder.

[38]

In
    the appellants submission there was no basis in the evidence from which the
    jury could conclude that Ms. Wolfe had been confined to the bathroom. In the
    appellants view, Ms. Wolfe was not confined to the bathroom. She had locked
    the bathroom door and the appellant was trying to un-restrain her by breaking
    down the door.

[39]

I
    would reject this submission. Ms. Wolfe was unlawfully confined if for any
    significant period of time she was coercively restrained or directed contrary
    to her wishes, so that she could not move about according to her own
    inclination and desire:
R. v.
Pritchard
, 2008 SCC 59, [2008] 3
    S.C.R. 195, at para. 24. The only reasonable inference from the evidence led at
    trial was that the appellants attempt to un-restrain Ms. Wolfe was to get
    access to her in order to kill her. There is no suggestion that he sought to
    open the door in order to allow her to leave. The evidence pointed to Ms. Wolfe
    having been dragged to the bathroom by the appellant and her being left there
    while he went to the kitchen to obtain a knife. During this time he stood
    between Ms. Wolfe and any possible escape. Ms. Wolfe would have locked the door
    in the hope that it might prevent further assaults. From the moment the appellant
    left to obtain a knife up until he returned to the bathroom with the knife,
    there can be little doubt that Ms. Wolfe was not free to move about according
    to her own inclination and desire. The appellants submission that she was not
    confined and that he simply sought to un-restrain her is without merit.

[40]

The
    appellant then argues that there was no evidentiary basis for the jurys
    finding that the separate offence of unlawful confinement had been committed. Any
    unlawful confinement that might have occurred in this case was, according to
    the appellant, confinement incidental to the murder. The confinement was part
    of and for the purpose of the murder.

[41]

I
    disagree. Section 231(5)(e) of the
Code
applies when an accused causes
    death while committing or attempting to commit unlawful confinement. As
    Binnie J. wrote for a unanimous Supreme Court in
Pritchard
, at para.
    35, the murder and unlawful confinement must be

linked together both causally and temporally in circumstances
    that make the entire course of conduct a single transaction . The
    temporalcausal connection is established where the unlawful confinement
    creates a continuing illegal domination of the victim that provides the
    accused with a position of power which he or she chooses to exploit to murder
    the victim. [Citations omitted.]

[42]

The
    murder and unlawful confinement, however, must constitute discrete criminal
    acts. They cannot be one and the same. Doherty J.A. explained the rationale in
R.
    v. Kimberley
(2001), 56 O.R. (3d) 18 (C.A.), at para. 108:

[A] confinement which is inherent in the very act of killing
    could not be relied on to impose liability under s. 231(5)(e). This is not
    because there is no confinement, but because s. 231(5)(e) requires two discrete
    criminal acts, a killing that amounts to murder and a confinement that is
    unlawful. It is the occurrence of the two criminal acts in the course of the
    same transaction or series of events that justifies the added punishment
    imposed for first degree murder.

[43]

As
    explained in
R. v. Menard
, 2009 BCCA 462, 281 B.C.A.C 14, at para. 24,
    the confinement and the killing cannot be so closely connected that they are
    coextensive, that the confinement is
consumed
in the killing, that
    they are one and the same (emphasis in original).

[44]

On
    the facts of this case, all of the elements to establish murder are made out in
    the period commencing when the appellant forced his entry into the locked
    bathroom. Everything that had occurred before the appellant broke into the
    bathroom is sufficiently distinct from the killing so as to constitute a
    different offence or several different offences. This would include the initial
    assault by the appellant in the bedroom, his dragging (as suggested by the
    evidence) Ms. Wolfe to the bathroom, confining her by blocking any possible
    escape while he equipped himself with a knife, and his illegal domination of
    her throughout. All of these discrete unlawful acts are linked temporally and
    causally in circumstances such as to make the entire course of conduct a single
    transaction as required under s. 231(5)(e). They are not, therefore, consumed
    in the killing, as explained in
Menard
.

[45]

Whether
    the appellant intended to confine Ms. Wolfe solely for the purpose of killing
    her or for some other purpose is
of no moment. As
    Doherty J.A. explained in
Kimberley
, at para. 107:

[I]f in the course of a continuous sequence of events an
    accused commits the crime of unlawful confinement and chooses to exploit the
    position of dominance over the victim resulting from that confinement to murder
    the victim, then the accused has committed first degree murder as defined in s.
    231(5)(e).
The purpose of the confinement is not relevant
. [Emphasis
    added.]

Similarly, the Supreme Court in
Pritchard
rejected the argument that where the purpose of an unlawful confinement is to
    carry out an offence not listed in s. 231(5), the unlawful confinement does not
    justify the application of s. 231(5). At para. 31, the Court quoted with
    approval the response of the
British Columbia Court of Appeal in
R.
    v. Gourgon
(1979), 19 C.R. (3d) 272, at p. 279: Nothing is expressed or
    implied in those sections
about
the purpose
of the confinement.
    Neither is there anything in the history of the legislation to suggest a
    limitation of that nature to be placed upon the word confinement (emphasis
    added by the Supreme Court).

[46]

Therefore
    the question here is simply whether the appellant
intended
to confine
    the victim, and whether the confinement was a distinct criminal act. The
    appellants ultimate purpose in confining the victim is not relevant to
    assessing the distinctness of the confinement from the act of murder. The trial
    judges instructions adequately conveyed to the jury the
mens rea
requirements of both offences and the importance of deciding whether they were
    discrete criminal acts.

[47]

On
    the evidence there is no way of knowing exactly how long the confinement
    lasted. Ms. Wolfe may have been confined to the bathroom and bedroom areas of
    the home for several minutes or for an hour or more. We do not know. She may
    have been dragged to the bathroom as the evidence suggests or she may have
    found her own way there when the appellant went to get the knife. There was,
    however, ample evidence from which a jury could conclude that it was the
    appellants actions of dominating Ms. Wolfe that led her to take refuge behind
    the locked bathroom door. Ms. Wolfe had no reasonable escape route and was
    confined up until the murder. The confinement was not coextensive with and
    consumed in the killing, but rather created an illegal domination of the victim
    that the appellant then chose to exploit to murder her: see
R. v. Luxton
,
[1990] 2 S.C.R. 711, at p. 723;
Pritchard
,
    at para. 35,
Kimberley
, at para. 107. In other words, there was
    confinement
not
limited to what was integral to the particular act of
    killing disclosed by the evidence:
Pritchard
, at para. 27 (emphasis in
    original).

(b)

The instruction on sexual assault

[48]

The
    appellant raises two objections to the trial judges charge on sexual assault.
    He argues that the trial judge ought to have specifically instructed the jury
    that the appellants intention or lack of intention of a sexual nature is a
    highly relevant factor.

[49]

I
    do not view the trial judges failure to give such a specific direction as
    constituting an error. The trial judge properly instructed the jury on the
    elements of sexual assault. The sexual nature of an assault is to be determined
    objectively from the perspective of a reasonable observer. A sexual purpose or
    intention is not an essential element and the offence may be made out in the
    absence of any evidence of sexual intention and even where the accuseds
    intention was not sexual. This court in
R. v. V. (K.B.)
(1992), 8 O.R.
    (3d) 20 (C.A.), affd [1993] 2 S.C.R. 857, stated as follows, at p. 23:

What elevates
    an assault to a sexual assault will depend on the circumstances of each case. A
    sexual assault does not require sexuality and, indeed, may not even involve
    sexuality. It is an act of power, aggression and control. In general, sexual
    gratification, if present, is at best a footnote.



Just as Parliament criminalized assault because certain conduct
    represents an unacceptable interference with the victims physical integrity,
    Parliament has criminalized sexual assault because it represents an
    unacceptable intrusion upon, or violation of, the victims sexual privacy or
    integrity.

[50]

Intention
    of a sexual nature is simply one factor to be considered in determining whether
    the assault was sexual, the importance of which will vary depending on the
    circumstances:
R. v. Chase
[1987] 2 S.C.R. 293, at p. 302. There was,
    in this case, ample evidence from which a jury could conclude that the assault
    was not only violent but also of a sexual nature. Ms. Wolfe was found almost
    naked, her underwear partially rolled down with a swipe blood pattern near her
    upper buttocks. Her blood-soaked sweatshirt was found nearby in circumstances
    and in a condition suggesting that it had been removed during the attack. The
    trial judge did not, on the facts of this case, err in failing to specifically
    instruct the jury that whether or not the appellant had a sexual intention or
    purpose was a highly relevant factor.

[51]

The
    appellant also submits that the trial judge further erred in his instruction on
    sexual assault when he told the jury that the physical contact that took place
    between the appellant and Ms. Wolfe was of a sexual nature if the contacts
    violated the deceaseds sexual integrity
or privacy
 (emphasis added).

[52]

In
    the appellants submission the insertion of sexual privacy in the charge is
    not supported by the jurisprudence and is overly broad and vague. He argues
    that privacy and integrity are not sufficiently similar to be used
    interchangeably.

[53]

I
    would not give effect to this submission. I acknowledge that the cases in which
    the Supreme Court of Canada has dealt with sexual assault generally refer only
    to the requirement that the contact be in violation of the victims sexual
    integrity. This court in
V. (K.B.)
did, however, refer to sexual
    privacy.

[54]

Given
    that sexual assault requires an underlying assault, I see little difference
    between a violation of sexual privacy and a violation of sexual integrity in
    this context. That is, any assault that violates a persons sexual privacy
    would, it seems, also violate that persons sexual integrity. Further, the
    appellants trial counsel did not raise any issue with this portion of the
    charge and on appeal the appellant did not articulate how a jury may have
    viewed the evidence of the assault as amounting to a violation of sexual
    privacy but not sexual integrity. Although the more prudent route may be to
    refer only to sexual integrity, I do not, on the facts of this case, consider
    the reference to sexual privacy to constitute misdirection.

(c)

The trial judges instruction on what is necessary to qualify as first
    degree murder pursuant to s. 231(5)

[55]

For
    constructive first degree murder to be made out under s. 231(5) of the
Code
,
    the accused must cause death while committing one of the listed predicate
    offences. The trial judge in his jury instructions repeatedly substituted the
    term accompanied by for while committing. In the appellants submission
    accompanied by is a broader term. This raises the concern that the jury may
    have found the appellant guilty of first degree murder even though the two
    offences  whether sexual assault and murder or unlawful confinement and murder
     were not committed in a single transaction.

[56]

This
    error, in the appellants view, was compounded when the trial judge told the
    jury that the events had to be part of the same transaction
or
series
    of events (emphasis added). The appellant maintains that the proper instruction
    is that the offences should constitute one continuous sequence of events
    making up a single transaction. Series of events is, according to the
    appellant, not a permissible alternative and undermines the accepted one
    transaction language.

[57]

I
    would not give effect to this submission. Although it would have been
    preferable had the trial judge used the actual words  while committing  of
    s. 231(5), the charge read as a whole would have conveyed to the jury the requirement
    that the killing to be closely connected both temporally and causally to the
    enumerated offences. On the facts of this case, if the jury determined that the
    underlying offences of unlawful confinement and/or sexual assault occurred,
    then the offences could not have failed to form part of a continuous sequence
    of events making up a single transaction with the murder.

[58]

All
    the evidence led in support of the sexual assault pointed to it being closely
    connected with the murder both temporally and causally. Ms. Wolfe was found
    naked, except for her underwear which had been partially rolled down, and there
    was a bloody swipe mark on her upper buttocks. Her bloodied sweatshirt was
    found next to her. The damage to the sweatshirt indicated that Ms. Wolfe had
    been stabbed while wearing it. Because it would have been difficult to remove the
    sweatshirt after the murder, given the partial decapitation, a reasonable
    inference is that it was removed during the series of events, culminating in
    her murder.

[59]

As
    to the unlawful confinement, it could not be seriously disputed that this would
    have occurred during the same transaction as the murder. In fact, the
    appellants position was that the unlawful confinement in this case was so
    closely connected to the murder that it should be found to be inherent in the
    act of killing.

[60]

Finally,
    I do not share the appellants concern over the trial judge instruction to the
    jury that the events had to be part of the same transaction
or
series
    of events (emphasis added). The expression same transaction or series of
    events has been used by this court in
Kimberley
and by the British Columbia
    Court of Appeal in
Menard
. In addition, as I have explained, once the
    jury concluded that there had been either a sexual assault or an unlawful
    confinement, the jury would, on the facts of the case, inevitably have
    concluded that it was committed as part of the same transaction. I cannot see
    how the trial judges instruction would constitute misdirection.

Conclusion

[61]

For
    these reasons, I would dismiss the appeal.

Paul
    Rouleau J.A.

E.E.
    Gillese J.A.

S.E. Pepall J.A.

Released: June 30, 2014


