





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 appellants 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 victims 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 victims neck and that at
    least one of the cables around his neck was placed there after the victims
    wrists had been tied behind him.  The jury could further infer that at some
    point after the appellant tied the victims 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.


