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Summary

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Criminal law - Offences - Elements of offence - First degree murder - Kidnapping and forcible confinement - Whether, by holding that the trial judge erred in finding the respondent guilty of first degree murder on the basis of s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46, the majority of the Court of Appeal failed to give the correct legal effect to the facts as found by the trial judge and as confirmed in the appellate court..

Mr. Newman was convicted of first degree murder. The victim was killed in his apartment after a prolonged struggle during which he was stabbed and shot multiple times. The trial judge concluded that Mr. Newman inflicted most, if not all, of the stab wounds, and fired the fatal shot into the back of the victim’s head. He further found that Mr. Newman fired that shot intending to cause the victim’s death. The trial judge convicted Mr. Newman of first degree murder on the basis that he caused the victim’s death while committing or attempting to commit the offence of forcible confinement, pursuant to s. 231(5)(e) of the Criminal Code. Mr. Newman appealed his conviction, arguing that the trial judge misapprehended certain evidence and that there was insufficient evidence to establish forcible confinement. The majority of the Court of Appeal agreed with Mr. Newman’s second ground and substituted a conviction for second degree murder. It was of the view that the confinement portion of the attack on the victim was coextensive with the acts that caused his death, rather than a separate act as required for a first degree murder conviction under s. 231(5)(e). Smith J.A., dissenting, would have dismissed the appeal.

Lower Court Rulings