New & Notable: Free to Kill

George Johnstone was married to Erin, the daughter of Mary Lou Wolfe. On January 11, 2006 Ms Wolfe was found lying face down on her bathroom floor covered in blood, naked but for her underwear, which were partially pulled down. She had stab wounds on her face, neck and body; she had been strangled.

The evidence at the scene revealed that Ms Wolfe had been dragged from her bedroom to the bathroom. “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.” [@para 5]

The Crown argued that Johnstone was upset by his mother-in-law’s plans to help her daughter and her two grandchildren move away from Johnstone because of his poor behaviour. Sometime prior to the murder the victim’s daughter told Johnstone of this plan and he responded by saying that he would never allow her to leave with his son. [@para 9]

The murder weapon was a steak knife taken from the victim’s kitchen. Johnstone’s fingerprints were found on a serrated knife and the stove in the kitchen. Johnstone and Ms Wolfe’s blood was recovered from the stove and inside the cutlery drawer.

Following a trial by judge and jury Johnstone was convicted of first-degree murder; he appealed: R v Johnstone, 2014 ONCA 504.  On appeal he argued, inter alia, the trial judge misdirected the jury on constructive first-degree murder by way of forcible confinement.

Johnstone argued that the trial judge erred by framing the forcible confinement as follows:

[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 accused’s actions and that he exploited this position of domination in committing murder. [@para 37]

The accused argued that the marks on the bathroom door were indicative of the accused’s attempt to ‘un-restrain’ the victim, not confine her.

The Court of Appeal rejected this argument:

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 (CanLII), 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 appellant’s 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 appellant’s submission that she was not confined and that he simply sought to “un-restrain” her is without merit. [@para 39]

Bottom line: ‘freeing’ someone in order to kill them is actually not freeing them at all.