R v Magoon, and the rules of appeal: Assessing Murders without a Foul
There are many principles and customs that impact the courts in Canada. One such principle is to provide a high degree of deference to the trial judge, that is, the judge that hears the actual evidence and renders the initial decision. It is a general principle of justice to assume that the trial judge “got it right”. However, Canada also highly values fairness in the justice system, and so allows for appeals from the initial decision of the trial judge. A person who is convicted of an indictable offence has a right to appeal their conviction pursuant to s675(1)(a) of the Criminal Code: they have an automatic right to appeal any question of law related to their appeal.1 Similarly, the Crown has a right to appeal an acquittal as per s.676 of the Criminal Code.2 However, the situation can become complex, as it did in the case of R v Magoon.3 This case raised a few interesting issues, and so it is important to lay out the facts briefly.
6-year-old Meika Jordan died on November 14th, 2011 after spending the weekend with her father, Mr. Jordan, and her stepmother, Ms. Magoon. During this time, Meika Jordan was burned, was beaten, and was forced to march up and down the stairs for hours as a form of punishment. She sustained at least five blows to the head, as well as suffering damage to internal organs. She eventually lost consciousness, at which point Mr. Jordan and Ms. Magoon sought medical care.
At trial, the judge was satisfied that both of them had intentionally and repeatedly assaulted Meika, and that they did this knowing their actions were likely to cause her death.
“However, she was not satisfied that Ms. Magoon and Mr. Jordan had unlawfully confined Meika while inflicting the fatal injuries on her, and she acquitted them of first degree murder under s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46.”4 Therefore, they were convicted of second degree murder. The Crown appealed the acquittal of first degree murder, while Mr. Jordan and Ms. Magoon appealed their second-degree murder conviction.
At the Court of Appeal, the Court overturned the trial judge’s ruling, and found them guilty of first degree murder, and dismissed Mr. Jordan and Ms. Magoon’s appeal on the charge of second degree murder. Mr. Jordan and Ms. Magoon appealed to the supreme court.
This spawned the conversation on the specifics on when certain rights to appeal apply. Mr. Jordan and Ms. Magoon filed motions to appeal pursuant to s.691(2)(b), which allows someone to appeal to the supreme court as of right on any question of law, when the Court of Appeal substitutes a guilty verdict for an acquittal at trial (as occurred here with the first-degree murder charge). However, the Crown argued that while this did grant them the right to appeal their conviction on first-degree murder, it did not allow them to appeal questions of law that related to the dismissal of their appeal on their conviction of second degree murder. The Crown argued that if they wanted to appeal any question of law as it relates to their second-degree murder charge, that this would have to be done the “normal” way under s.691(1)(b), with leave of the supreme court.
On its face, the words “any question of law” would seem to imply that you could appeal on, quite literally, any question of law. However, the Supreme Court determined here that “any question of law” referred only to questions of law which pertained specifically to the charge for which a guilty verdict was substituted. This meant that Mr. Jordan and Ms. Magoon could only attempt to gain an acquittal on their first-degree murder conviction, and that an acquittal on the second-degree murder conviction was no longer possible (without leave of the court). While this may seem somewhat unjust, it is important to note that their appeal of the conviction for second-degree murder could have been heard by the Supreme Court if they had received leave to do so: but the Supreme Court did not grant that leave. Given all the backlogs that plague the court system, this ruling makes sense from a policy standpoint, by not giving them an automatic right to re-litigate an issue where the appellate court unanimously agreed with the trial court. Therefore “any question of law” does not, in fact, actually mean “any” question of law: it refers only to relevant ones.
The next point raised was whether or not the appellate court of Alberta in fact had the jurisdiction to hear the initial Crown’s appeal on the first-degree murder charge. Ms. Magoon argued that first-degree murder and second-degree murder were just sentencing distinctions for the single substantive offence of “murder”.5
In this case, it was argued that first degree and second-degree murder were merely sentencing distinctions to the substantive crime of “murder”, and so the crown could not appeal the “acquittal” of “murder” in the first degree given that the accused had in fact been convicted of “murder” in the second degree. In fact this argument initially does seem to carry a lot of weight, as there is a dearth of cases where it is specifically indicated that the distinction between first and second degree murder is a sentencing distinctions (R v Farrant, R v Drost, R v Pare, to name only a few cases that were mentioned). In these cases, the court clearly indicated that this interpretation was correct, that the substantive offence of murder is contained in s.212-213 of the Criminal Code, and that s.214 defines the difference between first and second degree for sentencing purposes.
The Supreme Court, in response to this argument, says that all of these cases made those statements in a trial context, and that therefore they can be distinguished from the current facts. They say that for the purpose of appealing, they are entirely different offences, despite what the earlier cases said at a trial context. They ultimately conclude that when someone is charged with first-degree murder but convicted of second-degree, it is valid to appeal that conviction, and also for the crown to appeal the “acquittal” of first-degree murder. The supreme court points out that to accept Ms. Magoon’s argument in this context would lead to “unacceptable consequences”.7 It does make sense from a policy stand point: if Ms. Magoon’s argument were to be accepted, then there would be the very strange occurrence of the Crown having to appeal a sentence in order to actually attempt to be appealing an acquittal.
While it is true that the outcome of this case does seem to make sense, it should serve as a lesson for law-makers and for courts as to the necessity for clarity when drafting laws, and when delivering judgements. Both of the conclusions of the Supreme Court in this case make absolute logical sense from a policy perspective; in fact, they are probably the only reasonable conclusion one could arrive to as to a just outcome. However, the interpretation proposed by Ms. Magoon was heavily supported by jurisprudence over numerous decades, and it would not have been shocking for the courts to agree with all of their earlier decisions. As things stand now, there exists at trial the substantive crime of “murder”, which has sentencing considerations, while for appeal purposes those sentencing considerations are in fact separate offences for which appeals, conviction, and acquittals can be entered.
This case serves to highlight some of the intricacies of the appeal process, and to modify the way that we think of the charge of murder entirely. Hopefully this case has served to clarify the distinctions of the prosecutorial quagmire that is “murder” once and for all… I hope.
1 Criminal Code, RSC 1985, c C-46, s. 675(1)(a).
2 Criminal Code, RSC 1985, c C-46, s. 676.
3 R. v. Magoon, 2018 SCC 14
4 R. v. Magoon, 2018 SCC 14, at para 2.
5 R. v. Magoon, 2018 SCC 14, at para 45.
6 R v Farrant,  1 SCR 124,  3 WWR 171, at para 22.; R v Drost,  1 SCR 208,  SCJ No 11, at para 21; R v Pare,  2 SCR 618,  SCJ No 75, at para 49
7 R. v. Magoon, 2018 SCC 14, at para 52.