SUPREME
COURT OF CANADA
Between:
David Mostyn
Pritchard
Appellant
and
Her Majesty The
Queen
Respondent
Coram: McLachlin C.J. and Binnie, Deschamps, Fish,
Abella, Charron and Rothstein JJ.
Reasons for
Judgment:
(paras. 1 to 41)
|
Binnie J. (McLachlin C.J. and
Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
|
______________________________
R. v. Pritchard, [2008] 3 S.C.R. 195, 2008 SCC 59
David Mostyn Pritchard Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Pritchard
Neutral citation: 2008 SCC 59.
File No.: 31970.
2008: April 18; 2008: October 30.
Present: McLachlin C.J. and Binnie, Deschamps, Fish,
Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for british columbia
Criminal law — Classification of murder — Unlawful
confinement and murder — Whether confinement during course of robbery is
forcible confinement for purposes of classifying murder as first or second
degree murder — Whether accused caused victim’s death while committing forcible
confinement — Criminal Code, R.S.C. 1985, c. C‑46, s. 231(5) .
M, a wholesale drug supplier, and his wife S, hid a
large quantity of marijuana in a secret location on their farm about 250 to 300
meters away from the farmhouse. M left the farm for a few days. When he
returned home, S was missing. S and M’s footprints and those of at least one
other person led to the marijuana stash. The marijuana was gone. There was no
sign of a struggle and a search failed to locate S’s body. Based on
circumstantial evidence, the accused was charged with murdering S during the course
of the robbery. At trial, the Crown argued that the accused had forced S at
gunpoint to disclose where the marijuana was stashed and to transport the
marijuana to a truck. The Crown also argued that S had been unlawfully
confined and then murdered, therefore the jury could return a verdict of first
degree murder pursuant to s. 231(5) (e) of the Criminal Code .
The jury convicted the accused of first degree murder and the Court of Appeal
upheld the conviction.
Held: The appeal should
be dismissed.
Section 231(5) of the Criminal Code reflects
Parliament’s sentencing policy to treat murders committed in connection with
crimes of domination as particularly blameworthy and deserving of more severe
punishment. In view of the wording of s. 231(5) , second degree murder
will be elevated to first degree murder where the murder is causally and
temporally linked to one of the predicate offences set out in that provision in
circumstances that make the killer’s entire course of conduct a single transaction.
Robbery, unlike unlawful confinement, is not a predicate offence under
s. 231(5) ; however, S was unlawfully confined for the purposes of applying
s. 231(5) (e) if she was coercively restrained or directed contrary
to her wishes for any significant period of time before her death and her
confinement was not limited to what was integral to the particular act of
killing her. The word “forcible” used in s. 231(5) (e) adds nothing
to the elements of the offence of unlawful confinement. [2] [19] [24‑25]
[27] [35]
To find the accused guilty of first degree murder, the
jury had to find that S’s 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 temporal‑causal
connection is established if the unlawful confinement creates the continuing
illegal domination of the victim that provides the accused with a position of
power which he or she exploits in order to murder the victim. The fact that
the series of events also discloses a robbery does not bar or alter the
operation of s. 231(5) (e). If the accused’s argument were correct
an accused would be better off having forcibly confined, robbed and killed his
victim than if he had just forcibly confined and killed her. Such an outcome
would defeat rather than promote Parliament’s intention because it would treat
a criminal wrong additional to those listed in s. 231(5) as mitigating its
effect. [3] [22] [35]
In this case, the jury was entitled to return a verdict
of first degree murder. There was ample evidence to support the requisite
elements of a confinement within the meaning of s. 279(2), quite
independent of the killing. It was open to the jury to conclude from the accused’s
evidence that he buried the victim and noted blood on the back of her head,
that a gunshot was the source of the wound and the cause of her death, and that
a gun played a role in the accused achieving a position of dominance over her
to locate and transfer the marijuana to his truck. The purpose of the
confinement — the robbery — did not detract from the fact that she was
confined at gunpoint during a period which, given the distance between the
stash to the house, must have been of significant duration. On the other hand,
the act of killing, by a gunshot wound to the head, must have been almost
instantaneous. On this evidence, the jury was thus entitled to conclude that
the accused, having got his hands on the marijuana, chose to exploit the position
of dominance over S, that resulted from her confinement at gunpoint, by killing
her. This provided a sufficient temporal and causal connection to make these
events a “single transaction”. [4] [37‑38]
Cases Cited
Considered: R. v.
Paré, [1987] 2 S.C.R. 618; R. v. Strong (1990), 60 C.C.C. (3d) 516; referred
to: R. v. Russell, [2001] 2 S.C.R. 804, 2001 SCC 53; R. v.
Luxton, [1990] 2 S.C.R. 711; R. v. Stevens (1984), 11 C.C.C. (3d)
518; R. v. Harbottle, [1993] 3 S.C.R. 306; R. v. Martineau,
[1990] 2 S.C.R. 633; R. v. Gratton (1985), 18 C.C.C. (3d) 462; R. v.
Tremblay (1997), 117 C.C.C. (3d) 86; R. v. Mullings, 2005
CarswellOnt 3022; R. v. Kingsley (1995), 105 C.C.C. (3d) 85; R. v.
Simon (2001), 154 C.C.C. (3d) 562; R. v. Kimberley (2001), 157
C.C.C. (3d) 129; R. v. Kirkness, [1990] 3 S.C.R. 74; R. v. Bradley
(2003), 223 Nfld. & P.E.I.R. 225, 2003 PESCTD 30; R. v. Sandhu, 2005
CarswellOnt 8306; R. v. Gourgon (1979), 19 C.R. (3d) 272; R. v.
Dollan (1982), 65 C.C.C. (2d) 240, leave to appeal refused, [1982] 1 S.C.R.
vii; R. v. Pitre (1991), 2 B.C.A.C. 186; R. v. Hein (2004), 189
C.C.C. (3d) 381; R. v. Johnson (2002), 166 C.C.C. (3d) 44.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1985, c. C‑46, ss. 230 , 231(1) , (2) , (5) ,
279(2) , (3) , 343 .
APPEAL from a judgment of the British Columbia Court of
Appeal (Newbury, Hall and Kirkpatrick JJ.A.) (2007), 217 C.C.C. (3d) 1, 238
B.C.A.C. 1, 393 W.A.C. 1, 2007 CarswellBC 269, [2007] B.C.J. No. 243 (QL),
2007 BCCA 82, upholding the accused’s conviction for first degree murder.
Appeal dismissed.
Richard C. Gibbs, Q.C.,
and Rod H. G. Holloway, for the appellant.
Trevor Shaw and Kathleen M.
Ker, for the respondent.
The judgment of the Court was delivered by
[1]
Binnie J. — In this case
it was established that Mrs. Pirkko Skolos was killed during a marijuana
“rip-off” at her remote farm near Topley, British Columbia. The appellant no
longer disputes that the evidence is sufficient to support a conviction of
second degree murder. The question posed by this appeal is whether s. 231(5) (e)
of the Criminal Code, R.S.C. 1985, c. C-46 , raises the murder
from second degree to first degree because it was committed, the Crown
contends, in the course of an unlawful confinement of the victim by the
appellant contrary to s. 279(2) . The jury accepted the Crown’s argument and
returned a verdict of first degree murder.
[2]
The appellant contends that there was no evidence before the members of
the jury that would have allowed them, had they been properly instructed, to
reach such a conclusion. The case against him (apart from some admissions he
made in a statement to the police) was wholly circumstantial. It was not
enough, he says, for the Crown to adduce evidence of confinement that was
incidental to or ancillary to the robbery. The jury should have been so
instructed. Robbery, unlike unlawful confinement, is not a predicate offence
under s. 231(5) . The effect of the trial judge’s instruction to the jury, the
appellant continues, was to make robbery a predicate offence, thereby
increasing his ineligibility for parole from 10 to 25 years, contrary to
Parliament’s intention as manifested when it limited the s. 231(5) list of
enumerated offences.
[3]
I agree with the appellant that for s. 231(5) to raise murder from
second degree to first degree the Crown must prove that the killing occurred as
part of a continuing series of events constituting a single transaction that
establishes not only the killing but also the distinct offence of unlawful
confinement. However, if unlawful confinement is established, the fact that
the series of events discloses in addition a robbery does not bar or alter the
operation of s. 231(5) (e).
[4]
In this case there was ample evidence of unlawful confinement. The
appellant admits that he is the person who eventually buried the body of Mrs.
Skolos. As he did so he noted a patch of blood (thought to be the entry point
of a bullet) on the back of her head. This suggested that she was shot while
already under the control of the assailant. The appellant testified that he
had earlier planned the robbery with another person, and their plan included
use of a gun. There was evidence that the assailant kept the victim under
control for a significant period of time prior to the murder. The marijuana
was stashed 250 to 300 metres from the farmhouse at a location kept secret by
Mrs. Skolos and her husband. The marijuana had first to be located and then
moved from the “stash” to the waiting truck. The appellant points out that
there was no evidence of a struggle or attempt to escape. In fact, he says,
there is nothing to suggest lack of co-operation on the victim’s part. In my
view, however, it was open to the jury to conclude that the victim’s
“co-operation” in disclosing the location of the stash and perhaps in acting as
a “mule” to help ferry the marijuana to the appellant’s truck, was secured at
gunpoint (as the appellant had planned, according to his own evidence) before
she was murdered. The judge’s instruction on this point was, if anything,
unduly favourable to the appellant. The jury was entitled to return a verdict
of first degree murder. I would therefore dismiss the appeal.
I. Facts
[5]
In November 1995, a “wholesale” drug supplier named Myles Skolos
received a large shipment of marijuana at the farm where he lived with his
wife, Pirkko. They hid the marijuana in three trunks at a “stash”. Some time
later he left to attend his brother’s funeral on Vancouver Island leaving his
wife behind. When he returned, his wife was missing, as were her wallet and
some cheques. The footprints of himself and his wife and those of at least one
other person could be seen in the snow leading to the location of the stash.
Two of the trunks and all of the marijuana were gone.
[6]
When the police searched the farm, it appeared that a large truck or
vehicle had driven up the driveway, but no distinctive tire pattern imprints
could be identified. There was no sign of a struggle or blood at the farmhouse
or at the stash. An extensive search of the farm by a tracking dog failed to
locate the victim’s body.
[7]
The police learned from Bill Wall, the brother of a major Skolos
customer, that he might have told the appellant about the arrival of the
shipment. The appellant had a substantial record as a drug dealer and an
enforcer. The police interviewed the appellant and intercepted his private communications.
The appellant denied knowing of the shipment. He admitted having been to the
farm on earlier occasions but denied going there around the time when the
victim disappeared.
[8]
Over a period of several months, the appellant gave information and alibis
to the police that he later admitted were false. However, on January 19, 2000,
on the eve of trial, the appellant entered into a Limited Immunity Agreement
with the police. In it he promised to cooperate fully with the investigation
and to show police the location of the victim’s body, which he said he had
buried in order to assist Bill Wall who was the “real” murderer. In return,
the Crown agreed that the appellant would not be charged with first degree
murder in connection with the death. The body was never found, despite the
instructions given by the appellant and extensive police searching. Bill Wall
denied any involvement. The Crown continued with the first degree murder
charge.
[9]
The appellant’s statement of January 19, 2000 was generally consistent
with his testimony at trial. He said that he and Bill Wall had discussed for
many months a plan to steal the Skolos marijuana using a gun to secure
“co-operation”. He claimed to have met Bill Wall by coincidence on November
23, who told him that the plan was “a go” that night. Wall told him the
marijuana had arrived at the Skolos farm and that he and an associate were
going to go and get it. The appellant was not going to participate in the
rip-off, according to Wall, but they would all meet together later that night.
[10] The
appellant testified that when Bill Wall eventually arrived with two trunks of
marijuana, Wall said that he had accidentally shot Mrs. Skolos. According to
the appellant, Wall had told him the gun went off accidentally as he and the
victim were walking back to the house from the stash but that he “just kept
shooting her” and “just lost it”.
[11] The
appellant testified that he and Wall lifted the trunks of marijuana out of
Wall’s truck and put them into a shed. The appellant also said he told Wall
that he would bury the victim’s body in a hole he had already dug for someone
else (a target in a different dispute). The appellant later went back and
retrieved the trunks after Wall had left. He testified that after burying the
victim (noting the blood on the back of her head) he covered over the hole with
debris and leaves to make the ground look unaltered. Then he returned to his
girlfriend at a motel loaded with the marijuana and cash.
[12] Bill
Wall testified at length. He denied everything. He said he never discussed
ripping off the marijuana shipment at the Skolos farm with the appellant. He
had no reason to do so. He had a profitable ongoing business relationship with
the victim and her husband.
[13] The
appellant’s girlfriend testified that on the night in question, he left their
motel room for about eight hours and returned with two trunks filled with
marijuana and a great deal of new-found money. She also led the police to one
of the two stolen trunks which the appellant had disposed of by throwing it
over an embankment. Inside this trunk, police found a plastic bag bearing the
appellant’s thumbprint. The plastic bag was identified as being of the same
type as the bag in which Myles Skolos kept his personal supply of “bud”.
II. Judicial
History
A. Supreme
Court of British Columbia (Preston J.)
[14] The
trial was long and complex, beginning with 130 days of voir dires and
motions. The Crown closed its case after calling 73 witnesses and entering 141
exhibits, including audio recordings. After an unsuccessful application for a
directed verdict on first degree murder ([2002] B.C.J. No. 2964 (QL), 2002 BCSC
1387), the defence called nine witnesses, including the accused. The trial
judge distributed copies of his written charge to each of the jurors. His
instructions on the s. 231(5) (e) confinement issue read in part as
follows:
The murder only becomes first degree murder if it took place while
[the victim] was unlawfully confined or while [the accused] was attempting to
unlawfully confine her.
If you find that the restraint on [the victim’s]
movements was only momentary and took place only as an integral part of the
robbery then the unlawful confinement will not be enough to raise second degree
murder to first degree murder. If the restraint is more than momentary and was
characterized by the domination of [the victim] by [the accused], then the
unlawful confinement is sufficient to raise second degree murder to first
degree murder.
[15] During
their deliberations the jurors sought clarification about the confinement
necessary to classify murder as first degree murder, to which the trial judge
replied:
As you can
see, robbery involves an act of violence or threat of violence toward the
person from whom something is stolen. Some robberies involve only a momentary
restriction on the movements of the person being robbed. The taking of a wallet
at knifepoint would be an example if the matter was over in a matter of
seconds.
.
. .
If there is exercise of domination of the victim by the robber and
consequent restriction of the victim’s movements which is more than momentary
then the offence of unlawful confinement would be made out.
As stated, the
jury returned a verdict of first degree murder.
B. British
Columbia Court of Appeal (2007), 217 C.C.C. (3d) 1, 2007 BCCA 82
(1) Reasons of Newbury J.A. (Concurring in the Result)
[16] Newbury
J.A. held that the evidence was capable of providing the basis for the jury’s
inferences that the victim had been killed in the course of the robbery of the
marijuana and that the appellant was in fact the killer. After reviewing the
authorities she concluded that “the trial judge’s instruction to the jury on
the issue of confinement was correct . . . . It was open to the jury to
conclude, from the evidence before them, that [the victim] had been confined
and killed in the course of that confinement” (para. 86). Newbury J.A. differed
from her colleagues on an evidentiary question that was not pursued by the
appellant in this Court.
(2) Reasons of Hall J.A. (Kirkpatrick J.A. Concurring)
[17] Hall
J.A. considered there to be a solid basis in the evidence for the jury to
render a verdict of first degree murder, altogether aside from the appellant’s
statement to the police in January 2000 and testimony at trial. In his view,
the totality of the circumstantial evidence “ineluctably” led to the conclusion
that the appellant robbed the deceased of marijuana and killed her in the
course of confining her during the commission of that robbery.
III. Relevant
Statutory Provisions
[18]
Criminal Code,
R.S.C. 1985, c. C‑46
First Degree
Murder
231. (1) Murder is first degree murder or second degree murder.
(2) Murder is first degree murder when it is planned and deliberate.
.
. .
(5) Irrespective of whether a murder is planned and deliberate on the
part of any person, murder is first degree murder in respect of a person when
the death is caused by that person while committing or attempting to commit an
offence under one of the following sections:
(a)
section 76 (hijacking an aircraft);
(b)
section 271 (sexual assault);
(c)
section 272 (sexual assault with a weapon, threats to a third party or causing
bodily harm);
(d)
section 273 (aggravated sexual assault);
(e) section
279 (kidnapping and forcible confinement); or
(f)
section 279.1 (hostage taking).
Confinement
279. . . .
(2) Every one who, without lawful authority, confines, imprisons or
forcibly seizes another person is guilty of
(a) an
indictable offence and liable to imprisonment for a term not exceeding ten
years; or
(b) an
offence punishable on summary conviction and liable to imprisonment for a term
not exceeding eighteen months.
(3) In proceedings under this section, the fact that the person in
relation to whom the offence is alleged to have been committed did not resist
is not a defence unless the accused proves that the failure to resist was not
caused by threats, duress, force or exhibition of force.
Robbery
343. Every one commits robbery who
(a)
steals, and for the purpose of extorting whatever is stolen or to prevent or
overcome resistance to the stealing, uses violence or threats of violence to a
person or property;
(b)
steals from any person and, at the time he steals or immediately before or
immediately thereafter, wounds, beats, strikes or uses any personal violence to
that person;
(c)
assaults any person with intent to steal from him; or
(d) steals from any person while armed with an offensive weapon or
imitation thereof.
IV. Analysis
[19] Section
231(5) reflects Parliament’s sentencing policy to treat murders committed in
connection with crimes of domination as particularly blameworthy and deserving
of more severe punishment. The phrase “while committing or attempting to
commit” “requires the killing to be closely connected, temporally and causally,
with an enumerated offence”: R. v. Russell, [2001] 2 S.C.R. 804, 2001
SCC 53, at para. 43. See also R. v. Paré, [1987] 2 S.C.R. 618, at p. 632;
R. v. Luxton, [1990] 2 S.C.R. 711, at pp. 722-23; R. v. Stevens
(1984), 11 C.C.C. (3d) 518 (Ont. C.A.), at p. 541. The purpose of s. 231(5)
was described by Cory J. in R. v. Harbottle, [1993] 3 S.C.R. 306, at p.
323:
First degree murder is an aggravated form of murder and not a distinct
substantive offence. . . . It is only to be considered after the jury has
concluded that the accused is guilty of murder by causing the death of the
victim. An accused found guilty of second degree murder will receive a
mandatory life sentence. What the jury must then determine is whether such
aggravating circumstances exist that they justify ineligibility for parole for
a quarter of a century. It is at this point that [s. 231(5) ] comes into play.
The gravity of the crime and the severity of the sentence both indicate that a
substantial and high degree of blameworthiness, above and beyond that of
murder, must be established in order to convict an accused of first degree
murder. [Emphasis deleted.]
[20] The
“high degree of blameworthiness” is found in a situation “where a murder is
committed by someone already abusing his power by illegally dominating another
. . . . Parliament has chosen to treat these murders as murders in the first
degree” (Paré, at p. 633).
[21] Conduct
amounting to a violation of s. 279(2) (unlawful confinement) is one of the
“aggravating circumstances” enumerated in s. 231(5) . Robbery (s. 343) is not.
The appellant emphasizes, quite rightly, the severe consequence of applying s.
231(5) : ineligibility for parole for 25 years. Section 231(5) , he says, should
be read purposefully and textually with this drastic consequence in mind. The
appellant argues that “[t]he confinement inherent in any robbery is often
minimal and is intended only to overcome potential resistance to theft. The
definition of confinement requiring a degree of forcible restraint or
domination beyond what is incidental to any robbery is preferable”, he says,
“because it requires the trier of fact to consider the degree and nature of the
confinement during a robbery to decide whether the robber actually confined the
victim for a purpose other than facilitating theft. This ensures that
confinement incidental to any robbery will not automatically lead to a finding
of first degree murder when a murder occurs during a robbery” (Appellant’s
Factum, at para. 3 (emphasis added)). There must, he says, be evidence of
unlawful confinement “independent” of the robbery for s. 231(5) to be invoked
in this case (para. 80).
[22] If the
appellant’s argument is correct an accused would be better off having forcibly
confined, robbed and killed his victim than if he had just forcibly confined
and killed her. Such an outcome would defeat rather than promote Parliament’s
intention because it would treat a criminal wrong additional to those
listed in s. 231(5) as mitigating its effect.
[23] The
appellant points out that robbery was included as a predicate offence
for murder in s. 230 of the Criminal Code which purported, in certain
circumstances, to eliminate the requirement of proof of subjective foresight of
death, and was struck down in R. v. Martineau, [1990] 2 S.C.R. 633. His
position is that the Crown is seeking to introduce by the back door into s.
231(5) what it failed to achieve through the front door in s. 230 , namely,
making robbery a predicate offence. This line of argument, with respect, is
not persuasive. We are concerned in s. 231(5) (e) with unlawful
confinement. It is the appellant, not Parliament, who has injected robbery
into the s. 231(5) (e) argument. The question before the Court under s.
231(5) (e) is whether, in addition to murder, the necessary elements of
confinement (s. 279(2) ) have been established on the evidence.
A. Unlawful
Confinement
[24] The
authorities establish that if for any significant period of time Mrs. Skolos
was coercively restrained or directed contrary to her wishes, so that she could
not move about according to her own inclination and desire, there was unlawful
confinement within s. 279(2) : see Luxton, at p. 723; R. v. Gratton
(1985), 18 C.C.C. (3d) 462 (Ont. C.A.), per Cory J.A., at p. 475; R.
v. Tremblay (1997), 117 C.C.C. (3d) 86 (Que. C.A.), per LeBel J.A.
(as he then was), at pp. 91-92; and R. v. Mullings, 2005 CarswellOnt
3022 (S.C.J.), per Durno J., at para. 39.
[25] Some
confusion is caused by the words “forcible confinement” appearing in
parenthesis in s. 231(5) (e). The parenthetical note is not an operative
part of s. 231(5) (e) but is inserted only for ease of reference. In s.
279(2) itself, the adverb “forcibly” is used only to qualify the verb
“seizes”. It is not used to qualify either “confines” or “imprisons”. The
word “forcible” in s. 231(5) (e) adds nothing to the elements of the
offence set out in s. 279(2). What is important to note about s. 231(5) ,
however, is not only that it refers to the enumerated offences (such as s.
279(2)) but that it requires a temporal and causal relationship between the
killing and commission of the enumerated offence, as will be discussed.
B. Unlawful Confinement in Connection With
Offences Not Enumerated in Section 231(5)
[26] The
appellant’s theory of the immunizing effect of robbery is based on his reading
of the Alberta Court of Appeal’s decision in R. v. Strong (1990), 60
C.C.C. (3d) 516, where the court held that “Parliament has clearly chosen to
omit robbery from the list of offences” enumerated in what is now s. 231(5) and
[i]t cannot, therefore, have intended that the transitory restraint inherent
in the violence or threatened violence of every robbery would trigger
the section. That would be to put robbery in the list of offences in s.
[231(5)] without expressly mentioning it. [Emphasis added; p. 527.]
See also R.
v. Kingsley (1995), 105 C.C.C. (3d) 85 (Que. C.A.); R. v. Simon
(2001), 154 C.C.C. (3d) 562 (Que. C.A.), at para. 22. Although every robbery
involves an element of violence or threatened violence, the level of violence
does not always occasion confinement of the significant duration required to
satisfy s. 279(2) (see Gratton and Tremblay). Not all robberies
involve domination of the victim. Thus, not all robbery-murders will satisfy
s. 231(5) (e).
[27] Even a
confinement which satisfies s. 279(2) will not trigger s. 231(5) (e) if
it is consumed in the very act of killing. In order to trigger s. 231(5) (e),
the confinement and the murder must constitute distinct criminal acts: R.
v. Kimberley (2001), 157 C.C.C. (3d) 129 (Ont. C.A.), per Doherty
J.A., at para. 108. Thus, the issue under s. 231(5) (e) is not whether
there was confinement independent of the act of robbery but whether
there was unlawful confinement distinct and independent from the act of killing.
If, as counsel for the appellant aptly put it, “the murder and the confinement
are coextensive, then you cannot convict of first-degree” (transcript, at p.
22). His submission invoked Kimberley where it was said (at para. 108)
that if “the act of confinement and the act of killing are one and the same”
there is no basis on which the appellant could be convicted of first degree
murder under s. 231(5) (e). For example, an incompetent murderer could
take a significant amount of time to kill the victim by strangulation, but the
time would be inextricably tied up with the act of killing. However, where the
jury is satisfied that there was confinement not limited to what was
“integral to” the particular act of killing disclosed by the evidence, the
Crown has established a distinct criminal act under s. 279(2). If the jury is
satisfied that the murder was committed in the course of that confinement such
that the series of events may be characterized as a “single transaction” the
requirements of s. 231(5) (e) are met. See R. v. Kirkness, [1990]
3 S.C.R. 74, at p. 86.
[28] Proof
of robbery does not by itself trigger s. 231(5) , but nor does proof of robbery
bar or alter its application. If the offence of unlawful confinement has been
established, the fact the confinement was made even worse by an act of robbery
will not assist the accused. This approach seems to have worked well in
practice at the trial level. In R. v. Bradley (2003), 223 Nfld. &
P.E.I.R. 225, 2003 PESCTD 30, for example, the accused, on a cocaine binge,
broke into his ex-wife’s apartment and killed her with an axe. The issue was
whether the accused had committed the murder “while committing” criminal
harassment and thereby raised his criminal act to first degree murder under s.
231(6). The court held that the accused’s entry into the doorway (while
“growling” with his arms over his head) constituted criminal harassment,
especially in light of the couple’s “highly abusive relationship” in which he
had previously stalked and threatened to kill her. The harassment was separate
from the murder (para. 114) while still forming part of the same transaction
with the killing (para. 109).
[29] In R.
v. Sandhu, 2005 CarswellOnt 8306 (S.C.J.), on the other hand, a number of
accused individuals surrounded and killed the victim in a sudden attack,
lasting between 30 and 45 seconds. The accused brought a motion for a directed
verdict of acquittal on the charge of first degree murder by virtue of the
unlawful confinement. The court agreed and granted the motion, holding that
there was no evidence of two discrete acts, only a killing “carried out in a
rapid, efficient and collaborative manner” (para. 21). Although the accused
individuals did confine the victim, they did so only as an incident of the
attack which caused his death. The court’s analysis is consistent with the
rationale of s. 231(5) set out in Paré and Kimberley. If no extra
domination is involved in the act of confinement, then it cannot be said that
the accused confined the victim and then exploited that domination by an
act of killing. Only one episode of domination existed, created by the act of
killing, which at the same time confined the victim. In such a case, the
rationale of s. 231(5) is absent.
C. Expanding
the Dictum in R. v. Strong
[30] The
appellant urges the Court to take the doctrinal peg provided by Strong
and the cases that have followed it to exclude from s. 231(5) not only unlawful
confinement “inherent” in “every robbery” but also confinement inflicted for
“purposes” of committing other offences not enumerated in s.
231(5) , or “ancillary” to a non-enumerated offence (Factum, at paras. 59, 72
and 79), a proposition which takes in much of the Criminal Code . In the
end, as stated earlier, his proposition is that there must be evidence of “an
unlawful confinement independent of the non-predicate offence” (para. 80
(emphasis added)).
[31] Such
an approach was rejected by the B.C. Court of Appeal in R. v. Gourgon
(1979), 19 C.R. (3d) 272, per McFarlane J.A., 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”. The interpretation that confinement for the one purpose of
robbery is excluded cannot be supported. [Emphasis added.]
It was also
rejected by the Ontario Court of Appeal in R. v. Dollan (1982), 65
C.C.C. (2d) 240, leave to appeal refused, [1982] 1 S.C.R. vii, where Zuber J.A.
said, at p. 245, that
[i]t is of no consequence that the unlawful confinement may be incidental
to the commission of some other crime as long as there has been an unlawful
confinement contrary to [s. 279(2)] . . . .
It was rejected
again by the B.C. Court of Appeal in R. v. Pitre (1991), 2 B.C.A.C. 186,
per Wood J.A., at para. 29:
. . . there was evidence upon which a properly instructed jury acting
reasonably could find that Dr. Piderman was confined when the assault which
caused his death was inflicted. Whether that confinement was incidental to a
robbery or not is irrelevant.
The Ontario
Court of Appeal also rejected the approach in Kimberley, per Doherty
J.A., at para. 103:
The section itself, however, contains no such limitation. It speaks of
offences against s. 279. Unlawful confinement is one of the offences created
by that section. There is nothing in s. 231(5) (e) which suggests that
unlawful confinements that are incidental to or in furtherance of other crimes
are not encompassed by the section.
As well, the
Saskatchewan Court of Appeal rejected it in R. v. Hein (2004), 189
C.C.C. (3d) 381, per Gerwing J.A., at para. 27:
. . . the victim’s mobility was taken away and she was rendered
helpless. This was sufficient for the judge to direct as he did on the
possibility of unlawful confinement leading to first degree murder. We find no
error in his charge.
See also R.
v. Johnson (2002), 166 C.C.C. (3d) 44 (Ont. C.A.), at para. 39.
[32] The
proposition that a period of confinement attributable to the commission of a
non-enumerated offence should be subtracted from s. 231(5) consideration is
again raised here and should again be rejected. As indicated at the outset, I
agree with the logic in the foregoing line of cases that the fact the accused
confined the victim for the purpose of committing a non-enumerated offence does
not alter the operation of s. 231(5) (e).
D. The
Temporal and Causal Connection
[33] It
must also be established, of course, that the murderer did the killing “while
committing or attempting to commit” the enumerated offence. As pointed out in Paré,
this does not require “an exact coincidence” in timing of the murder and the
predicate offence, although there must be a “close temporal and causative link”
(Paré, at p. 629). As Wilson J. expressed the point in Paré, at
p. 633:
. . . it is the continuing illegal domination of the victim which gives
continuity to the sequence of events culminating in the murder. The murder
represents an exploitation of the position of power created by the underlying
crime and makes the entire course of conduct a “single transaction”. This
approach, in my view, best gives effect to the philosophy underlying s. [231(5)].
[34] The dictum
is illustrated by the facts of Paré itself where the accused
murdered a young boy two minutes after indecently assaulting him. The killing
was motivated by fear that the child would tell his mother about the incident.
The killing and the sexual assault were linked temporally (a single continuing
transaction) and causally (fear of disclosure of the sexual assault led to the
killing). Equally, in the present case it was open to the jury to conclude
that the offences were linked temporally and causally.
E. Summary
of the Proper Interpretation of Section 231(5) (e)
[35] The
jurisprudence therefore establishes that second degree murder will be elevated
to first degree murder where the murder and the predicate offence (in this case
unlawful confinement) are linked together both causally and temporally in
circumstances that make the entire course of conduct a single transaction (Paré).
The temporal-causal 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 (Paré, at p. 633, and Johnson, at para. 39). If this
is established the fact that along the way other offences are committed is no
bar to the application of s. 231(5) .
V. Application
to the Facts
[36] In his
January 19, 2000 statement to the police the appellant had underlined the
planned use of a gun in this robbery:
The plan was to go with guns, to get control of him eh, like, like I had
said when you go and do one of these robberies you got to get control of the
people and the easiest way is with a gun, you know you can control them from a
hundred and fifteen feet, ah, most people are really intimidated and scared by
it. . . . [Appellant’s Record, at p. 9004]
[37] In my
view, it was open to the jury to conclude from the appellant’s evidence that he
buried the victim and noted blood on the back of her head, that a gunshot was
the source of the wound and the cause of her death, and that a gun played a
role in the appellant achieving a position of dominance over her to locate and
transfer the marijuana to his truck. The purpose of the confinement (robbery) did
not detract from the fact that she was confined at gunpoint during a period
which, given the distance of 250 to 300 metres through the snow from the stash
to the house, must have been of significant duration. On the other hand, the
act of killing, by a gunshot wound to the head, must have been almost
instantaneous. There was ample evidence to support the requisite elements of a
confinement within the meaning of s. 279(2) quite independent of the killing.
[38] It was
open to the jury to conclude that the appellant, having got his hands on the
marijuana, chose to exploit the position of dominance over Mrs. Skolos that
resulted from her confinement at gunpoint, by killing her, thereby eliminating
a potential witness. This provided a sufficient temporal and causal connection
to make these sordid events a “single transaction” within the meaning of Paré.
[39] The
trial judge instructed the jury that the Crown must establish unlawful
confinement that was not “an integral part of the robbery”. This was
favourable to the appellant, as it suggested that confinement “integral” to the
robbery as well as confinement “integral” to the killing would not trigger s.
231(5) (e).
[40] The
jury reached its verdict on the basis of an instruction that was free of
reversible error and I agree with the B.C. Court of Appeal that its verdict
should be upheld.
VI. Disposition
[41] The
appeal is dismissed.
Appeal dismissed.
Solicitor for the appellant: Legal Services Society of
British Columbia, Vancouver.
Solicitor for the respondent: Attorney General of British
Columbia, Vancouver.