R. v. Pritchard, 2008 SCC 59, [2008] 3 SCR 195

                                                 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.

______________________________

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.