Monday, August 12, 2013

Constructive first degree murder arising out of unlawful confinement or attempted unlawful confinement under Criminal Code s. 231(5)(e)

R. v. Parris, 2013 ONCA 515 holds:

[44]       First, to establish first degree murder under s. 231(5)(e), the Crown must prove each of five essential elements beyond a reasonable doubt:

                             i.        that the accused unlawfully confined or attempted to unlawfully confine the victim or another person;

                            ii.        that the accused murdered the victim;

                           iii.        that the accused participated in the murder of the victim in such a way that the accused was a substantial cause of the victim's death; 

                          iv.        that no intervening act of somebody else resulted in the accused no longer being substantially connected to the victim's death; and

                            v.        that the crimes of unlawful confinement, whether completed or attempted, and murder were part of the same transaction, in that the victim's death was caused while the accused was confining or attempting to unlawfully confine the victim or another as part of the same series of events. 

R. v. Harbottle, [1993] 3 S.C.R. 306, at p. 325.

[45]       For discussion purposes, the essential elements of constructive first degree murder under s. 231(5)(e) may be summarized as the

                             i.        predicate offence;

                            ii.        murder;

                           iii.        substantial cause;

                          iv.        no intervening act; and

                            v.        same transaction

requirements. In this case, the requirements in issue are those of predicate offence, substantial cause, and same transaction.

[46]       Second, the predicate offence requirement under s. 231(5)(e) involves the offence of unlawful confinement or the preliminary crime of attempted unlawful confinement. Unlawful confinement requires the use of physical restraint, contrary to the wishes of the person restrained, but to which that person submits unwillingly, thereby depriving that person of his or her liberty to move from one place to another: R. v. Luxton, [1990] 2 S.C.R. 711, at p. 723. The authorities establish that if for any significant period of time, the victim was coercively restrained or directed contrary to his or her wishes, so that she or he could not move about according to his or her own inclination and desire, the victim has been unlawfully confined: R. v. Pritchard, 2008 SCC 59, [2008] 3 S.C.R. 195, at para. 24.

[47]       Unlawful confinement, like its aggravated form, kidnapping, is a continuing offence, but one that is complete when the victim is restrained against his or her will. The purpose of the confinement is irrelevant: R. v. Kimberley (2001), 56 O.R. (3d) 18 (C.A.), at para. 107.  Further, for the purposes of invoking, s. 231(5)(e) through satisfaction of the "predicate offence" requirement, it is immaterial that the unlawful confinement of the victim has not been completed. The provision is invoked equally where an accused attempts to unlawfully confine the victim or another person.

[48]       Third, the "substantial cause" requirement in s. 231(5)(e) requires the Crown to prove that the accused played a very active role – usually a physical role – in the killing. The accused's actions must form an essential, substantial, and integral part of the killing of the victim: Harbottle, at pp. 323-324. This requirement might be better described as reflecting an enhanced or more demanding degree of participation in the killing than a requirement of a causation: R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 61; R. v. Ferrari, 2012 ONCA 399, 287 C.C.C. (3d) 503, at paras. 54 and 57.

[49]       As Harbottle itself illustrates, the "substantial cause" requirement may be met where the conduct of an individual accused does not constitute the factual cause of the victim's death, provided what the accused does falls fairly within the requirement of "an essential, substantial and integral part of the killing" (p. 308).

[50]       Fourth, the "same transaction" requirement refers to the relationship between the predicate offence and the killing of the deceased that amounts to murder. This requirement is not met where the predicate offence has been completed and the deceased killed to facilitate the offender's flight: R. v. Stevens (1984), 11 C.C.C. (3d) 518 (Ont. C.A.), at p. 541.

[51]       The "same transaction" requirement insists that the Crown 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: Pritchard, at para. 3; Stevens, at p. 541; R. v. Paré, [1987] 2 S.C.R. 618, at p. 632. The "same transaction" requirement does not demand that the killing (murder) and predicate offence occur simultaneously, only that they be part of one continuous sequence of events forming a single transaction: Paré, at p. 632.

[52]       The phrase "while committing or attempting to commit" in s. 231(5) requires that the killing be closely connected, temporally and causally, with the enumerated offence: Pritchard, at paras. 19 and 25; R. v. Russell, 2001 SCC 53, [2001] 2 S.C.R. 804, at para. 43; Paré, at p. 632; and Luxton at pp. 722-723.  The murder and the predicate offence, here unlawful confinement, must be linked together, both temporally and causally, in circumstances that make the entire course of conduct a single transaction: Pritchard, at para. 35. The essential temporal-causal connection is established where the unlawful confinement creates a "continuing illegal domination of the victim" that provides an accused with a position of power that he or she chooses to exploit to murder the victim: Pritchard, at para. 35.

[53]       To satisfy s. 231(5)(e), the confinement and the murder must constitute distinct criminal acts, that is to say, the act of confinement and the act of killing must not be one and the same: Pritchard, at para. 27; Kimberley, at para. 108; and R. v. Johnson (2002), 166 C.C.C. (3d) 44 (Ont. C.A.), at para. 39. The "same transaction" requirement may be met even where the person killed and the person confined are not the same, provided the killing is closely connected, temporally and causally, with an enumerated offence: Russell, at para. 43.

[54]       Finally, where two or more persons are alleged to be involved in a murder that is said to warrant classification as first degree murder under s. 231(5)(e), proof of their liability will depend on the manner of their participation, whether as co-perpetrators or s. 21 parties: Ferrari, at para. 54. The trial judge's instructions should set out the findings the jury would have to make to render the participant liable to conviction of first degree murder: Ferrari, at para. 98; and R. v. Almarales, 2008 ONCA 692, 237 C.C.C. (3d) 148, at paras. 82-84.w

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