R. v. Pritchard (D.M.), (2008) 381 N.R. 67 (SCC)

• Judge: McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 18, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 381 N.R. 67 (SCC);2008 SCC 59

R. v. Pritchard (D.M.) (2008), 381 N.R. 67 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.R. TBEd. OC.065

David Mostyn Pritchard (appellant) v. Her Majesty The Queen (respondent)

(31970; 2008 SCC 59; 2008 CSC 59)

Indexed As: R. v. Pritchard (D.M.)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

October 30, 2008.

Summary:

The accused was convicted of a murder which occurred during the course of a robbery. The jury accepted the Crown's argument that s. 231(5)(e) of the Criminal Code applied to raise the murder from second to first degree because the murder occurred in the course of an unlawful confinement of the victim contrary to s. 279(2). The accused appealed his conviction.

The British Columbia Court of Appeal, in a decision reported 238 B.C.A.C. 1; 393 W.A.C. 1, dismissed the appeal. The accused appealed again, but raised the issue of the application by the jury of s. 231(5)(e) to elevate the murder to first degree murder.

The Supreme Court of Canada dismissed the appeal. The jury was entitled to return a verdict of first degree murder.

Criminal Law - Topic 1265.1

Murder - Jury charge - First degree murder - [See all Criminal Law - Topic 1269 ].

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - Section 231(5) of the Criminal Code provided that murder was first degree murder when the death was caused by the accused committing or attempting to commit an offence under certain enumerated sections including "(e) section 279 (kidnapping and forcible confinement)" - Robbery (i.e., s. 343) was not enumerated - The Supreme Court of Canada rejected the notion that proof that a robbery occurred automatically barred the application of s. 231(5) because robbery was not an enumerated offence - The court held that the issue under s. 231(5) was whether there was unlawful confinement distinct and independent from the act of killing, rather than from robbery - If the jury was satisfied that there was confinement not limited to what was "integral to" the particular act of killing disclosed by the evidence, then the Crown established a distinct criminal act under s. 279(2) - If the jury was satisfied that the murder was committed in the course of that confinement such that the series of events could be characterized as a "single transaction" the requirements of s. 231(5)(e) were met - Proof of robbery did not by itself trigger s. 231(5), but nor did proof of robbery bar or alter its application - If the offence of unlawful confinement was established, the fact the confinement was made even worse by an act of robbery would not assist the accused - The court stated that it must also be established that the murderer did the killing "while committing or attempting to commit" the enumerated offence - That did not require "an exact coincidence" in timing of the murder and the predicate offence, although there had to be a "close temporal and causative link" - See paragraphs 19 to 35.

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - Section 231(5) of the Criminal Code provided that murder was first degree murder when the death was caused by the accused committing or attempting to commit an offence under certain enumerated sections including "(e) section 279 (kidnapping and forcible confinement)" - The Supreme Court of Canada interpreted s. 235(1)(e), summing up as follows: "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)" - See paragraph 35.

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - The accused was convicted of murder which occurred during the course of a robbery (i.e., during a marijuana "rip off" at the victim's remote farm) - The jury applied s. 231(5)(e) of the Criminal Code to elevate the murder from second to first degree because it was committed during an unlawful confinement contrary to s. 279(2) - The accused appealed - The Supreme Court of Canada dismissed the appeal - The court held that 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 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 (robbery) did not detract from the fact that the victim was confined at gunpoint for a period 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 - Further, it was open to the jury to conclude that the accused, having got his hands on the marijuana, chose to exploit the position of dominance over the victim 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 R. v. Paré (SCC) - The jury reached its verdict on the basis of an instruction that was free of reversible error - See paragraphs 36 to 41.

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - Section 231(5) of the Criminal Code provided that murder was first degree murder when the death was caused by the accused committing or attempting to commit an offence under certain enumerated sections including "(e) section 279 (kidnapping and forcible confinement)" - The Supreme Court of Canada stated that "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 ..." - See paragraph 25.

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - The accused was charged with murder which occurred during the course of a robbery - The Crown argued that s. 231(5)(e) of the Criminal Code raised murder from second degree to first degree because it was committed in the course of an unlawful confinement of the victim by the accused contrary to s. 279(2) - Section 279(2) was one of the "aggravating circumstances" enumerated in s. 231(5) which raised second degree murder to first degree murder - Robbery was not listed - The jury accepted the Crown's argument and returned a verdict of first degree murder - The accused appealed, arguing that there had to be evidence of unlawful confinement "independent" of the robbery for s. 231(5) to be invoked in his case - This he argued would ensure that confinement incidental to any robbery did not automatically lead to a finding of first degree murder when a murder occurred during a robbery - The Supreme Court of Canada stated that "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" - See paragraphs 21 and 22.

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - The accused was charged with murder which occurred during the course of a robbery - The Crown argued that s. 231(5)(e) of the Criminal Code raised the murder from second degree to first degree because it was committed in the course of an unlawful confinement of the victim by the accused contrary to s. 279(2) - Section 279(2) was one of the "aggravating circumstances" enumerated in s. 231(5) which raised second degree murder to first degree murder - Robbery was not listed - The jury accepted the Crown's argument and returned a verdict of first degree murder - The accused appealed, arguing "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 ..." (SCC 1990) - He claimed that the Crown was 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 - The Supreme Court of Canada stated that "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" - See paragraph 23.

Criminal Law - Topic 1269

Murder - First degree murder - What constitutes - The accused was charged with murder which occurred during the course of a robbery - The Crown argued that s. 231(5)(e) of the Criminal Code raised the murder from second degree to first degree because it was committed in the course of an unlawful confinement contrary to s. 279(2) - Section 279(2) was one of the "aggravating circumstances" enumerated in s. 231(5) which raised second degree murder to first degree murder - Robbery was not enumerated - The jury accepted the Crown's argument and returned a verdict of first degree murder - The accused appealed, arguing, based on R. v. Strong (Alta. C.A. 1990), that there had to be an unlawful confinement independent of the non-predicate offence (i.e., independent of the robbery) to invoke 231(5) - He argued further that the "doctrinal peg" provided in Strong should be expanded 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 - The Supreme Court of Canada (per Binnie, J.), noted that this proposition would take in much of the Criminal Code - Binnie, J., stated that "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)" - See paragraphs 26 to 32.

Criminal Law - Topic 1271

Murder - During commission of other offences - General principles - [See all Criminal Law - Topic 1269 ].

Criminal Law - Topic 1450.5

Unlawful confinement, imprisonment or forcible seizure - Jury charge - [See first, second and third Criminal Law - Topic 1269 ].

Statutes - Topic 1785

Interpretation - Intrinsic aids - Parenthetical notes - [See fourth Criminal Law - Topic 1269 ].

Words and Phrases

Forcible confinement - The Supreme Court of Canada discussed the meaning of this phrase as it appeared in a parenthetical note in s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46 - See paragraph 25.

Cases Noticed:

R. v. Russell (D.), [2001] 2 S.C.R. 804; 274 N.R. 247; 150 O.A.C. 99; 2001 SCC 53, refd to. [para. 19].

R. v. Paré, [1987] 2 S.C.R. 618; 80 N.R. 272; 11 Q.A.C. 1, refd to. [para. 19].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, refd to. [para. 19].

R. v. Stevens (1984), 2 O.A.C. 239; 11 C.C.C.(3d) 518 (C.A.), refd to. [para. 19].

R. v. Harbottle (J.), [1993] 3 S.C.R. 306; 157 N.R. 349; 66 O.A.C. 35, refd to. [para. 19].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321, refd to. [para. 23].

R. v. Gratton (1985), 7 O.A.C. 190; 18 C.C.C.(3d) 462 (C.A.), refd to. [para. 24].

R. v. Tremblay (1997), 117 C.C.C.(3d) 86 (Que. C.A.), refd to. [para. 24].

R. v. Mullings, 2005 CarswellOnt 3022 (Sup. Ct.), refd to. [para. 24].

R. v. Strong (1990), 111 A.R. 12; 60 C.C.C.(3d) 516 (C.A.), refd to. [para. 26].

R. v. Kingsley (1995), 105 C.C.C.(3d) 85 (Que. C.A.), refd to. [para. 26].

R. v. Simon (2001), 154 C.C.C.(3d) 562 (Que. C.A.), refd to. [para. 26].

R. v. Kimberley (C.M.) et al. (2001), 151 O.A.C. 42; 157 C.C.C.(3d) 129 (Ont. C.A.), refd to. [para. 27].

R. v. Kirkness, [1990] 3 S.C.R. 74; 116 N.R. 81; 69 Man.R.(2d) 81, refd to. [para. 27].

R. v. Bradley (J.B.) (2003), 223 Nfld. & P.E.I.R. 225; 666 A.P.R. 225; 2003 PESCTD 30, refd to. [para. 28].

R. v. Sandhu (A.G.) et al., [2005] O.T.C. 1166; 2005 CarswellOnt 8306 (Sup. Ct.), refd to. [para. 29].

R. v. Gourgon (1979), 19 C.R.(3d) 272 (B.C.C.A.), refd to. [para. 31].

R. v. Dollan (1982), 65 C.C.C.(2d) 240 (Ont. C.A.), leave to appeal refused [1982] 1 S.C.R. vii; 42 N.R. 351, refd to. [para. 31].

R. v. Pitre (1991), 2 B.C.A.C. 186; 5 W.A.C. 186 (C.A.), refd to. [para. 31].

R. v. Hein (J.) et al. (2004), 254 Sask.R. 298; 336 W.A.C. 298; 189 C.C.C.(3d) 381 (C.A.), refd to. [para. 31].

R. v. Johnson (J.) (2002), 161 O.A.C. 153; 166 C.C.C.(3d) 44 (C.A.), refd to. [para. 31].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 231(1), sect. 231(2), sect. 231(5), 231(5)(e), sect. 279(2), sect. 279(3), sect. 343 [para. 18].

Counsel:

Richard C. Gibbs, Q.C., and Rod H.D. Holloway, for the appellant;

Trevor Shaw and Kathleen M. Ker, for the respondent.

Solicitors of Record:

Legal Services Society of British Columbia, Vancouver, B.C., for the appellant;

Attorney General of British Columbia, Vancouver, B.C., for the respondent.

This appeal was heard on April 18, 2008, by McLachlin, C.J.C., Binnie, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, by Binnie, J., on October 30, 2008.