In a recent Supreme Court of Canada decision, R. v. Sundman, the accused was found to have murdered and forcibly confined their victim, despite the victim briefly escaping physical confinement. To determine whether the killing qualified as first degree murder, the Court examined the terms “unlawful confinement” and “while committing” under the Criminal Code.
What circumstances can result in a first degree murder conviction?
For murder to be considered “first degree,” it must be planned and deliberate. However, committing murder alongside certain other serious offences can also result in a first degree murder conviction. Section 231(5) of the Criminal Code states:
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:
- section 76 (hijacking an aircraft);
- section 271 (sexual assault);
- section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
- section 273 (aggravated sexual assault);
- section 279 (kidnapping and forcible confinement);
- section 279.1 (hostage taking).
First vs. second degree murder in Canada
All murder that does not fit one of the two requirements for first degree murder is automatically classified as second degree murder. The difference between the two is critical since the former carries a more severe sentence: life imprisonment without the possibility of parole for 25 years.
However, the line between the two types of murder can sometimes be blurred in cases where it is unclear if multiple crimes occurred simultaneously or separately. R. v. Sundman involved consideration of the terms “unlawful confinement” and “while committing” when determining if murder qualifies as being in the first degree.
Victim gunned down after briefly escaping confinement in truck
The Sundman case, which originates from British Columbia, pertains to the murder of an individual confined by the accused and then shot. The two individuals, the victim and the accused, were both drug dealers who had several disputes involving territory and drug debts. The two were driving in a truck with a number of other drug dealers when conflict arose between the two. Amid the conflict, the accused hit the victim in the head with a handgun and refused to let him leave the truck.
When the truck slowed down on a turn, the victim jumped out and ran. The accused and his two accomplices followed him. The accused first shot him three times, then the accused’s accomplice shot the victim twice more. The accused and his accomplices hid the now-deceased victim’s body in an isolated area. About a month later, the accused’s girlfriend, another passenger in the truck on the day of the murder, helped the police find the victim’s body.
Trial judge found no first degree murder as crimes not part of single transaction
In the initial trial, the judge found that the accused committed second degree murder as the crime was not planned and deliberate. The trial judge determined the circumstances of first degree murder under section 231(5) of the Criminal Code did not apply as the unlawful confinement ended when the victim escaped the truck. Accordingly, the judge found the two crimes (the confinement and the murder) were not committed in a single transaction.
SCC affirms BC Court of Appeal’s finding of first degree murder
Upon appeal by the Crown, the British Columbia Court of Appeal found that the trial judge committed two legal errors:
- Restricting the definition of unlawful confinement to “physically restrained in an enclosed space”; and
- Concluding that the murder was not committed “while committing” the unlawful confinement” because there was a short gap in time between the two.
The Supreme Court of Canada agreed with the Court of Appeal that the victim remained unlawfully confined after escaping the truck. While the victim was no longer physically confined when he was shot, “the victim remained coercively restrained through acts of violence, fear, and intimidation.”
The Supreme Court also agreed that the murder occurred “while [the accused was] committing” unlawful confinement, resulting in a first degree murder charge. Further, the Court stated that even if the confinement ended when the victim escaped the truck, the two crimes would still be part of a “single transaction” as they were temporally and casually connected. A brief time gap between the two crimes does not mean they were not part of the same transaction.
Brief escape does not stop murder from becoming first degree
The Supreme Court further explained its interpretation of “unlawful confinement.” They highlighted that the definition in the Criminal Code is not limited to physical confinement but includes coercive and psychological confinement. If an individual escapes confinement for a short time before being murdered, it does not separate the two crimes. Instead, as both crimes are still part of a single series of events, the killing falls within the category of first degree murder.
Barrison Law Provides Skilled Manslaughter & Murder Criminal Defence Services
Barrison Law understands the complexity of the rules of evidence and the serious legal consequences and social stigma that can arise when evidence is handled inappropriately. Our team of criminal defence lawyers is experienced in defending clients against charges of murder and manslaughter, drug offences, and sexual offences. We help accused individuals at all stages of the criminal justice process, from bail hearings to trials.
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