Sundman v. R.,2021 BCCA 53, 2022 SCC 31 (39569)
“The accused and the victim were drug dealers with a mutual animosity. On the day of the victim’s murder, the accused unlawfully confined him in a moving pickup truck and repeatedly assaulted him by hitting him with a handgun. The victim jumped from the truck when it slowed to make a turn, but was then chased on foot by the accused and two accomplices. When the victim ran for his life, the accused shot him at least three times, but did not manage to kill him. As he lay wounded, the victim was shot and killed at close range by one of the accomplices. The accused was charged with first degree murder. The Crown argued that the accused was guilty of first degree murder because the murder was planned and deliberate. Alternatively, the Crown argued that, because he murdered the victim while committing the offence of unlawful confinement, the accused was guilty of first degree murder under s. 231(5)(e) of the Criminal Code. The trial judge was not satisfied that the murder was planned and deliberate. He also found that although the victim was unlawfully confined in the truck, he had managed to escape his confinement by jumping from the truck; accordingly, because of the brief gap in time between when the victim was confined in the truck and when he was killed, the accused did not murder him while committing the offence of unlawful confinement. The accused was therefore acquitted of first degree murder but convicted of second degree murder. The Court of Appeal unanimously allowed the Crown’s appeal, set aside the conviction of second degree murder, and substituted a conviction of first degree murder. It held that the victim was still unlawfully confined when he jumped from the truck and was chased before being killed, and accordingly, the accused murdered the victim while committing the offence of unlawful confinement. It also held that the victim’s unlawful confinement in the truck was temporally and causally connected to his murder, making the entire course of conduct a single transaction.”
The SCC (9:0) dismissed the appeal.
Justice Jamal wrote as follows (at paras. 5, 29-31, 35, 39, 40, 53):
“…Mr. McLeod was still unlawfully confined when he escaped from the truck and ran for his life. Even though Mr. McLeod was not physically restrained outside the truck, he continued to be coercively restrained through violence, fear, and intimidation. He was deprived of his liberty and was not free to move about according to his inclination and desire. The appellant then murdered him while unlawfully confining him. These two distinct criminal acts were part of a continuous sequence of events forming a single transaction. They were close in time and involved an ongoing domination of Mr. McLeod that began in the truck, continued when he escaped from the truck and ran for his life, and ended with his murder. The appellant is therefore guilty of first degree murder under s. 231(5)(e) of the Criminal Code.
A few years after deciding Paré, this Court in Harbottle, at p. 325, distilled s. 231(5) (then s. 214(5) of the Criminal Code) into five elements:
(1) [T]he accused was guilty of the underlying crime of domination or of attempting to commit that crime;
(2) the accused was guilty of the murder of the victim;
(3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim;
(4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and
(5) the crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of events.
(See also Magoon, at paras. 17 and 63.)
Section 231(5) thus requires (1) an underlying crime of domination; (2) murder; (3) substantial cause; (4) no intervening act; and (5) the same transaction (Parris, at para. 45; McGregor, at para. 61).
In some cases, this Court has applied the “single transaction” test under s. 231(5) by asking whether the underlying offence of domination and the murder have a close “temporal and causal” connection (see Paré, at pp. 629 and 634; Pritchard, at paras. 19, 25, 33-35 and 38; Russell, at paras. 43 and 46-47).
I do not read this Court’s decisions as suggesting that the “single transaction” test articulated in Stevens and the temporal-causal connection approach involve different inquiries. They are simply different ways of addressing the “same transaction” element. These two approaches have been used interchangeably in our jurisprudence.
Accordingly, properly applied, the single transaction test and temporal‑causal connection approach involve the same inquiry and will result in the same conclusion. When a single transaction is found, there will necessarily be a temporal‑causal connection. Likewise, when a temporal-causal connection is found, there will necessarily be a single transaction.
Finally, this Court has ruled that the underlying offence of domination and the killing must involve two distinct criminal acts (Pritchard, at para. 27, citing Kimberley, at para. 108, per Doherty J.A.; Magoon, at para. 74; see also Manning and Sankoff, at pp. 961-62). The underlying offence cannot be “consumed in the very act of killing”; in other words, the underlying offence and the killing must not be one and the same (Pritchard, at para. 27). If there is only one criminal act, it cannot be said that the offender exploited the domination inherent in the underlying offence with the act of killing (para. 29). In such cases, the heightened moral blameworthiness required for first degree murder is absent.
In conclusion — and to state the obvious — if the appellant had shot and killed Mr. McLeod when he was unlawfully confined in the truck, the appellant would unquestionably be found to have murdered Mr. McLeod “while committing” the offence of unlawful confinement. As a matter of law and common sense, Mr. McLeod’s brief escape from the truck cannot mitigate the appellant’s crime. On any sensible view, the appellant’s moral blameworthiness cannot be considered to be lower simply because Mr. McLeod managed to jump from a moving truck and was running for his life when he was executed just moments later. In both cases, the appellant’s moral blameworthiness is exceptionally high; in both cases, it is equally deserving of “a societal denunciation of those offenders who choose to exploit their position of dominance and power to the point of murder” (Luxton, at p. 723).”