David Mostyn Pritchard v. Her Majesty the Queen: Statutory Interpretation Gone Wild
The Supreme Court of Canada (“SCC”) has granted leave to appeal in David Mostyn Pritchard v Her Majesty the Queen. Mr. Pritchard appealed the decision of the British Columbia Court of Appeal (“BCCA”), which upheld his first degree murder conviction. On the basis of the appellant’s arguments on appeal, and the ways in which those arguments were easily overturned by the BCCA, it appears likely that the SCC will also dismiss the appeal. The issue in Pritchard is a classic case of statutory misinterpretation, in which too much has been read into a clearly worded Criminal Code, RSC 1985, c C-46 [Code] provision.
After a lengthy trial, the jury in Mr. Pritchard’s case returned a verdict of guilty for the first degree murder of Pirkko Skolos. The Crown’s case was built largely on circumstantial evidence, as the body of Mrs. Skolos has not been found and there was no physical evidence as to how she died. While the circumstantial evidence against Mr. Pritchard was voluminous, the crux of the Crown’s case was a particular statement made by Mr. Pritchard to the RCMP. Mr. Pritchard said that on the night of the incident in question, his friend Bill Wall, with whom he had been planning a “drug rip” at Mr. and Mrs. Skolos’ farm, told Mr. Pritchard that he had shot Mrs. Skolos accidentally in the course of a robbery. Mr. Pritchard said that he offered to bury the body for Mr. Wall, though the burial site was never located. The Crown adduced the exculpatory parts of this statement to show that Mr. Pritchard had fabricated evidence in order to mislead the police and the jury.
The trial judge allowed for the possibility of a finding of murder in the course of confinement or attempted confinement of Mrs. Skolos as set out in s. 231(5)(e) of the Code. The trial judge reasoned that if Mr. Prichard’s version of events was to be believed, or raised a reasonable doubt, then he would be acquitted. However, the jury could have believed Mr. Wall when he claimed to have nothing to do with the robbery; instead, they could have found that Mr. Pritchard substituted Mr. Wall for himself in the narrative in order to escape punishment for the crime. The trial judge believed that this option was open for the jury based on the evidence led by the Crown; the jury could infer from this and from the other evidence that Mrs. Skolos’ movements were directed by Mr. Pritchard under armed threat, and that while confined, she was killed.
On the basis of the confinement issue, along with the circumstantial evidence, Mr. Pritchard was convicted. The defence then submitted on appeal that the jury reached an unreasonable verdict due to three errors in the trial judge’s charge to the jury, including the trial judge’s incorrect instruction to the jury on the meaning of “confinement” in section 279 of the Code. The BCCA found that the trial judge did not err in any of the ways put to the court, including the instruction on the confinement section of the Code; cthe confinement instruction is now the sole question put to the SCC on appeal. As such, I will only summarize the BCCA’s findings under that issue; the entire appeal can be found here.
Section 231(5)(e) of the Code reads:
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: […] (e) section 279 (kidnapping and forcible confinement).
Section 279 is as follows:
2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of:
(a) an indictable offence …
The trial judge clarified that forcible confinement in section 231(5)(e) of the Code refers to the offence of unlawful confinement at section 279. The judge instructed the jury that if they found that the restraint on Mrs. Skolos’ movements was momentary, then the unlawful confinement would not be enough to raise second degree murder to first degree murder, which is the charge specified in section 231(5)(e). However, if the restraint was more than momentary and was characterized by the domination of Mrs. Skolos by Mr. Pritchard, then the unlawful confinement was sufficient to raise the murder to first degree.
The appellant submitted to the BCCA that this instruction left the jurors with the impression that only a momentary restraint or confinement could escape the ambit of section 231(5)(e), and that the primary issue they were instructed to consider was the length of the confinement rather than the nature and extent of the force and domination imposed on the victim. The appellant argued that by using the trial judge’s test, the jury could have found that Mr. Pritchard had confined Mrs. Skolos simply by virtue of conducting a robbery, regardless of the degree of force used by the assailant. According to 231(5)(e), such a finding would result in a charge of first degree murder. The appellant asserted that this jury instruction was erroneous.
The BCCA rejected the appellant’s argument on this issue because he depended on a highly criticized case as the only support for the argument that the trial judge erred. The appellant relied on the contentious R v Strong, 1990 ABCA 327 [Strong] to show that not all confinements in the course of a deadly robbery trigger a first degree murder charge, and that more specific instructions as to the nature of the confinement should therefore be laid out to a jury. In Strong, the Alberta Court of Appeal said that every robbery involves some form of restraint on the victim, since violence or threatened violence is a requisite element of the offence. As characterized by the Alberta court, Parliament’s careful wording of the section, in and of itself, ensured that the restraint inherent in the violence of a robbery would not immediately trigger the section dealing with first degree murder. The specifics of the confinement will determine whether a first degree murder charge arises. Using Strong, the appellant argued that since not all confinements in the course of a robbery necessarily lead to a first degree murder charge, the jury should have been instructed to consider the nature and the extent of the force used on Mrs. Skolos, not just whether it was a momentary constraint.
Yet the BCCA in Pritchard, as well as in two previous cases, noted that the wording of section 231(5)(e) is not as inherently restrictive as characterized in Strong. The BCCA case R v Gourgon (1981), 21 CR (3d) 384 (BCCA) [Gourgon] mirrors the Pritchard issue very closely. In Gourgon, a trial judge had instructed a jury, regarding confinement and first degree murder, that it would have to find confinement beyond a reasonable doubt for purposes in addition to robbery. The appellant in Pritchard argued that the trial judge in his case should have given a very similar instruction. However, the BCCA overturned this jury instruction as erroneous, noting at paragraph 279 that there is nothing “in the history of the legislation to suggest a limitation of that nature to be placed upon the word ‘confinement.’” Instead, the appeal court found that the jury should have been instructed that if they decided that Mr. Gourgon murdered the victim, the murder was in the first degree if the jury also found that the victim’s death was caused by Mr. Gourgon while he was confining or attempting to confine anyone in the residence. This appeal decision demonstrates that the necessity of careful instruction mandated in Strong is actually not required at all. The judge need not instruct the jury to find confinement beyond that which arises in the regular course of a robbery, as confinement is not so intricately defined in the section in order for a first degree murder charge to apply. This contradicts the Strong finding, and the appellant’s argument in Pritchard, that such a restriction is already present in the section, and that more is therefore required to prove a first degree murder charge as a result of confinement.
More recently, the same court in R v Kimberly (2001), 56 OR (3d) 18 (ONCA) [Kimberly] also criticized Strong. In that case, it was similarly noted that the Strong holding read a limitation into the plain language of section 231(5)(e) which is simply not there. The B.C. Court clarifies in Kimberly that section 279 (unlawful confinement) is created by section 231(5)(e); while section 279 allows that some, but not all, unlawful confinements will provide a basis for categorizing murder as first degree, there is nothing in section 231(5)(e) that suggests that unlawful confinements that are incidental to or in furtherance of other crimes are not encompassed by the section. Essentially, this case indicates that section 279 is restrictive, but the section at issue in Strong and in Pritchard is not.
The BCCA, in both Gourgon and Kimberly, has clearly indicated that Strong has been wrongly decided due to statutory misinterpretation of confinement incidental to robbery in section 231(5)(e). Therefore, the appellant’s use of this case to subvert the trial judge’s reasoning was unpersuasive, and the BCCA concluded that the trial judge’s instruction to the jury was indeed correct. It was open for the jury to conclude, from the evidence before them, that Mrs. Skolos had been confined and killed in the course of that confinement, regardless of the nature and extent of the force of the confinement.
The SCC will soon decide whether the reasoning in Strong, or in the subsequent appeal cases to the contrary, is the definitive reading of section 231(5)(e). After analyzing both the Code sections and Pritchard, I think that the SCC will agree with the BCCA. Unless a completely novel argument is presented to the SCC, this appears to merely be a case of statutory overzealousness.