SCC clarifies the “single transaction” test and the “temporal-causal connection” approach for first degree murder in R v Sundman

After more than seven months of deliberation, Justice Mahmud Jamal, writing unanimously for the Supreme Court of Canada (“SCC”), dismissed Mr. Darren Sundman’s appeal and upheld the Court of Appeal for British Columbia’s (“BCCA”) conviction for first degree murder in R v Sundman, 2022 SCC 31 [Sundman].

Facts and Procedural Background

The accused, Sundman, had mutual animosity with the victim, Mr. Jordan McLeod. The accused unlawfully confined the victim in a moving pickup truck and repeatedly assaulted him by hitting him with a handgun. When the truck slowed down, the victim jumped out and ran for his life while being chased on foot by the accused and two accomplices. The accused shot at the victim at least three times. This was sufficient to wound him and slow his escape, but not enough to kill him. Once at close range, one of the accomplices shot and killed the victim.

The trial judge at the Superior Court of British Columbia was not satisfied that the accused committed the offence of unlawful confinement “while committing” the murder. The trial judge reasoned there was a “momentary gap of time” between when the victim was confined in the truck and when he was killed which did not satisfy the “while committing” element of s. 231(5) of the Criminal Code, RSC 1985, c C-46 (the “Code”). Hence, pursuant to s. 231(7) of the Code, the accused was convicted of second degree murder.

The Crown counsel appealed the acquittal of Sundman to the BCCA arguing that the trial judge erred in law when applying R v Paré, [1987] 2 SCR 618 (SCC) [Paré] to the facts.

At the BCCA, the bench unanimously identified two errors of law in the trial decision:

1. The trial judge erred about the scope of unlawful confinement requiring the “victim be physically restrained in an enclosed space”.
2. The trial judge erred by applying a narrow interpretation to conclude the “momentary gap of time”, between when the victim jumped from the truck to when he was shot by the appellant, did not meet the “while committing” element of unlawful confinement.

Based on these errors of law, the BCCA substituted a conviction of first degree murder for the accused. The accused appealed to the SCC.

Questions Before the SCC

Based on the facts of this case, Justice Jamal notes, a conviction for first degree murder under s. 231(5)(e) of the Code would be contingent on two issues: 

1. Whether the victim was unlawfully confined after escaping from the truck. 
2. If so, whether the unlawful confinement and murder formed a single transaction.

Relevant Provision of the Code

279(2) – Forcible (Unlawful) Confinement

Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence and liable to imprisonment for a term not exceeding ten years; or 

(b) an offence punishable on summary conviction

The Victim Was Unlawfully Confined After Escaping From The Truck

In R v Magoon, 2018 SCC 14 [Magoon], the court clarified for a conviction of forcible or unlawful confinement under s. 279(2) of the Code, the Crown must prove:

1. The accused confined another person; and 
2. The confinement was unlawful

The court explained “restrain” does not necessarily require the person to be restricted physically or to a specific place, rather “restrain” can occur through violence, fear, intimidation, or psychological or other means (Magoon, para 64). Likewise, in R v Luxton, [1990] 2 SCR 711 (SCC)[Luxton], the court elaborated “unlawful confinement occurs if, for any significant period of time, a person is coercively restrained or directed contrary to their wishes, so they cannot move about according to their own inclination and desire” (Luxton at p. 723). For example, in R v Johnstone (G.L.), 2014 ONCA 504, the court explains an individual can be unlawfully confined if an accused’s violent acts lead the person to lock themselves in a room to avoid the attacks.

In Sundman, the victim was initially physically restrained in the moving truck. When he escaped from the truck, he was not physically restrained but he was coercively restrained. The victim was not moving according to his own inclination and desire, rather he was running for his life to escape the violence, fear, and intimidation he faced from the accused. In her oral submissions, the Crown counsel, Megan Street, argued:

If Mr. McLeod was free to move about according to his own inclination and desire, the [Crown] would hazard to guess that instead of running through deep snow, cutting across fences, poorly dressed in the dead of night in rural Prince George, he would have instead sought out the nearest house, sought some shelter and tried to arrange a transport back to his rental car in Vanderhoof (Sundman, para 42; transcript at p. 23).

While the trial judge correctly identified the victim was coercively restrained, he arrived at an erroneous conclusion. He writes that the victim “managed to escape his confinement” by jumping from the truck and “at the time the victim was shot, his confinement had ended” (Sundman, para 14). This conclusion is also inherently flawed. If the victim escaped their confinement (i.e., their confinement finished), how did their confinement finish again when they were shot? In my view, the inconsistency in the trial judge’s reasoning undermines his conclusion.

Based on these findings, Justice Jamal concludes the victim was unlawfully confined after he escaped from the truck.

The Accused’s Offence of Unlawful Confinement and Murder Formed a Single Transaction

In Canadian law, first degree murder is the most serious crime. It carries the most severe punishment under the Code, with a mandatory sentence of life imprisonment and with parole eligibility available after 25 years. This sentencing provision reflects Parliament’s intention to treat murder, in connection with the enumerated offences under s. 231(5), with the highest level of moral blameworthiness. On the other hand, all murder that is not first degree murder is second degree murder. The latter carries a punishment of life imprisonment as well, however it has parole eligibility as early as 10 years into the sentence. Essentially, the availability of parole is what is at stake for the accused here. This is the driving force for the accused’s counsel to avoid a conviction of first degree murder for their client.

Further, the offences listed under s. 231(5) have a common organizing principle of illegal domination of victims. Murder committed in connection with these offences represents an exploitation of power created by the underlying crime. In Parliament’s view, this exploitation of power warrants exceptional punishment for first degree murder. Similarly, the “illegal domination” element of these offences supports the principle of stare decisis by guiding the courts to apply this provision purposively and ensures consistent development of the law.

In Paré, the leading interpretation of s. 231(5), Wilson J., adopted a broad and purposive approach in which the Court asks if the listed offence of domination and the murder “all form part of one continuous sequence of events forming a single transaction” (Sundman, para 28). This is known as the “single transaction” test. 

In other cases, the Court undertook a similar inquiry by identifying the temporal and causal connection between the crime of domination and murder. In the case at hand, Justice Jamal clarifies that while the single transaction test and temporal-causal connection approach are different terminology wise, they are two different methods of arriving at the same conclusion (i.e., same transaction). In other words, they are two sides of the same coin.

Here, the two distinct criminal acts were close in time and involved the ongoing course of domination, consisting of intimidation, fear, and violence. The course of domination started in the truck and continued when the victim jumped from the moving truck and was chased by the appellant and his accomplices, which ended in his murder. Justice Jamal writes,

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 moments later (Sundman, para 53).

Therefore, Justice Jamal determined the unlawful confinement and the murder were part of one continuous sequence of events forming a single transaction.

Discussion

This SCC affirms the validity of both the “single transaction” test and the “temporal-causal connection” approach when determining a conviction for first degree murder. While this is a good attempt to simplify the confusion between these approaches, I believe the court should have simplified their explanation further and in a consistent manner.

At different points in the case, Justice Jamal makes inconsistent statements about the nature of the two approaches’ relationship to each other. The case headnote summarizes Justice Jamal’s reasoning by explaining “the application of either of these two approaches involves the same inquiry and will result in the same conclusion: when a single transaction is found, there will necessarily be a temporal-causal connection, and when a temporal-causal connection is found, there will necessarily be a single transaction.” This is circular logic where both approaches are sufficient and necessary for each other without any justification.

On the other hand, Justice Jamal explains, the two approaches “are simply different ways of addressing the ‘same transaction’ element” (Sundman, para 35). This statement leads me to question, how can two approaches be sufficient and necessary elements for each other, while being different methods of reaching the same conclusion? In my view, these statements about the nature of the two approaches’ relationship to each other cannot co-exist. 

Even if they can co-exist, the court has affirmed the validity of these approaches while raising confusion on another aspect. This may have serious consequences for individuals going through the Canadian criminal justice system in the future. While Mr. Sundman had adequate resources to support his case at the Supreme Court level; other accused individuals may not be so fortunate. This confusion may cause a trial judge to apply the law erroneously to the case before them, similar to the errors made by the trial judge in Sundman. Further, this may exacerbate the access to justice crisis prevalent in Canada.

I believe the Court could have simplified their explanation further. They could have eliminated this confusion by selecting a preferred term that will continue to be used by the court, whether “single transaction” or “temporal-causal connection”, and then clearly articulating its relationship to the other term. Additionally, this clarification would provide a clear guideline for the lower courts to follow and thereby ensure consistent development of the law in s. 231(5) jurisprudence.

Whether this confusion materializes and, if so, whether it will be resolved is a question I leave to the SCC to answer for another day.