The Limits of Statutory Interpretation Revisited: R v Pritchard

Last week, the Supreme Court of Canada (“SCC”) handed down R v Pritchard, [2008] 3 SCR 195, upholding the decision of the British Columbia Court of Appeal (“BCCA”). The SCC’s ruling in Pritchard adds both nuance and clarity to the relationship between unlawful confinement and murder.

David Pritchard was convicted of the first degree murder of Pirkko Skolos, the wife of a wholesale drug supplier. The Crown alleged, based on circumstantial evidence, that the accused had forced Mrs. Skolos at gunpoint to disclose where her husband’s marijuana stash was hidden and to transport it to a waiting truck, before murdering her and burying her body. Arguing that Mrs. Skolos had been unlawfully confined and then killed permitted the Crown to ask that the jury to return a verdict of first degree murder pursuant to s. 231(5)(e) of the Criminal Code, RSC 1985, c C-46. The jury convicted Mr. Pritchard of this offence, and its conviction was upheld by the BCCA.

The question under consideration at the SCC dealt with the proper interpretation of this Criminal Code s. 231(5)(e), which 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).

The SCC was asked to determine whether confinement during the course of a robbery is forcible confinement for the purposes of classifying murder as either first or second degree, under this section. A closely-related question was asked at the Court of Appeal level, and the appeal was dismissed. In a similar fashion last Thursday, the SCC dismissed Mr. Pritchard’s second appeal.

A more detailed enumeration of the facts, the trial decision and the BCCA decision are outlined in my previous post, found here.

In his previous appeal, the appellant argued that the trial judge improperly instructed the jury that only a momentary restraint or confinement could escape the ambit of s. 231(5)(e). The problem with this instruction, argued the appellant, was that the jury was only required to consider the length of the confinement, rather than the nature and extent of the domination imposed on the victim. As a result of this allegedly erroneous instruction, the jury could have found that confinement had taken place merely because a robbery occurred, without having to consider the degree of force used by the assailant. The appellant would then be faced with a charge of first degree murder.

The appellant was unsuccessful at the BCCA because of his heavy reliance on the case of R v Strong, 1990 ABCA 327 [Strong]. The BCCA found that this case was wrongly decided due to the statutory misinterpretation of confinement incidental to robbery under s. 231(5)(e). As a result, the appellate court held that the trial judge’s jury instruction was proper, and the nature and extent of the confinement was not erroneous.

In coming to a similar conclusion regarding the interpretation of s. 231(5)(e), the SCC first looked at the intent of Parliament in drafting s. 231(5). Under this section, an accused is charged with first degree murder when death is caused during the commission, or the attempt to commit, certain offences that are characterized as crimes of domination. In addition to the impugned section (e) regarding kidnapping and forcible confinement, the additional offences of hijacking an aircraft, several types of sexual assault, and hostage taking are named under this section because they are also considered crimes of domination. According to the SCC, the first degree murder charge stemming from this section reflects Parliament’s sentencing policy that crimes of domination necessitate severe punishment.

The SCC further elaborated upon the rationale for this severity by citing an excerpt from R v Harbottle, [1993] 3 SCR 306 at 323. In this case, Cory J. explained that s. 231(5) comes into play when the jury must determine “whether such aggravating circumstances exist that they justify ineligibility for parole for a quarter of a century … [t]he gravity of the crime and the severity of the sentence both indicate that a substantial and high degree of blameworthiness, above and beyond that of murder, must be established in order to convict an accused of first degree murder.” The determination of a “high degree of blameworthiness” was more specifically defined in R v Pare, [1987] 2 SCR 618 at 633 [Pare], as committed by someone already abusing his power by illegally dominating another.

While unlawful confinement is one of the “aggravating circumstances” included in s. 231(5), robbery is not. This distinction was of the utmost importance to the appellant, who argued that the confinement inherent to any robbery is minimal. To decide whether a victim was confined “for a purpose other than facilitating theft,” the trier of fact must consider the degree and nature of confinement during a robbery. This section should be read purposefully and textually, according to the appellant, because the consequence of applying s. 231(5) is so drastic: a charge of first degree murder, and its accompanying 25-year parole ineligibility. For such a severe section to be appropriately applied, there must “be evidence of unlawful confinement ‘independent’ of the robbery for s. 231(5) to be invoked.”

Though the appellant raised a thought-provoking argument in theory, the SCC deftly rejected it by alluding to its potentially troubling practice: “[i]f 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.” The appellant’s flawed reasoning essentially allows a criminal wrong to mitigate the effect of s. 231(5). According to the SCC, this was certainly not Parliament’s intent in drafting the section.

Having dispatched this argument, the Supreme Court proceeded to characterize the true question before it as whether, in addition to murder, the necessary elements of confinement (laid out in s. 279(2)) were established on the evidence. This section reads:

2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of:
(a) an indictable offence …

Case law has demonstrated that unlawful confinement occurs if, for any significant period of time, the victim is coercively restrained or directed contrary to his wishes, so that he cannot move about according to his own inclination or desire. Though the more specific term of “forcible confinement” is used in s. 231(5)(e), the SCC explained that “forcible” is only inserted for ease of reference, and adds nothing to the elements of the offence set out in s. 279(2).

The appellant alluded to Strong, an Alberta Court of Appeal case, to support his theory that robbery immunizes him from the effect of s. 231(5), but the Supreme Court disagreed with his reasoning in this respect as well. The court in Strong held that the omission of robbery from the s. 231(5) list of offences means that the violent restraint inherent in every robbery does not trigger the section. The SCC did agree that not all robberies involve domination of the victim, and thus not all robbery-murders will satisfy the section. As stated in R v Kimberley, [2001] 157 CCC (3d) 129 (ONCA) [Kimberley], the confinement and murder must constitute distinct criminal acts in order to trigger s. 231(5)(e). The requirement of distinct acts in Kimberley is further explained by the SCC; the issue in s. 231(5)(e) is not whether there was confinement independent of the act of robbery, but whether there was unlawful confinement distinct from the act of killing.

With regard to the first aspect of the Kimberley holding (that confinement independent of the act of robbery does not matter), the SCC cited several cases to support this view. While the appellant argued that Strong requires evidence of an unlawful confinement, independent of the robbery, in order for s. 231(5) to apply, the SCC dismantled this argument by listing cases to the contrary from a variety of high-ranking jurisdictions. Appellate courts from Ontario, British Columbia and Saskatchewan have uniformly held that confinement for the one purpose of robbery should not be excluded from the interpretation of s. 231(5)(e). Rather, they have stated that the relationship of confinement to robbery is irrelevant to the section’s application.

The court then addressed the second aspect of the Kimberley decision, that of the necessity of temporal or causal connection between the killing and the commission of the enumerated offence. In Pare, the SCC specified that while “an exact coincidence” in the timing of the murder and the predicate offence is not required, “it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder” (633). On the facts of Mr. Pritchard’s case, the SCC found that it was reasonable for the jury to decide that the offences were temporally and causally linked.

In sum, the SCC’s analysis of s. 231(5) jurisprudence was clear. Murder is elevated to the first degree under this section when the murder and the predicate offence are temporally and causally linked so that the course of conduct can be characterized as a single transaction. More specifically, in the context of unlawful confinement under subsection (e), this temporal-causal connection is met when the confinement allows the accused to assume a position of power that is exploited in order to murder the victim. Finally, and most problematic to Mr. Pritchard’s argument, the SCC held that s. 231(5) still applies even if, along the way, other offences are committed.

When the SCC applied its thorough legal analysis to the facts, it found that “there was ample evidence to support the requisite elements of a confinement within the meaning of s. 279(2) quite independent of the killing,” and that it was open to the jury to conclude that the appellant exploited his position of dominance over the victim by killing her. These events constituted a single transaction within the Pare definition. In addition, the trial judge’s instruction to the jury, that the Crown must establish unlawful confinement that was not an integral part of the robbery, was actually beneficial to the appellant because it suggested that confinement integral to the robbery would not trigger the section. Even with an overly-favourable interpretation of the impugned Criminal Code section, the jury still returned a finding of guilt. The BCCA’s decision that the trial judge did not erroneously instruct the jury towards this verdict was echoed by the SCC.