Supreme Court of Canada confirms first-degree conviction in case from British Columbia

For forcible confinement to turn a murder lacking premeditation into first-degree murder, physical restraint is not required, and the murder and confinement need not happen simultaneously, the Supreme Court of Canada found this morning.

At trial, Darren Sundman was convicted of second-degree murder for the shooting death of Jordan McLeod. Sundman, and accomplices who were not party to the appeal before the SCC, had forcibly confined McLeod in a moving vehicle before he escaped and two of the accomplices shot him dead at the side of the road.

Under s. 231(5)(e) of the Criminal Code, a murder is in the first-degree when, regardless of whether it is planned and deliberate, it occurs during a kidnapping and forcible confinement. The same is true for sexual assault, hostage taking, and the hijacking of an aircraft, the crimes having in common the “illegal domination of victims,” according to the SCC.

Because McLeod’s murder occurred during his brief escape, the trial judge, BC Supreme Court Justice James Williams, found his confinement had ended and Sundman could not be convicted of first-degree murder. The Court of Appeal disagreed, set aside Justice Williams’ second-degree murder conviction, and entered a conviction for first-degree murder.

Writing the reasons for a unanimous SCC, Justice Mahmud Jamal said that while McLeod was not physically restrained once outside of the truck, he remained “coercively restrained through violence, fear, and intimidation.” The “two distinct acts” of murder and forcible confinement were one “continuous sequence of events forming a single transaction.” “The unlawful confinement and the murder were close in time, and involved an ongoing course of domination,” said Justice Jamal.

“The ruling accords with the policy principles which underpin s. 231(5), and common sense,” says Megan Street, counsel for the Crown. “Although Mr. McLeod managed to free himself from the confines of the truck by jumping out of it, he was never able to move about according to his own inclination and desire.”

One of the required elements for a murder to be committed while committing a crime of illegal domination under s. 231(5) is that the two offences occur in “the same transaction.” There have been two approaches to this element, said Justice Jamal, which courts have used interchangeably: the single transaction test and the temporal-causal connection approach. For the former, the illegal domination and killing must form “part of one continuous sequence of events” in which the murder “represents an exploitation of the position of power created by the underlying crime.” For the latter, the two offences must be close in time and there must be a “unifying relationship” between the illegal domination and murder.

The SCC clarified that the two approaches are “two sides to the same coin,” says Street.

“In my view, this clarification provides much needed simplification to the framework of analysis, which in turn, should make it easier for counsel and judges alike to identify situations which attract the more severe penalty associated with constructive firs- degree murder,” she says.

The court also provided clarity on the meaning of “causal connection” in the temporal-causal connection approach, “taking care to distinguish it from the legal element of causation required for some criminal offences,” says Daniel Song, who represented Sundman, and is counsel at Pringle Chivers Sparks Teskey in Edmonton.

“Ultimately, the decision appears to have trimmed away some of the complexity that surrounded the single transaction test for constructive first-degree murder,” says Song.

“After the oral hearing, I thought the Court might consider eschewing the temporal-causal connection approach, as its application was a source of confusion in some previous cases,” he says. “But the temporal-causal connection approach remains a valid analytical framework.”