Constructive Murder (Parris)

1.0 Preface

This review will discuss the appended jury charge delivered in Parris; specifically this review considers the issue of constructive murder as addressed in the charge.

This case and the charge were recently considered by the Ontario Court of Appeal: R v Parris, 2013 CarswellOnt 11065 (CA).

2.0 The Facts

Parris and Joseph were drug dealers. They had been ripped off by their crack addicted customer, Malcolm. The loss was a small amount of crack and 30$. Parris and Joseph tracked down Malcolm at a friend’s place.  Joseph went to the front door, Parris went to the back. Malcolm’s friend opened the front door. Joseph was holding something in his hand covered by a white cloth. Malcolm appeared and told Joseph he didn’t have the money (presumably the crack was gone too). Joseph punched Malcolm in the face. The friend tried to leave but Parris wielding a steak knife, blocked his path. By then Joseph and Malcolm were in the basement. Someone called for Parris, who went downstairs and the friend fled looking for a phone. Police were called. They arrived and found Malcolm dead from 6 stab wounds from an unknown number of knives. Two knives were located on scene, one bloody, one not. Joseph claimed he was acting in his own and Parris’ defence. Parris testified he was nowhere near Malclom when he was killed. The jury found them both guilty of 1st degree murder.

3.0 The Review


Both Parris and Joseph appealed the convictions. All five[1] grounds of appeal (three in common and two advanced separately by Joseph) pertained to the trial judge’s instruction to the jury. One of the grounds common to both Parris and Joseph – and the subject of this review – was that the trial judge misdirected on the elements of constructive first-degree murder. There were two key aspects to the argument.

First, Joseph argued that the trial judge erred by not instructing the jury that the forcible confinement must have been ongoing for a ‘significant’ period of time.

Second, it was argued that the trial judge misdirected the jury on the requirement that unlawful confinement and the murder had to be separate acts but part of the same transaction.


The trial judge explained forcible confinement to the jury as follows:

To intentionally confine another person is to physically restrain that person, contrary to his wishes, thereby depriving that person of his liberty to move from one place to another.  Confinement is an unlawful restriction on liberty for some period of time.  It does not have to be in one particular place but the accused must intend to restrict that person's freedom to move about which can include forcing the person to move to a particular place or in a particular direction.
The confinement does not have to include tying up a person's hands or feet.  It is a matter for your good common sense [emphasis added]; [Charge @ p133 ln 13-30].

The charge on the same transaction was as follows:

This does not mean that the murder and the unlawful confinement have to happen at exactly the same moment.  It does mean that the murder and the unlawful confinement must be closely connected with one another, in the sense that they must be part of the same series of events. They must both be part of a single ongoing transaction [Charge @ p136 ln 15-20].

Ruling & Comment

The Court of Appeal rejected the appeal.

First, the Court of Appeal held that the trial judge did not err in instructing the jury that the forcible confinement need only be for “some period of time”. 

The appellant’s argument relied upon language in R v. Pritchard, 2008 CarswellBC 2253 (SCC) where the Court noted that “[t]he authorities establish that if for any significant period of time [the victim] was coercively restrained or directed contrary to her wishes, so that she could not move about according to her own inclination and desire, there was unlawful confinement” [emphasis added]; [@ para 24].

Watt JA explained in Parris that the language in Pritchard did not in fact support the appellant’s position:

The phrase "any significant period of time" appears in connection with the description of the unlawful confinement component of s. 231(5)(e) in paragraph 24 of Pritchard. When read together with other portions of the same judgment, it seems clear that "significant" is used synonymously with "confinement not limited to what was integral to the particular act of killing". Neither Harbottle nor Pritchard requires the inclusion of "significant" or its functional equivalent for the purpose of jury instructions under s. 231(5)(e). Indeed, to some it may seem anomalous to include such wording when the predicate offence requirement can be satisfied by the preliminary crime of attempted unlawful confinement where no actual confinement would occur [emphasis added]; [para 61].

This interpretation of Pritchard and clarification that the “significance” of the confinement is not about the time but about its nature, is further supported by the Court of Appeal’s recent decision in R. v. Ferrari, 2012 CarswellOnt 7801 (CA). In that decision the Court noted that the confinement must be more than just the context during which the murder occurred; it must be significant to the circumstances, regardless of the duration: @ paras 95-98.

To similar effect, in R. v. Sandhu, 2005 CarswellOnt 8306 (S.C.J.) Trafford J held that “there are no minimum time requirements for an act of unlawful confinement” and in R. v. Bottineau, 2007 CarswellOnt 2330 (S.C.J.) Watt J, as he then was, held that “there is no particular time during which the restraint must continue”. Although Sandhu and Bottineau were decided before Pritchard, Sproat J, with the benefit of Pritchard, held that a first-degree murder verdict was open to the jury on the basis of a bear hug lasting mere seconds: R. v. White, 2009 CarswellOnt 4634 @ paras 12-15 and 18-19 (S.C.J.).[2]

Second, the Court of Appeal held that the trial judge properly instructed the jury on the same transaction requirement:           

Read as whole, the jury instructions made it clear that the Crown had to prove beyond a reasonable doubt that the murder and unlawful confinement were separate acts, but linked together, both causally and temporally, in circumstances that made the entire course of conduct a single transaction: Pritchard, at para. 35. Nothing more was required [para 58].

The language used by the trial with respect to the same transaction is a word for word adoption of the standard instructions developed by Watt JA.[3] 

This legal basis for this standard instruction is conveniently summarized in Pritchard as follows:

The jurisprudence therefore establishes that second degree murder will be elevated to first degree murder where the murder and the predicate offence (in this case unlawful confinement) are linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction (Paré). The temporal-causal connection is established where the unlawful confinement creates a "continuing illegal domination of the victim" that provides the accused with a position of power which he or she chooses to exploit to murder the victim (Paré, at p. 633, and Johnson, at para. 39) [para 35].

4.0 Conclusion

When read as a whole, as appellate courts have repeatedly commented[4] is the proper context in which to consider an impugned instruction, the charge in Parris on the forcible confinement route to first was proper and complete. Moreover, the charge was not objected to at trial. As the Court of Appeal noted:

Although, the failure to object to a charge is not fatal to the appeal, in this case the trial judge distributed drafts of her instruction to counsel in advance of their delivery to the jury. Counsel offered no objections to the instruction based on the drafts provided nor after it’s delivery to the jury [para 34].

5.0 Other Resources

Mack’s Criminal Law Bulletin- 2013-11: Constructive First Degree Murder

[1]The other grounds of appeal were that the trial judge erred in the WD instruction; that the Vetrovec warning was insufficient; that the instruction on accident was insufficient; and finally that the trial judge failed to properly instruct the jury about the evidentiary value of Joseph’s unaccepted plea of guilty to second-degree murder.

[2] White is on appeal at the Ontario Court of Appeal.


[3] Watt’s Jury Instruction Final 231-D @ para 9.

[4]See for example R v Jaw, 2009 CarswellNu 25 @ para 32 (SCC) where LeBel J for the majority explained that the “appellate court must examine the alleged error in the context of the entire charge and of the trial as a whole.”