New & Notable: Confining Constructive Murder to its Actual Elements

Andrae Parris and Cleavon Joseph killed Jermaine Malcolm. They were both convicted of first-degree murder. They appealed. Their appeal was dismissed: 2013 ONCA 515. In his usual fashion, Watt JA introduced the characters and backdrop:

Andrae Parris and Cleavon Joseph sold drugs. Joseph was an experienced trafficker, a veteran of the trade. Parris was new to the business. Their currency was crack cocaine.

 Jermaine Malcolm was a crack addict, a customer of Andrae Parris.

One night in September, 2007, Malcolm arranged to buy $30 worth of crack from Parris. When Parris arrived with the crack at the front door of Malcolm’s residence, a unit in a Mississauga housing complex, Malcolm, drugs in hand, went inside to get the money to complete the transaction. Parris waited at the front door. Malcolm did not return.  No drugs. No money. Parris was not a happy man.

Parris, the victim of the front door-back door ploy, a common evasion of payment technique among drug purchasers, told his friend Joseph about what had happened.

A little while later, Parris and Joseph returned to recover payment from Malcolm.  Joseph went to the front door. Parris went to the back.

Within two hours of the original drug deal, Malcolm was dead of multiple stab wounds [@ paras 1-5].

On appeal one of the issues raised by Joseph was that the trial judge erred in his charge to the jury by not instructing them that the confinement must be for a significant period of time.

First, Mr. Lafontaine for Joseph submits that the predicate offence of unlawful confinement must be ongoing for a “significant” period of time before a murder committed during its currency can become first degree murder under s. 231(5)(e). Mr. Lafontaine concedes that what amounts to a “significant” period of time must be decided on a case-by-case basis. It must be made plain, however, in final instructions that a confinement that is no more than incidental to the attack that causes death does not engage s. 231(5)(e) to elevate the murder to first degree murder. The trial judge’s failure to make it clear that the confinement must be for a “significant” time was a fatal error.

The trial judge had noted, in his charge, that the confinement must be ongoing for "some period of time".

Watt JA rejected this ground of appeal.

Second, in connection with the submission that the trial judge should have told the jury that the unlawful confinement had to extend for a “significant” period of time to engage the provision, I do not agree that further instruction was required.

The trial judge explained to the jury that unlawful confinement was “an unlawful restriction on liberty for some period of time”. The language used to describe the “same transaction” requirement reflected the standard set by Harbottle and Pritchard, and attracted no objection from trial counsel either at the pre-charge conference or after the charge had been delivered.

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 [@ 59-61].

The constructive murder provisions can often be very contentious in their application. Watt JA's review of the law and application is very helpful and clear. In particular, on the issue of the nature of the confinement Watt JA's common sense approach is helpful and clarifies the language in Pritchard that has often been misunderstood and misused. Clearly the "confinement" need not be for a signficant period of time. First, it is the nature, not duration, that is relevant. Second, if an attempt is sufficient (as it is) clearly a confinement need not necessarily be for any duration. Third, so long as the confinement is a separate and distinct act, which is part of the same transaction, it seem entirely unnecessary to impose some further requirement of duration.