Principled approach to Constructive Murder

Dwayne Mullings killed Bogdan Spolski. Mullings was attempting to steal Spolski's car, which Spolski had left running in his driveway. Spolski attempted to stop Mullings and a struggle ensued. Spolski was shot by Mullings. Mullings then dragged Spolski into the garage where he shot Spolski again, this time in the chest. Spolski died. Mullings was charged with first-degree murder. The route to first-degree murder was through section 231(5) - murder and unlawful confinement. Mulling was convicted. He appealed.

One of his grounds of appeal was that the trial judge erred in the instruction to the jury on constructive murder under section 231(5). In particular, Mullings raised two points. First, he argued that for 231(5)(e) to apply the confinement must be distinct from the killing and not consumed in the killing - here the confinement was "inherent in the killing" [para 98]. Second, he argued that the victim's death was caused by the first shot (although he did not die instantly) and thus the confinement occurred after the killing - it was not caused "while committing" [para 99].

With respect to the second ground of appeal, the Court rejected it and offered the following:

Whether the first bullet was a sufficient cause of the victim’s death was unimportant in this case for three reasons. First, s. 226 of the Criminal Code makes clear that accelerating death is still murder. In this case, regardless of whether the victim was mortally wounded by the first shot, he was still alive when he was shot a second time while confined in the garage. Therefore, it was open to the jury to conclude that the second shot’s acceleration of death was an act of killing in itself, which occurred while the appellant was confining the victim. In R. v. Munro (1983), 8 C.C.C. (3d) 260 (Ont. C.A.), at pp. 288-9, this court said it was an “elementary principle of the law of homicide” that “one who shortens the life of a person suffering from a mortal injury … has caused the death of that person.”
Second, there is nothing in the jurisprudence that states the predicate offence under s. 231(5) must precede the mortal wound....It is not necessary in this appeal to decide whether that same proposition holds true for unlawful confinement under s. 231(5)(e). However, when applying s. 231(5) for any predicate offence, courts should avoid a formalistic and technical analysis of the precise sequence of the killing and the predicate offence where they are closely intertwined. What matters is that the act of killing and the predicate offence, while distinct offences, remain part of the same transaction: R. v. Paré1987 CanLII 1 (SCC), [1987] 2 S.C.R. 618, at pp. 631-633.
Third, s. 231(5) is concerned with identifying the degree of blameworthiness required to ground a conviction for first degree murder. Apart from the obvious point that the appellant could have had no way of knowing that he had fatally wounded the victim, the confinement and shooting inside the garage removed any possibility of getting assistance for the victim. This is a case like R. v. Simon (2001), 2001 CanLII 11996 (QC CA), 154 C.C.C. (3d) 562 (Que. C.A.), in which it can be said that, even if the wound to the chest was the ultimate cause of death, the subsequent restraint of the victim and the direct shot to his chest prevented any possibility of medical intervention which might have saved his life, however remote that possibility may have been. [@101-103].

With respect to the second ground of appeal, the Court rejected it and offered the following:

It was also open to the jury to find that while the confinement occurred as part of the same series of events as the murder, it was not inherent in the killing and that the appellant could have been convicted of the separate offences of murder and unlawful confinement. [@106].

Mulllings is a helpful decision in clarifying the law of constructive murder. This area of the law has seen some attention in recent years from the Court of Appeal and recent decisions, like Mullings, are very helpful. In particular, Mullings recognizes two important principles. First, the court recognizes that there does not need to be strict adherence to the "while committing language". Confinements which occur contemporaneously to (even if after the fatal blow/shot occurred) will satisfy the section. Second, the scope of the "killing" is narrowly construed - as in this case, the shooting constituted the "killing" and thus was clearly separate from the confinement while still being part of the same series of events. 

A final interesting point from Mullings is the comment of the Court that "accelerating death" is still murder.