In R. v. Sundman, 2022 SCC 31, July 21, 2022, the accused was charged with the offence of first degree murder. It was alleged that he killed the victim (Mr. McLeod) during an unlawful confinement. The circumstances of the murder were described by the Supreme Court of Canada in the following manner (at paragraph):
On the day of Mr. McLeod’s murder, the appellant unlawfully confined him in a moving pickup truck and repeatedly assaulted him by hitting him with a handgun. Mr. McLeod jumped from the truck when it slowed to make a turn but was then chased on foot by the appellant and two accomplices. When Mr. McLeod ran for his life, the appellant shot him at least three times but did not manage to kill him. As he lay wounded, Mr. McLeod was shot and killed at close range by one of the accomplices.
The trial judge acquitted the accused of first degree murder and convicted him of second degree murder. The trial judge held that the victim was not confined at the time he was killed. On appeal, the British Columbia Court of Appeal entered a conviction for first degree murder. The accused appealed to the Supreme Court of Canada.
The appeal was dismissed. The Supreme Court concluded as follows (at paragraph 5):
Mr. McLeod was still unlawfully confined when he escaped from the truck and ran for his life. Even though Mr. McLeod was not physically restrained outside the truck, he continued to be coercively restrained through violence, fear, and intimidation. He was deprived of his liberty and was not free to move about according to his inclination and desire. The appellant then murdered him while unlawfully confining him. These two distinct criminal acts were part of a continuous sequence of events forming a single transaction. They were close in time and involved an ongoing domination of Mr. McLeod that began in the truck, continued when he escaped from the truck and ran for his life, and ended with his murder. The appellant is therefore guilty of first degree murder under s. 231(5) (e) of the Criminal Code .
The Offence of Unlawful Confinement:
The Supreme Court indicated that “[t]o establish unlawful or forcible confinement under s. 279(2) of the Criminal Code , the Crown must prove that (1) the accused confined another person; and (2) the confinement was unlawful…At its core, unlawful confinement involves a deprivation of a person’s liberty…Unlawful confinement occurs if, for any significant time period, a person is coercively restrained or directed contrary to their wishes, so that they cannot move about according to their own inclination and desire…The person need not be restricted to a particular place or physically restrained…The restraint can be through violence, fear, intimidation or psychological or other means…The purpose of the confinement is not relevant” (at paragraph 21).
This Case:
The Supreme Court held that the trial judge erred in law “in concluding that Mr. McLeod “managed to escape his confinement” by jumping from the truck, and that “at the time Mr. McLeod was shot, his confinement had ended” (para. 288). The trial judge appears to have concluded that because Mr. McLeod was no longer physically restrained outside the truck, he was no longer unlawfully confined. However, physical restraint in a particular place is sufficient but not necessary to establish unlawful confinement. Even if Mr. McLeod were no longer physically restrained outside the truck, he remained coercively restrained through acts of violence, fear, and intimidation as he ran for his life. He continued to be deprived of his liberty and could not move about according to his inclination and desire” (at paragraph 42).
The Supreme Court concluded that the “unlawful confinement and the murder were part of one continuous sequence of events forming a single transaction. The unlawful confinement and the murder were close in time — in fact, Mr. McLeod was still unlawfully confined at the time of his death. The unlawful confinement and the murder also involved an ongoing course of domination consisting of intimidation, fear, and violence. The course of domination started in the truck, continued when Mr. McLeod jumped from the moving truck and was chased by the appellant and his accomplices, and ended with his murder. The two criminal acts were also distinct: the unlawful confinement — including the restriction of Mr. McLeod’s freedom of movement inside and outside the truck and the ongoing acts of violence, fear, and intimidation — was distinct from and not consumed by the shooting. These conclusions amply justified a verdict of first degree murder” (at paragraph 49).
