R. v. UNDERWOOD, 2025 SCC 14, APRIL 17, 2025.

FACTS: The accused was charged with first degree murder.   He was acquitted of that charge, but convicted of second degree murder.  The Crown appealed, arguing that the trial judge erred in his application of section 231(5) of the Criminal Code.

The Crown’s appeal was allowed, and the Alberta Court of Appeal entered a conviction for first degree murder (see 2024 ABCA 267).  The accused appealed as of right to the Supreme Court of Canada.     

HELD: The appeal was dismissed.  In a brief oral judgment, the Supreme Court stated:

Karakatsanis J. — The appellant, Buddy Ray Underwood, was charged with the robbery, kidnapping, and first degree murder of Nature Duperron. A group of five individuals, including the appellant, confined her for several hours during which time she was injected with fentanyl and transported from Edmonton to a remote location near Hinton, where she was beaten and left to die. The trial judge, sitting alone, convicted the appellant as a party to the robbery, kidnapping and second degree murder of Ms. Duperron.

The trial judge concluded that the Crown had not established that this was a planned and deliberate murder under s. 231(2) of the Criminal Code, R.S.C. 1985, c. C-46. While the trial judge was satisfied that the appellant was a party to the kidnapping of Ms. Duperron, he concluded that the Crown had not met its burden of establishing all elements of the offence of constructive first degree murder beyond a reasonable doubt under s. 231(5) of the Criminal Code.

The Crown appealed the acquittal on the charge of first degree murder, arguing that the trial judge erred in law in his assessment of planning and deliberation and misapplied the legal test for constructive first degree murder.

The Court of Appeal of Alberta allowed the Crown appeal, quashed the acquittal and substituted a conviction for first degree murder under both s. 231(2) and s. 231(5) of the Criminal Code.

The appellant appeals the first degree murder conviction as of right.

We are all of the view that the appeal should be dismissed, substantially for the reasons of the Court of Appeal at paras. 61 to 81.

The trial judge erred with respect to the legal test for a planned and deliberate murder. But for this error of law, the trial judge’s findings of fact, which we accept as they were found, would have led him to convict the appellant of first degree murder under s. 231(2). 

As this is sufficient to dispose of the appeal, we need not consider whether the Court of Appeal erred in substituting a conviction for constructive first degree murder under s. 231(5) of the Criminal Code.