Her Majesty the Queen v. Kimberley et al. [Indexed as: R. v. Kimberley]

56 O.R. (3d) 18

[2001] O.J. No. 3603

Docket Nos. C25604-C25637

Court of Appeal for Ontario

Doherty, Austin and MacPherson JJ.A.

September 13, 2001

Criminal law -- Evidence -- Hearsay -- Declarant deceased -- Accused charged with Toronto murder -- Accused sought to admit statements made by man in custody in British Columbia confessing to Toronto murder -- That witness did not admit to killing victim when he testified at preliminary inquiry -- Witness subsequently died -- Statements hearsay -- Traditional hearsay exception of statements against penal interest should be interpreted in manner consistent with requirements of necessity and reliability -- Statements not under oath and not videotaped -- No detailed summary of statements made -- Witness not subject to cross-examination when he made statements -- Statements not against witness's penal interest as he intended to plead guilty to unrelated British Columbia murder and he sought to improve his living conditions in jail in exchange for statements -- Statements did not meet threshold criterion of reliability -- Trial judge did not err in refusing to admit statements.

Criminal law -- Murder -- First-degree murder -- Elements of offence -- Unlawful confinement in course of robbery can provide basis for liability for first-degree murder under s. 231(5)(e) of Criminal Code -- Criminal Code, R.S.C. 1985, c. C- 46, s. 231(5)(e).

Criminal law -- Trial -- Charge to jury -- Reasonable doubt -- Trial judge's instructions to jury on reasonable doubt did not contain all of required elements set out in Lifchus -- Deficiencies not such as to cause serious concern about validity of jury's verdict -- Appeal from conviction for first- degree murder dismissed.

The accused were charged with first-degree murder. The victim was brutally beaten and robbed in the underground parking lot of her condominium building. The main Crown witness, V, who was the accused C's lover at the time of the offence, testified at trial that C decided to steal a leather coat from a car parked in an underground garage, intending to sell it and use money to buy cocaine. According to V, C and the accused K went into the condominium building. Some time later, they ran out. C had a purse in his hand, and stated that he had "bitch slapped" the woman whose purse he stole. The Crown contended that both accused were parties to murder as defined in s. 229(a) of the Criminal Code and that the murder was first-degree murder because the victim's death was jointly caused by the accused in the course of committing an unlawful confinement or forcible seizure (s. 231(5)(e) of the Code).

Both accused relied on evidence pointing to one T, who they alleged was the killer. The trial judge permitted defence counsel to lead circumstantial evidence suggesting that T was in the victim's condominium building at the time of the offence. The trial judge also admitted evidence that T had pleaded guilty to an unrelated first-degree murder in British Columbia. After his arrest, T told the police officer investigating the B.C. murder that he would talk about two murders "back east" if the police met his demands for better living conditions while he was in custody. He specifically told the B.C. police on several occasions that he had murdered the victim. However, he told the Toronto police officers who took him to Toronto to testify at the accused's preliminary inquiry that his statements about the Toronto murder were "bullshit". T gave various versions of the relevant events at the preliminary inquiry, none of which amounted to an admission that he killed the victim. When he returned to British Columbia, T told the B.C. authorities that he did kill the Toronto victim and that he was pressured to testify to the contrary at the preliminary inquiry by the Toronto investigators. T subsequently committed suicide. At trial, the accused sought to lead evidence of T's British Columbia statements and brought a motion to exclude T's preliminary inquiry testimony under s. 24(2) of the Canadian Charter of Rights and Freedoms. The Crown took the position that if the British Columbia statements were admitted, T's Toronto statements and his evidence at the preliminary inquiry should also be admitted. At the trial, the accused then took the position that if the trial judge would admit the B.C. statements only if the Toronto statements and the preliminary inquiry testimony were also admitted, it was preferable to admit all of T's statements and evidence rather than none of them. The trial judge admitted none of T's statements.

The accused were convicted of first-degree murder. They appealed.

Held, the appeal should be dismissed.

The statements made by T in British Columbia were tendered for their truth and were hearsay. At trial, defence counsel argued that the British Columbia statements were admissible either as declarations against penal interest by a person who was not available to give evidence, or under the principled approach to the admissibility of hearsay evidence. The traditional exceptions to the hearsay rule, such as declarations against penal interest, should be interpreted in a manner consistent with the necessity and reliability requirements of the principled approach. Whether characterized as a statement against penal interest, or simply viewed as hearsay, the British Columbia statements were admissible only if the accused established the separate requirements of necessity and reliability.

The hearsay dangers presented by T's British Columbia statements ran the full gamut of the dangers associated with hearsay evidence. He was not under oath or any imperative to speak the truth. The statements were not videotaped and so there was no basis upon which a jury could assess T's demeanour and the interaction between T and his questioners. There was nothing approaching a detailed summary, much less a verbatim record, of what was said by T and what was said to T in those interviews. In the absence of anything approaching a full and accurate record of what was said, it was virtually impossible to discern either the contents of or the context of T's British Columbia statements. Finally, T was not subject to cross- examination after he made the statements.

T intended to plead guilty to the British Columbia homicide knowing that he would be sentenced to life imprisonment. He apprehended no additional penal consequences flowing from the British Columbia statements about the Toronto homicide. Consequently, the fact that the statements amounted to confessions to murder made to police officers did not enhance the reliability of those statements. T also had motives to falsely admit responsibility for the Toronto murder. He was motivated by self-aggrandizement, a desire to manipulate the criminal justice system and a desire to improve his living conditions in jail. The British Columbia statements were not against his interests as he perceived them, but rather, promoted those interests.

T's various statements were inconsistent, and when confronted with inconsistencies between his statements and the actual circumstances of the killing, he merely changed his story. He also refused to discuss the details of the murder with the Toronto police, who, unlike their British Columbia counterparts, knew the details of the homicide. The statements did not meet the threshold reliability requirement, and the trial judge did not err in refusing to admit them.

The trial judge's instructions to the jury on reasonable doubt predated the decision of the Supreme Court of Canada in R. v. Lifchus. While the instructions did not contain all of the required elements set out in Lifchus, the deficiencies did not cause serious concern about the validity of the jury's verdict. In addition, the charge to the jury on reasonable doubt was very similar to that recently approved in the Supreme Court of Canada decision in R. v. Pan.

Unlawful confinement in the course of a robbery can provide the basis for liability for first-degree murder under s. 231(5) (e) of the Code. The absence of any reference to robbery in s. 231(5) does not necessitate an interpretation of s. 231(5) (e) that excludes unlawful confinements committed in the course of a robbery. The organizing principle of s. 231(5) is the recognition that murders committed in the course of the unlawful domination of the victim are particularly blameworthy, and those who commit such murders are deserving of the greater punishment imposed for first-degree murder. If in the course of a continuous sequence of events an accused commits a crime of unlawful confinement and chooses to exploit the position of dominance over the victim resulting from that confinement to murder the victim, then the accused has committed first-degree murder as defined in s. 231(5)(e). The purpose of the confinement is not relevant. The victim in this case was unlawfully confined throughout the attack which ended in her death beyond that inherent in the very act of killing or robbery. The accused disabled the victim by the elevator, dragged her 27 feet and then used their physical dominance of her to rob her and murder her. The trial judge adequately instructed the jury on the ambit of s. 231(5)(e) of the Code.

APPEAL from convictions for first-degree murder.

R. v. Kingsley (1995), 1995 5061 (QC CA), 105 C.C.C. (3d) 85, 45 C.R. (4th) 381 (Que. C.A.) [Leave to appeal allowed (1996), 204 N.R. 74n, 108 C.C.C. (3d) vi]; R. v. Simon (2001), 2001 11996 (QC CA), 154 C.C.C. (3d) 562 (Que. C.A.); R. v. Strong (1990), 1990 ABCA 327, 60 C.C.C. (3d) 516, 2 C.R. (4th) 239 (Alta. C.A.), not folld Other cases referred to R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 148 N.R. 241, 79 C.C.C. (3d) 257, 19 C.R. (4th) 1; R. v. Demeter, 1977 25 (SCC), [1978] 1 S.C.R. 538, 38 C.R.N.S. 317, 16 N.R. 46, 34 C.C.C. (2d) 137, 75 D.L.R. (3d) 251, affg (1975), 1975 685 (ON CA), 10 O.R. (2d) 321, 25 C.C.C. (2d) 417 (C.A.); R. v. Dollan and Newstead (1982), 1982 2006 (ON CA), 35 O.R. (2d) 283, 65 C.C.C. (2d) 240, 25 C.R. (3d) 308 (C.A.) [Leave to appeal to S.C.C. refused (1982), 42 N.R. 351n], affg (1980), 1980 2847 (ON SC), 53 C.C.C. (2d) 146 (Ont. S.C.); R. v. Finta, 1994 129 (SCC), [1994] 1 S.C.R. 701, 112 D.L.R. (4th) 513, 165 N.R. 1, 20 C.R.R. (2d) 1, 88 C.C.C. (3d) 417, 28 C.R. (4th) 265, affg (1992), 1992 2783 (ON CA), 92 D.L.R. (4th) 1, 9 C.R.R. (2d) 91, 73 C.C.C. (3d) 65, 14 C.R. (4th) 1 (Ont. C.A.); R. v. Folland (1999), 1999 3684 (ON CA), 43 O.R. (3d) 290, 132 C.C.C. (3d) 14 (C.A.); R. v. Gourgon (1979), 1981 328 (BC CA), 58 C.C.C. (2d) 193, 19 C.R. (3d) 272 (B.C.C.A.), affg (1979), 1979 4423 (BC SC), 9 C.R. (3d) 313 (B.C.S.C.) (sub nom. R. v. Gourgon (No. 1)); R. v. Gratton (1985), 7 O.A.C. 190, 18 C.C.C. (3d) 462 (C.A.); R. v. Harbottle, 1993 71 (SCC), [1993] 3 S.C.R. 306, 157 N.R. 349, 84 C.C.C. (3d) 1, 24 C.R. (4th) 137; R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043, 30 O.R. (3d) 641n, 141 D.L.R. (4th) 193, 204 N.R. 241, 111 C.C.C. (3d) 129, 2 C.R. (5th) 245; R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, 41 O.A.C. 353, 113 N.R. 53, 59 C.C.C. (3d) 92, 79 C.R. (3d) 1; R. v. Larcenaire (1987), 19 O.A.C. 93, 34 C.C.C. (3d) 548 (C.A.); R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 118 Man. R. (2d) 218, 150 D.L.R. (4th) 733, 216 N.R. 215, 149 W.A.C. 218, [1997] 10 W.W.R. 570, 118 C.C.C. (3d) 1, 9 C.R. (5th) 1; R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711, 76 Alta. L.R. (2d) 43, 112 N.R. 193, [1990] 6 W.W.R. 137, 50 C.R.R. 175, 58 C.C.C. (3d) 449, 79 C.R. (3d) 193; R. v. McMillan, 1977 19 (SCC), [1977] 2 S.C.R. 824, 33 C.C.C. (2d) 360, 73 D.L.R. (3d) 759, 15 N.R. 20, affg (1975), 1975 43 (ON CA), 7 O.R. (2d) 750, 23 C.C.C. (2d) 160, 29 C.R.N.S. 191 (C.A.); R. v. O'Brien (1977), 1977 168 (SCC), [1978] 1 S.C.R. 591, [1977] 5 W.W.R. 400, 35 C.C.C. (2d) 209, 76 D.L.R. (3d) 513, 38 C.R.N.S. 325, 16 N.R. 271; R. v. Pan, 2001 SCC 42, affg (1999), 1999 3720 (ON CA), 44 O.R. (3d) 415, 62 C.R.R. (2d) 189, 134 C.C.C. (3d) 1, 26 C.R. (5th) 87 (C.A.); R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, 45 D.L.R. (4th) 546, 80 N.R. 272, 38 C.C.C. (3d) 97, 60 C.R. (3d) 346; R. v. Peer (1995), 1995 1395 (BC CA), 100 C.C.C. (3d) 251 (B.C.C.A.) [Leave to appeal to S.C.C. refused (1996), 204 N.R. 74n]; R. v. Pitre (1991), 1991 394 (BC CA), 2 B.C.A.C. 186 (C.A.); R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590, 139 N.R. 323, 75 C.C.C. (3d) 257, 15 C.R. (4th) 133; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 148 Man. R. (2d) 161, 190 D.L.R. (4th) 591, 258 N.R. 250, 224 W.A.C. 161, [2000] 11 W.W.R. 1, 147 C.C.C. (3d) 449, 36 C.R. (5th) 1; R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764, 128 D.L.R. (4th) 121, 186 N.R. 365, 101 C.C.C. (3d) 97, 42 C.R. (4th) 133; R. v. Williams (1985), 1985 113 (ON CA), 50 O.R. (2d) 321, 7 O.A.C. 201, 14 C.R.R. 251, 18 C.C.C. (3d) 356, 44 C.R. (3d) 351 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 24(2) Criminal Code, R.S.C. 1985, c. C-46, ss. 21(2), 231(5), 229, 279(2)

Peter J. Connelly and Jan Mills, for appellant Kimberley. Damien R. Frost, for appellant Clancey. Lucy Cecchetto and Howard Leibovich, for respondent.

The judgment of the court was delivered by

DOHERTY J.A.: --

I

[1] The appellants appealed their convictions on a charge of first-degree murder. At the conclusion of oral argument, the court dismissed the appeal with reasons to follow.

[2] The trial began with pre-trial motions in September 1992. For various reasons, these motions were not completed until February 1995. They consumed some 10,000 pages of transcript. Jury selection began in February 1995 and the verdict was returned on July 13, 1995. [See Note 1 at end of document]

[3] The appellants argued several grounds of appeal. The Crown was asked to respond to three. These reasons address only those three grounds of appeal. They are:

-- Did the trial judge err in law in refusing to admit certain out-of-court statements made by David Teed in which he admitted killing Dr. Warrick?

-- Did the trial judge misdirect the jury as to the meaning of a reasonable doubt?

-- Did the trial judge err in refusing to direct a verdict of acquittal on the first degree murder charge, and if not, did he misdirect the jury on the elements of first-degree murder as found in s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46?

[4] The Crown contended that both Kimberley and Clancey were parties to murder as defined in s. 229(a) of the Criminal Code, and that the murder was first-degree murder because Dr. Warrick's death was jointly caused by the appellants in the course of committing an unlawful confinement or forcible seizure (s. 231(5)(e)).

[5] By way of alternative submission, the Crown argued that if Clancey acted alone in beating and kicking Dr. Warrick to death, Kimberley was guilty of murder as a party to a common design under s. 21(2) of the Criminal Code. The trial judge told the jury that on this theory, Kimberley could be convicted of second-degree murder or manslaughter, but not first-degree murder.

[6] It was Clancey's defence that he had nothing to do with the killing and was not at the scene of the crime. He did not testify. Kimberley, who did testify, acknowledged that he was in the building where the crime occurred, with Clancey. According to Kimberley, Clancey, acting on his own, decided to steal Dr. Warrick's purse and followed her out of the elevator. Kimberley insisted that he had no prior knowledge of this plan and no involvement in the assault on Dr. Warrick.

[7] Both appellants also relied on evidence pointing to one David Teed as the person who killed Dr. Warrick.

[8] The jury convicted both appellants of first-degree murder. To do so they must have been satisfied beyond a reasonable doubt that both appellants participated in the assault culminating in Dr. Warrick's death and that both had the requisite intention to commit murder. The jury must also have been satisfied that Dr. Warrick's death was caused while she was being unlawfully confined and/or forcibly seized.

[9] I turn next to the evidence apart from that involving Mr. Teed. I will review the "Teed" evidence separately.

II

[10] On January 27, 1991, at about 11:00 p.m., Dr. Carolyn Warrick, a medical resident at the Toronto Hospital for Sick Children, was killed in the underground parking area of the condominium building where she lived. The physical evidence indicated that Dr. Warrick was attacked and struck at least twice just outside the doors of the elevators on level D of the building. Her eyeglasses, earrings and a bloodstain were found directly in front of one of the elevators. She was dragged some 27 feet across the elevator lobby, through a door and down a carpeted ramp to a door leading to the parking garage. Her body was found with her head at that door leading to the parking area. Blood smears found between the elevators and Dr. Warrick's body, and abrasions on her face indicated that she was unconscious when she was dragged from the elevator area to the door at the end of the ramp. Dr. Warrick was repeatedly kicked and/or beaten as she lay unconscious at the end of the ramp. Most of the blood loss occurred at the spot where her body was found.

[11] The post-mortem revealed that Dr. Warrick was savagely beaten. She was struck on the head, face, neck and chest area at least 15 times. She suffered a fractured skull, broken jaw, broken nose and extensive bruising on her face, neck and upper chest. She was repeatedly kicked as she lay on the ground at the end of the ramp. Footwear impressions found on her face, neck and coat suggested that she was kicked by two different people. The forensic evidence also suggested that she was struck on one or more occasions with a blunt instrument such as a pipe. There were no defensive injuries.

[12] It was the Crown's theory that Kimberley and Clancey, who were living together on the streets of Toronto in January 1991, needed money to support their cocaine addictions. Kimberley also owed money to a drug supplier who was known to react violently towards those who did not pay their debts. According to the Crown, Kimberley and Clancey went to the condominium building intending to steal a leather coat from a vehicle parked in the garage area, and to sell the coat to support their drug habit. By chance, they encountered Dr. Warrick in the elevator and decided to rob her. As Dr. Warrick left the elevator, she was struck and knocked unconscious. Her body was then dragged out of the range of the security camera to the end of the ramp where she was beaten to death. Kimberley and Clancey took her purse and fled.

[13] Todd Vermillion, a transvestite prostitute, heavy drug user and Clancey's lover in January 1991, was the main Crown witness. According to Vermillion, he and Clancey spent a great deal of time together in January 1991. Both were heavy cocaine users. Clancey supported his habit by selling hash and Vermillion supported his by working as a prostitute. Vermillion also testified that Kimberley was often with him and Clancey. Kimberley was also a heavy cocaine user and financed his habit by selling hash, sometimes with Clancey.

[14] Vermillion testified that on January 27, 1991, Clancey spoke of stealing a leather jacket which he had seen in a car parked in an underground garage. The jacket could be sold and the money used to buy cocaine. Later that evening, Clancey suggested that they go and steal the coat. Kimberley agreed. The three men walked to the condominium building. Clancey and Kimberley went inside and Vermillion waited outside. Some time later, Vermillion saw Clancey running towards him with Kimberley running close behind. Clancey had a purse in his hand. He told Vermillion to run and all three men ran back to an abandoned apartment several blocks away where they stayed from time to time. At the apartment, Clancey emptied the contents of the purse and put some money (about $40 or $50) in his jacket. According to Vermillion, Clancey and Kimberley counted the money together. Clancey said that he had "bitch slapped" the woman when he took her purse and had "knocked her silly". He assured Vermillion that the victim was "fine".

[15] Clancey and Kimberley left to purchase some cocaine with the stolen money. They returned to the abandoned apartment and shared the cocaine with Vermillion. He asked Clancey what had happened. Clancey said that he had encountered a woman in the building and took her purse. He repeated that he had "bitch slapped" the victim, but assured Vermillion that she was not seriously hurt.

[16] Vermillion testified that on the day of the homicide, Kimberley had a length of pipe stuck up the sleeve of his shirt. Kimberley referred to this pipe as "his convincer". Vermillion did not see the pipe in Kimberley's possession when the three men went to steal the coat.

[17] There was good reason to doubt Vermillion's veracity and his reliability. The Crown conceded that Vermillion was a participant in a plan to steal the coat from the parked car. He had a lengthy criminal record, including several crimes of dishonesty. He was under the influence of cocaine when the relevant events occurred, he gave several inconsistent statements to the police, and his relationship with Clancey had soured by the time he gave his first statement to the police. Vermillion also admitted that he had lied under oath at his bail hearing on an unrelated matter. He received payments totalling several thousand dollars while he was in the witness protection program. There was also some evidence that the Toronto police had assisted him in resolving, at least temporarily, a problem he had with his immigration status. The trial judge gave a strong "Vetrovec" warning to the jury and no issue is taken with that instruction on appeal.

[18] Vermillion's testimony was confirmed in many details by statements made by Kimberley to the police and to an undercover officer placed in the cells with Kimberley in April 1991. In these statements, Kimberley repeatedly said that he was "stoned" on the day of the homicide and had very little recollection of the events. He insisted that he had not killed anyone. He told the undercover officer that he recalled going to a condominium building to steal a coat and he recalled running out of that place back to an abandoned apartment. He said that a "friend" had got him into this mess and he was going to do "10 to 15 years".

[19] In his first interview with the police, Kimberley said that he had been in the condominium building and that Vermillion had waited outside the building. Kimberley also recalled that Clancey had a purse with him when they got back to the abandoned apartment and that they used money from the purse to purchase cocaine. Kimberley insisted that he did not kill anyone.

[20] In his second statement to the police, Kimberley provided more detail. He gave this detail after he was shown part of the statement made by Vermillion. Kimberley told the police that he, Clancey and Vermillion were sitting at the abandoned apartment when they decided to go and steal a leather coat from a car parked in an underground garage. Clancey and Kimberley entered the condominium building and took the elevator to the basement. There was a woman on the elevator. As the doors opened, Clancey followed her off the elevator, telling Kimberley that he was going to "take her out" and would be back shortly. Kimberley waited at the elevator and could hear some kind of scuffle going on. A short time later Clancey came running towards the elevator. He seemed nervous and said to Kimberley "Let's go. Let's get out of here". Kimberley and Clancey exited the building, found Vermillion, who was waiting outside, and proceeded back to the abandoned apartment. Kimberley told the police that he did not see the purse until they arrived back at the abandoned apartment. Clancey took the money from the purse and used it to purchase cocaine for Kimberley, Clancey and Vermillion. Kimberley insisted that he was not responsible for Dr. Warrick's death.

[21] The Crown also led evidence of statements made by Kimberley to a friend, Ray Lowe, prior to Kimberley's arrest in April 1991 in Montreal. Kimberley told Lowe that a woman had been robbed and that the robbery "had gone overboard".

[22] Clancey also made two statements to the police. In his first statement in April 1991, shortly before his arrest, Clancey told the police that he and Kimberley had hitchhiked to Montreal on the day Dr. Warrick was killed. He recalled the day because it was Superbowl Sunday. According to Clancey, he and Kimberley split up after they arrived in Montreal. Clancey returned to Toronto in March. Clancey was shown a copy of Vermillion's statement. He said it was "bullshit" and denied any involvement in the robbery or death of Dr. Warrick.

[23] Clancey was interviewed after his arrest on April 20, 1991. The police told Clancey that a ticket issued to him for hitchhiking on Highway 401 confirmed that he went to Montreal on February 3, 1991 and not January 27. Clancey said that he must have mixed up the dates. He then provided details as to his whereabouts on January 27. He confirmed that he was with Vermillion in Toronto at various times on that date and was unsure whether Kimberley was with them. He insisted that he had nothing to do with Dr. Warrick's death.

[24] In December 1991, counsel for Clancey provided a formal notice of alibi detailing his whereabouts on January 27. There was evidence at trial that Clancey gave different accounts of his whereabouts on the evening of January 27 to different people in the weeks following the homicide. There was also some evidence that Clancey tried to solicit the assistance of one person to support his false story that he was not in Toronto on January 27. Apart from evidence given by Vermillion and Kimberley which placed Clancey at the scene of the crime, no other witness gave evidence as to where he was at the time of the killing.

[25] The Crown attempted to connect Clancey to shoe impressions found at the scene of the crime. These impressions were found in blood near the body. Expert evidence established that the impressions were made by a 1990 Nike Air Jordan running shoe, likely a size 10 and perhaps a size 11. Clancey had size 12 1/2 feet and the shoes seized from him when he was arrested were size 12. They were not Nike Air Jordan running shoes. At trial, Clancey was able to get his feet into a size 11 Nike Air Jordan, but his toes were right at the end of the shoe.

[26] Vermillion testified that on January 27 Clancey was wearing running shoes which Vermillion described as "Nike Air something". Vermillion said that the shoes looked too small for Clancey. Kimberley also testified that Clancey was wearing new Nike Air Jordan running shoes on January 27. A day or two later, Kimberley noticed reddish stains on the toes of those shoes. A few days later, Clancey was wearing different shoes.

[27] When Kimberley testified, he acknowledged going to the condominium building with Clancey to steal a coat from a parked car. He denied any involvement in the robbery and killing of Dr. Warrick. He also denied that he had a pipe in his possession. He insisted that he was under the influence of drugs and had difficulty recalling details.

[28] According to Kimberley's trial evidence, he and Clancey entered the condominium building on their way to the garage. They encountered a woman on the elevator. As she stepped out of the elevator, Clancey turned to Kimberley and told him to wait at the elevator as he was going to "take her out". Kimberley thought that Clancey was going to take the woman's purse. After Clancey left the elevator and followed the woman, Kimberley took the elevator up a couple of floors to find a place where he could defecate. He also ingested some cocaine. Kimberley then took the elevator back to the floor where he had left Clancey. When the elevator opened on that floor, Clancey entered and said "come on let's get out of here, you don't want to see this". Kimberley said he wasn't sure what had happened and could not see anything unusual outside of the elevator. He testified that he and Clancey left the building, joined Vermillion and returned to the abandoned apartment. Clancey went through the contents of the purse and in response to a question from Vermillion said that he had "bitch slapped" the victim but had not hurt her.

[29] Kimberley had no explanation for why he had not seen any part of the assault on Dr. Warrick. On the physical evidence, that assault had clearly commenced immediately outside of the elevator doors.

[30] Kimberley testified that he and Clancey hitchhiked to Montreal on February 3. According to him this had nothing to do with the death of Dr. Warrick. He left Toronto because of a bad drug deal.

[31] In support of his defence that he was not involved in the killing, Kimberley led evidence that he had a reputation as a non-violent person and as someone who would not physically abuse women. The potential value of this evidence was somewhat diminished by other evidence to the effect that he did have a propensity to rob or "rip off" others to support his drug habit. Kimberley also led evidence that Clancey, by his own admission to others, and by his conduct on other occasions, had demonstrated a propensity to act violently when in need of cocaine.

III

The "Teed" Evidence

(a) Overview

[32] At the commencement of the trial, the appellants sought to introduce evidence that a person named David Teed had killed Dr. Warrick. Teed had committed suicide in December 1991 prior to the commencement of the trial. The defence motion raised two issues:

-- Could the defence lead any evidence that David Teed had killed Dr. Warrick?

-- If the defence could lead evidence that Teed had killed Dr. Warrick, was the evidence proffered by the defence for that purpose admissible?

[33] Applying R. v. McMillan (1975), 1975 43 (ON CA), 7 O.R. (2d) 750, 23 C.C.C. (2d) 160 at pp. 167-68 (C.A.), affd, 1977 19 (SCC), [1977] 2 S.C.R. 824, 73 D.L.R. (3d) 759, the trial judge held that there was sufficient other evidence connecting Teed to the homicide to open the evidentiary door to the defence claim that Teed and not Kimberley or Clancey had killed Dr. Warrick. As the Crown does not challenge that ruling on appeal, I can briefly summarize the evidence admitted by the trial judge which connected Teed to the homicide.

[34] Teed was seen leaving the Sutton Place Hotel, located next to Dr. Warrick's building, at about 10:30 p.m. on January 27, 1991. He had consumed many beers and argued with the hotel personnel just before leaving the hotel.

[35] Teed knew a woman named Lynn Docherty who lived in the same building as Dr. Warrick. He had tried to contact her by telephone several times during the evening of January 27 while he was drinking beer at the Sutton Place Hotel. Ms. Docherty was not at home. There was also circumstantial evidence from which it could reasonably be inferred that Teed went to Ms. Docherty's residence in the building some time before 10:30 p.m. when Ms. Docherty arrived home. There was also evidence from which it could be reasonably inferred that he knocked on her door at some time after 11:00 p.m. when Ms. Docherty was asleep. Ms. Docherty heard the knock but did not answer the door.

[36] In addition to the evidence placing Teed at or near the scene of the crime when it occurred, there was evidence that Teed was wearing a new pair of size 10 Nike Air Jordan running shoes on January 27. He gave those shoes to the son of a friend a few days after January 27. The shoes were never recovered.

[37] The trial judge also admitted evidence that Teed had pleaded guilty to the first-degree murder of Dawn Chwartacki in British Columbia on November 26, 1991. Ms. Chwartacki was murdered in Abbotsford, British Columbia on April 16, 1991. The trial judge allowed the defence to lead evidence of the plea and the agreed statement of facts on which the plea was based. [See Note 2 at end of document]

[38] In his instructions to the jury, the trial judge explained the purpose of the evidence of Teed's plea and conviction on the Chwartacki murder in these words:

Evidence of the plea of guilty and the circumstances that gave rise to the offence admitted by David Teed is offered as evidence of David Teed's tendency or disposition to or character for violence. This evidence, either alone or with other evidence, may support an inference that it was David Gordon Teed, not Thomas Clancey nor Craig Kimberley, who unlawfully caused the death of Carolyn Warrick . . . .

[39] The trial judge repeatedly told the jury that the defence was not obliged to prove that Teed had murdered Dr. Warrick. He made it clear that if the "Teed" evidence left the jury with a reasonable doubt as to Clancey's involvement in the murder, the jury was required to acquit Clancey. He gave the same instruction with respect to Kimberley and reminded the jury that they must give separate consideration to the case against each accused.

[40] As is evident from the jury's verdict, the "Teed" evidence admitted by the trial judge did not leave the jury with any doubt as to the culpability of the appellants. The appellants contend, however, that the trial judge erred in refusing to also admit statements made by Mr. Teed in which he admitted killing Dr. Warrick.

(b) The time line

[41] The admissibility of Teed's statements was canvassed in a pre-trial voir dire that stretched over some two-and-a-half years. The evidence on that voir dire examined in minute detail events which occurred in Ontario and British Columbia between January 27, 1991 and Teed's death in December 1991. A time line provides a helpful synopsis of the relevant events.

January 26, 1991

Teed leaves a halfway house in Montreal. He has some ten years remaining on sentences imposed for various property offences.

January 27, 1991 10:30-11:00 p.m.

Teed is in Toronto, at or near Dr. Warrick's building.

January 27-mid-March 1991

Teed is in the Toronto area and sees Ms. Docherty on several occasions.

April 16, 1991

Teed is in Abbotsford, British Columbia under an assumed name. Dawn Chwartacki is murdered.

April 18, 1991

Teed is arrested in Hope, British Columbia and charged with fraud-related offences. It is also determined that he has a lengthy remnant on an earlier sentence. He is sent to Matsqui penitentiary. Teed is not a suspect in either the Warrick or Chwartacki homicides.

May-June 1991

Teed is very unhappy in the Matsqui Institution. His behaviour becomes aggressive and erratic. He refers to having killed before.

Mid-June 1991

Teed has become a suspect in the Chwartacki homicide. The police investigating that homicide have learned that Teed was staying in a hotel in Abbotsford on April 16. The police have reason to believe that the killer travelled from that hotel to the scene of the Chwartacki murder.

July 3, 1991

Teed's behaviour at the Matsqui Institution continues to deteriorate. He is transferred to Kent Institution, a maximum- security facility, and placed in segregation. Teed is not happy with his new surroundings.

July 4, 1991

Constable Simpson, the chief investigator in the Chwartacki homicide, conducts his first interview with Teed.

July 9, 1991

Teed tells Simpson that he will tell him about the Chwartacki homicide and two murders "back east" if the police meet his demands. Teed wants the return of certain personal belongings that were seized from him when he was arrested, and more favourable living conditions in Kent Institution. Teed refers to one of the murders back east as "high profile" and identifies the victim as Dr. Warrick.

July 12-July 17, 1991

Simpson has almost daily contact with Teed.

July 18, 1991

Teed provides the first detailed account of Dr. Warrick's homicide to the officers investigating the Chwartacki homicide.

July 30, 1991

Teed provides further details of Warrick's homicide to the officers investigating the Chwartacki homicide.

August 8, 1991

Toronto police in charge of the Warrick investigation interview Teed in British Columbia. He acknowledges his involvement in the Warrick homicide but declines to provide details until he speaks to his lawyer.

August 8-14, 1991

Teed speaks to the British Columbia police and provides further details concerning Dr. Warrick's homicide.

August 25, 1991

Toronto police officers attend at Kent Institution to transport Teed to Toronto for the purpose of testifying at the preliminary inquiry into the Warrick homicide. Teed tells the officers that his statements about the Warrick homicide were all "bullshit".

August 26-October 3, 1991

Teed is in Toronto testifying at the preliminary inquiry. He testifies for a total of 16 days during which he gives various versions of the relevant events, none of which amounts to an admission that he killed Dr. Warrick. He has numerous contacts with the Toronto police in which he also makes various statements concerning the Warrick homicide.

October 5-November 26, 1991

Teed is back in Kent Institution. He speaks to the British Columbia investigators from time to time. He indicates that he did kill Dr. Warrick and that he was pressured to testify to the contrary at the preliminary inquiry by the Toronto investigators. Teed also indicates that he wishes to plead guilty to the murder of Ms. Chwartacki.

November 26, 1991

Teed pleads guilty to the first-degree murder of Dawn Chwartacki and is convicted.

December 25, 1991

Teed commits suicide using the cord from the television set provided to Teed in return for his co-operation.

(c) The various statements

[42] Teed's statements concerning Dr. Warrick's killing can be placed into three groups. The first consists of statements made by Teed while in custody in British Columbia. These statements were made before and after his testimony at the preliminary inquiry. They were made primarily to the British Columbia police officers investigating the Chwartacki homicide. In these statements, which I will refer to as the British Columbia statements, Teed admits killing Dr. Warrick. His description of the relevant events changes, however, in the course of these various statements.

[43] The second group consists of statements made by Teed to Toronto police officers. These statements were made when Teed was being brought from British Columbia to Toronto to testify at the preliminary inquiry and while he was incarcerated in Toronto during the preliminary inquiry. I will refer to these as the Toronto statements. In these statements Teed recants his earlier admissions which he describes as "lies". Teed makes various statements concerning his knowledge of the Warrick homicide. At one time he says he saw the murder and was involved in it. He later states that he was not involved in the murder but spoke to Clancey in downtown Toronto shortly afterwards and that Clancey admitted the killing. Still later, Teed says he was a witness to the murder of Dr. Warrick and that she was murdered by two people. In the Toronto statements, Teed provided various reasons for falsely admitting to the British Columbia investigators that he killed Dr. Warrick.

[44] The third category of Teed's statements consists of those made by him during the 16 days he testified at the preliminary inquiry. Teed's testimony at the preliminary inquiry was remarkable for its inconsistency. He was a very difficult witness with no apparent regard for the obligation to tell the truth. At one point in the preliminary inquiry after Teed had been testifying for several days, counsel for Clancey observed:

We have already been a long time with this witness and I am trying to keep it from going another two weeks on the stand with this one witness. The more stories we get, the more he is going to have to be cross-examined on. And while he is patently unreliable, I think it's an unusual enough situation, Your Honour, that there should be some restrictions placed on him and he should be forced to be more responsive to the questions that are being asked . . .

Your Honour will recall that I basically put a theory to this witness earlier in his testimony, to the effect that Mr. Teed appears to me to be an individual who will say anything, at any time, for any reason, mostly on whim, in order to assume some control of the situation and in order to try and influence other people to follow up and investigate. To use the vernacular, Your Honour, I think he is trying to jerk us around. This other story that he is bursting to tell us is just another attempt at sending us on further red herrings, down the road, after other endless chases, after ridiculous evidence that has no semblance, or bearing whatsoever to reality . . .

(Emphasis added)

[45] It is difficult to provide a comprehensive and comprehensible summary of Teed's evidence at the preliminary inquiry. Initially, in response to questions from the Crown, Teed described his whereabouts on January 27 without any reference to Dr. Warrick's homicide and readily acknowledged that he had lied to the police officers in British Columbia about killing her. A short time later, while still under questioning by Crown counsel, Teed said that he may or may not have killed Dr. Warrick. On the second day of his testimony, Teed said that he was very drunk on the evening of January 27 and although he had no recollection of killing her, he must have done so because he did recall having her purse and blood stains on his clothes when he left her building. On the afternoon of the second day of his evidence, while still being questioned by Crown counsel, Teed announced that none of what he had said earlier in his testimony was true and that he had not killed Dr. Warrick. Still later, he testified that he was in the building and came upon Dr. Warrick as she was being assaulted. On this version he was a witness to the murder. As this version developed during Teed's evidence, Teed described an attack by two men, one of whom he identified as Clancey. Previously, Teed had said he did not know Clancey. At one point in his evidence, Teed said:

Now, whether or not there were other witnesses that saw -- if there were witnesses that saw me leave the area -- come out of the elevator into the front lobby or saw Mr. Clancey and his partner running out of the park, I don't know. So I did not want to get caught in a lie either way. Whether I was to continue on with my lie as to whether I did commit the murder, or I didn't commit the murder or I have any involvement in the murder, I didn't want to be caught in a lie either way, because I knew there were two people there. I know that two people committed the murder. But, nobody saw that except me. I am the only one that saw that there were two people there with the victim.

(Emphasis added)

[46] In his testimony Teed gave many different explanations for how he came to know some of the details of the Warrick homicide. He said that he had heard some of the details while living in the area in the weeks following the homicide. He also said that the officers investigating the Chwartacki homicide had given him some of the details surrounding the Warrick homicide. According to Teed, those same officers had corrected some of the errors he made when purporting to recount the events surrounding the Warrick homicide. Teed also said that he had read some of the details in various newspapers and learned further details from talking to newspaper reporters. Finally, Teed said that he had simply guessed at some of the details.

[47] In his testimony, Teed also gave many reasons for falsely admitting to the British Columbia investigators that he had killed Dr. Warrick. He said he had been promised $1,000 by the defence if he co-operated and produced evidence exculpating the accused. Teed also said that he had nothing to lose as he knew he would be serving a life sentence for the Chwartacki murder and that in any event, he intended to commit suicide. Teed also said taking responsibility for the Warrick murder would improve his status in prison and embarrass his mother. At another stage in his evidence, Teed said that he simply enjoyed "screwing the system". Finally, Teed said that he thought the admissions he made concerning the Warrick murder would help him get some of the things he was seeking from the British Columbia investigators, such as a television set for his jail cell.

(d) The positions of the parties

[48] At trial, the appellants sought to lead evidence of Teed's British Columbia statements. They also brought a motion to exclude Teed's preliminary inquiry testimony, arguing that police misconduct resulted in a breach of the appellant's constitutional rights and rendered Teed's preliminary inquiry testimony inadmissible under s. 24(2) of the Canadian Charter of Rights and Freedoms.

[49] The Crown did not seek to tender any of Teed's statements or testimony as part of its case. It did, however, take the position that if, and only if, the trial judge admitted Teed's British Columbia statements, he should also admit Teed's Toronto statements and the preliminary transcript so that the jury would have a "complete picture" of what Teed had said concerning the Warrick homicide.

[50] Near the end of the long argument that followed the lengthy voir dire, counsel for Clancey took the position that if the trial judge would admit the British Columbia statements only if the Toronto statements and the preliminary inquiry testimony were also admitted, then it was counsel's position that all of the statements should be admitted. In other words, counsel took the position that he preferred the admission of all of the statements over the exclusion of all of the statements. While the position taken by counsel for Kimberley is less clear, it is at least arguable that he eventually took that position as well. At trial, Crown counsel objected to what she described as a last-minute change of position by the defence. She argued that counsel's reply submissions were contrary to the position they had taken throughout the long voir dire. In his reasons, the trial judge did not refer to counsel's submission that the admission of all of Teed's statements was preferable to the exclusion of all of the statements.

[51] On appeal, counsel for the appellants abandoned the primary position taken at trial. In their facta, they argued not that the trial judge should have admitted the British Columbia statements standing alone, but that he erred in not admitting those statements and the evidence given by Teed at the preliminary inquiry. In his oral submissions, counsel for Kimberley went a step further. He submitted that even if the British Columbia statements were inadmissible under any circumstances, the trial judge erred in not admitting Teed's preliminary inquiry evidence alone. Counsel for Clancey did not join in this submission.

[52] Crown counsel strenuously argued that it should not be open to the appellants to take either position advanced on appeal as those positions contradicted tactical decisions made at trial.

[53] I agree in part with Crown counsel's submission. During the over two years that passed during the voir dire into the admissibility of Teed's statements, the appellants never asked the trial judge to admit Teed's preliminary inquiry testimony on its own. Throughout the voir dire, the defence argued that the preliminary inquiry evidence was tainted by constitutional misconduct. Nor did Crown counsel ever ask the trial judge to admit the preliminary inquiry testimony standing alone. It was the Crown's position that the potential admissibility of the preliminary inquiry evidence became relevant only if the British Columbia statements were admitted.

[54] Clearly, defence counsel at trial saw no advantage to the admission of Teed's preliminary inquiry testimony standing on its own. That testimony contained no clear admission by Teed that he had killed Dr. Warrick. The most benign view of that testimony from the defence perspective was that Teed was a totally unreliable person. This hardly assisted the defence. At worst for the defence, the last version of events given by Teed in his testimony was evidence that two men, one of whom was Clancey and the other who looked like Kimberley, were engaged in a joint assault on Dr. Warrick at the time and place where she was eventually killed.

[55] Kimberley's submission on appeal that the trial judge erred in not admitting the preliminary inquiry testimony on its own amounts to a contention that the trial judge should have made a ruling that he was never asked to make, and that directly conflicted with the position taken by both the Crown and the appellants at trial. I have no doubt that had the trial judge been so bold as to make such a ruling, it would have constituted the appellants' first ground of appeal.

[56] While appellate counsel are not locked into positions taken on behalf of their clients at trial, appeals cannot be conducted without any regard to the conduct of the trial. To permit counsel to advance a position which was not only not put forward at trial, but which is a direct contradiction of the position advanced at trial, would be to make a mockery of the process.

[57] I do not, however, agree with Crown counsel's submission that the appellants should not be allowed to argue on appeal that the British Columbia statements along with Teed's preliminary inquiry testimony should have been admitted. This argument was made at trial, albeit at the eleventh hour. The Crown has not satisfied me that any prejudice befalls the Crown or the administration of justice by allowing the appellants to make what was a secondary position at trial their primary position on appeal. The linking of the admissibility of the British Columbia statements to the admission of the preliminary inquiry transcript does not, however, change the fundamental issue to be addressed. Whether alone, or in combination with the preliminary inquiry testimony, the British Columbia statements were admissible only if the appellants could demonstrate that their admission was reasonably necessary and that the statements were sufficiently reliable to justify placing them before the jury.

(e) The admissibility of Teed's British Columbia statements

[58] The British Columbia statements were tendered for their truth and were hearsay. Hearsay is normally inadmissible. At trial, counsel argued that the British Columbia statements were admissible either as declarations made against penal interest by a person who was not available to give evidence, or under the principled approach to the admissibility of hearsay evidence developed by the Supreme Court of Canada in a line of cases beginning with R. v. Khan, 1990 77 (SCC), [1990] 2 S.C.R. 531, 59 C.C.C. (3d) 92. On appeal, counsel did not rely on the penal interest exception to the rule against the admission of hearsay evidence but focused exclusively on the necessity/reliability analysis required by the principled approach.

[59] I agree with counsel's approach to the admissibility of the British Columbia statements. As Iacobucci J., for the majority, recently said in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, 147 C.C.C. (3d) 449 at p. 253 S.C.R., p. 534 C.C.C.:

Hearsay evidence may only be admitted if it is necessary and reliable, and the traditional exceptions should be interpreted in a manner consistent with this requirement.

[60] The words of Iacobucci J. are particularly apt where the statement against penal interest is the "traditional exception" said to provide a ticket to admissibility. That exception was first recognized in R. v. O'Brien (1977), 1977 168 (SCC), [1978] 1 S.C.R. 591, 35 C.C.C. (2d) 209. Unlike many of the older exceptions it has not congealed into a rule dependent upon the existence of certain predetermined factors. Instead, the exception as recognized in R. v. O'Brien, supra, at pp. 601-02 S.C.R., p. 216 C.C.C., depends on the existence of sufficient "guarantees of trustworthiness" to warrant the admission of the statement. The approach to the admissibility of statements against penal interest adopted in R. v. O'Brien, supra, presaged the principled approach to the admissibility of all hearsay developed in later cases by the Supreme Court of Canada. Whether characterized as a statement against penal interest, or simply viewed as hearsay, the British Columbia statements were admissible only if the appellants established the separate requirements of necessity and reliability: R. v. Hawkins, 1996 154 (SCC), [1996] 3 S.C.R. 1043 at pp. 1080-81, 111 C.C.C. (3d) 129 at p. 155; R. v. U. (F.J.), 1995 74 (SCC), [1995] 3 S.C.R. 764 at p. 787, 128 D.L.R. (4th) 121.

[61] The necessity inquiry mandated by the principled approach to hearsay is straightforward in this case. The admission of hearsay evidence is necessary where the declarant is unavailable to testify and the party tendering the hearsay statement is unable to obtain evidence of a similar quality from some other source: R. v. Hawkins, supra, at pp. 1081-82 S.C.R., p. 156 C.C.C. Teed killed himself prior to trial and was obviously unavailable to testify.

[62] Crown counsel, echoing comments made by the trial judge, suggested that Teed's preliminary inquiry testimony amounted to another source from which Teed's evidence could be obtained, thereby negating the need to admit the British Columbia statements. There would be considerable merit to this submission if the substance of the British Columbia statements and Teed's preliminary inquiry testimony were the same. They were not. In fact, most of Teed's preliminary inquiry evidence amounted to a retraction of the admissions he had made in the British Columbia statements and explanations for the lies he told.

[63] From the appellants' perspective, the crucial parts of the British Columbia statements were the detailed admissions by Teed concerning Dr. Warrick's killing. Those admissions could only get before the jury if the British Columbia statements were received into evidence. In my view, even if Teed were alive, and assuming his position at trial would have been the same as at the preliminary inquiry, the appellants would have made out a case for the necessity of receiving the British Columbia statements: R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740, 79 C.C.C. (3d) 257 at pp. 295-96. Teed's demise only strengthens the need to receive the British Columbia statements. The necessity criterion is met.

[64] The reliability requirement looks to threshold reliability and not the ultimate truth of the statements tendered. Hearsay evidence is inherently suspect for many reasons: R. v. B. (K.G.), supra, at pp. 271-72; R. v. Starr, supra, at pp. 228-29 S.C.R., p. 515 C.C.C. The threshold reliability inquiry looks to the circumstances in which the out-of-court statements were made to determine whether those circumstances negate or at least ameliorate the dangers inherent in hearsay evidence to the degree that the jury can safely evaluate those statements and determine their ultimate reliability. In R. v. Hawkins, supra, at p. 1084 S.C.R., pp. 157-58 C.C.C., threshold reliability was described in these terms:

The criterion of reliability is concerned with threshold reliability, not ultimate reliability. The function of the trial judge is limited to determining whether the particular hearsay statement exhibits sufficient indicia of reliability so as to afford the trier of fact a satisfactory basis for evaluating the truth of the statement. More specifically, the judge must identify the specific hearsay dangers raised by the statement, and then determine whether the facts surrounding the utterance of the statement offer sufficient circumstantial guarantees of trustworthiness to compensate for those dangers. The ultimate reliability of the statement and the weight to be attached to it, remain determinations for the trier of fact.

(Emphasis added)

[65] In R. v. Starr, supra, at p. 254 S.C.R., p. 534 C.C.C. after quoting R. v. Hawkins, supra, with approval, the majority went on to say:

Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness. This could be because the declarant has no motive to lie [citations omitted] or because there were safeguards in place such that a lie could be discovered [citations omitted].

(Emphasis added) [Underlining in original]

[66] The hearsay dangers presented by Teed's British Columbia statements run the full gamut of the dangers associated with hearsay evidence. He was not under oath or any imperative to speak the truth. The statements were not videotaped so there was no basis upon which a jury could assess Teed's demeanour and, perhaps more importantly, the interaction between Teed and his questioners. There is nothing approaching a detailed summary, much less a verbatim record, of what was said by Teed and what was said to Teed in these interviews. Teed insisted that his conversations concerning the Warrick killing should not be recorded. The only record of what he said consists of brief notes made by the British Columbia investigators some time after the various interviews. In the absence of anything approaching a full and accurate record of what was said, it is virtually impossible to discern either the contents or the context of Teed's British Columbia statements. Finally, Teed was not subject to cross-examination when he made these statements.

[67] The appellants submit that the dangers outlined above are overcome by the fact that Teed's British Columbia statements amounted to a confession to a murder made to police officers. The appellants argue that Teed could fully expect serious penal consequences as a result of the British Columbia statements and that his willingness to make those statements gives them a high degree of reliability.

[68] The circumstance relied on to establish the reliability of Teed's British Columbia statements is the same as the rationale driving the penal interest exception to the exclusion of hearsay evidence. However, as explained in R. v. O'Brien, supra, at pp. 215-16, the rationale only operates where the statement is made in circumstances where the declarant apprehends an immediate vulnerability to penal consequences. A person who confesses a murder to police officers will usually apprehend that immediate penal consequences will flow from that confession. Teed was, however, in a very unusual situation. He fully intended to plead guilty to the Chwartacki homicide knowing that he would be sentenced to life imprisonment. Any consequences which might flow from his admissions concerning Dr. Warrick would not really alter his future or impose any additional penal consequences: R. v. Demeter (1975), 1975 685 (ON CA), 10 O.R. (2d) 321, 25 C.C.C. (2d) 417 at p. 440 (C.A.), affd, 1977 25 (SCC), [1978] 1 S.C.R. 538, 34 C.C.C. (2d) 137 at pp. 139-42.

[69] In my view, Teed apprehended no additional penal consequences flowing from his British Columbia statements. Consequently, the fact that the statements amounted to confessions to murder made to police officers does not enhance the reliability of those statements.

[70] In addition to finding that Teed did not apprehend penal consequences as a result of his British Columbia statements because of his intention to plead guilty to the Chwartacki homicide, the trial judge also found that Teed had motives to falsely admit responsibility in the Warrick homicide. According to the trial judge, Teed was motivated by self-aggrandizement, a desire to manipulate the criminal justice system and a desire to improve his living conditions in the Kent Institution. The trial judge said:

While most would consider confessing to a crime that carried a minimum punishment of imprisonment for life decidedly against their interests, it was of not great moment to David Teed who wanted to spend the rest of his life in prison, and did.

[71] I accept the trial judge's finding that Teed had reasons to falsely confess to the Warrick homicide. Those motives to lie rendered the British Columbia statements all the more unreliable: R. v. Starr, supra, at pp. 253-55 S.C.R., pp. 534-35 C.C.C.; R. v. Smith, 1992 79 (SCC), [1992] 2 S.C.R. 915 at pp. 935-37, 75 C.C.C. (3d) 257 at pp. 272-73.

[72] The trial judge's finding that the British Columbia statements were not against Teed's interests as he perceived them, but rather, promoted those interests, and that Teed had motives to falsely confess to Dr. Warrick's killing, combined with the absence of any circumstance that would counter the hearsay dangers inherent in Teed's statements, compel the finding that the appellants did not demonstrate threshold reliability.

[73] While I could stop the analysis here, there are additional factors referred to by the trial judge and the Crown in argument that warrant some reference. As indicated above, the statements were not recorded when made. The absence of any video or even audio recording of the statements creates the reliability problems that I have referred to above. In this case, however, the statements were not recorded because Teed insisted that they not be recorded. It is obvious that Teed did not want a record of what he said to the British Columbia police concerning the Warrick homicide. His insistence that there be no record of those statements further undermines their reliability.

[74] Teed's various statements concerning the details surrounding the killing of Dr. Warrick were inconsistent in some material particulars. Inconsistency in itself may be some indicator of unreliability. More important to me is Teed's reaction when confronted with apparent inconsistencies between his statements and the actual circumstances surrounding the killing. For example, Teed initially told the British Columbia police that after he murdered Dr. Warrick, he left the building through the lobby. The physical evidence made it clear, however, that whoever killed Dr. Warrick left through the garage. When the British Columbia police (contrary to the instructions of the Toronto police) advised Teed that the killer had left through the garage, Teed simply changed his story and indicated that he had left through the garage. Teed's reaction to the apparent inaccuracies in his statements hardly inspires confidence in their reliability.

[75] It is also significant in my mind that although Teed had willingly discussed the details of the Warrick homicide with the British Columbia investigators on many occasions, he refused to discuss the details with the Toronto police when they travelled to British Columbia in August 1991. The Toronto police, unlike their British Columbia counterparts, knew the details of the Warrick homicide. Teed was not prepared to discuss the details with those who were in a position to make an informed assessment of the truth of Teed's statements. This circumstance, like the others outlined above, heightens reliability concerns.

[76] The appellants submit that Teed's testimony at the preliminary inquiry overcomes any reliability concerns inherent in the circumstances in which the British Columbia statements were made. As I understand the submission, counsel argue that the opportunity at the preliminary inquiry to cross-examine Teed on any statements he made in British Columbia overcomes the hearsay dangers inherent in the statements themselves. This argument misunderstands the nature of the threshold reliability inquiry. As Iacobucci J. said in R. v. Starr, supra, at pp. 254-55 S.C.R., p. 535 C.C.C.:

At the stage of hearsay admissibility, the trial judge should not consider the declarant's general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of collaborating or conflicting evidence. . . . In summary, under the principled approach, a court must not invade the province of the trier of fact and condition admissibility of hearsay on whether the evidence is ultimately reliable. However, it will need to examine whether the circumstances in which the statement was made lend sufficient credibility to allow a finding of threshold reliability.

(Emphasis added)

[77] The circumstances attendant upon Teed's preliminary inquiry testimony, including the opportunity to cross-examine him, are relevant to the threshold reliability of statements he made at the preliminary inquiry, but can have no impact on the threshold reliability of what he said in British Columbia. It may be (and I stress may) that the circumstances surrounding Teed's preliminary inquiry testimony were such as to render what he said about the British Columbia statements in his testimony sufficiently reliable to warrant admissibility. It does not, however, follow that the statements themselves are sufficiently reliable to warrant their admissibility. The distinction is crucial in this case since Teed did not adopt his British Columbia statements in his testimony. To the contrary, he effectively recanted them.

[78] The appellants rely on R. v. Hawkins, supra, in support of their submission. I do not think this case helps. In Hawkins, supra, a declarant had testified at the preliminary inquiry. She gave two conflicting versions of many of the relevant events. At trial, the Crown sought to introduce the declarant's testimony from the preliminary inquiry. The court held that the preliminary inquiry testimony met the threshold reliability requirement, particularly as the declarant was available as a witness for the defence (but not the Crown) at trial. R. v. Hawkins, supra, would have relevance had the trial judge been asked to admit Teed's preliminary inquiry evidence. It offers no support, however, for the appellants' contention that reliability considerations applicable to evidence given at a preliminary inquiry can somehow render statements made prior to the preliminary inquiry sufficiently reliable to justify their admission into evidence.

[79] Counsel for Kimberley also argued that Teed's preliminary inquiry evidence would have no meaning unless the British Columbia statements were also admitted. Counsel for Kimberley was invited to demonstrate the validity of this submission by reference to any part of the preliminary inquiry transcript. He was unable to do so. I am certainly not prepared to accept this submission on faith. In any event, even if there was some merit to this contention, it does not enhance the reliability of the British Columbia statements. If anything, it would be an argument against admitting the preliminary inquiry testimony on its own.

[80] The appellants also argued that where hearsay evidence is tendered by an accused, the court should take a more relaxed view of the prerequisites to admissibility. It is well established that although the rules of evidence generally apply equally to the Crown and defence, a trial judge can relax those rules in favour of the defence where it is necessary to prevent a miscarriage of justice: R. v. Williams (1985), 1985 113 (ON CA), 50 O.R. (2d) 321, 18 C.C.C. (3d) 356 at pp. 372, 378 (C.A.); R. v. Finta (1992), 1992 2783 (ON CA), 73 C.C.C. (3d) 65 at pp. 200-03, 92 D.L.R. (4th) 1 (Ont. C.A.), affd, 1994 129 (SCC), [1994] 1 S.C.R. 701, 88 C.C.C. (3d) 417 at pp. 527-28; R. v. Folland (1999), 1999 3684 (ON CA), 43 O.R. (3d) 290, 132 C.C.C. (3d) 14 at pp. 31-32 (C.A.). Those cases do not, however, invite an abandonment of the threshold reliability inquiry where hearsay evidence is tendered by the defence. As Martin J.A. said in R. v. Williams, supra, at p. 343 O.R., p. 378 C.C.C.:

It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist.

(Emphasis added)

[81] Where hearsay evidence cannot pass the threshold reliability standard, the "danger" which justifies the exclusionary rule is very much in existence. What the cases referred to above do recognize is that fairness concerns may sometimes militate in favour of admitting defence evidence. These concerns may tip the reliability/necessity analysis in favour of the accused. Fairness concerns could not assist the Crown were it to tender the same evidence: R. v. Finta, supra; R. v. Folland, supra. Similarly, due process concerns, particularly the concern that an accused have a full opportunity to confront inculpatory evidence presented against that accused, may operate against admitting hearsay evidence tendered by the Crown. That concern would not have any relevance if the same evidence was tendered by an accused.

[82] The kinds of concerns which can lead a court to admit hearsay evidence tendered by the defence when the same evidence would not be admitted if tendered by the Crown do not operate here. The appellants have failed to demonstrate that the circumstances surrounding the making of the British Columbia statements by Teed offer any basis for a finding that those statements are sufficiently reliable to warrant their admissibility. The admission of evidence of such inherently unreliable statements would hardly prevent a miscarriage of justice. Indeed, it could occasion a miscarriage of justice.

[83] For the reasons set out above, I agree with the trial judge's conclusion that the British Columbia statements could not clear the threshold reliability hurdle. The admission of Teed's preliminary inquiry testimony along with those statements does nothing to enhance their reliability.

IV

The Reasonable Doubt Instruction

[84] The trial judge's instruction on reasonable doubt predated R. v. Lifchus, 1997 319 (SCC), [1997] 3 S.C.R. 320, 150 D.L.R. (4th) 733. Not surprisingly, therefore, it did not track the model instruction provided in that decision. The appellants argued that the instruction on reasonable doubt in this case was not in substantial compliance with the model instruction in R. v. Lifchus, supra. Mr. Frost, counsel for Clancey, also contended that the trial judge failed to tell the jury that a reasonable doubt could arise from the absence of evidence.

[85] The trial judge instructed the jury as follows:

What is meant by "proof beyond a reasonable doubt"? As I told you earlier, it has been said that the term explains itself. It is achieved when you, as jurors, feel sure of the guilt of an accused. It is that degree of proof which convinces the mind and satisfies the conscience so you, as conscientious jurors, feel bound or impelled to act upon it. You must be able to say to yourselves, "he is really guilty. Of that I am morally certain." I said morally certain, not mathematically certain. You must feel sure of his guilt before finding guilt in respect of any accused in relation to any offence.

On the other hand, should the evidence which you have heard leave you, as a responsible juror, with some lingering or nagging doubt with respect to the proof of some essential element of the offence with which the accused are charged, first degree murder, or any offence which is included in it, so you are unable to say to yourself in respect of that accused in relation to that offence that the case has been proven beyond a reasonable doubt, your duty is then to find that accused not guilty in relation to that offence.

The doubt, I emphasize, members of the jury, must be reasonable doubt based on the evidence that you have heard in this case. It must not be a speculative, fanciful, imaginary, illusory doubt, conjured up in the mind of a timid juror so he or she may avoid his or her plain duty or responsibility. It must be, as well, with regard to an essential element of the crime, not in respect of some unessential matter. It must not be a doubt born of sympathy for nor prejudice against either the accused or the deceased. In other words, it must be a reasonable doubt, founded upon the evidence, neither speculative, fanciful, illusory, imaginary, born of sympathy nor animated by prejudice.

[86] The instruction is identical to that given by the same trial judge in R. v. Pan (1999), 1999 3720 (ON CA), 44 O.R. (3d) 415, 134 C.C.C. (3d) 1 at pp. 79-84, affd 2001 SCC 42, 2001 S.C.C. 42 at para. 128. The instruction in Pan was upheld by a five-person panel of this court. When this appeal commenced, R. v. Pan was on reserve in the Supreme Court of Canada. That court had earlier released its judgment in R. v. Starr, supra. After hearing the appellants' submissions, this court requested submissions from the Crown, having in mind the possible effect of the judgment in R. v. Starr, supra, on this court's approval of the reasonable doubt instruction in R. v. Pan, supra.

[87] The Supreme Court of Canada released its judgment in R. v. Pan, supra, on the morning that the Crown was to make its submissions in this appeal. Arbour J., in considering the reasonable doubt instruction in the light of R. v. Lifchus, R. v. Starr, and several other recent decisions from the Supreme Court of Canada, said at para. 128:

While some of the required elements in Lifchus were omitted from Watt J.'s charge and some of the terms that should have been avoided were included, I do not think that the deficiencies are such that they "cause serious concern about the validity of the jury's verdict, and lead to the conclusion that the accused did not have a fair trial". [Citations omitted.] For the reasons given in the recent cases from this Court, I agree with the Court of Appeal's conclusion that this ground of appeal should be dismissed.

[88] The arguments made by the appellants are the same as those made in Pan, supra. There is no basis to distinguish this charge from the charge delivered in that case. The holding in R. v. Pan, supra, dooms this ground of appeal.

V

Section 231(5)(e)

[89] Section 231 of the Criminal Code classifies certain murders, as defined in s. 229, as first-degree murders for the purpose of sentencing: R. v. Paré, 1987 1 (SCC), [1987] 2 S.C.R. 618, 38 C.C.C. (3d) 97 at p. 103; R. v. Luxton, 1990 83 (SCC), [1990] 2 S.C.R. 711, 58 C.C.C. (3d) 449 at p. 457; R. v. Harbottle, 1993 71 (SCC), [1993] 3 S.C.R. 306, 84 C.C.C. (3d) 1 at pp. 12-13. The Crown relies on s. 231(5)(e), which provides:

231(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:

(e) section 279 (kidnapping and forcible confinement); . . .

[90] Section 279(2) states in part:

279(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of

(a) an indictable offence . . .

[91] The trial judge instructed the jury to consider unlawful confinement and forcible seizure, both of which are set out in s. 279(2). I think he was correct in doing so but I can limit myself to the unlawful confinement component of s. 279(2) for the purposes of this appeal. Unlawful confinement was defined in R. v. Luxton, supra, at p. 723 S.C.R., pp. 458-59 C.C.C. as the "use of physical restraint contrary to the wishes of the person restrained, but to which the victim submits unwillingly, thereby depriving the person of his or her liberty to move from one place to another". [See Note 3 at end of document]

[92] It is beyond doubt that Dr. Warrick was unlawfully confined when the attack on her commenced outside the elevators. She remained confined when she was dragged across the elevator lobby and down the ramp where she eventually succumbed to the kicks and blows administered both at the elevator and at the place where she died.

[93] The appellants submitted at trial and on appeal that the confinement was part of the violence used to effect the robbery of Dr. Warrick. They argued that as Parliament has chosen not to add robbery to the offences in s. 231(5), it cannot have intended that a confinement which occurs during a robbery and in furtherance of a robbery should trigger liability for first- degree murder under s. 231(5)(e). It is the appellants' position that there was no evidence of confinement that did not form part of the robbery of Dr. Warrick and that the trial judge should have acceded to their motion for a directed verdict on the first-degree murder charge.

[94] The position advanced by the appellants is not new. It was rejected by the British Columbia Court of Appeal in R. v. Gourgon (1979), 1981 328 (BC CA), 58 C.C.C. (2d) 193, 19 C.R. (3d) 272 (B.C.C.A.). In that case, the deceased was killed in the course of a home invasion. The deceased had been tied up in the bedroom but got free and came into the living room to help a family member. He was stabbed to death in the melee which followed. On these facts, the trial judge told the jury that the appellant could not be convicted of first-degree murder under s. 214(5) [now s. 231(5)] if the confinement of the victim was incidental to the robbery or for the purpose of facilitating escape after the robbery.

[95] The British Columbia Court of Appeal unanimously rejected this interpretation of confinement for the purposes of the first-degree murder section, holding at p. 279 C.R.:

Nothing is expressed or implied in those sections about the purpose of the confinement. Neither is there anything in the history of the legislation to suggest a limitation of that nature to be placed upon the word "confinement". The interpretation that confinement for the one purpose of robbery is excluded cannot be supported. I think the jury should have been instructed that, if they decided that Gourgon did murder the victim, that murder was first degree murder if the jury also found that the victim's death was caused by Gourgon while he was confining or attempting to confine any one or more of the three occupants of the residence.

[96] R. v. Gourgon, supra, was applied in R. v. Pitre (1991), 1991 394 (BC CA), 2 B.C.A.C. 186 at pp. 191-92 (C.A.). Wood J.A. said at p. 192 B.C.A.C.:

As I have said there was evidence upon which a properly instructed jury acting reasonably could find that Dr. Pederman [the victim] was confined when the assault which caused his death was inflicted. Whether that confinement was incidental to a robbery or not is irrelevant. In my view, the trial judge correctly charged the jury that a verdict of first degree murder based on s. 231(5)(e) was open to them depending on their view of the facts. . . .

[97] R. v. Gourgon, supra, has also been applied in this province in R. v. Dollan and Newstead (1982), 1982 2006 (ON CA), 35 O.R. (2d) 283, 65 C.C.C. (2d) 240 (C.A.), leave to appeal to S.C.C. refused (1982), 42 N.R. 351n. In R. v. Dollan and Newstead, supra, the two accused entered the victim's home intent upon stealing keys to a truck so that they could use the truck to continue their flight and escape from the police. The wife of the deceased ran into the bedroom where her husband was in bed. When she refused to come out of the bedroom Dollan fired through the door wounding the wife and her husband. Eventually the residents of the house, including the husband, were tied up. The accused stole the keys to the truck and some other items and fled. The husband died in his bed from the gunshot wounds suffered when Dollan fired through the door.

[98] On appeal, Dollan argued that he could not be found guilty of first-degree murder based on s. 214(5) [now s. 231(5)] if the confinement of the victims was not separate and independent of the robbery. The argument was premised on the contention that robbery was not one of the offences enumerated in s. 231(5) and should not be indirectly read into the section via the unlawful confinement provision.

[99] Zuber J.A. for the court rejected this submission. After reference to a passage from R. v. Gourgon, supra, he said at p. 288 O.R., p. 245 C.C.C.:

It is of no consequence that the unlawful confinement may be incidental to the commission of some other crime as long as there has been an unlawful confinement contrary to s. 247 [now s. 279] of the Criminal Code. . . .

[100] The appellants submitted that R. v. Larcenaire (1987), 34 C.C.C. (3d) 548, 19 O.A.C. 93 (C.A.) had overtaken R. v. Dollan and Newstead, supra. As I read R. v. Larcenaire, supra, however, it turned entirely on the adequacy of the evidence adduced by the Crown to support its claim that the victim was unlawfully confined in the course of the events that culminated in his death. Martin J.A. accepted that a robbery victim who was forced at knifepoint from the front of a store to the back of the store would be unlawfully confined for the purposes of s. 231(5). He held, however, that the Crown's contention that this victim was so confined rested on "speculation and conjecture". Martin J.A. observed that the evidence showed no more than a killing "in a confined space during the robbery". Martin J.A. made no reference to R. v. Dollan and Newstead, supra. I cannot think that he meant to overrule or modify that authority without making any reference to it.

[101] The appellants also rely on R. v. Strong (1990), 1990 ABCA 327, 60 C.C.C. (3d) 516 at p. 527, 2 C.R. (4th) 239 (Alta. C.A.), where it was held that the transitory restraint inherent in the violence or threatened violence of every robbery could not constitute an unlawful confinement for the purposes of the constructive first-degree murder provisions. R. v. Strong has found favour in the Quebec Court of Appeal: R. v. Kingsley (1995), 1995 5061 (QC CA), 105 C.C.C. (3d) 85 at pp. 88-90, 45 C.R. (4th) 381 (Que. C.A.), leave to appeal to S.C.C. granted (1996), 108 C.C.C. (3d) vi, appeal discontinued on November 5, 1996, [1996] S.C.C.A. No. 84; R. v. Simon (2001), 2001 11996 (QC CA), 154 C.C.C. (3d) 562 at p. 569 (Que. C.A.). [See Note 4 at end of document]

[102] R. v. Strong, supra, makes no reference to R. v. Gourgon, supra, or R. v. Dollan and Newstead, supra. I would not be inclined to abandon a considered decision of this court in favour of a decision of another provincial appellate court that does not address this court's decision. More to the point, however, I do not agree with the reasoning in R. v. Strong, supra.

[103] R. v. Strong, supra, reads a limitation into the plain language of s. 231(5)(e) which is not there. Under the analysis in R. v. Strong, supra, some but not all unlawful confinements will provide a basis for categorizing murder as first-degree murder. The section itself, however, contains no such limitation. It speaks of offences against s. 279. Unlawful confinement is one of the offences created by that section. There is nothing in s. 231(5)(e) which suggests that unlawful confinements that are incidental to or in furtherance of other crimes are not encompassed by the section.

[104] I also cannot agree that the absence of any reference to robbery in s. 231(5) necessitates an interpretation of s. 231(5)(e) that excludes unlawful confinements committed in the course of a robbery. Robbery is a crime against both the person and property rights of the person. The organizing principle of s. 231(5) is the recognition that murders committed in the course of the unlawful domination of the victim are particularly blameworthy, and those who commit such murders are deserving of the greater punishment imposed for first-degree murder: R. v. Luxton, supra, at pp. 722-23 S.C.R., pp. 458-59 C.C.C. To the extent that the crime of robbery addresses property rights, its inclusion in s. 231(5) would be inconsistent with the underlying rationale of that section. However, to the extent that a particular robbery involves a crime of domination enumerated in s. 231(5), I see no reason why the murder which occurs in the course of that robbery becomes less blameworthy because the crime of domination was motivated by, furthered, or was otherwise incidental to a robbery.

[105] R. v. Luxton, supra, involved a murder committed in the course of a robbery. The accused hailed a cab in the downtown area and had the driver take him into the country, where he robbed and murdered the driver. The judgment of the Supreme Court of Canada in R. v. Luxton, supra, was directed at the constitutionality of s. 231(5) and not the meaning of unlawful confinement. The majority decision of Lamer C.J.C., however, impliedly rejects the contention that unlawful confinements committed in the course of a robbery cannot support a conviction under s. 231(5)(e).

[106] In his reasons, at p. 454, the Chief Justice quotes from the trial judge's charge. The references to the charge contain no suggestion that a forcible confinement incidental to robbery was not included in s. 231(5)(e). Nor is anything said by the Chief Justice in upholding the constitutionality of the section consistent with the argument advanced by the appellants. Three passages from the Chief Justice's reasons [at pp. 721-23 S.C.R., pp. 458-59 C.C.C.] are germane:

Murders that are done while committing offences which involve the illegal domination of the victim by the offender have been classified as first degree murder. Forcible confinement is one of those offences involving illegal domination. The added element of forcible confinement in the context of the commission of a murder, markedly enhances the moral blameworthiness of an offender. Indeed, forcible confinement is punishable by up to ten years in prison. . . .

Where the act causing death and the acts constituting the forcible confinement all form part of one continuous sequence of events forming a single transaction the death is caused "while committing" an offence for the purposes of 214(5) [citation omitted]. To commit the underlying offence of forcible confinement, the offender must use "physical restraint contrary to the wishes of the person restrained but to which the victim submits unwillingly thereby depriving the person of his or her liberty to move from one place to another".

Further, the policy decision of Parliament to classify these murders as first degree murders accords with the broader objectives of a sentencing scheme. The elevation of murder while committing a forcible confinement to first degree reflects a societal denunciation of those offenders who choose to exploit their position of dominance and power to the point of murder.

(Emphasis added)

[107] R. v. Luxton, supra, makes it clear that if in the course of a continuous sequence of events an accused commits the crime of unlawful confinement and chooses to exploit the position of dominance over the victim resulting from that confinement to murder the victim, then the accused has committed first degree murder as defined in s. 231(5)(e). The purpose of the confinement is not relevant.

[108] While I would reject the contention that unlawful confinements in the course of a robbery cannot provide the basis for liability under s. 231(5)(e), I do accept that a confinement which is inherent in the very act of killing could not be relied on to impose liability under s. 231(5)(e). This is not because there is no confinement, but because s. 231(5) (e) requires two discrete criminal acts, a killing that amounts to murder and a confinement that is unlawful. It is the occurrence of the two criminal acts in the course of the same transaction or series of events that justifies the added punishment imposed for first-degree murder. Thus, for example, if, with the requisite intent for murder, the appellants had struck and killed Dr. Warrick as she left the elevator and then took her purse, there would be no basis upon which the appellants could be convicted of first-degree murder under s. 231(5)(e). On this example, the act of confinement and the act of killing are one and the same. Where, however, there is a confinement and then in the course of the same series of events, the victim is murdered while under the unlawful domination of the killer, the rationale underlying s. 231(5)(e) is fully engaged. There is not only a murder, but there is a murder of a person under the domination of the attacker.

[109] On the evidence, the appellants restrained Dr. Warrick as she left the elevator. They physically disabled her and dragged her some 27 feet to the end of the ramp. They then exploited their position of dominance, not just by taking her money, but by also taking her life. They did so with one of the mental states required for murder as defined in s. 229. I have no difficulty concluding that their conduct fits easily within the definition of unlawful confinement and falls four square within the kind of conduct Parliament sought to denounce by elevating certain murders to the status of first-degree murder.

[110] For completeness' sake I would add that even on the approach favoured in R. v. Strong, supra, there was ample evidence of an unlawful confinement of Dr. Warrick beyond the transitory restraint inherent in the violence of the robbery perpetrated against her. On the physical evidence, it seems clear that Dr. Warrick was rendered unconscious by the blows administered at the elevator door. She was helpless to resist any robbery. The confinement and the attack, however, continued. As Taylor J.A. said in R. v. Peer, supra, at p. 256 C.C.C.:

The murder of persons already in this manner rendered helpless should, in my view, be taken to be within the intent of Parliament in enacting s. 231(5)(e) -- that is to say, the murder of persons who have previously been deprived of mobility and placed in an unnatural and helpless position so as to be subject to the will of their captors. Such confinement, as I have said, clearly went well beyond that necessarily involved in robbery. . . .

[111] The appellants' complaint that the jury was not properly instructed on the ambit of s. 231(5)(e) rests mainly on the assertion that the trial judge erred in instructing the jury that confinement incidental to a robbery could suffice for the purposes of s. 231(5)(e). For the reasons set out above I do not accept this submission.

[112] The trial judge properly defined unlawful confinement. He made it clear to the jury that the act of unlawful confinement was distinct from the act of killing and that both had to occur in the context of the same sequence of events. He repeatedly referred to the confinement requirement and the murder requirement as two separate elements of the offence of first degree murder as defined in s. 231(5)(e). His further instruction that the confinement "must be for some appreciable time" would further dispel any possibility that the jury would make a finding of confinement based only on the restraint produced by the blows that caused Dr. Warrick's death. In my view, the charge adequately captured the essence of s. 231(5) (e) as explained in R. v. Luxton, supra.

VI

[113] As indicated at the conclusion of oral argument, the appeals are dismissed.

Appeal dismissed.

Notes

Note 1: The length of the trial and the unfortunate death of one of the court reporters account for much of the long delay between the verdict and the hearing of the appeal (six years). The court assumed management of this appeal in November 1999 when advised of difficulties in obtaining parts of the transcript. The appeals were ultimately perfected in February 2001 and listed for a two-day hearing in June 2001.

Note 2: The Crown unsuccessfully argued at trial that if the plea was admissible, it should be allowed to lead evidence that Teed had not actually committed the murder to which he pleaded guilty. The trial judge refused to allow the Crown to attack the veracity of the plea or the bona fides of the conviction.

Note 3: The definition is taken from R. v. Gratton (1985), 18 C.C.C. (3d) 462, 7 O.A.C. 190 (C.A.), per Cory J.A. at pp. 472-73 C.C.C., leave to appeal to S.C.C. refused.

Note 4: R. v. Strong, supra, also appears to have been applied in R. v. Peer (1995), 1995 1395 (BC CA), 100 C.C.C. (3d) 251 (B.C.C.A.), leave to appeal to S.C.C. refused (1996), 204 N.R. 74n. In Peer, no mention is made of the two prior contrary authorities from the British Columbia Court of Appeal.