R. v. Farrant, [1983] 1 S.C.R. 124

Supreme Court of Canada

R. v. Farrant, [1983] 1 S.C.R. 124

Date: 1983-02-08

Her Majesty The Queen Appellant;

and

Rolan John Farrant Respondent.

File No.: 16627.

1982: April 29; 1983: February 8.

Present: Ritchie, Dickson, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Criminal law—Murder—Respondent charged with second degree murder—Evidence establishing first degree murder—Whether or not accused can be convicted of lesser included offence when evidence establishing guilt of the greater offence—Criminal Code, R.S.C. 1970, c. C-34, ss. 212, 213, 214, 247, 511.

Respondent, although originally charged with First degree murder, was committed to trial, at the Crown’s request following the preliminary hearing, on the lesser offence of second degree murder. At trial, however, respondent’s description of the circumstances surrounding the murder prompted the Crown to ask the judge to charge the jury with respect to constructive murder arising from unlawful confinement—an offence classified as first degree murder. Respondent, using a loaded rifle, had “persuaded” everyone at his girl friend’s house to leave. When the girl’s hysteria continued, even after he put the rifle in a different room, respondent retrieved it and shot her. The Saskatchewan Court of Appeal allowed the respondent’s appeal from his conviction of second degree murder and ordered a new trial; appellant appealed that decision.

Held (Ritchie and Wilson JJ. dissenting): The appeal should be allowed.

Per Dickson, Estey, McIntyre, Chouinard and Lamer JJ.: A conviction for second degree murder can be maintained when that offence has been charged even though the accused, by operation of statute, would have been guilty of first degree murder if so charged. The indictment need state only the legal character of the offence and not the exact section or sections of the Code. Sections 212 and 213 set out the elements of murder. To prove second degree murder, the Crown had to prove one of the requisite intents set out in s. 212, or that the accused had caused death during the commission of an offence set out in s. 213—here, forcible confinement—

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while using a weapon and during which death ensued as a consequence. Section 214 is subservient to ss. 212 and 213, and only classifies murder as first or second degree for sentencing purposes. The jury’s primary and essential determination was whether or not murder had been committed pursuant to ss. 212 or 213, and to this end considerations of the distinction between first and second degree murder were irrelevant. The trial judge did not need to make any reference in his charge to the jury to a finding of first degree murder pursuant to s. 214(5)(a) when the accused did not face the charge.

Even though the charge was reduced to second degree murder, respondent was not entitled to assume that he could not be tried for “murder by forcible confinement with a gun” because s. 214 made that offence first degree murder. The evidence established the factual underpinning of the charge and the charge to the jury could have been anticipated. The accused was never in jeopardy of a conviction of first degree murder and was not prejudiced in having to meet a first degree murder test.

The trial judge did not err in charging the jury on the presumption that a man intends the natural consequences of his actions for he clearly identified it as one of common sense and not of law, and he clearly indicated the jury was not required to draw the inference. The trial judge properly allowed the Crown’s cross-examination in respect of alleged incidents of earlier assault in view of the fact that Farrant had put his non-violent character in issue in earlier testimony. There is nothing in the evidence to support the contention that the trial judge, in the exercise of his discretion, erred in ruling the accused’s statement to police voluntary and admissible.

Per Ritchie and Wilson JJ. (dissenting): The conviction for second degree murder cannot be maintained when the respondent was charged with second degree murder which required a specific intent and the jury was instructed on first degree murder that required no such intent. The accused was prepared to address the “intents” required to prove second degree murder but not the question of forcible confinement that was central to the issue of constructive murder. The prejudice caused the accused occurred because the element of

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intent required for conviction on the lesser offence of second degree murder was not a prerequisite for conviction on constructive murder.

[R. v. Swietlinski, 1980 CanLII 53 (SCC), [1980] 2 S.C.R. 956; R. v. McKenzie, 1971 CanLII 174 (SCC), [1972] S.C.R. 409, referred to.]

APPEAL from a judgment of the Saskatchewan Court of Appeal (1981), 1981 CanLII 2082 (SK CA), 9 Sask. R. 7, allowing an appeal from a conviction and ordering a new trial. Appeal allowed, Ritchie and Wilson JJ. dissenting.

Kenneth W. MacKay, for the appellant.

Benjamin Goldstein, Q.C., and Robert Jackson, for the respondent.

The reasons of Ritchie and Wilson JJ. were delivered by

WILSON J. (dissenting)—I share the view of the members of the Saskatchewan Court of Appeal that the jury’s verdict in this case cannot stand.

It is not necessary for me to review the events leading up to the tragic death of sixteen year old Shannon Russell. My colleague, Mr. Justice Dickson, has already done so. I wish merely to make a few observations about ss. 212, 213 and 214 of the Criminal Code and their application to the facts of this case.

It is common ground, I believe, that while s. 212 requires a mental element in respect of the death, s. 213 does not. The only intent required for a murder conviction under s. 213 is the intent to commit the offence in the course of committing which the death ensued. Applying that to this case, the intent required to be proved against the respondent for a conviction under s. 213 was the intent to forcibly confine Shannon. If that intent were proved, then the respondent would be guilty of the offence of constructive murder under s. 213.

Section 214 classifies murder. It states that it is either first or second degree. It is first degree if planned and deliberate. It is also first degree if, even although not planned and deliberate, death

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occurred inter alia in the course of forcibly confining. Murder that is not first degree is second degree.

The respondent was charged with second degree murder. Since he admitted that he caused Shannon’s death, the only issue for the jury was whether he had either of the intents required by s. 212. Indeed, from the opening of the trial to the conclusion of the evidence, this was expressed by all parties, including the presiding judge, to be the sole issue before the Court. If he had the required intent, it was murder. If not, it was manslaughter. However, at the close of the evidence, after a week of trial, counsel for the Crown for the first time took the position that the jury should be instructed with respect to s. 213(d) of the Code to which defence counsel strenuously objected. The trial judge, however, charged the jury on s. 213(d) and instructed them that if they found that Shannon’s death occurred while the respondent was forcibly confining her, then they could find him guilty of murder because he had a gun. At no time, however, did he tell them that, of course, that would be first degree murder with which the accused was not charged.

In my respectful view the issue in this case is not which is the controlling section of the Code, s. 214 or ss. 212 and 213. Nor is it whether s. 214 is substantive in terms of distinguishing distinct offences of first and second degree murder or merely classifying them for sentencing purposes. I think the issue is: can the conviction for second degree murder be maintained when the respondent was charged with second degree murder which required a specific intent and the jury was instructed on first degree murder that required no such intent. I think it cannot. The accused, having been charged with second degree, was entitled to plead and conduct his defence on the basis that the Crown had to prove one of the intents under s. 212. This was the case he came prepared to meet. He denied having either of these intents and testified that the gun simply went off. The jury,

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however, may have convicted him, in light of the judge’s charge, on the basis of having an entirely different intent, namely, an intent to forcibly confine and this he was not prepared to meet. We cannot be sure on what basis the jury convicted him. We do know that, after retiring, they came back with questions as to what constituted confinement.

It is, in my view, specious to say that the respondent cannot claim to be prejudiced by a conviction on a lesser charge where the evidence supports a greater one. I think, with all due respect, that this misses the point. On the basis of the charge laid the respondent was not vulnerable to a conviction on proof only of an intent to forcibly confine. One of the intents under s. 212 had to be proved against him. This is not the case of an accused charged with a lesser included offence being convicted of the lesser offence where on the evidence he would also have been guilty of the greater offence. One of the elements required for a conviction on the lesser offence of second degree murder, i.e. intent, is not a prerequisite for a conviction of constructive murder. This is what, in my view, caused real prejudice to the respondent. Had he appreciated that he might be convicted under s. 213 he might either not have testified at all or presented evidence to negate the intent to forcibly confine. Moreover, had the issue of forcible confinement been raised by the indictment his counsel might well have mounted an argument that what happened in this case did not amount to “forcible confinement” within the meaning of s. 247 at all. One might well ask whether, if Shannon had not been killed, the respondent would have been charged with forcible confinement under s. 247(2) which seems to be directed to forcible confinement in a kidnapping or hostage-taking context.

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I would dismiss the appeal for these reasons as well as for those given by the Saskatchewan Court of Appeal.

The judgment of Dickson, Estey, McIntyre, Chouinard and Lamer JJ. was delivered by

DICKSON J.—The question is whether the trial judge erred in charging the jury on s. 213, the so-called “constructive murder” provision of the Criminal Code, R.S.C. 1970, c. C-34. Section 213 embodies the concept that when a weapon is used in the course of certain specified criminal acts and death results, the accused is treated as if the mens rea for murder existed and the homicide is murder. The unintended or accidental lethal act is murder because the actus reus of homicide is present and the killing is neither justifiable nor excusable. Rightly or wrongly, since the time of Coke, the law has imported to such acts the mental element for murder (Coke’s Institutes (1977), vol. 3, p. 56). See also Hale, Pleas of the Crown (1st Am. ed. 1847), vol. 1, pp. 424-503, Foster, Foster’s Crown Cases and Crown Law (3d Ed. 1792), at pp. 256, 258 and 308, Blackstone, Blackstone Commentaries, vol. 4, pp. 192-93 and 200‑01, East, Pleas of the Crown (1896), vol. 1, p. 255, and Stephen, A History of the Criminal Law of England (1883), pp. 57 and 75. Coke gives this example: If A, meaning to steal a deer in the park of B, shoots at the deer, and by the glance of the arrow kills a boy hidden in the bush, that is murder although A had no intent to hurt the boy. East discusses the subject under the rubric “Homicide in the prosecution of some act or purpose criminal or unlawful itself; wherein death ensues collaterally to or beside the principal intent.”

It might be observed in passing that the constructive murder rule has been the subject of protracted criticism: Willis (1951), 29 Can. Bar Rev. 784; Edwards (1960-61), 3 Cr. L.Q. 481; Hooper (1967-78), 3 U.B.C. L. Rev. 55; Sedgwick (1955), 33 Can. Bar Rev. 63; Burns and Reid (1977), 55 Can. Bar Rev. 75. As Stuart states in his recent

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work on Canadian Criminal Law, at p. 223, the vital issue of whether there was a culpable mind respecting death is simply predetermined and withdrawn from the jury. Section 212 requires mental culpability in respect of death; s. 213 does not. A killing in the course of the specified offences may be murder even though the offender never intended that result. All that is required is the mens rea for the lesser offence. See R. v. Swietlinski, 1980 CanLII 53 (SCC), [1980] 2 S.C.R. 956, at p. 967. In England the Homicide Act, 1957 did away with the rule. The rule may seem harsh but it is not the function of this Court to consider the policy of legislation validly enacted. So long as the section continues in our Criminal Code it must be given effect in accordance with its terms.

I

The Facts

The tragic incident which gave rise to the present proceedings arose out of the fatal shooting in the City of Saskatoon on the evening of Friday, September 14, 1979 of Shannon Russell, aged sixteen. She was shot by Rolan Farrant, aged seventeen. Shannon and her friend Shelly Thomas had spent the day together. Early in the evening they went to a friend’s house for a party. Farrant arrived later. He and Shannon were childhood friends. They had been “going steady” for four years. Between 8:15 p.m. and 9:15 p.m. Farrant drank four bottles of beer and had four or five drags, or “tokes” as he called them, from a pipe of marihuana. Farrant and Shannon talked alone. There was evience of an argument. In his statement to the police Farrant said “She didn’t like the way I treated her, I didn’t like the way she was treating me. We just haven’t been getting along lately”. Then Shannon and her friend left. They went to Shannon’s house. Other friends arrived. Farrant phoned Shannon. He wanted to come over and talk to her. She told him she did not want to talk with him as her friends were there. He told her that he was coming anyway, and that he was bringing a rifle. Upon arrival, he approached the house from the rear, leaving the rifle in his vehicle. He met two of his friends on the back porch and asked them to leave so he could talk to Shannon

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alone. He went inside and ordered everyone to “go have a coffee for half an hour”. No one left. He went out the back door, loaded the rifle, and returned to the house with it. Then, as the trial judge expressed it, “with the persuasiveness of the rifle” they all left. The witnesses at trial said that Farrant “motioned with his gun” for everyone to leave. One of Shannon’s friends, Mary Kennedy, grabbed Shannon by the arm and “told her that she should come with us”. Mary said that Farrant “told me to let go of her arm and just leave the house”. Shannon was “crying and shaking and sitting on one of the couches”. Shaun Russell, Shannon’s brother, testified in part as follows:

Q. And just tell us where he went and everything you remember about what was said.

A. He came into the living room and crouched down beside Shannon.

Q. I think you’re going to have to speak up louder.

A. Crouched down beside Shannon and said, you come outside, I want to talk to you, something like that.

Q. Okay.

A. She said, no or something like that, I can’t remember what she said. She said no.

Q. And something else?

A. Yeah, and something else.

Q. And then what did he say?

A. I’m going to make you, something like that.

and later in his evidence:

Q. Okay, and do you recall any other conversation when he came back in?

A. Mary said, Shannon would you come out with me and he said, no stay and he also told Chuck to take his beer with him.

Mary Kennedy said:

He came into the house and he just stood at the entrance of the living room and he turned to Shannon and said, you better come with me, and she said, I’m not going with you anywhere. As he turned to us and told us that we should go for coffee for half an hour and then he

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turned to Shannon and said something about being serious and then he left. And then Darby and Chuck, they came back into the house and we decided we should, you know, we should all go for coffee and take Shannon with us and then Ronny [Farrant] came back into the house and he had a gun with him and he was yelling, everybody get out of the house right now, I just want to talk to Shannon. So everybody started leaving and… And as we left I grabbed Shannon by the wrist and I told her that she should come with us and Ronny told me to let go of her and just leave the house. So that’s what I did.

Charles Thompson gave the following evidence:

Rolan returned with a gun. He asked us to leave, told me to take my beer with me and one of the girls, I’m not sure which one it was, tried to pick up Shannon and tell her, she said to Shannon, you’re coming with us then Rolan pointed the gun in the direction of that person and then we left through the front door.

Everyone left except Farrant and Shannon. There is only the evidence of Farrant as to what happened next. He testified that Shannon was crying and hysterical. He put this down to the presence of the rifle, so he took it out to the kitchen and set it down. He returned to Shannon, crouched beside her and attempted to pull her hands away from her face so he could talk to her. She was still hysterical. He went to the kitchen and brought the rifle back. He could not decide what to do. Then, suddenly, “the gun just went off”. The shot proved fatal. In his statement to the police he said simply that he “went back to the kitchen and got the rifle”, and “I shot her”. He telephoned the operator and told her to call the police as he had just killed his girl friend. A second shot was fired in an unsuccessful attempt by Farrant to commit suicide.

II

Procedural History

Farrant was charged with first degree murder. At the conclusion of the preliminary inquiry the Crown requested a committal for trial on the lesser offence of second degree murder, and the accused was committed for trial on that charge. A jury

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convicted him on second degree murder. Farrant appealed his conviction and the Saskatchewan Court of Appeal ordered a new trial. The Crown, with leave of this Court, now appeals that decision.

III

The Section 213 Point

The appeal concerns the operation of s. 213 and, incidentally, s. 212 and 214 of the Criminal Code. Stripped of non-essentials these three sections read as follows:

212. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit… an offence mentioned in… 247 (kidnapping and forcible confinement),… whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(d) he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence,

and the death ensues as a consequence.

214. (1) Murder is first degree murder or second degree murder.

(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

(a) while committing or attempting to commit an offence under section… 247 (kidnapping and forcible confinement)

(7) All murder that is not first degree murder is second degree murder.

[Emphasis added.]

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Two other sections of the Code should be mentioned. Section 247 provides in part:

(2) Every one who, without lawful authority, confines, imprisons or forcibly seizes another person is guilty of an indictable offence and is liable to imprisonment for five years.

[Emphasis added.]

Section 511 reads:

511. No person shall be convicted for the offence of high treason or first degree murder unless in the indictment charging the offence he is specifically charged with that offence.

In adopting the words “means to” in s. 212(a)(i) and s. 212(a)(ii) Parliament introduced the element of intent. Culpable homicide is murder under this section if the Crown proves either that the accused meant to cause death, or meant to cause bodily harm that he knew was likely to cause death, and was reckless whether death ensued or not.

On the other hand, s. 213, the “constructive murder” section, does not require proof of such an intent. Section 213 makes this apparent by the use of the words “whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being”. If, for example, a person uses a weapon, or has one upon his person, in the course of committing the offence of forcible confinement under s. 247 of the Code, and if death ensues as a consequence, then the culpable homicide is murder. The only intent with which the court is concerned in these circumstances, is the intent unlawfully to confine.

At the close of evidence at Farrant’s trial, the Crown asked the judge to charge the jury with respect to s. 213 of the Code, based on “the accused’s own evidence of wishing to use the gun or rifle to clear the house out and keep the girl there so he could talk to her”. Mr. Goldstein, counsel for Farrant, replied that he was aware of the section, but was confident that the matter would not be raised, since “at no time until this moment either at the preliminary inquiry, either at the opening address of my learned friend and neither in the charge” was there any indication that the accused was being charged with the com-

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mission of an offence under s. 213. He contended that “as a matter of fairness”, apart from the law, it would be a grave injustice to proceed in the direction sought by the Crown. Secondly, he submitted that in this case there was no intent to confine against anyone’s wish, and even if there were, it had been abandoned. In reply Crown counsel said that she had not intended to make s. 213 a main part of her argument until she heard the evidence of Farrant. She referred to the following passages from his evidence:

Q. You decided that you were going to take the rifle and you were going to go over there and you were going to make her talk to you whether she wanted to stay or not, isn’t that true?

A. I wouldn’t quite say it that way, no.

Q. You wouldn’t quite say it that way?

A. No I wouldn’t.

Q. That’s essentially true, isn’t it?

A. It would be essentially, but it’s not the way I would think, no.

Q. That’s not the way—you perhaps don’t think the way I put my words together, but the meaning is the same isn’t it?

A. Deep down the hard cold meaning would be the same, but the fact of what’s going on in my mind and somebody else’s mind is two different things.

Q. And you wanted to talk to her?

A. Yeah, when I phoned her that was the situation.

Q. You’ve already agreed that you were going to make her talk to you, right?

A. After that phone call, yes.

Q. You were going to make her talk to you using that rifle?

A. Well, if it was necessary I guess because I brought it there, that would be true.

The court ruled that:

Taking into consideration the extracts from the transcript of the cross-examination of the accused and the facts generally, I have come to the conclusion that I must, as a matter of law, put that section to the jury because I’m satisfied that a ruling as to the applicability

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of the section is based on facts and those facts are for the jury to decide.

The judge charged the jury that they must find Farrant guilty of either second degree murder or manslaughter. There was no other verdict open to them. After referring to sections 218(1), 205 and 212 of the Criminal Code the judge addressed the issue of constructive murder:

In this particular case there is another way the offence of murder may be committed at law. Common parlance we use for it is “constructive murder”. And this is found in another section 213 and again I will read you the pertinent section.

Having done so, he went on to say:

So the question you must determine first of all is whether or not this accused was confining Shannon Russell. If you do so find, I suggest to you that there has been no indication that he had any lawful authority to so confine her so you don’t have to concern yourself about the portion that says “without lawful authority”. The second requirement is that there must be a death of a human being and I think you will find that this did take place. But most important is the third requirement, and that is that the death must be caused while he was either committing or attempting to commit the offence of unlawful confinement. If you accept the evidence of the accused that when he was in the home after the others had left that he took the weapon and put it in the kitchen when Shannon Russell became hysterical and returned to simply talk to her, you must ask yourself the question, was he forcibly confining her or attempting to do so at the time he retrieved the weapon and fired the fatal shot. Was there a confinement at that time or an attempt at confinement, or had he abondoned (sic) any confinement or ideas of confinement he originally had and simply wanted to talk to Shannon. And again, unless you are satisfied beyond a reasonable doubt that he was either committing the act of forcible confinement or attempting to do so, you must give the accused the benefit of that doubt and not find him liable under this particular section. But on the other hand, if you are satisfied, you may find that it was murder. And in that case you may find so whether or not he meant to cause her death or meant to cause her bodily harm that he knew was likely to cause death and was reckless whether death ensued or not.

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The judge pointed out to the jury that the defence rejected the theory of the Crown that the act of forcible confinement was being committed or attempted when the fatal shot was fired:

If there was any forcible confinement at most it was when the accused had the rifle in his hand and told Shannon she was to stay. But thereafter the confinement was abandoned, counsel on behalf of the defence says, and the rifle was taken and put in the kitchen and all the accused wanted to do was talk. It was only when the talking failed that the fatal shot was fired. Defence says that the theory of the Crown that this was constructive murder simply does not apply to these facts. And if you accept the evidence of the accused that he did take the rifle to the kitchen and only returned for the purpose of talking to Shannon, I would agree with counsel for the defence that you may find that the section does not apply, but it is your decision on the facts as you have heard them. And once again I must warn you, you must be satisfied that the accused was attempting or committing that offence and satisfied beyond a reasonable doubt before you can apply Section 213.

The matter was addressed again later in the charge:

I suggest you first consider whether the Crown has established to your satisfaction the offence of murder under Section 213 that is commonly called constructive murder. Before you convict under this section you must be satisfied beyond a reasonable doubt that the death actually took place during or at the time the offence of forcible confinement was either being committed or attempted. If you conclude that there never was an attempt to forcibly confine Shannon, that the use of the gun was only to clear the others out of the house, or that any force to confine Shannon was abondoned (sic) when he took the gun into the kitchen, or even have a reasonable doubt that in the circumstances there was a forcible confinement, you must not find the accused guilty under this section. If you are so satisfied, however, that is the end of your task you are free to find the accused guilty of second degree murder.

The trial judge instructed the jury at length on s. 212 of the Code and on the intents necessary to found a conviction under that section.

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The Saskatchewan Court of Appeal held that the trial judge had erred in two respects:

(1) to instruct the jury as to their right to bring in a verdict on a charge which was neither disclosed nor included in the indictment, was to charge the jury upon a matter of which the appellant was unaware at the time he pleaded;

(2) by failing to instruct the jury that if they found the appellant guilty of murder pursuant to s. 214(5)(a), then in law, the verdict must be one of guilty of first degree murder.

It should be mentioned at this point that the trial judge in his charge at no time made any reference to a finding of guilty of first degree murder pursuant to s. 214(5)(a) of the Criminal Code. With respect, I cannot see why he should have entered into a discussion of first degree murder when the accused did not face that charge.

In delivering judgment on behalf of the Saskatchewan Court of Appeal, Culliton C.J.S. said:

When the trial opened, the appellant was on trial for second degree murder. To establish that offence the onus was on the Crown to prove beyond a reasonable doubt that the appellant had caused the death of Shannon Russell and in so doing had one of the requisite intents as set out in Section 212. It was admitted the appellant had caused the death of Shannon Russell. Thus in determining whether or not he was guilty of second degree murder the sole issue before the jury was did he, at the time, have one of the intents as set out in Section 212, necessary to prove that offence.

With respect, the learned Chief Justice defines the position too narrowly. To establish the offence of second degree murder the onus was on the Crown to prove beyond reasonable doubt the uncontested fact that Farrant had caused the death of Shannon Russell, and, either

(a) that he had one of the requisite intents set out in s. 212, or

(b) that he had caused her death while committing or attempting to commit one of the offences specified in s. 213, in this case forcible confinement within s. 247, while

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using or having on his person a weapon and that death ensued as a consequence.

With all due respect to the Saskatchewan Court of Appeal, I find no error in the trial judge’s charge to the jury. The accused Farrant was charged with second degree murder contrary to s. 218(1) of the Criminal Code:

218. (1) Every one who commits first degree murder or second degree murder is guilty of an indictable offence and shall be sentenced to imprisonment for life.

Murder, like other offences in the Criminal Code, such as theft, may be committed in one of several ways. Culpable homicide may be murder under either s. 212 or s. 213. Both sections begin with the words “Culpable homicide is murder where”. Farrant was charged with murder. He might fall foul of either section. There was evidence upon which the jury could find a forcible confinement, and the trial judge was correct in stating that, as a matter of law, he was obliged to put both s. 212 and 213 to the jury.

The main issue raised in this appeal is the possibility of a conviction for second degree murder as charged, where, by operation of statute, the evidence discloses that the accused would have been guilty of first degree murder had this latter offence been charged. More particularly, does an offence of second degree constructive murder pursuant to forcible confinement exist having regard to s. 214(5)(a), which provides:

214. …

(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

(a) while committing or attempting to commit an offence under section… 247 (kidnapping and forcible confinement)…

The Crown contends that the Court of Appeal erred: 1) in finding that the charge of second degree constructive murder pursuant to a forcible

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confinement was not disclosed in the indictment; and 2) in requiring that constructive murder pursuant to a forcible confinement is necessarily first degree murder. The Crown’s argument is that s. 214 of the Criminal Code is merely a classification section, and that the definition of culpable homicide which is murder is found in ss. 212 and 213. The Crown says that when charging an accused with murder there is no onus to specify in the indictment whether it intends to rely upon s. 212 or s. 213. In ordering a new trial on second degree murder the Saskatchewan Court of Appeal restricted the proceedings to a consideration of s. 212, murder with intent. The practical result of the Court of Appeal decision, the Crown contends, is an interference with the discretion of the Crown in the choice of charges it will lay.

The respondent Farrant argues that constructive murder pursuant to a forcible confinement is first degree murder. Therefore an instruction with respect to s. 213 must necessarily be an instruction with respect to first degree murder, a charge which does not appear in the indictment. The wording of s. 214(5)(a), according to the respondent, is not permissive, but mandatory and conclusive. In order to convict on constructive murder pursuant to forcible confinement, first degree must be charged. First degree murder was not charged, and the accused says he was prejudiced by having to answer to a first degree murder test under s. 214(5)(a).

Section 214, however, is not the section which sets out the elements of the offence of murder. This is done in ss. 212 and 213. Section 214 does not create a distinct and independent substantive offence of first degree constructive murder pursuant to forcible confinement. The section is subservient to ss. 212 and 213; it classifies for sentencing purposes, the offences in s. 212 and s. 213 as either first or second degree murder. The importance of the distinction between first and second degree murder is that first degree murder carries with it a mandatory life sentence without eligibility for

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parole for twenty-five years (s. 218, s. 669(a)). A conviction for second degree murder also carries with it a mandatory life sentence, but parole may be granted after ten years of imprisonment unless the jury recommends a greater number of years.

With respect, the Saskatchewan Court of Appeal erred in stating that:

The great distinction between murder under Section 214(5)(a) and second degree murder under Section 212, is that to obtain a conviction under the former it is not necessary to establish either of the intents required for the conviction of second degree murder under Section 212.

There is no distinction between s. 214(5)(a) and s. 212 based upon intent. The presence or absence of intent is the distinction between s. 212 and s. 213, not s. 214. Intent is an element of the offence of murder under s. 212, be it first or second degree. The distinction between first and second degree murder in s. 214 is not based upon intent; it is based upon 1) the presence of planning and deliberation (s. 214(2)); 2) the identity of the victim (s. 214(4)); or 3) the nature of the offence being committed at the time of the murder (s. 214(5)). The primary and essential determination for a jury to make is whether murder has been committed, either under s. 212 or, where the evidence warrants it, under s. 213. Considerations of the distinctions between first and second degree murder are irrelevant in making this preliminary determination. Once the offence has been found, it is then classified.

To argue that s. 214 is controlling in a situation such as the present one is to confuse the sections which set out the elements of the offence of murder with the classification process provided in s. 214. The classification in s. 214 functions within

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the context of sentencing and is not determinative of the substantive offence of murder.

Counsel for the respondent laid much emphasis on the imperative language of the English version of s. 214(5). The French version is much less so. The relevant portion reads:

(5) Est assimilé au meurtre au premier degré, le meurtre…

In my view a conviction for second degree murder can be maintained when that offence has been charged even though the accused person by operation of statute would have been guilty of first degree murder if he had been charged with that greater offence. Recent years have seen a certain relaxation in the formalism attendant upon criminal proceedings. An indictment, such as this one, charging second degree murder need not specify the exact section or sections of the Criminal Code which constitute an offence. It is sufficient that it state the legal character of the offence (see R. v. McKenzie, 1971 CanLII 174 (SCC), [1972] S.C.R. 409).

There was, in my opinion, no error in the trial judge’s charge to the jury. The verdict returned by the jury was equally consistent with a finding of intent under s. 212 as it was with a finding of constructive murder under s. 213.

IV

Fairness at Trial

Although I am of the view that the law and the facts warranted, and indeed required, a charge upon s. 213 of the Code, there remains the question of whether, once the Crown had decided to reduce the charge to second degree murder, Farrant was entitled to assume that he could not be tried for “murder by forcible confinement with a gun”, because s. 214 makes that offence first degree murder. Although not expressed in these terms, implicit in Farrant’s objection is the suggestion that at trial the case for the defence was conducted on the basis of that assumption; that Crown witnesses were cross-examined, and his own

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testimony given, on the basis that evidence of intent to forcibly confine Shannon Russell was irrelevant. Farrant complains that by instructing the jury that they might convict him of murder under s. 213, the trial judge erred by exposing him to conviction for a crime that had not been charged against him.

I do not think this complaint can be maintained. Counsel was aware of s. 213 of the Code, and, with a client facing a murder charge, he knew or ought to have known, that the Crown could rely upon this section if the evidence afforded a factual base for forcible confinement.

In her opening address Crown counsel recounted events leading up to the shooting from which one could take it that forcible confinement might be part of the Crown’s case. Take, for example, this passage:

All the young people including Shannon made preparations to leave. Within a minute or two Ronny Farrant came back into the house carrying a rifle. He told everyone to get out and leave Shannon. Mary Kennedy tried to pull Shannon by the arm and Ronny told her to let go and get out of the house. As the group left Shannon was sitting on a chair crying alone with the accused.

When all of the evidence was adduced, including that of the accused on cross-examination, one could say that the necessary factual underpinning was present.

It was open to the defence at any time before or during trial to ask for particulars with a view to determining whether forcible confinement was in issue. Failing a negative response to such request counsel could anticipate that s. 213 might arise.

Furthermore, when Crown counsel moved the court to charge on s. 213 it was open to the defence to ask for the recall of witnesses, or the calling of additional witnesses, to refute the allegation of forcible confinement. Counsel in argument before the trial judge and before this Court, failed to indicate in what way he would have conducted

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the case differently had he known that s. 213 of the Code was to be invoked. He did not say “I would have done this or I would not have done that, had I known”. All that can be said is that he did not expect the Crown to rely on s. 213. Neither did the trial judge, as his comments disclose. Nonetheless, on the facts, and the law, s. 213 was applicable.

There is in my view no merit in the argument that the accused was prejudiced in having to answer to a first degree murder test under s. 214(5)(a). He was not charged with first degree murder; he could not have been convicted of first degree murder (s. 511 of the Criminal Code); he was never in jeopardy of such a conviction. It is difficult to understand how an accused could be prejudiced by a conviction on a lesser charge where the evidence supports a greater one. The accused, from the beginning, is at less risk.

V

Supplementary Issues

Several additional issues were raised in the Court of Appeal of Saskatchewan with which that Court did not deal because of its decision on the main point.

First, that the judge erred in law in charging the jury of “…the presumption that (a) man intends the natural consequences of his actions”; and that the jury must bear “…in mind that one basic inference is that everyone is presumed to intend the natural consequences of his or her actions”. The judge made it abundantly clear however that this was a proposition of common sense and not one of law. He said:

You may proceed on the common sense proposition that most adult people usually intend the natural consequences of their acts, but you must consider the state of mind of this accused at the material time and decide whether he, and he alone, intended or was reckless of the natural consequences of his acts.

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Earlier in the judgment he had said:

It is an inference that you may draw. And if on all the facts of the case it is in your opinion not a correct inference that the accused intended those natural consequences of his act, then it should not be drawn.

I do not find error.

Second, that the judge, having ruled against permitting the prosecutor to adduce “similar fact” evidence, erred in permitting the prosecutor to cross-examine the accused about alleged incidents of assault which purportedly occurred many months prior to the date of the offence charged. During examination in chief Farrant testified:

Well, think about it now there’s no way I would, you know, it’s not my character to be violent, you know, use violence or a rifle, you know, to get my own way. That’s not my character.

The judge allowed the Crown to cross-examine in respect of alleged incidents of earlier assault. I do not think he erred in so doing, having regard to the fact that Farrant had put his non-violent character in issue in earlier testimony.

Third, the judge erred in law in ruling the statement taken from the accused by the police to be a voluntary one and admissible in evidence, in light of the surrounding circumstances and the existing law. I have read the evidence carefully and I find nothing to support the contention that the trial judge, in the exercise of his discretion, erred in law in admitting the statement.

I would allow the appeal, set aside the judgment of the Court of Appeal of Saskatchewan and restore the verdict at trial.

Appeal allowed, RITCHIE and WILSON JJ. dissenting.

Solicitors for the appellant: Kenneth W. MacKay and D. Murray Brown, Regina.

Solicitors for the respondent: Goldstein and Goldstein, Saskatoon.