R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 SCR 618

R. v. Paré, 1987 CanLII 1 (SCC), [1987] 2 SCR 618

Her Majesty The Queen Appellant

v.

Marc‑André Paré Respondent

indexed as: r. v. paré

File No.: 19345.

1987: June 8; 1987: November 19.

Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.

on appeal from the court of appeal for quebec

Criminal law ‑‑ First degree murder ‑‑ Indecent assault against a young boy ‑‑ Accused killing the child after the indecent assault ‑‑ Whether accused murdered the child "while committing" the indecent assault ‑‑ Meaning of the words "while committing" in s. 214(5) of the Criminal Code.

Criminal law ‑‑ Murder ‑‑ Classification ‑‑ Section 214 of the Criminal Code not creating a separate substantive offence of murder ‑‑ Section 214 classifying for sentencing purposes the offences in ss. 212 and 213 of the Code.

The accused murdered a young boy two minutes after indecently assaulting him. The killing was motivated by fear that the child would tell his mother about the incident. At trial, the jury found the accused guilty of first degree murder pursuant to s. 214(5) of the Criminal Code. At the time of the offence, s. 214(5)(b) provided that "murder is first degree murder in respect of a person when the death is caused by that person while committing an offence under section . . . 156 (indecent assault on a male)". The Court of Appeal dismissed the accused's appeal but substituted a verdict of second degree murder for the jury's verdict of first degree murder. This appeal is to determine whether the accused murdered the child "while committing" the indecent assault.

Held: The appeal should be allowed.

The words "while committing" in s. 214(5) do not require the murder and the underlying offence to take place simultaneously. Where the act causing death and the acts constituting the indecent assault 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 s. 214(5). The offences under s. 214(5) all involve the illegal domination of people by other people. Accordingly, it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder and makes it a single transaction. The murder represents an exploitation of the position of power created by the underlying crime and knits the two together. The conviction of first degree murder should be restored.

Cases Cited

Applied: R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518; not followed: R. v. Gourgon and Knowles (No. 1) (1979), 1979 CanLII 4423 (BC SC), 9 C.R. (3d) 313 (B.C.S.C.), rev'd on other grounds (1979), l1979 CanLII 4465 (ON SC), 9 C.R. (3d) 272 (B.C.C.A.); R. v. Kjeldsen (1980), 1980 ABCA 49, 53 C.C.C. (2d) 55; R. v. Sargent (1983), 1983 CanLII 2041 (SK CA), 5 C.C.C. (3d) 429; referred to: R. v. Vaillancourt (1974), 1974 CanLII 1503 (ON CA), 16 C.C.C. (2d) 137 (Ont. C.A.), aff'd 1975 CanLII 18 (SCC), [1976] 1 S.C.R. 13; Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108; R. v. Goulis (1981), 1981 CanLII 1642 (ON CA), 60 C.C.C. (2d) 347; Paul v. The Queen, 1982 CanLII 179 (SCC), [1982] 1 S.C.R. 621; R. v. Farrant, 1983 CanLII 118 (SCC), [1983] 1 S.C.R. 124; Droste v. The Queen, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208.

Statutes and Regulations Cited

Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 212, 213 [am. 1974‑75‑76, c. 93, s. 13; c. 105, s. 29, item 1(4)], 214(1) [rep. & subs. 1973‑74, c. 38, s. 2; rep. & subs. 1974‑75‑76, c. 105, s. 4], (5) [ad. 1974‑75‑76, c. 105, s. 4].

Authors Cited

Canada. Law Reform Commission. Homicide (Working Paper 33). Ottawa, 1984.

Dworkin, Ronald. Law's Empire. Cambridge, Mass.: Belknap Press, 1986.

Kloepfer, Stephen. "The Status of Strict Construction in Canadian Criminal Law" (1983), 15 Ottawa L. Rev. 553.

APPEAL from a judgment of the Quebec Court of Appeal, J.E. 85‑556, dismissing the accused's appeal but substituting a verdict of second degree murder for the jury's verdict of first degree murder. Appeal allowed and the conviction of first degree murder restored.

Robert Parrot, for the appellant.

Jean‑Guy Gilbert, for the respondent.

The judgment of the Court was delivered by

1. Wilson J.‑‑Section 214(5)(b) of the Criminal Code, R.S.C. 1970, c. C‑34, as amended by S.C. 1974‑75‑76, c. 105, which was in force at the time of the commission of the offence provided that murder is first degree murder when the death is caused by a person while the person is committing indecent assault. The respondent, Marc‑André Paré, indecently assaulted and murdered a seven‑year‑old boy, Steeve Duranleau. The central issue in this appeal is whether the respondent murdered the child "while committing" the indecent assault.

2. While sections 213 and 214 were subsequently amended by An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980‑81‑82‑83, c. 125, the amendments are not germane to the issue on this appeal.

1. The Facts

3. On July 13, 1982 at about 1:30 in the afternoon the respondent Marc‑André Paré, then 17 years old, met Steeve Duranleau, a seven‑year‑old boy. At Paré's suggestion the two went swimming. After about fifteen minutes in the pool Paré offered to take Duranleau to look at some used cars. The offer was only a pretence. Paré's real motive was to get Duranleau alone in order to have sexual relations with him.

4. After changing, Paré and Duranleau went to a parking lot where they looked at some used cars. Near the parking lot was a bridge that crossed the St. Charles River. Paré lured Duranleau under the bridge. Duranleau wanted to leave but Paré told him not to and held him by the arm. Paré sat there for the next ten minutes holding Duranleau by the arm. Then Paré told Duranleau to lie on his back and to keep quiet. Paré pulled Duranleau's shorts down and lowered his own pants and underwear. He then lay on top of Duranleau and indecently assaulted him. After ejaculating beside Duranleau's penis, Paré sat up and got dressed.

5. At this point Duranleau told Paré that he intended to tell his mother about the incident. Paré told him that he did not want him to tell his mother and that, if he did, he would kill him. After this exchange of words Paré was certain that the boy would tell his mother as soon as he could. Paré made Duranleau lie on his back. He waited for two minutes with his hand on Duranleau's chest. He then killed Duranleau by strangling him with his hands, hitting him on the head several times with an oil filter, and strangling him with a shoe‑lace.

6. The accused was charged as follows:

[TRANSLATION] That in Québec City, Quebec, on or around July 13, 1982, he illegally and intentionally killed Steeve Duranleau, thereby committing murder in the first degree contrary to sections 212‑214(5)‑218 of the Criminal Code.

At trial the accused admitted all the facts outlined above. On December 7, 1982 the accused was found guilty of first degree murder. The accused's appeal to the Quebec Court of Appeal was dismissed on April 2, 1985 (per L'Heureux‑Dubé, Beauregard and LeBel JJ.A.), the court substituting a verdict of second degree murder for the jury's verdict of first degree murder: J.E. 85‑556. Leave to appeal was granted to the Crown by this Court (per Beetz, Lamer and Wilson JJ.) on June 27, 1985, [1985] 1 S.C.R. xii.

2. The Courts Below

The Superior Court

7. In his charge to the jury Bienvenue J. discussed the meaning of the words "while committing" in s. 214(5) of the Criminal Code. Since this appeal hinges upon the meaning of these words it is necessary to reproduce the relevant comments of the trial judge:

[TRANSLATION] Then, section 214(2) and (5)(b) states the following:

". . . is [est assimilé au] first (1st) degree murder"

‑‑I do not think that the word "assimilé" presents any problem to you and me, it is a word which simply means "is first (1st) degree murder", okay, it's a first (1st) degree murder, the following ‑

"murder . . . while committing";

‑‑or if you prefer instead of "while committing" [concomitant] I will suggest a number of expressions that mean the same thing, namely "committed on the occasion of", "committed at the time of", "accompanying" and so on; the following, "which occurred at the same time as": all these words are synonyms of "while committing";

and so

"murder . . . while committing", or if you prefer, "which was committed on the occasion of the crime specified in s. 156 of the Criminal Code (indecent assault on male)".

I am sure you realize ‑‑ I do not think it is even necessary to say it ‑‑ I rely on the intelligence of you all, but in case anyone should someday claim I had not said it, when you say "while committing", it means "committed at the same time", "on the same occasion"; you realize the Code does not go so far as to require that at the time I commit an indecent assault with my right hand I must be committing murder with my left. Is not it so? In this the Code is logical: when it says "at the same time", committed "on the same occasion", it means "in the same circumstances".

The jury found the accused guilty of first degree murder.

The Court of Appeal for Quebec

8. Beauregard and LeBel JJ.A. gave separate reasons; L'Heureux‑Dubé J.A. agreed with both. Beauregard J.A. examined the case law and decided that s. 214(5) of the Criminal Code should be restrictively interpreted. He concluded that "while committing" must be contrasted with "after having finished committing". A murder committed after the accused had committed the indecent assault was not a first degree murder. Accordingly, when the trial judge said to the jury that a murder committed "on the occasion of" an indecent assault was a first degree murder, he did not invite the jury to consider the really critical question, namely whether the murder was committed during the commission of the indecent assault or after the indecent assault was over.

9. Beauregard J.A. was of the opinion that a properly directed jury would not have been convinced beyond a reasonable doubt that the accused murdered his victim while committing the indecent assault. Consequently, he dismissed the appeal and substituted a verdict of second degree murder for the verdict of first degree murder.

10. LeBel J.A. did not agree with Beauregard J.A.'s conclusion that s. 214(5) required the murder and the indecent assault to be absolutely simultaneous. Even if the section were to be construed restrictively, he stated, it must not be deprived of all effect. By reading s. 214(5) in conjunction with s. 213, LeBel J.A. concluded that the words "while committing" demanded a close temporal connection between the indecent assault and the murder. Moreover, he concluded that the murder must be an immediate consequence of the first offence for s. 214(5) to apply. LeBel J.A. found it difficult to conclude that a jury more completely informed of the nuances of the sections in question would have necessarily returned the same verdict. The charge given to the jury, he stated, effectively prevented the jury from directing its attention to the proper meaning of s. 214(5). Therefore, despite his reservations about Beauregard J.A.'s conclusions of law, LeBel J.A. agreed with his disposition of the case.

3. The Issue

11. Counsel for the appellant submit that the Court of Appeal made two errors in law. First, it erred in concluding that s. 214(5) of the Criminal Code created a substantive offence of murder. Second, it erred in its interpretation of the words "while committing" in s. 214(5). I will address both issues looking first at the general scheme of the murder provisions in the Criminal Code and then turning to the interpretation of the particular wording of s. 214(5).

(a) The General Scheme

12. Counsel for the appellant submit that the Court of Appeal viewed s. 214(5) of the Criminal Code as creating a substantive offence of murder. I find nothing in the judgments rendered by the Court of Appeal that suggests that this was the case. In any event, counsel for the respondent acknowledge that such an approach would be improper and I agree. Section 214 has a completely different function.

13. The relevant provisions of the Criminal Code are as follows:

14. 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;

(b) where a person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

(c) where a person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being.

213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), 143 or 145 (rape or attempt to commit rape), 149 or 156 (indecent assault), subsection 246(2) (resisting lawful arrest), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), 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

(a) he means to cause bodily harm for the purpose of

(i) facilitating the commission of the offence, or

(ii) facilitating his flight after committing or attempting to commit the offence,

and the death ensues from the bodily harm;

(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom;

(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom; or

(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, or

(ii) during or at the time of his flight after committing or attempting 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 76.1 (hijacking aircraft) or 247 (kidnapping and forcible confinement); or

(b) while committing an offence under section 144 (rape) or 145 (attempt to commit rape) or while committing or attempting to commit an offence under section 149 (indecent assault on female) or 156 (indecent assault on male).

It is clear from a reading of these provisions that s. 214 serves a different function from ss. 212 and 213. Sections 212 and 213 create the substantive offence of murder. Section 214 is simply concerned with classifying for sentencing purposes the offences created by ss. 212 and 213. It tells us whether the murder is first degree or second degree. This view of s. 214 was expressly adopted by this Court in R. v. Farrant, 1983 CanLII 118 (SCC), [1983] 1 S.C.R. 124 (per Dickson J. (as he then was) at p. 140) and in Droste v. The Queen, 1984 CanLII 68 (SCC), [1984] 1 S.C.R. 208 (per Dickson J. (as he then was) at p. 218). In this case it is established that the respondent murdered Steeve Duranleau. The issue is whether s. 214(5)(b) makes the murder first degree.

(b) Section 214(5): "while committing":

(i) The Literal Meaning

14. (i) The Literal Meaning

15. Did the respondent murder Duranleau while committing an indecent assault? Counsel for the respondent submit that he did not. The argument here is simple. The murder occurred, it is submitted, after the indecent assault was complete. Thus, by a literal reading of s. 214(5) Paré did not murder Duranleau "while committing" an indecent assault.

16. This argument is a forceful one but by no means decisive. The literal meaning of words could equally be termed their acontextual meaning. As Professor Dworkin points out, the literal or acontextual meaning of words is "the meaning we would assign them if we had no special information about the context of their use or the intentions of their author": see R. Dworkin, Law's Empire (1986), at p. 17. Thus the words "while committing" could have one meaning when disembodied from the Criminal Code and another entirely when read in the context of the scheme and purpose of the legislation. It is the latter meaning that we must ascertain.

17. A preliminary problem in ascertaining the contextual meaning of the phrase "while committing" arises from a possible inconsistency between the French and English versions of s. 214(5). At the time of the offence the French version of the English words "while committing" was "concomitant". In 1983 the word "concomitant" was replaced by the phrase "en commettant". Is this change in wording in the French version significant to the interpretation of s. 214(5)? I think not. I would agree with Beauregard J.A. of the Quebec Court of Appeal who said [TRANSLATION] "The amendment does not appear to have introduced anything new. The word concomitant' meant while committing' or `en commettant' ".

(ii) The Case Law

18. I now turn to cases which throw some light on the meaning of the words "while committing". Counsel for the appellant submit that these words in s. 214(5) should not be held to require the murder and the underlying offence to take place simultaneously. They seek to support this contention by reference to the judicial interpretation of the same words in s. 213.

19. Section 213 transforms culpable homicide into murder where a person causes the death of a human being "while committing" any one of a number of serious offences, provided that the case falls within one of the four categories listed in clauses 213(a) to 213(d). The cases have consistently construed the words "while committing" in s. 213 to include cases where the homicide is committed during flight after commission of the underlying offence: see R. v. Vaillancourt (1974), 1974 CanLII 1503 (ON CA), 16 C.C.C. (2d) 137 (Ont. C.A.), aff'd 1975 CanLII 18 (SCC), [1976] 1 S.C.R. 13; R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518 (Ont. C.A.) The appellant's argument is that because "while committing" is broadly construed in s. 213 it should also be broadly construed in s. 214(5).

20. This argument, in my view, is not sound. The particular construction placed on the words "while committing" in s. 213 was mandated by the reference to flight in paras. (a)(ii) and (d)(ii) of that section. As Martin J.A. noted in Stevens, supra, at p. 540: "Any other interpretation [of the words "while committing"] would deprive paras. (a)(ii) and (d)(ii) of s. 213 of any meaning and would render them inoperative . . . ." Section 214(5), however, contains no such references to flight. Thus, no analogy may properly be drawn from judicial interpretation of the words "while committing" in s. 213. The same words appearing in s. 214(5) must be interpreted in the particular context of that section.

21. In R. v. Gourgon and Knowles (No. 1) (1979), 1979 CanLII 4423 (BC SC), 9 C.R. (3d) 313 (B.C.S.C.) (appeal allowed on other grounds (1979), 1979 CanLII 4436 (BC CA), 19 C.R. (3d) 272 (B.C.C.A.)), Anderson J. construed the words very narrowly. He stated at p. 319:

The words "while committing" in s. 214(5) relate to the time of the commission of the offence of "forcibly confining" and to no other time.

I agree that the words "while committing" in s. 214(5) do not apply to "flight", and that unlike s. 213, the words "while committing" do not have to be given an extended meaning to make sense out of s. 214(5).

It should be noted, however, that Anderson J.'s comments on the interpretation issue were obiter since in that case the underlying offence of confinement was continuing at the very instant the death took place.

22. Further support for the narrow interpretation is found in two subsequent cases: R. v. Kjeldsen (1980), 1980 ABCA 49, 53 C.C.C. (2d) 55 (Alta. C.A.), and R. v. Sargent (1983), 1983 CanLII 2041 (SK CA), 5 C.C.C. (3d) 429 (Sask. C.A.) In the latter case, the victim was killed after she had been raped by either the appellant or his companion or both. Hall J.A., speaking for the Court concluded at p. 436:

It is manifest that the jury, in returning a verdict of guilty of first degree murder accepted those portions of the evidence which were most unfavourable to the appellant. However, in that event, there is no basis upon which the jury could return the verdict which they did. If the jury found, on the evidence before them, that a rape had occurred, it is clear that the death of the deceased did not occur while that offence was being committed. That is, there was no evidence to support the finding that the actions which resulted in the death of Lenny Lou Cosgrove were perpetrated by the appellant (either alone or with Massong) while committing the offence of rape. On the only evidence before the jury, the murder was committed after the actual rape. Therefore the provisions of s. 214(5) do not apply to establish the offence of first degree murder: see R. v. Kjeldsen . . . .

23. Kjeldsen took the same approach. In that case the appellant raped his victim and then tied her up. A short time later she freed herself and the appellant then killed her. At trial the appellant was convicted of first degree murder. The Court of Appeal substituted a conviction of second degree murder. The Court did not analyze the meaning of the words "while committing" in s. 214(5) but appeared to assume that these words required the underlying offence and the murder to occur simultaneously (p. 85).

24. The courts, however, have not been unanimous in adopting the narrow interpretation. In R. v. Stevens, supra, another case of rape and murder, Martin J.A. held that there was sufficient evidence on which a jury could conclude that the murder took place during the commission of an indecent assault. He went on, however, to make some interesting comments on the interpretation of the words "while committing" in s. 214(5). At page 541, he states:

Thus, it appears clear that where death is caused after the underlying offence is complete and the act causing death is committed for the purpose of facilitating the flight of the offender, the murder is not under ss. 213 and 214(5)(b) first degree murder.

I do not wish, however, to be taken as holding that where the act causing death and the acts constituting the rape, attempted rape, indecent assault or an attempt to commit indecent assault, as the case may be, all form part of one continuous sequence of events forming a single transaction, that death would not be caused during the commission of the offence, even though the underlying offence in s. 213 in a sense could be said to be then complete.

The suggestion here is that the words "while committing" in s. 214(5) do not require an exact coincidence of the murder with the underlying offence. Rather, they require a close temporal and causative link between the two. Which of the competing interpretations should be adopted?

(iii) Strict Construction

25. Counsel for the respondent argue that the doctrine of strict construction of criminal statutes requires that this Court adopt the interpretation most favourable to the accused. According to this argument the words "while committing" must be narrowly construed so as to elevate murder to first degree only when the death and the underlying offence occur simultaneously. In order to assess the validity of this position we must examine the doctrine of strict construction.

26. The doctrine is one of ancient lineage. It reached its pinnacle of importance in a former age when the death penalty attached to a vast array of offences. As Stephen Kloepfer points out in his article "The Status of Strict Construction in Canadian Criminal Law" (1983), 15 Ottawa L. Rev. 553, at pp. 556‑60, the doctrine was one of many tools employed by the judiciary to soften the impact of the Draconian penal provisions of the time. Over the past two centuries criminal law penalties have become far less severe. Criminal law remains, however, the most dramatic and important incursion that the state makes into individual liberty. Thus, while the original justification for the doctrine has been substantially eroded, the seriousness of imposing criminal penalties of any sort demands that reasonable doubts be resolved in favour of the accused.

27. This point was underlined by Dickson J. (as he then was) in Marcotte v. Deputy Attorney General for Canada, 1974 CanLII 1 (SCC), [1976] 1 S.C.R. 108, at p. 115:

It is unnecessary to emphasize the importance of clarity and certainty when freedom is at stake. No authority is needed for the proposition that if real ambiguities are found, or doubts of substance arise, in the construction and application of a statute affecting the liberty of a subject, then that statute should be applied in such a manner as to favour the person against whom it is sought to be enforced. If one is to be incarcerated, one should at least know that some Act of Parliament requires it in express terms, and not, at most, by implication.

The continued vitality of the doctrine is further evidenced by the decisions in R. v. Goulis (1981), 1981 CanLII 1642 (ON CA), 60 C.C.C. (2d) 347 (Ont. C.A.), and Paul v. The Queen, 1982 CanLII 179 (SCC), [1982] 1 S.C.R. 621. The question, therefore, is not whether the doctrine of strict construction exists but what its implications are for this case.

(iv) Applying the Doctrine

28. As we have noted above, it is clearly grammatically possible to construe the words "while committing" in s. 214(5) as requiring murder to be classified as first degree only if it is exactly coincidental with the underlying offence. This, however, does not end the question. We still have to determine whether the narrow interpretation of "while committing" is a reasonable one, given the scheme and purpose of the legislation.

29. In my view, the construction that counsel for the respondent would have us place on these words is not one that could reasonably be attributed to Parliament. The first problem with the exactly simultaneous approach flows from the difficulty in defining the beginning and end of an indecent assault. In this case, for example, after ejaculation the respondent sat up and put his pants back on. But for the next two minutes he kept his hand on his victim's chest. Was this continued contact part of the assault? It does not seem to me that important issues of criminal law should be allowed to hinge upon this kind of distinction. An approach that depends on this kind of distinction should be avoided if possible.

30. A second difficulty with the exactly simultaneous approach is that it leads to distinctions that are arbitrary and irrational. In the present case, had the respondent strangled his victim two minutes earlier than he did, his guilt of first degree murder would be beyond dispute. The exactly simultaneous approach would have us conclude that the two minutes he spent contemplating his next move had the effect of reducing his offence to one of second degree murder. This would be a strange result. The crime is no less serious in the latter case than in the former; indeed, if anything, the latter crime is more serious since it involves some element of deliberation. An interpretation of s. 214(5) that runs contrary to common sense is not to be adopted if a reasonable alternative is available.

31. In my view, such an interpretation has been provided by Martin J.A. in Stevens, supra. As noted above, Martin J.A. suggested that "where the act causing death and the acts constituting the rape, attempted rape, indecent assault or an attempt to commit indecent assault, as the case may be, all form part of one continuous sequence of events forming a single transaction" the death was caused "while committing" an offence for the purposes of s. 214(5). This interpretation eliminates the need to draw artificial lines to separate the commission and the aftermath of an indecent assault. Further, it eliminates the arbitrariness inherent in the exactly simultaneous approach. I would, therefore, respectfully adopt Martin J.A.'s single transaction analysis as the proper construction of s. 214(5).

32. This approach, it seems to me, best expresses the policy considerations that underlie the provision. Section 214, as we have seen, classifies murder as either first or second degree. All murders are serious crimes. Some murders, however, are so threatening to the public that Parliament has chosen to impose exceptional penalties on the perpetrators. One such class of murders is that found in s. 214(5), murders done while committing a hijacking, a kidnapping and forcible confinement, a rape, or an indecent assault. An understanding of why this class of murder is elevated to murder in the first degree is a helpful guide to the interpretation of the language.

33. The Law Reform Commission of Canada addressed this issue in its paper on Homicide (Working Paper 33, 1984). At page 79, the paper states:

. . . there is a lack of rationale in the law. Subsection 214(5) provides that, whether planned and deliberate or not, murder is first degree murder when committed in the course of certain listed offences. It is curious that the list there given is considerably shorter than that given in section 213 which makes killing murder if done in the commission of certain specified offences. Inspection and comparison of the two lists, however, reveal no organizing principle in either of them and no rationale for the difference between them.

With respect, I disagree. The offences listed in s. 214(5) are all offences involving the unlawful domination of people by other people. Thus an organizing principle for s. 214(5) can be found. This principle is that where a murder is committed by someone already abusing his power by illegally dominating another, the murder should be treated as an exceptionally serious crime. Parliament has chosen to treat these murders as murders in the first degree.

34. Refining then on the concept of the "single transaction" referred to by Martin J.A. in Stevens, supra, it is the continuing illegal domination of the victim which gives continuity to the sequence of events culminating in the murder. The murder represents an exploitation of the position of power created by the underlying crime and makes the entire course of conduct a "single transaction". This approach, in my view, best gives effect to the philosophy underlying s. 214(5).

35. (v) The Charge to the Jury

36. Given this interpretation of s. 214(5), was Bienvenue J.'s charge to the jury acceptable? The trial judge gave a number of definitions of "while committing". I do not think, however, that these definitions would have confused the jury or included events too remote from the underlying offence. The words "while committing" in s. 214(5) include conduct which is part of one continuous sequence of events forming a single transaction with the underlying offence. The trial judge's instruction to the jury was in line with this interpretation since it emphasized the need for connection between the two offences but without demanding that they occurred simultaneously.

4. Conclusion

37. The respondent murdered Steeve Duranleau two minutes after indecently assaulting him. The killing was motivated by fear that the boy would tell his mother about the indecent assault. The jury found the respondent guilty of first degree murder. They were entitled to do so. The murder was temporally and causally connected to the underlying offence. It formed part of one continuous sequence of events. It was part of the same transaction.

38. I would allow the appeal and restore the conviction of first degree murder.

Appeal allowed.

Solicitor for the appellant: Robert Parrot, Québec.

Solicitor for the respondent: Jean‑Guy Gilbert, Québec.