Constructive Murder Committed on 18th Birthday: Conviction Upheld and Law Clarified in R v WhiteR. v. White, 2014 ONCA 64 (CanLII)
In a particularly lengthy decision, the Ontario Court of Appeal (“ONCA”) dismissed the appeal of a conviction for first degree murder in R v White, 2014 ONCA 64 [White]. The appellant and two co-accused were convicted in 2009 for the tragic 2007 stabbing death of Brampton youth, Akila Badhanage. On appeal, the appellant White raised three primary issues:
- That he was actually a youth at the time of the offence and was erroneously tried as an adult
- That the trial judge erred in his instructions to the jury on particular elements of the offence, and
- That the trial judge erroneously overemphasized inculpatory evidence while underemphasizing exculpatory evidence, which undermined White’s defence before the jury.
The Trial Decision
The incident that led to the trial in this case occurred in September 2007. After celebrating the appellant’s 18th birthday at the home of Mekeela Lye, the appellant and his friends randomly decided to rob a 16-year-old walking up the street. The parties followed the youth down a catwalk between streets, and one of the co-accused grabbed the victim from behind, in a bearhug. After the victim broke loose, the appellant was observed to have run up from behind the victim, making two jabbing motions towards the victim’s chest.
Shortly after, two other members of the group of assailants caught up, and the group fled back down the catwalk. The victim died shortly after from a single stab wound to his chest. The appellant told Lye that he stabbed the victim because he was protesting, claiming that he was “heated up” because robbing another kid youth the day before, only yielded $20. The accused also said that he did not intend to kill the victim, he only meant to “poke” him.
At trial, the Crown alleged first degree murder under s. 231(5)(e) of the Criminal Code, RSC 1985, c C-46, claiming that the victim’s death was caused in the course of an actual or attempted unlawful confinement (i.e., the bear hug). The defence called for the jury to convict the appellant and his co-accused of manslaughter, while acquitting them of murder. One of the co-accused, who was trailing behind at the time of the stabbing was granted a directed verdict of not guilty of first degree murder due to insufficient evidence of participation in the killing, per R v Harbottle,  3 SCR 306 [Harbottle]. After less than 24 hours of deliberation, the jury convicted the appellant and one co-accused of first degree murder, and the other co-accused of second degree murder. The appellant appealed his conviction as noted above.
Was White Still a “Youth” on his 18th Birthday?
The appellant challenged the Superior Court’s jurisdiction to try him under the adult criminal law, as the incident in question occurred on the 18th anniversary of his birth. The ONCA quickly dismissed this ground of appeal, citing s. 30 of the Interpretation Act, RSC 1985, c I-21 [Interpretation Act], which decrees that a person turns 18 on the commencement of the 18th anniversary of their birth (White, para 13). As the offence occurred completely on the day that the appellant turned 18, s. 16 of the Youth Criminal Justice Act, SC 2002, c 1 [YCJA], does not apply, because the offender’s status was not uncertain.
Constructive Murder: Was there Unlawful Confinement in the Robbery Leading to the Death?
In order to establish a finding of first degree murder here, the Crown was required to prove under the constructive murder provision s. 231(5)(e) of the Criminal Code:
- that the accused unlawfully confined or attempted to unlawfully confine the victim or another person;
- that the accused murdered the victim;
- that the accused participated in the murder of the victim in such a way that the accused was the substantial cause of the victim’s death;
- that no intervening act of somebody else resulted in the accused no longer being substantially connected to the victim’s death; and
- that the crimes of unlawful confinement, whether completed or attempted, and murder were part of the same transaction, in that the victim’s death was caused while the accused was confining or attempting to unlawfully confine the victim or another as part of the same series of events (Harbottle, p 325).
Moreover, in order to establish an unlawful confinement, it is enough to establish the preliminary crime of attempted unlawful confinement (White, para 49).
In White, the ONCA ruled that the decision of the trial judge to leave unlawful confinement with the jury as a basis for first degree murder was not an error in law, and he did not err in his instructions to the jury. The trial judge left it open for the jury to find and actual or attempted unlawful confinement based on at least any of three scenarios: 1) an attempted robbery at knifepoint in the catwalk followed by a chase, 2) some interaction or contact in the catwalk followed by a chase, or 3) the bear hug (White, para 81). In his instructions to the jury, the trial judge made it clear that if the jury accepted that the men chased the victim with a view to restraining him after an interaction in the catwalk, the conduct would constitute an attempted unlawful confinement. The ONCA affirmed the finding based on the evidence at trial; it was entirely reasonable to conclude that an attempted unlawful confinement occurred based on any of the three scenarios.
Indeed, the ONCA found after a thorough review of the evidence at trial that the evidence was capable of supporting a finding of attempted unlawful confinement for all of the three reasons above. All that was required for a finding of attempted unlawful confinement was the intention to commit the offence, as evidenced by some conduct beyond mere preparation (para 92). Here, the evidence of capturing the victim was by itself damning for the purpose. Further, the evidence was capable of supporting a finding that the bearhug itself was a distinct criminal act, which is capable of elevating the murder to first degree murder. The ONCA deemed the bearhug to be the culmination of the pursuit of the victim. Although it facilitated the stabbing, the grabbing and restraint were independent of the stabbing (para 107). Ultimately, it was found that the trial judge did not err in his instruction to the jury by failing to distinguish unlawful confinement from robbery. For the purposes of a constructive first degree murder finding based on unlawful confinement, the context of the confinement was irrelevant but for that it is independent from the act of the killing, not from the robbery (para 114, citing R v Pritchard,  3 SCR 195).
A great deal of the subsequent portions of the ONCA decision (paras 123-205) dealt with a plethora of issues raised, relating to the trial judge’s particular jury instructions based on the evidence, credibility, and character of witnesses and the victim. While no effect was given to any of these grounds of appeal, the judgment provides an interesting analytical framework for quite a number of these evidentiary issues, though beyond the scope of this post. This case provides a useful interpretation and application of the constructive murder provision, particularly following recent Supreme Court of Canada jurisprudence. For further reading, a lengthy corresponding ONCA judgment was released for the co-accused (R v Robinson, 2014 ONCA 63).