R. v. Luxton, [1990] 2 S.C.R. 711
Robert Nelson Luxton Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba and
the Attorney General of British Columbia Interveners
indexed as: r. v. luxton
File No.: 21252.
1990: March 26, 27; 1990: September 13.
Present: Dickson C.J.* and Lamer C.J.** and Wilson, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for alberta
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Constructive murder ‑‑ Whether s. 213(a) of the Criminal Code violates ss. 7 or 11(d) of the Charter ‑‑ If so, whether such violation justified under s. 1 of the Charter ‑‑ Whether s. 214(5)(e) of the Criminal Code violates ss. 7, 9 or 12 of the Charter ‑‑ If so, whether such violation justified under s. 1 of the Charter ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 7, 9 ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, ss. 213(a), 214(5)(e).
Criminal law ‑‑ Constructive murder ‑‑ Whether s. 213(a) of the Criminal Code violates ss. 7 or 11(d) of the Charter ‑‑ If so, whether such violation justified under s. 1 of the Charter ‑‑ Whether s. 214(5)(e) of the Criminal Code violates ss. 7, 9 or 12 of the Charter ‑‑ If so, whether such violation justified under s. 1 of the Charter.
Appellant was convicted of first degree murder as a result of culpable homicide committed during unlawful confinement: the victim, a cab driver, died of multiple stab wounds after being held at knife‑point and robbed. The appellant had told police on his arrest that he had been drinking and taking drugs before getting into the cab. An appeal from conviction to the Court of Appeal was dismissed. Six constitutional questions were stated in this Court: (1) whether s. 213(a) of the Criminal Code contravened ss. 7 and/or 11(d) of the Charter, and (2), if so, whether s. 213(a) was justified by s. 1; (3) whether s. 214(5)(e) was inconsistent with s. 7 of the Charter; (4) whether s. 214(5)(e) in combination with s. 669(a) of the Code was inconsistent with ss. 7, 9 and 12 of the Charter or (5) infringed s. 2(e) of the Canadian Bill of Rights; and (6), if questions 3 or 4 were answered in the affirmative, whether s. 214(5)(e) was justified by s. 1 of the Charter.
Held: The appeal should be dismissed. The first constitutional question should be answered in the affirmative, the second through fifth in the negative and the sixth needed not be answered.
Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.: The first constitutional question was answered in the affirmative and the second in the negative for the reasons given in R. v. Martineau, [1990] 2 S.C.R. 000; the third was answered in the negative for the reasons given in R. v. Arkell, [1990] 2 S.C.R. 000.
The combined effect of s. 214(5)(e) and s. 669 accords with the principles of fundamental justice assuming those principles require that differing degrees of moral blameworthiness in different offences be reflected in differential sentences and that sentences be individualized. Even in the most serious cases, Parliament has provided for some sensitivity to the individual circumstances when it comes to sentencing.
The combination of s. 214(5)(e) and s. 669 do not violate any principle of fundamental justice or s. 2(e) of the Canadian Bill of Rights. Rather, it clearly demonstrates a proportionality between the moral turpitude of the offender and the malignity of the offence and accords with the other objectives of a system of sentencing. The added element of forcible confinement, in the context of murder, markedly enhances the offender's moral blameworthiness. Parliament's decision to elevate murders committed during forcible confinement to first degree murder is consonant with the principle of proportionality between the blameworthiness of the offender and the punishment. Further, it is consistent with the individualization of sentencing especially since only those who have killed with subjective foresight of death while also committing the offence of forcible confinement are subjected to that punishment.
The combination of s. 214(5)(e) and s. 669 does not demonstrate arbitrariness in contravention of s. 9 of the Charter merely because the statute imposes a mandatory term of imprisonment for an offence that encompasses a range of mortal turpitude. The incarceration is statutorily authorized, narrowly defines a class of offenders with respect to whom the punishment will be invoked and specifically prescribes the conditions under which an offender may be found guilty of first degree murder. Further, the policy decision of Parliament to classify these murders as first degree murders accords with the broader objectives of a sentencing scheme.
The combined effect of s. 214(5)(e) and s. 669 does not constitute cruel and unusual punishment ‑‑ punishment that is grossly disproportionate and not merely excessive ‑‑ contrary to s. 12 of the Charter. These sections provide for punishment of the most serious crime in criminal law. The punishment is not excessive and clearly does not outrage standards of decency. The penalty is deservedly severe and yet Parliament has been sensitive to the particular circumstances of each offender.
Section 613(1)(b)(iii) was not applicable here. A jury could not have reasonably reached any other verdict even if the error in leaving s. 213(a) had not occurred.
Per L'Heureux‑Dubé J.: Lamer C.J.'s disposition of questions 3 through 6 were agreed with. However, for the reasons stated in R. v. Martineau, [1990] 2 S.C.R. 000, the first question must be answered in the negative, and therefore the second question needed not be answered. The third question should be answered in the negative for the reasons given in R. v. Arkell, [1990] 2 S.C.R. 000, and in the judgment of McLachlin J.A. for the British Columbia Court of Appeal in that case (1988), 43 C.C.C. (3d) 402.
The distinction between first and second degree murder only comes into play when the offender has been proven beyond a reasonable doubt to be guilty of murder. To be found guilty of first degree murder under s. 214(5)(e), the offender must have committed murder "while committing or attempting to commit forcible confinement". This is in addition to the stringent criteria for the crime of murder itself. It is appropriate for Parliament to impose its most severe punishment.
Per Sopinka J.: The appeal must be dismissed pursuant to s. 613(1)(b)(iii). The reasons given in R. v. Martineau, [1990] 2 S.C.R. 000, were applicable to the constitutional questions relating to s. 213(a). The reasons of Lamer C.J. with respect to s. 214(5)(e) were agreed with, except to the extent that those reasons rely on the view that murder, and hence first degree murder, constitutionally requires subjective foresight of death.
Cases Cited
By Lamer C.J.
Applied: R. v. Martineau, [1990] 2 S.C.R. 000; R. v. Arkell, [1990] 2 S.C.R. 000; referred to: R. v. Paré, [1987] 2 S.C.R. 618; R. v. Vaillancourt, [1987] 2 S.C.R. 636; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Lyons, [1987] 2 S.C.R. 309; R. v. Dollan and Newstead (1980), 53 C.C.C. (2d) 146; R. v. Gratton (1985), 18 C.C.C. (3d) 462; R. v. Guiller, Ont. Dist. Ct., Borins Dist. Ct. J., Sept. 23, 1985, unreported.
By L'Heureux‑Dubé J.
Referred to: R. v. Martineau, [1990] 2 S.C.R. 000; R. v. Arkell, [1990] 2 S.C.R. 000, aff'g (1988), 43 C.C.C. (3d) 402.
By Sopinka J.
Applied: R. v. Martineau, [1990] 2 S.C.R. 000.
Statutes and Regulations Cited
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(e).
Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 11(d), 12.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 212(a), 213(a), 214(5)(e), 247, 669(a), 672, 674, 686, 613(1)(b)(iii).
APPEAL from a judgment of the Alberta Court of Appeal dismissing the appellant's appeal from a conviction on a charge of first degree murder by Wachowich J. sitting with jury. Appeal dismissed.
Alexander D. Pringle and Peter Michalyshyn, for the appellant.
Jack Watson, for the respondent.
Bruce MacFarlane, Q.C., and Don Avison, for the intervener the Attorney General of Canada.
D. Butt, for the intervener the Attorney General for Ontario.
Jacques Gauvin, for the intervener the Attorney General of Quebec.
J. G. Dangerfield, Q.C., and Marva J. Smith, for the intervener the Attorney General of Manitoba.
James D. Taylor, Q.C., for the intervener the Attorney General of British Columbia.
//Lamer C.J.//
The judgment of Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ. was delivered by
LAMER C.J. -- This appeal raises issues similar to those raised by R. v. Martineau, [1990] 2 S.C.R. 000 and R. v. Arkell, [1990] 2 S.C.R. 000. At stake is the constitutionality of s. 213(a) of the Criminal Code, R.S.C. 1970, c. C‑34 (now R.S.C., 1985, c. C‑46, s. 230(a)), in light of ss. 7 and 11(d) of the Charter, as well as the constitutionality of s. 214(5)(e) (now s. 231(5)(e) of the Code) in light of ss. 7, 9 and 12 of the Canadian Charter of Rights and Freedoms.
Facts
The appellant was convicted of the first degree murder of Charmayne Manke and was sentenced to life imprisonment without eligibility for parole for 25 years. The Court of Appeal for Alberta dismissed, without written reasons, an appeal from conviction. The body of the victim was found lying in a farmer's field at about 7:00 a.m. on April 14, 1984. An autopsy revealed that she had 12 stab wounds to her neck and three to her head. She bled to death as a result of a wound to her carotid artery. At trial, evidence was adduced to establish that the appellant hailed a cab outside a gay night-club and asked the victim, the cab driver, to take him to his motel room. When they arrived at the motel, the appellant asked her to wait for him while he picked up his luggage. At that time the appellant also retrieved a knife from his room. The appellant, upon his return, sat in the front passenger's seat. A witness who observed the victim's driving testified that her driving pattern was very erratic following the departure from the motel.
After his arrest, the appellant told the R.C.M.P. that he had been drinking and taking drugs before getting into the cab. He remembered being in a field and wanting the cab driver's money. When he took her money, he had the knife displayed. At his request, the victim got out of the cab and his next memory was of his standing on the highway attempting to flag down a truck. In a later statement he remembered that he had initially pulled out the knife on entering the cab at the motel and told the victim to keep driving until he told her to stop. It was further alleged that the appellant made an incriminating statement to another prisoner while in custody awaiting trial to the effect that he had stabbed the victim inside the cab and again outside the cab because she called him a "faggot". The fellow inmate also testified that the appellant had made reference to having "had control of where they were going" in the cab.
In the course of its deliberations, the jury sent the trial judge two questions: (1) "what causes first degree murder to drop to second degree murder?" and (2) "please clarify forcible confinement a little more, that is, if the death occurred outside the cab, was the victim forcibly confined, if, for instance, she ran and attempted to escape, was caught by the accused and killed, was she forcibly confined at the time of death -- when does forcible confinement end?" The trial judge first noted that first degree murder does not "drop" to second degree murder and then responded in the following way:
It is not first degree murder if, and I will tell you in what circumstances it is not first degree murder, if you find on the facts that there was no forcible confinement. It is not first degree murder if you find a robbery without a forcible confinement. It is not first degree murder if you find no planning or deliberation but, once again, as I told you when I charged you, don't concern yourself with that one, because the Crown conceded that this is not a case of planning and deliberation and I concur, but there was some evidence that you might have found that in any event, so, I charged you on it. So, that one I would suggest you should put aside.... It is not first degree murder if you find in fact you have a doubt as to whether the accused did form the intent to forcibly confine.... It is not first degree murder if you have a reasonable doubt as to whether the forcible confinement ended and this doubt must be resolved in favor [sic] of the accused. Finally, it is not first degree murder if death occurred to facilitate flight after committing or attempting to commit forcible confinement.
The jury returned about two hours later with a verdict of guilty of first degree murder.
Judgment below
Court of Appeal for Alberta
The appellant's appeal from conviction was heard on March 10 and 11 of 1988 before a five-person panel of the Court of Appeal for Alberta. At the conclusion of the oral argument Kerans J.A. dismissed the appeal. No written reasons were ever provided, although a formal judgment of the Court was rendered on April 6, 1988. It is common ground between the parties that the following represents a fair summation of the oral reasons provided by Kerans J.A. The Court of Appeal rejected a constitutional challenge to s. 214(5) of the Criminal Code because it does not create a substantive offence, but rather simply classifies murder for sentencing purposes. Kerans J.A. indicated that the inclusion of certain offences in s. 214(5) was not arbitrary, relying on this Court's decision in R. v. Paré, [1987] 2 S.C.R. 618. The Court further held that even if one assumes that s. 213(a) of the Criminal Code violates s. 7 of the Charter based on the decision in R. v. Vaillancourt, [1987] 2 S.C.R. 636, the verdict of the jury should be affirmed by application of s. 613(1)(b)(iii) of the Criminal Code.
Relevant Statutory Provisions
Criminal Code, R.S.C. 1970, c. C‑34, s. 214(5)(e) (now R.S.C., 1985, c. C‑46, s. 231(5)(e)), s. 247 (now s. 279) and s. 669(a) (now s. 742(a))
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 while committing or attempting to commit an offence under one of the following sections:
...
(e) section 247 (kidnapping and forcible confinement).
247. (1) Every one who kidnaps a person with intent
(a) to cause him to be confined or imprisoned against his will,
(b) to cause him to be unlawfully sent or transported out of Canada against his will, or
(c) to hold him for ransom or to service against his will,
is guilty of an indictable offence and liable to imprisonment for life.
(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.
(3) In proceedings under this section the fact that the person in relation to whom the offence is alleged to have been committed did not resist is not a defence unless the accused proves that the failure to resist was not caused by threats, duress, force or exhibition of force.
669. The sentence to be pronounced against a person who is to be sentenced to imprisonment for life shall be,
(a) in respect of a person who has been convicted of high treason or first degree murder, that he be sentenced to imprisonment for life without eligibility for parole until he has served twenty‑five years of his sentence;
Issues
The following constitutional questions were stated by Chief Justice Dickson on June 2, 1989:
1. Does s. 230(a) [then s. 213(a)] of the Criminal Code contravene the rights and freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?
2. If the answer to question 1 is affirmative, is s. 230(a) [then s. 213(a)] of the Criminal Code justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
3. Is s. 231(5)(e) [then s. 214(5)(e)] of the Criminal Code inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
4. Is s. 231(5)(e) [then s. 214(5)(e)] in combination with s. 742(a) [then s. 669(a)] of the Criminal Code inconsistent with ss. 7, 9 and, or in the alternative, s. 12 of the Canadian Charter of Rights and Freedoms?
5. Does s. 231(5)(e) [then s. 214(5)(e)] in combination with s. 742 [then s. 669] of the Criminal Code abrogate or infringe the rights guaranteed by s. 2(e) of the Canadian Bill of Rights?
6. If the answer to questions 3 or 4 is in the affirmative, is s. 231(5)(e) [then s. 214(5)(e)] justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
Analysis
For the reasons stated in R. v. Martineau, released concurrently, s. 213(a) of the Criminal Code infringes ss. 7 and 11(d) of the Charter and cannot be saved by s. 1 of the Charter. Therefore, the first constitutional question is answered in the affirmative and the second question in the negative. With respect to question three which deals with whether s. 214(5)(e) is inconsistent with s. 7 of the Charter, I rely on my reasons in R. v. Arkell for the conclusion that the inclusion of certain offences in s. 214 is guided by the organizing principle identified by this Court in Paré, supra, and thereby is neither arbitrary nor irrational. Therefore, I would answer question three in the negative.
The remaining questions require an examination of the combined effect of s. 214(5)(e) and s. 669 of the Code on the rights guaranteed by ss. 7, 9 and 12 of the Charter, and s. 2(e) of the Canadian Bill of Rights. The appellant combines his argument in respect of s. 7 of the Charter and s. 2(e) of the Canadian Bill of Rights. He submits that the principles of fundamental justice require that differing degrees of moral blameworthiness in different offences be reflected in differential sentences, and that sentencing be individualized. The appellant cites the following judgments as support for the view that the combined effect of s. 214(5)(e) and s. 669 offends the principles that a just sentencing system contains a gradation of punishments differentiated according to the malignity of offences and that sentencing be individualized: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, per Wilson J., R. v. Smith, [1987] 1 S.C.R. 1045, per Lamer J. and per Wilson J., and R. v. Lyons, [1987] 2 S.C.R. 309, per La Forest J. In my view, assuming that s. 7 incorporates the propositions cited by the appellant as principles of fundamental justice, the combined effect of s. 214(5)(e) and s. 669 is in accordance with them. Section 214(5) of the Criminal Code isolates a particular group of murderers, namely those who have murdered while committing certain offences involving the illegal domination of the victim, and classifies them for sentencing purposes as murderers in the first degree. As a result of s. 669 the murderer is sentenced to life imprisonment without parole eligibility for 25 years. It is of some note that even in cases of first degree murder, s. 672 of the Code provides that after serving 15 years the offender can apply to the Chief Justice in the province for a reduction in the number of years of imprisonment without eligibility for parole having regard for the character of the applicant, his conduct while serving the sentence, the nature of the offence for which he was convicted and any other matters that are relevant in the circumstances. This indicates that even in the cases of our most serious offenders, Parliament has provided for some sensitivity to the individual circumstances of each case when it comes to sentencing.
I must also reiterate that what we are speaking of here is a classification scheme for the purposes of sentencing. The distinction between first and second degree murder only comes into play when it has first been proven beyond a reasonable doubt that the offender is guilty of murder, that is, that he or she had subjective foresight of death: R. v. Martineau, handed down this day. There is no doubt that a sentencing scheme must exhibit a proportionality to the seriousness of the offence, or to put it another way, there must be a gradation of punishments according to the malignity of the offences. However, a sentencing scheme also must take into account other factors that are of significance for the societal interest in punishing wrongdoers. In Lyons, supra, at pp. 328‑29, La Forest J. considered the dangerous offender designation in the Code and said the following in respect of the relationship between sentencing and its objectives:
I accordingly agree with the respondent's submission that it cannot be considered a violation of fundamental justice for Parliament to identify those offenders who, in the interests of protecting the public, ought to be sentenced according to considerations which are not entirely reactive or based on a "just deserts" rationale. The imposition of a sentence which "is partly punitive but is mainly imposed for the protection of the public" ... seems to me to accord with the fundamental purpose of the criminal law generally, and of sentencing in particular, namely, the protection of society. In a rational system of sentencing, the respective importance of prevention, deterrence, retribution and rehabilitation will vary according to the nature of the crime and the circumstances of the offender.
In my view the combination of s. 214(5)(e) and s. 669 clearly demonstrates a proportionality between the moral turpitude of the offender and the malignity of the offence, and moreover it is in accord with the other objectives of a system of sentencing identified by La Forest J. in Lyons. As I have stated, we are dealing with individuals that have committed murder and have done so with the now constitutionally mandated mens rea of subjective foresight of death. Parliament has chosen, once it has been proven that an offender has committed murder, to classify certain of those murders as first degree. 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. The decision of Parliament to elevate murders done while the offender commits forcible confinement to the level of first degree murder is consonant with the principle of proportionality between the blameworthiness of the offender and the punishment. Further, it is consistent with the individualization of sentencing especially since only those who have killed with subjective foresight of death while also committing the offence of forcible confinement are subjected to that punishment. I, therefore, can find no principle of fundamental justice that has been violated by the combination of s. 214(5)(e) and s. 669 of the Criminal Code. Equally, for these same reasons I conclude that there is no violation of s. 2(e) of the Canadian Bill of Rights.
The appellant also submits in a separate argument that the combination of s. 214(5)(e) and s. 669 contravenes s. 9 of the Charter because of the imposition of a mandatory term of imprisonment by statute for an offence that encompasses a range of moral turpitude. This argument overlaps a great deal with the appellant's s. 7 argument and I would only add the following comments to those I have already made above. The combined effect of the impugned sections do not demonstrate arbitrariness on the part of Parliament. Indeed, as I noted above, Parliament has narrowly defined a class of murderers under an organizing principle of illegal domination and has specifically defined the conditions under which the offender can be found guilty of first degree murder. In order to be found guilty of first degree murder under s. 214(5)(e), the offender must have committed murder with subjective foresight of death and must have committed the murder "while committing or attempting to commit ... forcible confinement". 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 s. 214(5): see Paré, supra at p. 632. 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": quoted from R. v. Dollan and Newstead (1980), 53 C.C.C. (2d) 146, as cited with approval in R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.). It is true that the definition of forcible confinement adopted by the courts allows for varying circumstances in each individual case. But this alone is not a sign of arbitrariness. The offence of forcible confinement as defined falls clearly under the rubric of the organizing principle enunciated by Wilson J. in Paré, namely that of the illegal domination of one person by another. The decision of Parliament to attach a minimum 25-year sentence without eligibility for parole in cases of first degree murder, having regard to all these circumstances, cannot be said to be arbitrary within the meaning of s. 9 of the Charter. The incarceration is statutorily authorized, it narrowly defines a class of offenders with respect to whom the punishment will be invoked and it prescribes quite specifically the conditions under which an offender may be found guilty of first degree murder. 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.
The appellant's final argument is that the combined effect of s. 214(5)(e) and s. 669 contravenes s. 12 of the Charter. Section 12 of the Charter protects individuals against cruel and unusual punishment. The phrase "cruel and unusual punishment" has been considered by this Court in R. v. Smith, supra. That case held that the criterion to be applied in order to determine whether a punishment is cruel and unusual is whether the punishment is so excessive as to outrage standards of decency. At pages 1072‑73 I stated that:
The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.
In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender.
In Lyons, supra, La Forest J. addressed the meaning of the word "grossly" at pp. 344‑45:
The word "grossly" [as in "grossly disproportionate"], it seems to me, reflects this Court's concern not to hold Parliament to a standard so exacting, at least in the context of s. 12, as to require punishments to be perfectly suited to accommodate the moral nuances of every crime and every offender.
In my view, the combination of s. 214(5)(e) and s. 669 does not constitute cruel and unusual punishment. These sections provide for punishment of the most serious crime in our criminal law, that of first degree murder. This is a crime that carries with it the most serious level of moral blameworthiness, namely subjective foresight of death. The penalty is severe and deservedly so. The minimum 25 years to be served before eligibility for parole reflects society's condemnation of a person who has exploited a position of power and dominance to the gravest extent possible by murdering the person that he or she is forcibly confining. The punishment is not excessive and clearly does not outrage our standards of decency. In my view, it is within the purview of Parliament, in order to meet the objectives of a rational system of sentencing, to treat our most serious crime with an appropriate degree of certainty and severity. I reiterate that even in the case of first degree murder, Parliament has been sensitive to the particular circumstances of each offender through various provisions allowing for the royal prerogative of mercy, the availability of escorted absences from custody for humanitarian and rehabilitative purposes and for early parole: see s. 672 (now s. 745), s. 674 (now s. 747) and s. 686 (now s. 751) of the Criminal Code. In Smith, supra, at p. 1070, I quoted with approval the following statement by Borins Dist. Ct. J. in R. v. Guiller:
It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.
Therefore, I conclude that in the case at bar the impugned provisions in combination do not represent cruel and unusual punishment within the meaning of s. 12 of the Charter.
The remaining issue is the potential application of s. 613(1)(b)(iii) (now s. 686(1)(b)(iii)) of the Criminal Code. I note that the trial judge charged the jury extensively on s. 212(a) (now s. 229(a)) of the Criminal Code as well as on the effect of drunkenness in relation to that section. He also charged the jury secondarily on s. 213(a) (now s. 230(a)). He further told the jury to put aside any consideration of planning and deliberation. Therefore, the jury could only rest its verdict of first degree murder on s. 214(5) (now s. 231(5)), on which they were properly instructed. In light of all the facts, especially the fact that the appellant stabbed the victim a total of 15 times in the neck and head, I am convinced that a jury could not have reasonably reached any other verdict even if the error in leaving s. 213(a) had not occurred. I would dismiss the appeal and answer the constitutional questions as follows:
1. Does s. 230(a) [then s. 213(a)] of the Criminal Code contravene the rights and freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?
A. Yes.
2. If the answer to question 1 is affirmative, is s. 230(a) [then s. 213(a)] of the Criminal Code justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
A. No.
3. Is s. 231(5)(e) [then s. 214(5)(e)] of the Criminal Code inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
A. No.
4. Is s. 231(5)(e) [then s. 214(5)(e)] in combination with s. 742(a) [then s. 669(a)] of the Criminal Code inconsistent with ss. 7, 9 and, or in the alternative, s. 12 of the Canadian Charter of Rights and Freedoms?
A. No.
5. Does s. 231(5)(e) [then s. 214(5)(e)] in combination with s. 742 [then s. 669] of the Criminal Code abrogate or infringe the rights guaranteed by s. 2(e) of the Canadian Bill of Rights?
A. No.
6. If the answer to questions 3 or 4 is in the affirmative, is s. 231(5)(e) [then s. 214(5)(e)] justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
A. This question does not have to be answered.
Accordingly, the appeal is dismissed.
//L'Heureux-DubÉ//
The following are the reasons delivered by
L'HEUREUX‑DUBÉ J. ‑‑ I agree with my colleague Chief Justice Lamer's ultimate disposition of this appeal. However, given my position in R. v. Martineau, [1990] 2 S.C.R. 000, released concurrently, I would answer constitutional questions 1 and 2 differently, and I wish to qualify my concurrence with respect to s. 214(5)(e) of the Criminal Code, R.S.C. 1970, c. C‑34 (now R.S.C., 1985, c. C‑46, s. 231)5)(e)).
The issues in this appeal are the constitutionality of s. 213(a) of the Criminal Code in light of ss. 7 and 11(d) of the Charter, and the constitutionality of s. 214(5)(e) in light of ss. 7, 9, and 12 of the Charter. The following constitutional questions were stated by the Chief Justice:
1. Does s. 230(a) [then s. 213(a)] of the Criminal Code contravene the rights and freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?
2. If the answer to question 1 is affirmative, is s. 230(a) [then s. 213(a)] of the Criminal Code justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
3. Is s. 231(5)(e) [then s. 214(5)(e)] of the Criminal Code inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
4. Is s. 231(5)(e) [then s. 214(5)(e)] in combination with s. 742(a) [then s. 669(a)] of the Criminal Code inconsistent with ss. 7, 9 and, or in the alternative, s. 12 of the Canadian Charter of Rights and Freedoms?
5. Does s. 231(5)(e) [then s. 214(5)(e)] in combination with s. 742 [then s. 669] of the Criminal Code abrogate or infringe the rights guaranteed by s. 2(e) of the Canadian Bill of Rights?
6. If the answer to questions 3 or 4 is in the affirmative, is s. 231(5)(e) [then s. 214(5)(e)] justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
I agree with my colleague's disposition of questions 3 through 6. However, for the reasons stated in Martineau, I am of the view that the first question must be answered in the negative, and therefore the second question need not be answered. I would also answer question 3 in the negative, relying on my remarks in R. v. Arkell, [1990] 2 S.C.R. 000, released concurrently, as well as the opinion of McLachlin J.A. (now of this Court) for the British Columbia Court of Appeal in that case (1988), 43 C.C.C. (3d) 402.
In Martineau, the sole issue was the constitutionality of s. 213(a). Under s. 213(a), a whole series of requirements must be met before an accused can be convicted for murder. While I disagreed with my colleague's introduction of subjective foresight of death as the exclusive constitutional standard to be applied for the crime of murder, I do agree with his assessment in the present case that "[t]he distinction between first and second degree murder only comes into play when it has first been proven beyond a reasonable doubt that the offender is guilty of murder" (p. 000).
In order to be found guilty of first degree murder under s. 214(5)(e), the offender must have committed murder "while committing or attempting to commit. . . forcible confinement". This is in addition to the stringent criteria for the crime of murder itself; either subjective foresight of death, and/or the commission of a predicate crime included in a circumscribed list of offences under s. 213, combined with the concomitant intentional infliction of bodily harm resulting in death. When all of these factors are consolidated, it is certainly appropriate for Parliament to impose its most severe punishment.
Therefore I would dismiss this appeal answering the constitutional questions as follows:
1. Does s. 230(a) [then s. 213(a)] of the Criminal Code contravene the rights and freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?
A. No.
2. If the answer to question 1 is affirmative, is s. 230(a) [then s. 213(a)] of the Criminal Code justified by s. 1 of the Charter and therefore not inconsistent with the Constitution Act, 1982?
A. This question does not have to be answered.
3. Is s. 231(5)(e) [then s. 214(5)(e)] of the Criminal Code inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms?
A. No.
4. Is s. 231(5)(e) [then s. 214(5)(e)] in combination with s. 742(a) [then s. 669(a)] of the Criminal Code inconsistent with ss. 7, 9 and, or in the alternative, s. 12 of the Canadian Charter of Rights and Freedoms?
A. No.
5. Does s. 231(5)(e) [then s. 214(5)(e)] in combination with s. 742 [then s. 669] of the Criminal Code abrogate or infringe the rights guaranteed by s. 2(e) of the Canadian Bill of Rights?
A. No.
6. If the answer to questions 3 or 4 is in the affirmative, is s. 231(5)(e) [then s. 214(5)(e)] justified by s. 1 of the Canadian Charter of Rights and Freedoms and therefore not inconsistent with the Constitution Act, 1982?
A. This question does not have to be answered.
//Sopinka J.//
The following are the reasons delivered by
SOPINKA J. -- I agree with Chief Justice Lamer that the appeal must be dismissed pursuant to s. 613(1)(b)(iii) of the Criminal Code, R.S.C. 1970, c. C‑34. With respect to s. 213(a), I would answer the constitutional questions in the manner proposed by Lamer C.J. I would do so for the reasons I gave in R. v. Martineau, [1990] 2 S.C.R. 000. With respect to s. 214(5)(e), I agree with Lamer C.J. except to the extent that he relies on the view that murder, and hence first degree murder, constitutionally requires subjective foresight of death.
Appeal dismissed.
Solicitor for the appellant: Alexander D. Pringle, Edmonton.
Solicitor for the respondent: Jack Watson, Edmonton.
Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.
Solicitor for the intervener the Attorney General for Ontario: The Attorney General for Ontario, Toronto.
Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Ste‑Foy.
Solicitor for the intervener the Attorney General of Manitoba: The Attorney General of Manitoba.
Solicitor for the intervener the Attorney General of British Columbia: The Attorney General of British Columbia, Victoria.