R v Barre, 2023 SKCA 129

Court of Appeal for Saskatchewan Docket: CACR3408 Citation: R v Barre , 2023 SKCA 129 Date: 2023-11-24 Between: Chad Allen Barre Appellant And His Majesty the King Respondent Before: Caldwell, Kalmakoff and Drennan JJ.A. Disposition: Appeal from conviction dismissed; verdict of second degree murder substituted Written reasons by: The Honourable Madam Justice Drennan In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Kalmakoff On appeal from: CRM 440 of 2018, Regina Appeal heard: January 20, 2023 Counsel: Daniel LeBlanc for the Appellant Grace Hession-David for the Respondent Drennan J.A. I. INTRODUCTION [ 1 ] Chad Barre was convicted of the first degree murder of Justin Langan following a jury trial. The verdict was based on the conclusion that Mr. Barre had caused Mr. Langan’s death while committing the offence of unlawful confinement, contrary to s. 231(5) (

e) of the Criminal Code . Mr. Barre now appeals that conviction, asserting that the trial judge erred in failing to instruct the jury that the confinement of Mr. Langan had to be distinct from, and not subsumed in, the killing. [ 2 ] I agree with Mr. Barre that the trial judge erred in the way he suggests. As a result of the flawed charge, the jury was ill equipped to consider whether the confinement and killing were discrete events arising out of the same transaction, thereby engaging s. 231(5) (e). I am not satisfied that the verdict would necessarily have been the same absent this error.

However, I am satisfied that the jury was properly instructed on the elements required to ground a conviction for second degree murder. Accordingly, by remitting the matter back for trial, this Court would be interfering with their unchallenged findings that Mr. Barre had, beyond a reasonable doubt, the intention to and did commit a culpable murder. In my judgment, ordering a new trial in these circumstances would not be in the interests of justice. [ 3 ] As a result, while Mr. Barre has successfully persuaded me that the jury instruction was flawed, pursuant to s. 686(1)(

b) and s. 686(3), I would dismiss his appeal, and substitute a conviction for second degree murder in place of the first degree murder conviction entered after trial. My reasons for these conclusions follow. II. THE TRIAL A. The evidence [ 4 ] On the evening of February 18, 2018, Mr. Langan was shot and killed in his Regina home. His wife, Alexis Bigeagle, Ms. Bigeagle’s niece and nephew, S.B. and J.B., and two other children, were present in the residence on the night in question. [ 5 ] Ms. Bigeagle testified that, at around 7:45 p.m., there was a knock at the door. She and Mr.

Langan were in the living area of the home watching television at the time. [ 6 ] S.B. and J.B. came down the stairs from the upper level of the home and opened the door, as they had been expecting their father to attend the home that evening. Mr. Barre and another adult male were at the door and entered. Mr. Barre was known to Ms. Bigeagle and Mr. Langan, but Ms. Bigeagle did not know the second male. [ 7 ] While Mr. Langan and Ms. Bigeagle were sitting on the couch, Mr. Barre approached Mr. Langan and asked for $20 owing for a purchase of methamphetamine. [ 8 ] Although Ms.

Bigeagle’s testimony as to the exact timing of events was unclear, she said that at some point, either during or shortly after Mr. Barre’s request for the money, the second male approached Mr. Barre and Mr. Langan, pulled out a shotgun from under his clothing and passed it to Mr. Barre. Thereafter, Mr. Barre pointed the gun at Mr. Langan. [ 9 ] Mr. Langan told Mr. Barre that he did not have the money. The discussion turned to the prospect of the television being taken in lieu of the money owed. The second male went to unplug and take the television. Ms. Bigeagle got up from the couch and attempted to stop him.

She described the interaction that ensued as a “tug of war” over the television. [ 10 ] Ms. Bigeagle recounted that, while this was happening, Mr. Barre and Mr. Langan walked toward the front door, talking. She could not hear what they were talking about but noted that they were not arguing or raising their voices. No physical altercation occurred between them. Mr. Barre was still holding the firearm, but not pointing it.

[ 11 ] The second male eventually disconnected the television, and while walking towards the front door with it, knocked over Ms. Bigeagle, who tripped on the coffee table and fell to the ground. Mr. Langan turned and moved towards her to assist. [ 12 ] At this point, Ms. Bigeagle heard a popping noise. Mr. Barre was behind Ms. Bigeagle, holding the gun, and Mr. Langan dropped to the ground. Ms. Bigeagle testified that Mr. Barre said something like “That’s what’s up” or “That’s what you get”. [ 13 ] Mr. Langan was fatally wounded. Mr.

Barre and the second male took the television and ran out of the residence, got into a truck, and drove away. [ 14 ] Ms. Bigeagle estimated that the whole incident took approximately 10 to 15 minutes, although she did not have a watch on and could not be precise as to when Mr. Barre and the unknown male had arrived and left. She approximated that the gun was visible for a third of that time. She admitted she did not see the shooting.

She also admitted in cross-examination that, because it had been three years since the incident at the time of trial, she may have been confused about the sequence of events that night. She also described herself as being scared when the gun was produced, as the children were in the house. [ 15 ] S.B. was 14 years of age at the time of the incident and living with Ms. Bigeagle. She testified that on February 18, 2018, she had been ill and had stayed home that day watching television upstairs.

Her cousins had attended the home that evening, where they, her brother J.B., and she all watched television and ate snacks in the upstairs of the home. [ 16 ] S.B. heard knocking at the front door downstairs. She believed it may be her father, whom she had expected to attend the home. She and her brother ran downstairs and opened the front door. Mr. Barre and a second male were at the front door. Mr. Barre was known to her.

She did not know the second male but observed that he may have been hiding something under his clothing in his chest area. [ 17 ] The children returned upstairs where they continued watching YouTube videos. At some point, they heard a loud voice downstairs. S.B. identified the voice as Mr. Langan’s, and it sounded angry. They also heard muffled yelling. She heard her aunt yell, and two males shouting. The children paused the video.

When they opened the door of the room, they heard a popping noise. [ 18 ] S.B. estimated that from the time she and her brother opened the front door until they heard the pop was approximately 15 minutes. She conceded however that she had not been watching a clock and that it was a “best guess”. [ 19 ] The defence called no evidence. B. The trial judge’s opening comments and counsel’s submissions [ 20 ] In his opening comments to the jury, the trial judge discussed the elements of first degree murder in the context of s. 231(5) (

e) in this way: You must find Mr. Barre not guilty of first degree murder unless the Crown has proven beyond a reasonable doubt that Barre is the person who committed the offence, on the date, and in the place described in the indictment.

Specifically, the Crown must prove each of the following essential elements beyond a reasonable doubt: That Barre committed an unlawful act; that Barre’s unlawful act caused Justin Langan’s death; that Barre had the intent required for murder; that Barre unlawfully confined Justin Langan; and that the unlawful confinement and the murder of Justice (sic) Langan were part of the same series of events ; and that Barre actively participated in the killing. (Emphasis added) [ 21 ] In the Crown’s closing submissions, it took the position that Mr.

Langan was physically and psychologically confined from the moment that the gun was produced: Now, from the Crown’s position, we are suggesting that this is elevated to a first degree murder, by virtue of unlawful confinement. Now, in this case, at law, unlawful confinement does not need to be absolute physical control. You don’t have to lock somebody up. You don’t have to lock them in a room. You don’t have to necessarily hold them down or tie them up or anything of the sort. Unlawful confinement can include all sorts of things.

And it can also be established by not only physical measures, but also fear, intimidation, psychological and other means. So, for example, when we look at the evidence of Alexis Bigeagle, she says she was scared when she saw this gun. She says her children were in the house, and she quote: Wanted to avoid any kind of shootings or the gun going off. So certainly Alexis Bigeagle is being intimidated by the mere presence of a firearm in her residence, and I would suggest that’s a natural thing.

If somebody shows up at your residence with a firearm, points it at you from a foot away, it’s a reasonable inference that you are not going to feel entitled to move around as you wish. It’s a natural inference to assume that you’re going to be intimidated, that you’re going to feel psychological fear.

These are inferences that are reasonable, and these are inferences that we will be asking the jury to draw. … So in short, ladies and gentlemen, what the Crown suggests here, is that from the moment the gun is produced in the residence of Alexis Bigeagle and Justin Langan, in the context of a debt collection, Justin Langan’s liberty was -- was both physically and psychologically restricted.

The Crown suggests, as I pointed out, that there is a psychological threat inherent in a situation where an individual is being threatened by a firearm in one’s own home, and that this necessarily constitutes a restriction of one’s liberty to move about, according to your own inclination and desire. [ 22 ] Mr. Barre’s counsel took the position that the confinement had to be a discrete event not subsumed in the killing.

In addition, she argued that the presence of the firearm did not necessarily amount to a physical or psychological confinement: The Crown must show that a forcible confinement occurred during a series of events. That series of events must include the killing, but not be incidental to the killing itself. The confinement and the killing need to be distinct events. The case law is clear that you must look at the

facts and the circumstances of each case as a whole, not bits and pieces, everything together. The confinement must be for a significant amount of time, and [the trial judge] will explain that further to you. It cannot be momentary confinement or a passing confinement. … Now, in his comments just now my friend had said that there is a psychological threat inherent with a gun being present and that leads to a restriction of your liberty. With all due respect, I disagree. People are unpredictable. You can’t know how somebody is going to react to a gun. Someone might be intimidated by it.

Somebody might lunge at it to take the -- take the shooter out, if you will. Some people are very familiar with guns and they’re not bothered by them. Hunters, for example, might have guns, you know, available or readily accessible and not be intimidated. So to suggest that the fact that a gun was present, merely its presence leads to a confinement, I don’t think that’s a logical inference that you guys can make, based on the evidence you have.

You must remember, to prove first degree murder, the Crown must also show a separate incident of unlawful confinement, not just pointing a gun or shooting a gun, not just making somebody feel scared, intimidated or frightened. There has to be an actual confinement. And as I said, [the trial judge] will give you that definition in his charge to the jury later. He will also tell you that if you find that the death did not occur during the course of an unlawful confinement, then the Crown has not proven first degree murder.

If you find that the Crown has not proven first degree murder beyond a reasonable doubt, you’ll be directed to turn your mind to the other degrees of murder, second degree murder or possibly manslaughter. Again, [the trial judge] will explain these offences to you more fully in his charge later this week. C. The charge to the jury [ 23 ] The trial judge met with the Crown and defence counsel on November 11, 2020, to discuss the draft jury charge. Defence counsel raised the following concern with its contents: MS.

BUYDENS: My reading of the case law is that the confinement and the killing have to be two distinct events that are part of the same series of events. So while I think you’ve articulated that they need to be part of the same series of events quite well, I think there’s the additional -- it needs to be two distinct events. It can’t be incidental to the killing because there is some discussion about, for example, when you rob somebody and you say, Give me your wallet, the confinement is incidental to the robbery, and it’s not a separate and distinct event .

So my understanding of the case law is that the confinement must be part of the same series of events which you’ve articulated, but must be a distinct event from the killing and not incidental to. And while I don’t think that you necessarily need to say that at paragraph 112, I do think it needs to be articulated in 128 to 132 somewhere[.] THE COURT: I’ll just see where -- that, just for your information -- and perhaps you have better wording -- that I’ve taken literally word for word from the CJC Model Jury Instructions . MS. BUYDENS: 128 to 132? THE COURT: Right, I believe. MS.

BUYDENS: And I’m -- if I -- if I’m looking -- Pritchard , for example, at paragraph 27 says: Confinement has to be a separate criminal act from the murder. Kimberley says that: Confinement must be part of a continuous series of events and not be incidental to the killing itself. Alexis , at paragraph 17: Murder and confinement need to be distinctive ends, but part of the same series of events. At paragraph 18 it says that: A temporal link is not enough. It needs to be more than two events being committed in succession.

So I think the case law is clear that it needs to be two distinct events within the same series of events. THE COURT: Do -- do both of you -- do both of you agree on what the wording should be? Like, I’m not here to -- you know, if counsel are both comfortable with a different wording, I -- I’m certainly not going to (INDISCERNIBLE), but I’m -- I’m -- as I say, I’m relying on -- on -- and the -- the judicial council’s -- it was last revised in May of 2019, which should include all of the case law that you’re referring to.

And I -- I took that literally word for word from -- those paragraphs come word for word from that, if I recall. MR. CHOVIN: Yeah. No, I -- I mean, the -- the Crown is content with the way that the Court has it framed. So -- and I mean, the -- the case law -- at least my understanding of the case law is that the act of murder can’t be -- or the act of the unlawful confinement, rather, can’t be subsumed in the murder itself.

And I know there is one of the cases where they talk about a group beating that -- that -- that led to the death of an individual, and -- and there the -- the Court said, Well, the beating itself is -- is what, you know, what’s alleged to be the confinement. It’s also what led to the death. Therefore, that has been subsumed by the murder. Here, the allegation is that the unlawful act is, in fact, pulling the -- the trigger of a firearm while a gun is pointed at Mr. Langan’s head. So the unlawful confinement that occurred in the residence prior to that wouldn’t be subsumed.

So we would suggest that the way the Court has it is -- is fine. THE COURT: As I say, Ms. Buydens, it -- it’s -- the instructions are -- appear to be up to date, and this is literally taken from -- directly from the CJC Model Jury Instructions . So, you know, if you have a proposed alternate wording that you want me to look at, I’m prepared to take a look at it, but you know, I’m -- I’ll be awful reluctant to go against the instructions that were given in that regard.

MS. BUYDENS: I -- I can refer to the case law and develop a proposed alternate wording and send it to yourself and the Crown -- THE COURT: If you want. MS. BUYDENS: -- at some point. I -- I -- I think the case law is clear. I understand what you’re saying, but a number of cases say that it needs to be two distinct acts, not part of the same -- sorry -- that are part of a continuous series of events, but the confinement can’t be consumed by -- MR. CHOVIN: Yeah. MS. BUYDENS: -- the killing. It has to be two distinct events. And I don’t think that’s clear from these.

So I -- I can -- I can propose to look at the case law and send something later today if that -- to Rachel and the Crown for consideration. THE COURT: If you want, I’m happy to take a look at it. MR. CHOVIN: Yeah. I -- I mean, the Crown will certainly have a look at it, and if there is something that can be agreed upon we will certainly do that. THE COURT: What were the cases you’re referring to, Ms. Buydens, because I know there are a number of authorities cited in relation to those paragraphs -- MR. CHOVIN: Yes. MS. BUYDENS: Oh, absolutely.

THE COURT: -- in the Model Instructions , and I’m just -- I’m just curious to see if they’re referred to here as well. MS. BUYDENS: In Pritchard , paragraph 27, it says that: The confinement has to be a separate criminal act from the murder. And these are my notes. Those are not word for word, but paragraph 27 of Pritchard . I didn’t make a note in Kimberley , but Kimberley says that: It must be part of a continuous series of events and not be incidental to, the killing itself must be two discrete (sic) acts. THE COURT: Well -- MS.

BUYDENS: I had Alexis at paragraph 17 and 18 talking about how the murder and confinement need to be distinct events. Again, these are my notes of the case, not word for word, so that’s why I’m suggesting I’d have to -- THE COURT: See, Pritchard and -- and Kimberley and they’re -- they’re all referenced in the footnotes to the -- to the Instructions , and that’s why -- MS. BUYDENS: M-hm. THE COURT: -- I’m hesitant to -- MR.

CHOVIN: Yes, and I’d -- just for everyone’s benefit, My Lord, I have Watt’s in front of me, and under the discussion of Pritchard or in the annotations relating to Pritchard , it’s noted: The temporal causal relationship required under 235(5)(

e) is established where the unlawful confinement creates a continuing illegal domination of ‘V’ that provides ‘D’ with a position of power that ‘D’ chooses to exploit to murder ‘V’. The commission of other offences along the way, for example, robbery, does not oust the application of 231(5). So that’s what Watt’s has to say about that. THE COURT: Well, if you want to send something, I’m happy to take a look at it, but I take comfort, and you know, absent being convinced otherwise, I do take comfort in relying on the Model Jury Instructions , but -- sorry, you had other points, Ms.

Buydens, please. (Emphasis added) [ 24 ] The record reflects that Mr. Barre’s defence counsel subsequently, as invited by the trial judge, sent an email to the Court suggesting an amendment to the charge. [ 25 ] On the morning of November 12, 2020, counsel reconvened their management discussion with the trial judge, after receiving a finalized copy of the charge. The trial judge provided this opening comment to counsel: THE COURT: Good morning, counsel. I hope you both received a copy of the hopefully the close to final -- Ms.

Buydens, just for your information, and I’m sure you’ve noted this if you’ve gone -- had the chance to go through the charge, I appreciate the comments you provided, but I haven’t incorporated your recent change. I again compared it with the CJC Model Instructions , and I took it literally word for word, so if it’s wrong, it’s wrong, and I guess it’ll be corrected on appeal, so I’m going to leave it where it is . Okay. … THE COURT: Ma’am, Ms. Buydens?

MS. BUYDENS: My comment was in the e-mail and you’ve chosen not to incorporate it, so it is noted for the record and – THE COURT: Right. MS. BUYDENS: -- that’s all I’ve got. (Emphasis added) [26] The relevant portion of the trial judge’s charge to the jury included this direction on the elements of constructive first degreemurder: Dealing with the offence charged, the first degree murder, just a few relevant statutory provisions from the Criminal Code.

First of all,referring to Section 231(1): Murder is first degree murder or second degree murder; (2) murder is first degree murder when it is plannedand deliberate; (5) -- and you will have these with you -- irrespective of whether a murder is planned and deliberate on the part of anyperson, murder is first degree murder, in respect of a person, when the death is caused by that person while committing or attempting tocommit an offence under one of the following sections: (

e) refers to

Section 279 (kidnapping or forcible confinement); then (7) all murderthat is not first degree murder is second degree murder. Then the sections dealing with confinement, Section 279(2) of the Criminal Code: Everyone who, without lawful authority, confines,imprisons, or forcibly seizes another person is guilty of (a), an indictable offence. … For you to find Mr.

Barre guilty of first degree murder, Crown counsel must prove each of these essential elements beyond a reasonabledoubt: (1) that Chad Barre caused the death of Justin Langan; (2) that Chad Barre caused the death of Justin Langan unlawfully; (3) thatChad Barre had the state of mind required for murder; (4) that Chad Barre committed the offence of unlawfully confining JustinLangan; (5) that the unlawful confinement and murder of Justin Langan were part of the same series of events; and (6) that ChadBarre was an active participant in the killing of Justin Langan. … Were the unlawful confinement and the murder of Justin Langan part of the same series of events?

In order for Chad Barre to be guilty of first degree murder on this basis, you must also -- the Crown must also prove, beyond areasonable doubt, that Chad Barre murdered Justin Langan while he was committing the offence of unlawful confinement. Thisdoes not mean that the murder and the unlawful confinement had to happen at exactly the same moment, but it does mean that themurder and the unlawful confinement must have been closely connected with one another, in the sense that they must have beenpart of the same series of events. They must both be part of the single ongoing transaction.

To answer this question, you have to consider the entire course of Chad Barre’s conduct. Look at the whole series of events in order todecide whether you are satisfied beyond a reasonable doubt that the murder and the unlawful confinement were part of acontinuous series of events that was a single ongoing transaction. The evidence may show that the murder and the unlawfulconfinement were all part of a continuous series of events or it may not.

If you are not satisfied, beyond a reasonable doubt, that the unlawful confinement and murder of Justin Langan were part of the sameseries of events, you must find Chad Barre not guilty of first degree murder, but guilty of second degree murder. If you are satisfied, beyond a reasonable doubt, that the unlawful confinement and murder of Justin Langan were part of the same series ofevents, you must go on to the next and last question. (emphasis added) [27] The jury returned a verdict of guilty on the charge of first degree murder. It is from this conviction Mr.

Barre appeals, focusinghis submissions on the adequacy of the jury charge. III. ANALYSIS A. Standard of review [28] As Mr. Barre acknowledged before this Court, an accused person is “entitled to a properly, not perfectly, instructed jury” (R vTheodore, 2020 SKCA 131 at para 122, 399 CCC (3d) 125 [Theodore], citing R v Jacquard, (SCC), [1997] 1 SCR 314at para 2, and R v B.(P.J.), 2012 ONCA 730 at para 41, 97 CR (6th) 195; see also R v Calnen, 2019 SCC 6 at para 9, [2019] 1 SCR 301[Calnen]).

Trial judges have a wide latitude and discretion in terms of the form, structure and content of a charge and the “words they useto convey the necessary elements” (Theodore at para 124, citing R v Daley, 2007 SCC 53 at para 30, [2007] 3 SCR 523 and Calnen at para8). [29] In assessing the adequacy of the trial judge’s instruction to the jury, a functional approach must be taken.

This inquires as towhether the charge to the jury “enabled the trier of fact to decide the case according to the law and the evidence” (Theodore at para 122;Calnen at para 8; see also R v Mack, 2014 SCC 58 at para 49, [2014] 3 SCR 3). “This means, when read as a whole, the charge must leavethe jury with an understanding of (

i) the factual issues to be determined, (ii) the legal principles relating to the factual issues and theevidence; (iii) the position of the parties; and (iv) the evidence relevant to the position of the parties on the various legal issues” (Theodoreat para 122, citing R v Knox, 2017 SKCA 8 at para 16, 36 CR (7th) 89; Daley at para 29).

[30] In R v Naistus, 2019 SKCA 4, Caldwell J.A. summarized the functional approach to appellate review of a jury charge, notingthat the evidence, the positions of the parties, the content of the charge, and the parties’ suggestions and objections to the same, are allrelevant to the analysis: [21] To reach this conclusion, I start with the proposition that this Court must adopt a functional approach when reviewing a jurycharge, the purpose of which is to ensure that the jury was properly—not perfectly—instructed (R v Jacquard, (SCC),[1997] 1 SCR 314 at paras 32 and 62; R v Daley, 2007 SCC 53, [2007] 3 SCR 523).

Acting on this foundational principle, appellate courtsmust examine the whole of the jury’s instructions to assess whether they achieve their purpose, namely, to equip the trier of fact with thetools necessary to make the findings required in the case at hand. As this suggests, the Court cannot examine a single piece of a jurycharge in isolation from the rest of the charge or from what has occurred in the trial.

Matters such as the evidence adduced by theparties, the theories and submissions of the parties, and the parties’ suggestions and objections, if any, about the content of thejury charge are all material to the question of whether a jury charge functionally achieved its purpose (R v Jacquard at paras 33–36; R v Daley at para 58; Thériault v The Queen, (SCC), [1981] 1 SCR 336 at 343–344; R v Royz, 2009 SCC 13 at para3, [2009] 1 SCR 423); so too are the language, style and format of the jury charge chosen by the trial judge to convey his or herinstructions to the jury (R v Daley at para 30). (Emphasis added) B.

The legal framework: the fifth requirement of s. 231(5)(e) [31] As previously noted, Mr. Barre was tried on a charge pursuant to s. 231(5)(

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

e) section 279 (kidnapping and forcible confinement) … [32] In R v Harbottle, (SCC), [1993] 3 SCR 306 at 325 [Harbottle], the Supreme Court held that, in order for anaccused to be found guilty of first degree murder under what is now s. 231(5)(

e) of the Criminal Code, the Crown must prove beyond areasonable doubt that: (

a) the accused is guilty of the underlying crime of domination or of attempting to commit that crime; (

b) the accused is guilty of the murder of the victim; (

c) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim; (

d) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death ofthe victim; and (

e) the crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committingthe offence of domination as part of the same series of events. [33] In subsequent decisions, the Supreme Court endorsed the Harbottle formulation and added an additional criterion, namely, thatthe killing and the underlying offence of domination must constitute two distinct criminal acts (see, for example: R v Pritchard, 2008 SCC59 at para 27, [2008] 3 SCR 195 [Pritchard]; R v Kimberley (2001), (ON CA), 157 CCC (3d) 129 (Ont CA)[Kimberley]; R v Magoon, 2018 SCC 14 at paras 17 and 74, [2018] 1 SCR 309 [Magoon]; and R v Sundman, 2022 SCC 31 at para 29, 416CCC (3d) 371 [Sundman]). [34] It is the “distinct criminal acts” aspect of s. 231(5)(

e) that Mr. Barre’s argument centers on. To help frame the relatedauthorities, in

summary, Mr. Barre asserts that the trial judge’s instruction did not equip the jury to determine whether the unlawfulconfinement was a criminal act that was distinct from the killing, while being part of the same series of events. Mr. Barre submits that itwas crucial for the jury to be directed on this point, as it was a live issue whether the confinement and the killing were distinct events, partof the same transaction, or whether they were indistinguishable one from the other. [35] Justice Kalmakoff recently discussed the distinct criminal act requirement of s. 231(5)(

e) in Theodore. After referring to theleading Supreme Court authorities, he noted that “[i]n order for murder to be elevated to first degree murder on this basis, the murder andthe unlawful confinement must constitute distinct criminal acts; s. 231(5)(

e) is not triggered if the unlawful confinement is entirelyconsumed in the very act of killing” (at para 127). [36] Determining whether a confinement and killing form part of the same transaction, that is part of the same series of events, butnonetheless constitute two criminal acts, is contextual and often difficult to discern, given that murder inherently involves some aspect ofrestraint and dominion over a victim (Kimberley at para 108).

But the authorities are clear that the act that constitutes the underlyingoffence and the killing must not be one and the same. “If there is only one criminal act, it cannot be said that the offender exploited thedomination inherent in the underlying offence with the act of killing. In such cases, the heightened moral blameworthiness required forfirst degree murder is absent” (Sundman at para 40, citing Pritchard at paras 27 and 29, Magoon, and Kimberley).

Put simply, the “acts ofconfinement must go beyond the acts causing death” (R v Smith, 2015 ONCA 831 at para 11, 344 OAC 22). [37] Bringing these concepts into the facts of this case, in order for unlawful confinement to be an underlying offence, tworequirements must be met: “(1) … the distinct act of confinement and the distinct act of killing must be sufficiently close in time to be partof the ‘same transaction or series of events’ but (2) that they cannot be so closely connected that they are coextensive, that the confinementis consumed in the killing, that they are one and the same.

It is essential that both requirements be met to meet s. 231(5)(e)” (R v Menard,

2009 BCCA 462 at para 24, 281 BCAC 14 [Menard], citing Pritchard and Kimberley; see also R v Parris, 2013 ONCA 515 at para 51,300 CCC (3d) 41; R v Johnstone, 2014 ONCA 504 at para 42, 313 CCC (3d) 34). [38] Courts have used various phrases to describe the temporal requirement relating to the period for which a person must becoercively restrained or directed contrary to their wishes in order to be unlawfully confined within the meaning of s. 279(2).

For example,in Pritchard, the Court stated that, if the victim “for any significant period of time … was coercively restrained or directed contrary to herwishes … there was unlawful confinement within s. 279(2)” (at para 24, citing R v Luxton, (SCC), [1990] 2 SCR 711 at723; R v Gratton (1985), 18 CCC (3d) 462 (Ont CA) at 475; R v Tremblay (1997), (QC CA), 117 CCC (3d) 86 (QueCA) at 91–92; see also Sundman at para 21). In Kimberley, the Court used the phrase “some appreciable time” (at para 112).

In contrast,in R v Frank, 2000 MBCA 133 at para 40, 150 Man R (2d) 269, the Manitoba Court of Appeal said that confinement “for any period oftime … is unlawful confinement” (emphasis added). [39] I do not see the need to decide, for the purposes of this appeal, if the authorities I have just mentioned can be completelyreconciled.

What is important in the context of this case is that just as there is no clearly defined length of time that a person must beconfined against their wishes in order for the offence under s. 279(2) to be made out, there is also no minimum temporal requirement forthe duration of unlawful confinement that must be proven in order to engage s. 231(5)(e).

It all depends on the facts of the case (R vMcLellan, 2018 ONCA 510 at para 72, 362 CCC (3d) 183 [McLellan]; R v Gervais, 2020 ABCA 221 at paras 32 and 36, 388 CCC (3d)131, leave to appeal to SCC refused, ; R v White, 2014 ONCA 64 at paras 46–60, 305 CCC (3d) 449, leave to appeal toSCC refused, ; R v Tremblay, 2019 QCCA 1749 at para 20; see also R v Ally, 2022 ONCA 558 at para 101, 417 CCC(3d) 1). [40] In cases where the period of confinement or attempted confinement is brief, “[t]he real issue … is whether the actions at issueconstitute a distinct criminal act from the murder” (Ally at para 114). [41] Given the circumstances of this case, a comment on circumstances involving a robbery in constructive first degree murder isappropriate.

Robbery is not an enumerated offence in s. 231(5). More dated authorities suggested that where a robbery occurs and amurder ensues, the confinement must go beyond that entailed in the inherent violence of a robbery (R v Strong (1990), 1990 ABCA 327, 60 CCC (3d) 516 (Alta CA); R v Kinglsey (1995), (QC CA), 105 CCC (3d) 85 (Que CA); R v Simon (2001), (QC CA), 154 CCC (3d) 562 (Que CA)).

However, Pritchard affirmed the reasoning in Kimberley that a robberygiving rise to a confinement and murder may engage s. 231(5)(e), so long as the “confinement which is inherent in the very act of killingcould not be relied on to impose liability under s. 231(5)(e)” (Kimberley at para 108; see also R v J.(J.) (2002), (ONCA), 166 CCC (3d) 44 (Ont CA)). In short, “[p]roof of robbery does not by itself trigger s. 231(5), but nor does proof of robbery bar oralter its application” (Pritchard at para 28). [42] With this jurisprudence in mind, I will now address Mr. Barre’s argument in greater detail. C.

Application of the legal principles [43] In support of his assertion that the charge to the jury was inadequate, Mr. Barre points to Ms. Bigeagle’s testimony that (

a) shecould only approximate the length of the incident, being 10 to 15 minutes, (

b) she could not recall exactly when the gun was drawn,(

c) while she testified that the gun was visible for a “third” of the incident, she did not specify which third in relation to the killing, (

d) shedid not see the shooting itself, and (

e) given the passage of time, she could not be certain of the sequence of events. He submits thereforethat it was not clear when the confinement occurred and whether it was in fact distinct from the killing. He further notes that the Crowndid not make submissions to the jury on the length of time that the gun was visible and pointed at Mr. Langan. [44] With this evidentiary backdrop, Mr.

Barre asserts that it was not sufficient for the trial judge to specify that the confinementand murder had to be part of the same series of events, as this did not direct the jury to consider whether the confinement and murder weredistinct criminal acts that were part of a single transaction or, alternatively, whether the confinement was entirely subsumed in the killing.He argues that there was no ruling by the trial judge that this issue should not be left with the jury.

He also does not suggest that thisspecific instruction (being a model Canadian Judicial Council [CJC] instruction) would necessarily always be inadequate – simply that itwas inadequate in this unique factual matrix. [45] I agree with Mr. Barre that, given the evidence in this case and the submissions of the parties, it was a live issue as to whetherthe jury could reasonably find two distinct acts in the killing and confinement, which may have been part of the same transaction, oralternatively, reasonably find that the confinement was subsumed in the killing.

Therefore, the trial judge was required to leave this issuewith the jury (see Menard at para 25; see also Ally). The record is not at odds with the trial judge (and Crown trial counsel) havingaccepted that instruction on this point was necessary and the applicability of the principles expressed in Pritchard and Kimberley in thatregard.

The question becomes whether the charge, when read as a whole, fulfilled, from a functional perspective, what was required in thecircumstances of this case. [46] Having regard to the evidence, the submissions of the parties (both at trial and on appeal), and the relevant authorities, I findmyself persuaded by Mr. Barre’s overarching argument. That is, I agree that the charge to the jury did not fulfil the function of alertingthem that they were required to consider whether the confinement and killing were distinct – and that such an instruction was necessarygiven the live issues at trial.

I will explain. [47] To begin, I agree with Mr. Barre that the evidence respecting the timing and nature of the confinement in relation to the killingwas ambiguous at best. It came from Ms. Bigeagle, and her testimony suffered from obvious frailties. Her estimate of the overall timeinvolved in the incident, being between 10 to 15 minutes, was uncertain. When asked in cross-examination if the incident could havepossibly been shorter than 10 minutes, she replied, “Well, to me it felt like it was forever, but no, I didn’t have a watch on to check thetime”. She could not say “what time they [Mr.

Barre and the second male] got there and what time they left”. Ms. Bigeagle could notpinpoint when the gun was produced and could only approximate that it had been visible for a third of the time. If the event occurred over10 to 15 minutes, this meant the confinement could only have been approximately 3 to 5 minutes. But importantly, it may have been moreor less time, given Ms. Bigeagle’s admitted uncertainty over the total time frame. The relationship between the confinement and killing

transactionally was also unclear, given Ms. Bigeagle’s concession in cross-examination that she was uncertain as to the sequence ofevents. [48] I note as well that this confinement had a somewhat more subtle flavour than that in many other cases involving firearms. Thisfact resulted in defence counsel’s closing submission to the jury that the evidence of confinement was tenuous. Mr. Barre was known toMr. Langan and Ms. Bigeagle and was let in the home by the children (one of whom who also knew Mr. Barre). The interactions betweenMr. Barre, the second unknown male, Ms. Bigeagle, and Mr.

Langan did not involve overt threats or the use of the weapon. Ms.Bigeagle’s evidence was that she and Mr. Langan moved about rather freely during the exchanges, albeit with an awareness of thepresence of the firearm. There were no physical confrontations. Mr. Langan and Mr. Barre were talking (not arguing) as they walkedtowards and stood near the front door prior to Ms. Bigeagle hearing a “pop”. None of this is to minimize the psychological nature of theconfinement, which Mr. Barre concedes on appeal, but which he argues may have been subsumed in the killing, given the frailties in Ms.Bigeagle’s evidence.

Rather, it serves to enhance the need for the trier of fact to have grappled with the nature of the confinement andwhether it was a distinct event in a single transaction with the killing. [49] The timing, length and type of confinement, as well as its continuous nature and proximity to the killing, are relevant as towhen s. 231(5)(

e) will be engaged. The authorities demonstrate that this is highly a fact-driven determination. As noted in Ally, when aconfinement is brief, the key question is whether it is distinct from the killing. Short and often fleeting periods of confinement have beenfound to be independent from a killing, thus engaging s. 231(5)(e) (for example, where a victim was shot within seconds of robbersentering a home (McLellan at paras 71–72); or where a group of accused prevented a victim from leaving a nightclub, causing him to exitinto a back alley where he was beat to death (Gervais)).

In contrast, short periods of confinement have also been found to be co-existentwith a killing (for instance, where a beating involving a swarming of multiple accused resulted in a victim’s death after 30 to 45 seconds (Rv Sandhu, 2005 CarswellOnt 8306 (WL) (Sup Ct J)); and where an accused choked a victim to death, first using his hands, then pant leg(Menard at para 30)). [50] Other cases involving protracted and overt confinements or kidnappings have more obviously engaged s. 231(5)(e).

Forexample, in Pritchard, where the victim was confined for a period, robbed, then shot in the head, there was ample evidence that theconfinement was a distinct event not subsumed in the killing. In Kimberley, where the accused restrained the victim, physically disabledher, dragged her for a distance, robbed, and then killed her, the confinement and killing were also viewed as distinct acts. [51] More ambiguous fact patterns, however, have attracted the need for a discrete offence instruction.

For instance, in Ally, wherethe accused put the victim in a choke hold, pursued her after she broke free, pinned her to the floor, and choked her to death, it was open tothe jury to have considered the struggle both as containing distinct acts, as well as a single continuous act with the confinement consumedin the killing (at paras 137, 157–158). In R v Godon, 2012 QCCA 628 [Godon], where the accused prevented the victim from exiting avehicle, and she subsequently struck him, with the accused minutes later grabbing her hair, immobilizing her, and asphyxiating her, theCourt found that s. 231(5)(

e) could apply, but that the jury needed to be instructed that the confinement “had to go beyond” that “inherentin the murder” (at paras 78 and 84). [52] All of this, in my view, confirms Mr. Barre’s point that the application of s. 231(5)(

e) is fact dependant, requiring a trier of factto be responsive to the evidence and submissions to determine whether a confinement is distinct from, or subsumed in, the killing. This isparticularly important in the context of a robbery, which frequently involves an aspect of domination that theoretically could often invokethe potential of s. 231(5)(e). The facts of Mr. Barre’s case raised a live issue in this regard. Accepting that there was a psychologicalconfinement, as Mr. Barre now concedes, it is unclear from Ms.

Bigeagle’s evidence how long that confinement lasted, when it occurredin relation to the killing, and whether it was a continuous confinement forming part of a single transaction. The jury was given nodirection in that respect, and there was no mention of the distinct criminal act requirement in either the trial judge’s opening comments orclosing charge.

The jury was only instructed to look to the temporal connection of whether the two offences arose in “the same series ofevents” or were part of the “same transaction” – which failed to signal to them that a confinement entirely subsumed in the act of killingwould not trigger s. 231(5)(e). While the jury had the submissions of defence counsel on the distinct criminal act requirement, shespecifically prefaced those comments on the assurance that the trial judge would correctly convey and confirm that law to the jury in hisfinal instruction.

That final instruction never came, leaving the jury uninstructed by the trial judge on that live issue. [53] To summarize, it is my respectful view that the jury was not adequately charged on what Mr. Barre frames as the key issue attrial, being the element of the offence on which his culpability for first degree, versus second degree murder, hinged. If the confinementwas consumed in, and integral to, the killing, then s. 231(5)(

e) was not engaged, as the heightened moral blameworthiness required toengage it was absent (as per Pritchard and Sundman). The evidence and issues required the jury to be directed to determine both thedistinct offences issue and the single transaction issue rather than considering the offences solely through the single transaction lens, as thetrial judge instructed. [54] Before reaching this conclusion, I considered the trial judge’s use of the CJC model instruction (revised as of 2019), developedafter decisions such as Kimberley and Pritchard.

As the trial judge explained to trial counsel, he did not include an instruction on thediscrete offences because he had a concern that it would involve a deviation from the instructions given in that model charge. The Crownurged this Court to find the trial judge’s use of the CJC model as indicia of the charge’s adequacy in this case. [55] I do not disagree that it is appropriate for a trial judge to consider the contents of the CJC model when crafting a charge on thefacts of any particular case.

However, as is clearly stated in the instructions that accompany those charges, judges “must adapt theseinstructions for their own use in the particular cases and circumstances” that are before them. In a note to users, the drafters of the modelcharge have emphasized that they are “specimen instruction”, which is further explained to mean that “they are not designed to bedelivered ‘as-is’”.

In short, the CJC model instructions, like other standardized charges, are a “starting point for crafting instructions thatare tailored to the facts of the case being tried” (R v Baker, 2019 BCCA 199 at para 38, 378 CCC (3d) 562, citing R v McNeil (2006), (ON CA), 213 CCC (3d) 365 (Ont CA), and R v Miller, 2009 NSCA 71). As indicated in R v Rodgerson, 2015 SCC38 at para 51, [2015] 2 SCR 760, “model charge manuals do not necessarily translate into model charges. They are a tool, not the finalproduct.

They are there to guide, not govern…. [T]he failure to isolate the critical issues in a case and tailor the charge to them inevitablymakes the instructions less helpful to the jury and adds unnecessarily to their length and complexity”. It follows that the mere fact the trialjudge adhered to the model CJC instructions does not equate to a conclusion that his instructions were adequate.

[56] It is important as well that the template utilized by the trial judge was a flexible one, even within the structure of the CJCinstruction model. In that model instruction, footnote 13 contemplates a revision where the evidence gives rise to a need to add languagenot unlike what was suggested by Mr. Barre’s trial counsel. That footnote reads as follows: The underlying offence and the killing must be two distinct criminal acts in order for a murder to be first degree under Section 231(5): seeR. v. Pritchard, 2008 SCC 59; R. v. Kimberley (2001), (ON CA), 56 O.R. (3d) 18 (C.A.); R. v. Menard, 2009 BCCA462.

Where there is a live issue on the evidence whether the underlying offence and the killing were distinct criminal acts, thisinstruction must be modified, for example, by adding the following language: In order for (NOA) to be guilty of first degree murder, the Crown must also prove beyond a reasonable doubt that the [specify offence] andthe killing were two distinct criminal acts and that (NOA) murdered (NOC) while s/he was committing the offence of (specify listedoffence or attempt).

They will be distinct if one act can be committed without committing the other, but they will not be distinct if the confinement and thekilling are essentially one and the same act. (Canadian Judicial Council, Model Jury Instructions, “Offence 231(5): First Degree Murder in the Commission of Another Offence” (lastrevised May 2019), emphasis added) [57] As a final point, trial judges would be well advised to remember that model jury instructions are organic, evolving andperiodically revised.

They should not be treated as though they are static or impervious to development in the jurisprudence. [58] Bringing all of this back to the facts of this case, because the CJC model instruction did not address a live issue as to the distinctnature of the confinement that arose on the evidence in this trial, the trial judge was bound to step outside the template he utilized.Because the evidence raised the question of whether the confinement and killing of Mr.

Langan were discrete events, it was incumbentupon the trial judge to tailor the wording of his instructions accordingly. [59] As a final and related point, the Crown suggested that the charge in this case was adequate since a similar jury instruction,which did not specify that a confinement and killing must be distinct in the context of s. 231(5)(e), was upheld by this Court in Theodore.For reasons that I will explain, I disagree that Theodore assists the Crown. [60] As previously noted, each jury charge is unique because it must be responsive to the facts of a given case.

Moreover, like thefact patterns in Pritchard and Kimberley, Theodore involved a protracted kidnapping and confinement of a victim leading up to a murder.Justice Kalmakoff, writing for this Court, found that there was “ample evidence” that the victim was taken to one of the accused’sresidences, forcibly confined, and held captive for a lengthy period before being shot in the head. Therefore, it was not necessary for thetrial judge to instruct the jury that the confinement and the murder had to be distinct criminal acts in order to engage s. 231(5)(

e) because,based on the evidence, “there was no reasonable basis upon which any other conclusion could be reached” (at para 136). Thecircumstances here are distinguishable and nearly lead to the opposite conclusion. The confinement in Mr. Barre’s case was comparativelybrief, understated, and ambiguous, relative to the overt confinement in Theodore. [61] Thus, the result in Theodore does not equate to a blanket approval of the type of instruction that must be provided by a trialjudge in a case where the Crown alleges that an accused is guilty of first degree murder on the basis of unlawful confinement.

Given thefact dependant nature of an instruction, there will be circumstances where s. 231(5)(

e) is engaged and other times where it is not engaged,as the evidence dictates (see Menard). As indicated by the authorities, in circumstances where the discrete nature of the confinement andkilling are live issues, a charge on that issue is appropriate (see Godon and Ally). [62] This leads me to the bottom line, consistent with Mr. Barre’s position on appeal, that sometimes a charge such as the one givenby the trial judge will suffice and at other times something more will be required. I accept his argument that, in this case, something morewas required to enable the jury to fulfill its function.

It was a live issue as to whether the confinement was a discrete event, part of a singletransaction with the killing. The trial judge acknowledged the issues on the evidence and the applicable law but unfortunately failed toadequately equip the jury to address this central issue out of the misplaced concern that a deviation from the CJC model instruction wouldresult in error. To that end, I adopt the rationale voiced in Ally that, applied in Mr.

Barre’s case, “(i)t seems to me that it was for the jury todecide whether all of the appellant’s actions were part of one continuous episode of domination created by the act of killing or whetherthere was an unlawful confinement that constituted an additional act of domination and a distinct criminal act independent from the act ofkilling” (at para 137). III. CONCLUSION AND REMEDY [63] While Mr. Barre requested in his notice of appeal that a new trial be ordered if his appeal were allowed, his counsel concededin oral submissions that the issue on a new trial would be Mr.

Barre’s culpability for first or second degree murder. The Crownacknowledged that if the appeal was successful, a new trial could be ordered. In this regard, we take both counsel to have implicitlyacknowledged that the issue at any new trial is Mr. Barre’s culpability for first or second degree murder. [64] The events giving rise to Mr. Barre’s charge arose over five and a half years ago. As noted, during the trial in 2020, Ms.Bigeagle acknowledged difficulties in recalling details of the night Mr. Langan died. There is no question that the evidence in this casewill not have improved over time. Further, Mr.

Barre has not challenged on appeal that the jury was properly instructed as to the necessaryelements required for a conviction for second degree murder. Thus, in the jury’s rendering of a verdict for first degree murder, they foundthat Mr. Barre committed the unlawful act of causing Mr. Langan’s death and that he had the necessary mens rea for second degreemurder. [65] Given that the jury’s finding that Mr. Barre murdered Mr. Langan is unaffected by the flaw in the jury charge and given thecircumstances of this case, I am of the opinion that Mr.

Barre was properly convictable on the offence of second degree murder. It isfurther my view that it is in the interests of justice that a verdict of guilt on the lesser-included offence of second degree murder should be

substituted for the first degree murder verdict (see R v Maciel, 2007 ONCA 196, 219 CCC (3d) 516; see also R v Stiers, 2010 ONCA 382,255 CCC (3d) 99, leave to appeal to SCC refused, ; R v Gray, 2012 ABCA 51, 285 CCC (3d) 539; R v Wigman, (SCC), [1987] 1 SCR 246). [66] Therefore, pursuant to s. 686(1)(b)(

i) and 686(3) of the Criminal Code, I would dismiss Mr. Barre’s appeal from his convictionfor first degree murder, quash his conviction for first degree murder, and substitute a conviction for second degree murder in its place. [67] Given that result, the sentence mandated by law is one of life imprisonment. In the circumstances at hand, s. 745(

c) of theCriminal Code requires that a period of parole ineligibility be fixed for Mr. Barre. Although we do not have the benefit of a jury’srecommendation under s. 745.2 in that respect, it is nonetheless proper, in my view, for this Court to hear submissions from counsel anddetermine the appropriate period of parole ineligibility (see R v Bellegarde, 2000 SKCA 7, 189 Sask R 1; R v Kjeldsen, 1980 ABCA 49,53 CCC (2d) 55). As well, the trial judge in this matter has now retired.

Accordingly, the panel will hear submissions from the Crown anddefence counsel on a fit period of parole ineligibility at a date to be scheduled in consultation with the Registrar. “Drennan J.A.” Drennan J.A.I concur. “Caldwell J.A.” Caldwell J.A.I concur. “Kalmakoff J.A.” Kalmakoff J.A.