In R v Underwood, 2024 ABCA 267, Underwood was convicted of robbery, kidnapping, and second-degree murder. The trial judge held that the facts did not meet the threshold for a first-degree murder conviction, pursuant to section 231(5) and 231(2) of the Criminal Code (the “Code.”) He reasoned that only the person who supplied the fentanyl could have substantially caused the victims’ death, and that the murder was not planned because there was no discussion as to how, when, or where the victim would be killed.
At issue on appeal was whether the trial judge made a reviewable error of law in ordering a second-degree murder sentence, instead of a first-degree murder sentence. The Crown submitted the following two reviewable issues:
- Whether the trial judge misapplied the legal test for constructive first-degree murder under section 231(5) of the Code.
- Whether the trial judge erred in concluding the facts did not show planning under section 231(1) of the Code.
Siding with the Crown, the Appellant court held that the trial judge erred in his application of the test for constructive first-degree murder under section 231(5) of the Code and misapprehended the time frame for assessing planning under section 231(2) of the Code.
On the first issue, the trial judge erroneously focused on the direct medical cause of death and failed to consider other contributions to it. In this, the fentanyl injection would not have been possible if the victim wasn’t already subdued and confined by Underwood. On the second issue, the trial judge failed in concluding the murder was not planned because there was no discussion as to how, when, or where the victim would be killed. The facts showed there had been discussion about dumping the victim’s body in a lake, and that the option was rejected. The Appellant court found this to be evidence of planning and deliberation, rather than evidence of its absence. To remedy these errors of law, the court substituted Underwoods conviction of second-degree murder for first-degree murder.
R v Underwood is a topical decision for defence and Crown counsel, representing the importance of applying the correct interpretations of the Code to the facts. For a more in-depth analysis of Appellant court’s reasoning, read the complete decision here.
