[August 15, 2022] Constructive First Degree Murder - Confinement [Reasons by David Brown J.A. with E. E. Gillese and P. Lauwers JJ.A concurring]
AUTHOR’S NOTE: This case deals with the often troublesome aspect of murder cases where the Crown argues for constructive first degree murder. Essentially, the mens rea of the alternative listed offence replaces the need for planning and deliberation. In this case the ONCA dealt with the need for connection between the offence of confinement and the murder. Here, the accused chased a witness and confined them in another residence after the acts leading to the death of two people. This was found to be an erroneous extension of the principles. At core, the replacement of planning and deliberation can only occur where the act of murder is linked to the domination (ie. the confinement) by either arising from it. Where another distinct confinement occurs after the act of murder, that link does not exist to elevate the original murder to first degree murder.
 On the evening of January 21, 2014, the appellant, Iqbal Singh, stabbed his wife, Anita Summan, and her business partner, Gurcharan Doal, with a large knife in the kitchen of their residence in Brampton, Ontario (the “Residence”). Singh then went down to the basement of the house, where he attempted to enter a bedroom in which a young relative of Doal, Mayank Sandhu, had locked himself. Sandhu had previously witnessed the attacks on Anita and Doal in the kitchen.
 Singh testified at trial. He admitted to stabbing his wife and Doal. The main issues at trial were: (i) whether the killing of his wife amounted to first degree murder, either because Singh caused her death “while committing or attempting to commit” the offence of forcible confinement of Sandhu, under s. 231(5)(e) of the Criminal Code, R.S.C. 1985, c. C-46, or because the murder was planned and deliberate under s. 231(2) of the Criminal Code; and (ii) whether provocation was available as a defence.
 The trial judge ruled that there was no air of reality to the partial defence of provocation: R. v. Singh, 2016 ONSC 3739 (the “Provocation Reasons”). The trial judge also dismissed Singh’s application for a directed verdict on the first degree murder count, holding that there was evidence of planning and deliberation for the jury to consider under s. 231(2)...
 The jury found Singh guilty on all five counts on the indictment:
 For the reasons I will set out below, I conclude the trial judge did not err in leaving first degree murder based on planning and deliberation for the jury to consider and in not leaving the partial defence of provocation for the jury. However, I conclude, with respect, that the trial judge erred in leaving first degree murder based on constructive murder under s. 231(5)(e) for the jury. Since it is impossible to know which of the two paths to first degree murder the jurors might have followed (planning and deliberation or constructive murder), I would direct a new trial on Count 1, that Singh committed the first degree murder of his wife, Anita Summan.
C. THE EVENTS ON THE NIGHT OF JANUARY 21, 2014
 On the evening of January 21, 2014, Singh was at the Residence with Anita and Sonali. The evidence at trial given by Singh, Sonali, Doal, Sandhu, and Puneet Sharma, who was also renting a room in the Residence basement, about what occurred is generally consistent regarding the sequence of events, but differs with respect to the amount of time that elapsed between them. Accordingly, I shall provide brief summaries of each of their evidence.
 Singh remained in the living room and rested on the couch.
 Approximately five minutes later, Singh got up from the couch, picked up his dishes, and made his way toward the kitchen. He testified that Doal and Anita had been in the kitchen for about 15 minutes before he walked in. Singh stated that, when he got to the door between the office/bedroom and the kitchen, he saw Doal and Anita standing side by side in front of the island, watching something on Doal’s phone. Singh testified that he saw his wife attempt to move away from Doal, who had his right arm around Anita’s waist and was grabbing her buttock. Anita moved her right hip a “little bit to the side” away from Doal, and Doal moved his fingers, repositioning his hand more to the right side of Anita’s right hip, pulling her back toward him. Singh demonstrated these movements multiple times for the court.
 According to Singh, Doal was holding up a phone in front of them in his left hand, as if he was showing Anita something on his phone. Singh testified:
When I got to that office door … that enters the kitchen, I saw that Doal’s hand was placed on my wife’s buttocks. I noticed his fingers moving like this. My wife tried to move to the side from him, but by doing his hand like this he moved her closer to him again.
From there I started getting angry. I placed my dishes into the sink and I got my eyes on the knife in the next sink there. I picked up the knife from there. I … turned my face back towards Gurcharan Doal, that “sister fucker, what are you doing?” My wife suddenly moved forward towards me. She said, “No, Sodhi,4 no.” But I was very angry at the time. I placed the hand like this in the front towards my wife. In the second hand I was holding the knife like this.
 Singh stated that his intention in grabbing the knife was to threaten Doal and scare him out of the house, not to kill him. He described moving his wife out of the way with “full force”5 and then proceeding to stab Doal in the stomach. In crossexamination, the Crown asked Singh the following:
Q. Well, … what caused you to become angry?
A. The hand … that he had kept on my wife here that’s why I got angry.
Q. And … what does it mean when someone puts their hand to pull them close so they can see something on a phone?
A. He called her his sister. In our culture, no brother would put his hand here on his sister. Absolutely not. If a brother is hugging her – his sister, he would put his hand on the shoulder here. And nor does anybody hug from the front. If it’s the elder brother, he would put his hand over the head and … show her affection. So from that I got angry. He’s calling her sister and what is he doing.
Q. Well, let’s imagine that he’s actually pulling her close and saying – look at this.
A. No, nobody pulls a sister grabbing from there.
 Singh went on to describe a brief physical altercation with Doal:
Q. What happened after … you stabbed Mr. Doal?
A. He took the arm away … from my neck. I was really out of breath. It took about a minute, a minute and a half to catch my breath. I heard the sound of my wife from behind. She was saying, “Sodhi, what are you doing? Have you gone mad?” I turned towards her. I said to her, “Why did you not slap this sister fucker when he was touching you in an improper manner?”
Q. And … where’s Mr. Doal at this point?
A. I don't know. When I said to my wife, why did you not slap [him] when he was touching you in an improper … manner, at the same time, my thinking went that where did he go.
 Singh testified that, after losing track of Doal, he walked into the living room and saw that the front door was wide open. Singh went out the door onto the driveway of the house and saw that Doal’s van was still parked out front, but Doal was not inside.
 Singh decided to check the basement of the Residence. He went to the basement door on the side of the house and entered. Once inside, Singh heard “panic voices” coming from one of the rooms occupied by the basement tenants. Singh approached the door and yelled, “[S]end him out”, after which the voices got “faster”. Singh then kicked the door “forcefully” and also stabbed the door with the kitchen knife twice. The knife penetrated the door both times.
 Singh stated that he heard the occupants in the basement room speaking with 911. At that point, he felt that Doal was not actually in the room, so he disposed of the knife in the adjacent hallway closet and went back up to the main floor. Once upstairs, he saw Anita sitting on the floor in the foyer with Sonali next to her. Singh picked up his jacket and his keys, and then left the house.
 Singh went to his nephew’s apartment and stayed there that night. In the morning, Singh learned that Anita had died, Doal had been injured, and the police were looking for him. He asked his nephew to drive him to the police station, where he turned himself in.
 About half an hour after going upstairs, Sonali heard a thud and a scream; she got out of bed and went downstairs. She saw Doal in the doorway to the family room, drenched in blood and moaning. Anita was standing bent over by the front hall closet. Sonali thought her mother was having a heart attack and went to the kitchen to call 911.
 Sonali could hear sounds coming from the basement of “[s]omeone being chased” and then banging on a door. She called 911 at 10:03 p.m.
 Doal testified that he was driving Sandhu home to the Residence when Anita phoned Sandhu and invited him over to eat pasta.
 Doal and Sandhu arrived at the Residence around 9:50 p.m. Sandhu went around to the side door to the basement. Before Doal drove away from the Residence, Anita called Doal and invited him in to discuss business matters. Doal parked his car and entered the Residence through the front door.
 When Doal got to the kitchen, Sandhu was already sitting at the table. Doal was standing beside the door and Anita was beside the stove.
 While Doal was still standing there, Singh came running into the kitchen from the office/bedroom. According to Doal, as soon as Singh got there, he started stabbing Anita, who screamed. Doal saw a 14-inch knife in Singh’s hand. Doal did not see where the knife came from but testified that Singh “may have had it on him before.” In cross-examination, it was put to Doal that he did not see Singh enter the kitchen with the knife. Doal clarified, “So the speed that he came, he was quick and it was just two steps and when he was striking, that’s when I saw it. This may have been his planning from before.”
 Doal said that, after stabbing Anita, Singh came for him at speed. Doal moved back and Singh moved toward him. Singh’s first stab was to Doal’s abdomen. Doal became dizzy and disoriented. He did not remember the rest of the night, or anything else, until he woke up in the hospital from a coma five days later. He did not remember how he suffered additional wounds.
 In cross-examination, it was suggested to Doal that he was not standing near the doorway but instead was “standing right in front of the door between the office bedroom and the kitchen” with his arm around Anita’s waist. Doal responded, “How can you say that? I have proof of her being a sister.” When defence counsel again suggested that Doal had his arm around Anita’s waist, Doal replied, “You are lying. ... How can you say those things to me, things that aren’t true? ... How can you ask me that? You can’t ask me – can you do that to your sister?”
 When he left the hospital, Doal gave an audio-recorded statement to the police. He told the police that he did not actually see Singh stab Anita. However, at trial, he denied saying that to the police despite the statement having been recorded.
 As Sandhu was eating, Singh came into the kitchen “normally” through the office/bedroom door. Sandhu went back to his food and looked up about five minutes later when he heard Anita scream. Singh was holding a knife that was 10 to 12 inches long, and he was looking toward Anita like he was “in the action”, about to stab somebody.
 Singh then immediately moved toward Doal. Sandhu started to run. The last thing he saw in the kitchen was Doal trying to save himself by putting his arms together in front of his chest and Singh was in front of Doal about to stab him.
 The two then went into Sharma’s bedroom. Sandhu locked the door, held his body against it, and kept two hands on the doorknob to hold the door closed. He was terrified. Sandhu thought Singh would come after him and stab him because he was “the only witness left”. He told Sharma to call 911.
 As Sandhu was telling Sharma to call 911, which he thought was five to eight minutes after they went into the blue bedroom, he heard “[r]eally bad”, aggressive banging on the bedroom door. Sandhu said the person was banging and yelling, “Come out”. As he was holding the door, Sandhu saw 2.5 or 3 inches of the blade of a knife come through the door twice. At some point he took over the phone and started speaking to the 911 operator. The banging stopped while he was on the phone.
 Sandhu and Sharma stayed in the bedroom until the police arrived. As per an Agreed Statement of Fact, their 911 call started at 10:04 p.m. and ended at 10:09 p.m.
 Sandhu came into Sharma’s bedroom, they locked the door, and Sandhu held it closed. Sandhu told Sharma to call 911. About 10 to 15 seconds later, Sharma heard pounding on the door. A male voice said something like, “[S]end the guy out.” Sharma called 911, Sandhu spoke to the operator, and then a knife came through the door. The pounding stopped but they stayed in the room until the police came.
V. CONSTRUCTIVE FIRST DEGREE MURDER: s. 231(5)(e)
A. THE ISSUE STATED
 The final ground of appeal arises from the trial judge’s dismissal of the directed verdict application regarding constructive first degree murder. At trial, Singh argued there was no basis to leave with the jury a path to a first degree murder conviction under s. 231(5)(e) of the Criminal Code, which provides:
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 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 279 (kidnapping and forcible confinement)[.]
 Singh argued there was no temporal or causal connection between the killing of Anita and the confinement of Sandhu that could make them part of a single transaction sufficient to satisfy the “while committing” requirement of s. 231(5)(e) for first degree murder.
 The trial judge disagreed. Drawing on some Supreme Court and provincial appellate decisions, she stated:
As the defence have acknowledged, quite properly in my view, that an unlawful confinement can occur following the act of killing, and two different victims can be involved, I will not address the issue further.26 As long as there is some evidence from which the jury can reasonably infer that the killing of Anita Summan and the confinement of Mayank Sandhu were “linked together both causally and temporally in circumstances that make the entire course of conduct a single transaction”, then
...the directed verdict application must fail on this front as well[.]
 The trial judge ruled that such evidence was present in the record.
 As to a temporal connection, the trial judge’s review of the evidence of the movements of Singh and Sandhu following the attack on Anita led her to conclude that the jury could infer that: (i) Singh knew Sandhu was in the kitchen when he wounded Anita mortally; (ii) blood on the front walkway, moving in the direction Sandhu would have taken when he left the house, indicated that Singh went after Sandhu immediately after stabbing Doal; (iii) blood in the basement suggested Singh pursued Sandhu; and (iv) the evidence of Sharma and the timing of the 911 call by Sonali placed Singh in the basement within a very short time after the stabbing of Anita. In the trial judge’s view, this body of evidence could provide some evidence of a single transaction where the events were temporally connected.
 As to any evidence supportive of a causal connection between the enumerated offence and killing, the trial judge stated:
As for being causally connected, at a minimum, the jury could arrive upon reasonable inferences that Mr. Singh was at the door, confining Mr. Sandhu and yelling at him to come out, because he wanted to kill the person who he thought was the last surviving witness to his murder of Anita Summan. This is a direct causal link back to the murder.
 On appeal, Singh renews his submission that the evidence did not permit the conclusion that there was some evidence from which a jury could find that the killing of Anita and the unlawful confinement of Sandhu constituted a single transaction....
B. THE SUPREME COURT JURISPRUDENCE
 The interpretation of s. 231(5)(e)’s language that “murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit” one of the enumerated offences has largely been shaped by seven decisions of the Supreme Court: R. v. Paré,  2 S.C.R. 618; R. v. Arkell,  2 S.C.R. 695; R. v. Luxton,  2 S.C.R. 711; R. v. Russell, 2001 SCC 53,  2 S.C.R. 804; R. v. Pritchard, 2008 SCC 59  3 S.C.R. 195; R. v. Magoon, 2018 SCC 14,  1 S.C.R 309; and the court’s recent decision in R. v. Sundman, 2022 SCC 31.
 Given the Supreme Court’s approach to interpreting s. 231(5), it is not surprising that the cases in which the court has found that the relationship between the acts of the enumerated offence and the murder satisfy the statutory language of s. 231(5) have involved circumstances where the commission of the enumerated offence – the act of illegal domination – has preceded or continued during the act of murder. As acknowledged by the parties to this appeal, what is absent from the Supreme Court’s jurisprudence is the application of s. 231(5) to a situation where the accused murdered a victim before engaging in the acts which constitute the enumerated offence against another.
 In view of the absence of any such Supreme Court authority, I propose to review the provincial appellate jurisprudence to see whether it provides support for the trial judge’s interpretation and application of s. 231(5) to circumstances where the murder of one victim was committed before the accused committed or attempted to commit an enumerated offence against another victim.
C. THE PROVINCIAL APPELLATE JURISPRUDENCE
 As this court recognized in Niemi, there is a potential tension in in sexual assault constructive murder cases because murder requires the death of the victim while sexual assault requires a live victim. In Niemi, this court observed that tension had spawned something of a “modest controversy” in the Westergard/Richer body of cases about whether a first degree murder conviction can occur where the sexualized conduct commences after the victim has died or where there is uncertainty on that point: Niemi, at paras. 41, 66. In Niemi, this court attempted to resolve that controversy by describing avenues to a first degree murder conviction under s. 231(5) in which the sexualized conduct occurs after death that are consistent with the organizing principle identified by Paré and its progeny, as well as the causal connection required by the single transaction principle.
 In Niemi, this court did not understand the single transaction principle to hold that s. 231(5)(b) was always met where the accused committed a murder followed by sexual acts: at para. 72. Nor did the court suggest that the analysis found in the Westergard/Richer type of cases had any application outside of situations where uncertainty existed about the relative timing of the enumerated offence of sexual assault and the murder. Indeed, in Mullings, this court specifically declined to opine on whether such an analysis could apply to cases in which the enumerated offence was unlawful confinement: at para. 102.
D. APPLICATION TO THE PRESENT CASE
 The trial judge’s error lies in her application of the causal connection dimension of the single transaction principle. She wrote that, “[w]hile the underlying policy rationale for constructive first degree murder is often articulated as being when a murder is committed by someone who is already abusing his or her power by dominating another, this does not have to be case” (emphasis added), citing the Westergard/Richer line of cases and the obiter comments of this court in Mullings. 
 Section 231(5) states that “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” enumerated in ss. 231(5)(a)-(f). While the enumerated offence and murder need not occur simultaneously in order to meet the “while committing” requirement, since Paré the Supreme Court has consistently interpreted “while committing” against: (i) the backdrop of an organizing principle that the enumerated offences are all crimes that involve the illegal domination of the victim, and (ii) as requiring the demonstration of a causal connection between the enumerated offence and the murder in the sense that “the offender’s reason or motivation for the killing arises from, or is linked to, the offender’s unlawful domination of a victim”: Sundman, at para. 34 (italics in original; underlining added).
 The jurisprudence has overwhelmingly treated the required causal connection for the single transaction principle as one in which the act of committing or attempting to commit the enumerated offence prompts a further criminal act that culminates in the murder – the “reason or motivation for the killing” (emphasis in original), in Sundman’s language, at para. 34 – or, in a small number of cases, such as Russell, where the murder was committed to facilitate the crime of domination. However, the trial judge misapplied the “single transaction” principle by reversing the causal connection between the two acts, contrary to the requirements of s. 231(5)’s “while committing” language and the weight of the jurisprudence.
 By dismissing Singh’s application for a directed verdict in respect of constructive murder, the trial judge, in effect, afforded the Crown the opportunity to use Singh’s act of causing Anita’s death before pursuing Sandhu as satisfying the causal connection requirement of s. 231(5)’s single transaction principle....
 With respect, this analysis reversed the causal connection required by the “while committing” language of s. 231(5). The Supreme Court’s jurisprudence on s. 231(5) usually makes available the more serious classification of a murder as first degree murder where the act of committing or attempting to commit the enumerated offence plays a role in or prompts the act that causes the death of a person...
...While a murder that facilitates a crime of domination may attract the classification of first degree murder – as in the multiple victim circumstances of Russell, where the murder took place after the ongoing crime of domination had begun and, arguably, was still continuing – the sequence of events in the present appeal do not resemble those in Russell. Here, the offender admittedly caused a death and then pursued another person.42 Consequently, the trial judge’s reversal of the connective relationship between the enumerated offence and the murder would not satisfy the jurisprudence’s requirement of demonstrating that the offender’s reason or motivation for the killing arises from, or is linked to, the offender’s unlawful domination of a victim: see Sundman, at para. 34.
 The facts of the present case do not resemble the circumstances in the Westergard/Richer body of case law where uncertainty existed as to the precise timing of the murder relative to the enumerated offence. Here, on any view of the evidence, Singh’s act of causing Anita’s death had been completed before he moved out of the kitchen and into other parts of the house and, ultimately, ended up in the basement banging on the door behind which Sandhu was hiding.
 Nor are the circumstances of the present case analogous to the situation in Russell. True, in both cases the victims of the enumerated offence and murder were different. But in Russell, the murder of the tenant in the basement took place after the unlawful confinement of the other victim in her bedroom was underway. In Russell, a causal connection was found under s. 231(5) as the murder of the tenant was committed to facilitate the ongoing crime of domination by eliminating the tenant as a potential witness to the crime: see Sundman, at para. 34. Here, the death of the first victim was caused before Singh embarked upon his acts that had the effect of unlawfully confining Sandhu.
 The murder of Anita and the unlawful confinement of Sandhu occurred within a few minutes of each other. There was evidence that could satisfy the single transaction’s temporal connection between the two criminal acts. However, there was no evidence that the relationship between the two criminal acts could satisfy the causal connection aspect of a single transaction. That is because the evidence showed that Singh’s reason or motivation for killing Anita did not arise from, and was not linked to, his later unlawful domination and confinement of Sandhu: see Sundman, at para. 34; Paré, at pp. 633-34. Nor was there any suggestion in the evidence that Singh’s pursuit and unlawful confinement of Sandhu contributed to Anita’s death by preventing her from receiving medical aid that could have saved her life. 43 The trial judge therefore erred in leaving for the jury’s consideration a pathway to conviction for first degree murder through s. 231(5)(e).
 Given my conclusion that the trial judge erred in leaving for the jury a pathway to conviction on Count 1 by way of constructive first degree murder under s. 231(5)(e) of the Criminal Code, I would set aside the conviction for the first degree murder of Anita Sunnam. Both Singh and the Crown agree that in such a circumstance a new trial should be ordered on the charge of the first degree murder of Anita Sunnam. Accordingly, I would order a new trial on that charge.