Background
Buddy Ray Underwood was one of five individuals who confined Nature Duperron for several hours, injected her with fentanyl, transported her from Edmonton to a remote location near Hinton, Alberta, beat her, and left her to die. Underwood was charged with robbery, kidnapping, and first degree murder. At trial, sitting without a jury, the trial judge convicted Underwood as a party to robbery, kidnapping, and second degree murder.
The trial judge found that the Crown had not established the planning and deliberation required for first degree murder under s. 231(2) of the Criminal Code, and also found the Crown had not proven constructive first degree murder under s. 231(5) beyond a reasonable doubt. The Crown appealed, arguing the trial judge applied the wrong legal test on both grounds.
The Alberta Court of Appeal allowed the Crown’s appeal, quashed the second degree murder acquittal, and substituted convictions for first degree murder under both ss. 231(2) and 231(5) of the Criminal Code. Underwood then appealed to the Supreme Court of Canada as of right.
The Court’s Holding
A unanimous Supreme Court of Canada dismissed the appeal, adopting substantially the reasons of the Court of Appeal at paragraphs 61 to 81 of 2024 ABCA 267. The Court agreed that the trial judge had erred in law in his application of the legal test for planned and deliberate murder under s. 231(2).
The Court held that, but for the trial judge’s legal error, his own factual findings — accepted as made — would have led him to convict Underwood of first degree murder under s. 231(2). Because this was sufficient to dispose of the appeal, the Court declined to address whether the Court of Appeal also erred in substituting a conviction for constructive first degree murder under s. 231(5).
Key Takeaways
- A trial judge’s misapplication of the legal test for “planning and deliberation” under s. 231(2) of the Criminal Code is an error of law that justifies appellate substitution of a first degree murder conviction.
- Where a trial judge’s own factual findings, properly analyzed, compel a conviction on the higher charge, an appellate court may substitute that conviction without ordering a new trial.
- The Supreme Court left open the question of whether the Court of Appeal correctly applied the constructive first degree murder provision under s. 231(5), as the s. 231(2) ground was dispositive.
Why It Matters
This decision reinforces that the legal standard for “planned and deliberate” murder under s. 231(2) of the Criminal Code is a precise legal test, not merely a factual assessment, and that trial judges must apply it correctly before concluding the Crown has failed to prove first degree murder. Errors in framing that test are reviewable errors of law, not findings of fact entitled to deference.
For practitioners, the case illustrates that Crown appeals of acquittals on first degree murder — where the factual record is otherwise sufficient — can succeed on legal-error grounds, resulting in a substituted conviction rather than a retrial. It also signals that the Court may eventually need to clarify the relationship between ss. 231(2) and 231(5) in cases involving kidnapping and murder.