Why Brandon Phillips is charged with first-degree murder

The St. John's legal community is again debating how police and prosecutors are applying murder charges following arobbery in St. John's that resulted in ashooting death.

• New charges against accused murderer Brandon Phillips
• Shooting at Captain's Quarters: New details emerge about Brandon Phillips' arrest

Brandon Phillips, 27,has been charged with first-degree murder in relation to the shooting death of Larry Wellman, 63, during an armed robbery at the Captain's Quarters Hotel in St. John's on Oct. 3.

Police say Wellmanwas a customer at the businessandattempted to intervene in the robbery when he was shot. He later died.

CBC News attempted this week to clarify why police opted for the more serious chargeas opposed to second-degree murder or manslaughter.

The RNC and Crown prosecutors involved in the case declined to comment, but Mark Gruchy, Phillips' lawyer, offered a theory Friday.

'Very complicated'

He said the answer to that question is "very complicated," but added that for serious crimes like murder, prosecutors "tend to charge high and then the charges tend to come down. We'll see what happens."

When contacted, no less than three defence lawyers who are not connected to the case said Phillips was charged with first-degree murder because Wellman's death occurred during the commission of an indictable offence, namelyrobbery.

However, it's much more complex than that, it seems.

According to the Criminal Code of Canada, murder is first-degree when it is planned and deliberate.

However, there are instances where, regardless of whether a murder is premeditated, the charge will be first degree.

Section 231 of the code lists the following: hijacking an aircraft, sexual assault, sexual assault with a weapon, kidnapping and forcible confinement, and hostage taking.

The same circumstance applies if the victim of a murder is a peace officer.

Robbery no longer on list

Robbery is no longer on that list, said Steve Orr, a defence lawyer with Gittens and Associates.

He explained that the Supreme Court of Canada repealed that provision of the code in the early 1990s.

"It's no longer automatically first-degree murder if it is committed in the course of an indictable offence," said Orr, adding that it is a "principle fundamental of justice" that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of the "subjective foresight of death."

So why is Phillips charged with first-degree murder?

Orr has no direct access to any of the evidence in the Phillips case, but surmised that investigators are alleging the murder was planned and deliberate.

If, for example, Wellman was detaining the accused and Phillips threatened to shoot him if he didn't back off, and then pulled the trigger, first-degree murder could apply, said Orr.

Preliminary hearing

He said the true test of whether a first-degree murder charge might stick could be determined during a preliminary hearing.

The debate over first-degree versus second-degree murder also surfaced during the highly publicized trial against Philip Pynn and LyndonButler earlier this year.

• Philip Pynn has 4 years left to serve for shooting friend Nick Winsor

Pynn was eventuallyconvicted of manslaughter in the 2011 shooting death of Nick Winsorwhile Butler was found not guilty.

"This is not your everyday case," Gruchy stated Friday, referring to the case against Brandon Phillips.