FAULT FOR CRIMES
MURDER
It is a fundamental principle of our legal tradition that those who cause harm intentionally should be subject to greater punishment. This is clear in cases of murder where subjective foresight of death is required before one can be labled a murderer. As established in Creighton, the stigma or blameworthiness attached to certain crimes requires a higher mens rea. Unlike most regulatory offences, crimes that require subjective mens rea are found to almost always violate s.7 and are not saved under s.1. Post-Charter, Canada has a very expansive definition of murder.
Under CC229a.1.2, culpable (blameworthy) homicide is murder when a person means to cause death (intent) or causes bodily harm that he knows is likely to cause death and is reckless whether death ensues or not. This requires the accused to have actual subjective foresight of the likelihood of causing death, coupled with the intention to cause that death – the most morally blameworthy state of mind in our system.
Simpson v. R. (1981) Ont. CA
The standard for murder is always subjective, never objective.
Vaillancourt and Martineau SCC:
Due to the stigma and the mandatory life sentence for murder, the onus is on the Crown to prove that the accused intended to cause death or knew that it was likely to occur beyond a reasonable doubt. In these cases, the SCC struck down the constructive murder provisions that allowed an accused committing some other serious offence (robbery, sexual assault, escape and other, which includes arson, kidnapping, etc.) to be convicted of murder regardless of whether or not that person meant to cause death and whether or not they knew death was likely to occur.
Vaillancourt v. R. (1987) (SCC)
The appellant and another had intended to rob a pool hall armed with knives; however, the accomplice brought a gun with him which the appellant insisted was unloaded. The accomplice took out three bullets and gave them to the appellant. On the assumption that the gun was unloaded, the appellant proceeded with the robbery. When the accomplice struggled with a patron at the hall, he discharged the gun and the patron was killed. The appellant was charged and convicted of second degree murder. He appealed on the basis that CC213.d and 21 combined violated his Charter rights under s.7 and 11d. His appeal was successful because any combination of strict liability and deprivation of life, liberty or security of the person violates s.7 and is not saved under s.1. If Parliament wishes to deter the use or carrying of weapons, it should punish the use or carrying of weapons. There must be some special mental element with respect to death before a culpable homicide can be treated as murder – proof beyond a reasonable doubt of subjective foresight. In addition, Lamer found a violation of s.11d. An accused cannot be found guilty of murder absent proof beyond a reasonable doubt of that element. Conviction with absence of proof beyond a reasonable doubt infringes s.7 and 11d.
Acid Test: Would it be possible for a conviction of murder to occur under s.213 despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to occur? If Yes – violation of s. 7 and 11d.
R. v. Martineau (1990) SCC
Accused and cohort robbed deceased. Cohort brought rifle along and accused brought a pellet gun. Cohort killed two occupants of a mobile home. Accused had no intention to kill the victims. Court of Appeal said the constructive murder provisions violate s.7 and 11d and are not saved by s.1. The appeal was dismissed and the conviction quashed because the stigma attached to murder requires that the accused be shown to have guilty knowledge reflecting the particular nature of the crime. The effect of 213 was to violate the principle of proportionality between the moral blameworthiness of the offender and the punishment meted out to him. A conviction of murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. Therefore the objective component of CC229.c could not be saved under s.1.
Meiler (1999) Ont. CA (ignores the above ruling of the SCC re: constructive murder)
Accused carried a loaded gun with the intention of killing a particular person but in a struggle the gun discharged and accidentally killed another person. This case has been criticized for resurrecting the unconstitutional CC229.c (constructive murder). This decision was criticized on grounds that CC229.c should be limited to a person who has subjective awareness of likelihood of the victim’s death.
SCC has been clear that the subjective requirement of foresight is only to be used in association with some offences (those that carry stigma), not everywhere as Lamer suggests. Murder, attempted murder and war crimes are the only CC crimes that require subjective fault.
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