FACTS: Martineau and an accomplice robbed a trailer. During the robbery, the accomplice shot and killed the 2 occupants. Martineau thought the only crime they were going to commit was a break and enter.
PROCEDURAL HISTORY: Convicted of second degree murder at trial. CA ordered a new trial.
ISSUES: Is the felony murder rule regarding a killing committed to facilitate the commission of an offence or the flight thereof (now 230(a)) constitutionally valid?
DECISION: Appeal dismissed.
REASONS: In Vaillancourt, it was held that the principles of fundamental justice require that objective foreseeability of death be proven for the mens rea of murder. From this case onward, though, subjective foresight of death (and intention to cause it) is the mens rea for murder. Murder is a stigmatic offence, and it is only appropriate to punish people for it if they possess a culpable (intentional) state of mind; this requires subjective foresight. Since the felony murder rule allows for a conviction without subjective foresight, it violates s. 7 of the Charter, as well as the presumption of innocence. This cannot be saved under s. 1 because it unnecessarily impairs those rights, as a conviction less than murder would suffice to deter bodily harm leading to death.
RATIO: Proof of subjective foresight of death is required to find someone liable for murder, as required by the principles of fundamental justice.
COMMENTS: Remember that this trumps Vaillancourt.
Stigmatic Offences
Certain offences are stigmatic – this is a function of their perception in the community, not due to their punishment (though the life sentence of murder is telling, it’s more an expression of society’s absolute repugnance to the crime). The penalty of attracting this stigma must be proportionate to the moral culpability of the party. Includes murder, attempted murder, war crimes, theft.
The mens rea requirements for stigmatic offences must reflect that stigma – requires subjective foresight and intention.
This applies to parties as well (Logan) – if the principles of fundamental justice require subjective mens rea then partyship requires the same minimal level.
This approach has been criticized – all criminal offences attract some social stigma, and they all presumptively have mens rea requirements. Lamer’s opinion seems to be more of an interpretive tip
R v Logan [1990] 2 SCR 731 (Lamer C.J.)
FACTS: The respondents Logan and Johnson, and 2 accomplices, robbed a convenience store. One of the accomplices shot the clerk in the neck, causing severe injuries. Logan boasted about planning the robberies, including the one where the clerk was shot, and his confession was admitted into trial. Trial judge charged the jury that he "ought to have known" that someone would probably shoot someone.
PROCEDURAL HISTORY: Convicted of attempted murder and other offences. Appeal allowed regarding attempted murder.
ISSUES: Is 21(2) of the Code (common intention partyship) constitutionally valid as it relates to attempted murder?
REASONS: S. 21(2) includes the provision “ought to have known” which imposes objective foreseeability for mens rea. The equity principle (that principals and parties should require the same degree of guilt) is not a principle of fundamental justice generally, but for stigmatic offences it does offend the principles of fundamental justice to have different levels of guilt. The mens rea for the principal in attempted murder is a specific intent to kill—all that differs from murder is the outcome. Attempted murder is a stigmatic offence, and this stigma is defined in terms of social consequences, not sentencing. S. 7 of the Charter requires that for parties to murder or attempted murder, subjective foreseeability of death must be proven. The objective element of 21(2) allows for conviction of partyship to murder without subjective foreseeability and thus offends s. 7. It cannot be saved under s. 1 because it disproportionately impacts s. 7 rights. But only the provision in question (“ought to have known”) is inoperative, not 21(2) as a whole.
RATIO: For the mens rea of murder and attempted murder, subjective foreseeability of death (or at least subjective foresight of the probability that an accomplice would do something with the intent to kill while pursuing their common purpose) has to be proven for parties as well as principals. To establish party liability, it must be shown that the accused knew that it was probable that the accomplice would do something with an intent to kill in carrying out the common purpose.
R v Nygaard and Schimmens 1989 SCC
Facts: The victim gave the appellants a bounced check, and they beat him as punishment. He died in hospital.
229.a.ii requires that there be an intention to cause serious bodily harm such that death is likely, and proceeding recklessly – the relevant conception of recklessness is the continuance of the assault.
S. 229.a.ii is only a minor decrease in liability from 229.a.i. You’re equally culpable either way.
The distinction between first and second degree murder is only relevant in sentencing.
For first degree murder, “planned” means that the scheme was conceived of and thought out before it was carried out. “Deliberate” means considered, not impulsive – it implies that time was taken to weigh the advantages and disadvantages of the scheme.
The relevant temporal consideration for “planned and deliberate” is the time spent on the planning, not the connection between the planning and the offence.
The “planning and deliberation” required for a first degree murder conviction can be drawn from 229.a.ii (intention to cause bodily harm and recklessly pursuing it) if the planned and deliberate acts were merely to cause severe bodily harm. “Planned and deliberate” can make first degree murder out of both elements of 229.a.
