222 - homicide is any causing of death of a human being (directly or indirectly), homicide is either culpable or non-culpable (which is not an offence)
222(5) - culpable homicide occurs by means of unlawful acts, criminal negligence (e.g. Dangerous driving - disregard for the safety of other persons), causing the victim to do anything that causes their death (threats, fear, deception), or wilfully frightening a child or sick person
223 - children are human beings after live delivery (even if it has never breathed or is still attached to the umbilical cord)
224-26: causation rules for homicide (Smithers, Nette, Maybin, Blaue, Smith)
Contribution beyond de minimis is required for all homicide offences (manslaughter and up). First degree murder requires more than de minimis – Nette language of “substantial contributing cause” is appropriate there.
228 - killing by influence on mind alone is not culpable homicide
They mean to cause bodily harm to facilitate the offence or facilitating the flight from an offence
A stupefying or overpowering thing to facilitate the offence
Stopping someone’s breath to facilitate the offence
230 (abc) are all under Charter attack (ss 7, 11(d)) and are not operational (Vaillancourt, Martineau)
These provisions predate the Charter and its requirement that principles of fundamental justice (procedurally and substantively) be complied with. They mostly remain on the books.
231 - classification of murder (first and second degree); first degree is both planned and deliberate (including contract murder)
For first degree murder, evidence of intoxication can suffice to raise a reasonable doubt about whether the accused could have “planned and deliberated.” That would only lead to a charge of second degree murder, however, unless it was so severe that it could negate the intention to kill.
231(4) - murder is first degree if it the victim is a peace officer acting in the course of their duties - aim is to deter violence against peace officers doing their duties
If there’s no indication that they’re a police officer (undercover, off-duty), then this section doesn’t necessarily apply
231(5) - murder is first degree if committed during the enumerated offences of domination (typically sexual assault)
231(7) - if not first-degree, murder is second-degree
232 - culpable homicide can be reduced to manslaughter if the person was provoked (“heat of passion” - must be sudden)
Main distinction between murder and manslaughter is presence of subjective intention as part of mens rea (in murder)
Methodology for dealing with homicide
Whenever there’s a death, decide whether it’s the death of a human being or not (223)
Then determine if it fits into culpable homicide or not (222(5))
Then look at 229 to determine if it’s murder or not (all of 229 is constitutional)
If it’s murder, decide if it’s first or second degree (231)
If it’s culpable, but it’s not murder or infanticide, then it’s manslaughter (manslaughter catches everything but murder)
ONLY 230 IS UNCONSTITUTIONAL for the time being (R v Sit)
Per Davy, you can be secondarily liable for murder under 21.2 IF it is subjectively foreseen that murder was a probable consequence of carrying out the common purpose (e.g. a robbery). This is subject to the constitutional requirements of Martineau.
R v Vaillancourt [1987] 2 SCR 636 (Lamer J.)
FACTS: Appellant and an accomplice robbed a pool hall. Appellant said that the two had agreed to only use knives for the robbery, but the accomplice brought a gun. Appellant made him remove the bullets. During the robbery a shot was fired and a patron was killed.
PROCEDURAL HISTORY: Convicted at trial as an accomplice. Appeal dismissed.
ISSUES: Is the felony murder provision regarding the use of a weapon during an offence (230(d) today) constitutionally valid?
DECISION: Appeal allowed, new trial ordered.
REASONS: Murder, in the Code, has a range of mens rea, from requiring full subjective foresight of the likelihood of death to considering whether the likelihood of death was objectively foreseeable. But the felony murder provisions, which were developed historically through implying "malice aforethought" to killings committed during other crimes, substitute proof of mens rea for murder with proof that they performed an enumerated crime. Under the Charter, crimes which have a stigma attached to the offence or the punishment that deprives the accused of life, liberty, or security of the person must comply with principles of fundamental justice. While not all crimes require proof of subjective mens rea, stigmatic offences require as a matter of fundamental justice a higher standard to reflect that stigma. Murder ought to require proof of subjective foresight (obiter), and must require objective foreseeability. The felony murder rule doesn't even require proof of objective foresight, so it violates s. 7. It basically creates an absolute liability offence. It also allows for the possibility of a conviction while a reasonable doubt exists, which violates the presumption of innocence (11.d). Substituting proof of another element (e.g. the commission of another offence) is not sufficient if it allows for a conviction despite a reasonable doubt. This cannot be saved under s. 1, since it unduly impairs ss. 7 and 11(d).
RATIO: Murder and felony murder, as stigmatic crimes, require proof of at least objective foreseeability of death – this standard is not met by the felony murder provisions.
DISSENT OR CONCUR: McIntyre J. - The classification of a killing committed during an offence as murder does not violate principles of fundamental justice. If it is too harsh, that's for Parliament to change.
