Actus Reus – Homicide (CC 222) -
For all forms of culpable homicide, the actus reus is to cause the death of a human being (CC 222(1) by one of the means enumerated in CC 222(5).
“causes the death of…” (CC 222(1)) -- Causation in criminal law consists of factual and legal causation (Maybin).
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FACTUAL: The crown establishes factual causation where it proves, beyond a reasonable doubt, that the victim would not have died but for the accused’s act (Maybin).
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LEGAL: The crown establishes legal causation where it proves, beyond a reasonable doubt, that the accused’s conduct was a “significant contributing cause” of the accused’s death (Smithers, as reformulated in Nette).
This standard of causation applies to all homicide offences – manslaughter, 2nd degree murder, and 1st degree murder. (Nette)
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THIN SKULL: The criminal must take his victim as he finds him. Thus, if the accused’s act was a “significant contributing cause” of the accused’s death (Smithers, Nette), causation is established, even if the accused’s act would not normally cause death, but only caused death due to some weakness of the victim (Smithers; Blaue)
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SEE ALSO, LEGAL CAUSATION SECTION
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INTERVENING CAUSE: The accused is not guilty where an intervening cause breaks the chain of causation between the act of the accused and the consequence element of the offence such that the accused’s act is not a significant contributing cause of the prohibited consequence (Maybin, Reid & Stratton).
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Foreseeability and intervening act approaches are merely helpful interpretive aids (Maybin)
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Acts by a 3rd party who is participating in a joint activity with the accused are not intervening acts – gun battle (R v SRJ); Street racing.
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SEE ALSO INTERVENING CAUSES SECTION
Enumerated means (CC 222(5)(a)-(d))
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“by means of an unlawful act” (CC 222(5)(a))
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Unlawful act here generally means “criminal” (Klein, class).
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“by criminal negligence” (CC 222(5)(b))
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SEE CC 219(1)
“a human being” (CC 222(1))
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“Human being” in 229(b) means “another human being” (Fountaine, MBCA) – this is unlikely to be important here, given that there isn’t (and couldn’t be) an offence in the CC for “attempted manslaughter”.
Manslaughter -
The mens rea for unlawful act manslaughter (CC 222(5)(a), 234) is the mens rea of the underlying offence, plus objective foreseeability of bodily harm that is neither trivial nor transitory (Creighton).
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The underlying offence cannot be an absolute liability offence (Creighton)
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Personal characteristics are irrelevant where for objective fault offences, except if they establish the accused’s incapacity to appreciate the nature and risks of her conduct. (Creighton)
Murder (CC 229) -
CC 229-230 set out several mens rea requirements that are sufficient for murder.
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A murder conviction invariably requires subjective foresight of death (obiter in Vaillancourt, affirmed as ratio in Martineau).
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CC 229(a)-(c) specify three circumstances under which there is subjective foresight of death such that culpable homicide under CC 222(5) constitutes murder.
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INTENT: Culpable homicide is murder where the accused “means” to cause the victim’s death (CC 229(a)(i))
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Murder under CC 229(a) requires subjective foresight of death (Simpson)
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Where the mens rea for an act or consequence requires intent, generally, a person intends a consequence either if: a) she is resolved to bring about that consequence or b) she is certain or substantially certain that the consequence will follow from her act, even if which she performs her act to achieve some other purpose, rather than the consequence (Buzzanga)
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RECKLESSNESS: Culpable homicide is murder where the accused means to cause the victim bodily harm that he knows is likely to cause his death (CC 229(a)(ii))
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Murder under CC 229(a) requires subjective foresight of death (Simpson)
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This branch of murder requires a) subjective intent to cause bodily harm and b) subjective knowledge that the bodily harm will likely result in death (Cooper).
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TRANSFERRED INTENT: Under CC 229(b), culpable homicide is murder where the accused intends (pursuant to CC 229(a)) the death of one person but causes the death of another. Under these circumstances, the intent associated with one person’s death transfers to that of another (Fontaine).
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CC 229(b) does not, however, render suicide murder, or attempted suicide attempted murder (Fontaine).
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UNLAWFUL OBJECT: Culpable homicide is murder “where a person, [a] for an unlawful object, [b] does anything that [c] he knows or ought to know is likely to cause death, and thereby [d] causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being” (CC 229(c); JSR).
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The words, “or ought to know” in CC 229(c) are unconstitutional, as they would result in a murder offence requiring only objective, rather than subjective, foresight of death (Martineau).
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Nordheimer J of the ONCA upheld the constitutionality of CC 229(c) (JSR #2).
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FELONY MURDER (unconstitutional and repealed): Under the CC 230, homicide is murder where an accused caused a victim’s death while committing or attempting to commit one of certain enumerated offences, and where, for example, the accused meant to cause bodily harm to facilitate the commission of the offence (see text pg. 702 for provision).
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Vaillancourt invalidated what was then CC 219(d) on the basis that it did not require even objective foreseeability of death.
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Martineau invalidated CC 231(a) on the basis that it did not require subjective foresight of death.
1st degree or 2nd degree murder -
CC 231 classifies murder for the purposes of sentencing after a person has been convicted of murder. The provision reflect Parliament’s view that the increased blameworthiness associated with certain aggravating factors warrants a particularly harsh sentence (Luxton, Harbottle)
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PLANNED: Murder is in first degree when it is planned and deliberate (CC 231(2))
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Planned: a calculated scheme or design which has been carefully thought out and the nature and consequences have been considered and weighted. Time must have been taken to plan (not the time between the plan and the action). (Widdifield, ONSC)
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Deliberate: “considered, not impulsive”, (More) “slow in deciding”, “cautious”. A must take time to weigh the advantages and disadvantages of his intended action (Widdifield, ONSC)
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CC 229(a)(ii) and 231(2) may be combined. That is, where an accused hatches and deliberately carries out a plan to cause bodily harm that he subjectively knows will likely cause death, she is guilty of first degree murder (Nygaard)
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POLICE OFFICER: Murder is in the first degree when the victim is a police officer, or similar (CC 231(4))
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To have a murder classified as 1st degree under CC 231(4)(a), the crown must prove that the accused knew the victim was a police officer etc.
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UNDERLYING DOMINION OFFENCE: Murder is in the first degree when “the death is caused by [the accused] while committing or attempting to commit an offence under one of the following sections: (a) section 76 (hijacking an aircraft); (b) section 271 (sexual assault); (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm); (d) section 273 (aggravated sexual assault); (e) section 279 (kidnapping and forcible confinement); or (f) section 279.1 (hostage taking)
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“is caused by”: for a murder to be classified as 1st degree, the accused’s act must have been a substantial and integral cause of the victim’s death (Harbottle).
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“While committing or attempting to commit” requires the killing to be closely connected, temporally and casually, with an enumerated offence. As long as that connection exists, it is immaterial that the victim of the killing and the victim of the enumerated offence are the same (Russell)
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“while” -- Where the act causing death and the acts constitution the rape, attempted rape, indecent assault or an attempt to commit indecent assault, all form part of one continuous sequence of events forming a single transaction – such that the murderer continues, at the time of murder to illegally dominate the victim – the death was caused “while committing” an offence for the purposes of s.231(5) (Paré)
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CC 231(5) is not unconstitutional:
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s7: CC 231(5) reflects a reasoned decision on the part of Parliament to treat murders committed in the context of illegal domination as more serious than others. This distinction is neither arbitrary nor irrational, and thus does not offend the principles of fundamental justice (Arkell)
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s9 – right not to be arbitrarily detained or imprisoned (Luxton)
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s12 – cruel and unusual punishment (Luxton)
Sentences for murder -
The mandatory minimum sentence for first degree murder is life imprisonment (CC 235(1)), with eligibility for parole only after 25 years (CC 745(a)).
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The mandatory minimum sentence for 2nd degree murder is life imprisonment (CC 235(1)), with eligibility for parole only after 10 years, (CC 745(c)), or, at the discretion of the judge, after 10-25 years (CC 745(c)).
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For a 2nd 2nd degree murder conviction, eligibility for parole only begins after 25 years. (CC 745(b))
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The maximum sentence for manslaughter is life imprisonment. (CC 236). There is no mandatory minimum sentence, unless a firearm is used in the commission of the offence, in which case a 4 year minimum applies (CC 236(b)).
Attempt to commit murder – CC 239
Provocation -
The defense of Provocation (CC 232(1)) provides a partial defense to murder. Where it is successful, it reduces murder to manslaughter. This is important because [SENTANCING INFO].
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BURDEN: The evidentiary burden for the defence of provocation (like all defences) lies with the accused, but the persuasive burden lies with the crown. That is, where the accused raises some evidence to suggest provocation, the crown must prove beyond a reasonable doubt that there was no provocation (Thibert)
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AIR OF REALITY: A judge should leave the provocation defence with a jury only if it bears an air of reality; only if there is (a) some evidence to suggest the victim’s wrongful act would cause the ordinary person to be deprived of self control, and (b) some evidence showing the accused was actually deprived of his self control (Thibert).
The provocation defense consists of an objective and a subjective element.
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The objective element requires (i) a wrongful act or insult (ii) of such a nature that it is sufficient to deprive an ordinary person of the power of self-control. (CC 232(2); Thibert; Tran; Mayuran).
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(i) wrongful act or insult
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insult: “[a]n act or the action of attacking; (an) attack, (an) assault.” Likewise, the action of insulting means to “[s]how arrogance or scorn; boast, exult, esp. insolently or contemptuously. . . . Treat with scornful abuse; subject to indignity; . . . offend the modesty or self-respect of.” (Tran)
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In Tran, the victim and her lover’s sexual relations did not constitute an insult because they occurred in private and were passive with respect to the accused (the victim’s ex-husband).
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CC 232(3) narrows the defense of provocation, precluding its use where the victim’s conduct was pursuant to a “legal right”. The meaning of “legal right”, however, only including only conduct sanctioned by law, rather than conduct that is not illegal (Thibert).
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That is, 232(3) only precludes the defense of provocation where the law specifically empowered the victim to do whatever was apparently provocative (Thibert)
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For example, the defense is not available where the apparently provocative conduct was in self defense, or was the conduct of a sheriff executing a legal warrant. (Thibert)
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(ii) “Nature that is sufficient to deprive an ordinary person of the power of self-control”
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The “ordinary person” of CC 232(2) connotes a “contextualized” objective standard that takes into account the non-idiosyncratic characteristics and circumstances of the accused, insofar as this does not “subvert the logic of the objective test for provocation” (Hill; Tran).
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The “ordinary person” has a normal temperament and level of self-control (Hill).
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He is not “exceptionally excitable” or drunk (Hill).
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He is the same age and gender as the accused (Thibert).
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He shares with the accused non-idiosyncratic characteristics that would give the act or insult at issue special significance (Hill).
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The characteristics of the “ordinary person” are informed by contemporary norms of behaviour, including the Charter (Tran)
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Beliefs contrary to Canadian values ought not to be imported into the ordinary person test for the provocation defence (Humaid)
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The subjective element requires that (i) the accused acted upon that insult (ii) abruptly (“on the sudden”) before there was time for her passion to cool (CC 232(2); Thibert; Tran; Mayuran).
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(i) the accused acted upon that insult
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The defence fails if the accused was not provoked; was not influenced be the insult – even if the “ordinary person” would have been (Hill)
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Can take account of mental state of accused at the time of the insult or act (Hill).
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Again, background and history of relationship between accused and victim must be considered (Thibert).
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(ii) before there was time for her passion to cool
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This requirement distinguishes conduct taken in response to provocation from conduct taken in revenge (Tran)
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However, provocation that induces a desire for revenge may qualify (Thibert)
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For example, in Tran, the fact that the accused’s ex-wife had sexual relations with another did not constitute provocation because the accused was already aware of these relations.
MISSING IN THIS SECTION
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Relationship between the mens rea for murder and provocation.
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Cultural issues -- Klein wants to underline that it is impossible to have a defence of provocation that is not intimately tied to a particular culture.
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The defence of provocation conveys something about the culture of the criminal law or the dominant culture that is reflected by the criminal law, which is informed by sexism and heternormativity.
DEFENSES GENERALLY
Air of Reality
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A judge must only put a defence to the jury (or where there is no jury, to himself) if it bears an “air of reality”; if there is evidence upon which a reasonable jury could find that the defence succeeds (Tran).
Evidentiary Burden
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The evidentiary burden of proof for a defence lies with the accused. It is up to the accused, that is, to raise some evidence in support of a defence. The persuasive burden of proof, however, rests on the crown. To secure a conviction, that is, the crown must prove beyond a reasonable doubt that at least one of the elements of the defence is absent (Tran).
The content of the ‘air of reality’ threshold test comes from the 2002 R v Cinous, which we are not reading. Any defence must possess an ‘air of reality’ before being put to the jury, that is, "if a properly instructed jury acting reasonably could acquit the accused on the basis of the defence."
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