R. v. Martineau

R. v. Martineau
Collection
Supreme Court Judgments
Date
1990-09-13
Report
[1990] 2 SCR 633
Case number
21122
Judges
Dickson, Robert George Brian; Lamer, Antonio; Wilson, Bertha; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Alberta
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 21122
Decision Content
R. v. Martineau, [1990] 2 S.C.R. 633
Her Majesty The Queen Appellant
v.
Roderick Russell Martineau Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Manitoba and
the Attorney General of British Columbia Interveners
indexed as: r. v. martineau
File No.: 21122.
1990: March 26; 1990: September 13.
Present: Dickson C.J.* and Lamer C.J.** and Wilson, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for alberta
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Constructive murder ‑‑ Whether s. 213(a) of the Criminal Code violates ss. 7 or 11 (d) of the Charter ‑‑ If so, whether such violation justified under s. 1 of the Charter ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 213(a), (d) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d).
Criminal law ‑‑ Constructive murder ‑‑ Whether s. 213(a) of the Criminal Code violates ss. 7 or 11 (d) of the Charter ‑‑ If so, whether such violation justified under s. 1 of the Charter .
Martineau and a friend, Tremblay, set out armed knowing that they were going to commit a crime; Martineau testified that he thought it would only be a break and enter. Tremblay shot and killed two people after robbing them and their house. Martineau allegedly said or thought, after he heard the shot which killed the first victim, "Lady, say your prayers". As they left, Martineau asked Tremblay why he killed them and Tremblay answered, "They saw our faces". Martineau responded, "But they couldn't see mine 'cause I had a mask on".
Respondent was convicted of second degree murder. The trial judge charged the jury on s. 213(a) and (d) and on s. 21(1) and (2) of the Criminal Code . The Court of Appeal held that s. 213 (a) was inconsistent with ss. 7 and 11 (d) of the Charter for reasons given in R. v. Vaillancourt and that it was not saved by s. 1 of the Charter . The Court could not conclude that a conviction should be entered pursuant to s. 613(1)(b)(iii) of the Code because the jury had not been not instructed on any portion of s. 212 .
The constitutional questions queried whether s. 213 (a) of the Criminal Code infringed s. 7 and/or s. 11 (d) of the Charter , and if so, whether or not it was justified by s. 1 .
Held (L'Heureux‑Dubé J. dissenting): The appeal should be dismissed. Section 213 (a) of the Criminal Code infringes both ss. 7 and 11 (d) of the Charter and is not justified by s. 1 .
Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.: The principles of fundamental justice require that a conviction for murder be based upon proof beyond a reasonable doubt of subjective foresight of death. This appeal was disposed of on the basis of the principle of subjective foresight of death, even though it could have been disposed of on the basis of objective foreseeability.
The introductory paragraph of s. 213 (a) expressly removes the Crown's burden of proving beyond a reasonable doubt that the accused had subjective foresight of death. This section is an anomaly as regards the other murder provisions, especially in light of the common law presumption against convicting a person of a true crime without proof of intent or recklessness. In a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to murder should be reserved for those who choose intentionally to cause death or who choose to inflict bodily harm knowing that it is likely to cause death. Requiring subjective foresight of death in the context of murder maintains a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender.
A special mental element with respect to death is necessary before a culpable homicide can be treated as murder and gives rise to the moral blameworthiness that justifies the stigma and punishment attaching to a murder conviction. It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. Section 213 of the Code expressly eliminates the requirement for proof of subjective foresight and therefore infringes ss. 7 and 11 (d) of the Charter .
The objective of deterring the infliction of bodily harm during the commission of certain offences because of the increased risk of death is sufficiently important to warrant overriding a Charter right. The section, however, unduly impairs Charter rights because it is not necessary to convict of murder persons who do not intend or foresee the death in order to achieve this objective.
Since subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained, the phrase "ought to know is likely to cause death" in s. 212(c) of the Code probably infringes ss. 7 and 11 (d) of the Charter . Section 212 (c) would not likely be saved by s. 1 .
Per Sopinka J.: The issue of subjective foresight of death should be addressed only if it is necessary to do so in order to decide this case or if there is an overriding reason making it desirable to do so. Overbroad statements of principle are inimical to the tradition of incremental development of the common law. Here, ruling on the issue of subjective foresight was not necessary for the disposition of this case because R. v. Vaillancourt, [1987] 2 S.C.R. 636, applied. Since objective foreseeability of death is a constitutional minimum for the definition of murder, the conclusion must follow that s. 213 (a) does not meet this constitutional minimum. This section places a restriction on s. 7 of the Charter by permitting a person to be convicted of murder without proof beyond a reasonable doubt of objective foreseeability of death, or of an equivalent substitute requirement, and cannot be saved by s. 1 for the reasons expressed by Lamer J., as he then was, in Vaillancourt and in the case at bar.
Per L'Heureux‑Dubé J. (dissenting): Section 213 (a) does not offend the principles of fundamental justice and accordingly does not violate ss. 7 and 11 (d) of the Charter .
Neither the subjective foresight of death test nor the objective foreseeability test violate the principle of fundamental justice. It has been decided in a number of cases, including R. v. Vaillancourt, that subjective foresight of death is not the exclusive standard for murder and no other common law jurisdiction has adopted that standard as the exclusive standard for murder. Significant policy considerations favour upholding the existing legislation.
The invocation of s. 213 (a) may not have been necessary in the instant case. The statement, "Lady, say your prayers", whether it was actually said or thought, reflected a mental state of mind sufficient to anchor a charge under s. 212(a) which is the only truly subjective foresight murder provision of the Criminal Code .
The tests of subjective foresight and objective foreseeability are not static or distinct concepts and are not mutually exclusive. In most instances, and certainly those delineated by s. 213 (a), death will be both objectively and subjectively foreseeable. The two are profoundly interrelated, especially when dealing with a crime committed during the execution of a predicate crime. The validity of a provision should not be evaluated on a strict "either‑or" approach. A fastidious adherence to prescribed labels becomes particularly obdurate when gauging the constitutionality of legislation.
Vaillancourt settled only two legal questions. First, it established a standard of objective foreseeability of death for the crime of murder. Second, it only disposed of s. 213 (d) of the Criminal Code .
The legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. This will be constitutionally valid only if, upon proof beyond reasonable doubt of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. Section 213 (d) could not meet that test; s. 213 (a) does. Section 213 (a) is completely different in its historical development in its consistency with the objective foreseeability of death test established in R. v. Vaillancourt and in the parallel provisions adopted in other common law jurisdictions.
An exacting combination of factors must be proven, all beyond a reasonable doubt, before the accused can be found guilty of murder under s. 213 (a). The offender must: (1) cause the death by committing a "culpable homicide"; (2) cause the death while committing or attempting to commit one of a limited number of very serious, inherently dangerous and specific intent crimes; (3) intentionally inflict bodily harm while committing one of these offences; (4) inflict the bodily harm purposefully in order to perpetrate the underlying crime or to facilitate escape; and (5) the death must ensue from the bodily harm intentionally inflicted.
No Charter violation of ss. 7 or 11 (d) takes place if the test of objective foreseeability has been met. The accused must specifically intend to, and actually commit the underlying offence, and must specifically intend to, and actually inflict bodily harm. The law necessitates conclusive proof beyond a reasonable doubt of factors that are collectively tantamount to an objective foreseeability requirement. The inexorable conclusion is that the resulting death is objectively foreseeable. Neither the presumption of innocence nor the other reference provisions which give content and scope to s. 7 are impugned.
How harm or injury is to be defined and what level of harm or injury is required are matters for Parliament to consider and decide. Many factors enter into the determination of an appropriate penalty for a particular offence; the degree of blameworthiness is only one. So long as Parliament does not act irrationally or arbitrarily or in a manner otherwise inconsistent with the fundamental principles of justice, its choice must be upheld.
Concentration on social "stigma" is overemphasized, and in the great majority of cases, completely inapplicable. The "stigma" and punishment attached to murder need not be proportionate to the mens rea alone. Rather they must correspond to the combination of the physical and mental elements that collectively define a murder.
Cases Cited
By Lamer C.J.
Considered: R. v. Vaillancourt, [1987] 2 S.C.R. 636; referred to: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; R. v. Bernard, [1988] 2 S.C.R. 833; R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369.
By Sopinka J.
Applied: R. v. Vaillancourt, [1987] 2 S.C.R. 636.
By L'Heureux‑Dubé J. (dissenting)
R. v. Rodney, [1990] 2 S.C.R. 000; R. v. Logan, [1990] 2 S.C.R. 000; R. v. Arkell, [1990] 2 S.C.R. 000, aff'g (1988), 43 C.C.C. (3d) 402; R. v. Luxton, [1990] 2 S.C.R. 000; R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Munro and Munro (1983), 8 C.C.C. (3d) 260; R. v. Hughes (1942), 78 C.C.C. 257; R. v. Ashman (1858), 1 F. & F. 88, 175 E.R. 638; R. v. Archibald (1898), 4 C.C.C. 159; R. v. Bottrell (1981), 60 C.C.C. (2d) 211; R. v. Marshall (1987), 26 A. Crim. R. 259; R. v. Van Beelen (1973), 4 S.A.S.R. 353; Tison v. Arizona, 107 S.Ct. 1676 (1987); Gregg v. Georgia, 428 U.S. 153 (1976); People v. Rose, 227 Cal. Rep. 570 (1986); R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Smith, [1987] 1 S.C.R. 1045; R. v. Guiller, Ont. Dist. Ct., Sept. 23, 1985, unreported.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (d).
Crimes Act (New South Wales), s. 18.
Crimes Act 1958 (Victoria).
Crimes Act 1961, 1961 (N.Z.), No. 43, s. 168.
Crimes (Classification of Offences) Act 1981, No. 9576, 1981 (Victoria), s. 3.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 21(1) , (2) , 205(5) (a), 212(a), (c), 213 (a), (b), (c), (d), 214(5), 245.1(2), 613(1)(b)(iii).
Criminal Code, 1913, 1913 (Western Australia), ss. 278, 279.
Criminal Code Act, 1899 (Queensland), 63 Vic., No. 9, s. 302.
Criminal Code Act, 1924 (Tasmania), 14 Geo. V, No. 69, s. 157.
Homicide Act, 1957 (U.K.), 5 & 6 Eliz. 2, c. 11.
Authors Cited
Archbold, John Frederick. Pleading and Evidence. London: R. Pheney and R. Millikin, 1822.
Ashworth, A. J. "The Elasticity of Mens Rea," in C. F. H. Trapper, ed., Crime, Proof and Punishment. London: Butterworths, 1981.
Canada. Senate. Standing Committee on Banking and Commerce. Proceedings of the Standing Committee on Banking and Commerce. Ottawa: Queen's Printer, 1961.
Coke, Sir Edward. The Third Part of the Institutes of the Laws of England, 6th ed. London: W. Rawlins for Thomas Basset, 1680.
Cross, Rupert. "The Mental Element in Crime" (1967), 83 L.Q.R. 215.
Crump, D. and S. W. Crump. "In Defense of the Felony Murder Doctrine" (1985), 8 Harv. J. of L. and P.P. 359.
Edwards, J. Ll. J. "Constructive Murder in Canadian and English Law" (1959), 3 Crim. L.Q. 481.
Gilbert, M. L. "Degrees of Felony Murder" (1983), 40 Wash. & Lee L. Rev. 1601.
Goff, Robert, Lord Goff. "The Mental Element in the Crime of Murder" (1988), 104 L.Q.R. 30.
Gordon, Gerald H. "Subjective and Objective Mens Rea," [1975] 17 Crim. L.Q. 355.
Hart, H. L. A. Punishment and Responsibility. Oxford: Clarendon Press, 1968.
Holmes, Oliver Wendell, Jr. The Common Law. Boston: Little, Brown & Co., 1881.
LaFave, Wayne R. and Austin W. Scott, Jr. Substantive Criminal Law, vol. 2. St. Paul, Minn.: West Publishing Co., 1986.
Lindsay, Peter. "The Implications of R. v. Vaillancourt: Much Ado About Nothing?" (1989), 47 U. of T. Fac. Law Rev. 465.
Mewett, Alan W. & Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.
Stuart, Don. Canadian Criminal Law, 2nd ed. Toronto: Carswells, 1987.
United Kingdom. British Parliamentary Papers "Criminal Law", vol. 6, 1879.
Wells, Celia. "Swatting the Subjectivist Bug", [1982] Crim. L.R. 209.
Wharton, Francis. Wharton's Criminal Law. 14th ed. by Charles E. Torcia. New York: The Lawyers Co‑operative Publishing Co., 1979.
Williams, Glanville. "Convictions and Fair Labelling," [1983] 42 C.L.J. 85.
Williams, Glanville. The Mental Element in Crime. Jerusalem: Magnes Press, The Hebrew University, 1965.
APPEAL from a judgment of the Alberta Court of Appeal (1988), 61 Alta. L.R. (2d) 264, 89 A.R. 162, 43 C.C.C. (3d) 417, [1988] 6 W.W.R. 385, allowing the respondent's appeal from a conviction on a charge of second degree murder by Foisy J. sitting with jury. Appeal dismissed, L'Heureux‑Dubé J. dissenting.
Jack Watson, for the appellant.
Philip Lister and Sheila Schumacher, for the respondent.
Bruce MacFarlane, Q.C. and Don Avison, for the intervener the Attorney General of Canada.
W. J. Blacklock and Ken Campbell, for the intervener the Attorney General for Ontario.
Jacques Gauvin, for the intervener the Attorney General of Quebec.
J. G. Dangerfield, Q.C., and Marva J. Smith, for the intervener the Attorney General of Manitoba.
James D. Taylor, for the intervener the Attorney General of British Columbia.
//Lamer C.J.//
The judgment of Dickson C.J and Lamer C.J. and Wilson, Gonthier and Cory JJ. was delivered by
LAMER C.J. -- This is the first of a series of appeals that raises the constitutionality of s. 213(a) of the Criminal Code, R.S.C. 1970, c. C-34, (now s. 230 (a), Criminal Code, R.S.C., 1985, c. C-46 ). The appeal arises as a result of the application to s. 213 (a) by the Alberta Court of Appeal of this Court's decision in R. v. Vaillancourt, [1987] 2 S.C.R. 636, in which s. 213 (d) of the Criminal Code was declared of no force or effect because it infringed ss. 7 and 11 (d) of the Canadian Charter of Rights and Freedoms , and could not be saved by s. 1 of the Charter .
Facts
The facts of this case are not central to the disposition of this appeal, and therefore, may be briefly summarized as follows. On February 7, 1985 the bodies of James McLean and Ann McLean were found in the bathroom of their home, a trailer, in Valleyview, Alberta. A police investigation led to Martineau and one Patrick Tremblay. Martineau, who was fifteen at the time, was charged with both murders and was transferred to adult court.
Martineau was tried by a judge and jury starting on September 12, 1985. Thirty witnesses gave evidence including the accused. The evidence revealed that Martineau and his friend, Tremblay, had set out one evening armed with a pellet pistol and rifle respectively. Martineau testified that he knew that they were going to commit a crime, but that he thought it would only be a "b and e". After robbing the trailer and its occupants, Martineau's friend Tremblay shot and killed the McLeans.
As they left the trailer, Martineau asked Tremblay why he killed them and Tremblay answered, "they saw our faces". Martineau responded, "But they couldn't see mine 'cause I had a mask on". They drove James McLean's car to Grande Prairie where they abandoned it. The respondent was convicted of second degree murder. The trial judge charged the jury on s. 213 (a) and (d) of the Criminal Code and on s. 21(1) and (2) of the Criminal Code .
Judgment Below
Alberta Court of Appeal (1988), 61 Alta. L.R. (2d) 264
The respondent's appeal was first heard in September of 1987 on grounds relating to the trial judge's charge to the jury. After the decision of this Court in Vaillancourt, a re-hearing was ordered before a five-person panel of the Court of Appeal. The Court of Appeal held that, given the law as it then stood, the charge to the jury could not be criticized. The Court then considered the impact of Vaillancourt, and stated the following interpretation of that case, at p. 274:
The effect of these passages [from Vaillancourt], in my view, is to emphasize that s. 213 (d) offends the Charter , not because Parliament lacks the constitutional power to create a crime, an element of which is unforeseen or unforeseeable death, but because in this case three other factors were present. First, Parliament chose to label the crime as murder. Second, it imposed the same punishment as that provided for an intentional killing. Third, and perhaps most important, that punishment is mandatory life imprisonment, as severe a punishment as is available in Canadian law. The combined effect of these three factors was to proclaim that an unforeseen and unforeseeable killing was the moral equal of an intended killing, a proposition so inaccurate as to be unjust.
The Court of Appeal then drew the following conclusion, at pp. 277-78:
In my opinion, s. 213 (a) of the Criminal Code must be held to be inconsistent with ss. 7 and 11 (d) of the Charter for the reasons given in Vaillancourt with respect to s. 213 (d). The section is not restricted to situations where there was an intention to inflict an injury of a life threatening nature. An accused person may find himself within the ambit of s. 213 (a) even though he did not foresee, and could not reasonably have foreseen, that death would likely result from the injury which he intended to inflict.
The Court went on to hold that the section could not be saved by s. 1 of the Charter . Since the jury was not instructed on any portion of s. 212 of the Criminal Code , the Court could not conclude that a conviction should be entered pursuant to s. 613(1)(b)(iii) of the Code. The Court quashed the convictions and ordered a new trial.
Legislation
Criminal Code, R.S.C. 1970, c. C-34, s. 213(a)
213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), section 246 (assaulting a police officer), section 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), 246.3 (aggravated sexual assault), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if
(a) he means to cause bodily harm for the purpose of
(i) facilitating the commission of the offence, or
(ii) facilitating his flight after committing or attempting to commit the offence,
and the death ensues from the bodily harm;
Issues
The following constitutional questions were stated by Chief Justice Dickson:
1.Does s. 213(a) of the Criminal Code infringe or deny the rights or freedoms guaranteed by s. 7 and/or s. 11 (d) of the Canadian Charter of Rights and Freedoms ?
2If the answer to question 1 is affirmative, is s. 213(a) justified by s. 1 of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?
Analysis
Parliament, of course, decides what a crime is to be, and has the power to define the elements of a crime. With the advent of the Charter in 1982, Parliament also has, however, directed the courts to review those definitions to ensure that they are in accordance with the principles of fundamental justice. We, as a Court, would be remiss not to heed this command of Parliament. This is an unassailable proposition since the decision of Parliament to entrench into our constitutional framework a Charter of Rights and Freedoms and also the principle that the Constitution is the supreme law of the land. Since 1982, this Court has consistently assumed its duty to measure the content of legislation against the guarantees in our Charter designed to protect individual rights and freedoms. See for example Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; and R. v. Oakes, [1986] 1 S.C.R. 103.
In R. v. Vaillancourt, supra, s. 213 (d) of the Criminal Code was declared of no force or effect because it violated ss. 7 and 11 (d) of the Charter . The ratio of Vaillancourt, strictly speaking, was that it is a principle of fundamental justice that before a person could be convicted of murder there must be proof beyond a reasonable doubt of at least objective foreseeability of death. The impugned section in that case did not accord with this principle because it would be possible for a conviction for murder to occur under s. 213 (d) despite the jury's having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue.
In Vaillancourt I analyzed a number of matters, including s. 213 of the Code in the context of the other murder provisions, the historical development of s. 213 , felony murder provisions in other jurisdictions, the essential elements of certain crimes at common law, and the principles of fundamental justice under the Charter and their application to s. 213 of the Code. As a result of this analysis I concluded that objective foreseeability of death was the minimum threshold test before a conviction for murder could be sustained. I went on to state, however, that it was my view that the principles of fundamental justice require more; they demand that a conviction for murder requires proof beyond a reasonable doubt of subjective foresight of death. The Chief Justice, Estey and Wilson JJ. agreed with that position. I am still of that view today, and indeed, while I agree with the Alberta Court of Appeal and could dispose of this appeal on the basis of objective foreseeability, it is on the basis of the principle of subjective foresight of death that I choose to dispose of this appeal. I choose this route because I would not want this case, a very serious matter, to return to this Court once again on the grounds that there is some doubt as to the validity of the portion of s. 212(c) of the Code that allows for a conviction for murder if the accused "ought to know" that death is likely to result. I need not, therefore, repeat the analysis from Vaillancourt here, except to add some brief observations as regards s. 213 (a) and the principle of fundamental justice that subjective foresight of death is required before a conviction for murder can be sustained.
Section 213(a) of the Code defines culpable homicide as murder where a person causes the death of a human being while committing or attempting to commit a range of listed offences, whether or not the person means to cause death or whether or not he or she knows that death is likely to ensue if that person means to cause bodily harm for the purpose of facilitating the commission of the offence or flight after committing or attempting to commit the offence. The introductory paragraph of the section, therefore, expressly removes from the Crown the burden of proving beyond a reasonable doubt that the accused had subjective foresight of death. This section stands as an anomaly as regards the other murder provisions, especially in light of the common law presumption against convicting a person of a true crime without proof of intent or recklessness: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, at pp. 1309-10, per Dickson J., as he then was.
A conviction for murder carries with it the most severe stigma and punishment of any crime in our society. The principles of fundamental justice require, because of the special nature of the stigma attached to a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime. The effect of s. 213 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender, or as Professor Hart puts it in Punishment and Responsibility (1968), at p. 162, the fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally. The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result: see R. v. Bernard, [1988] 2 S.C.R. 833, per McIntyre J., and R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), per Martin J.A. In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death. In this regard, I refer to the following works as support for my position, in addition to those cited in Vaillancourt: Cross, "The Mental Element in Crime" (1967), 83 L.Q.R. 215; Ashworth, "The Elasticity of Mens Rea," in Crime, Proof and Punishment (1981); Williams, The Mental Element in Crime (1965); and Williams, "Convictions and Fair Labelling", [1983] 42 C.L.J. 85.
In sum then, I am of the view that a special mental element with respect to death is necessary before a culpable homicide can be treated as murder. That special mental element gives rise to the moral blameworthiness that justifies the stigma and punishment attaching to a murder conviction. For all the foregoing reasons, and for the reasons stated in Vaillancourt, I conclude that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. That was my position when Vaillancourt was decided, and that is my position today. Therefore, since s. 213 of the Code expressly eliminates the requirement for proof of subjective foresight, it infringes ss. 7 and 11 (d) of the Charter .
As regards s. 1 of the Charter , there is no doubt that the objective of deterring the infliction of bodily harm during the commission of certain offences because of the increased risk of death is of sufficient importance to warrant overriding a Charter right. Further, indiscriminately punishing for murder all those who cause death irrespective of whether they intended to cause death might well be thought to discourage the infliction of bodily harm during the commission of certain offences because of the increased risk of death. But it is not necessary in order to achieve this objective to convict of murder persons who do not intend or foresee the death. In this regard the section unduly impairs the Charter rights. If Parliament wishes to deter persons from causing bodily harm during certain offences, then it should punish persons for causing the bodily harm. Indeed, the conviction for manslaughter that would result instead of a conviction for murder is punishable by, from a day in jail to confinement for life. Very stiff sentences for the infliction of bodily harm leading to death in appropriate cases would sufficiently meet any deterrence objective that Parliament might have in mind. The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender. To label and punish a person as a murderer who did not intend or foresee death unnecessarily stigmatizes and punishes those whose moral blameworthiness is not that of a murderer, and thereby unnecessarily impairs the rights guaranteed by ss. 7 and 11 (d) of the Charter . In my view then, s. 213 (a), indeed all of s. 213 , cannot be saved by s. 1 of the Charter .
The fact that I have based my reasons on the principle of subjective foresight casts serious if not fatal doubt on the constitutionality of part of s. 212(c) of the Code, specifically the words "ought to know is likely to cause death". The validity of s. 212(c) of the Code has not been directly attacked in this appeal, but the Court has had the benefit of hearing argument from the Attorney General of Canada and from the Attorneys General for Alberta, British Columbia, Ontario, Quebec, and Manitoba, who chose to intervene, on the issue of whether subjective foresight or objective foreseeability of death is the constitutionally required minimum mens rea for murder. In my view, subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained, and as a result, it is obvious the part of s. 212(c) of the Code allowing for a conviction upon proof that the accused ought to have known that death was likely to result violates ss. 7 and 11 (d) of the Charter . I find further support for this view in the following passage from Professor Stuart's treatise Canadian Criminal Law (2nd ed. 1987), at pp. 217-18, dealing specifically with the objective element of s. 212(c) of the Code and the principle of subjective foresight:
This is a clear instance where our legislation has not kept up with developments in other jurisdictions. We have seen that a similar objective test for murder resorted to by the House of Lords in the notorious decision in Director of Public Prosecutions v. Smith (1960) [[1961] A.C. 290 [1960] 3 All E.R. 161 (H.L.)] was rejected by the British Legislature and by the Australian High Court. Very few jurisdictions, including those in the United States, resort to anything but the subjective approach in defining murder. The only direct parallels to our section 212(c) are to be found in the codes of Queensland, Tasmania, and New Zealand. The wording in these provisions is almost identical to ours except that in New Zealand the words "or ought to have known" were deleted as a result of a quick and firm rejection of Smith. The New Zealand section now reads in part:
... if the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.
Indeed, Lord Goff in his article "The Mental Element in the Crime of Murder" (1988), 104 L.Q.R. 30, at p. 36, had this to say about the Smith decision and about objective foreseeability as a test for murder:
This decision was very much criticised, by judge and jurist alike. What they disliked about it was that it imposed an objective instead of a subjective test for ascertaining the existence of the relevant mental element for the crime of murder. In due course, it was reversed by statute; later, on an appeal from a jurisdiction where that statute did not apply at the relevant time, Smith was, in effect, held by the Judicial Committee of the Privy Council to have been wrongly decided (see Frankland and Moore v. R.), [1987] 2 W.L.R. 1251. So the objective test was never part of the common law, properly understood; and we can now forget about it. [Emphasis added.]
Although it would be open to save that part of s. 212(c) under s. 1 of the Charter , it seems to me that the attempt would fail for the reasons I have given in respect of the attempt to similarly save s. 213 of the Code. I would therefore answer the constitutional questions as follows:
Q:Does s. 213(a) of the Criminal Code infringe or deny the rights or freedoms guaranteed by s. 7 and/or s. 11 (d) of the Canadian Charter of Rights and Freedoms ?
A:Yes, the section infringes both ss. 7 and 11 (d) of the Charter .
Q:If the answer to question 1 is affirmative, is s. 213(a) justified by s. 1 of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?
A:No.
The only remaining issue is the potential application of s. 613(1)(b)(iii) (now s. 686(1)(b)(iii)) of the Criminal Code . The Court of Appeal for Alberta declined to invoke the section and enter a conviction for the following reason, at p. 279:
The jury in this case was not instructed on any portion of s. 212. I am unable to say that a properly instructed jury must necessarily have found that the appellant had, at some point, the requisite intention under that section rather than being carried along by events.
I agree. In the present case, the respondent was convicted pursuant to a combination of ss. 213 and 21 of the Code. Since in this case the jury was left only with s. 213 which has been declared to be inoperative, a new trial must be ordered. Accordingly, the Court of Appeal's decision quashing the convictions and directing a new trial is affirmed. The appeal is, therefore, dismissed.
//L'Heureux-Dubé J.//
The following are the reasons delivered by
L'HEUREUX-DUBÉ J. (dissenting) -- I have had the opportunity of reading the reasons of Chief Justice Lamer, and with respect, I must dissent. I fully agree with my colleague's characterization, at p. 000, of this Court's "duty to measure the content of legislation against the guarantees in our Charter designed to protect individual rights and freedoms" while however, in my view, the Canadian Charter of Rights and Freedoms is not impermeable to the rights of the collectivity. I also heartily concur with my colleague's assertion that this Court is directed to review, when challenged, Parliament's definitions of the elements of a crime to ensure that they are in accordance with fundamental justice. In my view, however, this Court must stop short of effectively legislating on its own. The question should not be what is the "best" test, but rather what is a constitutionally valid test.
The following constitutional questions were stated by Chief Justice Dickson:
1.Does s. 213(a) [now s. 230 (a)] of the Criminal Code infringe or deny the rights or freedoms guaranteed by s. 7 and/or s. 11 (d) of the Canadian Charter of Rights and Freedoms ?
2.If the answer to question 1 is affirmative, is s. 213(a) justified by s. 1 of the Canadian Charter of Rights and Freedoms , and therefore not inconsistent with the Constitution Act, 1982 ?
The same constitutional questions were stated in R. v. Rodney, [1990] 2 S.C.R. 000, heard concurrently, judgment also rendered concurrently. R. v. Logan, [1990] 2 S.C.R. 000, R. v. Arkell, [1990] 2 S.C.R. 000 and R. v. Luxton, [1990] 2 S.C.R. 000, were also heard and are released concurrently with this appeal. Logan deals with the constitutionality of s. 21(2) of the Criminal Code, R.S.C. 1970, c. C-34, Arkell with s. 214(5) of the Criminal Code , and Luxton with s. 214(5) (e) of the Criminal Code . The latter two appeals also raise the constitutionality of s. 213 (a) of the Criminal Code , which is the focus of the present appeal.
Section 213 of the Criminal Code reads as follows:
213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), section 246 (assaulting a peace officer), section 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), 246.3 (aggravated sexual assault), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if
(a) he means to cause bodily harm for the purpose of
(i) facilitating the commission of the offence, or
(ii) facilitating his flight after committing or attempting to commit the offence,
and the death ensues from the bodily harm;
(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom;
(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom; or
(d) he uses a weapon or has it upon his person
(i) during or at the time he commits or attempts to commit the offence, or
(ii) during or at the time of his flight after committing or attempting to commit the offence,
and the death ensues as a consequence.
My colleague concludes that s. 213 (a) is unconstitutional because it violates ss. 7 and 11 (d) of the Charter and cannot be saved by s. 1 . In his opinion, the principles of fundamental justice demand that subjective foresight of death be proven beyond a reasonable doubt before a conviction for murder can be secured. I reach a contrary conclusion on the basis that subjective foresight is not the only appropriate standard that can be applied to conform to ss. 7 and 11 (d) of the Charter . My reasons are as follows: the test of objective foreseeability of death for the crime of murder does not offend the prin