R v. Mrtineau  2 S.C.R. 633: Fundamental justice - Constructive murder
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,  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.
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