Class 9 MURDER Flashcards
Is murder objective or subjective
It is subjective.
How do you prove murder generally?
To be guilty of murder the crown has to prove subjective foresight of death.
What are the two ways you can prove murder. Do you need both?
Whether the person intended to cause the death of the person OR
They meant to cause him bodily harm that they knew is likely to cause death.
The Simpson case talks about the intent required for attempted murder. What test applies? Is it okay if the court says “an intention to cause bodily harm that the accused knows or ought to have known is likely to cause death?
The test is subjective and the requisite knowledge that the intended injury is likely to cause death must be brought home to the accused subjectively.
NOT good enough for an intent to cause bodily harm that he “ought to” have known to cause death. This is objective. it must be subjective
This info can be used as evidence for the subjective standard.
R. v. Edelenbos 2004. SA the victim and killed her. He argued it was not his intent to kill her. Charged with first degree murder. What does the crown have to prove for an unlawful killing to be considered murder?
The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown must prove
(1) that the accused meant either to kill the victim OR
(2) The accused meant to cause the victim bodily harm that the accused knew was likely to kill the victim, and was reckless whether the victim died or not.
The Crown does not have to prove both. One is enough.
For (2) the crown must prove BRD the accused subjectives intent to cause bodily harm that he knew was likely to cause death and was reckless whether the victim died or not. (Likely must be proved subjectively)
What is constructive murder? (been repelled not good law)
Constructive murder is when someone kills in the course of committing an unlawful act.
R v. Vaillancourt 1987. First degree murder armed robbery of pool place. Defendant thought no weapons would be brought but accomplice killed. He had no intent. Charged with constructive murder. The provision in the CC said “proof that the accused preformed one of the offences listed substituted proof of subjective foresight”
Issue: is constructive murder provision violated the charter (POI)
Court concluded: there must be some special mental element with respect to the death (MUST have intent or fault) before culpable homicide can be treated as a murder. SUBJECTIVE FORESIGHT OF DEATH MUST BE THERE FOR the fault standard for murder.
Found unconstitutional.
R v. Martineau 1990 SCC, First degree murder charge. 3 years after Vaillancourt. Talked about again the words “ought to know is likely to cause death”
Court reminds us the common law presumption that we cannot convict someone of a true crime without proof or recklessness.
Must be intent to show death and have subjective thought of death.
“ought to know is likely to cause death” is unconstitutional as it is a objective standard. Subjective foresight of death must be proven BRD. Ought to know was read out of the CC.
R. v. Shand 2011. Is the entirety of s. 229(c) of the Criminal Code unconstitutional under s. 7 of the Charter because it permits a conviction for murder without proof of an intent to cause serious bodily harm to the victim OR is it just the “ought to know” that is a problem.
Issue: Whether 229c is unconstitutional as it could permit murder without proof of intent to cause serious bodily harm.
The ruling by the Supreme Court in R v Martineau does not make s. 229(c) unconstitutional, but rather only the “ought to know” words of the section.
Section 229(c) of the Criminal Code is not unconstitutional as a whole; only the “ought to know” section should be read out.
“likely to know” is subjective fault.
What are the two classifications of murders CC: 231
First and second degree murder
What is needed for first degree murder?
Planned and deliberation (NEEDS BOTH)
R v. Smith 1979 Sask CA. Tried to explain what planning and deliberation needs for first degree murder. Explain?
Planning requires evidence that the killing was the result of a theme or design previously formulated or designed by the accused and the killing was the implementation of that scheme or design. (sudden impulse is not a planned murder)
Deliberation(deliberate) means considered and not impulsive. They have weighed the pros and cons, must take place before the murder.
Planning and deliberation are not the same as intention. Difference between intentional murder and planned and deliberate murder.
First must prove intentional murder. after that, then prove deliberate and planned for 1st degree.
R. v. Arkell 1990 SCC. What is the most important thing to be proved for murder?
No planning or deliberation is needed to be proved so long as the crown is able to establish that the murder was committed while the accused was committing or attempting to commit the list of the offences.
A conviction for murder requires BRD of subjective foresight of death.
SUM UP MURDER
Difference between subjective and objective. you need subjective foresight of death for murder.
difference between first and second degree murder.
crown has to prove all elements BRD.
I suddenly killed someone. Is this first degree murder?
No this is not a planned murder
