Homicide Flashcards
R v Simpson
Facts: D pursues A with knife, punches A in back, repeatedly hit her in the face, threatens to have sex. Car arrives, D smashes A’s face in sidewalk and runs away.
Held: Appeal dismissed for B’s count: attempted murder stands. New trial ordered for A’s count, jury misinstructed.
Reasons:
- TJ incorrectly instructed of bodily harm knowing that it might result in death, not likely to result
- The “you will never talk again” would lead a jury to reasonably conclude an intent to kill or an intent to inflict bodily harm which D knew was likely to cause death
R v Cooper
Drunk blackout strangulation
Held: Guilt of 2nd degree. Mens rea and actus reus coincided during when D grabbed V’s neck and before D blacked out. If death results from a series of wrongful acts that are part of a single transaction then it must be established that the requisite intent coincided at some point with the wrongful acts.
R v Fontaine
Facts: D tried to commit suicide during high-speed chase, deliberately drove car into a parked trailer in oncoming lane. One passenger of D’s car was killed.
Held: New trial ordered; transfer of intention in 229b does not apply for suicide.
It is not a crime to commit suicide, so legally there is no culpable intent, no mens rea to transfer to the death of the other person
Serne
Facts: D and accomplice set house on fire/shop which kills D’s disabled son and his other son. D recently put life insurance on his disabled son. Fires seen intentional (several parts of building, lots of flammable material stacked up), D, wife, daughters, and accomplice escape.
Held: Despite judge’s instructions, D and accomplice both found not guilty.
Principle: it is murder if you kill someone in the commission of a felony that you know is likely to cause death
R v Vasil
Facts: Drunk guy burns furniture (and children)
Held: D wins. Unlawful object must be an indictable offence. While 229c test is objective, it’s not the knowledge a reasonable man would have in circumstances, but what knowledge the accused had of those circumstances. Drunkenness is thus relevant here: D didn’t have the requisite knowledge.
SCC: Unlawful Object Must Be A Crime
The mens rea for the unlawful object must be present, the unlawful object must be a felony/indictable offence, otherwise you do not have the proper mens rea to be a murderer
R v Vaillancourt
principles of fundamental justice require proof of subjective mens rea WRT act to avoid punishing morally innocent
Facts: D and accomplice rob pool hall, accomplice fires gun and kills employee. D had good reason to believe accomplice’s gun was unloaded.
Held (Lamer majority): s 213d (230d) is unconstitutional. Violates s 7 and 11d, not saved by s 1 (not minimally impairing) because of the objective intent because of the Principles of Fundamental Justice: do not punish the morally innocent. Needs to be subjective knowledge of likelihood of death in order for the stigma and mens rea to match
R v Martineau
CONSTITUTIONAL CASE
Crown must prove subjective intent, so the language of 229c that includes objective foresight is eliminated from the courts. This is the court constitutionalizing a crime
Held: All of s 213 (230) is unconstitutional. Violates s 7 and 11d, not saved by s 1 (not minimally impairing).
Facts: D and his friend, A , went out with guns to do a B&E. After robbing the trailer and its occupants, A shot and killed the trailer’s residents because they saw his face.
R v Shand
Facts: D and friends went to drug dealer’s house to steal weed. They see gf with weed and pursue her to basement room where she is there with two other men (B and C). Hostile words, D takes out gun, raises to B’s body and shoots killing B. Drug dealer thought it was probably an accident. D supposedly said “Oh shit”. D + friends take the weed and leave.
Held: The subjective branch of 229C is constitutional, but not objective branch. D guilty under 229C: Unlawful act was robbery, dangerous act was drawing and using gun to subdue people in room. Jury had sufficient evidence to find the necessary mens rea.
Unlawful Object Can’t be Murder Section 229(c) requires the unlawful object be something other than the harm that is foreseen as a consequence of the dangerous act (indictable offence + dangerous act to further that offence w/ subjectively foreseeable risk of serious harm) – aka doesn’t allow the unlawful object to be causing death or bodily harm likely to cause death.
R v Tutton and Tutton
Facts: Parent Ds deeply religious, believed in divine intervention. Child C was diabetic. Mother attended classes, seminars, became competent to deal with illness. They looked for miracle cures, doctor said none existed, would have to take insulin forever. They stopped giving insulin (belief he was being healed by Holy Spirit), two days later C was ill and hospitalized. C got potentially fatal disorder due to no insulin, Doctor freaked out at parents and stressed need for insulin. One year later, stopped insulin: mother saw vision from God that C was cured, no insulin needed, God would take care of C. Father learned of this one day later and approved. Two days later, DOA at hospital. Death due to no insulin.
Held: New trial ordered. NO distinction to be made on commission versus omission in terms of criminal negligence.
Objective standard must be applied because of the distinction between an ordinary criminal offence, which requires mens rea, and criminal negligence which does not
R v Creighton
Facts: Accused, an experienced drug user, charged with manslaughter after injecting cocaine into a willing friend who died as a result of OD.
Held: Foreseeability of death not required for manslaughter, just reasonable foreseeability of the risk of bodily harm. Uniform objective test. All agree that D’s appeal dismissed, convicted of manslaughter.
The objective test does not bend for human frailties. The only personal characteristics it takes into account are those amounting to incapacity. Manslaughter requires objective awareness of the risk of harm, not foreseeability of death.
R v ADH
Facts: D, not previously knowing that she was pregnant, gave birth to a baby while using the toilet in a Wal-Mart. Thinking the child was dead, she cleaned up as best she could and left, leaving the child in the toilet. The child was in fact alive, was quickly attended to by others and survived
Held (Cromwell majority): Appeal dismissed: the text, context and purpose of s. 218 (ABANDONMENT) show that subjective fault is required. D didn’t have subjective fault.
Moldaver dissent: Should be objective but only 3 limited classes of people
