Conclusion

Author:Kent Roach
Profession:Faculty of Law and Centre of Criminology. University of Toronto
Pages:465-468
 
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Page 465

This chapter has provided an overview of a few selected offences in order to illustrate how the general principles of criminal liability play out in some different contexts. With respect to homicide, the general principle of fault in relation to all elements of the actus reus is satisfied with respect to murder but not manslaughter. The Supreme Court has held as a principle of fundamental justice under section 7 of the Charter that murder requires proof of at least knowledge of the probability that the victim will die. This fault element is designed to reflect the stigma and mandatory life imprisonment that follows from a murder conviction. At the same time, the Court has held that objective foresight of bodily harm is a sufficient fault element for manslaughter and has rejected the idea that it is a principle of fundamental justice

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protected under section 7 of the Charter that the fault element must correspond with the prohibited act of causing death. In addition, the Court has held that the idea that the accused must take the risk that a victim may unexpectedly die as a matter of determining whether the accused caused death should also be reflected in the fault element of manslaughter. In recent years, however, the Court has articulated the causation requirement as requiring the accused’s acts to be a significant cause of death. It is also now necessary for the Crown to demonstrate that the accused has engaged in a marked departure from standards of reasonable care with regard to negligence-based unlawful acts. It is necessary to demonstrate a marked and substantial departure for manslaughter by criminal negligence.

Although it is technically a sentencing classification, first-degree murder under section 231 of the Criminal Code has been influenced by principles of criminal liability. The courts have recognized that planning and deliberation under section 231(2) may be negated by lesser forms of intoxication or other mental disturbance than the mens rea of requirements of section 229. The courts have followed the traditional presumption of subjective fault by reading in a requirement that the accused must either know or be reckless that the victim was a police officer or other justice official under section 231(4) of the Code. The Supreme Court has interpreted section 231(5) to require stricter causation than in other homicide cases so that the Crown must establish that the accused was a substantial, and not only the...

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