The Special Part: Homicide, Sexual, Property, and Terrorism Offences
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology.University of Toronto |
| Pages | 388-471 |
388
CH AP TER 10
THE SPECIAL PART:
HOMICIDE, SEXUAL ,
PROPERTY, AND
TERRORISM OFFENCES
This book has so far provided a n overview of the general principles of
crimina l liability and defences. These principles are sometimes called
the general part of the criminal law because they provide general prin-
ciples, excuses, and justifications that apply to all offences. It is impor-
tant to have a sense of the principles that apply to all crimin al offences.
Such general principles also inform how t he courts interpret the prin-
ciples of fundamental justice found in sect ion 7 of the Charter.
That said, the crimi nal law, as well as Charter jurisprudence, ha s in
recent years taken a more contextual approach. The increa sed empha-
sis on context makes it helpful to have a sens e of how the courts inter-
pret some specific offences. Those parts of the Criminal Code that set
out specific offences are often referred to as the sp ecial part of the Code.
As discussed in previous chapters, it is important when examining
specific offences to disti nguish between matters relating to the prohib-
ited act or actus reus and matters rel ating to the required fault element
or m ens re a. In addition, there is one defence — provocation — that
belongs to the special par t because it applies only when a person is
charged with murder. Unlike the other defences examined in the pre-
vious chapters, a successful provocation defence does not produce an
acquittal: it reduces murder to only manslaughter.
Any attempt to discuss the special part, esp ecially in a book such as
this that is designed to provide a concise introduction to criminal law,
must be selective. To this end, this chapter w ill examine only homicide,
some sexual, some property, and some terrorism offences. Each of these
The Special Par t: Homicide, Sexual, Proper ty, and Terrori sm Offences 389
offences could merit a book in its own right and t here are indeed books
on each of these subjects. The offences examined in this chapter have
been selected because they a re some of the most important offences and
they have been informed by contextu al considerations that may not nat-
urally be discussed in the general part with its focus on the general prin-
ciples of criminal liability, excuses, and justifications. Because of their
severity, homicide, sexual, and terroris m offences are subject to frequent
litigation in the appellate courts and amendment by Parliament.
A. HOMICIDE OFFENCES
There are three homicide offences: murder, manslaughter, and infan-
ticide. Section 234 of the Criminal Code provides th at manslaug hter
is the residual offence so th at culpable homicide that is not murder or
infanticide is manslaughter. All murder convictions carry w ith them a
mandatory penalty of life imprisonment, whereas manslaughter with-
out the use of a firearm and in fanticide have no mandatory minimum
penalty. Murder is classified as either first or second degree with first-
degree murder under section 231 of the Code requiring that the ac-
cused serve twent y-five years in prison before being eligible for parole.
Section 232 provides a defence of provocation that reduces murder to
manslaughter. Murder with its specia l stigma and mandator y penalty
of life imprisonment is distinguished from man slaughter or infanti-
cide mainly on the basi s of its higher requirements of subjective fault
involving as a minimum t he accused’s subjective knowledge that the
victim would die.
1) The Actus Reus of Causing Death
The common actu s reus for all homicide offences is the causing of the
death of a human being. A human bei ng is defined as a child who has
completely proceeded from its mother in a living state whether or not
the child has breathed, has an independent circulation, or ha s had its
navel string severed.1 A person can comm it homicide if he or she causes
injury to a child before or during its bi rth and the child dies as a result
after becoming a human bei ng as defined above.2
1 Criminal Code, R.S.C. 1985, c. C–46, s. 22 3(1) [Code].
2 Ibid., s. 223(2). Section 238 also provide s a separate offence punishable by up t o
life impris onment for causing death in the act of bi rth before the fetus becomes
CR IMIN AL LAW390
a) Statutory Provisions in Homicide Cases
Section 222(1) of the Code prov ides that a person commits homicide
when, directly or indirectly, by any means, he or she causes the death
of a human being. This is a broad definit ion that has been satisfied i n a
case where an accused abducted a child who subsequently was left in
a car and died of hypother mia.3
There are a variety of specific statutor y rules relating to caus ation
in homicide cases. Section 224 provides th at a person is responsible
for a death even though it might have been prevented by resorting to
proper means. This section would apply where victims d ie as a result
of a wound but could have been saved if they had accepted or received
proper medical treatment.4 A person who stabs another in a remote
location will be held respon sible for causing that person’s death even
though the very same wound may not have been life threatening if in-
flicted in a place with medica l facilities.
Section 225 provides that a person who causes a dangerous injury
is responsible for death, notwith standing that the immediate cause of
death is proper or improper treatment rendered in good fa ith. A person
who stabs another will be re sponsible for causing death even though the
immediate cause of death might be negligent treatment of the wound
by a doctor. Indeed, section 225 might be less favourable to the accused
than judge-made common law, which has held that very bad tre atment
that overtakes t he initial wound can break the chain of causation, so
that it is unfair to conclude that the accused caused the death.5
Under section 226, a person is deemed to have caused death even
though the bodily injury t hat results in death accelerates a pre-existing
disease. Thi s provision suggests that an accused must assume responsi-
bility if the victim’s “thin skull” takes the form of a pre-existing disease.
Section 222(5)(c) provides that a person commits homicide when he or
she causes another person by threats, fear of violence, or by deception
to do anything th at causes the person’s death. The Supreme Court has
a human being, a s defined in s. 223 with an exempt ion for acts done in good
faith to prese rve the life of the mother. This offence i s distinct from infant icide.
3 R. v. Younger (2004), 186 C.C.C. (3d) 454 (Man. C.A.). In that case, the accu sed
was also conv icted of first-degree murder under t he stricter requirement th at
his actions wer e the “substantial caus e” of the child’s death. This requi rement
will be ex amined later in thi s chapter.
4 In R. v. Blaue, [1975] 1 W.L.R. 1411 (C.A.), a manslaughter conviction w as
upheld when the victi m refused a blood tran sfusion because of her religiou s be-
liefs. In R. v. Smith (1959), 43 Cr. App. Rep. 121 (C.A.), the accused was held to
have caused de ath even though proper medical t reatment would have probably
saved the vict im’s life.
5 R. v. Jordan (1956), 40 Cr. App. Rep. 152 (C.C.A.).
To continue reading
Request your trial