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

CHAPTER 10

THE SPECIAL PART:

HOMICIDE, SEXUAL,

PROPERTY, AND

TERRORISM OFFENCES

This book has so far provided an overview of the general principles of

criminal 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 the courts interpret the prin-

ciples of fundamental justice found in section 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 increased empha-

sis on context makes it helpful to have a sense 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 distinguish between matters relating to the prohib-

ited act or actus reus and matters relating to the required fault element

or mens rea. In addition, there is one defence — provocation — that

belongs to the special part 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, especially 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 will 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 Offences389

offences could merit a book in its own right and there are indeed books

on each of these subjects. The offences examined in this chapter have

been selected because they are some of the most important offences and

they have been informed by contextual 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 that manslaughter

is the residual offence so that culpable homicide that is not murder or

infanticide is manslaughter. All murder convictions carry with them a

mandatory penalty of life imprisonment, whereas manslaughter with-

out the use of a f‌irearm and infanticide 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 twenty-f‌ive years in prison before being eligible for parole.

Section 232 provides a defence of provocation that reduces murder to

manslaughter. Murder with its special stigma and mandatory penalty

of life imprisonment is distinguished from manslaughter or infanti-

cide mainly on the basis of its higher requirements of subjective fault

involving as a minimum the accused’s subjective knowledge that the

victim would die.

1) The Actus Reus of Causing Death

The common actus reus for all homicide offences is the causing of the

death of a human being. A human being 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 has 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 birth and the child dies as a result

after becoming a human being 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

CRIMIN AL LAW390

a) Statutory Provisions in Homicide Cases

Section 222(1) of the Code provides 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 def‌inition that has been satisf‌ied in a

case where an accused abducted a child who subsequently was left in

a car and died of hypothermia.3

There are a variety of specif‌ic statutory rules relating to causation

in homicide cases. Section 224 provides that 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 die 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 responsible 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 medical facilities.

Section 225 provides that a person who causes a dangerous injury

is responsible for death, notwithstanding 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 treatment

that overtakes the 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 that results in death accelerates a pre-existing

disease. This 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 that 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.).