The Special Part: Homicide, Sexual, Property, and Terrorism Offences
| Author | Kent Roach |
| Profession | Faculty of Law and Centre of Criminology. University of Toronto |
| Pages | 338-412 |
338
CHA PTER 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 import-
ant to have a sense of the principles that apply to all criminal 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 criminal law, as well as Charter jurisprudence, has in
rec ent ye ars t ake n a more conte xtu al app roach . The i ncre ased emph asis
on context makes it helpful to have a sense of how the courts interpret
some specific offences. Those parts of the Criminal Cod e that set out
specific offences are often referred to as the special part of the Code.
As discussed in previous chapters, it is important when examining
specific offences to distinguish between matters relating to the pro-
hibited act or actus reus and matters relating to the required fault ele-
ment or mens rea. In addition, there is one defence — provocation — that
belongs to the special part because it only applies 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 only reduces murder to manslaughter.
Any attempt to di scuss the special part, e specially in a book such as
this that is designed to provide a concise introduction to cr iminal law,
must be selective. To this end, this chapter will only examine homicide,
some sexual, some proper ty, and some terrorism offences. Each of these
The Special Par t: Homicide, Sexual, Proper ty, and Terrori sm Offences 339
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 h ave been infor med by contex tual consid erations th at may not nat-
ura lly be disc usse d in th e gener al par t wit h its fo cus on the gen eral p rin-
ciples of criminal liability, excuses, and justifications. Because of their
severity, homicide, sexual, and terrorism 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 infanti-
cide. Section 234 of the Criminal Cod e provides that manslaughter is the
residual offence so that culpable homicide that is not murder or infanti-
cide is manslaughter. All murder convictions carry with them a manda-
tory penalty of life imprisonment, whereas manslaughter without the use
of a firearm and infanticide have no mandatory minimum penalty. Mur-
der is classified as either first or second degree with first-degree murder
under section 231 of the Code generally requiring that the accused 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 imprison-
ment is distinguished from manslaughter or infanticide mainly on the
basis of its higher requirements of subjective fault involving as a min-
imum 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 liv ing state whether or not
the child has breathed, has an independent circulation, or has had its
navel string severed.1 A person can commit 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 of Canad a, R.S.C. 1985, c. C–46, s. 223(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 ac t of birth before the fetus become s
a human being, a s defined in s. 223 with an exem ption for acts done in good
faith to prese rve the life of the mother. This offence i s distinct from infa nticide.
CRIMIN AL LAW340
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 st atutory 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 prop-
er 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 prop-
er 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 inflicted 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 ren-
dered in good faith. A person who stabs another will be responsible for
causing death even though the immediate cause of death might be neg-
ligent treatment of t he 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 ac-
cused must assume responsibility 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 observed that “these statutory provi-
sions and others like them preempt any speculation as to whether the
3 R. v. Younger (2004), 186 C.C.C. (3d) 454 (Man. C.A.). In that ca se, the accused
was also conv icted of first-degree murder under t he stricter requirement th at
his actions wer e the “substantial cau se” 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 convict ion was
upheld when the vict im refused a blood tran sfusion because of her relig ious 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.).
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