The Special Part: Homicide, Sexual, Property, and Terrorism Offences

• Author: Kent Roach
• Pages: 422-513

422

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 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 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 examin-

ing specif‌ic offences to distinguish between matters relating to the

prohibited act or actus reus and matters relating to the required fault

element or mens re a. 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

previous 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 Offences423

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 infanti-

cide. 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 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, RSC 1985, c C–46, s 22 3(1) [Code].

2 Ibid, s 223(2). Section 238 also provide s a separate offence punisha ble by up to

life impris onment for causing death in the act of bi rth before the fetus becomes

CRIMIN AL LAW424

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 responsible 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 Section 225 might be vulnerable to Charter challenge as over-

broad or grossly disproportionate to the extent that it holds an accused

who caused a dangerous but relatively minor bodily injury such as a

stabbing accountable for a death that is really caused by grossly im-

proper treatment, such as giving the victim drugs that caused a severe

allergic reaction, though courts have in the past judged causation tests

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 CCC (3d) 454 (Man CA). In that case, the accu sed was

also convicte d of f‌irst-degree murder under the st ricter requirement that hi s

actions were the “sub stantial cause” of the ch ild’s death. This requirement w ill

be exami ned later in this chapter.

4 In R v Blaue, [1975] 1 WLR 1411 (CA), a mansl aughter conviction was upheld

when the victi m refused a blood transf usion because of her religiou s beliefs. In

R v Smith (1959), 43 Cr App Rep 121 (CA), the accused was held to have c aused

death even though prop er medical treatment would h ave probably saved the

victim’s life.

5 R v Jordan (1956), 40 Cr App Rep 152 (CCA).