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

AuthorKent Roach
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 import-
ant to have a sense of the principles t hat apply to all criminal 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 examin-
ing specif‌ic offences to dist inguish between matters rel ating to the
prohibited act or actus reus and matters relat ing 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, 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 423
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.
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 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 st ate whether or
not the child has breathed, h as an independent circulation, or has h ad
its navel string severed.1 A person ca n commit homicide if he or she
causes injury to a ch ild before or during its birth and the child dies as
a result after becoming a huma n 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
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 th at very
bad treatment that overt akes the initial wound can break the chain of
causation, so that it is unfair to conclude that the accused caused t he
death.5 Sect ion 225 might be vulnerable to Charter cha llenge 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 dr ugs 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).

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