R. v. Martineau, [1990] 2 S.C.R. 633

Her Majesty The Queen Appellant

v.

Roderick Russell Martineau Respondent

and

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Quebec,

the Attorney General of Manitoba and

the Attorney General of British Columbia Interveners

indexed as: r. v. martineau

File No.: 21122.

1990: March 26; 1990: September 13.

Present: Dickson C.J.* and Lamer C.J.** and Wilson, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

on appeal from the court of appeal for alberta

Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Constructive murder ‑‑ Whether s. 213(a) of the Criminal Code violates ss. 7 or 11(d) of the Charter ‑‑ If so, whether such violation justified under s. 1 of the Charter ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 213(a), (d) ‑‑ Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d).

Criminal law ‑‑ Constructive murder ‑‑ Whether s. 213(a) of the Criminal Code violates ss. 7 or 11(d) of the Charter ‑‑ If so, whether such violation justified under s. 1 of the Charter.

Martineau and a friend, Tremblay, set out armed knowing that they were going to commit a crime; Martineau testified that he thought it would only be a break and enter. Tremblay shot and killed two people after robbing them and their house. Martineau allegedly said or thought, after he heard the shot which killed the first victim, "Lady, say your prayers". As they left, Martineau asked Tremblay why he killed them and Tremblay answered, "They saw our faces". Martineau responded, "But they couldn't see mine 'cause I had a mask on".

Respondent was convicted of second degree murder. The trial judge charged the jury on s. 213(a) and (d) and on s. 21(1) and (2) of the Criminal Code. The Court of Appeal held that s. 213(a) was inconsistent with ss. 7 and 11(d) of the Charter for reasons given in R. v. Vaillancourt and that it was not saved by s. 1 of the Charter. The Court could not conclude that a conviction should be entered pursuant to s. 613(1)(b)(iii) of the Code because the jury had not been not instructed on any portion of s. 212.

The constitutional questions queried whether s. 213(a) of the Criminal Code infringed s. 7 and/or s. 11(d) of the Charter, and if so, whether or not it was justified by s. 1.

Held (L'Heureux‑Dubé J. dissenting): The appeal should be dismissed. Section 213(a) of the Criminal Code infringes both ss. 7 and 11(d) of the Charter and is not justified by s. 1.

Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.: The principles of fundamental justice require that a conviction for murder be based upon proof beyond a reasonable doubt of subjective foresight of death. This appeal was disposed of on the basis of the principle of subjective foresight of death, even though it could have been disposed of on the basis of objective foreseeability.

The introductory paragraph of s. 213(a) expressly removes the Crown's burden of proving beyond a reasonable doubt that the accused had subjective foresight of death. This section is an anomaly as regards the other murder provisions, especially in light of the common law presumption against convicting a person of a true crime without proof of intent or recklessness. In a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to murder should be reserved for those who choose intentionally to cause death or who choose to inflict bodily harm knowing that it is likely to cause death. Requiring subjective foresight of death in the context of murder maintains a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender.

A special mental element with respect to death is necessary before a culpable homicide can be treated as murder and gives rise to the moral blameworthiness that justifies the stigma and punishment attaching to a murder conviction. It is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. Section 213 of the Code expressly eliminates the requirement for proof of subjective foresight and therefore infringes ss. 7 and 11(d) of the Charter.

The objective of deterring the infliction of bodily harm during the commission of certain offences because of the increased risk of death is sufficiently important to warrant overriding a Charter right. The section, however, unduly impairs Charter rights because it is not necessary to convict of murder persons who do not intend or foresee the death in order to achieve this objective.

Since subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained, the phrase "ought to know is likely to cause death" in s. 212(c) of the Code probably infringes ss. 7 and 11(d) of the Charter. Section 212(c) would not likely be saved by s. 1.

Per Sopinka J.: The issue of subjective foresight of death should be addressed only if it is necessary to do so in order to decide this case or if there is an overriding reason making it desirable to do so. Overbroad statements of principle are inimical to the tradition of incremental development of the common law. Here, ruling on the issue of subjective foresight was not necessary for the disposition of this case because R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, applied. Since objective foreseeability of death is a constitutional minimum for the definition of murder, the conclusion must follow that s. 213(a) does not meet this constitutional minimum. This section places a restriction on s. 7 of the Charter by permitting a person to be convicted of murder without proof beyond a reasonable doubt of objective foreseeability of death, or of an equivalent substitute requirement, and cannot be saved by s. 1 for the reasons expressed by Lamer J., as he then was, in Vaillancourt and in the case at bar.

Per L'Heureux‑Dubé J. (dissenting): Section 213(a) does not offend the principles of fundamental justice and accordingly does not violate ss. 7 and 11(d) of the Charter.

Neither the subjective foresight of death test nor the objective foreseeability test violate the principle of fundamental justice. It has been decided in a number of cases, including R. v. Vaillancourt, that subjective foresight of death is not the exclusive standard for murder and no other common law jurisdiction has adopted that standard as the exclusive standard for murder. Significant policy considerations favour upholding the existing legislation.

The invocation of s. 213(a) may not have been necessary in the instant case. The statement, "Lady, say your prayers", whether it was actually said or thought, reflected a mental state of mind sufficient to anchor a charge under s. 212(a) which is the only truly subjective foresight murder provision of the Criminal Code.

The tests of subjective foresight and objective foreseeability are not static or distinct concepts and are not mutually exclusive. In most instances, and certainly those delineated by s. 213(a), death will be both objectively and subjectively foreseeable. The two are profoundly interrelated, especially when dealing with a crime committed during the execution of a predicate crime. The validity of a provision should not be evaluated on a strict "either‑or" approach. A fastidious adherence to prescribed labels becomes particularly obdurate when gauging the constitutionality of legislation.

Vaillancourt settled only two legal questions. First, it established a standard of objective foreseeability of death for the crime of murder. Second, it only disposed of s. 213(d) of the Criminal Code.

The legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. This will be constitutionally valid only if, upon proof beyond reasonable doubt of the substituted element, it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element. Section 213(d) could not meet that test; s. 213(a) does. Section 213(a) is completely different in its historical development in its consistency with the objective foreseeability of death test established in R. v. Vaillancourt and in the parallel provisions adopted in other common law jurisdictions.

An exacting combination of factors must be proven, all beyond a reasonable doubt, before the accused can be found guilty of murder under s. 213(a). The offender must: (1) cause the death by committing a "culpable homicide"; (2) cause the death while committing or attempting to commit one of a limited number of very serious, inherently dangerous and specific intent crimes; (3) intentionally inflict bodily harm while committing one of these offences; (4) inflict the bodily harm purposefully in order to perpetrate the underlying crime or to facilitate escape; and (5) the death must ensue from the bodily harm intentionally inflicted.

No Charter violation of ss. 7 or 11(d) takes place if the test of objective foreseeability has been met. The accused must specifically intend to, and actually commit the underlying offence, and must specifically intend to, and actually inflict bodily harm. The law necessitates conclusive proof beyond a reasonable doubt of factors that are collectively tantamount to an objective foreseeability requirement. The inexorable conclusion is that the resulting death is objectively foreseeable. Neither the presumption of innocence nor the other reference provisions which give content and scope to s. 7 are impugned.

How harm or injury is to be defined and what level of harm or injury is required are matters for Parliament to consider and decide. Many factors enter into the determination of an appropriate penalty for a particular offence; the degree of blameworthiness is only one. So long as Parliament does not act irrationally or arbitrarily or in a manner otherwise inconsistent with the fundamental principles of justice, its choice must be upheld.

Concentration on social "stigma" is overemphasized, and in the great majority of cases, completely inapplicable. The "stigma" and punishment attached to murder need not be proportionate to the mens rea alone. Rather they must correspond to the combination of the physical and mental elements that collectively define a murder.

Cases Cited

By Lamer C.J.

Considered: R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636; referred to: Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299; R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833; R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369.

By Sopinka J.

Applied: R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636.

By L'Heureux‑Dubé J. (dissenting)

R. v. Rodney, [1990] 2 S.C.R. 000; R. v. Logan, [1990] 2 S.C.R. 000; R. v. Arkell, [1990] 2 S.C.R. 000, aff'g (1988), 1988 CanLII 3126 (BC CA), 43 C.C.C. (3d) 402; R. v. Luxton, [1990] 2 S.C.R. 000; R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636; R. v. Munro and Munro (1983), 1983 CanLII 3542 (ON CA), 8 C.C.C. (3d) 260; R. v. Hughes (1942), 1942 CanLII 22 (SCC), 78 C.C.C. 257; R. v. Ashman (1858), 1 F. & F. 88, 175 E.R. 638; R. v. Archibald (1898), 1898 CanLII 124 (ON SC), 4 C.C.C. 159; R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211; R. v. Marshall (1987), 26 A. Crim. R. 259; R. v. Van Beelen (1973), 4 S.A.S.R. 353; Tison v. Arizona, 107 S.Ct. 1676 (1987); Gregg v. Georgia, 428 U.S. 153 (1976); People v. Rose, 227 Cal. Rep. 570 (1986); R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713; Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045; R. v. Guiller, Ont. Dist. Ct., Sept. 23, 1985, unreported.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d).

Crimes Act (New South Wales), s. 18.

Crimes Act 1958 (Victoria).

Crimes Act 1961, 1961 (N.Z.), No. 43, s. 168.

Crimes (Classification of Offences) Act 1981, No. 9576, 1981 (Victoria), s. 3.

Criminal Code, R.S.C. 1970, c. C‑34, ss. 21(1), (2), 205(5)(a), 212(a), (c), 213(a), (b), (c), (d), 214(5), 245.1(2), 613(1)(b)(iii).

Criminal Code, 1913, 1913 (Western Australia), ss. 278, 279.

Criminal Code Act, 1899 (Queensland), 63 Vic., No. 9, s. 302.

Criminal Code Act, 1924 (Tasmania), 14 Geo. V, No. 69, s. 157.

Homicide Act, 1957 (U.K.), 5 & 6 Eliz. 2, c. 11.

Authors Cited

Archbold, John Frederick. Pleading and Evidence. London: R. Pheney and R. Millikin, 1822.

Ashworth, A. J. "The Elasticity of Mens Rea," in C. F. H. Trapper, ed., Crime, Proof and Punishment. London: Butterworths, 1981.

Canada. Senate. Standing Committee on Banking and Commerce. Proceedings of the Standing Committee on Banking and Commerce. Ottawa: Queen's Printer, 1961.

Coke, Sir Edward. The Third Part of the Institutes of the Laws of England, 6th ed. London: W. Rawlins for Thomas Basset, 1680.

Cross, Rupert. "The Mental Element in Crime" (1967), 83 L.Q.R. 215.

Crump, D. and S. W. Crump. "In Defense of the Felony Murder Doctrine" (1985), 8 Harv. J. of L. and P.P. 359.

Edwards, J. Ll. J. "Constructive Murder in Canadian and English Law" (1959), 3 Crim. L.Q. 481.

Gilbert, M. L. "Degrees of Felony Murder" (1983), 40 Wash. & Lee L. Rev. 1601.

Goff, Robert, Lord Goff. "The Mental Element in the Crime of Murder" (1988), 104 L.Q.R. 30.

Gordon, Gerald H. "Subjective and Objective Mens Rea," [1975] 17 Crim. L.Q. 355.

Hart, H. L. A. Punishment and Responsibility. Oxford: Clarendon Press, 1968.

Holmes, Oliver Wendell, Jr. The Common Law. Boston: Little, Brown & Co., 1881.

LaFave, Wayne R. and Austin W. Scott, Jr. Substantive Criminal Law, vol. 2. St. Paul, Minn.: West Publishing Co., 1986.

Lindsay, Peter. "The Implications of R. v. Vaillancourt: Much Ado About Nothing?" (1989), 47 U. of T. Fac. Law Rev. 465.

Mewett, Alan W. & Morris Manning. Criminal Law, 2nd ed. Toronto: Butterworths, 1985.

Stuart, Don. Canadian Criminal Law, 2nd ed. Toronto: Carswells, 1987.

United Kingdom. British Parliamentary Papers "Criminal Law", vol. 6, 1879.

Wells, Celia. "Swatting the Subjectivist Bug", [1982] Crim. L.R. 209.

Wharton, Francis. Wharton's Criminal Law. 14th ed. by Charles E. Torcia. New York: The Lawyers Co‑operative Publishing Co., 1979.

Williams, Glanville. "Convictions and Fair Labelling," [1983] 42 C.L.J. 85.

Williams, Glanville. The Mental Element in Crime. Jerusalem: Magnes Press, The Hebrew University, 1965.

APPEAL from a judgment of the Alberta Court of Appeal (1988), 1988 ABCA 274, 61 Alta. L.R. (2d) 264, 89 A.R. 162, 43 C.C.C. (3d) 417, [1988] 6 W.W.R. 385, allowing the respondent's appeal from a conviction on a charge of second degree murder by Foisy J. sitting with jury. Appeal dismissed, L'Heureux‑Dubé J. dissenting.

Jack Watson, for the appellant.

Philip Lister and Sheila Schumacher, for the respondent.

Bruce MacFarlane, Q.C. and Don Avison, for the intervener the Attorney General of Canada.

W. J. Blacklock and Ken Campbell, for the intervener the Attorney General for Ontario.

Jacques Gauvin, for the intervener the Attorney General of Quebec.

J. G. Dangerfield, Q.C., and Marva J. Smith, for the intervener the Attorney General of Manitoba.

James D. Taylor, for the intervener the Attorney General of British Columbia.

//Lamer C.J.//

The judgment of Dickson C.J and Lamer C.J. and Wilson, Gonthier and Cory JJ. was delivered by

LAMER C.J. -- This is the first of a series of appeals that raises the constitutionality of s. 213(a) of the Criminal Code, R.S.C. 1970, c. C-34, (now s. 230(a), Criminal Code, R.S.C., 1985, c. C-46). The appeal arises as a result of the application to s. 213(a) by the Alberta Court of Appeal of this Court's decision in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, in which s. 213(d) of the Criminal Code was declared of no force or effect because it infringed ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and could not be saved by s. 1 of the Charter.

Facts

The facts of this case are not central to the disposition of this appeal, and therefore, may be briefly summarized as follows. On February 7, 1985 the bodies of James McLean and Ann McLean were found in the bathroom of their home, a trailer, in Valleyview, Alberta. A police investigation led to Martineau and one Patrick Tremblay. Martineau, who was fifteen at the time, was charged with both murders and was transferred to adult court.

Martineau was tried by a judge and jury starting on September 12, 1985. Thirty witnesses gave evidence including the accused. The evidence revealed that Martineau and his friend, Tremblay, had set out one evening armed with a pellet pistol and rifle respectively. Martineau testified that he knew that they were going to commit a crime, but that he thought it would only be a "b and e". After robbing the trailer and its occupants, Martineau's friend Tremblay shot and killed the McLeans.

As they left the trailer, Martineau asked Tremblay why he killed them and Tremblay answered, "they saw our faces". Martineau responded, "But they couldn't see mine 'cause I had a mask on". They drove James McLean's car to Grande Prairie where they abandoned it. The respondent was convicted of second degree murder. The trial judge charged the jury on s. 213(a) and (d) of the Criminal Code and on s. 21(1) and (2) of the Criminal Code.

Judgment Below

Alberta Court of Appeal (1988), 1988 ABCA 274, 61 Alta. L.R. (2d) 264

The respondent's appeal was first heard in September of 1987 on grounds relating to the trial judge's charge to the jury. After the decision of this Court in Vaillancourt, a re-hearing was ordered before a five-person panel of the Court of Appeal. The Court of Appeal held that, given the law as it then stood, the charge to the jury could not be criticized. The Court then considered the impact of Vaillancourt, and stated the following interpretation of that case, at p. 274:

The effect of these passages [from Vaillancourt], in my view, is to emphasize that s. 213(d) offends the Charter, not because Parliament lacks the constitutional power to create a crime, an element of which is unforeseen or unforeseeable death, but because in this case three other factors were present. First, Parliament chose to label the crime as murder. Second, it imposed the same punishment as that provided for an intentional killing. Third, and perhaps most important, that punishment is mandatory life imprisonment, as severe a punishment as is available in Canadian law. The combined effect of these three factors was to proclaim that an unforeseen and unforeseeable killing was the moral equal of an intended killing, a proposition so inaccurate as to be unjust.

The Court of Appeal then drew the following conclusion, at pp. 277-78:

In my opinion, s. 213(a) of the Criminal Code must be held to be inconsistent with ss. 7 and 11(d) of the Charter for the reasons given in Vaillancourt with respect to s. 213(d). The section is not restricted to situations where there was an intention to inflict an injury of a life threatening nature. An accused person may find himself within the ambit of s. 213(a) even though he did not foresee, and could not reasonably have foreseen, that death would likely result from the injury which he intended to inflict.

The Court went on to hold that the section could not be saved by s. 1 of the Charter. Since the jury was not instructed on any portion of s. 212 of the Criminal Code, the Court could not conclude that a conviction should be entered pursuant to s. 613(1)(b)(iii) of the Code. The Court quashed the convictions and ordered a new trial.

Legislation

Criminal Code, R.S.C. 1970, c. C-34, s. 213(a)

213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), section 246 (assaulting a police officer), section 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), 246.3 (aggravated sexual assault), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(a) he means to cause bodily harm for the purpose of

(i) facilitating the commission of the offence, or

(ii) facilitating his flight after committing or attempting to commit the offence,

and the death ensues from the bodily harm;

Issues

The following constitutional questions were stated by Chief Justice Dickson:

1.Does s. 213(a) of the Criminal Code infringe or deny the rights or freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?

2If the answer to question 1 is affirmative, is s. 213(a) justified by s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

Analysis

Parliament, of course, decides what a crime is to be, and has the power to define the elements of a crime. With the advent of the Charter in 1982, Parliament also has, however, directed the courts to review those definitions to ensure that they are in accordance with the principles of fundamental justice. We, as a Court, would be remiss not to heed this command of Parliament. This is an unassailable proposition since the decision of Parliament to entrench into our constitutional framework a Charter of Rights and Freedoms and also the principle that the Constitution is the supreme law of the land. Since 1982, this Court has consistently assumed its duty to measure the content of legislation against the guarantees in our Charter designed to protect individual rights and freedoms. See for example Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486; and R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103.

In R. v. Vaillancourt, supra, s. 213(d) of the Criminal Code was declared of no force or effect because it violated ss. 7 and 11(d) of the Charter. The ratio of Vaillancourt, strictly speaking, was that it is a principle of fundamental justice that before a person could be convicted of murder there must be proof beyond a reasonable doubt of at least objective foreseeability of death. The impugned section in that case did not accord with this principle because it would be possible for a conviction for murder to occur under s. 213(d) despite the jury's having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue.

In Vaillancourt I analyzed a number of matters, including s. 213 of the Code in the context of the other murder provisions, the historical development of s. 213, felony murder provisions in other jurisdictions, the essential elements of certain crimes at common law, and the principles of fundamental justice under the Charter and their application to s. 213 of the Code. As a result of this analysis I concluded that objective foreseeability of death was the minimum threshold test before a conviction for murder could be sustained. I went on to state, however, that it was my view that the principles of fundamental justice require more; they demand that a conviction for murder requires proof beyond a reasonable doubt of subjective foresight of death. The Chief Justice, Estey and Wilson JJ. agreed with that position. I am still of that view today, and indeed, while I agree with the Alberta Court of Appeal and could dispose of this appeal on the basis of objective foreseeability, it is on the basis of the principle of subjective foresight of death that I choose to dispose of this appeal. I choose this route because I would not want this case, a very serious matter, to return to this Court once again on the grounds that there is some doubt as to the validity of the portion of s. 212(c) of the Code that allows for a conviction for murder if the accused "ought to know" that death is likely to result. I need not, therefore, repeat the analysis from Vaillancourt here, except to add some brief observations as regards s. 213(a) and the principle of fundamental justice that subjective foresight of death is required before a conviction for murder can be sustained.

Section 213(a) of the Code defines culpable homicide as murder where a person causes the death of a human being while committing or attempting to commit a range of listed offences, whether or not the person means to cause death or whether or not he or she knows that death is likely to ensue if that person means to cause bodily harm for the purpose of facilitating the commission of the offence or flight after committing or attempting to commit the offence. The introductory paragraph of the section, therefore, expressly removes from the Crown the burden of proving beyond a reasonable doubt that the accused had subjective foresight of death. This section stands as an anomaly as regards the other murder provisions, especially in light of the common law presumption against convicting a person of a true crime without proof of intent or recklessness: R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, at pp. 1309-10, per Dickson J., as he then was.

A conviction for murder carries with it the most severe stigma and punishment of any crime in our society. The principles of fundamental justice require, because of the special nature of the stigma attached to a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime. The effect of s. 213 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender, or as Professor Hart puts it in Punishment and Responsibility (1968), at p. 162, the fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally. The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result: see R. v. Bernard, 1988 CanLII 22 (SCC), [1988] 2 S.C.R. 833, per McIntyre J., and R. v. Buzzanga and Durocher (1979), 1979 CanLII 1927 (ON CA), 49 C.C.C. (2d) 369 (Ont. C.A.), per Martin J.A. In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death. In this regard, I refer to the following works as support for my position, in addition to those cited in Vaillancourt: Cross, "The Mental Element in Crime" (1967), 83 L.Q.R. 215; Ashworth, "The Elasticity of Mens Rea," in Crime, Proof and Punishment (1981); Williams, The Mental Element in Crime (1965); and Williams, "Convictions and Fair Labelling", [1983] 42 C.L.J. 85.

In sum then, I am of the view that a special mental element with respect to death is necessary before a culpable homicide can be treated as murder. That special mental element gives rise to the moral blameworthiness that justifies the stigma and punishment attaching to a murder conviction. For all the foregoing reasons, and for the reasons stated in Vaillancourt, I conclude that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death. That was my position when Vaillancourt was decided, and that is my position today. Therefore, since s. 213 of the Code expressly eliminates the requirement for proof of subjective foresight, it infringes ss. 7 and 11(d) of the Charter.

As regards s. 1 of the Charter, there is no doubt that the objective of deterring the infliction of bodily harm during the commission of certain offences because of the increased risk of death is of sufficient importance to warrant overriding a Charter right. Further, indiscriminately punishing for murder all those who cause death irrespective of whether they intended to cause death might well be thought to discourage the infliction of bodily harm during the commission of certain offences because of the increased risk of death. But it is not necessary in order to achieve this objective to convict of murder persons who do not intend or foresee the death. In this regard the section unduly impairs the Charter rights. If Parliament wishes to deter persons from causing bodily harm during certain offences, then it should punish persons for causing the bodily harm. Indeed, the conviction for manslaughter that would result instead of a conviction for murder is punishable by, from a day in jail to confinement for life. Very stiff sentences for the infliction of bodily harm leading to death in appropriate cases would sufficiently meet any deterrence objective that Parliament might have in mind. The more flexible sentencing scheme under a conviction for manslaughter is in accord with the principle that punishment be meted out with regard to the level of moral blameworthiness of the offender. To label and punish a person as a murderer who did not intend or foresee death unnecessarily stigmatizes and punishes those whose moral blameworthiness is not that of a murderer, and thereby unnecessarily impairs the rights guaranteed by ss. 7 and 11(d) of the Charter. In my view then, s. 213(a), indeed all of s. 213, cannot be saved by s. 1 of the Charter.

The fact that I have based my reasons on the principle of subjective foresight casts serious if not fatal doubt on the constitutionality of part of s. 212(c) of the Code, specifically the words "ought to know is likely to cause death". The validity of s. 212(c) of the Code has not been directly attacked in this appeal, but the Court has had the benefit of hearing argument from the Attorney General of Canada and from the Attorneys General for Alberta, British Columbia, Ontario, Quebec, and Manitoba, who chose to intervene, on the issue of whether subjective foresight or objective foreseeability of death is the constitutionally required minimum mens rea for murder. In my view, subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained, and as a result, it is obvious the part of s. 212(c) of the Code allowing for a conviction upon proof that the accused ought to have known that death was likely to result violates ss. 7 and 11(d) of the Charter. I find further support for this view in the following passage from Professor Stuart's treatise Canadian Criminal Law (2nd ed. 1987), at pp. 217-18, dealing specifically with the objective element of s. 212(c) of the Code and the principle of subjective foresight:

This is a clear instance where our legislation has not kept up with developments in other jurisdictions. We have seen that a similar objective test for murder resorted to by the House of Lords in the notorious decision in Director of Public Prosecutions v. Smith (1960) [[1961] A.C. 290 [1960] 3 All E.R. 161 (H.L.)] was rejected by the British Legislature and by the Australian High Court. Very few jurisdictions, including those in the United States, resort to anything but the subjective approach in defining murder. The only direct parallels to our section 212(c) are to be found in the codes of Queensland, Tasmania, and New Zealand. The wording in these provisions is almost identical to ours except that in New Zealand the words "or ought to have known" were deleted as a result of a quick and firm rejection of Smith. The New Zealand section now reads in part:

... if the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting anyone.

Indeed, Lord Goff in his article "The Mental Element in the Crime of Murder" (1988), 104 L.Q.R. 30, at p. 36, had this to say about the Smith decision and about objective foreseeability as a test for murder:

This decision was very much criticised, by judge and jurist alike. What they disliked about it was that it imposed an objective instead of a subjective test for ascertaining the existence of the relevant mental element for the crime of murder. In due course, it was reversed by statute; later, on an appeal from a jurisdiction where that statute did not apply at the relevant time, Smith was, in effect, held by the Judicial Committee of the Privy Council to have been wrongly decided (see Frankland and Moore v. R.), [1987] 2 W.L.R. 1251. So the objective test was never part of the common law, properly understood; and we can now forget about it. [Emphasis added.]

Although it would be open to save that part of s. 212(c) under s. 1 of the Charter, it seems to me that the attempt would fail for the reasons I have given in respect of the attempt to similarly save s. 213 of the Code. I would therefore answer the constitutional questions as follows:

Q:Does s. 213(a) of the Criminal Code infringe or deny the rights or freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?

A:Yes, the section infringes both ss. 7 and 11(d) of the Charter.

Q:If the answer to question 1 is affirmative, is s. 213(a) justified by s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

A:No.

The only remaining issue is the potential application of s. 613(1)(b)(iii) (now s. 686(1)(b)(iii)) of the Criminal Code. The Court of Appeal for Alberta declined to invoke the section and enter a conviction for the following reason, at p. 279:

The jury in this case was not instructed on any portion of s. 212. I am unable to say that a properly instructed jury must necessarily have found that the appellant had, at some point, the requisite intention under that section rather than being carried along by events.

I agree. In the present case, the respondent was convicted pursuant to a combination of ss. 213 and 21 of the Code. Since in this case the jury was left only with s. 213 which has been declared to be inoperative, a new trial must be ordered. Accordingly, the Court of Appeal's decision quashing the convictions and directing a new trial is affirmed. The appeal is, therefore, dismissed.

//L'Heureux-Dubé J.//

The following are the reasons delivered by

L'HEUREUX-DUBÉ J. (dissenting) -- I have had the opportunity of reading the reasons of Chief Justice Lamer, and with respect, I must dissent. I fully agree with my colleague's characterization, at p. 000, of this Court's "duty to measure the content of legislation against the guarantees in our Charter designed to protect individual rights and freedoms" while however, in my view, the Canadian Charter of Rights and Freedoms is not impermeable to the rights of the collectivity. I also heartily concur with my colleague's assertion that this Court is directed to review, when challenged, Parliament's definitions of the elements of a crime to ensure that they are in accordance with fundamental justice. In my view, however, this Court must stop short of effectively legislating on its own. The question should not be what is the "best" test, but rather what is a constitutionally valid test.

The following constitutional questions were stated by Chief Justice Dickson:

1.Does s. 213(a) [now s. 230(a)] of the Criminal Code infringe or deny the rights or freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?

2.If the answer to question 1 is affirmative, is s. 213(a) justified by s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

The same constitutional questions were stated in R. v. Rodney, [1990] 2 S.C.R. 000, heard concurrently, judgment also rendered concurrently. R. v. Logan, [1990] 2 S.C.R. 000, R. v. Arkell, [1990] 2 S.C.R. 000 and R. v. Luxton, [1990] 2 S.C.R. 000, were also heard and are released concurrently with this appeal. Logan deals with the constitutionality of s. 21(2) of the Criminal Code, R.S.C. 1970, c. C-34, Arkell with s. 214(5) of the Criminal Code, and Luxton with s. 214(5)(e) of the Criminal Code. The latter two appeals also raise the constitutionality of s. 213(a) of the Criminal Code, which is the focus of the present appeal.

Section 213 of the Criminal Code reads as follows:

213. Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), section 246 (assaulting a peace officer), section 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), 246.3 (aggravated sexual assault), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), whether or not the person means to cause death to any human being and whether or not he knows that death is likely to be caused to any human being, if

(a) he means to cause bodily harm for the purpose of

(i) facilitating the commission of the offence, or

(ii) facilitating his flight after committing or attempting to commit the offence,

and the death ensues from the bodily harm;

(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom;

(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom; or

(d) he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his flight after committing or attempting to commit the offence,

and the death ensues as a consequence.

My colleague concludes that s. 213(a) is unconstitutional because it violates ss. 7 and 11(d) of the Charter and cannot be saved by s. 1. In his opinion, the principles of fundamental justice demand that subjective foresight of death be proven beyond a reasonable doubt before a conviction for murder can be secured. I reach a contrary conclusion on the basis that subjective foresight is not the only appropriate standard that can be applied to conform to ss. 7 and 11(d) of the Charter. My reasons are as follows: the test of objective foreseeability of death for the crime of murder does not offend the principles of fundamental justice; this Court's decisions, including R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636, do not commend such a result; the exclusive standard of subjective foresight of death for the crime of murder has found no parallel in other common law jurisdictions; and there are significant policy considerations in favour of upholding the existing legislation.

Before discussing the substantive legal issues, I wish to recall the particular facts of this case. Martineau and a friend, Tremblay, had set out one evening armed with a pellet pistol and rifle. Martineau had the pellet pistol and Tremblay had the rifle. Martineau's testimony is unclear as to when he first saw the rifle. Martineau testified that he knew that they were going to commit a crime which he thought would be a "b & e" (breaking and entering, which is one of the predicate crimes mentioned in s. 213). They forced their way into a trailer and Martineau put a quilt over the occupant, James McLean's head, and Tremblay tied his hands. The female occupant, Ann McLean, then came home and was similarly covered and bound. Martineau testified that as soon as he heard the first shot, he realized that James McLean had been shot. He then either said, or thought, "Lady, say your prayers". He did nothing to stop his friend from proceeding further. Ann McLean was then shot and killed by Tremblay. During cross-examination, Martineau admitted that he knew James McLean had been shot before Ann McLean was shot.

Martineau's testimony did not account for some of the physical evidence in the trailer. There were bullet casings from the rifle and bullet holes showing that it had been fired more often than recounted by Martineau. There was also evidence that there were pools of blood in three rooms of the trailer and that the man had suffered a protracted beating prior to his death and was also probably dragged about.

In the trial judge's charge to the jury both s. 213(a) and (d) were reviewed and the jury was informed that if the Crown could prove the accused was a party then he would be just as guilty as if he had pulled the trigger. After explaining the meaning of aiding and abetting the trial judge proposed to the jury that they proceed in the following sequence: First, consider whether the Crown had proven guilt beyond a reasonable doubt, based upon s. 21(1)(b) and (c), and s. 213(d), with respect to both counts of murder; next, if the Crown's case did not meet that test, they were to consider s. 21(2) as it related to s. 213(d) on both counts; finally, if the Crown did not meet this onus, they were to consider s. 21(1)(a) and (b) in conjunction with s. 213(a), as they related only to the death of the female occupant, Ann McLean. The accused was convicted of two counts of second degree murder.

While s. 21 of the Criminal Code was included in the charge to the jury, its constitutionality is not at issue in this appeal. Section 21 reads:

21. (1) Every one is a party to an offence who

(a) actually commits it,

(b) does or omits to do anything for the purpose of aiding any person to commit it; or

(c) abets any person in committing it.

(2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

The accused's appeal from his convictions was first heard exclusively on grounds relating to the trial judge's charge to the jury. The Court of Appeal (1988), 1988 ABCA 274, 61 Alta. L.R. (2d) 264, found that the judge's charge to the jury was appropriate given the state of the law at the time of trial. However, following this Court's decision in Vaillancourt, a re-hearing was ordered. As a result of Vaillancourt, s. 213(d) had been rendered unconstitutional. It failed to meet the objective foreseeability of death test for the crime of murder. Therefore, only the third component of the trial judge's instructions, s. 213(a) as it applies to the killing of Ann McLean, remains to be examined.

I would like to point out that the invocation of s. 213(a) may not have been necessary. In my view, "Lady, say your prayers", whether it was actually said or thought, reflects a mental state of mind sufficient to anchor a charge under s. 212(a), the only truly subjective foresight murder provision of the Criminal Code:

212. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

However, the prosecution chose to proceed under s. 213(a), and the trial judge charged the jury accordingly. Hence, the necessity to deal with this provision here.

My colleague has chosen to introduce subjective foresight of death as the exclusive standard for the crime of murder. In his view, anything short of that requirement would render a provision constitutionally infirm. Given this inauguration in the criminal law, it may be helpful to discuss both the distinction and the interrelationship between subjective foresight and objective foreseeability.

I. Subjective Foresight v. Objective Foreseeability

Definitionally, a standard of subjective foresight to ground criminal responsibility dictates that:

. . . the trier of fact must determine what was actually going on in the mind of this particular accused at the time in question. This is variously stated as a requirement of awareness, conscious thought, advertence or simply a requirement that the person was actually thinking.

What is vital is that this accused given his personality, situation and circumstances, actually intended, knew or foresaw the consequence and/or circumstances as the case may be. [Stuart, Canadian Criminal Law (2nd ed. 1987), at pp. 121, 123.]

In The Common Law, Holmes discussed objective foreseeability, at pp. 53-54, as follows:

If the known present state of things is such that the act done will very certainly cause death, and the probability is a matter of common knowledge, one who does the act, knowing the present state of things, is guilty of murder, and the law will not inquire whether he did actually foresee the consequences or not. The test of foresight is not what this very criminal foresaw, but what a man of reasonable prudence would have foreseen. [Emphasis added.]

Gordon, "Subjective and Objective Mens Rea", [1975] 17 Crim. L.Q. 355, at p. 359, not only discusses distinctions between subjective foresight and objective foreseeability, but also the interrelationship between them:

. . . what is important in the context of proof of mens rea is that certain objective descriptions of actions are in themselves descriptions of intentional actions, so that once the Crown has proved what happened they have established their case, and need not go on to prove separately the existence of some particular event or condition in the agent's mind. In these cases proof of the external behaviour is proof that he was acting intentionally; his only defence, unless of course he can show he was not a voluntary agent, is to show that the objective description offered by the Crown is incorrect, by producing witnesses who describe as an accident what the Crown witnesses describe as intentional, by showing, e.g., that he did not push the victim but accidentally fell against him. [Emphasis added.]

Furthermore, at p. 368:

We resort to the reasonable man in an endeavour to make it possible for the Crown to prove mens rea. We stress that the reasonable man is only a tool to help us discover the accused man's state of mind; that the law goes no further than to entitle the jury to apply this tool to conclude that the accused had the mens rea of the reasonable man; and that they are not obliged so to conclude. But very often we have nothing other than the reasonable man to guide us, so the difference between the position I have just described, and a rule that the accused may be held to have acted with a particular intent, if any reasonable man must have had that intent, is not a real one. [Emphasis added.]

Mewett & Manning, Criminal Law (2nd ed. 1985) also addresses the association between subjective foresight and objective foreseeability. When assessing the accused's own state of mind, certain inferences may be drawn from the circumstances surrounding the event at issue. As they point out at p. 138:

[The question becomes] whether this is really an objective test or is merely a disguised evidentiary technique for determining what the accused actually foresaw. If the accused were to say that he did not anticipate events that a reasonable man, given the facts as actually appreciated by the accused, would have anticipated, one may wonder whether the jury would have any difficulty in finding that the accused "must have" anticipated them, thus finding not only that a reasonable man would have anticipated them but that the accused actually did appreciate them in spite of what he says.

As Gordon, supra, expressed it, at p. 371:

. . . what is more likely to happen, is that the innocent man will be so nervous and unskilled that he will make a bad witness, while the man the jury believes will be the plausible psychopath. One of the problems of an excessively "subjective" approach is that it is likely to feed what I often fear is an unfounded conceit in our ability to gauge a witness' truthfulness by his demeanor.

Gordon feels that the ultimate distinction is a "moral" one. In some instances, the subjective failure to foresee certain consequences of one's criminal activity may merit greater public opprobrium than the assumption of a foreseen calculated risk of death. This recognition warrants a classification whereby flagrant callous, ruthless, or selfish acts causing death, perpetrated by one whose purpose is already criminal, will be treated more harshly than a mere accidental killing. As Gordon explains at pp. 389-90:

If, then, it is appropriate to classify certain forms of unintentional killing in a way which distinguishes them from grossly negligent killing, what should be the basis of the classification? Well, the main purpose of the classification, perhaps the only purpose since the disappearance of capital punishment, is stigmatization, and the basis of the classification should be, simply, moral guilt. . . . We should distinguish the most heinous, from the not quite so bad, and from the merely venial. And the assessment of moral guilt depends on a view of the whole circumstances, and not on the distinction between the presence or absence of a particular mental event such as the foresight and acceptance of a risk.

. . . any realistic approach to the problem must recognize that what is ultimately in issue is the community's moral judgment on the accused's behaviour, and not the satisfaction of a legal formula. [Emphasis added.]

The above analysis indicates that tests of subjective foresight and objective foreseeability cannot be seen as static or distinct concepts. They are certainly not mutually exclusive. In most instances, and certainly in those limited circumstances delineated by s. 213(a), discussed below, death will be both objectively and subjectively foreseeable. There is a profound interrelationship between the two, especially when dealing with a crime committed during the execution of a predicate crime. The validity of a provision should not be evaluated on a strict "either-or" approach, and a fastidious adherence to prescribed labels becomes particularly obdurate when gauging the constitutionality of Parliamentary legislation.

II. R. v. Vaillancourt

My colleague suggests that Vaillancourt bears potently upon the present appeal. However, Vaillancourt settled only two legal questions, and this critical feature of the decision must be kept in mind before it is applied to any subsequent holdings of this Court. First, Vaillancourt established a standard of objective foreseeability of death for the crime of murder. Second, the decision only disposed of s. 213(d) of the Criminal Code, and no other. Any discussion relating to subjective standards or to the constitutional survival of any other provisions was strictly obiter. Furthermore, to the extent that such discussion did take place, it did so only in one of the four separate opinions rendered.

The facts themselves in Vaillancourt negated mens rea as Vaillancourt testified that, at the time of the robbery during which the killing occurred, he was convinced that his accomplice's gun was unloaded. He had agreed to commit the robbery on the condition that only knives were to be used as weapons. When his accomplice arrived with a gun, Vaillancourt insisted that the bullets be removed, and he subsequently placed these bullets in a glove which was later recovered by the police at the scene and produced at trial. Given these facts, it seems unlikely that Vaillancourt, or any reasonable person in his position, had reason to foresee that anyone would be killed in the course of the robbery. Unlike the accused in the present appeal, Vaillancourt could not have been prosecuted under any provision except for s. 213(d). Section 213(d) did not impose the stringent criteria that must be proven before a conviction under s. 213(a) can be secured. Under section 213(d), death caused by the commission of any of the crimes listed in s. 213 was murder, if

213. . . .

(d) [the offender] uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his flight after committing or attempting to commit the offence,

and the death ensues as a consequence.

Admittedly, under this definition, an offender could theoretically be convicted for murder while only minimally to blame for causing death. No intention to injure, physically impair, or to even use a weapon was required. Under section 213(d), anyone who resisted a police officer during the course of an arrest, and happened to have a weapon on his person which accidentally discharged causing death, would be labelled a murderer. No intentional use of the weapon in any fashion was required.

In Vaillancourt, Lamer J. (as he then was) determined, at p. 654, that:

. . . it is a principle of fundamental justice that, absent proof beyond a reasonable doubt of at least objective foreseeability, there surely cannot be a murder conviction.

Furthermore, my colleague's specific displeasure with s. 213(d) emanated from the possibility that a jury could convict in the shadow of "a reasonable doubt as to whether the accused ought to have known that death was likely to ensue", at p. 657:

. . . if Parliament frames the section so that, upon proof of the conduct, it would be unreasonable for a jury not to conclude beyond a reasonable doubt that the accused ought to have known that death was likely to ensue, then I think that Parliament has enacted a crime which is tantamount to one which has objective foreseeability as an essential element, and, if objective foreseeability is sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way. [Emphasis added].

Hence the proposed test is whether the mens rea requirement under s. 213(d) was such that it must be apparent to the reasonable person in similar circumstances that death was likely to ensue. This mens rea requirement is an essential element that the Crown must prove beyond a reasonable doubt, at p. 656:

. . . the legislature, rather than simply eliminating any need to prove the essential element, may substitute proof of a different element. In my view, this will be constitutionally valid only if upon proof beyond reasonable doubt of the substituted element it would be unreasonable for the trier of fact not to be satisfied beyond reasonable doubt of the existence of the essential element.

Section 213(d) could not meet that test. Section 213(a) does. Section 213(d) had substituted proof of a different element in a manner that could leave a jury in doubt as to the objective foreseeability of the likelihood that death would be caused. Proof beyond a reasonable doubt of objective foreseeability of death was replaced with proof beyond a reasonable doubt of the intention to commit or attempt to commit one of the enumerated predicate crimes, coupled with the intent to use a weapon or have it upon one's person.

In Vaillancourt, Lamer J. found that this was an invalid substitution, and that the objective foreseeability test was not met. He also made obiter remarks, at p. 654, to the effect that:

I am presently of the view that it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.

This notion of "subjective mental element" from the reasons of Lamer J. in Vaillancourt is neither constitutionally mandated nor necessitated by elemental principles of the criminal law. The insistence on a subjective foresight requirement was not germane to the decision in Vaillancourt. The obiter statements were endorsed by only four of the eight Justices who participated in Vaillancourt. Beetz J. (for himself and Le Dain J.), at p. 661, held that:

. . . I do not find it necessary to decide whether there exists a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.

La Forest J. held at p. 665 that:

. . . the principles of fundamental justice require a mens rea reflecting the particular nature of that crime, namely one referable to causing death. In addition to the intention to cause death, this can include a closely related intention such as intention to cause bodily harm likely to result in death combined with recklessness as to that result. [Emphasis added.]

McIntyre J. dissented, and quoted Martin J.A. in R. v. Munro and Munro (1983), 1983 CanLII 3542 (ON CA), 8 C.C.C. (3d) 260, that the required mens rea element "is a matter for Parliament and not for the courts".

The other four Justices also exercised deliberate prudence to address only s. 213(d), and not speak to the other paragraphs under s. 213. As La Forest J. held at p. 665:

It is sufficient to say that the mental element required by s. 213(d) of the Criminal Code is so remote from the intention specific to murder ...if, then that a conviction under that paragraph violates fundamental justice. All the provision requires is an intention to commit another crime and to possess a weapon while carrying out this intention or in fleeing afterwards. The provision is so broad that under it a person may be found guilty of murder even though the death was the result of an accident. [Emphasis added.]

Beetz J., for himself and Le Dain J., held at p. 661:

I agree that s. 213(d) of the Criminal Code does not conform to the principles of fundamental justice. . . . [Emphasis added.]

Recognizing the difference between the two provisions, the discussion of s. 213(a) was reserved for a later day. Today is that day.

III. [Section 213](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)(a) of the [Criminal Code](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html)

Vaillancourt held that s. 213(d) of the Criminal Code violated ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms, and could not be saved by s. 1. Section 213(a) of the Criminal Code is completely different --in its historical development, in its consistency with the objective foreseeability of death test established in Vaillancourt, and in the parallel provisions adopted in other common law jurisdictions.

(a) Historical Background

The historical background to s. 213(a) reveals that it must be analyzed in a fundamentally different manner than s. 213(d). The language of s. 213(a) can be traced as far back as Coke, The Third Part of the Institutes of the Laws of England (6th ed. 1680), where at p. 47, murder was defined as the killing of any human "with malice forethought, either expressed by the party, or implied by Law". By the early part of the nineteenth century the rule had crystallized: if during the commission of an unrelated felony the perpetrator unintentionally killed someone, he was guilty of murder and not merely manslaughter: Archbold, Pleading and Evidence (1822). The British Parliamentary Papers "Criminal Law" 1879, vol. 6, stated at pp. 468-70:

For practical purposes we can make no distinction between a man who shoots another through the head, expressly meaning to kill him, a man who strikes another a violent blow with a sword, careless whether he dies of it or not, and a man who, intending for some object of his own, to stop the passage of a railway train, contrives an explosion of dynamite or gunpowder under the engine, hoping indeed that death may not be caused, but determined to effect his purpose whether it is so caused or not.

The equivalent of section 213(a), (b), and (c) [now s. 230(a), (b), (c)] was incorporated as part of Canada's first Criminal Code in 1892. Paragraph (d) did not exist, nor had it even been recommended by any of the Commissioners' Reports. It did not appear until 55 years later, in the 1947 version of the Criminal Code. It represented an attempt by Parliament to reverse this Court's decision in R. v. Hughes (1942), 1942 CanLII 22 (SCC), 78 C.C.C. 257, that homicide committed by the accidental discharge of a firearm by an accused during a robbery does not amount to murder. One writer has commented that this new amendment was indeed a "strange bedfellow" when compared to the rest of s. 213: Edwards, "Constructive Murder in Canadian and English Law" (1959), 3 Crim. L.Q. 481, at p. 491.

Section 213(a) is much more restrictive than the common law rule. The bodily harm inflicted by the perpetrator must have been done for the purpose of facilitating the commission of the offence or the subsequent flight of the offender. Furthermore, only a narrowly circumscribed list of predicate criminal offences can trigger the application of the section. Under the old common law rule, a killing in the midst of any felony would support a charge of murder.

Admittedly, up until the 1955 version of the Criminal Code, culpable homicide was murder if the accused meant to inflict "grievous" bodily harm for the purpose of facilitating the commission of the underlying offence or flight from it. For "grievous bodily harm", the injury did not have to be "either permanent or dangerous, if it be such as seriously to interfere with comfort or health, it is sufficient": R. v. Ashman (1858) 1 F. & F. 88, 175 E.R. 638; R. v. Archibald (1898), 1898 CanLII 124 (ON SC), 4 C.C.C. 159 (Ont. H.C.); R. v. Bottrell (1981), 1981 CanLII 339 (BC CA), 60 C.C.C. (2d) 211 (B.C.C.A.).

The common law definition of "bodily harm" has been substantially incorporated in s. 245.1(2) of the Criminal Code, and means "any hurt or injury to the complainant that interferes with the health or comfort of the complainant and that is more than merely transient or trifling". As Laycraft C.J. pointed out at the Court of Appeal, at p. 277:

The addition of the word "grievous" to the term merely added the connotation of "serious"; in neither case would the injury necessarily be life threatening.

Senator Hayden, who had served on the committee considering the amended Code in 1953, explained in the Proceedings of the Standing Committee on Banking and Commerce, June 27, 1961, at p. 41:

There would not be any charge unless death resulted, and then there is the bodily harm which caused the death. We felt that "grievous" in most circumstances was only a complication. If a man means to administer or to do bodily harm to the extent that would enable him to commit any of the enumerated offences, and death results, then we felt that that was enough to constitute murder.

Section 213(d) did not require any intent on the part of the perpetrator to do bodily injury. It only required, minimally, that one of the participants possess a weapon which accidentally discharged and caused death. That is a substantially discounted mental element, one much lower than that required under s. 213(a).

(b) Section 213(a) Passes the Objective Foreseeability Test

An exacting combination of factors must be proven, all beyond a reasonable doubt, before the accused can be found guilty of murder under this section. The offender must:

(1)cause the death by means of the commission of a "culpable homicide";

(2)cause the death while committing or attempting to commit one of a limited number of very serious crimes all of which are, by their very nature, inherently dangerous;

(3)intentionally inflict bodily harm while committing one of these inherently dangerous offences, all of which are specific intent crimes;

(4)inflict the bodily harm purposefully in order to perpetrate the dangerous underlying crime or for the purpose of facilitating his flight; and

(5)the death must ensue from the bodily harm intentionally inflicted.

It should be noted that in the present case the underlying offence was committed, and the intent to inflict bodily harm was clear. Moreover, this amalgamation of indispensable prerequisites establishes that this crime, as phrased by Lamer J. in Vaillancourt, is "tantamount to one which has objective foreseeability as an essential element, and, if objective foreseeability is sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way". I am of the view that in light of these requirements, the test of objective foreseeability is sufficient, and that if that test has been met, then no Charter violation has taken place. The above list requires that the accused specifically intend to, and actually commit the underlying offence, and specifically intend to, and actually inflict bodily harm. In my view, the inexorable conclusion is that the resulting death is objectively foreseeable.

Those who are critical of all forms of the "felony-murder" rule base their denunciation on the premise that mens rea is the exclusive determinant of the level of "stigma" that is properly applied to an offender. This appears to me to confuse some very fundamental principles of criminal law and ignores the pivotal contribution of actus reus to the definition and appropriate response to proscribed criminal offences. If both components, actus reus as well as mens rea, are not considered when assessing the level of fault attributable to an offender, we would see manslaughter and assault causing bodily harm as no more worthy of condemnation than an assault. Mere attempts would become as serious as full offences. The whole correlation between the consequences of a criminal act and its retributive repercussions would become obscured by a stringent and exclusive examination of the accused's own asserted intentions.

As stated in Crump and Crump, "In Defense of the Felony Murder Doctrine" (1985), 8 Harv. J. of L. and P.P. 359, at p. 366:

Scholarly criticisms of felony murder have tended to neglect its relationship to proportionality and grading. The criticisms erroneously tend to regard mens rea as the only legitimate determinant of the grade of a homicide resulting from a felony. This reasoning sometimes leads modern writers into the same rigid formalism, divorced from policy, that they rightly reject in historical justifications of the rule. Mens rea is not a "unified field theory" of homicide, and while such a theory might make the subject artificially "logical" or "consistent", it does not reflect our society's more complex understanding of the nature, function, and purpose of the criminal law. The fallacy of this approach is its denigration of actus reus and its failure to include the result of defendant's conduct as a determinant of just disposition. [Emphasis added.]

Having found that an objective foreseeability of death test is sufficient for the crime of murder, I believe that the test has been met in this appeal. Section 213(a) enumerates a catalogue of criteria, all of which must be conclusively demonstrated before a murder conviction can obtain. In this case, the predicate crime was committed, there was a clear intention to effect bodily harm, and such harm did in fact result in the death of Ann McLean.

(c) A Comparative Analysis

This sudden introduction of a subjective foresight standard for the crime of murder is most novel, and finds no parallel in Great Britain, Australia, New Zealand or the United States. While each of these jurisdictions imposes different requirements for the crime of murder, none has adopted the requirement of subjective foresight of death.

(i) England and Scotland

While England did abolish the felony-murder rule in its Homicide Act, 1957 (U.K.), 5 & 6 Eliz. 2, c. 11, murder is still defined to include killings in circumstances that require a mental state short of a subjective foresight of death; causing death while intending to merely inflict grievous bodily harm is sufficient. Furthermore, Lord Goff, while admittedly rejecting a strict objective foreseeability test, in "The Mental Element in the Crime of Murder" (1988), 104 L.Q.R. 30, at p. 58, has advocated that killings in circumstances which manifest "wicked indifference" are properly classified as murder even though at the time of the killing no subjective awareness of the risk of death exists in the killer. This is the law in Scotland and it is "inherently desirable that the crime of murder should be the same both north and south of the River Tweed":

I am . . . urging that English law should adopt the Scottish concept of wicked recklessness. . . . [although] I would prefer to describe the concept as indifference to death.

The reactions of the judges and juries ... demonstrate, I think, a strong feeling that the mental element in murder, restricted to intention -- whether to kill or to cause grievous bodily harm -- is too closely confined to do justice in all cases.

(ii) Australia

Each of the Australian jurisdictions continues to recognize some version of the felony-murder rule. In South Australia, the following mental states constitute the mens rea for murder:

(a)intention to kill;

(b)intention to cause grievous bodily harm;

(c)knowing that the probable consequence of an act is either death or grievous bodily harm and nevertheless committing the act; and,

(d)causing unintended death during the course of certain offences by acts of violence.

R. v. Marshall (1987), 26 A. Crim. R. 259, at p. 266 (Ct. Cr. App. S. Aust.); R. v. Van Beelen (1973), 4 S.A.S.R. 353, at pp. 400-404 (S.C. S. Aust.).

Victoria has similar legislation which was recently amended as follows:

3A. (1) A person who unintentionally causes the death of another person by an act of violence done in the course or furtherance of a crime the necessary elements of which include violence for which a person upon first conviction may, under or by virtue of any enactment, be sentenced to life imprisonment or to imprisonment for a term of 10 years or more shall be liable to be convicted of murder as though he had killed that person intentionally.

(2) The rule of law known as the felony-murder rule (whereby a person who unintentionally causes the death of another by an act of violence done in the course or furtherance of a felony of violence is liable to be convicted of murder as though he had killed that person intentionally) is hereby abrogated. [Emphasis added.]

Crimes Act 1958 (Victoria) as amended by the Crimes (Classification of Offences) Act 1981 (No. 9576, 1981 Statutes of Victoria), s. 3.

In New South Wales murder is defined by s. 18 of the Crimes Act as including killing:

(a)with intent to kill;

(b)with intent to inflict grievous bodily harm;

(c)with reckless indifference to human life;

(d)during or immediately after the commission of a qualifying felony [one punishable by death or life imprisonment].

Queensland, Tasmania, and Western Australia have classified murder in statutory provisions similar to those in the Canadian Criminal Code. They provide that an unlawful killing is murder in the following circumstances:

(1)an intentional killing

Queensland, Criminal Code Act, 1899, 63 Vic., No. 9, s. 302(1)

Western Australia, Criminal Code, 1913, s. 278

[guilty of "wilful murder"]

Tasmania, Criminal Code Act, 1924, 14 Geo. V, No. 69, s. 157(a)

(2)an intention to do the person killed some grievous bodily harm

Queensland, Criminal Code Act, 1899, 63 Vic., No. 9, s. 302(1)

Western Australia, Criminal Code, 1913, s. 279(1)

Tasmania, Criminal Code Act, 1924, 14 Geo. V, No. 69, s. 157(b) ["intention to cause bodily harm which the offender knew to be likely to cause death ... although he had no wish to cause death"]

(3)death caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life

Queensland, Criminal Code Act, 1899, 63 Vic., No. 9, s. 302(2)

Western Australia, Criminal Code, 1913, s. 279(2)

Tasmania, Criminal Code Act, 1924, 14 Geo. V, No. 69, s. 157(c)

[by means of any unlawful act ... which the offender knew or ought to have known, to be likely to cause death in the circumstances, although he had no wish to cause death or bodily harm to any person]

(4)intention to do grievous bodily harm for the purpose of committing certain serious crimes (or the use of a stupefying thing or wilfully stopping breath in the commission of such a crime)

Queensland, Criminal Code Act, 1899, 63 Vic., No. 9, s. 302(3), (4), (5)

Western Australia, Criminal Code, 1913, s. 279(3), (4), (5)

Tasmania, Criminal Code Act, 1924, 14 Geo. V, No. 69 s. 157(1)(d), (e), (f) and s. 157(2)

(iii) New Zealand

New Zealand's definition of murder also includes killings which occur in circumstances not involving subjective foresight of death. Homicide is murder if the offender means to cause grievous bodily injury (or administers a stupefying or overpowering thing or wilfully stops the breath of a person) for the purpose of facilitating the commission of a number of enumerated serious offences or for the purpose of resisting lawful apprehension. In these circumstances a homicide is classified as murder "whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue": New Zealand Crimes Act 1961, 1961 (N.Z.), No. 43, s. 168.

(iv) United States

In the United States the common law notion of felony-murder continues to exist in a modified form in all but three states. Gilbert, "Degrees of Felony Murder" (1983), 40 Wash. & Lee L. Rev. 1601. While a number of jurisdictions have limited the rule by requiring the felony to be inherently violent or by requiring violent means to be used during the course of the felony, the rule still contains no requirement of subjective foresight of death. Apart from certain limits when combined with the death penalty, the United States Supreme Court has consistently upheld the constitutional validity of the felony-murder rule: Tison v. Arizona, 107 S.Ct. 1676 (1987); Gregg v. Georgia, 428 U.S. 153 (1976).

In Substantive Criminal Law (vol. 2, 1986), LaFave and Scott discuss "depraved-heart murder" in {SS} 7.4, at pp. 199-200:

Extremely negligent conduct, which creates what a reasonable man would realize to be not only an unjustifiable but also a very high degree of risk of death or serious bodily injury to another or to others -- though unaccompanied by any intent to kill or do serious bodily injury -- and which actually causes the death of another, may constitute murder.

Wharton's Criminal Law (14th ed. 1979), {SS} 145, at pp. 204, 207-08, addresses the rationale behind the felony-murder rule as follows:

In the typical case of felony-murder, there is no malice in "fact", express or implied; the malice is implied by the "law". What is involved is an intended felony and an unintended homicide. The malice which plays a part in the commission of the felony is transferred by the law to the homicide. As a result of the fictional transfer, the homicide is deemed committed with malice; and a homicide with malice is common law murder.

. . . ordinarily, the doctrine of felony-murder involves an unintended homicide.... Under the most common pattern [of state law], an unintended homicide in the course of certain enumerated felonies constitutes murder in the first degree, and an unintended homicide in the course of some other felony constitutes murder in the second degree. Although the felonies which are enumerated vary from state to state, the ones that seem to have found their way into most statutes are arson, rape, robbery, and burglary. Other felonies, such as kidnapping, mayhem, and forcible sodomy, are often added to the list. What the enumerated felonies always seem to have in common is the element of danger or violence. By holding a felony-murderer strictly accountable, even though the homicide is unintended, the law is attempting to protect innocent lives -- victims, law enforcement officers, bystanders. The law is not attempting merely to deter the commission of dangerous or violent felonies; presumably, the punishment authorized by law for such felonies is sufficiently severe to accomplish that purpose. But rather, the law is attempting to deter the commission of such felonies in a dangerous or violent way. For example, a potential robber may be encouraged to use an unloaded gun, to use a club rather than a gun, to use no weapon at all; or a potential arsonist or burglar may be encouraged to make certain that a target building is unoccupied. [Emphasis added.]

In People v. Rose, 227 Cal. Rep. 570 (1986), the defendant urged that the felony-murder rule is unconstitutional since it lacks both a legitimate deterrent rationale and a legitimate retributive rationale. The court rejected both these arguments, at p. 574:

The Legislature has said in effect that this deterrent purpose [to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit] outweighs the normal legislative policy of examining the individual state of mind of each person causing an unlawful killing to determine whether the killing was with or without malice, deliberate or accidental, and calibrating our treatment of the person accordingly. Once a person perpetrates or attempts to perpetrate one of the enumerated felonies, then in the judgment of the Legislature, he is no longer entitled to such fine judicial calibration, but will be deemed guilty of first degree murder for any homicide committed in the course thereof. [Emphasis added.]

It must be recalled that the felony-murder rule in the United States includes the potential that accidental homicides might be labelled murder. As England abolished this possibility, however remote, so did this Court in Vaillancourt. What remains is a test of objective foreseeability, as well as specific intent for at least two underlying serious and dangerous crimes. The chance that an accidental homicide will be encompassed within this definition has been judicially eliminated.

In conclusion, no other common law jurisdiction has found that fundamental justice is offended by something less than an exclusive subjective foresight standard for the crime of murder. On the whole, s. 213(a) is comprehensively disparate from s. 213(d). It finds enduring support in criminal legislation. It satisfies all the components of the objective foreseeability test established by this Court in Vaillancourt. It is consistent with similar provisions enacted in other common law jurisdictions. For these reasons, I am of the view that s. 213(a) does not offend the principles of fundamental justice, and therefore ss. 7 and 11(d) of our Canadian Charter of Rights and Freedoms have not been violated in the present case.

IV. Policy Considerations

During the 27-year period from 1961-1987, the evidence reveals that 2177 homicide offences occurred during the commission of another criminal act. The percentage of homicide offences committed during the commission of another criminal act has varied from 11.9% in 1965 to 28.4% in 1970. The annual average for the period was 16.7%. See "Homicide in Canada: Offences Committed During the Commission of Another Criminal Act", statistics provided by R.C.M.P. for the period 1961-1987. The homicide offences committed during another criminal act are divided into four categories:

Robbery: includes robbery, theft, and break and enter offences. 1315 victims; 61.7% of all homicide offences committed during another criminal act.

Sexual Assault & Rape: includes all sexual attacks on either males or females. 483 victims; 22.3% of all homicide offences committed during another criminal act.

Escape: involves attempts to escape from correctional institutions or lawful custody, to avoid arrest, or to escape detection as a parole or probation violator. 346 victims; 14.2% of all homicide offences committed during another criminal act.

Other: includes other types of criminal acts such as arson, assault, kidnapping, etc. 33 victims; 1.8% of all homicide offences committed during another criminal act.

These statistics reflect a matter of critical public concern, and sustain the Legislature's compulsion to deliver an appropriate response. It is constitutionally permissible under the Canadian Charter of Rights and Freedoms to define the mental element required for murder with reference to an intention by the perpetrator to harm or injure the victim, with death resulting. How that harm or injury is to be defined, and what level of harm or injury is required are matters for Parliament to consider and decide. As La Forest J. said in R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, at p. 795:

It must be remembered that the business of government is a practical one. The Constitution must be applied on a realistic basis having regard to the nature of the particular area sought to be regulated and not on an abstract theoretical plane.

In this same case, Dickson C.J. noted at p. 782 that:

The courts are not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line. [Emphasis added.]

Dickson C.J. expanded on this notion recently in Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] 1 S.C.R. 927, at p. 990:

Where the legislature mediates between the competing claims of different groups in the community, it will inevitably be called upon to draw a line marking where one set of claims legitimately begins and the other fades away without access to complete knowledge as to its precise location. If the legislature has made a reasonable assessment as to where the line is most properly drawn, ... it is not for the court to second guess. [Emphasis added.]

The criminal law must reconcile two "competing claims" as well. Social protection must be measured against justice to the individual accused. The appropriate balance between these two will certainly vary, and "A monolithic approach to the proper basis of culpability will be unable to respond to the varying nature of that conflict": Wells, "Swatting the Subjectivist Bug", [1982] Crim. L.R. 209, at p. 212.

As Lamer J. held in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 512:

The term "principles of fundamental justice" is not a right, but a qualifier of the right not to be deprived of life, liberty and security of the person; its function is to set the parameters of that right.

Consequently, the principles of fundamental justice are to be found in the basic tenets and principles, not only of our judicial process, but also of the other components of our legal system.

The fact that the principles embraced by s. 213(a) have existed for over 300 years is in itself relevant, though not necessarily determinative, of whether or not a rule of "fundamental justice" has been breached by virtue of their adoption by the Parliament of Canada. In my view, while the guarantee entrenched in s. 7 of the Charter is to have broad application, it cannot go so far as to grant the courts judicial licence to modify or strike down legislation in the absence of a constitutional violation.

Lamer J. infused s. 7 with palpable content in Re B.C. Motor Vehicle Act, at p. 512:

Sections 8 to 14 address specific deprivations of the "right" to life, liberty and security of the person in breach of the principles of fundamental justice, and as such, violations of s. 7. They are therefore illustrative of the meaning, in criminal or penal law, of "principles of fundamental justice"; they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter, as essential elements of a system for the administration of justice which is founded upon the belief in the dignity and worth of the human person and the rule of law. [Emphasis added.]

Of sections 8 to 14, only s. 11(d) is being challenged here. Section 11(d) of the Charter guarantees that:

11. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; . . .

It is difficult for me to see how this right has been violated in the present appeal. The accused has been presumed innocent. His trial was "a fair and public hearing by an independent and impartial tribunal". He was subsequently "proven guilty according to law". The alleged infringement is that the presumption of innocence is displaced by the lack of a subjective foresight requirement. This is just not so. The law as it stands necessitates conclusive proof beyond a reasonable doubt of factors that are collectively tantamount to an objective foreseeability requirement. According to Vaillancourt, this condition does not defeat the presumption of innocence. None of the other reference provisions which give content and scope to s. 7 is impugned. Therefore, in my view, no Charter guarantee has been offended.

Section 213(a) is intended to carve out certain killings and place them in a category of the most serious culpable homicides, murder. This is a designation which Parliament is entitled to ascribe pursuant to its responsibility for the protection of those under its dominion. This legislative objective can be anchored in Parliament's legitimate attempt to deter persons from conduct which falls within s. 213(a). In particular, Parliament is attempting to deter those who commit crimes from intentionally inflicting actual bodily harm on their victims in order to achieve their unlawful purpose. The killings subsumed within s. 213(a) are regarded as sufficiently heinous to warrant being placed in the category of the gravest culpable homicides. Parliament felt that this was the appropriate manner to ensure that the criminal law is in accordance with social values as to the gravity of such killings, and that this was an effective method to preserve the lives and safety of Canadians.

In R. v. Arkell (1988), 1988 CanLII 3126 (BC CA), 43 C.C.C. (3d) 402 (B.C.C.A.), at pp. 412-13, McLachlin J.A. (now of this Court) considered the validity of s. 214(5) (now s. 231(5)). Writing for the British Columbia Court of Appeal -- this Court's decision in Arkell is being rendered concurrently with the present one -- she held that:

. . . it must be recognized that many factors other than the accused's degree of moral blameworthiness must be considered by Parliament in establishing a sentencing scheme. General deterrence, the degree of perceived danger to the public and the prevalence of certain types of offences are only some of the other considerations which Parliament may properly consider. It follows that the mere fact that a harsher sentence may be imposed for one offence than for another offence which is arguably more blameworthy, does not mean that the scheme that permits the sentence violates s. 7 of the Charter.

Many factors enter into the determination of an appropriate penalty for a particular offence; the degree of blameworthiness is only one. The question is one of policy, to be determined by Parliament. So long as Parliament does not act irrationally or arbitrarily or in a manner otherwise inconsistent with the fundamental principles of justice, its choice must be upheld. [Emphasis added.]

I agree completely, and find that the test applies to s. 213(a) as well. If Parliament chooses to label a crime "murder" and attach commensurate penalties, so long as a mens rea requirement is imposed, as it is here, this Court should not lightly interfere with that legislative decision. Mewett & Manning, writing before this Court's decision in Vaillancourt, acknowledged at pp. 544-45 that:

Section 213 [now section 230] and the concept of constructive murder have been much criticized and, in fact, abolished in many jurisdictions. The criticism is that it imposes liability for murder in situations where death was not intended nor even, in some cases, foreseen. But murder is a legal concept; it does not have to be defined in terms of intentional killing, and even under s. 212 [now s. 229] the definition is not this narrow. The policy behind s. 213 is to put the risk of killing a victim during the course of the commission of certain offences upon the offender to a higher degree than if it were merely classified as manslaughter. In any case, with the present distinction between murder punishable by death and murder punishable by life imprisonment now abolished, much of the criticism loses its force. It was the thought of someone being executed for a non-intended homicide that led to the feeling that the definition of murder should somehow be limited to the old common law concept of "murder with malice aforethought". [Emphasis added.]

Parliament can abrogate s. 213 in its entirety and pioneer a strict subjective standard for the crime of murder, but the Constitution does not require that it do so. As McIntyre J. said, dissenting in Vaillancourt, at p. 663:

The principal complaint in this case is not that the accused should not have been convicted of a serious crime deserving of severe punishment, but simply that Parliament should not have chosen to call that crime "murder". No objection could be taken if Parliament classified the offence as manslaughter or a killing during the commission of an offence, or in some other manner. . . .while it may be illogical to characterize an unintentional killing as murder, no principle of fundamental justice is offended only because serious criminal conduct, involving the commission of a crime of violence resulting in the killing of a human being, is classified as murder and not in some other manner. [Emphasis added.]

In R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, Lamer J. cited numerous examples of curial deference to Parliamentary enactments. My colleague then adopted, at p. 1070, the following passage of Borins Dist. Ct. J. from R. v. Guiller, Ont. Dist. Ct., Sept. 23, 1985, unreported:

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency. [Emphasis added.]

In the present appeal, my colleague's justification (at p. 000) for insisting on the narrowest of all possible definitions for the crime of murder is that:

A conviction for murder carries with it the most severe stigma and punishment of any crime in our society. . . . [and] should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death.

The menacing component of "stigma" was discussed in Vaillancourt as well. As Lindsay pointed out in "The Implications of R. v. Vaillancourt: Much Ado About Nothing?" (1989), 47 U. of T. Fac. Law Rev. 465, at p. 472:

It should also be noted that Lamer J. justified a requirement of a "special mental element" based on either the stigma associated with a crime or the penalties available. A murder conviction qualified on both grounds. However, theft can involve penalties as low as an absolute discharge. Thus, the inclusion of theft in Lamer J.'s list of crimes requiring a "special mental element" must have been based on stigma rather than available penalties. [Emphasis added.]

I find this concentration on social "stigma" to be overemphasized, and in the great majority of cases, completely inapplicable. The facts in the present appeals reveal the truly heinous nature of the criminal acts at issue. The concern that these offenders not endure the Mark of Cain is, in my view, an egregious example of misplaced compassion. If the apprehension is that the offenders in question will suffer from their "murderer" label, I suspect they will fare little better tagged as "manslaughterers". Accidental killings cannot, after Vaillancourt, result in murder prosecutions. Only killings resulting from circumstances in which death is, at a minimum, objectively foreseeable will be prosecuted under s. 213(a). Furthermore, the duration of imprisonment, if at all different, will not attenuate the "stigma". To the extent that any such "stigma" can be said to exist, it is at least as palpable upon release to the outside world as it is within the prison environment itself.

The "stigma" and punishment attached to murder need not be proportionate to the mens rea alone. Rather they must correspond to the combination of the physical and mental elements that collectively define a murder. As stated in Crump and Crump, "In Defense of the Felony Murder Doctrine," supra, at pp. 362-63:

The classification and grading of offenses so that the entire scheme of defined crimes squares with societal perceptions of proportionality ... is a fundamental goal of the law of crimes.

The felony murder doctrine serves this goal, just as do the distinctions inherent in the separate offenses of attempted murder and murder, or impaired driving and vehicular homicide. ... [T]he felony murder doctrine reflects the conclusion that a robbery that causes death is more closely akin to murder than to robbery. If this conclusion accurately reflects societal attitudes, and if classification of crimes is to be influenced by such attitudes in order to avoid depreciation of the seriousness of the offense and to encourage respect for the law, then the felony murder doctrine is an appropriate classificatory device. [Emphasis added.]

Recalling all the necessary hurdles which the Crown must prove beyond a reasonable doubt before s. 213(a) can operate, the elements of deterrence as well as retribution become critical. As the Crumps discuss at pp. 370-71:

The conclusion does not follow, however, that felons cannot be deterred, or that criminals are so different from other citizens that they are impervious to inducements or deterrents that would affect people in general. There is mounting evidence that serious crime is subject to deterrence if consequences are adequately communicated. The felony murder rule is just the sort of simple, commonsense, readily enforceable, and widely known principle that is likely to result in deterrence.

The proposition that accidental killings cannot be deterred is inconsistent with the widespread belief that the penalizing of negligence, and even the imposition of strict liability, may have deterrent consequences. [Emphasis added.]

Section 213(a) does not deal with accidental killings, but rather with killings that are objectively foreseeable as a result of the abominable nature of the predicate crimes, committed with specific intent, coupled with the intentional infliction of bodily harm. Given the dual subjective requirement already in place, the deterrence factor is most cogent in these circumstances. Whatever the competing arguments may be with respect to deterring the merely negligent, here we are dealing with those who have already expressly acted with the intent to commit at least two underlying serious crimes. If deterrence is to ever have any application to the criminal law, and in my view it should, this is the place.

Deterrence can neither be analyzed in the abstract nor in isolation from the context of the provision in question. Section 213(a) deals with one who has already proven to be a "hijacker", a "kidnapper", a "rapist", or an "arsonist". Furthermore, this person has already proven willing to cause bodily harm to commit the offence or to enable himself to escape after having committed the offence. In these circumstances, it is certainly appropriate for Parliament to put this person on notice, that if these purposeful acts result in death, you will be charged as a "murderer" as well.

This notion of Parliamentary autonomy cannot be displaced unless a Charter violation has occurred. In my view that has not taken place here. Repeating my colleague's own test, as articulated in Vaillancourt at p. 657, if the legislation is "tantamount to one which has objective foreseeability as an essential element, and, if objective foreseeability is sufficient, then it would not be in violation of s. 7 or s. 11(d) in doing so in that way."

V. Conclusion

Policy considerations in Canada as well as in other jurisdictions have inspired legislation that considers objective foreseeability sufficient as the minimum mens rea requirement for murder. While it may not be the very best test for all cases, it is certainly a constitutionally valid one. Parliament did not have to enact s. 213(a), but that is not the question before this Court. The issue is whether it could. In my view, the answer rests on what level of foreseeability will be required before a conviction for murder can be returned. Based on this Court's precedents, and the principles of fundamental justice, I believe that the objective foreseeability of death test for the crime of murder is constitutionally valid. The additional mandatory elements demanded by s. 213(a) lend even greater force to this conclusion.

Striking down the legislation simply because some other scheme may be preferable would be an unwarranted intrusion into Parliament's prerogative, and would undermine the means it has chosen to protect its citizens. The Charter is not designed to allow this Court to substitute preferable provisions for those already in place in the absence of a clear constitutional violation. Such a task should be reserved for the Law Reform Commission or other advisory bodies. This Court's province is to pronounce upon the constitutionality of those provisions properly before it. The Charter does not infuse the courts with the power to declare legislation to be of no force or effect on the basis that they believe the statute to be undesirable as a matter of criminal law policy. For the aforementioned reasons, I do not believe that s. 213(a) offends the Canadian Charter of Rights and Freedoms.

Therefore, I would allow this appeal, restore the conviction for second degree murder with respect to the death of Ann McLean, and answer the constitutional questions as follows:

Q:Does s. 213(a) of the Criminal Code infringe or deny the rights or freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?

A:No.

Q:If the answer to question 1 is affirmative, is s. 213(a) justified by s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

A:I need not answer this question in light of my answer to the first question.

//Sopinka J.//

The following are the reasons delivered by

SOPINKA J. -- I have had the advantage of reading the reasons of Chief Justice Lamer and Justice L'Heureux-Dubé. I agree with Lamer C.J. that there must be a new trial in this case. I would give the same answers to the constitutional questions as Lamer C.J. but, with respect, I cannot agree with his reasons.

In my view, the issue of subjective foresight of death should be addressed only if it is necessary to do so in order to decide this case or if there is an overriding reason making it desirable to do so. Overbroad statements of principle are inimical to the tradition of incremental development of the common law. Likewise, the development of law under the Canadian Charter of Rights and Freedoms is best served by deciding cases before the courts, not by anticipating the results of future cases.

The first inquiry is whether ruling on the issue of subjective foresight is necessary for the disposition of this case. In my view, the case at bar is governed by the reasons given in this Court's decision in R. v. Vaillancourt, 1987 CanLII 2 (SCC), [1987] 2 S.C.R. 636. The Court need go no further.

In Vaillancourt, the majority of the Court held that s. 213(d) of the Criminal Code, R.S.C. 1970, c. C-34, was unconstitutional. Lamer J. (as he then was), Dickson C.J. and Estey and Wilson JJ. concurring, held that it is a principle of fundamental justice that a person cannot be convicted of murder without proof beyond a reasonable doubt of at least objective foreseeability of the victim's death. La Forest J. held that fundamental justice requires that the mens rea requirement for murder be one referable to causing death. Beetz and Le Dain JJ. agreed with the reasons of both Lamer and La Forest JJ. supporting the conclusion that s. 213(d) of the Criminal Code did not conform to the principles of fundamental justice.

Each of these three sets of reasons stated that it was not necessary to address the issue of whether subjective foresight of death is a constitutional requirement for a valid murder charge. However, Lamer J. (and therefore four of the eight judges participating) adopted the view, in obiter, that subjective foresight of death is indeed the standard demanded by s. 7 of the Charter.

Accepting the majority position in Vaillancourt that objective foreseeability of death is a constitutional minimum for the definition of murder, the conclusion must follow that s. 213(a) does not meet this constitutional minimum. With respect, I cannot agree with the contrary conclusion reached by L'Heureux-Dubé J.

Section 213(a) applies "whether or not the person means to cause death to any human being". It substitutes for proof of these mind-states the requirement that culpable homicide is murder when a person intentionally causes bodily harm and death ensues from the bodily harm, if the harm is caused for the purpose of facilitating the commission of or flight from certain offences. It is not difficult to imagine a case in which the underlying offence is committed, bodily harm is intended, and death ensues which is not objectively foreseeable. For instance, A shoves B out of the way to facilitate flight from a robbery, intentionally inflicting bodily harm in the sense of a non-trivial interference with the health or comfort of B. B unexpectedly missteps as a result of being pushed, falls, strikes his head, and dies. Section 213(a) would label this state of affairs murder, even though there is reasonable doubt that B's death was objectively foreseeable. Section 213(a) therefore offends the principle of fundamental justice described in Vaillancourt.

I conclude that in the case at bar it is clearly not necessary to address the issue of subjective foresight of death to dispose of the case. The question is then whether there is an overriding reason making it desirable to do so.

In Vaillancourt, Lamer J. explicitly narrowed his decision to address only objective foreseeability of death as a constitutional requirement for murder, because otherwise his comments would have had a bearing on sections not challenged in the case, namely ss. 212(c) and 205(5)(a). A significant factor behind this approach was that only the Attorney General for Ontario appeared as intervener in that case. The Attorney General of Canada did not appear, although he may well have done so had ss. 212(c) and 205(5)(a) been raised.

In the case at bar, Lamer C.J. does not narrow the issue to avoid commenting on the validity of s. 212(c); rather he widens the issue in order to cast "serious if not fatal doubt" upon it. He gives two reasons. First, unlike Vaillancourt there was wide participation by the Attorneys General. The Attorneys General of Canada, Ontario, Quebec, Manitoba and British Columbia intervened on the issue of whether subjective foresight or objective foreseeability of death is the constitutionally required minimum mens rea for murder. Second, justice would not be served if this case were to return to this Court a second time on the ground that there is doubt as to the validity of s. 212(c).

In my view, it is dangerous to justify a wider scope of decision in this case than in Vaillancourt by reason of the participation of a greater number of Attorneys General. If the fact of their participation puts at risk a wider range of legislation, this practically creates a disincentive to the exercise of their right to intervene. A more important consideration is that it is not strictly accurate to state that the Attorneys General intervened on the issue of whether subjective foresight or objective foreseeability is the constitutionally required minimum mens rea for murder. While this was, of course, canvassed, the focus of argument was on whether s. 213(a) met constitutional standards or whether it could be justified under s. 1, in distinction from s. 213(d). I am not convinced that the submissions of the Attorneys General, not to mention the parties, would have been the same had s. 212(c) or other sections been challenged.

Admittedly, it is an important function of this Court to provide guidance to lower courts. In the context of this case, it would also be desirable that the validity of s. 212(c) be known with certainty for the purposes of the new trial. However, this desirable result does not outweigh the importance of deciding on the validity of s. 212(c) in a case where it is directly in issue and is fully argued by the parties.

I would therefore limit myself to the conclusion that s. 213(a) is unconstitutional because (i) it places a restriction on s. 7 of the Charter by permitting a person to be convicted of murder without proof beyond a reasonable doubt of objective foreseeability of death, or of an equivalent substitute requirement, and (ii) for the reasons expressed by Lamer C.J. in Vaillancourt and in the case at bar, it cannot be saved by s. 1. Other constitutional issues with respect to the murder provisions of the Criminal Code I would leave for another day.

Appeal dismissed, L'HEUREUX‑DUBÉ J. dissenting.

Solicitor for the appellant: Jack Watson, Edmonton.

Solicitor for the respondent: Philip G. Lister, Edmonton.

Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.

Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto.

Solicitor for the intervener the Attorney General of Quebec: The Department of Justice, Ste‑Foy.

Solicitor for the intervener the Attorney General of Manitoba: The Attorney General of Manitoba, Winnipeg.

Solicitor for the intervener the Attorney General of British Columbia: The Attorney General of British Columbia, Victoria.

• Chief Justice at the time of hearing.

** Chief Justice at the time of judgment.