Planned and Deliberate

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 92475)

General Principles

First degree murder under s. 231(2) must be "planned and deliberate."[1]

It must be more than simply the "intention to cause death."[2]

There must be more than a "bare sufficiency of evidence" on planning and deliberation.[3]

There does not need to be care consideration of acts. Planning and deliberation can be made out by evidence of even a brief moment of consideration before the act.[4]

The analysis must be considered with the "mental processes" of the accused in "relation to that crime."[5] This includes consideration of the "whole of the evidence" such as his "actions, his conduct, his statements, and his capacity and ability to plan and deliberate."[6] Usually the evidence will come from circumstantial evidence.[7]

While they are distinct elements, there will be overlap in the evidence supporting deliberation, planning and intent.[8]

Post-offence conduct should generally not be used to prove level of intent of the accused, including whether there was planning and deliberation.[9]

  1. s. 231(2) and R v PK, 2006 ABCA 284 (CanLII), 213 CCC (3d) 538, per Hunt JA, at paras 7 to 10
  2. R v McColeman, 1991 CanLII 338 (BCCA), 5 BCAC 128, per McEachern JA, at p. 9
  3. R v Denison, 2001 BCCA 703 (CanLII), 161 BCAC 169, per Ryan JA, at para 13
  4. e.g. R v MacDonald, 2000 NSCA 60 (CanLII), 573 APR 1, per Chipman JA (evidence showed offender said "sorry mate" before killing, and admitted doing it in front of a witness whom he trusted)
  5. R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471, 479, [1965] 1 CCC 155
  6. Mitchell, ibid.
  7. Robinson, 2017 ONCA 645 (CanLII), 352 CCC (3d) 503 at para 36
    Mitchell, 483
    MMK at para 10
    R v Roebuck, 2024 ABCA 143 (CanLII), per curiam, at para 34
  8. R v Aalders, 1993 CanLII 99 (SCC), [1993] 2 SCR 482, 504, 82 CCC (3d) 215(complete citation pending)
    R v Hermkens, 2021 ABQB 1016, para 1050
    R v Howard, 1989 CanLII 99 (SCC), [1989] 1 SCR 1337, 1361, 48 CCC (3d) 38, L’Heureux-Dubé J (in dissent but not on this point). Roebuck, supra at para 38
  9. R v Jaw, 2009 SCC 42 (CanLII), [2009] 3 SCR 26, at para 39
    Post-Offence Conduct

"Planned"

A "planned" murder refers to one that is "conceived and carefully thought out prior to being committed."[1] Even an intentional murder with forethought that falls short of being "conceived and carefully thought out" is not "planned".

It must have "a design or scheme be arranged beforehand."[2]

There must be contemplation as to the "nature and consequences" of the plan.[3]

As far as time is a consideration the focus is on the "time involved in developing the plan" and not the time between planning and execution.[4] However, it can be "simple and need not necessarily be in place for a long period of time."[5] Nor does it need to be a complicated plan.[6]

The plan "may be simple, and the time needed not be long."[7] But the killing must be "done after real consideration, and not suddenly or impulsively."[8]

The time between the planning and execution is generally not important.[9]

  1. R v Nygaard, 1989 CanLII 6 (SCC), [1989] 2 SCR 1074, per Cory J, at para 18
    R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, para 26, 113 CCC (3d) 1(complete citation pending)
    R v Ally, 2022 ONCA 558, para 43, 417 CCC (3d) 1(complete citation pending)
  2. R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, per Lamer CJ, at para 26
    MMK at para 8
  3. R v Widdifield (1961), 6 Crim L.Q. 152 (Ont. H.C.J.)(*no CanLII links)
  4. Widdifield, supra
    Nygaard ("[t]he important element...so far as time is concerned, is the time involved in developing the plan, not the time between the development of the plan and the doing of the act")
    R v Roebuck, 2024 ABCA 143 (CanLII), per curiam, at para 29
  5. Nygaard, supra, at para 18 or 1086 (SCR)
    MMK, para 10
    R v Plewes, 2000 BCCA 278, paras 35, 38, 144 CCC (3d) 426
    See also R v Henderson, 2012 MBCA 93, paras 2, 128-134, [2013] 2 WWR 457, leave ref’d (2013), 453 NR 397n (SCC)
    R v Fraser, 2016 BCCA 89, paras 9, 79, 84, 85, 383 BCAC 260
  6. Hygaard, supra
    Widdifield, supra
  7. McColeman, supra
    R v Plewes, 2000 BCCA 278 (CanLII), 144 CCC (3d) 426, per Esson JA, at para 35
  8. McColeman, supra
  9. Plewes, supra

"Deliberate"

A "deliberate" murder is not impulsive. It must be a considered act[1] where "he thinks about the consequences and carefully thinks out the act, rather than proceeding hastily, rashly or impulsively"[2] It's "considered", "not impulsive", "cautious" and "slow in deciding" where the accused weighed the advantages nad disadvantages of his intention to act.[3] It connotes "a studied decision to kill reached after reflection for an appropriate time--a time sufficient to eliminate a sudden decision produced by impulse, passion, or emotion."[4] It is a "calculated scheme or design which has been carefully thought out, and the nature and consequences of which have been considered and weighed."[5]

There is no requirement that the consideration be "rational" or be the result "reasonable or normal thinking or must be rationally motivated."[6]

  1. R v More, 1963 CanLII 79 (SCC), [1963] SCR 522, per Cartwright J and Judson J , at para 35
    MMK, para 9 ("A deliberate murder is one that is considered, not impulsive. A person commits deliberate murder when he thinks about the consequences and carefully thinks out the act, rather than proceeding hastily, rashly or impulsively.")
  2. R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, per Lamer CJ, at para 26
    Nygaard at para 43 (deliberation means "not impulsive, slow in deciding, cautious, implying that the accused must take time to weigh the advantages and disadvantages of his intended action")
    MMK, para 9 A deliberate murder is one that is considered, not impulsive. A person commits deliberate murder when he thinks about the consequences and carefully thinks out the act, rather than proceeding hastily, rashly or impulsively.")
    Jacquard, para 26
    Nygaard, 1084
    and Ally, para 43
  3. R v Plewes, 2000 BCCA 278 (CanLII), 144 CCC (3d) 426, per Esson JA
  4. McColeman, supra, at p. 9
  5. Plewes, supra, at para 35
  6. R v Roebuck, 2024 ABCA 143 (CanLII), per J, at para 32
    R v Kirkby (1985), 1985 CanLII 3646 (ON CA), 21 CCC (3d) 31, 67 (Ont CA), leave ref’d [1986] 2 SCR vii

Impairments

Where a person is intoxicated, has a psychiatric illness or was provoked, any number of these circumstances are capable of raising doubt on whether the criminal act was "planned and deliberate."[1]

  1. R v Wallen, 1990 CanLII 146 (SCC), [1990] 1 SCR 827, per Lamer J

Proof

The elements of "planned and deliberate" can be proven on by circumstantial evidence.[1] However, it cannot be equivocal or speculative of whether it was "planned and deliberate."[2]

Omission

Omissions may serve as a basis to find an unlawful killing including murder.[3] Intentional neglect of a child with medical needs can amount to planned and deliberate intention to kill that child.[4]

  1. R v Mitchell, 1964 CanLII 42 (SCC), [1964] SCR 471, per Spence J, at para 41
  2. R v Duck, (1993), 85 Man.R. (2d) 91 (CA)(*no CanLII links) , at paras 36 to 38
  3. R v Bottineau, 2007 CanLII 13358 (ON SC), 2007 CarswellOnt 2330 (ONSC), per Watt J
    R v Bottineau, 2011 ONCA 194 (CanLII), 269 CCC (3d) 227, per curiam
    R v Radita, 2017 ABQB 128 (CanLII), per Horner J, at para 150
  4. e.g. Radita, ibid.

See Also