Planned and Deliberate

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2018. (Rev. # 85413)

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]

  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)

"Planned"

A "planned" murder refers to one that is "conceived and carefully thought out prior to being committed".[1]

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
  2. ↑ R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, per Lamer CJ, at para 26
  3. ↑ R v Widdifield (1961), 6 Crim L.Q. 152 (Ont. H.C.J.)(*no CanLII links)
  4. ↑ Widdifield, supra
  5. ↑ Nygaard, supra, at para 18
  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]

  1. ↑ R v More, 1963 CanLII 79 (SCC), [1963] SCR 522, per Cartwright J and Judson J , at para 35
  2. ↑ R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314, per Lamer CJ, at para 26
  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

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.
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