Planned and Deliberate

From Criminal Law Notebook
Jump to: navigation, search

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) at paras 7 to 10
  2. R v McColeman, 1991 CanLII 338 (BC CA), (1991), 5 B.C.A.C. 128 at p. 9
  3. R v Denison 2001 BCCA 703 (CanLII), (2001), 161 BCAC 169 at para 13
  4. e.g. R v MacDonald, 2000 NSCA 60 (CanLII) -- evidence showed offender said "sorry bud" 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, at para 18
  2. R v Jacquard, 1997 CanLII 374 (SCC), [1997] 1 SCR 314 at para 26
  3. R v Widdifield (1961), 6 Crim L.Q. 152 (Ont. H.C.J.)
  4. Widdifield, supra
  5. Nygaard, supra at para 18
  6. Hygaard, supra
    Widdifield, supra
  7. McColeman, supra
    Plewes, supra 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 at para 35
  2. Jacquard, at para 26
  3. Plewes, 2000 BCCA 278 (CanLII)
  4. McColeman, supra at p. 9
  5. Plewes, supra at para 35

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 at para 41
  2. R v Duck, (1993), 85 Man.R. (2d) 91 (C.A.)(*no CanLII links) at paras 36 to 38
  3. R v Bottineau, 2007 CarswellOnt 2330 (ONSC)
    R v Bottineau, 2011 ONCA 194 (CanLII)
    R v Radita, 2017 ABQB 128 (CanLII) at para 150
  4. e.g. Radita, ibid.