Murder by Unlawful Act or Object
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General Principles
First degree murder is defined under s. 231 as any murder that is "planned and deliberate" or any murder that relates to one or more enumerated unlawful acts listed in s. 231(3), (4), (5), (6), (6.01), and (6.1).These categories are sometimes considered the "constructive" form of murder.
- Causation
Any instance of constructive first degree murder has an added element to the offence that the accused was a "substantial cause" of death.[1]
- Foreseeability
There must be "subjective foresight of the likelihood of death." [2]
- ↑
R v Harbottle, 1993 CanLII 71 (SCC), [1993] 3 SCR 306, per Cory J at pp. 323-324
see also Causation#Causation in Homicide - ↑ R v Roks, 2011 ONCA 618 (CanLII), 284 CCC (3d) 510, per Watt JA
Types of Constructive Murder
Contract Murder
s. 231
[omitted (1) and (2)]
- Contracted murder
(3) Without limiting the generality of subsection (2), murder is planned and deliberate when it is committed pursuant to an arrangement under which money or anything of value passes or is intended to pass from one person to another, or is promised by one person to another, as consideration for that other’s causing or assisting in causing the death of anyone or counselling another person to do any act causing or assisting in causing that death.
[omitted (4), (5), (6), (6.01), (6.1), (6.2) and (7)]
A contract murder is deemed to be planned and deliberate where there is:
- a murder;
- the murder "is committed pursuant to an arrangement";
- the arrangement involves "money or anything of value passes or is intended to pass from one person to another", or "is promised by one person to another"; and
- the money is "consideration for that other’s causing or assisting in causing the death of anyone or counseling another person to do any act causing or assisting in causing that death".
The requirement that the murder be "pursuant to an arrangement" must include an arrangement "in place at the time of the murder".[1]
- ↑ R v Smith, 2007 NSCA 19 (CanLII), 216 CCC (3d) 490, per Cromwell JA, at paras 137 and 139
Murder of an Officer, Sheriff or Guard
s. 231
[omitted (1), (2) and (3)]
- Murder of peace officer, etc.
(4) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the victim is
- (a) a police officer, police constable, constable, sheriff, deputy sheriff, sheriff’s officer or other person employed for the preservation and maintenance of the public peace, acting in the course of his duties;
- (b) a warden, deputy warden, instructor, keeper, jailer, guard or other officer or a permanent employee of a prison, acting in the course of his duties; or
- (c) a person working in a prison with the permission of the prison authorities and acting in the course of his work therein.
[omitted (5), (6), (6.01), (6.1), (6.2) and (7)]
R.S., 1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9, c. 41, s. 9; 2009, c. 22, s. 5.
Hijacking, sexual assault or kidnapping
First degree murder can be found in certain forms of "crimes of domination" such as those in s. 231(5).[1]
231.
[omitted (1), (2), (3) and (4)]
- Hijacking, sexual assault or kidnapping
(5) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder in respect of a person when the death is caused by that person while committing or attempting to commit an offence under one of the following sections:
- (a) section 76 (hijacking an aircraft);
- (b) section 271 (sexual assault);
- (c) section 272 (sexual assault with a weapon, threats to a third party or causing bodily harm);
- (d) section 273 (aggravated sexual assault);
- (e) section 279 (kidnapping and forcible confinement); or
- (f) section 279.1 (hostage taking).
[omitted (6), (6.01), (6.1), (6.2) and (7)]
R.S., 1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9, c. 41, s. 9; 2009, c. 22, s. 5.
- Forcible Confinement
For unlawful confinement to be an underlying offence to murder, there must be:[2]
- that a distinct act of confinement and the distinct act of killing must be sufficiently close in time to be part of the "same transaction or series of events" and
- that they cannot be so closely connect that they are coextensive, that the confinement is consumed in the killing, that they are one and the same.
- Appeal
Whether a confinement actually occurred on the facts is a question of mixed fact and law and should be "subject to deference on appeal".[3]
- ↑
R v Magoon, 2016 ABCA 412 (CanLII), AJ No 1349, per Paperny JA (2:1), at paras 100 to 103
R v Pritchard, 2008 SCC 59 (CanLII), 236 CCC (3d) 301, per Binnie J, at para 19
R v Paré, 1987 CanLII 1 (SCC), [1987] 2 SCR 618, per Wilson J, at para 33
- ↑
R v Menard, 2009 BCCA 462 (CanLII), 281 BCAC 14, per curiam - re. 231(5)(e)
- ↑
Magoon, supra, at para 106
Criminal Harassment
231
[omitted (1), (2), (3), (4) and (5)]
- Criminal harassment
(6) Irrespective of whether a murder is planned and deliberate on the part of any person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 264 [criminal harassment] and the person committing that offence intended to cause the person murdered to fear for the safety of the person murdered or the safety of anyone known to the person murdered.
[omitted (6.01), (6.1), (6.2) and (7)]
R.S., 1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9, c. 41, s. 9; 2009, c. 22, s. 5.
[annotation(s) added]
Terrorist Activity
231.
[omitted (1), (2), (3), (4), (5) and (6)]
- Murder — terrorist activity
(6.01) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament if the act or omission constituting the offence also constitutes a terrorist activity.
[omitted (6.1), (6.2) and (7)]
R.S., 1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9, c. 41, s. 9; 2009, c. 22, s. 5.
Criminal Organization
231.
[omitted (1), (2), (3), (4), (5), (6) and (6.01)]
- Murder — criminal organization
(6.1) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when
- (a) the death is caused by that person for the benefit of, at the direction of or in association with a criminal organization; or
- (b) the death is caused by that person while committing or attempting to commit an indictable offence under this or any other Act of Parliament for the benefit of, at the direction of or in association with a criminal organization.
[omitted (6.2) and (7)]
R.S., 1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9, c. 41, s. 9; 2009, c. 22, s. 5.
Intimidation
231.
[omitted (1), (2), (3), (4), (5), (6), (6.01) and (6.1)]
- Intimidation
(6.2) Irrespective of whether a murder is planned and deliberate on the part of a person, murder is first degree murder when the death is caused by that person while committing or attempting to commit an offence under section 423.1.
[omitted (7)]
R.S., 1985, c. C-46, s. 231; R.S., 1985, c. 27 (1st Supp.), ss. 7, 35, 40, 185(F), c. 1 (4th Supp.), s. 18(F); 1997, c. 16, s. 3, c. 23, s. 8; 2001, c. 32, s. 9, c. 41, s. 9; 2009, c. 22, s. 5.