WDW225 Lecture 7 11/01/2012
Mens Rea Continued
Mens Rea – Recap
Mens Rea can relate to
1. The prohibited act
2. The prescribed consequence
3. The prescribed circumstances
Objective Mens Rea Subjective Mens Rea
What would reasonable person What did the accused know
know, understand, intend? understood or intended?
What did the accused knew or What was in the mind of the
ought to have known? accused at the time?
No need for the Crown to prove Not sufficient to prove the
what the accused actually knew, accused ought to have known
understood, intended or ought to have understood
STEP 1: Is there a homicide (s. 222)?
s. 222(1) A person commits homicide when, directly or indirectly, by any means he
causes the death of a human being
STEP 2: Is the homicide culpable (s. 222)? Manslaughter the lowest culpability
s. 222(5) A person commits culpable homicide when he causes the death of a human
(a) By means of an unlawful act
(b) By criminal negligence
* Must prove that the homicide was at least manslaughter (killing someone kill someone
that you don’t mean to kill them) to further prove that it was murder.
STEP 3: Is it murder (s. 229 + s. 230)?
s. 229 – Culpable homicide is murder
(a) where the person who causes the death
(i) means to cause his death, or
(ii) means to cause him bodily harm that he knows is likely to cause
death, and is reckless whether death ensues or not;
*Ones intention can change from manslaughter to murder
(c) where a person, for an unlawful object, does anything that he knows or ought
to know is likely to cause death and causes death (whether or not he wanted to kill or cause
Mens Rea and Murder
STEP 3: Is it murder continued (s. 230)?
s. 230 – Culpable homicide is murder where a person causes the death of a human being
while committing or attempting to commit one of the enumerated offences
assault a peace officer, sexual assault, kidnapping, forcible confinement,
robbery, break and enter, 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
(a) he means to cause bodily harm for the purpose of facilitating the offence or his
flight and death ensues
(d) he uses a weapon or has it upon his person during the offence or flight and death
ensues as a consequence
STEP 4: Is it first or second degree murder (s. 231)?
s. 231 (2) Murder is first degree murder when it is planned and deliberate
(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 peace officer...
(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 (includes hijacking, sexual assault, kidnapping
Manslaughter > second degree murder > first degree murder (planned and deliberate)
*Mens Rea and Murder
STEP 1: Is there a homicide (s. 222)?
STEP 2: Is the homicide culpable (s. 222)?
All culpable homicide is manslaughter
STEP 3: Is it murder (ss. 229 and 230)?
STEP 4: Is it first degree murder (s. 231)?
Mens rea and the Charter
Section 7 of the Charter: Everyone has the right to life, liberty and security of the person
and the right not to be deprived thereof except in accordance with the principles of
Section 7 REQUIRES that all criminal offences (which carry risk of a deprivation of liberty)
must have a mens rea requirement
R. v. Vaillancourt (1987, S.C.C.)
FACTS: armed robbery at a pool hall; Vaillancourt had a knife; co-accused had a gun;
Vaillancourt thought co-accused’s gun was not loaded; Vaillancourt stayed at the front; co-
accused shot the victim; convicted of 2 degree murder (s229/230 c)
(1) is objective foreseeability a permissible form of mens rea for murder?
(2) does s. 7 require subjective mens rea for some offences?
(3) can/should we substitute intent to commit the “unlawful purpose” for intent to
- Something less than subjective foresight of the result may be sufficient for some
- Special nature of the stigma attached to a conviction or the available penalty, the
principles of fundamental justice require subjective mens rea o Theft
- Principles of fundamental justice require subjective mens rea (or subjective foresight)
- Objective mens rea in s. 229(c) is unconstitutional
- Most offences (criminal) subjective mens rea is not required
- Most offences objective mens rea will be sufficient to the CCRF
What about substitute mens rea in s. 230(d)?
o murder = accused uses a weapon during the offence and death ensues
whether or not the person means to cause death
o does not have to prove mens rea for murder
o Crown just has to prove mens rea for intentionally carrying weapon
o PROBLEM – does not require proof of objective OR subjective foreseeability
o violates s. 7 of the Charter
R. v. Martineau
- Martineau and Tremblay engaged in a break and enter
- Martineau had a pellet gun and Tremblay had a rifle;
- Tremblay shot and killed the occupants
- Martineau asked him why he killed them and Tremblay said “they saw our faces”
Charged under s. 230(a) – culpable homicide is murder if death is caused during the course
of committing break and enter regardless of whether or not he means to cause death or
knows death is a likely consequence
ISSUE: does s. 230(a) violate s. 7 of the Charter?
s. 230 (a) does not require subjective foresight of death
punishment must be proportionate to the moral blameworthiness of the
stigma and punishment for murder only justified because of proof of
no objective mens rea permissible for murder
the crown must prove subjective forsight
Does s. 7 require subjective mens rea for manslaughter?
Manslaughter = culpable homicide where death is caused by
(a) unlawful act
Manslaughter carries no mandatory minimum penalty
R.v. Creighton (1993, SCC)
FACTS: “unlawful act manslaughter”
- Purchased an “eight ball” of cocaine
- Injected cocaine into the deceased arm - Deceased consen