R.+c.+Martineau

sorry this is late!
R. v. Martineau: M was tried starting in 1985. Evidence showed that M and T had set out with a pellet pistol and rifle respectively. M said that they knew they would commit a crime, but thought it would only be a “b” and “e”. After robbing the Mcleans, T shot them. M asked why. T said it was because they had seen their faces. M responded that he had been masked, and that they could not have seen his. Both drove James McLean’s car to Grand Prairie and abandoned it. Respondent convicted of second degree murder. **History**: Respondent’s appeal heard in 1987. Court of Appeal held that s. 213(a) of Criminal Code was inconsistent with s. 7 and 11d of Charter. Court held that it could not be saved by s. 1. **Legislation:** //Criminal Code//, R.S.C. 1970, c. C-34, s. 213( //a// ) ( //a// ) he means to cause bodily harm for the purpose of (i) facilitating the commission of the offence, or  (ii) facilitating his flight after committing or attempting to commit the offence, and the death ensues from the bodily harm; **Reasoning**: //__ Dickson __// : In R. v. Vaillancourt, 213d. was stated to conflict with s. 7 and 11 of the Charter. “ The //ratio// of //Vaillancourt//, strictly speaking, was that it is a principle of fundamental justice that before a person could be convicted of murder there must be proof beyond a reasonable doubt of at least objective foreseeability of death.” à Objective foreseeability of death= minimum threshold test before murder conviction can be sustained. Principle of fundamental justice requires **more:** proof beyond a reasonable doubt. *Need for //mens rea// in murder cases. Need for “subjective foresight” of murder is to ensure that stigma of murder [the most severe of all convictions] is reserved for those who intentionally cause death, i.e. so that they are aligned with the moral blameworthiness of the offender. *special “moral element” gives rise to moral blameworthiness= stigma of ‘murder’ conviction. * This means that all of s. 213 cannot be saved. à Both questions, then, should be answered in the negative. //__ L’Heureux Dube __// :: *arrives at a different conclusion on grounds that ‘subjective foresight’ is not the only appropriate standard that can be applied to s. 7 and 11d) of the Charter. à Revised facts: During break and entry, M put a quilt over McLean’s head while Tremblay tied him up. Ann McLean was bound similarly. Once J was shot [by T], M made no effort to stop the murder of A. [He actually said “Lady say your prayers”]. Additionally, M’s testimony did not account for some physical evidence that was uncovered [beatings of trailer occupants, etc.]  ( //a// ) where the person who causes the death of a human being  (i) means to cause his death, or  (ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;  Need to distinguish between subjective and objective foreseeability.  Subjective: trier must establish what was going through mind of accused. It is essential that the accused intended or foresaw consequences of actions. Objective: What the reasonable man would have foreseen. Interrelationship: The reasonable man standard[objective] can point to intention, or //mens rea//[subjective]. There is thus a profound relationship between the two; neither is static. Re: Vaillancourt: established a standard of objective foreseeability of death at time of crime. In this case, V deliberately unloaded the gun prior to the b&e, suggesting that he could not have known that there would be a murder. à //mens rea// is essential to conclusion to Crown proving “beyond a reasonable doubt”. S. 213 (d) does not meet test, but 213(a) does. *Comparative Analysis: sudden introduction of subjective foresight is novel. No parallel in Britain, Australia, NZ, or the US. Each of the Australian jurisdictions recognizes some version of the felony-murder rule; NZ= killings even where there is no subjective foresight of death; in US, notion of felony-murder exists all over. POLICY CONSIDERATIONS: In a 20 year period, evidence shows that 2000+ homicides occur in commission of another crime [robbery; sexual assault and rape; escape; other]. “ It is constitutionally permissible under the //Canadian Charter of Rights and Freedoms// to define the mental element required for murder with reference to an intention by the perpetrator to harm or injure the victim, with death resulting. How that harm or injury is to be defined, and what level of harm or injury is required are matters for Parliament to consider and decide.” à Social protection must be balanced with search for justice. à It is difficult to see how 11d. is violated in this appeal. Accused was presumed innocent; was subsequently proven guilty. Parliament’s objective with 213(a) is one of deterrence. [Essentially: this is a policy issue]. //__ Sopinka __// : Agrees with Dickson on question 1, but not #2. “ In my view, the issue of subjective foresight of death should be addressed only if it is necessary to do so in order to decide this case or if there is an overriding reason making it desirable to do so.” à “Each of these three sets of reasons stated that it was not necessary to address the issue of whether subjective foresight of death is a constitutional requirement for a valid murder charge. However, Lamer J. (and therefore four of the eight judges participating) adopted the view, in //obiter//, that subjective foresight of death is indeed the standard demanded by s. 7 of the //Charter//. Accepting the majority position in //Vaillancourt// that objective foreseeability of death is a constitutional minimum for the definition of murder, the conclusion must follow that s. 213( //a// ) does not meet this constitutional minimum. With respect, I cannot agree with the contrary conclusion reached by L'Heureux-Dubé J.” à Reason that this case has generated interest amongst multiple Attorneys General is invalid. // Conclusion: // I would therefore limit myself to the conclusion that s. 213( //a// ) is unconstitutional because (i) it places a restriction on s. 7 of the //Charter// by permitting a person to be convicted of murder without proof beyond a reasonable doubt of objective foreseeability of death, or of an equivalent substitute requirement, and (ii) for the reasons expressed by Lamer C.J. in //Vaillancourt// and in the case at bar, it cannot be saved by s. 1. Other constitutional issues with respect to the murder provisions of the //Criminal Code// I would leave for another day. The above may be points of law, however Martineau's conviction of murder should have been upheld, in fact Martineau and Tremblay should have stood trial on first degree murder. Martineau was convicted in 1985, 2 counts second degree murder, the conviction was correct under the law at the time. Martineau knew exactly what was taking place in the mobile home of the McLeans. He was the person that said to Tremblay --let me kill this guy.
 * Facts ** : Facts not central to appeal: bodies of two persons[McLeans] found in a trailer; police investigations led to Tremblay and Martineau. M was 15 at the time and was charged with both murders, transferred to adult court.
 * 213. ** Culpable homicide is murder where a person causes the death of a human being while committing or attempting to commit high treason or treason or an offence mentioned in section 52 (sabotage), 76 (piratical acts), 76.1 (hijacking an aircraft), 132 or subsection 133(1) or sections 134 to 136 (escape or rescue from prison or lawful custody), section 246 (assaulting a police officer), section 246.1 (sexual assault), 246.2 (sexual assault with a weapon, threats to a third party or causing bodily harm), 246.3 (aggravated sexual assault), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (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 being, if
 * Issues ** : 1.Does s. 213( //a// ) of the //Criminal Code// infringe or deny the rights or freedoms guaranteed by s. 7 and/or s. 11( //d// ) of the //Canadian Charter of Rights and Freedoms// ? 2. If the answer to question 1 is affirmative, is s. 213( //a// ) justified by s. 1 of the //Canadian Charter of Rights and Freedoms//, and therefore not inconsistent with the //Constitution Act, 1982// ?
 * Ratio ** :
 * Reasoning ii ** : I would like to point out that the invocation of s. 213( //a// ) may not have been necessary. In my view, "Lady, say your prayers", whether it was actually said or thought, reflects a mental state of mind sufficient to anchor a charge under s. 212( //a// ), the only truly subjective foresight murder provision of the //Criminal Code// :
 * 212. ** Culpable homicide is murder
 * s. 213(a) passes the objective foreseeability test. This means no charter violation has taken place. “ If both components, //actus reus// as well as //mens rea//, are not considered when assessing the level of fault attributable to an offender, we would see manslaughter and assault causing bodily harm as no more worthy of condemnation than an assault.”
 * Thus: intent to inflict bodily harm on A. McLean + McLean’s murder= reason for conviction.
 * Issue of stigma is overstated by C.J.
 * Test of objective foreseeability is thus sufficient as a minimum //mens rea// requirement for murder. Thus, in response to issues: No, n/a/
 * Not necessary to consider subjective foresight at death in case at bar; is there an overriding reason to do so?