R.c.+Harbottle

R v. Harbottle: s. 215 [intended to give a maximal sentence to those who murder while committing crimes of domination]: legislation used to read that those who assisted in causing death, or caused death, were responsible; this was amended to read that those who ‘caused’ death were liable. * “//It can be seen that Parliament deleted both the words "his own act" and "caused or assisted in causing" and replaced them simply with the word "caused". That single word is, in my view, broad enough to include both perpetrators and those who assist in the murder and come within the purview of the substantial cause test I will set out later.”// à Terminology in Criminal Code’s homicide provisions: homicide is committed when a person, directly or indirectly, causes death. CASE LAW: // R. v. Kirkness // : two men broke into a home, one sexually assaulted and eventually killed the homeowner, both were charged with first degree murder. Based in part on //R. v. Paré//: where murder is part of a single transaction of acts involving domination, it will be first degree. R. v. //Black and Mackie//: two accused robbed the victim and pushed him down an embankment, where he drowned. Court of Appeal stated that it was unacceptable that persons with no subjective intent to kill should be convicted of murder. // R v. Dollan and Newstead // : one party shot, one party assisted in entry into house. Held that both could NOT be charged with first degree murder [assisting was not sufficient here]. * “//The question which does arise is precisely what causal effect is required by the phrase "death . . . caused by that person//."’ * Test is too restrictive. Instead, **substantial causes test**: Therefore, an accused may be found guilty of first degree murder pursuant to s. 214(5) if the Crown has established beyond a reasonable doubt that: (1) the accused was guilty of the underlying crime of domination or of attempting to commit that crime; (2) the accused was guilty of the murder of the victim; (3) the accused participated in the murder in such a manner that he was a substantial cause of the death of the victim; (4) there was no intervening act of another which resulted in the accused no longer being substantially connected to the death of the victim; and (5) the crimes of domination and murder were part of the same transaction; that is to say, the death was caused while committing the offence of domination as part of the same series of events. Conclusion: Harbottle guilty of 1st degree. Appeal dismissed.
 * Facts: ** Harbottle and Ross forcibly confined [Elaine] Bown after Ross had violently raped her. While she was confined with hands tied, Ross strangled her while Harbottle held her legs so that she wouldn’t struggle.
 * History**: Found by jury at Court of Appeal to be guilty of first degree murder. Minority stated that it could not be said that Harbottle “caused” the victim’s death because he did not cause her asphyxiation.
 * Issues**: Whether Harbottle's participation was such that he can be found guilty of first degree murder pursuant to the provisions of s. 214(5) of the //Criminal Code//, R.S.C. 1970, c. C-34, am. S.C. 1980-81-82-83, c. 125, s. 16, (and now R.S.C., 1985, c. C-46, s. 231(5)) (cited herein to R.S.C. 1970).
 * Ratio**: See Substantial Causes Test. Grounds on which first degree murder charges can be assigned.
 * Reasoning**: Charging of both parties could have proceeded under planning and premeditation, since both planned the death of EB.