Swietlinski v. R., [1980] 2 SCR 956

Supreme Court of Canada

Swietlinski v. R., [1980]  2 S.C.R. 956

Date: 1980-12-18

Roman Swietlinski (Plaintiff) Appellant;

and

Her Majesty The Queen (Defendant) Respondent.

1980: May 12; 1980: December 18.

Present: Laskin C.J. and Martland, Dickson, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Criminal law—Murder—Indecent assault—Mental elements—Specific intent—Defence of drunkenness—Underlying offence—Possession or use of weapon during the commission or attempted commission of indecent assault—Charge to the jury—Whether deficiency in the trial judge’s charge caused a prejudice to the accused or a miscarriage of justice—Criminal Code, ss. 212(a), 213.

The appellant was convicted of first degree murder before a judge and jury, under s. 213 (d) of the Criminal Code, where the underlying offence, during the commission of which death was caused, was indecent assault on a female. He accompanied her to her apartment and he remembered that when she opened a drawer in the kitchen where there were knives there was a bright glare or flash of light. That was the last thing he remembered until he was walking in the street. The police had found the partially undressed body of Mary McKenna in her bedroom with one hundred and thirty-two knife wounds.

He raised drunkenness as a defence and from expert evidence adduced as to the blood alcohol levels that could have been attained by the appellant, considering the amount he recalled drinking, the jury would have been able to infer that the appellant was highly intoxicated during the evening.

His appeal to the Court of Appeal for Ontario was dismissed. The main points of significance raised on appeal by leave of this Court are embraced in the following questions: 1. What are the mental elements which must be shown for a conviction of murder under s. 213(d) of the Criminal Code? 2. Can evidence of drunkenness be taken into consideration in determining whether the mental elements required for a conviction of murder under s. 213(d) of the Criminal Code have been shown? 3. Was there error in the trial judge’s charge on the applicability of the defence of drunkenness, as it could apply to a charge of murder under s. 213(d) of the Criminal Code?

Held: The appeal should be dismissed.

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Subsection (d) of subs. 213 of the Criminal Code differs significantly from subss. (a), (b) and (c) of that section. No mental element is required under subs. (d) beyond the minimal intent to use or to have a weapon. To ascertain the mental elements required for the establishment of criminal liability under s. 213(d) of the Code, it is necessary to consider the mental elements of the underlying offence, the commission of which calls the section into play, in this case indecent assault. The mental elements for murder under s. 213(d) cannot be less than those required for the commission of the underlying offence which invokes the section.

Section 213(d) requires the commission or attempted commission of the underlying offence, but does not itself provide for any further intent. In such case, the mental element required for a conviction of murder must be found in the intent to commit the underlying offence, here an indecent assault. The problem in this case arises because the underlying offence is one which requires only a basic or general intent and in respect of which when standing alone the defence of a drunkenness would not apply. The trial judge ought to have instructed the jury that if having considered the evidence including that of intoxication, they doubted the appellant’s mental capacity to form the intent required for the completion of the indecent assault because of his state of intoxication, murder would have not been proved. If they were satisfied that the appellant had done the killing, it would be manslaughter. The statement of the Lord Chancellor in Beard’s case, [1920] A.C. 479, supports the proposition that the underlying offence in constructive murder must have been consciously committed. If s. 213(d) did not require proof of such conscious commission, it would be providing for a conviction of murder in the absence of any mental element or intent.

As to the option of manslaughter, it was clearly left to the jury in respect of murder under s. 212 of the Code. While it could have been made in more explicit terms in respect of s. 213(d), no reversible error occurred in this connection.

R. v. Resener, [1968] 4 C.C.C. 129; Leary v. The Queen, [1978] 1 S.C.R. 29; Director of Public Prosecutions v. Beard, [1920] A.C. 479 followed; Director of Public Prosecutions v. Majewski, [1976] 2 All E.R. 142; R. v. George, [1960] S.C.R. 871; R. v. Graves (1912), 9 D.L.R. 30; MacAskill v. The King, [1931] S.C.R. 330; Perrault v. The Queen, [1971] S.C.R. 196; R. v. King, [1962] S.C.R. 746; R. v. Tennant and

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Naccarato (1975), 23 C.C.C. (2d) 80; R. v. DeWolfe (1976), 31 C.C.C. (2d) 23, referred to.

APPEAL from a judgment of the Ontario Court of Appeal[1], dismissing an appeal by appellant from his conviction on a charge of murder following a trial by judge and jury. Appeal dismissed.

Morris Manning, Q.C., for the appellant.

Douglas J. Ewart, for the respondent.

The judgment of the Court was delivered by

MCINTYRE J.—This appeal raises questions regarding the applicability of the defence of drunkenness to a charge of first degree murder, under s. 213(d) of the Criminal Code, where the underlying offence, during the commission of which the death was caused, was indecent assault on a female. The appellant was convicted of first degree murder before a judge and jury, and his appeal to the Court of Appeal for Ontario was dismissed. This appeal is taken by leave of this Court.

On the evening of September 20, 1976, the police entered the apartment of the deceased Mary McKenna and found her body in the bedroom, lying face down upon the floor. The body was clothed only in panties, pantyhose and brassiere. The straps of the brassiere were pulled down, but it was still hooked in the back. Medical evidence determined that she had died as a result of shock and hemorrhage due to one hundred and thirty-two stab wounds, eighteen of which occurred after death. A blood‑stained dress was found by the body. It had thirty cuts or holes from which it could have been inferred by the jury that some, but not all, stab wounds were received while she wore the dress and that the dress was removed during the progress of the assault. Three kitchen knives and one knife-blade, some bent and bearing blood stains of Group ‘B’, the group of the deceased, were found in the apartment. The time of death could not be determined medically but a

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woman who occupied the apartment below the deceased gave evidence that at about 2:45 a.m. on September 19 she heard a female crying out: “No, stop it, don’t…,” and also a male voice. She could not distinguish any words spoken by the male voice. A thumb print matching that of the appellant was found on a saucer in the apartment.

The appellant, aged twenty-nine, was an alcoholic. He had spent the afternoon of September 18 drinking with some friends. In the evening he went with them to the Maple Leaf Ballroom in Toronto, and there continued drinking in the bar. Later, after dancing a while, he introduced a woman to some of his friends as Mary. The friends then went their separate ways.

One Karas, a member of the group who went to the dancehall with the appellant, said that the appellant telephoned him at his home about 2:45 a.m. the next morning saying that he was outside a tavern called The Jolly Miller on Yonge Street near York Mills Avenue. He asked if he could sleep at Karas’ home. Karas met the appellant with his car and picked him up. He noted that the appellant was then wearing a jacket but no shirt. He said he had ripped his shirt “walking and climbing a fence” and had discarded it. Karas estimated that The Jolly Miller was two and one-half to three miles from 120 Broadway, the deceased’s address. At Karas’ home the appellant said he had ‘picked up’ a girl at the Maple Leaf Ballroom. It may be noted here that there was evidence given by a friend of the deceased that she had gone to the dance at the ballroom that evening with the deceased.

On October 8, 1976, the appellant, who had then gone to Edmonton, went to a hospital and told a nurse to have him arrested for killing a woman in Toronto. The Edmonton police after inquiries in Toronto released the appellant, whom they had temporarily detained, because the Toronto police had no record of a killing at the address given by the appellant which was not that of the deceased.

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The appellant returned to Toronto and, on November 3, 1976, while drinking with a friend, said he had killed the girl at the Maple Leaf Ballroom. Later he telephoned the Lakeshore Psychiatric Hospital in Toronto at about 9:00 p.m. and told the switchboard operator: “I am a killer, I killed someone and I want to talk to someone.” He made two further calls repeating his statements. A police constable named Fisher who was on duty at the hospital heard the third conversation. On that occasion arrangements were made to have the appellant see one of the doctors. At 11:30 p.m. the appellant was driven to the hospital where he spoke with Constable Fisher and a Doctor Slezak. He said: “I think I have murdered a Mary McKinnon.” In reply to questions, he said he had met her at the Maple Leaf Ballroom and, “I want a top psychiatrist with me when I say this.” The police officer said that Dr. Slezak was a psychiatrist and the appellant then continued:

She invited me to her apartment. She went to the kitchen. She opened the drawer, she had knives, kitchen knives. I was standing by the wall. When she opened the drawer there was a flash. I picked up a knife and followed her, I was a robot. I stuck it in her. She fell into the bedroom.

He continued, saying: “I want to speak to a psychiatrist about the fact when she opened the drawer, about the flash.” He remembered walking down Yonge Street, apparently on his way home, and said that he had no blood on his hands. He described how he had heard news broadcasts the next day and later he read about the killing. Two other officers arrived at about that time and the appellant made further statements. He said:

I want to talk about the drawer in the kitchen. I was drunk. My feet was giving out from me. This girl said Roman you’re drunk. You should leave. The drawer thing drives me nuts. I don’t know why she opened the drawer.

It was a flash that hit me, saw the knives, she was getting ready for bed. I went to the bar, had a couple of vodka, she opened the drawer in the kitchen. I read in the newspaper she was stabbed twenty-six times and

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throat was cut. I think this is what happened, put this in your book. I want to find out why I did it, that was the major thing when she opened the drawer, I turned robot, waves from outer space, I took a knife, put it to my side. I remember so vivid, I walked home, York Mills near Jolly Miller. She looked at me, I lifted up my hand, I struck her. I walked out of the kitchen with object in my hand. She was standing in the doorway, maybe bedroom. I followed her, struck her, yelled my name ‘Roman’. I was a robot, I made sure I had no blood on me.

On Saturday, November 6, 1976, the police had a further conversation with the appellant in which he referred to earlier incriminating statements as fantasy. He was then cautioned and he gave a lengthy statement which is summarized, as follows:

The Appellant went with his friends from Karas’ house to the Maple Leaf Ballroom, arriving at around 10:00 p.m. He danced with a number of girls, and left alone, around 12:00 midnight. He recalled walking and being around YongeSt. and York Mills; he thought he recalled seeing the Jolly Miller. He remembered reading the sign.

He recalled walking on YongeSt. and missing a bus; the only thing he remembered after that was walking down Bathurst Street and opening the front door of his house.

On Monday night he heard on the radio that a woman had been murdered. On Tuesday he read an account of the killing in the newspaper. The newspaper account stated where the victim lived, gave her name and age, and also showed a picture of her.

The C.B.C. News on television had a film clip which showed part of the bedroom and living‑room in the deceased’s apartment.

Another article in the newspaper said that she had not been sexually molested and that she was in her night clothes. The newspaper account said the victim had been stabbed twenty-six times, and her throat was cut.

A friend of his had committed himself to the Lakeshore Hospital and this is what he thought “triggered” his going to the hospital. He started his “murder routine” that day with Seymour Grosser. He remembered telling Seymour about “doing the girl in” from the Maple Leaf.

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He phoned four times to the hospital and said he was a murderer, and the girl wanted to put him through to a doctor.

He was merely playing a role when he told the officers at the hospital about killing a girl.

Upon being reminded by Staff-Sergeant Newsome that he had told the officers how he had stabbed the girl, and where, the Appellant said: “I recall the Jolly Miller, the waves from outer space. I don’t know. I should have been given a typewriter. I could have written a 200-page film script.”

After he had signed this statement the appellant gave the police his fingerprints. He was arrested and cautioned on a charge of first degree murder. He was then told that his fingerprints matched the print which had been found on a saucer in the deceased’s apartment. To this he replied: “That’s incredible. That’s incredible. I am convinced now that I did do it.” He then said, “What is first degree murder?” The police officer answered: “First degree murder is when a female person is killed while being sexually attacked or an attempt is made to sexually attack her.” The appellant replied: “I didn’t sexually violate her.” It may be noted here that medical evidence indicated that no sexual intercourse with the deceased had occurred. The police officer then asked the appellant if he wished to tell him anything about the matter, to which the appellant replied: “Give me a couple of minutes, that fingerprint has got my head going.” Shortly afterwards, he gave a second statement, which can be summarized in this fashion:

He could not understand why it was first degree murder, because she was not sexually molested. He met a girl at the Maple Leaf Ballroom. They had talked for about an hour. She said she was looking for a meaningful relationship, and he told her that he was looking for the same thing. He suggested going to her place. She wanted to go to his place, but he talked her into going to her place. Before leaving he had two more “shots” of vodka. They flagged a cab; he didn’t know where they were going; she gave the directions.

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They talked, he couldn’t say for how long; she made coffee. She was preparing to go to bed, and hinting that he should leave. He was sitting on a couch in the livingroom. The next thing he remembered, they were both in the kitchen, perhaps she was washing something. She opened a kitchen drawer to get something. He saw some knives, and she left the kitchen. He took one of the knives and followed her out of the kitchen towards the door of the closet at the end of the hall, where the bathroom is. He struck out at her with the knife. His hand “sort of went into a pump action”; he stabbed her in the side, the stomach and the chest. They sort of fell into the bedroom. He continued to stab her until she lay motionless.

Something happened in the kitchen when she opened the drawer with the knives. The opening of the drawer “triggered off” something. There was “sort of a flash of light” and a glare; something weird which he just did not understand. It was as if he “was transferred from a human being into a robot”. When his hand reached for the knife, he felt no motion, and it was “as if (he) had no senses”. It was as if he “was obeying some sort of command”.

He held the knife in his hand “and like a robot” his “hand just reached out and plunged into her”. His hand “just became like a pump”. She called out his name when they fell into the bedroom. The first knife that he used broke in the bedroom. He got up, went to the kitchen, got another knife, returned to the bedroom and repeated the process. He did not know what happened to that knife, but he went to the kitchen and got a third knife. He continued to stab her with the third knife; she was motionless by this time. He got up; he felt “weird”. He had nothing against her; she was a good person. He could not understand why this happened. He took the knives with him and “got rid of them” in a sewer and some garbage cans in the area.

He didn’t know where he was and wandered around. He thought there was some blood on his hands. He was walking in circles, and made his way to YongeSt. and York Mills. He walked home from there.

He awoke the next morning about 11:30 with a feeling that he had stabbed someone the night before. He said to himself that it wasn’t possible; maybe it is one of these guilt feelings. He was hoping that the images he had in his mind were just a nightmare. He read the newspapers, and listened to the news, and felt relieved

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when there was nothing mentioned. On Monday, he heard on the radio that they had found a body; when it was announced that it was the body of a man, he felt relieved because in his “flashbacks” it was a woman. He froze when there was a further announcement that they had found the body of a woman on Mount Pleasant and Eglinton. In a way, “the guilt came back”, but he felt relieved because he was positive that the woman lived on Sheppard, between Bathurst and Yonge. On Tuesday, there was a picture of the woman in the paper; the article said her age was 37, but the woman told him her age was 31.

The name Mary stuck in his mind and that bothered him. On Tuesday night there was a news broadcast which showed the apartment where the body was found. It was a basement apartment, and he had recalled entering an elevator in the apartment building, and either going down or up. It was announced that she had been at the Maple Leaf Ballroom, and his “guilt feeling overtook” him that it was probably him.

A composite picture of the suspect was published on Thursday. The picture didn’t look at all like him and, after seeing the picture he felt that he didn’t do it; that it was a product of his imagination, and he began to convince himself that he didn’t do it. He had to do this because of the intolerable struggle between his feeling of guilt and his feeling that he wasn’t guilty. The “guilt” finally overtook him, and he went to the hospital to surrender, but after questioning by detectives, they let him go. He began to think that maybe he didn’t do it. The one thing that would convince him was his fingerprints, and that’s why he voluntarily gave them. That was the last piece of evidence that he needed.

When asked for an explanation as to why more than one knife was used, he replied: “I think one knife broke and the other one bent”. He agreed to go to the apartment with the detectives and show them where the “incident” occurred, and then said, “although everything adds up, I don’t feel 100% guilty”.

The appellant gave evidence at trial. He said he was intoxicated when he went to the Maple Leaf Ballroom, and he drank more after his arrival. He met a woman and he agreed to leave the ballroom and go to her apartment. All he could remember was standing in a room which must have been the kitchen. He was about to leave. His knees buckled, a drawer opened, there was a bright glare or flash

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of light. That was the last thing he remembered until he was walking on York Mills Road and saw The Jolly Miller’ sign. He remembered phoning Karas. He said, on awakening the next morning, he had no feeling that he was responsible for the death but he felt he must have done something wrong. He explained the events in Edmonton as “drunkenness”. He told the police on November 6 that the deceased was not sexually molested because he had read that in the newspaper. He said the statement of November 6 was what he recalled up to the point when he mentioned that he and the girl spoke together. Thereafter, he said that he was creating a script. He was speculating on what might have happened. His statement resulted from facts which he recalled, speculation based on news reports he had read and heard, information which he said was manipulated into his mind by the police, and his own habit of dramatization.

Expert evidence was adduced as to the blood alcohol levels that could have been attained by the appellant on the assumption that he had consumed the large amounts of alcohol he claimed, and on the effect such consumption would have on his physical activity, mental capacity and judgment. The evidence was such that the jury would be able to infer that the appellant was highly intoxicated during that evening. This evidence was reviewed fairly by the trial judge in his charge to the jury and needs no further recitation here.

The matters in issue in this appeal were expressed differently by opposing counsel in their factums. The main points of significance raised and argued before this Court are embraced in the following questions:

1. What are the mental elements which must be shown for a conviction of murder under s. 213(d) of the Criminal Code?

2. Can evidence of drunkenness be taken into consideration in determining whether the mental elements required for a conviction of murder under s. 213(d) of the Criminal Code have been shown?

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3. Was there error in the trial judge’s charge on the applicability of the defence of drunkenness, as it could apply to a charge of murder under s. 213(d) of the Criminal Code?

Before dealing with the mental elements required for conviction under s. 213(d) of the Criminal Code, the positions of the parties to this appeal must be understood. At trial the Crown took the position that the appellant had committed a murder under s. 212(a) of the Code, in that he stabbed the deceased with intent to kill or with intent to cause bodily harm which he knew would be likely to cause death and was reckless whether it ensued or not. Alternatively, if the jury had doubts on the appellant’s ability to form the required intents under s. 212(a) of the Code, it was argued that he would be guilty of murder under s. 213(d), having used a weapon during the commission of an indecent assault and thereby caused a death, irrespective of his intent. The Crown also took the position that a conviction under either section would amount to first degree murder, by virtue of s. 214(5)(b) of the Code, because death was caused by the use of a weapon while committing an indecent assault.

No objection was taken before this Court to the trial judge’s charge in respect of 212(a) of the Criminal Code. The principal submissions of the appellant turned on the application of the defence of drunkenness to a charge of murder based on s. 213(d). An examination of the mental elements required for a conviction under that section must be made. Section 213 of the Code is reproduced in its entirety.

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), 143 or 145 (rape or attempt to commit rape), 149 or 156 (indecent assault), subsection 246(2) (resisting lawful arrest), 247 (kidnapping and forcible confinement), 302 (robbery), 306 (breaking and entering) or 389 or 390 (arson), whether or not the

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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

(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;

(b) he administers a stupefying or overpowering thing for a purpose mentioned in paragraph (a), and the death ensues therefrom;

(c) he wilfully stops, by any means, the breath of a human being for a purpose mentioned in paragraph (a), and the death ensues therefrom; or

(d) he uses a weapon or has it upon his person

(i) during or at the time he commits or attempts to commit the offence, or

(ii) during or at the time of his flight after committing or attempting to commit the offence,

and the death ensues as a consequence.

It is apparent at once that s. 213(d) of the Criminal Code differs significantly from subss. (a), (b), and (c) of that section. Each of subss. (a), (b), and (c) requires proof of a mental element to procure a conviction of murder: in subs. (a), an intent to cause bodily harm for the purpose of facilitating the commission of the underlying offence, or facilitating flight after the commission or attempted commission of the offence; in subs. (b), the administration of a stupefying or overpowering thing for a purpose mentioned in subs. (a); in subs, (c), the wilful stopping of the breath of a human being for a purpose mentioned in subs. (a). Subsection (d) differs from the others in that it requires only possession or use of a weapon during the commission or attempted commission of the underlying offence, or during or at the time of the flight after committing or attempting the commission of the offence. No mental element is required under subs. (d) beyond the minimal intent to use or to have a weapon. The subsection applies, irrespective of any intent to cause death or any knowledge of its likelihood, where an accused, while armed, is shown to have committed or attempted the commission of one of the offences named in the section. It therefore becomes necessary in ascer-

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taining the mental elements required for the establishment of criminal liability, under s. 213(d) of the Code, to consider the mental elements of the underlying offence, the commission of which calls the section into play, in this case indecent assault. This I consider to be so, for reasons which I will develop later, because in my opinion the mental elements for murder under s. 213(d) cannot be less than those required for the commission of the underlying offence which invokes the section.

The law has been settled that an indecent assault is an assault that is committed in circumstances of indecency, or as sometimes described, an assault with acts of indecency. What acts are indecent and what circumstances will have that character are questions of fact that will have to be decided in each case, but the determination of those questions will depend upon an objective view of the facts and circumstances in relation to the actual assault, and not upon the mental state of the accused. This view has been expressed in R. v. Resener[2], in the British Columbia Court of Appeal, a case which reviewed various authorities on the subject, and which was referred to with approval by Pigeon J. in this Court in Leary v. The Queen[3], at p. 57. This was, as well, the view expressed by Martin J.A. for the Ontario Court of Appeal. In dealing with this case, he said:

The definition of “indecent assault”, which has long been accepted in England, is an assault accompanied by circumstances of indecency on the part of the accused towards the person assaulted: see R. v. Leeson (1968), 52 Cr. App. 185 at p. 187.

In my view, the Canadian and the English law do not differ in this respect. In R. v. Louie Chong (1914), 23 C.C.C. 250, the Appellant seized hold of the complainant and offered her money for “an immoral purpose”. It was contended on behalf of the Appellant in that case, that an indecent assault is not committed unless the act constituting the assault is itself indecent in its nature; that all that the Appellant did was to take hold of the complainant, and the words used by him did not import indecency into the act. This Court, in affirming the conviction, held that an act which is ambiguous may be interpreted by the surrounding circumstances and the

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words used by the accused. Middleton, J., speaking for the Court, said at p. 251:—

“It is in each case a question of fact whether the thing which was done, in the circumstances in which it was done, was done indecently…”

and later:

In any event, the judgment of the Court of Appeal of British Columbia in R. v. Resener, supra, holding that a specific intent to assault indecently is not a necessary element of indecent assault was cited with approval by Pigeon J., delivering the majority judgment of the Supreme Court of Canada in Leary v. The Queen, [1978] 1 S.C.R. 29, at p. 57, and we must now take the law in this respect to be settled.

The only intent required for indecent assault is the general or basic intent to do the act which, in the circumstances in which it was done, in fact, constitutes an indecent assault. I accept the submission of Mr. Ewart for the Crown, that if the Appellant removed the deceased’s dress against her will, that act was capable of being an indecent assault, irrespective of the Appellant’s purpose.

It must follow, therefore, that the mental element or intents which must be shown before a conviction of murder under s. 213(d) can be obtained, where the underlying offence relied upon by the Crown is indecent assault, is the basic intent to do the acts which, objectively viewed, amount to the indecent assault coupled with the basic or general intent to possess, and in this case to use, a weapon.

The second principal issue concerns the relevance of evidence of intoxication to the question of whether the Crown had established the existence of the mental element or intents required for a conviction of murder under s. 213(d) of the Criminal Code. Contending that such evidence was relevant, counsel for the appellant put his argument on the basis that indecent assault was an offence of specific intent and accordingly the jury should have been charged in respect of murder under s. 213(d), as they had been under s. 212(a), to the effect that if the evidence of intoxication left the jury in doubt as to the capacity of the appellant to

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form the intent to commit an indecent assault, murder would not be shown and they could then convict of manslaughter, if otherwise satisfied that the appellant had caused the death. The effect of the charge given here, it was said, was to eliminate consideration of drunkenness under s. 213(d) and deprive the jury of the option to bring in a verdict of guilt on lesser offence of manslaughter. Counsel for the Crown argued that the evidence of intoxication could not be relevant to a charge under s. 213(d) of the Code, because the defence of drunkenness could have application only in respect of offences of specific intent.

In view of the recent decision of this Court in Leary, supra, on this branch of the argument it is not necessary to canvass at any length the various authorities on the general application of the defence of drunkenness. Speaking for the majority of the Court (Martland, Judson, Ritchie, Pigeon, Beetz and de Grandpré JJ.), Pigeon J. said, at p. 57:

In my view, rape is a crime involving only general intention as distinguished from a specific intention and is therefore a crime in which the defence of drunkenness can have no application.

He reviewed the authorities including Director of Public Prosecutions v. Beard[4], Director of Public Prosecutions v. Majewski[5] and R. v. George[6] and settled the law on this point. The effect of this decision, in my opinion, is to confirm the long-established rule that the defence of drunkenness is available only in cases involving offences requiring proof of a specific intent on the part of the accused. Where an accused person is so affected by intoxication that he is deprived of the mental capacity to form the specific intent required, an essential element of the offence is absent. Because indecent assault is an offence of general or basic

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intent, the defence of drunkenness cannot apply where a person is charged with that offence.

The appellant argued in the alternative that even accepting the proposition that indecent assault ordinarily requires only proof of a general or basic intent, when the offence is relied upon by the Crown to justify a conviction of murder under s. 213(d) of the Criminal Code, different considerations arise and evidence of drunkenness is relevant to the issue of guilt under that section. Martin J.A., in the Court of Appeal, described the submission in these words:

Mr. Manning’s final submission on this branch of his argument is much more cogent. It is this: Accepting the law to be that voluntary or self-induced intoxication cannot negative the general intent, which constitutes the only mental element required for indecent assault, the rule is one of policy which has no application to the offence of first degree murder where, as here, proof that the accused committed an indecent assault on the victim is essential to constitute the crime of murder.

It must be borne in mind that in this case the appellant was charged, not with indecent assault, but with first degree murder. The indecent assault must be proved as an essential element of the crime charged, but it is only the underlying offence that brings into operation the provisions of s. 213(d), which makes the subsequent death murder, the offence with which this case is concerned.

In very early times, murder was simply the killing of a human being and no proof of any particular intention was required. This stark concept, however, soon became softened and to procure a conviction for murder it became necessary to show, not only a killing, but in addition a mental element referred to as ‘malice aforethought’. This expression, at least in modern usage, is misleading, but it has come to be a comprehensive term to describe the various forms of mens rea or the various mental elements which must be present to justify a conviction for murder. The term is dealt with in Kenny’s Outlines of Criminal Law (1902), at p. 132:

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(5) Malice aforethought. The preceding elements in the definition of murder are common to all forms of criminal homicide; but this fifth point is the distinctive attribute of those homicides that are murderous. When, as we have seen, the legislature determined to take away the “benefit of clergy” from the most heinous cases of homicide, it adopted the already familiar notion of “malice aforethought” (malitia praecogitata) as the degree of wickedness which should deprive a homicidal “clerk” of his ancient right to escape capital punishment. The phrase is still retained in the modern law of murder; but both the words in it have lost their original meanings. For the forensic experience of successive generations brought into view many cases of homicide in which there had been no premeditated desire for the death of the person slain, yet which seemed heinous enough to deserve the full penalties of murder. These accordingly, one after another, were brought within the definition of that offence by a wide judicial construction of its language. Hence a modern student may fairly regard the phrase “malice aforethought” as now a mere arbitrary symbol. It still remains a convenient comprehensive term for including all the very various forms of mens rea which are so heinous that a homicide produced by any of them will be a murder.

Similar statements are to be found in the writings of both early and modern writers on the common law. See, for example, Stephen’s Commentaries (2d) Vol. 4, at p. 143; Blackstone’s Commentaries on the Law of England, 4 B1. Comm. 198; and the words of Glanville Williams, Textbook of Criminal Law (1978), at p. 204:

How is murder defined?

The classic definition of murder is that of Sir Edward (Chief Justice) Coke, though its antiquated wording requires careful glossing.

‘Murder is when a man. . .awfully killeth… any reasonable creature in rerum natura under the king’s peace, with malice aforethought, either expressed by the party, or implied by law, so as the party wounded, or hurt, etc. die of the wound, or hurt, etc. within a year and a day after the same.’

‘Any reasonable creature’ means any human being (a demented person being protected), and ‘in rerum natural (in being) excludes the unborn child. ‘Under the king’s peace’ covers everyone except the enemy killed in operations of war.

How are murder and manslaughter distinguished?

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The requirements for both are the same except in respect of the fault element and mitigating circumstances. Murder requires, positively, the mental element traditionally known as ‘malice aforethought’, and, negatively, the absence of certain mitigating circumstances that would turn the case into one of manslaughter.

This principle has been carried forward into the law of Canada: see R. v. Graves[7], where Graham, E.J., of the Nova Scotia Supreme Court, Appeal Division, referred to malice aforethought in these words, at p. 44:

The meaning of “malice aforethought” in its legal sense may be learned from the report of the eminent commissioners who prepared the Draft Code of England, from which the Canadian Criminal Code is copied, viz., Lord Blackburn, and Barry, Lush, and Fitzjames Stephen, JJ.

Page 23:— “The present law may, we think, be stated with sufficient exactness for our present purpose somewhat as follows: Murder is culpable homicide by any act done with malice aforethought. Malice aforethought is a common name for all the following states of mind:—

“(a) An intent preceding the act to kill or to do serious bodily injury to the person killed, or to any other person.

“(b) Knowledge that the act done is likely to produce such consequences, whether coupled with an intention to produce them or not.

(c) An intent to commit any felony.

“(d) An intent to resist an officer of justice in the execution of his duty.”

At page 15 of their report they said: “We have avoided the use of the word ‘malice’ throughout the Draft Code, because there is a considerable difference between its popular and its legal meaning. For example, the expression ‘malice aforethought’ in reference to murder has received judicial interpretation which makes its use positively misleading.”

The concept of ‘malice aforethought’ has been greatly broadened in modern times. A conviction of murder may now depend upon the proof of various intents, other than the simple intent to kill. Nevertheless, the law has consistently required that murder be an offence of specific intent. The

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specific intents have generally been clearly described in Canada in statutory form and an unlawful killing without proof of the existence of the required specific intent has always been characterized as manslaughter. Murder has been set aside, in a sense, from other crimes and the law has always required proof of certain mental elements which, in the words quoted from Kenny above, include “all the various forms of mens rea which are so heinous that a homicide produced by any of them will be murder”. It is with this consideration in mind that we must approach the Crown argument, in this case, to the effect that a conviction of first degree murder could be found in the absence of proof of any such mental element under s. 213(d) of the Criminal Code.

On all the authorities, the mental element—the malice aforethought of ancient usage—must always be demonstrated in order to procure a conviction of murder. While I recognize, of course, that Parliament could remove this requirement, I cannot accept the view that by the enactment of s. 213(d) of the Criminal Code it has effected such a fundamental change in the law. It has been observed that a conviction of murder under s. 213(a), (b), or (c) depends upon the commission or attempted commission of an underlying offence and, as well, upon the existence of the further specific intents mentioned in the subsection and recited above. Section 213(d) requires the commission or attempted commission of an underlying offence, but does not itself provide for any further intent or ulterior purpose. Therefore the mental element required for a conviction of murder must be found, in the case of a murder charged under s. 213(d), in the intent to commit the underlying offence. For this purpose it must be shown that the appellant intended to commit an indecent assault, and in this case that would require proof that the appellant intended to do the acts which, objectively viewed, constituted the indecent assault, and that he intended in the commission of the assault to possess and use a weapon, i.e. a knife.

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Where the underlying offence relied upon by the Crown is one requiring proof of a specific intent, no question would arise as to the application of the defence of drunkenness. In such circumstances where evidence of drunkenness adduced at trial justifies the putting of the defence, the jury should be directed in accordance with the well-established rules deriving from Beard’s case, supra, and accepted and approved in this Court in such authorities as MacAskill v. The King[8], Perrault v. The Queen[9] and Leary v. The Queen, supra; to the effect that if the evidence left them in doubt as to the capacity of the accused to form the specific intent required, they would find the accused not guilty of murder, but they could convict of manslaughter if satisfied that the killing was unlawful. The problem faced in this case arises because, as is pointed out above, the underlying offence is one which standing alone requires only a basic or general intent. In such circumstances, can the defence of drunkenness be called in aid by the appellant? Martin J.A., in the Court of Appeal, was of the view that the defence was available. He said:

It is plain from the trial judge’s observation to counsel during the objections to his charge, that he considered that the effect of the judgment of the Supreme Court of Canada in Leary v. The Queen, supra, was that drunkenness could not negative the general intent that suffices for indecent assault, even in the context of that offence as an ingredient of murder under s. 213(d). I am, with deference, unable to accept that view. If the Appellant because of intoxication, was not conscious of what he was doing, the minimum requirement of criminal liability for murder under 213(d) was lacking and, as I view the evidence, the jury should have been so instructed.

I agree with that proposition. The appellant in this case faced a charge of first degree murder. The jury ought to have been told by the trial judge that, if having considered the evidence including that of intoxication they doubted the appellant’s mental capacity to form the intent required for the completion of the indecent assault because of his state of intoxication, murder would not have been proved. The result, assuming that the jury was

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satisfied that the appellant had done the killing, would be an unlawful killing without the requisite intent for murder or, in other words, manslaughter.

This approach, in my view, is consistent with the authorities. Beard’s case limited the defence of drunkenness to offences requiring a specific intent, and this was accepted as well by a majority of this Court in Leary but, in my opinion, the Lord Chancellor in Beard’s case did not go so far as to say that in a case where a conviction for murder depended upon proof of a second or underlying offence the unconscious commission of that underlying offence, whatever intent may have been required for its completion, would suffice to make a subsequent killing murder. He said, at p. 504:

My lords, drunkenness in this case could be no defence unless it could be established that Beard at the time of committing the rape was so drunk that he was incapable of forming the intent to commit it, which was not in fact, and manifestly, having regard to the evidence, could not be contended. For in the present case the death resulted from two acts or from a succession of acts, the rape and the act of violence causing suffocation. These acts cannot be regarded separately and independently of each other. The capacity of the mind of the prisoner to form the felonious intent which murder involves is in other words to be explored in relation to the ravishment; and not in relation merely to the violent acts which gave effect to the ravishment (Emphasis added.)

These words have been said to have extended the defence of drunkenness to offences of general intent. In my view, they do not have that effect. They, nonetheless, support the proposition that the underlying offence in constructive murder must have been consciously committed. In Majewski, Lord Russell of Killowen dealt with these words, at p. 172. He said in reference to them:

In my opinion these passages do not indicate an opinion that rape is a crime of special intent. All that is meant is that conscious rape is required to supply ‘the felonious intent which murder involves’. For the crime of murder special or particular intent is always required for the necessary malice aforethought. This may be intent to kill or intent to cause grevious bodily harm: or in a

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case such as Beard of constructive malice, this required the special intent consciously to commit the violent felony of rape in the course and furtherance of which the act of violence causing death took place. Beard therefore, in my opinion does not suggest that rape is a crime of special or particular intent. (Emphasis added.)

It will be seen at once that Lord Birkenhead would have the accused’s capacity to form the felonious intent considered in relation to the ravishment, i.e. the underlying offence and not the violent act which led to the death. From this, I take it, he was of the view that even in a case of rape which involves only a basic intent the mental capacity of the accused was a matter for investigation where the rape was to form the basis of a charge of murder. Furthermore, Lord Russell spoke of the requirement of the commission of a ‘conscious rape’ in order to warrant a conviction upon the graver offence of murder which ensued as a result of the felonious assault. The application of s. 213(d) of the Code cannot result in a conviction for murder unless the accused person is shown to have been committing or attempting to commit one of the offences mentioned in the section. The duty is therefore put upon the Crown to prove the commission or attempt with all its mental elements as a necessary part of the proof of murder in order to meet the requirement noted by Lord Russell of proof of the conscious commission of the underlying offence. If the section did not require proof of such conscious commission or conscious attempted commission of one of the offences, it would be providing for a conviction of murder in the absence of any mental element or intent, or in ancient usage ‘malice aforethought’ and, to use the words of Martin J.A. in the Court of Appeal… in the absence of proof of even “the minimum requirement of criminal liability”. This principle was in the mind of Taschereau J. (as he then was) when he said in this Court in R. v. King[10], at p. 749, referring to a charge of impaired driving:

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I entirely disagree with the proposition of the Crown that whether the accused knew he was impaired or not he must be found guilty, and that under s. 223 Cr.C., no mental element has to be considered, and that the mere fact of impairment is sufficient to create the offence.

It is my view that there can be no actus reus unless it is the result of a willing mind at liberty to make a definite choice or decision, or in other words, there must be a willpower to do an act whether the accused knew or not that it was prohibited by law.

It follows from the foregoing that, like Martin J.A. in the Ontario Court of Appeal, I am of the opinion that the rule of law to the effect that voluntary or self-induced intoxication cannot negative a general intent constituting the only mental element required for an indecent assault does not apply to the offence of murder where the conviction rests upon proof of the offence of indecent assault. This conclusion rests upon the proposition that the appellant was not charged with indecent assault, an offence in respect of which the defence of drunkenness would not have assisted him. He was charged with murder, an offence which cannot be complete without the proof of some mental element which, in a charge of murder resting upon proof of an underlying offence, as in s. 213(d) of the Code, substitutes for the specific intent ordinarily required for murder. In this case proof of such mental element or intent can only be made by proof of an intent to commit an indecent assault and to use the knife in the commission of the assault.

The third issue, which arises from the earlier points discussed, is whether there was error in the trial judge’s charge on the applicability of the defence of drunkenness under s. 213(d) of the Criminal Code. Dealing with this question, the trial judge said:

The question of drunkenness to a degree to render the assailant incapable of forming the specific intents to which I earlier referred is irrelevant. The issue of drunkenness would only be relevant if the assailant was so intoxicated as to be unable to form the intent to use the knife and to form an indecent purpose.

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If you found that he used the knife and had an indecent purpose, it is hard to conceive how anyone could use a knife and have an indecent purpose, without having sufficient intellectual capacity to do so. However, I leave that with you.

Later, the jury returned to the courtroom with a question, which is reproduced hereunder from exhibit 75 at trial:

We require clarification of the definition of murder—re first, second and manslaughter with and without the involvement of alcohol. We would like to have these definitions in writing for further use in the jury room for our deliberations. Signed, ‘W. Collins’.

The trial judge answered with a restatement of the law on the points raised. Dealing with the effect of drunkenness, he said:

Now, to come to the third description of murder, or legal definition of murder, and it is only applicable if the Crown has satisfied you, beyond reasonable doubt, that the killing occurred in the course of the commission of the offence of indecent assault. So that description [sic] of definition of murder is that culpable homicide, the original concept that I mentioned to you, culpable homicide is murder where a person causes the death of a human being while committing an indecent assault, 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 he uses a weapon during or at the time he commits or attempts to commit the indecent assault, and the death ensues as a consequence.

Unless you are satisfied, beyond reasonable doubt, that the assault was for an indecent or sexual purpose, this section simply doesn’t apply. So if you are convinced, beyond reasonable doubt, that there was a sexual or indecent purpose, then the killing under this definition of murder is murder, regardless of whether or not there was an intent to kill, or an intent to do bodily harm known to be likely to cause death.

So the law says that when there is a killing, in carrying out of an indecent assault, that intention is irrelevant; that it isn’t necessary; it isn’t an essential ingredient of the offence of murder. And seeing that there is no specific intent required, most of what I said to you about alcohol is completely irrelevant, and doesn’t have to be considered, except if a jury was of the view that the person was so drunk that he was unable to

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form the intention to use a knife, or to form an indecent or sexual purpose.

And then, after some comments regarding the necessity of proof of indecent assault to justify a conviction of murder, he said:

But if you are satisfied, beyond reasonable doubt, that there was an indecent assault (that is, a sexual or indecent purpose connected with the assault), then alcohol plays virtually no part, except in those very limited circumstances that I mentioned.

The jury was later recalled and the trial judge gave further instructions on the defence of drunkenness, as it applied to the concept of murder under s. 212(a) of the Criminal Code, but these directions are not in issue here.

It will be seen that in the charge he told the jury the issue of drunkenness would only be relevant if the intoxication reached the point where the appellant was unable to form the intent to use the knife and to form an indecent purpose. In his recharge, he referred at one point to the necessity for a sexual or indecent purpose and later told the jury that no specific intent was required in this case and, therefore, evidence of alcohol was completely irrelevant. It will be seen at once that there are significant inconsistencies in his direction. To begin with, it is error to say that an indecent assault is one carried out for an indecent purpose. No such purpose need be shown—if the accused has carried out the acts which, objectively viewed, constitute the indecent assault. To say later that no specific intent is required is correct, but nevertheless confusing, considering the earlier words. In my view, the trial judge should have directed the jury on s. 212(a) as he did, and thereafter he should have told the jury that for a conviction of murder under s. 213(d) of the Criminal Code they must be satisfied beyond a reasonable doubt that the appellant at the time of the killing was in the course of committing an indecent assault upon the deceased, and upon this issue they could consider evidence of drunkenness. If such evidence left them with a reasonable doubt as to the capacity of the appellant, because of drunkenness, to form that minimal intent necessary for the indecent assault, i.e. to possess himself of and to use a weapon and do the acts which constituted the

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indecent assault they could not convict of murder, but if otherwise satisfied that the accused had done the killing, they should convict of manslaughter. It follows then, in my view, that the trial judge was in error in dealing with the issue of drunkenness in relation to s. 213(d), and it remains for us to consider whether the error was such that it led to a miscarriage of justice or any prejudice to the appellant. We have to decide, assuming that the trial judge’s direction was not correct in law—and to use the words of Martin J.A. in the Court of Appeal—: “whether the instruction that the trial judge gave was in the particular circumstances an equivalent or adequate instruction”.

In approaching this question, it should be observed at once that the trial judge, in defining an indecent assault, seems to have agreed with the submission of counsel for the defence that an indecent assault was an assault for an indecent or a sexual purpose. He said:

An assault becomes an indecent assault if it is made for an indecent or sexual purpose. Therefore, the Crown must prove, beyond reasonable doubt, that the attack upon Miss McKenna was made for a sexual or indecent purpose. It is a question of fact for you to decide whether or not the attack which took place upon her was for an indecent or sexual purpose. You must consider all of the circumstances to decide this, and, remember, you must give the accused the benefit of any reasonable doubt upon this issue, as well as all other issues in the case.

If this definition were accepted in law, it would mean that a conviction for an indecent assault would require proof and a finding by the jury of the formulation of a sexual or indecent purpose. This imposes a standard of proof upon the Crown going far beyond what the law requires. It has been shown above that all that is required for proof of the offence is proof that the accused did the acts which, objectively viewed, constituted the indecent assault.

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In explaining the difference between first and second degree murder, the trial judge said:

The Criminal Code provides that murder is first degree murder in respect of a person when the death is caused by that person while committing an offence of indecent assault. I do not intend to repeat what I said earlier about indecent assault. If you have found that the accused has committed the offence of murder, and you are satisfied, beyond reasonable doubt, that he committed that murder while committing the offence of indecent assault on Mary McKenna, you must find him guilty of first degree murder.

If, on the other hand, you have found that he committed the offence of murder but are not satisfied, beyond reasonable doubt, that he did so while committing the offence of indecent assault upon her, you must find him guilty of second degree murder.

It is thus apparent that the jury had been told that a finding of first degree murder was dependent upon a finding that the appellant had committed an indecent assault upon the deceased. They had been told, as well, that only drunkenness rendering the appellant unable to form the intent to use the knife and to carry out the assault would be relevant in this issue. They, nevertheless, found a conviction of first degree murder and upon the application of a test more favourable to the appellant than the law required. Such a finding makes it clear that the jury was satisfied that all the elements of indecent assault, including the mental capacity of the appellant, were proved and I am satisfied that there was no prejudice to the appellant or miscarriage of justice as a result of any deficiency in the charge on the issue of drunkenness. It was argued on this point that the trial judge failed to leave to the jury the option to convict of manslaughter, instead of murder, if satisfied of the unlawful killing and not satisfied that the requisite intent for murder had been shown. This option was clearly left to the jury in respect of murder under s. 212 of the Criminal Code, and not completely eliminated under s. 213(d). The judge said:

Members of the jury, if you are satisfied, beyond reasonable doubt, that the Crown has proved all of the essential elements contained in any one of those three

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definitions of murder, it is your duty to find that he has committed the offence of murder.

If you have found that the accused killed Miss McKenna, you are prevented by law from giving him a complete acquittal. The least offence of which he can be convicted is manslaughter.

If you have not been satisfied, beyond reasonable doubt, that the assailant killed Miss McKenna while indecently assaulting her, you must disregard the third definition of murder that I gave you.

While the option of manslaughter in respect of s. 213(d) of the Criminal Code could have been left to the jury in more explicit terms, in this case the fact that the jury delivered its verdict of first degree murder indicates that, even applying a test more favourable to the accused than required by law, they were of the view that the appellant was capable of the conscious commission of the act and, therefore, no occasion arose for the consideration of the alternative manslaughter verdict. The jury had been told that the only way they could convict of first degree murder was to find the appellant had committed an indecent assault. They were told, as well, to apply in that determination a test which left out of account the possibility of any unconscious commission of the assault. In my view, no reversible error occurred in this connection.

A final point taken by the appellant was set out in his factum in these terms:

Whether in murder in the commission of an offence under s. 213(d) of the Criminal Code the Crown must prove two separate criminal acts being (1) the ‘offence’ in this case indecent assault; and (2) a separate homicidal act causing death.

It was submitted that, for a conviction under s. 213(d) of the Criminal Code, the Crown must show two separate acts which in this case would consist of an indecent assault and a further act which caused the death. The proposition thus advanced was that causing the death by the act of assault itself would not be sufficient. Reliance was

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placed for this argument on R. v. Tennant and Naccarato[11]and R. v. DeWolfe[12].

I do not consider that either of the two cases supports the argument and I am unable to find any merit in it. In my opinion, it confuses the language of s. 212(c) of the Criminal Code—which does not require two separate acts but rather a separate unlawful purpose going beyond the actual act causing death—with the quite different language of s. 213(d). Section 212(c) of the Code provides that where a person “for an unlawful object” does anything he knows or ought to know is likely to cause death, and thereby causes death to a human being, he is guilty of murder. It is clear, and the cases referred to above hold, as do others, that there must be an unlawful purpose, other than the killing by the accused, in the pursuit of which the death occurs by the act of the accused. Section 213(d) of the Code imposes no such requirement. Its plain language provides that culpable homicide is murder when a person causes the death of a human being while committing or attempting to commit indecent assault, if he uses a weapon or has it upon his person during or at the time he commits or attempts to commit the offence, or during or at the time of his flight after committing or attempting to commit the offence, and death ensues as a consequence. The cases decided under s. 212(c), dealing with the requirement of an unlawful purpose during the pursuit of which a death occurs, can have no application to s. 213(d) which requires no such unlawful purpose. For the foregoing reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: Morris Manning, Toronto.

Solicitor for the respondent: The Attorney General for Ontario, Toronto.