Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.
*Chouinard J. took no part in the judgment.
on appeal from the prince edward island supreme court, appeal division
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Presumption of innocence ‑‑ Constructive murder ‑‑ Death caused by accomplice during break, enter and robbery ‑‑ Proof of intentional dangerous conduct causing death substituted for proof of mens rea with respect to death of victim ‑‑ Accused's conviction possible notwithstanding existence of reasonable doubt on essential element ‑‑ Whether s. 213(d) of the Criminal Code violates ss. 7 and 11(d) of the Charter .
Criminal law ‑‑ Constructive murder ‑‑ Fundamental justice ‑‑ Presumption of innocence ‑‑ Death caused by accomplice during break, enter and robbery ‑‑ Proof of intentional dangerous conduct causing death substituted for proof of mens rea with respect to death of victim ‑‑ Accused's conviction possible notwithstanding existence of reasonable doubt on essential element ‑‑ Whether s. 213(d) of the Criminal Code violates ss. 7 and 11(d) of the Charter .
Appellant, his brother and a third person broke into a house with the intention of committing robbery. The appellant's brother entered the premises armed with an iron pipe and, surprised by the owner, beat him to death. He pleaded guilty to second degree murder under s. 213 (d) of the Criminal Code . The appellant was convicted of second degree murder as a party to the offence under s. 21(2) of the Code. His appeal from conviction on the ground that the combination of ss. 21(2) and 213(d) of the Code contravened s. 11( d ) of the Charter was dismissed.
Held: The appeal should be allowed and a new trial ordered.
In light of R. v. Vaillancourt, [1987] 2 S.C.R. 636, s. 213 (d) of the Criminal Code is inoperative and the conviction cannot stand.
Cases Cited
Followed: R. v. Vaillancourt, [1987] 2 S.C.R. 636.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 7 , 11( d ) .
Criminal Code, R.S.C. 1970, c. C‑34, ss. 21(2), 213(d) [am. 1974‑75‑76, c. 93, s. 13; am. idem, c. 105, s. 29 item 1(4)].
APPEAL from a judgment of the Prince Edward Island Supreme Court, Appeal Division (1985), 21 C.C.C. (3d) 106, 17 C.R.R. 41, 55 Nfld. & P.E.I.R. 10, 162 A.P.R. 10, dismissing the accused's appeal from his conviction on the charge of second degree murder. Appeal allowed and new trial ordered.
John L. MacDougall, for the appellant.
Darrell E. Coombs, for the respondent.
The judgment of Dickson C.J. and Estey, Lamer and Wilson JJ. was delivered by
1. Lamer J.‑‑This appeal raises a question of law that is decided in the judgment rendered this day in R. v. Vaillancourt, [1987] 2 S.C.R. 636, namely the constitutionality of constructive murder as provided by s. 213(d) of the Criminal Code, R.S.C. 1970, c. C‑34.
2. The appellant, his elder brother Stephen Laviolette and a third person went to a parish house with the intention of committing a robbery. Stephen gained entrance to the house through a ground‑floor window. He asked Brian to give him an iron pipe that was leaning against the house and Brian did so. Stephen then opened the front door of the house and the others entered. Finding nothing on the ground floor, they went upstairs. Awakened by the noise, the priest emerged from his bedroom and saw Stephen. Stephen beat him to death with the pipe.
3. Stephen pleaded guilty to second degree murder. The appellant and the third person were charged with second degree murder under the combined operation of ss. 21(2) and 213(d) of the Code and were convicted following a joint trial. The Prince Edward Island Supreme Court in banco set aside their convictions and ordered the accused to be re‑tried separately. At his second trial the appellant was again convicted of second degree murder. The third person was acquitted.
4. The appellant appealed from this second conviction on the ground, inter alia, that the combination of ss. 21(2) and 213(d) of the Code contravened s. 11( d ) of the Canadian Charter of Rights and Freedoms . The Prince Edward Island Supreme Court in banco unanimously dismissed his appeal: (1985), 21 C.C.C. (3d) 106.
5. MacDonald J., with whom Campbell J. concurred, held that the presumption of innocence is not affected by ss. 21(2) and 213(d) of the Code, because the Crown must prove beyond reasonable doubt all of the elements required by s. 213(d). With respect to the elements required by s. 213(d), he stated (at p. 114):
By not including in the definition of murder in s. 213(d) a requirement of mens rea to commit murder, Parliament has not taken away from an accused the right to be presumed innocent.
6. McQuaid J., in separate reasons, came to the same solution. He wrote, at p. 110:
Neither of those two sections, taken either separately or in concert, creates a presumption of guilt or violates a presumption of innocence. They simply say that if persons act in a certain way, with certain consequences, and an independent and impartial tribunal, i.e., a jury, finds that they have done so, in accordance with law, i.e., on the initial assumption of innocence, in a fair and public hearing, i.e., a trial, then certain sanctions will inevitably follow, i.e., conviction and sentence. Indeed, it can be truly said that not only does the conjunctive effect of ss. 213(d) and 21(2) not violate s. 11( d ) of the Charter , but rather is the practical embodiment of it.
7. With respect, I do not share these views. For the reasons that I have given this day in this Court's judgment in Vaillancourt, supra, I am of the view that s. 213(d) of the Code infringes the rights guaranteed by ss. 7 and 11( d ) of the Charter and is not a reasonable limit on those rights, and is thus inoperative. The appellant's conviction pursuant to s. 213(d) thus cannot stand.
8. I would thus allow the appeal, set aside the appellant's conviction and order a new trial.
The reasons of Beetz and Le Dain JJ. were delivered by
9. Beetz J.‑‑For the reasons given in my judgment in R. v. Vaillancourt, [1987] 2 S.C.R. 636, rendered today, I would allow the appeal, set aside the appellant's conviction and order a new trial.
The following are the reasons delivered by
10. McIntyre J.‑‑For the reasons of the majority in R. v. Vaillancourt, [1987] 2 S.C.R. 636, delivered concurrently, I would allow the appeal, set aside the appellant's conviction and order a new trial.
The following are the reasons delivered by
11. La Forest J.‑‑For the reasons given in my judgment in R. v. Vaillancourt, [1987] 2 S.C.R. 636, rendered today, I would allow the appeal, set aside the appellant's conviction and order a new trial.
Appeal allowed and new trial ordered.
Solicitor for the appellant: John L. MacDougall, Charlottetown.
Solicitor for the respondent: Darrell E. Coombs, Charlottetown.
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