2nd Degree Murder

Issue: Can the accused be charged for murder u/s 231(2) or punished for murder
u/s235 of the CC

Rule: 222. (1) A person commits homicide when, directly or indirectly, by any means,
he causes the death of a human being.
(2) Homicide is culpable or not culpable.
(3) Homicide that is not culpable is not an offence.
(4) Culpable homicide is murder or manslaughter or infanticide.

229. Culpable homicide is murder

(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;
(b) where a person, meaning to cause death to a human being or meaning to cause him
bodily harm that he knows is likely to cause his death, and being reckless whether death
ensues or not, by accident or mistake causes death to another human being,
notwithstanding that he does not mean to cause death or bodily harm to that human
being; or
(c) where a person, for an unlawful object, does anything that he knows or ought to
know is likely to cause death, and thereby causes death to a human being,
notwithstanding that he desires to effect his object without causing death or bodily
harm to any human being.

231. (1) Murder is first degree murder or second degree murder.

(2) Murder is first degree murder when it is planned and deliberate.
(7) All murder that is not first degree murder is second degree murder.

Application:

The Actus Reus of murder consists of committing homicide (directly or indirectly, by

any means, causing the death of a human being) that is a culpable homicide with the
meaning of S.222(5).
Second Degree murder requires the crown to prove that the elements of murder u/s 229
have been met and that the murder was not first degree murder accordance with 231(2)
of the CC. (R v Nette)

The minimum mens rea for murder (1st & 2nd degree) is an intent to cause death or an
intent to cause bodily harm that the person knows will likely cause death (i.e subjective
foresight of death) (R. V Martineau). Murder is a specific intent crime.

Factual Analysis:

The Crown needs to prove beyond a reasonable doubt that the mens rea and actus reus
along with legal and factual causation were present at the time of the crime. The accused
can only be convicted if causation has been proved (R v William)

In the current case the actus reus is likely to be proved by way of the fact that the
accused did cause the death of the victim and that this death was not planned and
deliberated but due to heat of passion or as a result of assault (Hint: if it is bodily harm
then discuss how there was foreseeability of bodily harm, use all the circumstantial
evidence, subjective foresight is an important element if it is a part of your question).

The crown will then have to prove whether the requirements of causation can be met
because the act that caused the death has to be the act of the accused (R v D). The SCC
has instructed that causation has both a factual and legal component. (Smithers, Nette,
Maybin). This discussion has three components:
1. What was the physical or medical cause of death?
2. What role did the accused play in the death? (But for test, Thin Skull Rule)
3. Should the accused be held responsible in law for the death?

Factual Causation:
According to the report, the physical cause of the death of the victim was (Hint: mention
the cause of death along with all the intervening acts. Please narrate the whole story in
your words). It can clearly be made out the death did occur due to the act of the accused
although this act was not the only act that caused the death but it was a considerable
cause. It can be said that were it not for these events and acts of the accused the victim
would not require (Hint: mention the intervening act, use circumstantial evidence) and
would not have been subjected to (Hint: mention the reason for death). It can be said
that the factual causation has been established.

In determining if the act was considerable cause of death the SCC laid out the test for
causation as under:
Was the act of the accused at least a contributing cause of death, outside the de minimus
range? (R v Smithers). In Nette the SCC laid out the test for causation: Was the act of the
accused a significant cause of death? It must be remembered that the act of the may not
be the only act that caused death but it should be a significant cause of death. The
ultimate issue is whether the accused’s actions continue to constitute a significant cause
of death. Even though the death of the accused was caused most directly by (Hint:
mention the intervening act), it can still be argued that the accused’s actions remain a
significant cause of the victim’s death. An argument can also be made that the
intervening acts of (Hint: mention the intervening act) broke the chain of causation. The
intervening act not happening could have prevented the death but as per s. 224 which
says that were a person, by an actor omission, does anything that results in the death of
a human being, he causes the death of that human being notwithstanding that death
from that cause might have been prevented by resorting to proper means. (Use s.225 if
death happened from treatment or injury)

Only if there is an Underlying medical condition:

“Thin skull” principle requires that “even if a person of normal fortitude would
withstand a certain blow to the head without serious injury, the defendant is fully liable
for the unexpectedly serious consequences of her actions if her victim happens to
experience catastrophic loss because he has an unusual thin skull.” (Athey) (Hint: Use
this for thin skull rule)

Legal Causation:
Keeping in mind the tests above one can say that the legal cause of death was the act of
the accused that was a significant cause in the chain of events that led to the victim’s
death. The intervening act not happening could have prevented the death but as per s.
224 which says that were a person, by an actor omission, does anything that results in
the death of a human being, he causes the death of that human being notwithstanding
that death from that cause might have been prevented by resorting to proper means.
(Use s.225 if death happened from treatment or injury)

The mens rea can also be established since the minimum mens rea to support the charge
of murder is an intent to cause death or an intent to cause bodily harm that the person
knows is likely to cause death the accused has (Hint: mention how did you figure that
mens rea is present, either by the conversation of the accused with other people or his
past conduct towards the accused or any threatening words, any previous attempts or
any form of previous struggle.

Conclusion: It is likely/ unlikely that the charge of second degree murder can be made
out as the mens rea and actual reus along with factual and legal causation can be made
out.