222

Constitutionality

Homicide

222 (1) A person commits homicide when, directly or indirectly, by any means, he causes the death of a human being.

Kinds of homicide

(2) Homicide is culpable or not culpable.

Non culpable homicide

(3) Homicide that is not culpable is not an offence.

Culpable homicide

(4) Culpable homicide is murder or manslaughter or infanticide.

Idem

(5) A person commits culpable homicide when he causes the death of a human being,

(a) by means of an unlawful act;

Annotations

  • Section 222(5)(a)

     

  • Unlawful act manslaughter is committed when a person commits an unlawful act that causes death to another individual. An unlawful act is any offence under federal or provincial statute, except for absolute liability offences that is not unconstitutional: R v Desousa, [1992] 2 SCR 944 at p 956-957. Absolute liability offences are offences that do not require a mental element. In these offences, an accused will be convicted if it’s merely proven they committed the prohibited act: R v Sault Ste. Marie, [1978] 2 SCR 1299 at 13101

     

  • The unlawful or underlying act is known as the “predicate” offence. There is no independent requirement that the predicate offence be objectively dangerous. Further, there is no requirement that the accused had a subjective intention or knowledge that their conduct would cause non-trivial bodily harm;. R v Javanmardi, 2019 SCC 54 at para 30. R v Laberge, 1995 ABCA 196 at paras 13-14.

     

  • Essential Elements

     

  • Actus Reus

     

  • The actus reus of unlawful act manslaughter is satisfied by proof beyond a reasonable doubt that the accused committed an unlawful act that caused the death of a person: R v Javanmardi, 2019 SCC 54 at para 30.

     

  • Mens Rea

     

  • The mens rea of unlawful act manslaughter has 2 components:

     

  • In determining the mens rea required for the predicate offence, the actions or omissions of an accused will be judged against what is expected of a “reasonable person” on the basis of the nature and circumstances of the activity: R v Creighton, [1993] 3 SCR 3 at 73-74.

     

  • If the predicate offence is one of strict liability, or involves carelessness, the mens rea for that offence is a marked departure from the standard expected of a reasonable person in the circumstances: R v Creighton, [1993] 3 SCR 3 at p 59; R v Javanmardi, 2019 SCC 54 at 31.

     

(b) by criminal negligence;

Annotations

  • Section 222(5)(b)

     

  • Manslaughter based on criminal negligence is indistinguishable from criminal negligence causing death and the same test applies to both charges: R v Aleksev, 2016 ONSC 1834 at para 57; R v Plein, 2018 ONCA 748, at para 26; Criminal Code, RSC 1985, c C-46, s 220.

     

  • Elements of the Offence

     

  • The actus reus of criminal negligence causing death requires that the accused undertook an act — or omitted to do anything that it was his or her legal duty to do — and that the act or omission caused someone's death. (para 19)

     

  • The mens rea is where an accused shows wanton or reckless disregard for the lives or safety of others. (para 20) . The fault element is assessed by measuring the degree to which the accused's conduct departed from that of a reasonable person in the circumstances. It is an elevated standard which requires that the accused's conduct constitute both a marked and substantial departure from the conduct of a reasonable person in the accused's circumstances. (paras 20-21): R v HC, 2020 ONCJ 418 at paras 174-183 and 279, 287-290.

     

(c) by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or

Annotations

  • Section 222(5)(c)

     

  • Actus Reus

     

  • The actus reus requires is a threat conveyed to the victim, a fear of violence created in the victim by the offender's conduct or by deception that leads the victim to personally commit the fatal act: R c Charbonneau, 2016 QCCA 1354 at 68; R v Hall, 2015 ONSC 3276 at 28; R v Gure, 2019 ONSC 4951 at para 234

     

  • Threat is defined as communication that looked at objectively and in its context and having regard to its intended audience (the person to whom the words, gesture, or conduct are aimed) would intimidate, coerce, or frighten that person: R v Hall, 2015 ONSC 3276 at para 15, citing: R v Benjamin, 2010 ONSC 5799 at para 19.

     

  • A threat must contain some unlawfulness or moral culpability; it cannot be benign or a threat to do something lawful: R v Hall, 2015 ONSC 3276 at para 14.

     

  • To prove a “threat”, the Crown must prove beyond a reasonable doubt that the accused did something by words, gesture, or conduct to communicate intention to cause physical harm or death. The Crown must also prove the accused did so with the intention to intimidate, coerce, or frighten: R v Hall, 2015 ONSC 3276 at para 16.

     

  • To prove “fear of violence”, the Crown must prove beyond a reasonable doubt that, (1) the accused did something by words, gesture, or conduct to cause the victim to fear for their safety, (2) the accused did so with the intention of causing the victim to fear for their safety, and (3) the accused caused the victim to subjectively fear for their safety, and that fear was objectively reasonable: R v Hall, 2015 ONSC 3276 at para 18. ; R v Charbonneau, 2016 QCCA 1354 at para 73

     

  • The Crown must also prove the victim did something that caused their own death (factual causation); and, in the case of threats or fear of violence, the Crown must prove that the accused’s threat or fear of violence, caused the victim to cause their own death (legal causation): R v Hall, 2015 ONSC 3276 at paras 19–22; R v Charbonneau, 2016 QCCA 1354 at para 113

     

  • An intervening act may limit the scope of legal causation between an accused’s acts and a victim’s death: R v Maybin, 2012 SCC 24 at para 5.

     

  • Not all unforeseeable or independent intervening acts will break the chain of causation: R v Gure, 2019 ONSC 4951 at paras 242 and 244.

     

  • An act by a third party who is acting in furtherance of a joint activity with the accused will not sever legal causation: R v S.R.(J.), 2008 ONCA 544 at para 32.

     

  • If there are any independent intervening acts, the Crown must prove that the accused’s contribution to the chain of causation is a significant contributing cause in light of the intervening act: R v Hall, 2015 ONSC 3276 at paras 25-27; R v Maybin, 2012 SCC 24 at paras 23, 30; R v Gure, 2019 ONSC 4951 at para 244.

     

  • Mens Rea

     

  • The mens rea requires objective foreseeability that the victim would cause non-trivial bodily harm to themselves in response to reasonably apprehended violence: Charbonneau c R., 2016 QCCA 1354 at para 108 ; R v Gure, ONSC 4951 at para 235.

     

(d) by wilfully frightening that human being, in the case of a child or sick person.

Exception

(6) Notwithstanding anything in this section, a person does not commit homicide within the meaning of this Act by reason only that he causes the death of a human being by procuring, by false evidence, the conviction and death of that human being by sentence of the law.

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