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Colorado Criminal Law Lawyer

 

FIRST DEGREE MURDER

Both first and second degree murder carry a mandatory life sentence; however, they are distinguished by eligibility for parole.  This is set out in CC231, which states that a first degree murderer, with few exceptions, cannot be released on parole until he has served 25 years.  The second degree murderer is eligible for parole after 10 years.  First degree murder is defined as “planned and deliberate” under CC231.2.  More v. R. (1963) defined “planned” as “arranged beforehand” and “deliberate” as “considered, not impulsive.”

 

R. v. Smith (1979) Sask. CA

The issue was whether or not there was evidence of planning and deliberation upon which the jury could properly find the appellant guilty of first degree murder.  The accused went with two others to an old farmhouse, which they vandalized.  All three had taken guns with them.  Argument between two of them resulted in one dying (shot five times).  The killing was deliberate but there was no evidence of planning.  Therefore, there were no evidential grounds for the jury being instructed on first degree murder.  On appeal to the SCC, a conviction of second degree murder was substituted.  Reynolds previously established that planning should be viewed in its everyday meaning and only occurs after the intent to murder has been formed.  For planning to exist, there must be proof that the murder was the result of a scheme or design previously formulated by the accused.  A sudden impulse without prior consideration, even though an intent to kill is proven, would not constitute a planned murder under CC231.2.

 

 

R. v. Nygaard and Schimmens (1989) SCC

Deceased purchased a stereo from N using a cheque that bounced.  N and S returned to the deceased to collect the money.  Deceased was hit by S with a baseball and died.  The issue focused on what is the specific mens rea required for 212.a.2. for which an element of planning and deliberation must be in place.  The SCC found that a vital element of the requisite intent is causing such bodily harm that the perpetrator knows is likely to cause death and persists in the assault, which is to be linked up with intent.  N and S formed the intent to repeatedly strike the victim on the head with a baseball bat realizing full well that death would probably result.

 

MURDER OF A POLICE OFFICER

R. v. Munro and Munro (1983) Ont. CA

Under CC 231.4, it is necessary for the Crown to prove that the offender knows that he was shooting at a police officer acting in the course of his duties.  This happened in the basement of a tavern.  The appeal was based on a claim by the accused that the trial judge should not have instructed the jury with respect to the CC provision re: murder of a police officer.  The SCC rejected this appeal on the basis that the accused must have been conscious of the risk that he was firing at a police officer – on the evidence no other conclusion could be made.

 

R. v. Collins (1990) Ont. CA

A police officer dressed in uniform was killed by the accused in a shopping mall.  The accused then took the officer’s gun.  Evidence from an informant was used to obtain a search warrant of the accused’s premises.  Police found guns there, including the one that was used to kill the officer.  The onus is on the Crown to prove that the accused had knowledge that the victim was a police officer acting in the course of his duties.

 

CONSTRUCTIVE FIRST DEGREE MURDER

R. v. Arkell (1990) SCC

The accused argued that the classification of first degree murder in CC214.5 of a murder committed in the course of committing or attempting to commit a sexual assault was a classification that violated the accused’s s.7 and 11d rights.  This was dismissed because the requirement of subjective foresight of death was met.  As a result, s.7 was not violated.

DEGREES OF SUBJECTIVE MENS REA

•    Willful Blindness
•    Intent
•    Recklessness
•    Motive

CC 148, 155, 163.2 – Parliament makes it clear what the subjective mens rea are.  Where such words don’t appear, there is a common law presumption in favour of subjective mens rea.

R. v. Lucas (1998) SCC

Cory J states that in the absence of an express legislative provision it should be presumed that proof of subjective mens rea is a requirement of criminal offences – most fair to the accused.  There is no definition of intent in the CC.  Rather, it is construed loosely as purpose, aim and actual desire (no way to come to a definitive definition).

 

MOTIVE

Lewis v. R. (1979) SCC

Accused appealed a murder conviction on the grounds that the trial judge failed to charge the jury on the question of motive.  An electric kettle rigged with an explosive was sent to the co-accused’s daughter, which resulted in murder.  No evidence was lead by the Crown regarding motive and the accused claimed that he was innocently duped by the co-accused into sending the package.

 

The SCC dismissed the appeal because motive is not part of the requisite mens rea that the Crown had to prove for murder.  The words “intent” and “motive” are frequently used interchangeably, but in the criminal law they are distinct.  The Mens Rea usually relates to intent.  INTENT – the exercise of free will to use particular means to produce a particular result.  MOTIVE – that which precedes and induces the exercise of free will.

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