On September 15, 2016 the verdict in the murder trial of Travis Vader was reached and Justice D.RG. Thomas allowed the reading of his decision to be broadcast. Almost immediately, legal scholars pointed out a potential flaw in the decision which would no doubt lead to an appeal. The clear legal error cited in the decision was the Judge’s reliance on section 230 of the Criminal Code.
Section 230 of the Criminal Code is intended to be what is referred to as a “Felony Murder” law. A Felony Murder law is a rule allowing a court to find a defendant guilty of murder if a person dies while that defendant is committing a specific crime. This can apply even if the death is entirely accidental or unanticipated. There are many jurisdictions including 46 US states that have Felony Murder laws.
Section 230 was designed to make culpable homicide murder if the defendant had engaged in sabotage, piracy, hijacking an aircraft, prison escape, assaulting a peace officer, sexual assault, kidnapping, hostage taking, robbery, breaking and entering and arson.
Although section 230 has been on the books for decades, in 1990 the Supreme Court found the law unconstitutional and of no force or effect. The part of the law that created the constitutional dilemma is that it creates liability for murder “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”. This caused particular concern as it created the same moral blameworthiness in someone who subjectively knew that their actions were likely to cause death as someone who had no idea that their actions could reasonably cause someone’s death. This was found to be in violation of both section 7 and section 11 of the Canadian Charter of Rights and Freedoms.
In R. v. Martineau, the Supreme Court found that “it is a principle of fundamental justice that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight of death.” It was important then, as it is now, that for someone to be a murder, they must have known that their actions could cause someone’s death.
What is always puzzling is why in the 26 years since the portion of the criminal code was declared unconstitutional has the federal government done nothing to remove the unconstitutional section? In a society where ignorance of the law is not a defence, how can a layperson be expected to know which written laws are valid and which are not if the government takes no action to repeal unconstitutional laws? Even some judges struggle with the distinction.
Scott Buchanan is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the Library Page at www.cobbjones.ca.