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ISSUE

Does felony murder under 230(d) violate the Charter?

HELD

Yes and s. 1 does not save it.

TEST

Ask yourself: Would it be possible for a conviction for murder to occur under 230(d) despite the jury having a reasonable doubt as to whether the accused ought to have known that death was likely to ensue?  The answer is “Yes” and this violates the Charter.

NOTES

The Court refused to answer whether an “objective foresight” standard is per se constitutional or whether it is a principle of fundamental justice that any culpable homicide should have subjective mens rea as a minimum standard of fault.

R. v. Martineau [1990] 2 S.C.R. 633

FACTS

The accused and a companion robbed a trailer. After the robbery, the companion killed the occupants of the trailer contrary to what the accused had intended.

ISSUE

Do felony murder and the objective foresight standard violate the Charter?

HELD

Yes. Crown’s appeal dismissed; new trial ordered.

TEST

Lamer C.J.C. – Subjective foresight of death must be proven beyond a reasonable doubt before a conviction for murder can be sustained.

NOTES

Dissenting voices:

L’Heureux-Dubé J.: objective foreseeability is an ok standard and we should be mindful of policy considerations.

Sopinka J. (concurred in the result): Mr. Chief Justice Lamer went too far in his sweeping statements about broad principles and should have restricted his comments to the facts of the instant case.

Sexual assault

Pappajohn v. R. [1980] 2 S.C.R. 120

FACTS

The case involved a man and a real estate agent who had lunch and alcohol and then went to his house, where he said they had consensual relations, and she says that she was raped.

ISSUE

Is mistaken belief (mistake of fact) a valid defence?

HELD

Yes. Appeal dismissed.

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