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.
This section has been challenged in R. v. Roks, 2010 ONCA 182 on the basis that the section violates s. 7 of the Charter and cannot be saved by s. 1 because it allows for a murder conviction in the absence of an intent to cause death or grievous bodily harm.
The issue is an important one and, if the section is found unconstitutional a number of murder changes currently outstanding would be reduced to manslaughter (for example the Jiwa trial (killing a York police officer)).
The case has drawn wide attention and today, perhaps surprisingly, an accused with pending charges was allowed to intervene on the appeal. The Court in allowing the intervention discussed the law generally:
THE LAW
[5] The decision to grant leave to intervene is highly discretionary. In Bedford v. Canada (Attorney General), 2009 ONCA 669, this court explained that where an applicant seeks to intervene in a Charter case, at least one of three criteria is usually met: (i) the applicant has as real, substantial and identifiable interest in the subject matter of the proceedings; (ii) the applicant has an important perspective distinct from the immediate parties; or (iii) the applicant is a well-recognized group with a special expertise and a broadly identifiable membership base: Bedford at para. 2. The court in Bedford also reiterated the "over-arching" principle laid down by Dubin C.J.O. in Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada (1990), 74 O.R. (2d) 164 at p. 167:
Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.
...
ANALYSIS
[11] As a general proposition, leave to intervene in a criminal proceeding where the liberty of the subject is involved should be granted sparingly: R. v. Seaboyer (1986), 50 C.R. (3d) 395 (Ont. C.A.). In the unusual circumstances of this application, I am persuaded that this is one of those rare cases where intervention is warranted. I arrive at this result for the following reasons.
[12] First, I accept the applicant's argument that he should not be prejudiced in making submissions on the validity of s. 229(c) simply because Roks's trial arising out of the same set of facts proceeded through the Superior Court first. In my view, the applicant stands to be directly and meaningfully affected by the outcome of the forthcoming appeals, not simply because he, like Roks, is charged under s. 229(c), but because of the factual nexus that ties their cases together. There is no doubt that, had the applicant been tried and convicted already, his subsequent appeal would have been heard at the same time as the Roks appeal. As it happens, the applicant's trial was originally scheduled to commence in February 2008. It was adjourned in January 2008 when his then-counsel was appointed to the bench. A new trial date of April 2009 was adjourned due to new or outstanding disclosure. Both of these delays were beyond the applicant's control.
[13] Second, questions of constitutional validity are often litigated using reasonable hypotheticals which permit the court to consider the effect of an impugned law as it applies in different fact situations. In this case, although the applicant does not propose to add to the existing record, the fact that he is alleged to have been a step farther removed from the actual execution of the arson than the appellant Roks would provide the court with a helpful perspective on how liability under s. 229(c) may play out under various scenarios. In my view, judicial economy would be served by allowing the applicant to offer that different perspective.
[14] Third, in my view, the equities of the case favour the applicant's intervention. Courts are very reluctant to allow intervenors in criminal cases where the proposed intervenor supports the Crown's position. A criminal proceeding in which the accused person is obliged to respond to the submissions of more than one prosecutor lacks the appearance of fairness: R. v. Finta (1990), [1991] 1 O.R. (3d) 183 at p. 186. Such a concern is not present here, where the applicant's interests align with the appellants', and the appellants have consented to the intervention. Further, as the applicant has noted, the Attorney General of Canada has a statutory right to be heard in the upcoming appeals by virtue of s. 109(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43. If the Attorney General of Canada chooses to exercise that right, the court will hear two responding parties' perspectives on the validity of s. 229(c). In these circumstances, the addition of an intervenor supportive of the appellants' position would not create an appearance of imbalance.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
www.jmortonmusings.blogspot.com
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