S. 229(c) of the Criminal Code is the only surviving murder provision that does not require a specific intention to seriously harm or kill. It is also one of the oldest provisions contained in the Criminal Code. Is it constitutional?

Yes: R. v. Shand, 2011 ONCA 5.

There are two basic components to s. 229(c).

The first is relatively straightforward. It requires that the perpetrator be pursuing an unlawful object.

The second component is the doing of anything that the person knows is likely to cause someone's death.

The Court finds the section is constitutional:

[175] Having reached this conclusion, I acknowledge nonetheless that a passage in Lamer C.J.'s reasons in Martineau may be susceptible to more than one interpretation. The appellant and interveners argue that this passage, at pp. 645-6 of the decision, suggests that the court in fact considered the intent to cause death or bodily harm knowing that death is likely, to be the constitutional minimum for murder.

[176] In this passage, Lamer C.J. seems to move freely between the concept of intent and the concept of subjective foresight. I have reproduced this paragraph in full and have italicized the relevant portions:

A conviction for murder carries with it the most severe stigma and punishment of any crime in our society. The principles of fundamental justice require, because of the special nature of the stigma attached to a conviction for murder, and the available penalties, a mens rea reflecting the particular nature of that crime. The effect of s. 213 is to violate the principle that punishment must be proportionate to the moral blameworthiness of the offender, or as Professor Hart puts it in Punishment and Responsibility (1968), at p. 162, the fundamental principle of a morally based system of law that those causing harm intentionally be punished more severely than those causing harm unintentionally. The rationale underlying the principle that subjective foresight of death is required before a person is labelled and punished as a murderer is linked to the more general principle that criminal liability for a particular result is not justified except where the actor possesses a culpable mental state in respect of that result: see R. v. Bernard, [1988] 2 S.C.R. 833, per McIntyre J., and R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.), per Martin J.A. In my view, in a free and democratic society that values the autonomy and free will of the individual, the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who choose to intentionally cause death or who choose to inflict bodily harm that they know is likely to cause death. The essential role of requiring subjective foresight of death in the context of murder is to maintain a proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. Murder has long been recognized as the "worst" and most heinous of peace time crimes. It is, therefore, essential that to satisfy the principles of fundamental justice, the stigma and punishment attaching to a murder conviction must be reserved for those who either intend to cause death or who intend to cause bodily harm that they know will likely cause death. In this regard, I refer to the following works as support for my position, in addition to those cited in Vaillancourt: Cross, "The Mental Element in Crime" (1967), 83 L.Q.R. 215; Ashworth, "The Elasticity of Mens Rea," in Crime, Proof and Punishment (1981); Williams, The Mental Element in Crime (1965); and Williams, "Convictions and Fair Labelling", [1983] 42 Cambridge L.J. 85. [Emphasis added].

[177] In my view, when read in the context of the reasons as a whole and the decisions released concurrently with Martineau, this passage cannot be interpreted as the appellant and interveners' contend. The requirement of subjective foresight of death is repeated numerous times in the balance of the reasons, but the reference to the intent to kill or to cause grievous bodily harm appears only in this paragraph.

[178] As I have explained, interpreting the passage as the appellant suggests would conflict with:

1) Lamer C.J.'s stated intention of clarifying s. 229(c) in the event of a later prosecution of Martineau under that section;

2) the balance of the reasons in Martineau, where it is made clear that the constitutional minimum is the subjective foresight of death; and

3) the decisions released concurrently with Martineau, in which the same constitutionally-mandated minimum of subjective foresight of death is confirmed.

[179] The explanation for this apparent confusion lies in a reading of the articles Lamer C.J. has referred to at the end of this passage. These articles disclose a debate among academics as to whether, in the words of Professor Rupert Cross, "there is much difference in moral blame between a man who does an act knowing it is certain to cause serious harm, and one who does the act knowing it is likely to have that effect": "The Mental Element in Crime" (1967) 83 LQR 215 at p.217.

[180] In the article, Professor Cross gives the example of person "A" intending to make a claim against his insurance company, who sets fire to his house knowing that his baby son will probably be burnt to death. Professor Cross explains that it would be possible to construct a highly sophisticated utilitarian argument in favour of punishing "A" less severely than someone who is virtually certain that death will ensue (in Canada this would constitute oblique intent, the equivalent to intent, see R. v. Chartrand [1994], 2 S.C.R. 864). However, he observes that it would be difficult to accommodate these concerns in the definition of the crime, given that the level of blameworthiness would depend on the extent to which "A" hoped that his baby would escape harm.

[181] In the article, Professor Cross goes on to refer to the views of Professor Williams, which differed from his own. Professor Williams' view was that virtual certainty was necessary to constitute intent. Professor Cross then explains, at pp. 217-18:

So far as Professor Williams is concerned, the major culprit is Lord Denning for having, throughout his Lionel Cohen lecture, treated intention in the law of murder as including foresight of the likelihood of death or grievous bodily harm.

Most lawyers would agree that such foresight constitutes malice aforethought under the present law and accordingly hold A guilty of murder if his baby were burnt to death. The precise extent of A's liability if the baby were to survive with burns is more disputable.

[182] Professor Cross was explaining the view contrary to that of Professor Williams, by which foresight of the likelihood of death constituted malice aforethought for murder at common law. Malice aforethought was the mens rea concept that Canada's codified law of murder has replaced with the intent to cause death contained in s. 229(a).

[183] Given that Lamer C.J. referred to the works of both Profs. Williams and Cross as influencing his reasons in Martineau, he was surely aware of the debate as to whether subjective foresight of the likelihood of death was the normative equivalent of intent. It would appear, therefore, that Lamer C.J.'s use of the phrases interchangeably in this paragraph indicates his acceptance of the view that, in the context of s. 229(c), subjective foresight of death provided the level of intent required for murder.

[184] This view of intent is, in a sense, consistent with the view expressed by the Supreme Court of Canada in both R. v. Nygaard and R. v. Cooper. In Nygaard, the court was considering s. 229(a)(ii) and, at p. 1089, found that someone who viciously assaults another person realizing that death is likely has "committed as grave a crime as the accused who specifically intends to kill." In other words, by pushing ahead to achieve a criminal objective knowing that death will likely occur as a result, a person intentionally causes the death.

[185] We must recall that s. 229(c) is set apart from provisions that might seek to label any foreseen death as murder. Like s. 229(a)(ii), it contains a "true" intent requirement, intent in the sense of being the accused's purpose, object or desire. Section 229(a)(ii) requires a true intent to cause serious bodily harm and s. 229(c) requires an intent to further the pursuit of an unlawful object, which is itself an indictable offence requiring full mens rea. When the subjective foresight of death is combined with an ulterior intent that is itself sufficiently culpable, together they constitute a proper normative substitute for an intent to kill. This, in my view, is what emerges from the passage in Martineau that the appellant and interveners rely on.

D. Vagueness and overbreadth

[186] I consider the appellant's overbreadth argument to be largely an adjunct to his Martineau argument. When interpreted as I have suggested in the previous section, s. 229(c) is limited in its application. Similar to s. 229(a)(ii), it involves only a "slight relaxation" in the mens rea required for a conviction as compared to s. 229(a)(i): R. v. Cooper, at p. 155.

[187] With respect to the appellant's vagueness argument, I have carefully set out both the actus reus and mens rea requirements of s. 229(c) in the previous section and, for these reasons, reject the submission that the section is unconstitutionally vague.