- 229(b): transferred intent: MR of intentionally or knowingly causing death to one person is transferred to

the killing of the victim, even though the accused ‘does not mean to cause death or bodily harm’ to the victim
and does by ‘incident or mistake’.
 Fontaine (2002 MNCA): intention to commit suicide does not count.--> person driving car
with his friends transferred his intent of suicide to his friends… still yet to come to the SC
o R v Droste (no.2) 1984: transfer if accidental
 Fact: D kills two children accidently via asphyxiation by incident when in a deliberate attempt
to kill his wife, set fire to the car.
 Held: Because of attempted murder of A’s wife was planned and deliberate, and the
intent of planning and deliberation, as well as the guilty knowledge that death would
result, could be transferred to children’s death.
o R v JSR: The case of transferred intent involves mistaking your victim not killing a bystander who
happened to be around…
- 229(c): unlawful object/ ‘crimes gone wrong’: unlawful object must be distinct and not merge with
the dangerous act that caused the victims death – you don’t mean to cause death but you do things that are
likely to cause death in attempts to get away/ to proceed with your unlawful act and the ‘dangerous act’ is
likely to cause death
o R v Vasil: held that the unlawful object must be the pursuit of a serious crime “clearly distinct from
the immediate object of the dangerous (unlawful) act.” Ex. pursuit of a serious crime like theft and
you kill someone during the theft… the theft and the murder are distinct
o R v Martineau 1990 SCR: referred to in R v Shand
O Facts and Issue: X and A rob trailer during which X killed occupant (because the victims
saw their faces) contrary to what A had intended. Trial judge used objective foresight to convict A
for murder of the victim under section 229(c). Does felony murder under section 229(c) and the
objective foresight standard violate the Charter?
O Lamer, following his decision in R v Vaillancourt, states that he believes that all murders
should require subjective intent, as it is the most heinous and punished crime, and therefore
the threshold should be set high. He states that "a conviction for murder cannot rest on
anything less than proof beyond a reasonable doubt of subjective foresight of death."
O He holds that it is unconstitutional to convict a person of murder under s.229(c) of the CC on
the basis that while pursuing an unlawful object, he ought to have known that death was likely
to result. He decides that section 230 (constructive murder) should be deemed contrary to the
Charter and casts significant doubt on the validity of any felony murder sections of the Code.
o R v Shand 2011: Shand tries to rob a drug dealer, uses a gun, doesn’t mean to shoot the gun but
it does off in a crowded room [unlawful object of Shand was to commit a robbery on a drug dealer
and his dangerous act was pulling out a gun] “vague realization that death is possible will not be
sufficient.” The accused must know that death was likely to occur and not simply a risk or a
possibility.
 Is the dangerous act too closely related to the unlawful object?; no, indeed the dangerous
object must be related to unlawful object but it was likely that the dangerous act would
cause death – this is someone who did put his mind to the dangerous act.. he subjectively
contemplated the highly likelihood that the gun would cause a murder so there was
foresight…,
 Section 229(c) applied in that case. in which the accused pointed a gun that accidentally
discharged during a robbery. The murder conviction was sustained because the trial judge
made it clear to the jury that the accused must actually know that the unlawful act was likely
to cause someone’s death.
 The accused must pursue an unlawful object other than to cause the death of the
victim or bodily harm to the victim knowing that death is likely to ensue;
 The unlawful object must itself be an indictable offence requiring full mens rea;
  In furtherance of the unlawful object, the accused must intentionally commit a
dangerous act;
 The dangerous act must be distinct from the unlawful object, but only in the sense
that the unlawful object must be something other than the likelihood of death,
which is the harm that is foreseen as a consequence of the dangerous act;
 The dangerous act must be a specific act, or a series of closely related acts, that in
fact results in death, though the dangerous act need not itself constitute an
offence; and
 When the dangerous act is committed, the accused must have subjective
knowledge that death is likely to result.

1st and 2nd degree – sentencing differences (s. 745):

• 1st degree murder: Life imprisonment; no parole eligibility for 25 years
• 2nd degree murder Life imprisonment; no parole eligibility for 10-25 years; Life imprisonment, no parole eligibility for
25 years if previously convicted of murder or culpable homicide as part of war crime, etc.
Murder is first degree if per [s.231]:
• (2) Planned and deliberate
• Deliberate: act of killing was not impulsive (More, 1963 SCC): This is more than just
“intentional.” Involves calculation of costs and benefits.
• Planned: time taken to make a plan (Widdifield, 1961 ON SC): Compatible with recklessness
re: consequence of death (Nygaard) Nygaard ased whether you can plan and deliberate
something you don’t care about the consequences of?--> court said yes.
• (3) [This includes contract killings]
• (4) Murder of a police officer (or other peace officer)
• R v Collins (1989 ONCA)
• Does s. 7 require planning and deliberation for moral blameworthiness of first
degree murder?
• No: there is a higher degree of blameworthiness for targeting those whose
obligation it is to maintain law and order.
• But targeting requires mens rea re: identity of victim as a police officer.
• This must be proven BRD by Crown.
• (5) While committing a crime of domination
• R v Russell (2001 SCC)
• Must it be one and the same victim of crime of domination and of murder?
• Earlier case law (Paré, Arkell, Luxton) suggests that it must be but that’s not
right: does not need to be the same victim of domination and murder
because nothing in the statutory text requires this and where Parliament
has intended this elsewhere (s.231(6)) it has done so expressly
• Multiple murders will usually be planned and deliberate.
• Can be 2 different victims
• Section 231(5) provides that killing is first-degree murder “when the death is caused by that
person while committing or attempting to commit” a short list of serious offences including
hijacking an aircraft, hostage-taking, kidnapping and forcible confinement, and sexual assault
including aggravated forms of sexual assault.
• (6) While committing criminal harassment
• (6.01) Terrorism
• (6.1) For a criminal organization
• (6.2) while committing criminal intimidation
 Infanticide:
Infanticide is a separate homicide offence punishable by no more than 5 years’ imprisonment
s.233: A female person commits infanticide when by a wilful act or omission she causes the death of her
newly-born child, if at the time of the act or omission she is not fully recovered from the effects of giving birth to
the child and by reason thereof or of the effect of lactation consequent on the birth of the child her mind is then
disturbed.

- newly born child defined as under 1 year of age per R v Rabey

The disturbed mind need not reach the level of the mental disorder or automatism defences. It does not even
require a substantial psychological problem, but includes being “mentally agitated,” “mentally unstable,” or
“mental discomposure,”

Infanticide functions both as a stand-alone and discrete homicide offence and a partial defence to murder that
results in a conviction of infanticide
R v LB 2011 ONCA:
- A killed her two children – ages 6 weeks, 10 weeks. “As a result of ‘feeling confused’ and ‘fighting with
her thoughts.’”
- Definition of infanticide:
1. Mother-child relationship
2. Mental state of mother must be disturbed by childbirth or lactation
• [mental disturbance part of conduct, not fault]
R v Effert: the Alberta Court of Appeal substituted an infanticide conviction for a second-degree murder
conviction in a case in which a nineteen-year-old mother, who had hidden her pregnancy, strangled her
newborn.
- It stressed that “the issue is not. . . whether a properly instructed jury must have found a ‘disturbed
mind’ on a balance of probabilities, but whether such a jury would not even have been left with a doubt
on the issue.” The Supreme Court has subsequently made clear that if the Crown fails to disprove one of
the elements of infanticide beyond a reasonable doubt (i.e., that the accused’s mind was disturbed as a
result of childbirth when the child was killed), the jury should acquit the woman of murder and convict
her of the less serious offence of infanticide.