 as 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,
 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.