''R v Martineau'',

990 Year 990 ( CMXC) was a common year starting on Wednesday of the Julian calendar. Events By place Europe * Al-Mansur, Chancellor and effective ruler of Al-Andalus, conquers the Castle of Montemor-o-Velho (modern Portugal), expanding t ...

2 SCR 633 is a leading

Supreme Court of Canada The Supreme Court of Canada (SCC; , ) is the highest court in the judicial system of Canada. It comprises nine justices, whose decisions are the ultimate application of Canadian law, and grants permission to between 40 and 75 litigants eac ...

case on the ''

mens rea In criminal law, (; Law Latin for "guilty mind") is the mental state of a defendant who is accused of committing a crime. In common law jurisdictions, most crimes require proof both of ''mens rea'' and '' actus reus'' ("guilty act") before th ...

'' requirement for murder.

Background

One evening in February 1985, Patrick Tremblay and 15-year-old Mr. Martineau set out to rob a trailer owned by the McLean family in Valleyview, Alberta. Martineau was armed with a pellet gun and Tremblay was armed with a rifle. Martineau was under the impression they were going to commit only

breaking and entering Burglary, also called breaking and entering (B&E) or housebreaking, is a property crime involving the illegal entry into a building or other area without permission, typically with the intention of committing a further criminal offence. Usually ...

and that no one would be killed. However, during the robbery, Tremblay shot and killed Mr. and Mrs. McLean. Martineau was charged with second degree murder under section 213(a) and (d) of the ''

Criminal Code A criminal code or penal code is a document that compiles all, or a significant amount of, a particular jurisdiction's criminal law. Typically a criminal code will contain offences that are recognised in the jurisdiction, penalties that might ...

'' (now section 230(a) and (d)) for both deaths (under section 21(1) and (2)) and was transferred to adult court. At trial, Martineau was convicted. On appeal, the

Alberta Court of Appeal The Court of Appeal of Alberta (frequently referred to as Alberta Court of Appeal or ABCA) is a Court system of Canada#Appellate courts of the provinces and territories, Canadian appellate court that serves as the highest appellate court in the ...

overturned the decision, holding that section 213(a) violated section 7 and section 11(d) of the ''

Canadian Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part of the '' Constitution Act, 1982''. The ''Char ...

'' ("''Charter''"). The issue before the Supreme Court was whether the appeal court was correct in holding section 213(a) as a violation of sections 7 and 11(d) of the ''Charter''.

Ruling

The Supreme Court upheld the ruling of the Appeal Court, holding that section 213(a) violated the ''Charter'' and could not be saved under section 1.

Majority

The Majority was written by Lamer CJC with Dickson CJC, Wilson, Gonthier and Cory JJ concurring. Section 213(a) is known as the "constructive murder" provision of the ''Criminal Code''. Section 213(a) defined culpable homicide as murder if a person causes the death of another human while committing specific indictable offences, such as breaking and entering. One could be charged with murder under section 213(a) despite having neither an intent to kill nor the subjective knowledge that death might ensue from one's actions. That was in contrast to the other murder provisions in the ''Code'', which require a subjective intent and foresight for a conviction. Section 213(a) of the ''Code'' violated both sections 7 and 11(d) of the ''Charter''. Specifically, it violated the principle of fundamental justice that an appropriate ''

'' must be proven by the Crown. Furthermore, the appropriate level of ''mens rea'' should be correlated to the severity of the punishment and the social stigma stemming from conviction. Murder is a major indictable offence: both the punishment and stigma stemming from conviction are severe. They were the case so the state must show subjective foresight and intent to prove the offence. However, as stated above, such a requirement was absent from section 213(a). Thus, the violation was not justifiable under section 1 of the ''Charter'' because it failed the proportionality test.

Dissent

L'Heureux-Dubé J, alone, dissented. She held that section 213(a) did not violate either section of the ''Charter''. According to her, subjective foresight of death for the offence of murder was not a principle of fundamental justice.

Comments

The judgment cites ''two'' Chief Justices. That is because Dickson was Chief Justice at the time of the hearing but retired before the judgment and was replaced by Lamer, who wrote the decision as Chief Justice.

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