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R. v. Rodney, [1990] 2 S.C.R. 687

 

Her Majesty The Queen    Appellant

 

v.

 

Allan Ronald Rodney         Respondent

 

and

 

The Attorney General of Canada,

the Attorney General of Quebec,

the Attorney General for Alberta and

the Attorney General of Newfoundland                                                                          Interveners

 

indexed as:  r. v. rodney

 

File No.:  21284.

 

1990:  March 26; 1990:  September 13.

 

Present:  Dickson C.J.* and Lamer C.J.** and Wilson, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

 

on appeal from the court of appeal for british columbia

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Fundamental justice ‑‑ Constructive murder ‑‑ Whether s. 213(a) of the Criminal Code violates ss. 7  or 11 (d) of the Charter  ‑‑ If so, whether such violation justified under s. 1  of the Charter  ‑‑ Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 11 (d) ‑‑ Criminal Code, R.S.C. 1970, c. C‑34, s. 213(a).

 

    Criminal law ‑‑ Constructive murder ‑‑ Whether s. 213(a) of the Criminal Code violates ss. 7  or 11 (d) of the Charter  ‑‑ If so, whether such violation justified under s. 1  of the Charter .

 

    Respondent was convicted of second degree murder, under s. 213 (a) of the Criminal Code , in the killing of a person who had been abducted for ransom and killed by one of his accomplices involved in the kidnapping plan.  The credibility of the witness used to establish respondent's role in the kidnapping was severely attacked in cross‑examination.  The Court of Appeal, following R. v. Vaillancourt, [1987] 2 S.C.R. 636, struck down s. 213 (a) and held that a new trial should be ordered on an indictment charging second degree murder as the Crown had not met the test in s. 613(1) (b)(iii).  The constitutional questions queried (1) whether s. 213 (a) contravened ss. 7  and/or 11(d) of the Charter , and (2), if so, whether it was justified by s. 1 .  Also at issue was whether the Court of Appeal erred in failing to apply s. 613(1) (b)(iii).

 

    Held (L'Heureux‑Dubé J. dissenting):  The appeal should be dismissed.  The first constitutional question should be answered in the affirmative, the second in the negative.

 

    Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.:  For the reasons given in R. v. Martineau, [1990] 2 S.C.R. 000, the first constitutional question should be answered in the affirmative and the second in the negative.

 

    Respondent could be found guilty of second degree murder if he knew or ought to have known the murder of the victim was a probable consequence of carrying out the kidnapping.  As a result of the combined effect of R. v. Martineau, involving s. 213 (a), and R. v. Logan, [1990] 2 S.C.R. 000, involving s. 21(2), a new trial must be ordered.  Section 21(2), in so far as it permits a conviction of a party for murder on the basis of objective foreseeability, which is a lesser degree of mens rea than that constitutionally required of the principal, is contrary to the principles of fundamental justice.

 

    As regards the application of s. 613(1) (b)(iii), the jury acting reasonably would not necessarily have found respondent guilty of murder had it been left with the proper test.

 

    Per Sopinka J.:  For the reasons given in R. v. Martineau, [1990] 2 S.C.R. 000, it is unnecessary to decide whether subjective foresight is an essential requirement of the offence of murder.  Section 213 (a) is invalid on the basis of R. v. Vaillancourt, [1987] 2 S.C.R. 636.  No constitutional question was stated with respect to s. 21(2)  of the Criminal Code ; it was not an issue in this appeal.

 

    Per L'Heureux‑Dubé J. (dissenting):  The appeal should be allowed for the reasons stated in R. v. Martineau, [1990] 2 S.C.R. 000.  Section 213 (a) is entirely different from s. 213 (d).  It satisfies the objective foreseeability standard, and if all the elements of s. 213 (a) are proven beyond a reasonable doubt, a murder conviction can validly and constitutionally obtain.

 

Cases Cited

 

By Lamer J.

 

    Applied:  R. v. Martineau, [1990] 2 S.C.R. 000; R. v. Logan, [1990] 2 S.C.R. 000; referred to:  R. v. Vaillancourt, [1987] 2 S.C.R. 636.

 

By Sopinka J.

 

    Applied:  R. v. Vaillancourt, [1987] 2 S.C.R. 636.

 

By L'Heureux‑Dubé J. (dissenting)

 

    R. v. Martineau, [1990] 2 S.C.R. 000; R. v. Vaillancourt, [1987] 2 S.C.R. 636.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 1 , 7 , 11 (d).

 

Criminal Code, R.S.C. 1970, c. C‑34, ss. 21 , 21(2) , 205 , 212 , 213 (a), (d), 613(1) (b)(iii).

 

    APPEAL from a judgment of the British Columbia Court of Appeal (1988), 33 B.C.L.R. (2d) 280, 46 C.C.C. (3d) 323, allowing the respondent's appeal from a conviction on a charge of second degree murder by Hinds J. sitting with jury.  Appeal dismissed, L'Heureux‑Dubé J. dissenting.

 

    James D. Taylor, Q.C., for the appellant.

 

    Ian Donaldson and Malcolm Ruby, for the respondent.

 

    Bruce MacFarlane, Q.C., and Don Avison, for the intervener the Attorney General of Canada.

 

    Jacques Gauvin, for the intervener the Attorney General of Quebec.

 

    Jack Watson, for the intervener the Attorney General for Alberta.

 

    Wayne Gorman, for the intervener the Attorney General of Newfoundland.

 

//Lamer C.J.//

 

    The judgment of Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ. was delivered by

 

    LAMER C.J. --

 

Introduction         

 

    This is a case, heard together with R. v. Martineau, [1990] 2 S.C.R. 000, dealing with the constitutional validity of s. 213(a) of the Criminal Code, R.S.C. 1970, c. C-34, (now s. 230 (a), Criminal Code, R.S.C., 1985, c. C-46 ).  Chief Justice Dickson stated the following constitutional questions:

 

1.  Does s. 213 (a) of the Criminal Code  (as it read on May 30, 1984) contravene the rights and freedoms guaranteed by s. 7  and/or s. 11 (d) of the Canadian Charter of Rights and Freedoms ?

 

2.  If the answer to question 1 is affirmative, is s. 213 (a) of the Criminal Code  (as it read on May 30, 1984) justified by s. 1  of the Charter  and therefore not inconsistent with the Constitution Act, 1982 ?

 

For the reasons that I have expressed in Martineau, supra, I would answer the constitutional questions as follows:

 

1.  Yes, s. 213 (a) contravenes both ss. 7  and 11 (d) of the Charter .

 

2.  No.

 

The remaining issue involves whether the Court of Appeal for British Columbia erred in failing to apply the provisions of s. 613(1) (b)(iii) (now s. 686(1)(b)(iii)) of the Criminal Code .  In this regard it will be necessary to recite at some length the facts and procedural history of this case.

 

Facts

 

    The respondent was convicted of second degree murder in connection with the killing of the wife of the manager of a supermarket.  The respondent became involved in a plan with two other accomplices to abduct and hold for ransom the victim.  Various phone calls were made to the husband of the victim after she was kidnapped demanding ransom.  The victim was then shot and killed by one of the respondent's accomplices. The Crown alleged that the respondent was a party to the kidnapping and shooting of the victim by virtue of ss. 21(2), 212, 213(a) and 213(d) of the Code.  A witness at the trial, David Drew, gave evidence to the effect that while bowling the respondent told him of his involvement in the kidnapping. The respondent told Drew that his role was to watch the comings and goings of people at the home of the victim, and to give the times to his accomplice.  He described how all three had followed the victim, grabbed her in an alleyway, hauled her into a van, tied her feet and hands and gagged and blindfolded her.  The witness Drew also claimed that the respondent told him how they transported the victim to Burnaby Mountain where one of the respondent's accomplices took her out of the vehicle and shot her.  The credibility of Drew was severely attacked in cross-examination, especially on the grounds that he had 15 criminal convictions, he was arrested as a suspect in the murder and that the victim's gloves were found in the garbage behind his flat.  The respondent was convicted of second degree murder, following deliberations by the jury that lasted three days.

 

Judgment Below

 

Court of Appeal for British Columbia

 

    The Court of Appeal for British Columbia observed that the evidence at trial suggested that the respondent did not actually kill the victim but that the jury believed he was involved in the kidnapping and killing.  The jury was instructed at trial according to the law as it stood at the time, that is to say that the respondent could be convicted as a party to the killing under ss. 21 , 205 , and 212 , or as a party to constructive murder under s. 213 .  In light of this Court's decision in R. v. Vaillancourt, [1987] 2 S.C.R. 636, the Court of Appeal for British Columbia struck down s. 213(a) of the Code.  As regards the application of s. 613(1)(b)(iii) of the Code, the Court said the following:

 

. . . as the law presently stands it is clear to us that this accused may have been convicted because of the constructive murder provisions of Code s. 213 , which is constitutionally invalid, and for that reason we are constrained to allow the appeal.  We are not satisfied that the Crown has met the test required by Code s. 613(1) (b)(iii) and must, therefore, order a new trial on an indictment charging second degree murder.

 

Analysis

 

    There is no doubt that the respondent was a party to a kidnapping.  It is not clear, however, on what basis the jury decided that the respondent was a party to murder.  It is clear that by virtue of s. 21(2) of the Code the respondent could be found guilty of second degree murder if the respondent knew or ought to have known that the murder of the victim was a probable consequence of carrying out the kidnapping.  The constitutional validity of s. 21(2)  is not an issue in this appeal, but it was an issue in a case, R. v. Logan, [1990] 2 S.C.R. 000, heard together with the present appeal.  As a result of the combined effect of my reasons in Martineau and Logan, released concurrently, I am of the view that a new trial must be ordered in this case.  A conviction for murder must be based on proof of subjective foresight of death.  In Logan, what was at issue was a charge of attempted murder in which there must be proof of a specific intent to kill.  This Court affirmed that, in so far as s. 21(2)  permits a conviction of a party for the offence of attempted murder on the basis of objective foreseeability, which is a lesser degree of mens rea than that constitutionally required for a conviction for that offence, it is contrary to the principles of fundamental justice.  The reasoning therein applies with equal force to the case of murder where proof of subjective foresight of death is required.  A party to a murder, therefore, cannot be convicted upon proof that he ought to have known that the murder was a probable consequence of carrying out the common purpose.  In the case at bar, it was open to the jury to find that the respondent had formed an intention in common with his accomplices to kidnap the victim and that he ought to have known that the killing of the victim was a probable consequence of carrying out the common purpose.  The jury could have entertained a reasonable doubt that the respondent had subjective foresight that the murder would be a probable consequence of the kidnapping and yet still would have to convict the respondent as a party to murder.  Such a result would be contrary to the principles of fundamental justice and the presumption of innocence.  As regards the application of s. 613(1) (b)(iii), I am not convinced that had the jury been left with the proper test, namely subjective foresight, they would, acting reasonably, have necessarily found the respondent guilty of murder.  The judgment of the Court of Appeal for British Columbia ordering a new trial is, therefore, affirmed.  Accordingly, the appeal is dismissed.

 

//L'Heureux-Dubé J.//

 

    The following are the reasons delivered by

 

    L'HEUREUX-DUBÉ J. (dissenting) -- I have had the advantage of the opinion of Chief Justice Lamer, and with respect I must dissent for the reasons stated in R. v. Martineau, [1990] 2 S.C.R. 000, released concurrently.  As in Martineau, this appeal raises the constitutionality of s. 213(a) of the Criminal Code, R.S.C. 1970, c. C-34 (now R.S.C., 1985, c. C-46 , s. 230 (a)) as regards ss. 7  and 11 (d) of the Charter .  In that case I found that an objective foreseeability test of death was constitutionally valid for the crime of murder, and I distinguished this Court's decision in R. v. Vaillancourt, [1987] 2 S.C.R. 636.  In the present case, the British Columbia Court of Appeal, in my view, interpreted Vaillancourt too broadly when it stated:

 

    We are all of the view that the majority judgments of the Supreme Court of Canada in R. v. Vaillancourt. . . which struck down Code s. 213(d) on constitutional grounds requires [sic] us to apply the same reasoning and reach the same conclusion with respect to Code s. 213(a).

 

    In Vaillancourt, this Court dealt with s. 213 (d) of the Criminal Code  and did not hold that subjective foresight of death was constitutionally mandated for the crime of murder.  Section 213 (a) satisfies the objective foreseeability standard, and if all the elements of s. 213 (a) are proven beyond a reasonable doubt, a murder conviction can validly and constitutionally obtain.  As I discussed in Martineau, s. 213 (a) is entirely different than s. 213 (d) in its historical background, in its consistency with the test in Vaillancourt, and in its resemblance to similar provisions enacted in other common law jurisdictions.  Therefore, I must respectfully dissent from my colleague's disposition for the reasons stated in Martineau.  I would allow this appeal, reverse the judgment of the British Columbia Court of Appeal, and restore the conviction entered at trial.

 

//Sopinka J.//

 

    The following are the reasons delivered by

 

    SOPINKA J. -- I have read the reasons of Lamer C.J. and L'Heureux-Dubé J., and would dispose of the appeal as proposed by Lamer C.J.

 

    For the reasons I gave in R. v. Martineau, [1990] 2 S.C.R. 000, it is unnecessary to decide whether subjective foresight is an essential requirement of the offence of murder.  On the basis of R. v. Vaillancourt, [1987] 2 S.C.R. 636, s. 213 (a) is invalid.  Since it was put to the jury and may have been acted upon, there must be a new trial.

 

    With respect to s. 21(2) of the Criminal Code, R.S.C. 1970, c. C-34, no constitutional question was stated and it is not an issue in this appeal.

 

    Appeal dismissed, L'HEUREUX‑DUBÉ J. dissenting.

 

    Solicitor for the appellant:  Ministry of the Attorney General, Nanaimo.

 

    Solicitors for the respondent:  Oliver & Company, Vancouver.

 

    Solicitor for the intervener the Attorney General of Canada: John C. Tait, Ottawa.

 

    Solicitor for the intervener the Attorney General of Quebec:  Department of Justice, Ste‑Foy.

 

    Solicitor for the intervener the Attorney General for Alberta:  Attorney General for Alberta, Edmonton.

 

    Solicitor for the intervener the Attorney General of Newfoundland:  Attorney General of Newfoundland, St. John's.

 



     *    Chief Justice at the time of hearing.

     **   Chief Justice at the time of judgment.

 

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