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R. v. Logan, [1990] 2 S.C.R. 731

 

Her Majesty The Queen    Appellant

 

v.

 

Sutcliffe Logan, Jr. and Warren Leroy Johnson                                                            Respondents

 

and

 

The Attorney General of Canada                                                                                    Intervener

 

indexed as:  r. v. logan

 

File No.:  21382.

 

1990:  March 27; 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 ontario

 

    Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Constructive murder ‑‑ Killing occurring during robbery by an accomplice ‑‑ Whether s. 21(2) 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. 21(2).

 

    Criminal law ‑‑ Constructive murder ‑‑ Whether s. 21(2) 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.

 

    Respondents were convicted of attempted murder.  During a robbery ‑‑ one of a series ‑‑ a person was shot and severely injured.  Neither respondent did the shooting.  Respondent Johnson, however, admitted to being one of the robbers but stated that he had no intention to shoot and that there had been no discussion concerning the use of guns.  Respondent Logan had boasted of being involved in planning the robberies.  The trial judge instructed the jury that the Crown had to establish beyond a reasonable doubt that the accused knew or ought to have known that someone would probably shoot with the intention of killing.  The Court of Appeal allowed appeals with respect to the convictions for attempted murder and substituted convictions for robbery.  At issue here was (1) whether s. 21(2) of the Criminal Code infringed ss. 7 and/or 11(d) of the Charter, and (2), if so, whether it was justified under s. 1.

 

    Held:  The appeal should be dismissed.

 

    Per Dickson C.J. and Lamer C.J. and Wilson, Gonthier and Cory JJ.:  R. v. Vaillancourt cannot be construed as saying that, as a general proposition, Parliament cannot ever enact provisions requiring different levels of guilt for principal offenders and parties.  As a matter of policy, the proposition seems more equitable than not but should not be characterized as a principle of fundamental justice.

 

    There are a few offences with respect to which the operation of the objective component of s. 21(2) will restrict the rights of an accused under s. 7.  If an offence is one of the few for which s. 7 requires a minimum degree of mens rea, Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the basis of a degree of mens rea below the constitutionally required minimum.

 

    The question whether a party to an offence had the requisite mens rea to found a conviction pursuant to s. 21(2) must be answered in two steps.  Firstly, is there a minimum degree of mens rea which is required as a principle of fundamental justice before one can be convicted as a principal for this particular offence?  Secondly, if the principles of fundamental justice do require a certain minimum degree of mens rea in order to convict for this offence, then that minimum degree of mens rea is constitutionally required to convict a party to that offence as well.

 

    The requisite mens rea for a murder conviction logically must be the same for a conviction of attempted murder.  However, logic is not sufficient reason to label something a "constitutional requirement".

 

    The sentencing range available to the judge is not conclusive of the level of mens rea constitutionally required.  Instead, the crucial consideration is whether there is a continuing serious social stigma which will be imposed on the accused upon conviction.

 

    The mens rea for attempted murder cannot, without restricting s. 7 of the Charter, require less than subjective foresight of the accused ‑‑ the mental element required of a murderer under s. 212(a)(i).  Parliament could well extend our definition of attempted murder to include the unsuccessful murderers of s. 212(a)(ii) but it cannot go further and include objective foreseeability as being sufficient for a conviction without restricting s. 7 of the Charter.

 

    When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of mens rea is constitutionally required to convict a party to the offence of attempted murder.  Any conviction for attempted murder, whether of the principal directly or of a party pursuant to s. 21(2), will carry enough stigma to trigger the constitutional requirement.  To the extent that s. 21(2) would allow for the conviction of a party to the offence of attempted murder on the basis of objective foreseeability, its operation restricts s. 7 of the Charter.

 

    Given that a minimum degree of mens rea (subjective foresight) is constitutionally required to convict a principal of the offence of attempted murder, the restriction of s. 7 in this case is in convicting, through the operation of s. 21(2), a non‑principal who does not have that same degree of mens rea.  It is not the legislative objective of s. 21(2) as a whole which this Court must scrutinize, but only the legislative objective of that portion of s. 21(2) that restricts the accused's rights under s. 7 of the Charter in issue in the present case.  This differential treatment of parties and principals charged with attempted murder is the restriction which must undergo the s. 1 test.

 

    In this case, the objective of such a differentiation is to deter joint criminal enterprises and to encourage persons who do participate to ensure that their accomplices do not commit offences beyond the planned unlawful purpose.  This is a legislative objective of sufficient importance to justify overriding the rights of an Accused under s. 7 of the Charter.

 

    The objective of the legislation is that this possibility of conviction through s. 21(2) will make parties more responsible for the actions of their accomplices.  Clearly, then, there is a rational connection between the restriction and the legislative objective.  It, nevertheless, does not satisfy the proportionality test because it unduly impairs an accused's rights under s. 7 of the Charter.

 

    Because of the importance of the legislative purpose, the objective component of s. 21(2) can be justified with respect to most offences.  However, with respect to the few offences for which the Constitution requires subjective intent, the stigma renders the infringement too serious and outweighs the legislative objective which, therefore, cannot be justified under s. 1.

 

    The words "or ought to have known" are inoperative when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder.  Once these words are deleted, the remaining section requires, in the context of attempted murder, that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose.

 

    Per L'Heureux‑Dubé J.:  The factors which, according to the majority, operated to render the objective foreseeability standard unconstitutional in R. v. Martineau are not importable to the crime of attempted murder.  A conviction for attempted murder requires proof of the specific intent to kill.  No lesser mens rea will suffice.  Parliament has decided to create a distinct offence for attempted murder, recognizing that the results of criminal acts are not to be ignored.  The death of a victim renders a standard of objective foreseeability constitutionally permissible.  When the attempt does not result in death, logic as well as principles of fundamental justice enshrined in the Charter dictate that the specific intent to have committed the attempted murder must be conclusively proven.  When mere attempts are at issue, mens rea assumes a dominant role.  The rationale for invoking a test of subjective foresight for attempted murder does not stem from the crime's relationship to the crime of completed murder, but rather from its connection to crimes of attempt generally.  The motivation for requiring subjective foresight for attempt crimes radiates from the primacy of the mens rea component, not from any potential penalties or social stigma that might attend conviction for the completed offence.

 

    For mere attempts, no other unlawful act is necessary.  Intent is what is being punished by s. 222, not the act itself.  The mens rea criteria for the full offence of murder and mere attempt are necessarily different.

 

    The words "ought to know" are not to be read out of the section in all cases.  This measure of objective foreseeability is certainly appropriate when the mens rea of the principal can be ascertained according to an objective standard as well.

 

    No killing took place here.  The crime was one for which the specific intent of the principal had to be shown.  In those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard.  In this regard the actus reus component of the offence cannot be ignored.  Policy considerations addressed in Martineau justify treating completed killings more harshly than attempted ones.  If someone who attempts to kill cannot be convicted unless the Crown proves that he had the specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely shows that the attempted murder was objectively foreseeable.

 

    Per Sopinka J.:  There is no principle of fundamental justice whereby in all cases the level of mens rea possessed by the principal offender must also be possessed by the party.  The correct constitutional principle is that if social stigma and other factors require the principal offender to possess a constitutional minimum mind state in order to be convicted of an offence, then a party under s. 21(2) must possess that same minimum mind state.  If it is assumed that murder requires subjective foresight of death, it follows that subjective foresight is a constitutional requirement for attempted murder.

 

Cases Cited

 

By Lamer J.

 

    Considered:  R. v. Vaillancourt, [1987] 2 S.C.R. 636; R. v. Ancio, [1984] 1 S.C.R. 225; referred to:  R. v. Martineau, [1990] 2 S.C.R. 000; R. v. Oakes, [1986] 1 S.C.R. 103.

 

By L'Heureux‑Dubé J.

 

    Distinguished:  R. v. Martineau, [1990] 2 S.C.R. 000; R. v. Rodney, [1990] 2 S.C.R. 000; referred to:  R. v. Ancio, [1984] 1 S.C.R. 225; R. v. Vaillancourt, [1987] 2 S.C.R. 636.

 

By Sopinka J.

 

    Applied:  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(1), (2), 212(a)(i), 213(a), 222.

 

Authors Cited

 

Stuart, Don.  Canadian Criminal Law, Toronto:  Carswells, 1982.

 

    APPEAL from a judgment of the Ontario Court of Appeal (1988), 67 O.R. (2d) 87, 30 O.A.C. 321, 46 C.C.C. (3d) 354, 57 D.L.R. (4th) 58, allowing the respondents' appeals from convictions on charges of attempted murder by Colter Dist. Ct. J. sitting with jury.  Appeal dismissed.

 

    W. J. Blacklock and Ken Campbell, for the appellant.

 

    Peter Connelly, for the respondents.

 

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

 

//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. --

 

Facts

 

    The two respondents, Sutcliffe Logan Jr. and Warren Leroy Johnson, together with two other co-accused, Hugh Logan (the brother of respondent Logan) and Clive Brown, were all charged with a number of offences arising from a series of robberies in the Toronto area.  This appeal pertains only to the charges against the two respondents for attempted murder which resulted from an incident during one of the robberies.

 

    The facts surrounding the incident are as follows.  At around 11:00 p.m. on September 23, 1983, Hugh Logan, Clive Brown and the respondent Warren Johnson entered a convenience store, wearing masks and armed with revolvers.  Hugh Logan shot the lone clerk, Barbara Turnbull, in the neck, causing severe injuries.  The cash register was robbed and the men fled.

 

    While awaiting trial on the charges, the respondents were held in protective custody in a jail in the Toronto area.  Shortly before the trial, the police received information from an informer that the respondent Sutcliffe Logan was boasting openly about his involvement in the planning of the robberies, including the one from which the attempted murder charges arose.  Two undercover police officers were placed in protective custody with the respondents, posing as two persons arrested on drug charges.  The officers struck up an acquaintance with the two respondents who made certain inculpatory statements.  The officers testified that they did not encourage the respondents to talk, but merely provided the opportunity for the making of the statements.  The officers made notes of the conversation immediately following the conversation during what they pretended was a visit from an articling student from their lawyer's office.

 

    These statements were admitted into evidence at trial.  Also during the course of the trial, the respondent Warren Johnson took the stand and, while admitting that he was one of the robbers, testified that he had no intention to shoot anyone and that there had been no discussion concerning the use of guns.

 

    In his charge to the jury with respect to the respondent Warren Johnson, the trial judge said that "you may well have considerable doubt whether he knew or should have known that one of his group would probably shoot somebody with the intention to kill".  With respect to the respondent Sutcliffe Logan, he stated that "you would then have to consider whether he knew or should have known that one of the group would probably, in the course of the robbery, shoot someone with intent to kill".  In his explanation of s. 21 of the Criminal Code, R.S.C. 1970, c. C-34, the trial judge instructed the jury that "[i]t must be established beyond a reasonable doubt that the accused knew or ought to have known that someone would probably shoot with the intention of killing".

 

    Hugh Logan was found by the jury to have been the one who shot the victim.  The respondents were convicted by the jury of a number offences including the attempted murder of Barbara Turnbull.  The respondents appealed their convictions to the Court of Appeal for Ontario.  The Court of Appeal allowed their appeals with respect to the convictions for attempted murder, and substituted convictions for armed robbery in their stead. The only issue before this Court is the constitutionality of s. 21(2) of the Criminal Code.

 

Relevant Statutory Provision

 

Criminal Code, R.S.C. 1970, c. C-34, s. 21.

 

21. (1)  Every one is a party to an offence who

 

                            (a)  actually commits it,

 

(b)  does or omits to do anything for the purpose of aiding any person to commit it, or

 

(c)  abets any person in committing it.

 

    (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

 

Judgment Below

 

Court of Appeal for Ontario (1988), 63 O.R. (2d) 87

 

    The Court began by reviewing the decision of this Court in R. v. Vaillancourt, [1987] 2 S.C.R. 636, with a view to considering its effect on the provisions of s. 21 of the Criminal Code in the context of a charge of being a party to an attempted murder.  The Court noted that the mens rea for the principal on a charge of attempted murder "cannot be less than the specific intent to kill":  R. v. Ancio, [1984] 1 S.C.R. 225.  Indeed, the Court of Appeal quoted at length from the judgment of McIntyre J. who spoke for the Court in that case.  In the case at bar, the Court noted that it was open to the jury to have a reasonable doubt as to whether the respondents knew it was a probable consequence of the robbery that Hugh Logan would shoot with the intent to kill and that the jury may have found them guilty on the basis of objective foreseeability; that is, that the respondents ought to have known that the shooting was a probable consequence of the robbery.  The Court concluded as follows at pp. 133-34:

 

 

    As previously noted, on a charge of attempted murder, the necessary mens rea must be that of an intention to kill.  In our opinion, 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, a lesser degree of mens rea than is required for the principal, it is contrary to the principles of fundamental justice.  Nor do we think that this departure from the principles of fundamental justice can be saved by s. 1 of the Charter.

 

                                                                        . . .

 

    Thus, on a charge of attempted murder, where s. 21(2) is invoked to determine the liability of a party to the offence, the words of s. 21(2), "ought to have known", must be held to be inoperative and cannot be resorted to by the trier of fact to determine the guilt of such an accused person.

 

    Specifically with respect to s. 1 of the Charter the Court of Appeal held as follows at pp. 133-34:

 

. . . it is unnecessary, in order to deter others, to convict of attempted murder a person who did not know but ought to have known that the principal would shoot with intent to kill.  Under such circumstances, a person who forms an intention with one or more other persons to carry out an armed robbery while armed with a firearm and to assist each other therein would be guilty of armed robbery and of using a firearm in the commission of such an indictable offence.

 

    Severe sentences are imposed for armed robbery where all aggravating factors, such as a severe injury to the person who was robbed, are entitled to be considered.  Such a severe sentence should sufficiently deter others from engaging in such criminal conduct.

 

    The Court then noted that because the respondents had been convicted of attempted murder, the trial judge stayed the armed robbery charges, of which the respondents had also been convicted.  The Court of Appeal held that the trial judge had erred in so doing, and it set aside the stay.  Convictions for armed robbery were substituted for the attempted murder convictions and the matter was referred back to the trial judge for sentencing.

 

Issues

 

    The following constitutional questions were stated by Chief Justice Dickson:

 

    1.Does s. 21(2) of the Criminal Code 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 in the affirmative, is s. 21(2) of the Criminal Code justified under s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

 

Analysis

 

R. v. Vaillancourt

 

    The appellant is challenging the constitutionality of s. 21(2) in general and, in particular, of the objective component of the section ("ought to have known").  However, the Court of Appeal, quite correctly, did not declare the objective component of s. 21(2) inoperative for all offences.  They dealt specifically with the operation of the provision in relation to the offence of attempted murder and the possibility that a party to an attempted murder could be convicted upon proof of objective intent, whereas a conviction of the principal would require proof of subjective intent.  More generally, as a basis for their decision, the court determined that it is a principle of fundamental justice that a party to any offence cannot be found guilty of the offence based on a lower standard of requisite mens rea than that required for convicting the principal.

 

    For this proposition, the court relied on our judgment in Vaillancourt.  In that case, this Court held that for a few offences the principles of fundamental justice require that a conviction cannot stand unless there is proof beyond a reasonable doubt of a minimum degree of mens rea, and that legislation providing for any lesser degree violates the Charter and is inoperative.  Murder was one of those offences.

 

    With respect, I cannot construe Vaillancourt as saying that, as a general proposition, Parliament cannot ever enact provisions requiring different levels of guilt for principal offenders and parties.  Although I readily admit that, as a matter of policy, the proposition seems more equitable than not, I am not ready to characterize it as a principle of fundamental justice.  It must be remembered that within many offences there are varying degrees of guilt and it remains the function of the sentencing process to adjust the punishment for each individual offender accordingly.  The argument that the principles of fundamental justice prohibit the conviction of a party to an offence on the basis of a lesser degree of mens rea than that required to convict the principal could only be supported, if at all, in a situation where the sentence for a particular offence is fixed.  However, currently in Canada, the sentencing scheme is flexible enough to accommodate the varying degrees of culpability resulting from the operation of ss. 21 and 22.

 

    That said, however, there are a few offences with respect to which the operation of the objective component of s. 21(2) will restrict the rights of an accused under s. 7.  If an offence is one of the few for which s. 7 requires a minimum degree of mens rea, Vaillancourt does preclude Parliament from providing for the conviction of a party to that offence on the basis of a degree of mens rea below the constitutionally required minimum.

 

Requisite Mens Rea for Conviction Pursuant to s. 21(2)

 

    Therefore, the question whether a party to an offence had the requisite mens rea to found a conviction pursuant to s. 21(2) must be answered in two steps.  Firstly, is there a minimum degree of mens rea which is required as a principle of fundamental justice before one can be convicted as a principal for this particular offence?  This is an important initial step because if there is no such constitutional requirement for the offence, the objective component of s. 21(2) can operate without restricting the constitutional rights of the party to the offence.  Secondly, if the principles of fundamental justice do require a certain minimum degree of mens rea in order to convict for this offence, then that minimum degree of mens rea is constitutionally required to convict a party to that offence as well.

 

    Step One:  Section 7 and Attempted Murder

 

    With respect to the case at bar, then, the first question which must be answered is whether the principles of fundamental justice require a minimum degree of mens rea in order to convict an Accused of attempted murder.  Ancio established that a specific intent to kill is the mens rea required for a principal on the charge of attempted murder.  However, as the constitutional question was not raised or argued in that case, it did not decide whether that requisite mens rea was a constitutional requirement.  The case simply interpreted the offence as currently legislated.

 

    In R. v. Martineau, [1990] 2 S.C.R. 000, a judgment handed down this day, this Court has decided, as a constitutional requirement, that no one can be convicted of murder unless the Crown proves beyond a reasonable doubt that the person had subjective foresight of the fact that the death of the victim was likely to ensue.  Because of both the stigma and the severe penal consequences which result from a conviction for murder, the Constitution requires at least that degree of intent.

 

    As defined in Ancio, the elements of mens rea for attempted murder are identical to those for the most severe form of murder, murder under s. 212(a)(i).  For each, the accused must have had the specific intent to kill.  All that differs is the "consequences" component of the actus reus.  Quite simply, an attempted murderer is, if caught and convicted, a "lucky murderer".  Therefore, it would seem logical that the requisite mens rea for a murder conviction, as described in Martineau, must be the same for a conviction of attempted murder.  However, logic is not sufficient reason to label something a "constitutional requirement".  As I have stated in Vaillancourt, the principles of fundamental justice require a minimum degree of mens rea for only a very few offences.  The criteria by which these offences can be identified are, primarily, the stigma associated with a conviction and, as a secondary consideration, the penalties available.

 

    The stigma associated with a conviction for attempted murder is the same as it is for murder.  Such a conviction reveals that although no death ensued from the actions of the accused, the intent to kill was still present in his or her mind.  The attempted murderer is no less a killer than a murderer:  he may be lucky -- the ambulance arrived early, or some other fortuitous circumstance -- but he still has the same killer instinct.  Secondly, while a conviction for attempted murder does not automatically result in a life sentence, the offence is punishable by life and the usual penalty is very severe.

 

    It should be noted that, as a basis for a constitutionally required minimum degree of mens rea, the social stigma associated with a conviction is the most important consideration, not the sentence.   Few offences have a high minimum sentence such as that for murder.  For some offences, there is a high maximum and a low minimum penalty available; for other offences, the maximum penalty is much reduced and there is no minimum imposed whatsoever.  In either situation, the fact that a lesser sentence is available or imposed, by statute or through the exercise of judicial discretion, in no way ends the inquiry.   The sentencing range available to the judge is not conclusive of the level of mens rea constitutionally required.  Instead, the crucial consideration is whether there is a continuing serious social stigma which will be imposed on the accused upon conviction.

 

    For example, the offence of theft in the most serious circumstances is punishable by a maximum of ten years or, in less serious circumstances, a maximum of two years if the Crown proceeds by indictment; if the Crown proceeds summarily, the maximum is six months.  The constitutional mens rea requirement would not, under s. 7, be triggered by any punishment within these ranges which the sentencing judge decided to impose.  Whether the actual or available punishment is severe or not, the social stigma associated with being labelled dishonest will be automatically and unavoidably imposed upon conviction.  It is because of this stigma that the principles of fundamental justice will require a minimum degree of mens rea, that is, as I said in Vaillancourt, at p. 653, "proof of some dishonesty".

 

    For these reasons, the mens rea for attempted murder cannot, without restricting s. 7 of the Charter, require of the accused less of a mental element than that required of a murderer under s. 212(a)(i), that is, subjective foresight of the consequences.  While Parliament, as I have already implied, could well extend our definition of attempted murder in Ancio to include the unsuccessful murderers of s. 212(a)(ii), it cannot go further and include objective foreseeability as being sufficient for a conviction without restricting s. 7 of the Charter.

 

    Step Two:  Mens Rea for Attempted Murder Pursuant to s. 21(2)

 

    Having completed the initial step of the inquiry, one can proceed to the second step in determining the requisite mens rea for the conviction of a party pursuant to s. 21(2) on a charge of attempted murder.  When the principles of fundamental justice require subjective foresight in order to convict a principal of attempted murder, that same minimum degree of mens rea is constitutionally required to convict a party to the offence of attempted murder.  Any conviction for attempted murder, whether of the principal directly or of a party pursuant to s. 21(2), will carry enough stigma to trigger the constitutional requirement.  To the extent that s. 21(2) would allow for the conviction of a party to the offence of attempted murder on the basis of objective foreseeability, its operation restricts s. 7 of the Charter.

 

Section 1 Analysis

 

    Given the finding that s. 7 is restricted in the present case, can that restriction be found to be a reasonable limit demonstrably justified in a free and democratic society?  The section 1 analysis to be followed in answering this question has been set out in the decision of this Court in R. v. Oakes, [1986] 1 S.C.R. 103.

 

    In determining the importance of the legislative objective, it is necessary to focus on what exactly needs to be justified in each particular case.  At this stage, the finding that the offence of attempted murder requires, as a principle of fundamental justice, a minimum degree of mens rea is not in issue, but merely triggers the restriction under s. 21(2).  The requisite mens rea for attempted murder is not the issue undergoing the s. 1 test because the current legislation for attempted murder, as interpreted by this Court in Ancio, meets the constitutional requirement of subjective foresight, i.e., a specific intent to kill.

 

    Given that a minimum degree of mens rea (subjective foresight) is constitutionally required to convict a principal of the offence of attempted murder, the restriction of s. 7 in this case is in convicting, through the operation of s. 21(2), a non-principal who does not have that same degree of mens rea.  It is not the legislative objective of s. 21(2) as a whole which this Court must scrutinize, but only the legislative objective of that portion of s. 21(2) that restricts the accused's rights under s. 7 of the Charter in issue in the present case.  This differential treatment of parties and principals charged with attempted murder is the restriction which must undergo the s. 1 test.

 

    In this case, the objective of such a differentiation is to deter joint criminal enterprises and to encourage persons who do participate to ensure that their accomplices do not commit offences beyond the planned unlawful purpose.  This is a legislative objective of sufficient importance to justify overriding the rights of an Accused under s. 7 of the Charter.

 

    The next question to be addressed is whether the means by which Parliament has chosen to achieve that purpose are reasonable and justified, that is, if they are proportional to the objective they are meant to achieve.

 

    First, a rational connection must be shown between the legislative objective and the restriction.  By operation of s. 21(2) with respect to attempted murder, any person involved with others in an unlawful purpose is held responsible for the acts of all accomplices, whether or not that person actually foresaw that the accomplice would try to kill someone in furtherance of the unlawful purpose.  The objective of the legislation is that this possibility of conviction through s. 21(2) will make parties more responsible for the actions of their accomplices.  Clearly, then, there is a rational connection between the restriction and the legislative objective.

 

    However, even though Parliament has sought to achieve an important legislative objective by enacting the restriction in issue in this appeal and even though such restriction is rationally connected to that objective, I am of the view that it does not satisfy the proportionality test because it unduly impairs an accused's rights under s. 7 of the Charter (see Vaillancourt, supra, at p. 651).

 

    The objective component of s. 21(2) unduly impairs rights under s. 7 of the Charter when it operates with respect to an offence for which a conviction carries severe stigma and for which, therefore, there is a constitutionally required minimum degree of mens rea.  The words "ought to know" allow for the possibility that while a party may not have considered and accepted the risk that an accomplice may do something with the intent to kill in furtherance of the common purpose, the party, through this negligence, could still be found guilty of attempted murder.  In other words, parties could be held to be criminally negligent with respect to the behaviour of someone else.  For most offences under the Criminal Code, a person is only convicted for criminal negligence if consequences have ensued from their actions.  While a person may be convicted, absent consequences, for criminal negligence (e.g., dangerous operation of a motor vehicle), none of these forms of criminal negligence carry with them the stigma of being labelled a "killer".  In a situation where s. 21(2) is operating in relation to the offence of attempted murder, no consequences have resulted from the actions of the party and yet the party could be convicted of this offence and suffer severe accompanying stigma and penalty.

 

    Because of the importance of the legislative purpose, the objective component of s. 21(2) can be justified with respect to most offences.  However, with respect to the few offences for which the Constitution requires subjective intent, the stigma renders the infringement too serious and outweighs the legislative objective which, therefore, cannot be justified under s. 1.

 

Conclusion

 

    I would, therefore, as did the Court of Appeal, declare inoperative the words "or ought to have known" when considering under s. 21(2) whether a person is a party to any offence where it is a constitutional requirement for a conviction that foresight of the consequences be subjective, which is the case for attempted murder.  Once these words are deleted, the remaining section requires, in the context of attempted murder, that the party to the common venture know that it is probable that his accomplice would do something with the intent to kill in carrying out the common purpose.

 

    I would dismiss the appeal.  I would restrict my answers to the constitutional questions as follows:

 

    1.Does s. 21(2) of the Criminal Code contravene the rights and freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?

 

Yes, on charges where subjective foresight is a constitutional requirement, to the extent that a party may be convicted if that person objectively "ought to have known" that the commission of the offence would be a probable consequence of carrying out the common purpose.

 

    2.If the answer to question 1 is in the affirmative, is s. 21(2) of the Criminal Code justified under s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

 

No.

 

//L'Heureux-Dubé//

 

    The following are the reasons delivered by

 

    L'HEUREUX-DUBÉ J. -- Having had the advantage of the reasons of my colleague, Chief Justice Lamer, and given my position in R. v. Martineau, [1990] 2 S.C.R. 000, and R. v. Rodney, [1990] 2 S.C.R. 000, released concurrently, I cannot completely agree either with his reasons or with his answers to the constitutional question although I concur in his ultimate disposition of this appeal.

 

    The sole issue in this case is the constitutionality of s. 21(2) of the Criminal Code, R.S.C. 1970, c. C-34.  This appeal does not challenge the constitutionality of s. 213(a) of the Criminal Code.  Therefore, my colleague's oblique reference to Martineau is somewhat inapposite.  In that decision, a minimum standard of subjective foresight for murder was imposed based on the severity of punishment and the stigma associated with that crime.  I disagreed that those factors operated to render an objective foreseeability standard unconstitutional, and I certainly do not believe that they are importable to the crime that is at issue in the present appeal.

 

    In this case, the accused were charged with attempted murder.  Such an offence must be treated differently, especially as regards the connection between actus reus and mens rea, than the crime of murder.

 

    Chief Justice Dickson framed the constitutional questions as follows:

 

1.Does s. 21(2) of the Criminal Code 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 in the affirmative, is s. 21(2) of the Criminal Code justified under s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

 

    Section 21 of the Criminal Code reads:

 

21. (1) Every one is a party to an offence who

 

                                   (a)actually commits it,

 

(b)does or omits to do anything for the purpose of aiding any person to commit it, or

 

(c)abets any person in committing it.

 

    (2) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any one of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to that offence.

 

    The Ontario Court of Appeal held that s. 21(2) cannot operate in a manner so as to impose a constitutionally lower mens rea requirement, i.e., objective foreseeability, on a party than the Criminal Code imposes on the principal who actually committed or attempted to commit the criminal offence, i.e., subjective foresight in the case of attempted murder.  (I agree with the caveat that Lamer C.J. himself puts in his reasons when he discusses the application of R. v. Vaillancourt, [1987] 2 S.C.R. 636, in relation to the Court of Appeal's determination as regards a party to any offence.)  This is in contrast to Rodney and Martineau, where the issue was the application of s. 21 to the crime of murder, for which, according to my reasons in Martineau, I believe a test of objective foreseeability is appropriate.  In Martineau, I did not have to address s. 21 because only paragraphs 21(1)(a) and (b) were included in the jury charge in conjunction with s. 213(a).  Unlike s. 21(2), these provisions do not invoke the objective foreseeability standard at stake in the present case.

 

    Only the offence of attempted murder is at issue in this appeal, and it is defined by s. 222 of the Criminal Code:

 

    222.  Everyone who attempts by any means to commit murder is guilty of an indictable offence and liable to imprisonment for life.

 

    As this Court held in R. v. Ancio, [1984] 1 S.C.R. 225, a conviction for attempted murder requires proof of the specific intent to kill.  No lesser mens rea will suffice.  Parliament has decided to create a distinct offence for attempted murder, recognizing that the results of criminal acts are not to be ignored.  The death of a victim renders a standard of objective foreseeability constitutionally permissible.  When the attempt does not result in death, logic as well as principles of fundamental justice enshrined in the Canadian Charter of Rights and Freedoms, dictate that the specific intent to commit the attempted murder crime must be conclusively proven.  As I said in Martineau at p. 000:

 

If both components, actus reus as well as mens rea, are not considered when assessing the level of fault attributable to an offender, we would see manslaughter and assault causing bodily harm as no more worthy of condemnation than an assault.  Mere attempts would become as serious as full offences.

 

    When mere attempts are at issue, mens rea assumes a dominant role.  The rationale for invoking a test of subjective foresight for attempted murder does not stem from the crime's relationship to the crime of completed murder, but rather from its connection to crimes of attempt generally.  Therefore, I do not choose to follow my colleague's dialectic on the impact of fundamental justice, or of constitutional compulsion upon Parliamentary sovereignty when legislating with respect to these crimes.  The motivation for requiring subjective foresight for attempt crimes radiates from the primacy of the mens rea component, not from any potential penalties or social stigma that might attend conviction for the completed offence.

 

    Part of the policy justification for enacting s. 213(a), invoked in Martineau, was that the act of killing cannot be disassociated from the mental element that motivated it.  An exclusive examination of intent would ignore the fact that someone has been unlawfully killed.  In the aftermath of such a killing it is appropriate to ask whether such a killing was objectively foreseeable, given the circumscribed list of predicate offences under s. 213, coupled with the intent to inflict bodily harm.  For mere attempts, no other unlawful act is necessary.  Intent is what is being punished by s. 222, not the act itself.  The mens rea criteria for the full offence of murder and mere attempt are necessarily different.  As McIntyre J., for the Court, held in Ancio at pp. 247-49:

 

Indeed, because the crime of attempt may be complete without the actual commission of any other offence and even without the performance of any act unlawful in itself, it is abundantly clear that the criminal element of the offence of attempt may lie solely in the intent.

 

                                                                        . . .

 

The completed offence of murder involves a killing.  The intention to commit the complete offence of murder must therefore include an intention to kill.  I find it impossible to conclude that a person may intend to commit the unintentional killings described in ss. 212 and 213 [now ss. 229 and 230] of the Code.  I am then of the view that the mens rea for an attempted murder cannot be less than the specific intent to kill.

 

    After citing this authority, the Ontario Court of Appeal concluded at p. 133:

 

. . . 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, a lesser degree of mens rea than is required for the principal, it is contrary to the principles of fundamental justice.  Nor do we think that this departure from the principles of fundamental justice can be saved by s. 1 of the Charter.

 

    The solution adopted by the Court of Appeal, at p. 134, was to read down the provision as follows:

 

    Thus, on a charge of attempted murder, where s. 21(2) is invoked to determine the liability of a party to the offence, the words of s. 21(2), "ought to have known", must be held to be inoperative and cannot be resorted to by the trier of fact to determine the guilt of such an accused person.

 

    The words "ought to know" are not to be read out of the section in all cases.  This measure of objective foreseeability is certainly appropriate when the mens rea of the principal can be ascertained according to an objective standard as well.  For example, a party to a completed murder can be convicted under s. 21(2) in its present form, if, as in Martineau and Rodney, the stringent criteria of s. 213(a), including the objective foreseeability of death, have all been proven.  That is precisely the "guaranteed minimum" degree of mens rea prescribed by this Court in R. v. Vaillancourt, supra.

 

    However, in the present case no killing took place.  The crime was one for which the specific intent of the principal had to be shown.  In those instances where the principal is held to a mens rea standard of subjective foresight, the party cannot constitutionally be convicted for the same crime on the basis of an objective foreseeability standard.  In this regard the actus reus component of the offence cannot be ignored.  Policy considerations addressed in Martineau justify treating completed killings more harshly than attempted ones.  If someone who attempts to kill cannot be convicted unless the Crown proves that he had the specific intent to do so, then he who accompanied the principal cannot be convicted if the Crown merely shows that the attempted murder was objectively foreseeable.

 

    Therefore, I would dismiss this appeal and answer the constitutional questions as follows:

 

1.Does s. 21(2) of the Criminal Code contravene the rights and freedoms guaranteed by s. 7 and/or s. 11(d) of the Canadian Charter of Rights and Freedoms?

 

Yes, in so far as a party can be convicted on the basis that he or she ought to have known that an offence was a probable result of the common purpose, in cases where a subjective standard is constitutionally required for the principal; as a result, the words "ought to know" are inoperative in cases, and only in those cases, where subjective foresight is constitutionally required of the principal.

 

2.If the answer to question 1 is in the affirmative, is s. 21(2) of the Criminal Code justified under s. 1 of the Canadian Charter of Rights and Freedoms, and therefore not inconsistent with the Constitution Act, 1982?

 

In those aforementioned instances, the violation is not justified under s. 1.

 

//Sopinka J.//

 

    The following are the reasons delivered by

 

    SOPINKA J. -- I have had the opportunity of reading the reasons for judgement herein prepared by Chief Justice Lamer and Justice L'Heureux-Dubé.

 

    I concur in the result reached by Lamer C.J. and L'Heureux-Dubé J.  I disagree with the conclusion reached by the Court of Appeal that there is a principle of fundamental justice whereby in all cases the level of mens rea possessed by the principal offender must also be possessed by the party.   I agree with Lamer C.J. that the correct constitutional principle is that if social stigma and other factors require the principal offender to possess a constitutional minimum mind state in order to be convicted of an offence, then a party under s. 21(2) must possess that same minimum mind state. 

 

    The majority of the Court in R. v. Martineau, [1990] 2 S.C.R. 000, concludes that murder is a special offence requiring subjective foresight of death.  In my reasons in Martineau I explain why it is unnecessary to determine this issue beyond applying  R. v. Vaillancourt, [1987] 2 S.C.R. 636.   Assuming that the majority in Martineau is correct, it would follow that subjective foresight is a constitutional requirement for attempted murder.  On that basis, applying the constitutional principles relating to s. 21(2) of the Criminal Code, R.S.C. 1970, c. C-34, formulated by Lamer C.J., the party must be shown to have the same mental state.

 

    Appeal dismissed.

 

    Solicitor for the appellant: The Ministry of the Attorney General, Toronto.

 

    Solicitors for the respondents:  Danson & Zucker, Toronto.

 

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

 



     *    Chief Justice at the time of hearing.

     **   Chief Justice at the time of judgment.

 

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