V and X committed armed robbery. They were only to bring knives. X brought gun. V made X takes bullets out. X ended up shooting someone. V believed gun was unloaded
Can we construct a murder out of the situation, that V did not actually kill the man, but that while robbing him X killed him?
RATIO FROM THIS CASE - It is a PFJ that before that before a person could be convicted of murder there must be proof beyond a reasonable doubt of at least objective foreseeability of death (BUT THIS IS NO LONGER LAW)
DISSENT FROM THIS CASE (THIS IS NOW LAW): It is a PFJ that a conviction for murder cannot rest on anything less than proof beyond a reasonable doubt of subjective foresight.
**Crown must prove that the accused at least objectively foresaw that death would result
S.213(d) violates s.7 of the Charter bc it is not in accordance with PFJs bc it allows being convicted without the Crown proving at least objectively foresaw that death would result – if Crown proves this then it does not violate s.11(d)
s.230(d) violated s.7 and s.11(D)
Sections in the Criminal Code will violate s.11(d) – if it places the onus on D to disprove the offence, OR if Parliament creates an offence where they will presume a person has subjective foresight of death if the Crown proves a, b, c.
If an absolute liability offence from which the Crown need not prove a MR element and results in imprisonment or possibility of imprisonment it will violate that PFJs – Motor Vehicle Reference.
SUBJECTIVE FORESIGHT OF DEATH – is the MR for murder in Canada – comes from R v Martineau